Employer Payment For Personal Protective Equipment

SUMMARY: Many Occupational Safety and Health Administration (OSHA)

health, safety, maritime, and construction standards require employers

to provide their employees with protective equipment, including

personal protective equipment (PPE), when such equipment is necessary

to protect employees from job-related injuries, illnesses, and

fatalities.

These requirements are codified in Part 1910 (General Industry

standards), Part 1915 (Shipyard standards), Part 1926 (Construction

standards), Part 1917 (Marine Terminal standards), and Part 1918

(Longshoring standards) of Title 29 of the Code of Federal Regulations.

These requirements address PPE of many kinds: hard hats, gloves,

goggles, safety shoes, safety glasses, welding helmets and goggles,

faceshields, chemical protective equipment and clothing, fall

protection equipment, and so forth. The provisions in OSHA standards

that require PPE generally state that the employer is to provide such

PPE; however, some of these provisions do not specify that the employer

is to provide such PPE at no cost to the employee.

In this rulemaking, OSHA is proposing regulatory language to

clarify that, with only a few exceptions for specific types of PPE, the

employer must pay for the PPE provided. OSHA is proposing to except in

certain circumstances three specific kinds of PPE from this

requirement: safety-toe protective footwear, prescription safety

eyewear, and the logging boots required by 29 CFR 1910.266(d)(1)(v).

OSHA believes that the proposed rule will better implement the

intent of the Occupational Safety and Health Act, make clear who is to

pay for what kind of PPE, and improve protection to employees who must

wear PPE.

The proposed rule would not require employers to provide PPE where

none has been required before. Instead, the proposed rule merely

stipulates that the employer must pay for all required PPE, except in

the limited cases specified above. Since employers already pay for most

of the required PPE, the proposed rule would shift to employers only

the cost of that portion of PPE currently being paid for by their

employees. Based on information from a number of surveys, studies, and

a panel of PPE experts, OSHA believes that, even making worst case

assumptions, this shift in costs from employees to employers will

impose annualized costs of no more than $61.9 million across all

affected industries. To the extent that the proposed rule enhances the

use of PPE, employers will obtain about a three-fold return on their

investment in PPE, i.e., will save an estimated three dollars in injury

and illness costs for every dollar they invest in PPE.

OSHA is also scheduling an informal public hearing to provide

interested parties the opportunity to orally present information and

data related to the proposed rule.

DATES: Comments. Written comments on the proposed standard must be

postmarked by June 14, 1999. Comments that are transmitted

electronically through OSHA's internet site must be transmitted by June

14, 1999. The hearing is scheduled to begin at 9:30 a.m. on June 22,

1999.

Informal public hearing. Notices of intention to appear at the

informal public hearing must be postmarked by June 1, 1999. Hearing

participants requesting more than 10 minutes for their presentations,

and participants who will submit documentary evidence at the hearing,

must submit the full text of their testimony and all documentary

evidence to the Docket Office, postmarked no later than June 14, 1999.

ADDRESSES: Comments. Submit four copies of written comments, notices of

intention to appear at the informal public hearing, testimony, and

documentary evidence to the OSHA Docket Office, Docket S-042, Room N-

2625, U.S. Department of Labor, 200 Constitution Ave., NW, Washington,

DC 20210. (Telephone: (202)693-2350) Please identify the document at

the top of the first page as either a comment, notice of intention to

appear, testimony, or documentary evidence. Comments of 10 pages or

less may be faxed to the Docket Office, if followed by hard copy

postmarked within two days. The OSHA Docket Office fax number is

(202)693-1648.

Comments may also be submitted electronically through OSHA's

Internet site at URL, http://www.osha-slc.gov/e-comments/e-comments-

ppe.html. Please be aware that information such as studies, journal

articles, and so forth cannot be attached to the electronic response

and must be submitted in quadruplicate to the above address. Such

attachments must clearly identify the respondent's electronic

submission by name, date, and subject, so that they can be attached to

the correct response.

Informal public hearing. The hearing will be held in the auditorium

of the U.S. Department of Labor (Frances Perkins Building), 200

Constitution Avenue N.W., Washington, D.C.

FOR FURTHER INFORMATION CONTACT: Ms. Bonnie Friedman, OSHA Office of

Information and Consumer Affairs, Room N-3647, U.S. Department of

Labor, 200 Constitution Avenue, NW, Washington, DC 20210. Telephone:

(202) 693-1999.

SUPPLEMENTARY INFORMATION:

I. Table of Contents

The preamble and proposed standard are organized into twelve

sections as follows:

I. Table of Contents

II. Background

III. Legal Considerations

IV. Summary and Explanation of the Proposed Rule

A. Introduction

B. Reasons Why the Agency Believes that Employers Must Pay for

PPE

C. Scope of the Proposed Rulemaking

D. Current OSHA Requirements Concerning Payment for PPE

E. Advisory Committee on Construction Safety and Health

F. Explanation of Proposed Requirement

V. Issues Pertaining to the Proposed Rule

VI. Preliminary Economic Analysis

VII. Public Participation

VIII. State-plan States

IX. OSHA's Supplementary Statement of Reasons For Its Interpretation

of 29 CFR 1910.132(a)

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

XI. Authority and Signature

XII. Proposed Standards

II. Background

Employees often need to wear protective equipment, including

personal protective equipment (PPE), to be protected from injury,

illness, and death caused by exposure to workplace hazards. Throughout

this document OSHA uses the abbreviation PPE to cover all types of

protective equipment, including personal protective equipment, because

the abbreviation is widely used and understood to include all such

equipment. The abbreviation PPE includes protective equipment that an

employee uses or wears, such as fall arrest systems, safety shoes, and

protective gloves. There are many

[[Page 15403]]

situations in which PPE is necessary to protect employees from hazards.

For example, protective gloves can protect hands from lacerations,

burns, absorption of toxic chemicals, and abrasion. Safety shoes

protect an employee's feet from being crushed by falling objects.

Respirators can protect employees from being over-exposed to toxic

substances. There are many other examples.

Many OSHA standards require employers to provide PPE to their

employees. Some indicate in general terms when PPE is to be worn, and

what is to be worn (see, for example, Sec. 1910.132). Other provisions

are very specific, such as 29 CFR 1910.266(d)(1)(iv), which requires

chain saw operators to wear protective leggings during specific

operations, and 29 CFR 1910.1027(g), which requires respiratory

protection for workers exposed to cadmium above a certain PEL, and

explicitly states that the employer must pay for the respirator.

OSHA derived its PPE standards from many sources. In its first two

years, OSHA, pursuant to section 6(a) of the OSH Act, adopted many

Federal and national consensus standards dealing with PPE that had been

written by many different standards development committees. OSHA itself

has been issuing both health and safety standards requiring appropriate

PPE for 28 years. Because of the many sources for these standards, the

language requiring the use of PPE has varied.

The language used in OSHA's PPE standards has generally been clear

that the employer must provide the PPE and ensure that employees wear

it. However, the regulatory language regarding the employer's

obligation to pay for the PPE has varied.

OSHA's health standards issued after 1977 have made it clear both

in the regulatory text and in the preamble that the employer is

responsible for providing necessary PPE at no cost to the employee.

See, for example, OSHA's inorganic arsenic standard issued in 1978 at

29 CFR 1910.1018(h)(2) (i) and (j), and the recent respirator standard,

issued January 8, 1998 (63 FR 1152).

The regulatory text and preamble discussion for some safety

standards have also been absolutely clear that the employer must both

provide and pay for PPE. See, for example, the logging standard at 29

CFR 1910.266(d)(1)(iii) and (iv). The logging standard does, however,

make an exception for certain types of logging boots (see 29 CFR

1910.266(d)(1)(v)). In the case of foot protection, such as logging

boots, paragraph (d)(l)(v) of that standard leaves the issue of who

pays for some kinds of logging boots open for negotiation and agreement

between the employer and employee.

On the other hand, the regulatory text of some safety standards has

been less clear. For example, 29 CFR 1910.132(a) is the general

provision requiring employers to provide PPE when necessary to protect

employees. This provision states that the PPE must be provided, used,

and maintained in a sanitary and reliable condition. It does not

specifically state that the employer must pay for it. In some cases,

employers have interpreted this requirement to mean that they must pay

for as well as provide the PPE, while in other cases, employers have

understood this requirement to mean only that they must provide the

PPE.

OSHA attempted to establish a policy and clarify the issue of

payment for required PPE in a memorandum to its field staff dated

October 18, 1994, ``Employer Obligation to Pay for Personal Protective

Equipment.'' OSHA stated that for all PPE standards the employer must

both provide, and pay for, the required PPE, except in limited

situations. The memorandum indicated that where PPE is very personal in

nature and usable by the worker off the job, such as is often the case

with steel-toe safety shoes (but not metatarsal foot protection), the

issue of payment may be left to labor-management negotiations. This

memorandum was intended to clarify the Agency's policy with regard to

payment for required PPE.

Very recently, the Occupational Safety and Health Review Commission

declined to accept as Agency policy the interpretation embodied in the

1994 memorandum as it applied to Sec. 1910.132(a), OSHA's general PPE

standard for general industry, in Secretary of Labor v. Union Tank Car,

OSHRC Docket No. 96-0563. In that case, an employer was issued a

citation for failing to pay for metatarsal foot protection and welding

gloves. The Commission vacated the citation, finding that the Secretary

had failed to adequately explain the policy outlined in the 1994

memorandum in light of several earlier letters of interpretation from

OSHA that were inconsistent with that policy.

OSHA believes that it is important that the employer both provide

and pay for PPE and ensure that employees wear it when necessary. OSHA

believes that this view reflects the direction of the OSH Act and is

consistent with the legislative history. Employers must maintain a safe

place of work in all its aspects, and may not receive a competitive

advantage by failing to pay for necessary safety equipment, including

personal protective equipment. OSHA has considered the requirement for

employer payment in many specific rulemakings and has concluded, based

on the record in each case, that this requirement will increase

employee protection.

The present proposal will also lead to greater consistency among

OSHA standards. Accordingly, OSHA is proposing to require that the

employer pay for all PPE required by OSHA standards, except for safety-

toe protective footwear and prescription safety eyewear that meet all

three of the following conditions: (1) the employer permits such

footwear or eyewear to be worn off the job-site; (2) the footwear or

eyewear is not used at work in a manner that renders it unsafe for use

off the job-site; and (3) such footwear or eyewear is not designed for

special use on the job. Employers are not required to pay for the

logging boots specified in 29 CFR 1910.266(d)(1)(v), as discussed

above.

OSHA believes that the proposed requirement will better protect

employees from work-related illness, injury, and death. Employers are

in a better position to identify and select the correct equipment and

to maintain it properly. They have the financial resources to purchase

PPE of necessary quality and to pay for replacements as necessary. The

statutory reasons for requiring the employer to pay for PPE are

discussed at greater length in the Legal Considerations section of this

preamble, and the health and safety reasons are discussed below, in the

Summary and Explanation section of this preamble.

OSHA preliminarily concludes, for the reasons stated, that the

Agency's standards should clearly require the employer to provide and

pay for PPE. Accordingly, OSHA is proposing such a requirement.

Rulemaking under section 6(b) of the Act will provide for full public

input on all issues. The standard will, once promulgated, provide clear

direction to employers and employees.

OSHA is proposing this requirement for general industry,

construction, shipyards, longshoring, and marine terminals. OSHA has

consulted the Advisory Committee for Construction Safety and Health on

this proposal, as required by the Construction Safety Act.

OSHA requests comments on all relevant issues, including the

specific issues listed in the Issues section of this preamble.

[[Page 15404]]

III. Legal Considerations

A. General Authority Under the OSH Act

The Occupational Safety and Health Act and the statute's

legislative history demonstrate that employers are expected to pay the

costs of complying with OSHA's safety and health standards. At section

2(a) of the OSH Act, Congress announced its determination that

occupational injury and illness should be eliminated as much as

possible: ``The Congress finds that occupational injury and illness

arising out of work situations impose a substantial burden upon, and

are a hindrance to, interstate commerce in terms of lost production,

wage loss, medical expenses, and disability compensation payments.'' 29

U.S.C. 651(a). Congress therefore declared ``it to be its purpose and

policy . . . to assure so far as possible every working man and woman

in the Nation safe and healthful working conditions.'' 29 U.S.C.

651(b).

To achieve this end, the Act directs that ``employers shall comply

with occupational safety and health standards . . . issued pursuant to

this Act,'' 29 U.S.C. 654(a) (2), and limits OSHA's enforcement

authority to employers. 29 U.S.C. 658, 659(a). See United Steelworkers

of America v. Marshall, 647 F.2d 1189, 1230-1231 (D.C. Cir. 1980). This

statutory scheme allocates to employers sole legal responsibility for

achieving compliance with safety and health standards. Atlantic & Gulf

Stevedores v. OSHRC, 534 F.2d 541, 533 (3d Cir. 1976). Because

employers are charged with the responsibility for achieving safe and

healthful workplaces, they must bear the concomitant financial

obligation. Id. The Act's terms, including the definition in section

3(8) of an occupational safety and health standard as one which

``requires . . . the adoption or use of one or more practices, means,

methods, operations, or processes, reasonably necessary or appropriate

to provide safe or healthful places of employment,'' 29 U.S.C. 652(8),

give OSHA broad discretion to devise means to achieve safe and

healthful workplaces and to charge employers for the costs of

reasonably necessary requirements. United Steelworkers, 647 F.2d at

1230-1231.

The employer's general financial responsibility is further

evidenced in the Act's legislative history in the Cotton Dust decision

(American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 519-

521(1980)), the Supreme Court interpreted the legislative history as

showing that Congress was aware of the Act's potential to impose

substantial costs on employers but believed such costs to be

appropriate when necessary to create a safe and healthful working

environment. Congress thus viewed the costs of health and safety as a

cost of doing business. Senator Yarborough, a co-sponsor of the [Act],

stated:

We know the costs would be put into consumer goods but that is the

price we should pay for the 80 million workers in America . . .

Senator Eagleton commented that:

[the costs that will be incurred by employers in meeting the

standards of health and safety to be established under this bill

are, in my view, reasonable and necessary costs of doing business.

Other Members of Congress voiced similar views (American Textile Mfrs.

Inst., Inc. v. Donovan, 452 U.S. 490, 519-521 (1980) (ATMI) (internal

citations omitted, original emphasis)). See also Forging Indus, Ass'n

v. Secretary of Labor, 773 F.2d 1436, 1451 (4th Cir. 1985) (en banc)

(which stated that, in view of the Supreme Court's ``clear statement''

in ATMI about Congress' intent that employers bear the costs of safety

and health, OSHA may logically require employers to pay for hearing

protectors under the hearing conservation standard); S. Rep. No. 91-

1282, 91st Cong. 2d Sess. 4 (1970), reprinted in, Senate Comm. On Labor

and Public Welfare, 92nd Cong. 1st Sess., Legislative History of the

Occupational Safety and Health Act of 1970 (Legislative History) 324,

510-511, 854, 1150, 1188, 1201.

Congress was also concerned that the costs imposed by OSHA rules be

borne fairly by employers within and across all affected industries and

believed that uniform enforcement was crucial to reduce or eliminate

the disadvantage that a conscientious employer might experience where

inter-industry or intra-industry competition is present. Legislative

History at 854; ATMI, 452 U.S. at 521. It also recognized that many

small firms might not be able to make the necessary investment in

safety and health unless all firms were required to do so. Legislative

History at 144. For these reasons, Congress did not intend to allow

individual employers to decide who should pay the costs of complying

with OSHA standards. See United Steelworkers, 647 F.2d at 1236; Forging

Indus. Ass'n, 773 F.2d at 1451-1452.

B. Other Statutory Considerations

In Industrial Union Department, AFL-CIO v. American Petroleum

Institute, 448 U.S. 607 (1980) (Benzene), the Supreme Court ruled that,

before OSHA can issue a new standard, the Agency must find that the

hazard being regulated poses a significant risk to workers and that a

new, more protective, standard is ``reasonably necessary and

appropriate'' to reduce that risk. The requirement to find a

significant risk does not mean, however, that OSHA must ``wait for

deaths to occur before taking any action,'' id. at 655, or ``support

its findings with anything approaching scientific certainty.'' Id. at

656. ``[T]he requirement that a `significant' risk be identified is not

a mathematical straightjacket.'' Id. at 655.

The Act allows OSHA substantial latitude to devise means to reduce

or eliminate significant workplace hazards. Clearly, OSHA need not make

individual quantitative or qualitative risk findings for every

regulatory requirement in a standard. Once OSHA has determined that a

significant risk of material impairment of health or well being is

present, and will be redressed by a standard, the Agency is free to

develop specific requirements that are reasonably related to the Act's

and standard's remedial purpose. OSHA standards are often designed to

reduce risk through an integrated system of safety practices,

engineering controls, employee training, and other ancillary

requirements. Courts have upheld individual requirements based on

evidence that they increase the standard's effectiveness in reducing

the risk posed by significant workplace hazards. See Forging Indus.

Ass'n., 773 F.2d at 1447-1452 (finding ancillary provisions of hearing

conservation standard, including requirements for audiometric testing,

monitoring, and employer payment for hearing protectors, reasonably

related to the standard's purpose of achieving a safe work

environment); United Steelworkers, 647 F.2d at 1237-1238 (finding lead

standard's medical removal protection (MRP) provisions reasonable).

Similarly, the courts have held that the Agency must consider other

ancillary provisions that could provide additional protection if the

standard's exposure limits will not eliminate significant risk.

Building and Constr. Trades Dept. AFL-CIO v. Brock, 838 F.2d 1258, 1271

(D.C. Cir. 1988). (Remand to consider including in asbestos standard

additional provisions to reduce smoking-related asbestos risks);

National Grain & Feed Ass'n v. OSHA, 866 F.2d 717, 734-735 (5th Cir.

1989) (directing OSHA to consider extending the action level for clean-

up measures from certain priority areas to the entire facility where

such an

[[Page 15405]]

extension might further reduce the risk of fire and explosions).

OSHA standards must also be technologically and economically

feasible, and cost effective. A standard is technologically feasible if

the protective measures it requires already exist, can be brought into

existence with available technology, or can be created with technology

that can reasonably be expected to be developed. ATMI, 452 U.S. at 513.

A standard is economically feasible if industry can absorb or pass on

the cost of compliance without threatening its long term profitability

or competitive structure. ATMI, 452 U.S. at 530 n.55.

A standard is cost effective if the protective measures it requires

are the least costly of the available alternatives that achieve the

same level of protection. ATMI, 452 U.S. at 514 n.32; International

Union, UAW v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994). Finally, if OSHA

promulgates a rule that differs substantially from an existing national

consensus standard, the Agency must publish in the Federal Register a

statement of reasons why the rule adopted will better effectuate the

purposes of the Act than the national consensus standard. 29 U.S.C.

655(b)(8).

C. Historical Overview: OSHA's Determinations in Prior Rulemakings That

Employers Should Pay for Necessary Personal Protective Equipment

Since 1978, OSHA has promulgated many occupational health and

safety standards explicitly requiring employers to furnish personal

protective equipment ``at no cost to employees.'' 1

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\1\ See 29 CFR 1910.95(i)(1), (i)(3) (hearing conservation); 29

CFR 1910.1001(g)(1), (g)(2)(i), (h)(1) (asbestos); 29 CFR

1910.1018(h)(1), (h)(2)(i), (j)(1) (inorganic arsenic); 29 CFR

1910.1025(f)(1), (g)(1) (lead); 29 CFR 1910.1027(g)(1), (i)(1)

(cadmium); 29 CFR 1910.1028(g)(1), (g)(2)(i), (h) (benzene); 29 CFR

1910.1030(d)(3)(i), (d)(3)(ii) (bloodborne pathogens); 29 CFR

1910.1043(f)(1), (f)(3) (cotton dust); 29 CFR 1910.1044(h)(1),

(h)(2), (h)(3)(i), (j)(1) (1,2-dibromo-3-chloropropane); 29 CFR

1910.1045(h)(2)(i), (j)(1) (acrylonitrile); 29 CFR

1910.1047(g)(2)(i), (g)(4) (ethylene oxide); 29 CFR 1910.1048(g)(1),

(h) (formaldehyde); 29 CFR 1910.1050(h)(2)(i), (i)(1) (4,4,

methylenedianiline); 29 CFR 1910.1051(h)(1), (i) (1,3-butadiene); 29

CFR 1910.1052 (g)(1), (h)(1) (methylene chloride); 29 CFR

1910.146(d)(4)(iv) (confined spaces); 29 CFR 1910.156(e)(1)(i) (fire

brigades); 29 CFR 1910.266(d)(1)(iii), (d)(1)(iv),

(d)(1)(vi),(d)(1)(vii) (logging). See also OSHA's recently revised

respiratory protection standard, promulgated January 8, 1998, 63 FR

1271.

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In these rulemakings, OSHA has stated that language explicitly

requiring that PPE be furnished without cost to employees is necessary

to effectuate the purposes of the Act and to ``clarif[y] OSHA's

position which has long been implicit in health standards

proceedings.'' See, e.g., 42 FR 27387 (June 23, 1978) (cotton dust

preamble); 43 FR 11523 (March 17, 1978) (dibromo-3-chloropropane

preamble); 52 FR 46266 (Dec. 4, 1987) (formaldehyde preamble). OSHA has

also concluded in its rulemaking on the Cancer Policy that personal

protective equipment should be treated no differently from engineering

controls for the purposes of cost-allocation (45 FR 5261, Jan. 22,

1980):

The requirement that employers pay for protective equipment is a

logical corollary of the accepted proposition that the employer must

pay for engineering and work practice controls. There is no rational

basis for distinguishing the use of personal protective equipment

[from other controls]. The goal in each case is employee protection;

consequently the responsibility of paying for the protection should,

in each case, rest on the employer.

OSHA has further determined that requiring employers to pay for

personal protective equipment contributes to increased health and

safety protection in several ways. The employer is most knowledgeable

about hazards existing in the workplace and is therefore best able to

select and maintain appropriate protective equipment. Requiring

employers to purchase personal protective equipment ensures that they

retain control over the selection, issuance, maintenance, and use of

the devices. See 43 FR 19619 (May 5, 1978) (inorganic arsenic

preamble); 46 FR 4153 (hearing conservation preamble). Shifting the

financial burden to employees, on the other hand, ``risks losing the

necessary control over the organized and consistent selection,

issuance, maintenance and use of such equipment.'' 46 FR 4153 (hearing

conservation preamble).

OSHA has also concluded that charging employers with the cost of

personal protective equipment, as well as other requirements imposed by

standards, is necessary to ensure the employee's voluntary cooperation

in the employer's safety program. In requiring employers to pay for

hearing protectors as part of the hearing conservation standard, OSHA

relied upon the testimony of the director of the Safety and Health

Department of the International Brotherhood of Teamsters:

[an] employer's attempt to require its employees to purchase

their own personal ear protective devices would cause resentment

among the workers and clearly demonstrate to them the lack of

commitment on the part of their employer in preventing hearing loss.

Such a requirement would discourage the use of ear protective

devices and would create an adversarial atmosphere in regard to the

hearing conservation program. 46 FR 4153 (emphasis added).

OSHA has found that the need to ensure voluntary cooperation by

employees was also an important reason to require employers to pay for

other protections in standards, including medical examinations and

medical removal protection (MRP). In promulgating the lead standard,

OSHA relied upon extensive evidence that employees' fears of adverse

economic consequences from participation in a medical surveillance

program could seriously undermine efforts to improve employee health.

43 FR 54442-54449 (Nov. 21, 1978). OSHA cited data from numerous

sources to show that employees' concerns about the possible loss of

income would make them reluctant to participate meaningfully in any

program that could lead to job transfer or removal. Id. OSHA

promulgated the lead standard's M.R.P. provision ``specifically to

minimize the adverse impact of this factor on the level and quality of

worker participation in the medical surveillance program.'' Id. at

54449.

Courts have upheld OSHA's statutory authority to charge employers

with the costs of complying with standards and have affirmed the

Agency's findings of benefits accruing from this requirement. In

reviewing the lead standard, the D.C. Circuit found that ``[the] scheme

of the statute, manifested in both the express language and the

legislative history . . . appears to permit OSHA to charge employers

the cost of any new means it devises to protect workers.'' United

Steelworkers, 647 F.2d at 1231. The court found reasonable OSHA's

determination that wage retention and other M.R.P. benefits were

necessary in view of employee resistance to programs that could result

even in limited loss of earnings. Id. at 1237. Moreover, the court

found that OSHA could legitimately consider benefits that were more

indirect. It upheld the standard's requirement that employers pay for

medical opinions from physicians who are selected by employees, in part

because employees will be more likely to cooperate in, and improve the

accuracy of, medical examinations performed by physicians they trust.

Id. at 1239. See also Forging Indus. Ass'n, 773 F.2d at 1451-1452

(upholding the requirement in the hearing conservation standard that

employers pay for hearing protectors).

Some have suggested that employee payment for PPE helps encourage

employees to maintain their PPE properly. OSHA notes that employees,

because their own safety is at stake, already have significant

incentives to assure that PPE is maintained in a manner that assures

that the PPE will

[[Page 15406]]

function safely. Requiring employee payment for PPE could encourage

employees to consider a trade-off between assuring the safety of the

PPE and assuring its longevity, even though the PPE may be worn or

damaged to the point that it no longer functions properly. Employee

payment could also lead to perverse incentives for employers. Given a

choice between engineering controls that the employer must pay for, and

PPE that would be paid for by employees, employers would have a strong

incentive to use PPE even though engineering controls would be more

protective and might even be cheaper. OSHA views the theoretical loss

of some employee incentive to maintain equipment as minor compared to

the importance of assuring employers provide a safe and healthy

workplace.

D. The Proposed PPE Revisions Comply With Statutory Criteria

OSHA believes that the proposed PPE revisions readily comply with

the statutory criteria outlined above. In the Agency's view, the

proposed language that, with certain exceptions, employers must provide

personal protective equipment under existing standards ``at no cost to

employees,'' does no more than clarify a requirement legally implicit

under the Act. Congress itself intended to impose the costs of safety

and health on employers and charged employers with sole responsibility

for compliance with standards. ATMI, 452 U.S. at 520-5211; United

Steelworkers, 647 F.2d at 1231. The requirement that employers pay for

the means necessary to achieve compliance is implicit in the statute

itself, and therefore, is properly an implied term of every

occupational safety or health standard.

Based on the OSH Act's implicit cost-allocation scheme, OSHA has

interpreted standards requiring employers to ``provide'' personal

protective equipment to mean that this equipment must be furnished to

employees at no charge. For example, OSHA has interpreted the coke oven

emissions standard, 29 CFR 1910.1029(h)(1), which states that ``the

employer shall provide and assure the use of appropriate protective

clothing and equipment,'' to require that personal protective equipment

be furnished at no charge to coke oven workers. The Occupational Safety

and Health Review Commission held that interpreting ``provide'' to mean

``pay for'' was consistent with the statutory intent and with the

Agency's prior published interpretation. Secretary of Labor v. Erie

Coke Corp., 15 O.S.H. Cas. (BNA) 1561, 1563-1565 (Review Comm. 1992).

OSHA has also interpreted its general personal protective equipment

standards to require that equipment be furnished at no cost to

employees. In 1994, OSHA issued a compliance memorandum entitled

``Employer Obligation to Pay for Personal Protective Equipment.'' In

this compliance memorandum, OSHA interpreted 29 CFR 1910.132, 29 CFR

1926.95, and other PPE standards to require employers to provide PPE at

no cost to employees, except where the equipment is personal in nature

and usable off the job.

OSHA recognizes that the Occupational Safety and Health Review

Commission has subsequently rejected OSHA's policy interpretation of 29

CFR 1910.132 as requiring employer payment for PPE. See Union Tank Car

Co., OSHRC No. 96-0563 (assuming the 1994 memorandum represented a

change in position, and finding that OSHA had not presented an adequate

justification for the change).

Section IX of this preamble, OSHA's Supplementary Statement of

Reasons for its Interpretation of 29 CFR 1910.132(a), contains a

detailed explanation of OSHA's interpretation of section 1910.132(a),

which addresses in detail the Commission's concerns and demonstrates

that the Agency's reading of its general personal protective equipment

standard is consistent with the statutory scheme and is reasonable.

In OSHA's view, the proposed rule simply clarifies the employer's

pre-existing obligations under the personal protective equipment

standards. See Edison Elec. Inst. v. OSHA, 849 F.2d 611, 620 (D.C. Cir.

1988); OSHA's Supplemental Statement of Reasons. Assuming, however,

that the language in existing Sec. 1910.132 does not clearly convey a

requirement for employer payment, the proposed rule is necessary and

appropriate to conform the standard to the requirements of the statute

and to the position the Agency has consistently adopted in rulemaking

proceedings for more than twenty years.

The Agency believes, moreover, that implementation of the proposed

revisions will contribute in a significant way to a safer work

environment. The existing PPE standards reflect a determination that

the use of PPE is necessary to reduce a significant risk of

injury.2 OSHA considers the proposed revisions to be

ancillary requirements of the existing PPE standards. They are

reasonably related to the existing standards' purpose of preventing

injury by requiring the provision and use of appropriate personal

protective equipment.

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

\2\ For existing standards adopted as national consensus or

established Federal standards pursuant to section 6(a) of the Act,

the determination of significant risk is implied in Congress's

direction that such standards should be promulgated as

``occupational safety or health standard[s].'' 29 U.S.C. 655(a). The

Court in Benzene interpreted the definition of ``occupational safety

and health standard'' in section 3(8) of the Act to mean a standard

that addresses a significant risk of harm. 448 U.S. at 639-642.

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

Moreover, OSHA believes that the principle expressed in National

Grain and Feed, discussed above, provides analogous support for this

proposed rule. In amending 29 CFR 1910.132 in 1994 to include new

requirements for, among other things, hazard assessments and employee

training, the Agency examined PPE use in general industry. OSHA found

that, although the standard had been in effect since 1971, the data

demonstrated that a significant risk of injury attributable to the non-

use or misuse of PPE remained. See 59 FR 16335 (April 6, 1994). OSHA

determined that compliance with the final rule would result in more

widespread acceptance and use of appropriate PPE, and would, therefore,

significantly reduce the risk of injury. However, OSHA did not find

that compliance with the rule would eliminate the significant risk due

to the non-use or misuse of PPE. As discussed below, there is evidence

that requiring employers to pay for PPE will result in a further

substantial reduction in the risk of non-use or misuse of PPE by

centralizing the control over PPE programs, and by eliminating economic

disincentives to the voluntary use of PPE. Cf. National Grain and Feed,

866 F.2d at 735.

As OSHA found in promulgating the hearing conservation standard,

requiring employers to pay for personal protective equipment ensures

that employers retain control over the selection, issuance,

maintenance, and use of such equipment. OSHA believes that ensuring

centralized control over these critical functions promotes a more

organized and consistent approach to personal protective equipment

requirements. See 46 FR 4153 (Jan 16, 1981). See also 43 FR 19619

(Inorganic Arsenic) (May 5, 1978).

OSHA also believes that employees are more likely to cooperate in

achieving full compliance with existing standards if protective

equipment is provided at no charge. The evidence adduced during the

rulemaking for the lead standard demonstrated that many employees would

be reluctant to participate fully in a program that could result in a

loss of income. OSHA

[[Page 15407]]

believes that this problem is not limited to MRP provisions. In

Secretary of Labor v. Phelps Dodge Corp., 11 O.S.H. Cas. (BNA) 1441,

1443 (Rev. Comm. 1983), the Review Commission held that the employer

did not provide medical examinations under the Inorganic Arsenic

standard ``without cost to the employee'' when it allowed employees to

take examinations only during their free time and did not reimburse

them for travel expenses or the time consumed in taking the

examinations. The Commission noted the ALJ's finding that when

employees were required to provide their own transportation to and from

the hospital and to sacrifice their personal time to take examinations,

42% of them failed to participate.

Such evidence, showing that employees often make decisions that

risk their health and safety to avoid suffering economic loss, is

relevant to the proposed revision. It is certainly reasonable to

believe that employees who are furnished personal protective equipment

at no charge are more strongly motivated to wear it, and to replace it

promptly when worn or damaged, than are employees who must purchase

such equipment. Indeed, OSHA is aware of evidence presented in

enforcement litigation that employees have continued to use worn-out or

defective items of personal protective equipment because of the cost of

replacing this equipment. In the Union Tank case, the employee

representative presented an affidavit that some employees taped or

wrapped wire around their damaged metatarsal safety boots in order to

avoid having to pay up to $130 per pair to replace them. Similarly, in

Ormet Primary Aluminum Corp., OSHRC Docket No. 96-0470, an employee

testified that he continued to wear safety boots, even though the

protective steel toes were exposed and posed an electrocution hazard,

because he could not afford a new pair. The employee also testified

that some workers put a cement-like substance over the steel toes of

their boots when the leather covering wore away, but that this practice

was hazardous because the substance was flammable.

Based on the available evidence, OSHA preliminarily concludes that

the proposed revisions will significantly enhance compliance with

existing standards. OSHA estimates that the proposed rule will prevent

over 47,000 injuries that occur annually as a result of the non-use or

misuse of personal protective equipment, including seven fatal

injuries. See Section VI., Preliminary Economic Analysis.

OSHA has also preliminarily concluded that excepting safety-toe

footwear and prescription safety eyewear from the payment requirement

is appropriate and does not conflict with the legislative intent. OSHA

has long taken the position that employers should not be required to

pay for safety-toe footwear because it is personal in nature and

frequently worn off the job. See The Budd Co., 1 O.S.H. Cas. (BNA) 1548

(Rev. Comm. 1974). OSHA believes that prescription safety eyewear

shares these characteristics. Because of the special nature of safety-

toe footwear and prescription safety eyewear, the statutory and policy

reasons for requiring employers to pay for other types of PPE do not

carry the same weight for these types of PPE 3. OSHA

believes that there is little statutory justification for requiring

employers to pay for such personal equipment if it is used away from

the workplace and if all three of the proposed conditions are met: (1)

The employer permits the footwear or eyewear to be worn off the job-

site; (2) the footwear or eyewear is not used at work in a manner that

renders it unsafe for use off the job-site; and (3) such footwear is

not designed for special use on the job.

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

\3\ In her brief to the Commission in Budd filed in 1973, the

Secretary stated her interpretation that 29 CFR 1910.132(a) does not

require employers to pay for safety shoes. The Secretary noted that

``safety shoes are purchased by size, are available in a variety of

styles, and are frequently worn off the job, both for formal and

casual wear. Furthermore, it is neither feasible for a different

employee to wear the shoes each day nor feasible that upon resigning

from the position an employee will leave the shoes behind to be worn

by another individual.'' See Section IX., OSHA's Supplemental

Statement of Reasons For Its Interpretation of 29 CFR 1910.132(a).

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

The Commission and one court of appeals have agreed with the

Secretary's interpretation that 29 CFR 1910.132(a) does not require

employees to pay for safety shoes. The Budd Co. O.S.H. Cas. (BNA) 1548

(Rev.Comm. 1974); 513 F.2d 201, 205 (3d Cir. 1975). See also United

Steelworkers, 647 F.2d at 1231 n.66 (noting special character of

safety-toe protective footwear which the employee would wear off-the-

job as well as on-the-job). Moreover, OSHA's logging standard (see 29

CFR 1910.266 (d)(1)(v)) provides analogous support for the proposed

exceptions for safety shoes and prescription safety eyewear. OSHA

excepted logging boots from among the types of equipment that employers

must provide at no cost under the logging standard, based in part on

evidence that logging boots are personal in nature and used away from

work. See 59 FR 51684 (Oct. 12, 1994). See also section IX., OSHA's

Supplementary Statement of Reasons for its Interpretation of 29 CFR

1910.132(a). The three conditions OSHA is proposing to apply to the

exception for safety-toe footwear and prescription safety eyewear all

relate to off-site use. For example, if the employer prohibits off-site

use of the footwear or eyewear, employees would clearly not be able to

wear it off the job, and the exception would not apply. Similarly, if

the footwear or eyewear is used at work in a way that makes it unsafe

for use off the job, e.g., safety-toe footwear is worn in a lead

chromate pigment plant, it would be unsafe for the employee to wear it

at home, and the exception would not apply. Finally, if the footwear or

eyewear is designed for special use on the job, e.g., the eyewear is

built into a welding mask, or the footwear has built-in metatarsal

guards as well as safety-toes, it could not be worn off-site, and the

exception would not apply.

If one or more of these conditions is not met for safety-toe

footwear or prescription eyewear, the exception for these types of PPE

does not apply, and the employer would be required to pay for the PPE.

For these reasons, OSHA has preliminarily concluded that employers

should not be required to pay for safety-toe protective footwear and

prescription safety eyewear, provided that all three of the excepted

conditions are met. However, as discussed in other sections of this

document, OSHA seeks comment on whether these exceptions, and the

conditions restricting their applicability, are appropriate and whether

other types of personal protective equipment should be excepted or

other limiting conditions should be considered.

OSHA believes that compliance with the proposed standard is

technologically feasible because the PPE affected by this rulemaking

has already been shown to be technologically feasible in numerous other

rulemakings, e.g., OSHA's 1994 PPE rulemaking and the individual

rulemakings requiring particular types of PPE (e.g., fall protection in

construction, and various shipyard employment standards). The affected

PPE, as shown by the record evidence in these rulemakings, is widely

manufactured, distributed, and used in workplaces in all industries.

OSHA believes that the proposed standard is also economically feasible

because the PPE of concern has been shown to be economically feasible

in the earlier rulemakings referred to above and, additionally, for

this proposed rule, as detailed in Section VI., Preliminary Economic

Analysis. The proposed rule merely shifts some costs previously borne

by employees to their employers.

[[Page 15408]]

Indeed, in its economic analyses of other rules requiring PPE, OSHA has

always assumed that PPE would be paid for by the employer. The

Preliminary Economic Analysis also indicates that to the extent that,

the proposal enhances PPE use, employers will save money because their

employees will avoid the injuries and illnesses that would otherwise

continue to occur from the improper use of PPE. Finally, this preamble

explains why the proposed regulatory text will enhance safety

protection for workers and will better effectuate Congress' intent that

employers pay for the costs of compliance with OSHA standards. 29

U.S.C. 655(b)(8). Accordingly, the proposed standard complies with all

applicable statutory criteria.

IV. Summary and Explanation of the Proposed Rule

A. Introduction

OSHA is proposing to revise its standards requiring employers to

provide PPE to clarify that the employer must pay for the PPE, except

for safety-toe footwear and prescription safety eyewear that meets all

three conditions--the employer permits off-site use, the footwear or

eyewear is safe for off-site use, and the footwear or eyewear is not

designed specially for on-site use. The logging boots required by 29

CFR 1910.266(d)(1)(v) are also excepted from the employer payment

requirement. This proposal applies to standards in the following

industry sectors: general industry, construction, and maritime

(including shipyards, marine terminals, and longshoring operations). It

does not apply to agriculture.

The Agency believes that requiring employers to pay for PPE is

central to the effective implementation of the Act. As noted earlier in

this preamble, OSHA is using the abbreviation PPE to cover all

protective equipment, including personal protective equipment, that is

provided to employees to protect them from workplace hazard. However,

some inconsistent statements and interpretations by OSHA over the years

regarding the Agency's PPE payment policy, and the recent Union Tank

decision by the Review Commission, have now made it difficult for the

Agency to uniformly enforce this policy.

Therefore, OSHA is proposing to resolve this issue by clearly

identifying, through regulation, who is required to pay for PPE. OSHA

intends this rulemaking to lead to the consistent application of the

Agency's protective equipment requirements throughout the regulated

community and by Agency compliance personnel. The rulemaking process

will also give interested parties an opportunity to participate in the

Agency's decisions through written comments and informal public

hearings.

The following discussion presents the Agency's reasons and

preliminary conclusions regarding the proposed revisions to its PPE

standards, and explains the proposed requirements.

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

1. The OSHAct. The Occupational Safety and Health Act of 1970

requires employers to provide a safe and healthful workplace for their

employees. This mandate includes the financial obligation of employers

to provide controls to address hazards that could cause injury or

physical harm to their employees. (See the Legal Considerations section

of this preamble for a more detailed discussion of the employer's

obligation to pay for workplace protections.)

2. PPE is also a hazard control measure. Most standards require

employers to implement engineering controls, such as ventilation or

barriers, and administrative controls, such as regulated areas or

danger zones, because these are typically thought to be the primary

ways to reduce hazardous exposures to employees. There has never been

any doubt that employers pay for these controls.

PPE is another type of control measure that is often necessary to

reduce exposures to health and safety hazards. In many cases, PPE use

supplements engineering, work practice, and administrative controls

where such controls do not provide adequate protection. In some

circumstances, such as in some maintenance work, PPE is used as the

sole or primary means to protect employees. Consequently, it is

appropriate for OSHA standards to require employers both to implement

and to pay for PPE as a hazard control measure, just as they must do

for engineering and administrative controls.

OSHA standards require many different types of PPE to protect

employees from the variety of hazards in the workplace. Table I

indicates the kinds of PPE required by OSHA standards.

Table I.--List of Personal Protective Equipment

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

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

Personal fall arrest system

--Safety belts.

--Body belts.

--Lifelines.

--Lanyards.

--Harnesses.

--Pole climbing systems.

--Climbing spikes.

--Ladder safety device belts.

--Window cleaners' safety straps.

Face & eye protection

--Side shields.

--Goggles.

--Face shields/masks.

--Safety glasses.

--Welding goggles.

Hand protection and arm protection

--Gloves (disposable, fabric, leather mesh, aluminized, chemical

resistant).

--Rubber sleeves.

--Hand shields.

Hearing protection

--Ear plugs.

--Ear muffs.

Head protection

--Headgear.

--Helmets.

--Hard hats.

--Welding helmets.

Foot protection

--Safety shoes.

--Safety boots.

--Logging boots.

--Shin covers.

--Shoe covers.

--Logging chaps & kevlar pants/leg protection.

--Metatarsal protection.

Respiratory protection

--Air-purifying respirators.

--Atmosphere-supplying respirators, including supplied-air respirators

and self-contained breathing apparatus.

--Escape-only respirators.

--Filtering face pieces (dust masks).

Protective clothing

--Aprons.

--Encapsulating chemical protective suits.

--Flame resistant jackets and pants.

Fire fighting PPE

--Head protection.

--Face & eye protection.

--Protective coats and trousers.

--Foot protection.

--Hand protection.

--Proximity suits.

Protective equipment

--Insulating blankets.

--Matting.

--Barriers.

--Mouthpieces.

--Finger Cots.

Lifesaving equipment

--Life preservers.

--Life jackets.

--Reflective work vests.

--Ring life buoys.

--Retrieval systems.

Protective clothing for health-related substances

--Coveralls.

--Full body work clothing.

--Laboratory coats.

--Gowns.

[[Page 15409]]

--Disposable paper clothing.

--Shoe covers.

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

3. Employers are in the best position to provide the correct type

of protective equipment and keep it in repair. OSHA believes that

requiring employers to pay for PPE will directly improve safety and

health because the employer is in the best position to select, order,

and obtain the proper type and design of PPE, ensure that it is of the

necessary quality, and maintain it.

Employers are required to perform a hazard assessment of the

workplace and select the correct type of PPE to protect employees from

the hazards identified in that hazard assessment (Sec. 1910.132(d)).

Employees often do not have the expertise to select the correct type of

PPE, especially where the selection of appropriate PPE, such as fall

protection equipment and respirators, may be complicated.

OSHA also believes that employers are in the best position to keep

the PPE in repair. Employers are required to maintain PPE in a sanitary

and reliable condition (Sec. 1910.132(a)). Because of this

responsibility, OSHA believes that employers can maintain better

control over the inventory of PPE by periodically inspecting the PPE

and, when necessary, repairing or replacing it due to damage or normal

wear and tear.

OSHA gave these reasons for requiring employers to pay for PPE in

the final standard for logging operations (59 FR 51683, October 12,

1994). A number of commenters supported this reasoning.

OSHA first used this reasoning in rulemakings conducted in the

1970's. For example, the Inorganic Arsenic standard explicitly requires

employers to pay for respirators, protective clothing, and protective

equipment, including gloves, shoes, and face shields or goggles. 29 CFR

1910.1018(j)(1). The preamble to the rule states that it is the

employer's obligation to provide protective equipment at no cost to the

employee and that doing so puts the employer in the best position to

provide the correct type of equipment and keep it in repair. 43 FR

19619 (May 5, 1978). OSHA applied the same reasoning in requiring

employers to pay for respirators when necessary to protect employees

from exposure to cotton dust. 43 FR 27387 (June 23, 1978). These

standards were subsequently upheld on appeal.

In the recent respiratory protection standard, OSHA stated clearly

that the employer must pay for any respirator required to be worn by

employees. Although respirators are one of the more expensive types of

PPE, there was no opposition to this requirement. 63 FR 1152, 1195,

(January 8, 1998.)

4. Requiring employees to pay for PPE may discourage their use of

PPE. Another reason for requiring the employer to pay for PPE is that

employees may be discouraged from using necessary PPE if they are

responsible for paying for it and must select and buy it.

In the preamble to the Hearing Conservation amendment, OSHA

determined that employers should pay for hearing protectors based in

part on the reasoning that permitting an employer to charge employees

for hearing protectors could discourage the use of such devices and

thereby undermine the effectiveness of the employer's hearing

conservation program. 46 FR 4153 (January 16, 1981). The Fourth Circuit

Court of Appeals upheld the standard's allocation of hearing protector

costs to employers. Forging Indus. Ass'n v. Secretary of Labor, 773

F.2d 1436, 1451 (4th Cir. 1985)(en banc). The Court noted in that case

that the Supreme Court's finding in ATMI left no doubt that Congress

intended to impose compliance costs on employers and that ``it is only

logical that OSHA may require employers to absorb such costs.'' Forging

Indus. Ass'n, 773 F.2d at 1451.

One of the reasons OSHA has given for medical removal protection

(MRP) benefits in its lead and cadmium standards is to encourage

employee participation in the medical surveillance programs mandated by

those standards. MRP protects the wages and other benefits of employees

removed from exposure to a toxic substance because of an exposure--

related condition revealed by medical surveillance. In the preamble to

the cadmium standard, OSHA stated ``(MRP) . . . increase(s) employee

participation and confidence in the standard's medical surveillance

program.'' 57 FR 42101, 42367 (September 14, 1992). Analogous reasoning

supports the proposed requirement that employers pay for PPE. OSHA

believes that requiring employers to pay for PPE will increase the

likelihood that the employees will use the PPE and have confidence in

the employer's PPE program. The requirement for MRP and OSHA's

rationale were both specifically upheld in the lead decision, United

Steelworkers v. Marshall, 647 F.2d 1189, 1231 (D.C. Cir. 1980).

As discussed in the Background and Legal Considerations sections,

OSHA has explicitly required employer payment for PPE in all health

standards issued since 1977. This issue has been less clearly and

directly addressed, however, in OSHA's safety standards. As discussed

in the Background section, OSHA attempted to clear up any ambiguity in

its 1994 memo to the field which stated that employer payment for PPE

was generally required (with an exception for steel-toe safety footwear

and prescription eyewear).

5. Some State-Plan States already interpret their standards to

require employers to pay for PPE. Several States with OSHA-approved

State-plans already require employers to pay for PPE. These

requirements have provided protection to employees without posing

feasibility problems for employers. For example, the State of North

Carolina requires employers to provide, at no cost to the employee, all

personal protective equipment that the employee does not wear off the

job-site for use off the job. However, this State requirement applies

only to general industry workplaces.

California standards are somewhat more extensive than those of

North Carolina. Whenever California standards use the word ``provide,''

California State Courts have uniformly interpreted the standards to

mean that the employer pays for all PPE (including any replacement PPE)

in all industry sectors. The only exceptions are for PPE that reflect

``special preferences'' by employees, such as prescription safety

eyewear or shoes of higher quality than required, or that reflect the

individual's style preference. Many other State-plan states, including

Alaska, Arizona, Indiana, Kentucky, New York, and Minnesota, either

require the employer to pay for all PPE or follow the practice outlined

in Federal OSHA's 1994 memo to the field.

C. Scope of Proposed Rulemaking

The proposal applies to the following industry sectors: general

industry, construction, and maritime (shipyard employment, marine

terminals, and longshoring). It does not apply to agriculture because

OSHA does not have general standards for PPE use in agriculture.

However, some employees in agriculture are covered by two general

industry standards, the logging standard (29 CFR 1910.266) and the

cadmium standard (29 CFR 1910.1027), which specifically require

employers to pay for required PPE (except in the case of the logging

boots specified in 1910.266(d)(l)(v), which are specifically exempted

from the requirements of the

[[Page 15410]]

proposed standard). The PPE requirements in these two standards will

continue to apply in agriculture.

Even though the types of PPE may vary across and within industry

sectors, the same OSHA policy considerations on payment apply to all of

them. In addition, many OSHA safety and health standards already

contain provisions requiring the employer to pay for protective

equipment and PPE.

Table II lists many OSHA provisions requiring the use of protective

equipment and PPE. The table identifies the provision, and the type of

PPE required by that provision.

Table II.--PPE Provisions in OSHA Standards

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

29 CFR OSHA references Type of PPE

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

Part 1910--General Industry 6(a) Standards \1\

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

Sec. 1910.28(g)(9).......... Safetybelt and lifeline.

Sec. 1910.28(j)(4).......... Safetybelt and lifeline.

Sec. 1910.94(c)(6)(iii)(a).. Air-supplied respirator.

Sec. 1910.94(d)(9)(ii)...... Rubber and impervious boots.

Sec. 1910.94(d)(9)(iii)..... Shoes.

Sec. 1910.94(d)(9)(iv)...... Impervious gloves.

Sec. 1910.94(d)(9)(v)....... Impervious aprons, coats.

Sec. 1910.94(d)(9)(vi)...... Jackets, chemical goggles, face shields,

respirators.

Sec. 1910.132(a)............ Personal protective equipment, eye, face,

head, extremities, protective clothing,

and respiratory devices.

Sec. 1910.132(b)............ Employee-owned PPE (any PPE owned by

employees and used on the job-site).

Sec. 1910.218(a)(1)(iv)..... Gloves, goggles, and aprons.

Sec. 1910.242(b)............ PPE appropriate for hazards associated

with the use of hand and portable

powered tools and equipment.

Sec. 1910.243(d)(1)(ii)..... Eye, face, head protection.

Sec. 1910.252(b)(1)(i)...... Safetybelt, lifeline.

Sec. 1910.252(b)(2)(i)(A)... Welding helmet, hand shields.

Sec. 1910.252(b)(2)(i)(B)... Filter lens.

Sec. 1910.252(c)(4)(2)(ii).. Airline respirator.

Sec. 1910.252(c)(4)(iii).... SCBA.

Sec. 1910.252(c)(7)(iii).... Respirator.

Sec. 1910.261(b)(2)......... Foot protection, shin guards, hardhats,

noise attenuation.

Sec. 1910.261(b)(5)......... Lifeline, safety harness.

Sec. 1910.261(c)(2)(vii).... Foot, head, eye protection.

Sec. 1910.261(c)(6)(ii)..... Foot, head, eye protection.

Sec. 1910.261(c)(7)(ii)..... Foot, head, eye protection.

Sec. 1910.261(d)(1)(i)...... Respirators, goggles, protective masks.

Sec. 1910.261(d)(1)(ii)..... Eye, face protection, clothing.

Sec. 1910.261(g)(2)(i),(ii), Gas mask, respirators, eye protection,

&(iii). safety belts, lifeline.

Sec. 1910.261(g)(4)......... Respirators, lifebelts, lifelines.

Sec. 1910.261(g)(5)......... Rubber boots, gloves, apron, eye

protection.

Sec. 1910.261(g)(6)......... Respirator.

Sec. 1910.261(g)(10)........ Gas mask.

Sec. 1910.261(g)(15)(ii),(ii Respirator, lifeline, safetybelt.

i)&(v).

Sec. 1910.261(g)(18)(i)&(ii) Showers, bubblers.

Sec. 1910.261(h)(2)(iii)&(iv Gas mask, SCBA.

).

Sec. 1910.261(i)(4)......... Eye, head, foot and shin protection.

Sec. 1910.261(k)(3)......... Face shields, aprons, rubber gloves.

Sec. 1910.265(c)(21)(i)..... Safetybelt, lifeline.

Sec. 1910.265(d)(2)(ii)(h).. Life ring and line.

Sec. 1910.265(d)(2)(iii)(g). Buoyant devices.

Sec. 1910.335(a)(1)(i)...... Electrical protective equipment.

Sec. 1910.335(a)(2)(i)...... Protective shields, barriers, insulation.

Sec. 1910.66(j)............. Personal fall arrest system.

Sec. 1910.67(c)(2)(v)....... Bodybelt.

Sec. 1910.120(g)(3)(iii).... Positive pressure SCBA, airline.

Sec. 1910.120(g)(3)(iv)..... Totally-encapsulated chemical suit.

Sec. 1910.120(c)(5(ii)...... 5-minute ESCBA.

Sec. 1910.120(c)(5)(iii).... Level B PPE.

Sec. 1910.120(q)(3)(iii).... Firefighting PPE.

Sec. 1910.120(q)(3)(iv)..... Positive pressure SCBA.

Sec. 1910.133(a)(1)......... Eye and face protection.

Sec. 1910.134............... Respirators.

Sec. 1910.135............... Protective helmet.

Sec. 1910.136............... Foot protection.

Sec. 1910.137............... Electrical protective equipment.

Sec. 1910.138............... Hand protection.

Sec. 1910.146(k)(1)(i)...... PPE, rescue equipment.

Sec. 1910.156(e)(1)(i)...... Protective clothing.

Sec. 1910.156(e)(1)(ii)..... Firefighting PPE.

Sec. 1910.156(f)(1)(i)...... Respirators.

Sec. 1910.266(d)(1)(iii).... Hand protection.

Sec. 1910.266(d)(1)(iv)..... Leg protection.

[[Page 15411]]

Sec. 1910.266(d)(1)(v)...... Logging boots.

Sec. 1910.266(d)(1)(vi)..... Head protection.

Sec. 1910.266(d)(1)(vii).... Eye and face protection.

Sec. 1910.268(g)(1)......... Safetybelt and strap.

Sec. 1910.268(1)(i)......... Head protection and eye protection.

Sec. 1910.272(g)(1)(iii)(B). Respirator.

Sec. 1910.272(g)(2)......... Body harness and lifeline.

Sec. 1910.94(a)(5)(i)....... Respirators.

Sec. 1910.94(a)(5(iv)....... Respirators.

Sec. 1910.94(a)(5)(v)(B).... Eye and face protection.

Sec. 1910.95(b)(1).......... PPE (Hearing protection).

Sec. 1910.95(i)(1).......... Hearing protection.

Sec. 1910.95(i)(3).......... Hearing protection.

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

Part 1910 General Industry Health 6(b) Standards\1\

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

Sec. 1910.134............... Respirators.

Sec. 1910.1002.............. Protective equipment, Respirators.

Sec. 1910.1001(g)(2)(i)..... Respirators.

Sec. 191.1001(h)(1)......... Coveralls, gloves, head coverings, foot

coverings, face shields, goggles.

Sec. 1910.1001(j)(7)(iii)(E) PPE (for protection against asbestos).

Sec. 1910.1003(b)........... Protective clothing, smocks, coveralls,

gloves.

Sec. 1910.1003(c)(4)(iii)... Long-sleeved shirts, pants, boots.

Sec. 1910.1003(c)(4)(iv).... Respirators.

Sec. 1910.1003(c)(5)(i)..... Gloves, boots, respirators.

Sec. 1910.1004.............. Respirators, protective clothing.

Sec. 1910.1006.............. Respirators, protective clothing.

Sec. 1910.1007.............. Respirators, protective clothing.

Sec. 1910.1008.............. Respirators, protective equipment.

Sec. 1910.1009.............. Respirators, protective equipment.

Sec. 1910.1010.............. Respirators, protective equipment.

Sec. 1910.1011.............. Respirators, protective equipment.

Sec. 1910.1012.............. Respirators, protective equipment.

Sec. 1910.1013.............. Respirators, protective equipment.

Sec. 1910.1014.............. Respirators, protective equipment.

Sec. 1910.1015.............. Respirators, protective equipment.

Sec. 1910.1016.............. Respirators, protective equipment.

Sec. 1910.1017.............. Respirators, protective equipment.

Sec. 1910.1018.............. Respirators, protective work clothing,

eye and face protection.

Sec. 1910.1025.............. Respirators, protective work clothing.

Sec. 1910.1027.............. Respirators, protective work clothing,

eye and face, head protection.

Sec. 1910.1028.............. Respirators, protective clothing, eye and

face protection.

Sec. 1910.1029.............. Flame resistant pants, jacket, gloves,

eye and face protection, insulated

footwear, protective helmets.

Sec. 1910.1030.............. Gloves, gown, lab coat , face shield,

masks, eye protection, mouthpieces,

pocket mask.

Sec. 1910.1043.............. Respirators.

Sec. 1910.1044.............. Respirators, protective clothing, eye and

face protection.

Sec. 1910.1045.............. Respirators, protective clothing and

equipment.

Sec. 1910.1047.............. Respirators, protective clothing and

equipment.

Sec. 1910.1048.............. Respirators, protective clothing and

equipment.

Sec. 1910.1050.............. Respirators, aprons, coveralls, gloves,

head coverings, foot coverings, face

shields, chemical goggles, other PPE.

Sec. 1910.1051.............. Respirators, protective clothing, eye and

face protection.

Sec. 1910.1052.............. Respirators, protective clothing, eye and

face protection.

Sec. 1910.1200(h)(3)(iii)... PPE (for protection against hazardous

chemicals).

Sec. 1910.1450(e)(3)(ii).... PPE (for protection against hazardous

chemicals in laboratories).

Sec. 1910.1450(f)(4)(i)(C).. PPE (for protection against hazardous

chemicals in laboratories).

Sec. 1910.1450(i)........... Respirators.

Part 1915--Shipyard Employment 6(a) Standards \1\

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

Sec. 1915.12(c)(4)(ii)...... Respirators, other PPE.

Sec. 1915.12(e)(1)(i)....... Respirators, other PPE.

Sec. 1915.13(b)(6)(iv)...... Respirators, other PPE.

Sec. 1915.32(a)(3).......... Respirators, protective clothing.

Sec. 1915.33(a)............. Eye and face protection.

Sec. 1915.33(d)............. Face protection.

Sec. 1915.33(e)............. Face protection.

Sec. 1915.34(a)(1).......... Goggles, face shields.

Sec. 1915.34(a)(4).......... Respirators.

Sec. 1915.34(b)(1).......... Respirators.

Sec. 1915.34(c)(3)(i)....... Respirators.

Sec. 1915.34(c)(3)(ii)...... Respirators.

[[Page 15412]]

Sec. 1915.34(c)(iii)........ Respirators.

Sec. 1915.34(c)(iv)......... Protective clothing, gloves.

Sec. 1915.34(c)(3)(v)....... Safety belt.

Sec. 1915.35(a)(1)(i)....... Respirators.

Sec. 1915.35(a)(1)(ii)...... Respirators.

Sec. 1915.35(a)(1)(iii)..... Respirators.

Sec. 1915.35(a)(2).......... Respirators.

Sec. 1915.35(b)(9).......... Eye, face, head, hand protection,

protective clothing.

Sec. 1915.35(b)(13)......... Respirators and protective clothing.

Sec. 1915.35(b)(14)......... Respirators and protective clothing.

Sec. 1915.51(c)(3).......... Respirators.

Sec. 1915.51(d)(2).......... Respirators.

Sec. 1915.51(d)(3).......... Respirators.

Sec. 1915.51(e)(1)(ii)...... Eye protection, filter lenses.

Sec. 1915.51(e)(1)(iii)..... Protective clothing.

Sec. 1915.51(f)(2).......... Eye protection.

Sec. 1915.53(d)(1).......... Respirators.

Sec. 1915.53(d)(2).......... Respirators.

Part 1915--Shipyard employment 6(b) Standards \1\

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

Sec. 1915.12(a)(3)(ii)...... Respirators, other PPE.

Sec. 1915.152(a)............ All PPE.

Sec. 1915.153(a)............ Eye and face protection.

Sec. 1915.154............... Respirators.

Sec. 1915.155............... Head protection.

Sec. 1915.156............... Foot protection.

Sec. 1915.157............... Hand and body protection.

Sec. 1915.158............... Personal flotation devices, life rings.

Sec. 1915.159............... Personal fall arrest systems.

Sec. 1915.160............... Positioning device systems.

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

Part 1917--Safety and Health Regulations for Marine Terminals 6(b)

Standards \2\

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

Sec. 1917.22(c)............. Protective clothing.

Sec. 1917.23(d)(1).......... Respirators, emergency protective

equipment.

Sec. 1917.25(e)(1).......... Respirators, emergency protective

equipment.

Sec. 1917.26(f)............. Personal flotation devices, safety belts.

Sec. 1917.49(i)(3).......... Lifeline and safety harness.

Sec. 1917.73(a)(3).......... Respirators.

Sec. 1917.73(c)............. Respirators, lifeline, safety harness.

Sec. 1917.91(a)(1).......... Eye and face protection.

Sec. 1917.92................ Respirators.

Sec. 1917.93(a)............. Head protection.

Sec. 1917.94(a)............. Foot protection.

Sec. 1917.95(a)............. Protective clothing.

Sec. 1917.95(b)............. Personal flotation devices.

Sec. 1917.118(e)(1)......... Ladder safety device.

Sec. 1917.126(b)............ Personal flotation devices.

Sec. 1917.152(e)(8)(ii)..... Eye protection, filter lenses.

Sec. 1917.152(e)(11)........ Rubber pads, rubber boots.

Sec. 1917.152(f)............ Respirators.

Sec. 1917.152(f)(4)......... Eye, head, hand protection.

Sec. 1917.152(g)(3)......... Respirators.

Sec. 1917.152(h)............ Respirators, eye, face, head protection,

filter lenses.

Sec. 1917. 154.............. PPE (For protection against hazards

resulting from the use of compressed

air).

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

Part 1918--Longshoring 6(b) Standards \1\

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

Sec. 1918.101............... Eye protection.

Sec. 1918.102............... Respirators.

Sec. 1918.103............... Protective clothing.

Sec. 1918.104............... Foot protection.

Sec. 1918.105............... Head protection.

Sec. 1918.106............... Personal flotation devices

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

Part 1926 Construction 6(a) Standards \1\

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

Sec. 1926.300(c)............ PPE (for hazards from the use of hand and

power tools).

Sec. 1926.304(e)............ PPE (for hazards from the use of

woodworking tools).

Sec. 1926.551(e)............ Eye protection, hardhats.

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

[[Page 15413]]

Part 1926--Construction 6(b) Standards \1\

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

Sec. 1926.52(b)............. Hearing protection.

Sec. 1926.95(a)............. General requirements for all PPE used in

construction.

Sec. 1926.95(b)............. Employee owned PPE.

Sec. 1926.95(c)............. Design of PPE.

Sec. 1926.701(f)............ Face and head protection.

Sec. 1926.800(d)(7)......... PPE used in underground construction.

Sec. 1926 Subpart L......... Personal fall arrest systems.

Sec. 1926 Subpart M......... Personal fall arrest systems.

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

\1\ A 6(a) standard is any standard that OSHA adopted from an existing

Federal standard or a national consensus standard under Sec. 6(a) of

the Act, i.e., without notice-and-comment rulemaking. A 6(b) standard

is a standard that OSHA promulgated using the rulemaking process with

public participation.

For all industry sectors, employers are in the best position to

choose the proper type and quality of PPE, and to maintain the PPE

selected. The same statutory considerations apply to all industry

sectors, as discussed above in this preamble.

However, additional considerations apply to workplaces in

construction, longshoring, and marine terminals: first, there is

considerable turnover in these industries, and second, many of the

affected businesses employ only a small number of employees. Based on

OSHA's experience, safety-toe footwear is the type of PPE most often

used in these industries and the type of PPE that employees are most

often required to pay for at present. This equipment would be excluded

from the ``employer pays'' requirement, provided that the three

proposed conditions are met. Therefore, OSHA does not believe that its

proposal will cause economic difficulties for employers in these

sectors. See also section VI., Preliminary Economic Analysis.

D. Current OSHA Rrequirements Concerning Payment for PPE

Earlier OSHA standards promulgated under section 6(a) of the OSH

Act (i.e., those standards adopted without notice-and-comment

rulemaking and public participation) that required the use of PPE did

not explicitly address the issue of who is required to pay for PPE. In

1978, however, several substance-specific health standards promulgated

under section 6(b) of the OSH Act (i.e., promulgated using the full

rulemaking process with public participation and comment) required

employers to pay for PPE. Since that time, all OSHA health standards

have explicitly required employers to pay for required PPE.

However, the safety standards promulgated under section 6(b) of the

OSH Act have not been consistent with respect to the employer's

responsibility to pay for PPE. Several of these standards require the

employer to ``provide'' PPE, but do not explicitly state that the

employer must pay for it. Other standards specifically require the

employer to pay for all PPE. One standard, Logging Operations

(Sec. 1910.266), requires the employer to pay for all PPE, with the

exception of logging boots. The following are examples of OSHA's

current PPE requirements.

Telecommunication standard. Paragraph (e) of Sec. 1910.268 requires

the employer to provide personal protective equipment, protective

devices and special tools. However, this provision does not

specifically state that the employer must pay for the PPE, even though

it is common practice in the telecommunications industry for the

employer to pay for all PPE except for safety-toe protective shoes (see

the Regulatory Impact Analysis for that standard).

Electric Power Generation. Paragraph (g)(1) of Sec. 1910.269

requires PPE to meet the requirements of subpart I of part 1910, but

does not specify that the employer must pay for the PPE.

Maritime standards. Paragraph (a) of Sec. 1915.152 (Shipyard

standards) requires the employer to provide and ensure the use of PPE,

but does not clearly state that the employer is required to pay for it.

Identical PPE standards apply to marine terminals (part 1917) and

longshoring (part 1918). They state, in part: ``The employer shall

ensure that each affected employee wears* * *[PPE].'' Again, the

regulatory text does not state that the employer is required to pay for

the PPE. However, the preamble to the marine terminals and longshoring

standards does give guidance with respect to the payment for PPE issue

(62 FR 40186-87):

Although the equipment used in marine cargo handling operations

often differs from that mentioned in the October 18 memorandum [OSHA

Policy Memorandum, October 18, 1994] the same policy considerations

apply in the Longshore and Marine Terminals standard PPE context.

Therefore, OSHA will apply the above-stated policy when determining

whether the employer is required to pay for a particular kind of

PPE.

Therefore, OSHA's enforcement policy for marine terminals and

longshoring requires employers to pay for all PPE except for safety-toe

protective shoes and prescription safety glasses.

Subpart I of part 1910. On April 6, 1994, OSHA revised its general

industry standards for PPE (59 FR 16362) and added new provisions for

hazard assessment and training. The Agency had not proposed a

requirement concerning the employer's responsibility to pay for PPE,

and the subject was not an issue during the rulemaking.

Permit-required confined spaces (Sec. 1910.146). This standard

specifically requires the employer to pay for PPE. It requires the

employer to provide the equipment (including PPE) necessary for safe

entry into, and rescue from, permit spaces at no cost to employees, to

maintain the equipment properly, and to ensure its proper use by

employees.

Logging operations. During the logging rulemaking, OSHA proposed

that the employer provide PPE and assure its use. OSHA's intent was

that the employer provide all PPE at no cost to employees. However,

some commenters asserted that employers should not have to pay for all

types of PPE used in logging operations.

After careful analysis of the rulemaking record, the Agency

concluded that the employer should be required to pay for all PPE

except for logging boots. OSHA noted that logging boots are customarily

worn outside the workplace; are individually-fitted and therefore not

usable by another

[[Page 15414]]

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

E. Advisory Committee on Construction Safety and Health

The Advisory Committee on Construction Safety and Health (ACCSH)

assists OSHA by providing comments and recommendations on proposed

construction standards. Accordingly, the Agency provided ACCSH with the

following draft revision of Sec. 1926.95:

(d) Payment for Protective Equipment. All protective equipment,

including personal protective equipment, required in this part,

shall be provided by the employer at no cost to employees except for

safety-toe protective footwear and prescription safety eyewear.

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

ACCSH members expressed several concerns about the proposed

language. Some members expressed the view that many employers were

already paying for safety-toe shoes through collective bargaining

agreements and that the new text might discourage them from continuing

to do so (Tr. 53, 61).

Members also noted that prescription glasses are sometimes

incorporated into respirator facepieces and would therefore be

impractical for workers to use at home. They therefore asked why

employers should not pay for that prescription eyewear (Tr. 47).

Other members of the committee mentioned the problem of employees

who did not always bring their safety equipment to work. They noted

that it would be expensive for an employer to have to replace that

equipment frequently (Tr. 51-52).

Two resolutions were introduced. The first stated:

All protective equipment, including personal protective equipment,

required in this part, shall be provided by the employer at no cost

to the employees.

That resolution failed by a 6 to 7 vote.

The second resolution introduced read as follows:

The language currently in 1926.95 regarding personal protective

equipment, is effective and is sufficient to protect the worker and

provide the personal protective equipment. (We) recommend leav(ing)

the language as is currently stated in 1926.95 (Tr. 62).

That resolution passed by a 6 to 2 vote.

Based on the recommendations and discussion of ACCSH, the Agency

revised the draft regulatory text to reflect many of the Committee's

concerns. OSHA is proposing the revised proposed regulatory text for

general industry and maritime as well as the construction industry.

The Agency believes that the Union Tank decision has undercut

OSHA's ability to enforce the standard as outlined in the 1994 memo. As

discussed below, the proposed rule incorporates much of the 1994 memo

into the text of the Agency's various protective equipment standards.

OSHA believes that this action will carry out the recommendations of

ACCSH effectively.

The proposed regulatory text now makes clear that the employer is

not required to pay for safety-toe protective footwear and prescription

safety eyewear unless: (1) The employer does not permit it to be worn

off-site; (2) the footwear or eyewear is rendered unsafe for use off-

site; or (3) the footwear or eyewear is designed for special use on the

job. For example, contaminated safety-toe footwear would not be

permitted to be worn off the job-site because it would be unsafe to do

so, and prescription eyewear mounted inside a full-facepiece respirator

would not be permitted for use off the job-site because it is designed

for special use on-site. Consequently, the employer would be required

to pay for the PPE in these two examples.

OSHA intends to require employers to pay for the initial issue of

PPE and for replacement PPE that must be replaced due to normal wear

and tear or occasional loss. Only in the rare case involving an

employee who regularly fails to bring employer-supplied PPE to the job-

site, or who regularly loses the equipment, would the employer be

permitted to require the employee to pay for replacement PPE.

F. Explanation of Proposed Requirement

OSHA is proposing to add the following language to its general

industry standards as Sec. 1910.132(h):

All protective equipment, including personal protective equipment

(PPE), required in this part, shall be provided by the employer at

no cost to employees.

Exception: The employer is not required to pay for the logging

boots required by 29 CFR Sec. 1910.266(d)(1)(v). The employer is

also not required to pay for safety-toe protective footwear, or for

prescription safety eyewear, provided that all three of the

following conditions are met: (1) the employer permits such footwear

or eyewear to be worn off the job-site; (2) the footwear or eyewear

is not used at work in a manner that renders it unsafe for use off

the job-site (for example, contaminated safety-toe footwear would

not be permitted to be worn off a job-site); and (3) such footwear

or eyewear is not designed for special use on the job.

OSHA is proposing to add the same language (except for the first

sentence of the exception, which applies only to the general industry

workplaces covered by the logging standard) as shipyard

Sec. 1915.152(f) as marine terminal Sec. 1917.96, as longshoring

Sec. 1918.106, and as construction Sec. 1926.95(d).

The purpose of this language is to make clear that employers must

provide and pay for all necessary PPE wherever such PPE is required by

an OSHA standard, with the exceptions mentioned. The reasons for this

proposal have been discussed above and are also found in the Legal

Considerations section of this preamble, above.

The proposal is intended to cover every situation where an OSHA

standard requires the use of PPE. OSHA preliminarily concludes that all

the reasons why employers should provide and pay for PPE apply

generally to all types of PPE. In other words, the reasons why an

employer is in the best position to purchase the correct type and

quality of wire mesh gloves to prevent finger lacerations also apply to

the selection and purchase of the correct type and quality of fall

protection harnesses and lanyards, respirators, and metatarsal foot

protection. As noted, the proposal does contain exceptions and

conditions to these exceptions. OSHA requests comment on whether other

types of PPE should be excepted from the employer-payment principle and

if so, why.

The proposed payment requirement in Sec. 1910.132(h) applies to

``all protective equipment required in this part.'' For example, part

1910 contains many different requirements for the use of PPE throughout

general industry (see Table 2, above). Although the proposed regulatory

language would be inserted only in Sec. 1910.132 (which is in subpart I

of part 1910), OSHA intends that employers pay for all PPE required

throughout part 1910.

OSHA does not believe it necessary to specify in the proposed

regulatory text that the employer ensure that employees use the

required PPE and maintain it appropriately, because these concepts are

already clearly stated in most of OSHA's PPE requirements. OSHA

requests comments on the adequacy of this approach, and whether

employee use and maintenance of PPE should be specifically required.

As discussed previously, some PPE requirements already include

specific language requiring the employer to provide and pay for PPE

(e.g., the language used in most health standards), while others use

more ambiguous language. OSHA intends the proposed new language to

cover all of the Agency's PPE requirements. OSHA believes that this

approach will make the obligations of employers clear with regard to

the provision and payment for PPE. The proposed language does not

[[Page 15415]]

affect or limit the ``provide-and-pay'' language in those regulatory

provisions that already clearly state this requirement, such as 29 CFR

1910.266(d)(1)(v), 29 CFR 1910.1029(h)(1), 29 CFR 1910.146(d), and 29

CFR 1910.134(c).

The proposed provide-and-pay language also allows a reasonable

degree of compliance flexibility. For example, the proposed language

would permit an employer to send an employee to purchase appropriate

PPE at a supply store if the employer paid for the employee's time and

paid for the PPE.

The proposed requirement would also make the employer responsible

to provide, and pay for, replacement PPE when the original PPE wears

out from normal wear and tear or in the event of occasional loss or

accidental damage by the employee. However, if an employee regularly

and with unreasonable frequency loses or damages the PPE, the employer

may request that the employee pay for the replacement PPE. This issue

was discussed at the ACCSH meeting, as noted earlier. It is also

important to note that current OSHA PPE standards (e.g.,

Sec. 1910.132(f)(1)(v)) already require the employer to train employees

in the proper care, maintenance, and useful life of PPE.

Exceptions

For the reasons discussed above, OSHA has preliminarily concluded

that the Agency needs to codify the general principle that employers

must both provide and pay for PPE. However, the Agency is also

proposing exceptions to that rule. OSHA is not proposing to require

employers to provide, or pay for, safety-toe protective footwear or

prescription safety eyewear providing that the following three

conditions are met: (1) the employer permits the footwear or eyewear to

be worn off-site; (2) the footwear or eyewear is used on the job in a

manner that does not make it unsafe for off-site use; and (3) the

footwear or eyewear is not designed for special use on the job. In

addition, as the current rule provides, general industry employers are

not required to pay for the logging boots required by 29 CFR

1910.266(d)(1)(v).

Safety-toe protective footwear (safety shoes). This discussion of

safety shoes pertains only to safety-toe protective footwear. It does

not pertain to other types of foot protection, such as metatarsal or

cut-resistant protective boots. (Logging boots are discussed below.)

OSHA considers safety shoes to be personal in nature. That is,

safety shoes are not used by different employees. Instead, they are

used by, and sized to fit, only one individual employee. Also, one

employee's safety shoes are not generally used by other employees

because of size and hygienic concerns. In addition, employees often

wear safety shoes away from the job-site.

Safety shoes are widely available and are not difficult for the

employee to select and purchase. Evidence presented in the Preliminary

Economic Analysis also shows that it is customary in some workplaces

for employees to pay for their safety-toe footwear. In addition, the

OSHA policy memorandum of 1994 generally excepted safety-toe safety

shoes from the employer payment requirement. For these reasons, OSHA is

not proposing to include safety-toe safety shoes in the employer

payment requirement if all three of the conditions are met.

Thus, the proposed exception would not apply to metatarsal

protection (metatarsal guards or protective footwear that incorporates

metatarsal protection) or special cut-resistant footwear because these

kinds of footwear are not generally used off the worksite, and

employers often re-issue metatarsal guards and cut-resistant footwear

to subsequent employees. Also, the proposed exception would not apply

to any safety-toe safety shoe that cannot safely be worn off the

worksite. For example, the exception does not include safety shoes that

have been worn in a regulated area where they may have been

contaminated with a toxic substance. Employers must continue to provide

and pay for these safety shoes because they are not safe for use off-

site. However, the exception does not prohibit employers from paying

for safety-toe safety footwear of any type, if they choose to do so.

Prescription safety eyewear. OSHA also considers prescription

safety eyewear to be personal in nature. Prescription safety eyewear

is, of course, designed for the use of a single individual. Other types

of protective eyewear, such as goggles, generally remain at the job-

site and can be cleaned and reissued for use by other employees.

Prescription safety eyewear is usually used both on and off the

job-site. Additionally, regular prescription glasses can be worn

underneath goggles and other protective eyewear that has been designed

to accommodate them. Therefore, in this situation OSHA believes that

employers should be required to pay only for the protective goggles.

Employees can then decide either to purchase their own prescription

safety glasses or to wear their own prescription glasses underneath the

protective eyewear provided by the employer. Additionally, the employer

may agree to pay all or part of the cost of prescription safety

eyewear. However, the employer must pay for any prescription eyewear

that is mounted inside the full-facepiece of a respirator, because such

eyewear would fall under the ``special use'' condition of the proposed

rule (this is also clearly required by the respirator standard). OSHA's

position on this issue is discussed below in the Issues Section of this

preamble.

The Agency realizes that there may be different opinions with

respect to this proposal. Some may argue that requiring employers to

pay for all PPE (including safety shoes and prescription safety

eyewear) may lead to more employees wearing PPE and, consequently, may

enhance employee safety. The Issues Section, below, requests comment on

this issue.

OSHA emphasizes that payment for safety-toe footwear and

prescription safety eyewear can be negotiated between management and

labor. Also, this proposed rulemaking is not intended to affect any

collective bargaining agreements, or any other responsibility to pay

for safety-toe footwear and prescription safety eyewear in particular

workplaces.

The Agency also emphasizes that this proposed rulemaking does not

change the employer's obligation under the Act to ensure that all PPE,

including employee-owned PPE, is worn when necessary, is adequate to

protect employees from the hazard, and is properly maintained. If the

employee chooses to furnish his or her personally-owned PPE, this rule

does not require the employer to reimburse the employee for the cost of

that equipment.

This proposed revision specifically restates the exception to the

``employer pays'' principle contained in the OSHA standard for logging

operations (Sec. 1910.266(d)(1)(v)), which specifies that the employer

is not required to pay for a certain type of foot protection (foot

protection constructed of cut-resistant material to protect employees

who operate chainsaws, etc.). OSHA considered that issue at length in

the logging rulemaking and concluded that the evidence supported

excluding that type of footwear from the general obligation that

logging employers pay for logging PPE. See the discussion at 59 FR

51683-4 (Oct. 12, 1994).

V. Issues Pertaining to the Proposed Rule

OSHA requests comments, views, and data on all issues relevant to

the proposed rule, including the following:

[[Page 15416]]

1. OSHA also considered proposing the following alternative

regulatory text:

The employer shall provide, at no cost to the employee, all

protective equipment and personal protective equipment except for

protective equipment which the employer demonstrates is personal in

nature and customarily used off the job.

This provision is stated in general language and would have the

advantage of providing some flexibility for specific workplace

situations involving PPE. However, a major disadvantage of this

approach is that it uses the terms ``personal in nature'' and

``customarily used off the job,'' which OSHA would need to define and

interpret. OSHA's proposed exception, which is more specific than the

text of the alternative discussed above, provides greater certainty to

employers and workers.

OSHA requests comments on the merits of both approaches, including

views on how OSHA should interpret the regulatory text.

2. Are there other types of PPE, beside safety-toe safety footwear

and prescription eyewear, that should be excepted from the proposed

payment requirement? Why or why not? Please submit any available

supporting documentation. Alternatively, should OSHA require employers

to pay for all PPE, including safety-toe footwear and prescription

safety eyewear? Why or why not?

3. OSHA realizes that there is frequent turnover in the

construction industry, where employees frequently move from job-site to

job-site. This is an important factor because an employer with a high-

turnover workplace would have to buy PPE for more employees if the PPE

was of the type that could only be used by one employee. OSHA requests

comment on whether its proposed exceptions for safety-toe footwear and

prescription safety eyewear are appropriate in the construction

industry. Are there any other approaches to handle the turnover

situation that would be protective of construction workers? Are there

any other issues unique to the construction industry that should be

considered in this rulemaking?

4. The longshoring and marine terminal industries have a unique

employer-employee relationship in many ports. At some ports, employees

are hired for a job through a labor pool, and the same employee may

work for 5 different employers in the same week. How do these factors

affect the issue of who is required to pay for PPE? Does the employer

customarily pay for PPE in the maritime industry? Are there any other

issues unique to the maritime industry that OSHA should consider in

this rulemaking?

5. OSHA requests comments, information, and data on whether

employee-owned PPE is less protective than employer-provided PPE, and

under what circumstances.

6. The proposal covers protective equipment and personal protective

equipment used in welding, including protective gloves. Does welding

PPE create any unique problems on the PPE payment issue? Does the

employee usually pay for welding PPE?

7. If an employee wants to use more costly PPE because of

individual preference, should that employee be responsible for any

difference in cost? Is there evidence that such ``individualized'' PPE

has caused safety problems in the past?

8. Full-facepiece respirators present a unique problem for

employees who need prescription glasses. The temples of the

prescription glasses break the face-to-face piece seal and greatly

reduce the protection afforded by the respirator. Special glasses and

mounts inside the facepiece of the respirator are sometimes used to

provide an adequate seal. Because of this special situation, OSHA

believes that it is appropriate for the employer to provide and pay for

the special-use prescription glasses used inside the respirator

facepiece. Is it common industry practice for employers to pay for

these special glasses? What is the typical cost for providing ``insert-

type'' prescription glasses inside full-facepiece respirators?

9. OSHA's Preliminary Economic Analysis has found that this

proposal will not impose significant impacts on firms in any industry

segment or on affected small businesses. OSHA requests comments on the

analysis and on any industry or subindustry that may have particular

economic problems as a result of the proposed rule.

10. Should the standard require the employer to pay for inserts or

other articles that are uniquely personalized components of personal

protective equipment, such as head coverings used under welding helmets

and custom prescription lens inserts worn under a welding helmet or a

diving helmet?

11. OSHA intends to require employers to pay for the initial issue

of PPE. Should employers also be required to pay for PPE that must be

replaced due to normal wear and tear or occasional loss?

12. OSHA requests comments on the conclusions about the costs and

benefits contained in the Preliminary Economic Analysis section.

VI. Preliminary Economic Analysis

It has been determined that this is a significant regulatory action

under E.O. 12866, and a major rule under the Congressional Review

provisions of the Small Business Regulatory Enforcement Fairness Act.

Introduction

OSHA has prepared this Preliminary Economic Analysis to examine the

feasibility of the proposed rule on Employer Payment for Personal

Protective Equipment and to meet the requirements of Executive Order

12866 and the Regulatory Flexibility Act (as amended). The proposed

rule would require employers to pay for protective equipment, including

personal protective equipment (PPE), when OSHA standards mandate that

employers provide such equipment to their employees. The only PPE

employers would not be required to pay for in certain circumstances are

safety-toe footwear and prescription safety eyewear. OSHA is proposing

to except PPE of these types providing that these types of PPE meet

three conditions: (1) The employer permits them to be worn off-site;

(2) they are not used on-site in a manner that renders them unsafe for

use off-site; and (3) they are not designed for special on-site use.

Logging boots are also specifically excepted from employer payment by

29 CFR 1910.266(d)(1)(v).

OSHA's requirements for PPE (again, OSHA is using the abbreviation

``PPE'' to cover all protective equipment, (including personal

protective equipment) appear in many health, safety, maritime, and

construction standards. In some cases, the standard is explicit in

stating that employers are to provide the PPE at no cost to the

employee (see, for example, OSHA's substance-specific health standards,

which are codified in Subpart Z of 29 CFR 1910.1000). In other cases,

however, such as in paragraph (a) of 29 CFR 1910.132 and paragraph (a)

of 29 CFR 1926.28, who is required to pay for the PPE is not expressly

specified. (For a complete list of OSHA's PPE requirements, see the

Summary and Explanation for the proposed standard, above.)

The proposed rule would apply to general industry, construction,

and maritime workplaces covered by the PPE provisions in existing OSHA

standards.

The rule would clarify OSHA's intent that, with the exceptions

noted, employers provide required PPE to their employees at no cost to

those employees. The kinds of PPE addressed by OSHA's PPE standards

include, for example, hard hats, safety shoes, gloves, safety glasses,

goggles, faceshields, welding helmets and goggles, fall

[[Page 15417]]

protection equipment, and chemical suits. (A more detailed list of the

kinds of PPE covered appears in the Summary and Explanation, above.)

Industry Profile

The proposed rule is concerned only with who pays for OSHA-required

PPE; that is, it would not require employers to provide PPE where none

has been required before. Instead, the proposed rule merely stipulates

that required PPE be paid for by the employer, except in the case of

safety-toe footwear and prescription safety eyewear that meets the

three proposed conditions. In other words, the required PPE is

currently being paid for either by the employer or the employee. The

proposed rule would shift the costs of that portion of the PPE

currently being paid for by the employee (except for safety-toe

footwear and prescription safety eyewear meeting the proposed

conditions) to their employers, as has been OSHA's intent. (See the

Legal Considerations section of the preamble, above, for details of

OSHA's legal interpretation of this issue.) To the extent that this

rule has the effect of improving the quality of PPE being used or of

ensuring that PPE is being used where it has not previously been used,

such improved compliance would result both in additional benefits and

costs to the economy. Nevertheless, to determine the extent of PPE

usage and the potential magnitude of any shift in costs, OSHA has

developed a profile of industry PPE use and payment patterns.

Data on PPE Usage Patterns

The data relied on to develop this industry profile derive from a

number of sources, although the Agency relied on survey data for its

estimates of use patterns for most types of PPE. The main source of

information on PPE use patterns for general industry was a telephone

survey of more than 5,000 employers conducted by OSHA in 1989 (ERG

1998), in support of the Agency's 1994 PPE rulemaking.4 The

survey yielded industry- and size-class-specific PPE use information

for nearly all industries affected by that rulemaking and the current

one. The survey provided information on PPE use in shipyards, within

the context of SIC 37, Transportation Manufacturing. It did not,

however, survey the construction industry.

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

\4\ Some of the results from this survey were used in OSHA's

background report in support of its 1994 PPE Regulatory Impact

Assessment (OSHA 1994).

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

Data on usage patterns in the construction industry derive

primarily from a study done for the Office of Technology Assessment

(OTA 1984) in 1982 by Springborne Associates. In this survey of

employers, OTA provided estimates of the number of construction workers

using various types of PPE. As with the 1989 PPE survey, the Agency

assumes that the patterns of PPE usage (percentage of employees using

PPE) within sectors of the construction industry have remained

constant. The Agency believes that this is a reasonable assumption, in

part because OSHA's construction rules governing PPE usage have

remained the same since 1972. Further, the OTA survey reported that

several types of PPE (e.g., hard hats, gloves, eye protection) are used

by virtually all construction workers; thus it would be impossible for

usage of these types of PPE to have increased significantly over time.

The general assumption that PPE usage patterns have not changed

significantly over time is supported by a recent OSHA analysis of

respirator use patterns conducted for the Agency's final rule for

respiratory protection (63 FR 1172, January 8, 1998). This analysis

shows that respirator usage patterns have not changed substantially

from those shown in the OTA report. A comparison of the OTA data for

several other types of PPE (e.g., gloves, eye protection, faceshields,

safety shoes and hard hats) with usage data from the 1989 PPE survey

also indicated no clear shift in usage for these types of PPE. Thus,

OSHA believes that these estimates of PPE usage in construction are

reasonable. However, as will be discussed further below, OSHA is

conducting a survey to gather more up-to-date information on PPE use

and payment. This survey will be used to update the estimates of usage

of PPE in construction.

To confirm the overall accuracy of the survey data on PPE use in

construction, the Agency contacted several PPE distributors to obtain

information on the market share for various PPE items in the

construction industry, as compared to market share in other sectors.

Comparing OSHA's estimates of the percentage of PPE costs attributable

to construction with the distributors' estimates of the share of PPE

sales occurring in the construction industry shows that OSHA's

estimates of PPE use in construction are correct and may, if anything,

be high. If OSHA's estimates are high, this analysis would tend to

overstate the potential costs and impacts of the proposed rule on the

construction industry. For example, OSHA's analysis estimates that

approximately 25 percent of the costs of all PPE occur in the

construction sector, while the distributors indicated that the

construction sector accounted for 20 percent of the value of PPE sales.

Estimating use patterns for some specific types of PPE required

additional analysis. For example, the OTA survey did not collect data

on fall protection PPE. The number of employees using fall protection

in construction was estimated from an analysis of occupational

categories, based on data from BLS's 1994 Occupational Exposure Survey

(OES) 5. Additionally, the OES data allowed OSHA to estimate

the number of workers requiring welding equipment in construction and

in some industries not covered by the 1989 PPE survey (i.e., SICs 15,

16, 17, 46, 47, 59, 73, 87 and 89). Finally, because the OTA survey did

not have data on the extent of the use of shoes with metatarsal guards,

OSHA relied on the 1989 PPE survey data, which show that about 11

percent of all safety shoes have metatarsal guards; this percentage was

applied to the OTA estimates of safety shoe usage to estimate

metatarsal guard usage in the construction industry.

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

\5\ For workers in some occupations, such as structural metal

workers and roofers, all employees were assumed to use fall

protection, clearly an overestimate. For workers in other

occupations, 10-20 percent were assumed to use fall protection.

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

Table VI-1 shows OSHA's estimates of the extent of PPE use in the

industries covered by the proposed rule. A total of 19.6 million

workers are estimated to wear one or more kinds of PPE in these

industries. Non-prescription safety glasses are worn by approximately

6.7 million workers, while 7.7 million workers wear hard hats and 10.6

million wear protective gloves of various kinds. Industries with the

largest number of PPE-wearing employees include construction special

trades (SIC 17), with 2.9 million such employees, building construction

trades (SIC 15), with 1.2 million, wholesale trade--durable goods (SIC

50), with 1.6 million, and wholesale trade--non-durable goods (SIC 51),

with 1.2 million PPE-wearing employees.

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[[Page 15419]]

Data on PPE Payment Patterns

To derive estimates of current employer payment patterns with

regard to PPE, the Agency consulted several sources: a national study

of collective bargaining agreements (BNA 1995), information from OSHA's

State-plan States, information from OSHA's 1989 PPE survey (ERG 1998),

and a panel of experts on PPE payment patterns (ERG 1998).

The data available to OSHA suggest that most employers in OSHA's

jurisdiction are already paying for the PPE they provide to their

employees to comply with OSHA standards. They do so because of labor-

management agreements and collective bargaining contracts, and for

other obvious reasons: if they pay for the PPE, they know what kinds of

PPE their employees are using, can ensure that it is replaced when

needed, and can require standardized procedures for cleaning, storing,

and maintaining it. In other words, they can control what PPE is used

and how it is used, and thus can have greater assurance that they are

in fact in compliance with OSHA's standards. Other reasons why

employers prefer to pay for PPE, according to the expert panel convened

by OSHA to obtain information on PPE patterns of use and payment, are:

The employer has experience with injuries that could have

been prevented by PPE use;

The employer has received input from his/her insurance

carrier;

The employer's staff and employees are aware of job-

related hazards and know about PPE use; and

The employer is concerned about the likelihood of an OSHA

inspection (ERG 1998).

A recent study of collective bargaining agreements showed that 55%

of contracts mentioning safety equipment require employers to pay for

PPE, while only 11% of such agreements require the employee to pay for

any PPE; this latter figure includes payment for all kinds of safety

shoes. In addition, nearly half of all U.S. workers work in States

covered by OSHA State plans. These States generally require employers

to pay for mandatory PPE, with the exception, in some cases, of safety-

toe footwear and prescription safety glasses. For example, Kentucky,

which operates its own OSHA program under an approved State-plan,

requires employers to pay for all required PPE except that which is

personal in nature and is also used off the job. California has

required employers to pay for all PPE, without exception, for many

years. OSHA is currently reviewing the PPE payment policies of all of

its State-plan partners; to date, all of the State plans responding

have a policy of requiring employers to pay for most PPE items.

To develop detailed estimates of sectoral patterns of PPE payment,

OSHA recently sponsored an expert panel of individual representatives

from industry, labor, insurance companies, and safety equipment

manufacturers and distributors. These individuals are recognized for

their knowledge of PPE use and purchasing patterns in the general

industry, construction, and maritime sectors. Many panelists indicated

that the kinds of PPE that could potentially be affected by the

proposed rule, i.e., those where a shift in costs from employees to

employers could potentially occur, were hard hats, gloves, safety

glasses (non-prescription), goggles, safety shoes (other than safety-

toe safety shoes), welding hoods and goggles, faceshields, fall

protection equipment, and chemical protective clothing. Based on the

responses of individual members of the panel, this industry profile

includes all the major types of PPE identified as having such

potential. However, the Agency solicits comments on any types of PPE

not included in this analysis, the extent of the use of such PPE in

each affected industry, and the extent to which employers do not

currently pay for such PPE, in each affected industry.

Table VI-2 summarizes the findings of the expert panel, which are

presented as the percentage of all PPE costs currently estimated to be

borne by employers, by industry and type of PPE. The table reports the

median response, i.e., the median percentage reported by the experts in

each case, except for manufacturing, where the panel estimated that

100% of costs for the affected kinds of PPE are being borne by

employers (OSHA has reduced this to 95% to be conservative) and the

service industries (where OSHA assumed that the percentages attributed

by the experts to the wholesale trade industry would be applicable to

all service industries). The panel's estimates of the percentage of PPE

costs currently being borne by employers were generally highest for

manufacturing and transportation and lowest for construction and

shipyards, although estimates even within these industries varied

widely by type of PPE. For example, the panel estimated that 87% of

employers in the transportation industry currently pay for non-

prescription safety eyewear, while 91.5% percent of these employers

currently pay for chemical protective clothing. In construction, where

the pattern of employer payment for PPE is generally lower than for

other industries, 70% of employers are estimated currently to pay for

non-prescription safety eyewear, while only 50% pay for gloves to

protect against abrasion and laceration.

OSHA believes that Table VI-2 generally presents an accurate

picture of current PPE payment patterns in various industries at the

present time, comporting with the Agency's own experience. Thus the

proposed rule, rather than representing a departure from current

practice, will largely reflect it.

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[[Page 15420]]

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[[Page 15421]]

In order to further ensure that the Agency has accurate data on

current patterns of PPE payment and usage, OSHA is conducting a

nationwide telephone survey of American workplaces dealing specifically

with that question. The Agency intends to have the results available

for review and comment before the final rule is published. The

information from the survey will be used to modify and update this

economic analysis as needed with respect to both PPE use patterns

(Table VI-1) and PPE payment patterns (Table VI-2). When the PPE survey

is completed, OSHA will reopen the record to enable the public to

comment on the results.

Technological Feasibility

This rule does not change any PPE requirements, but affects only

the issue of who pays for PPE. All of the PPE affected by this

rulemaking has already been found to be technologically feasible in

other rulemakings. Personal protective equipment is widely

manufactured, distributed, and used in workplaces in all of the

industries covered by OSHA standards. The proposed rule thus raises no

issues of technological feasibility.

Benefits of the Proposed Rule

Both OSHA's own enforcement experience and the experience of

members of OSHA's expert panel show that when employers do not provide

and pay for PPE, it is often not worn, is worn improperly, or is not

cared for and replaced appropriately. In the words of one panel member:

Our experience has been that the biggest factor in determining

proper, effective use of eye protection is effective supervision--if

the supervisor leads by example; if he/she reinforces use of eye

protection by the workers under his/her supervision; if he/she has

replacement eye protection readily available when it gets scratched

or otherwise damaged or lost--then there is more likely to be a

pattern of effective use among the workforce. This is significantly

more difficult to accomplish when employees are expected to buy

their own PPE. (It is not generally feasible to provide PPE and then

charge the workers for it.) . . . It is also difficult to ensure

that the employees are properly trained in the care and use of PPE

if the employer does not provide it. (ERG 1998)

Thus, two key problems can occur when employers fail to pay for

PPE: either the PPE is not worn in cases where it is needed to protect

against injury or illness, or the PPE is worn inappropriately. The

consequences of these failures are the same: employees are exposed to

chemical, physical, or safety hazards in the workplace, which, in turn,

results in injuries, illnesses, and death (as documented in OSHA's

recent respiratory protection rule (63 FR 1152, January 8, 1998).

Another panel member tried to estimate the quantitative differences

between employer and employee payment for PPE:

When employees are made responsible for purchasing their own

PPE, I believe that their probabilities of (1) actually purchasing

PPE, and (2) purchasing appropriate PPE, are diminished because they

must use some or all of their funds for this equipment, whereas they

would rather save this money for their own purposes, and they simply

don't have the resources to understand and choose among available

PPE. There is always a reluctance to use one's own funds to pay for

replacing or repairing workplace PPE. I believe that when employees

are responsible for their own PPE that a higher incidence of non-use

or misuse occurs. I would expect that figure would be approximately

40% for employee-purchased PPE versus 15 to 20% for employer-

purchased PPE. (ERG 1998)

The estimates provided by this expert panelist are consistent with

the statements of other panelists, as well as with OSHA's enforcement

and regulatory experience. Most panel members indicated that if the

employer did not pay for PPE, the PPE was not provided. To the extent

that this is the case, OSHA's estimates may actually underestimate the

effects of having employers pay for and provide PPE. To estimate the

benefits of employer PPE payment, OSHA used the panel's estimates of

the differences in effectiveness between employee-paid and employer-

paid PPE, and the estimates of the total numbers of injuries, illnesses

and deaths preventable by PPE that were developed for the 1994 PPE

rulemaking. OSHA invites comment from those with experience in this

area, to assist the Agency to refine, revise if necessary, or confirm

the accuracy of this estimate, as discussed below.

In 1994, OSHA examined, for each body part, the number of injuries

preventable by the then newly revised PPE rule [59 FR 16352]. OSHA

reviewed 1,170 OSHA Form 200s describing almost 64,000 injuries; these

forms had been submitted to OSHA in response to the 1989 PPE survey.

The profile of injuries, as defined by body part, very closely tracked

those in BLS's injury data base [OSHA 1994, pp. V-11-13]. Information

on the nature of the injury and the circumstances surrounding the

accident was used to determine the extent to which PPE would have

prevented the injury. Most injuries were not considered preventable by

PPE. For example, sprains and strains (nature), or injuries caused by

overexertion (circumstance), were considered not to be preventable by

PPE. Eye injuries, by contrast, tended to be highly preventable.

From these injury descriptions, it was possible to determine that

approximately one-third of injuries in general industry were

preventable with PPE. However, within this group, it was apparent that

PPE could be particularly effective in protecting certain body parts.

As indicated in the 1994 analysis [OSHA 1994, p. V-16], eye injuries

were estimated to be 95 percent PPE preventable; foot and toe, 75

percent; face and ear, 68 percent; and hand and finger, 63 percent.

Head injuries were judged to be 45 percent preventable. Over 90 percent

of these injuries were incurred by production workers in the subset of

high-hazard industries selected for study in the PPE survey; in other

words, they reflect the sort of preventable process-related PPE

injuries which Sec. 1910.132 was intended to prevent. The full analysis

of the injuries judged to be preventable through the proper use of PPE

is presented in detail in the Regulatory Impact Assessment [OSHA 1994].

In that analysis, OSHA found that almost 900,000 injuries in the

general industry and maritime sectors would be preventable by full

compliance with the new PPE rule, i.e., that 900,000 injuries could

have been prevented if employees had actually worn the appropriate

protective equipment. This analysis did not cover the construction

sector. OSHA assumed that the same preventability factors would apply

in construction as in the general industry and maritime sectors.

For the analysis of the Employer Payment for PPE rule, OSHA took

into consideration the fact that compliance with the rule will not be

perfect and that the likelihood of full compliance is influenced by who

pays for the PPE. Therefore, OSHA developed an estimate of the number

of injuries, illnesses, and deaths potentially averted by this rule by

combining the following information: 6

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

\6\ The number of injuries resulting from the lack of

appropriate PPE can be determined by examining both the likelihood

of employers not providing PPE under the two payment scenarios, and

data on the current pattern of payment for PPE. The equation for a

particular body part and relevant type of PPE can be described this

way:

((.4Ep/(.4Ep + .175En)) x total PPE-preventable injuries = #

injuries among employees paying for their own PPE Where:

Ep = # of employees paying for their own PPE

En = # of employees not paying for their own PPE (employer

paying)

Having determined the number of injuries falling into this

group, it is possible to estimate the number of injuries preventable

by reassigning payment responsibility to the employer. Once the

number of injuries among the employee-paying group is derived, it

has to be recognized that not all of these will be preventable by

switching payment systems. Since the number of injuries was derived

assuming that 60% of the employee-paying population is already

wearing PPE, the proper comparison is between the 40% nonusage in

the employee-paying population and the 17.5% nonusage in the

employer-paying population. Therefore, the percentage of injuries

remaining after switching to employer-payment would be .175/.4 or 44

percent of the original number of injuries among the employee-paying

group. Thus, 1-0.175/.4 provides the percentage prevented. In the

abstract, this equation is:

The number of injuries prevented by switching to employer

payment= (# of PPE-related injuries occuring among the employee-

paying group) x 1-(% of time PPE is not worn when employers pay /

% of time PPE is not worn when employees pay))

Using the specific numbers in this analysis, this becomes:

The number of injuries prevented by switching to employer

payment= (# of PPE-related injuries occurring among the employee-

paying group) x (1-(.175/.4))

In other words, 56 percent (1-(.175/.4)) of these injuries would

be preventable by switching payment patterns from employees to

employers.

This analysis has included only half of the PPE-related injuries

occurring currently in the United States because approximately half

of all employees are already covered by employer payment

requirements in State-plan States. This analysis also focuses only

on those body parts, e.g., eyes, head, hand, foot, most likely to be

protected by PPE.

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

[[Page 15422]]

(1) the number of injuries preventable through proper use of PPE,

classified by type of PPE (from 1994 economic analysis);

(2) the expert panel member's estimate that PPE will be missing or

used inappropriately 17.5% of the time when the employers pay for their

employee's PPE;

(3) the expert panel member's estimate that PPE will be missing or

used inappropriately 40% of the time when employees pay for their own

PPE; and

(4) the number of employees with employer paid PPE (see the

Industry Profile section of this analysis).

Table VI-3 presents the number of injuries preventable by this

rulemaking in general industry and construction, by body part. This

analysis indicates that the proposed rule would avert approximately

47,785 injuries annually.

Although the primary benefit of the proposed rule is that it will

avert injuries and save their associated costs, there are cases where

the lack of appropriate PPE has been fatal. At the time of the 1994

rulemaking, 24 fatal head injuries were considered to be preventable

every year in general industry through the use of PPE. Based on that

analysis, the Agency estimates that 6.9 percent of these cases, or an

average of 1.7 (.069 x 24) fatal head injuries annually, will be

averted by the proposed rule. According to BLS's Census of Fatal

Occupational Injuries, there were 263 fatal head injuries in the

construction industry in 1993, 44 of which were coded as ``struck by''

or ``struck against.'' Since a larger portion of employees pay for

their own PPE in construction, the impact of the proposed rule is

likely to be greater in construction than in general industry. OSHA

therefore estimates that 12.7 percent of these 44 fatalities are

preventable, for a total of 5.6 (44 x .127) averted fatal head

injuries annually. Therefore, in general industry and construction, the

Agency estimates that approximately 7 (5.6 + 1.7) lives could be saved

annually by compliance with the proposed rule.

The Agency also believes that the proposed rule will achieve

substantial benefits in the area of fall protection, particularly in

construction. The proposal would prevent a number of fatalities and

severe injuries that are now occurring either because employee-provided

PPE provides inadequate protection or because the employee arrives on

site without the necessary PPE. For example, OSHA estimated in the

Regulatory Impact Analysis for Subpart M that fall protection systems

would prevent nearly 80 fatalities and 26,600 lost workdays annually.

To the extent that employers provide more effective harnesses and

lanyards than those currently being provided by employees, or ensure

that this equipment is available for use by the employee, this rule

will avert deaths and injuries caused by falls. However, at the current

time the Agency does not have sufficient detail on these accidents to

quantify the benefits of this effect.

Table VI-3.--Injuries Judged To Be Preventable If Employers Are Required To Pay For PPE Now Being Paid For By

Employers

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

Total Injuries

Total injuries judged to

Injuries Percent of judged to judged to be

judged to those judged be be prevented

Body part be to be preventable preventable by

preventable preventable and within among requiring

by PPE by this scope of employees employer

rulemaking this paying for payment for

\1\ rulemaking PPE PPE

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

General Industry

Eye...................................... 117,296 31.0 36,362 8,085 4,548

Face & ear............................... 36,810 50.0 18,405 4,427 2,490

Head & neck.............................. 116,050 50.0 58,025 14,272 8,028

Hand & finger............................ 281,221 50.0 140,611 30,771 17,309

Foot & toe............................... 129,452 5.5 7,120 4,109 2,311

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

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

Construction:

Eye...................................... 25,524 31.0 7,912 3,824 2,151

Face & ear & head & neck................. 13,445 50.0 6,722 3,027 1,703

Hand & finger............................ 44,589 50.0 22,295 15,509 8,724

Foot & toe............................... 21,399 5.5 1,177 926 521

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

Subtotal............................... 104,957 ............. 38,106 23,286 13,098

==================================================================

Total.................................. 785,787 ............. 298,629 84,951 47,785

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

\1\ Only half of these injuries are judged to be within the direct coverage of this rule because employer

payment rules already apply in State plan States; non-prescription safety glasses constitute approximately 62%

of safety glasses; shoes with metatarsal guards account for 11% of all safety shoes.

Source: OSHA Office of Regulatory Analysis.

[[Page 15423]]

Direct Savings Resulting From the Reduction in Injuries Attributable to

the Proposed Rule

This section evaluates the direct savings associated with the

injuries averted by the proposed rule; it does not attempt to place a

monetary value on the lives that will be saved by compliance with the

rule or on pain, suffering and other similar effects avoided. These

other effects of occupational injuries and illnesses include the pain

and suffering experienced by workers and their families, loss of

esteem, disruption of family life, and feelings of anger and

helplessness. Occupational injuries and illnesses impose an enormous

burden on society in addition to the direct outlays of money for

medical expenses, lost wages and production, and other purely economic

effects.

Some aspects of the burden of occupational injuries and illnesses

can be quantified in monetary terms. These aspects of the problem of

work-related injuries and illnesses can be measured by the losses

experienced by employees and by the other costs that are externalized

to the rest of society. One consequence of the failure of PPE programs

to prevent job-related injuries is the growth of enormously expensive

income maintenance programs such as workers' compensation and long-term

disability programs. These costs impose a burden on society separate

from and in addition to the human toll in pain and suffering caused by

workplace-related injuries.

One measure of some of the losses associated with lost time due to

work-related injuries is the lost output of the worker, measured by the

value the market places on his or her time. This value is measured as

the worker's total wage plus fringe benefits. Other costs include: (1)

Medical expenses, (2) costs of workers' compensation insurance

administration, (3) indirect costs to employers (other than those for

workers' compensation administration), and (4) legal expenses of

employees.

OSHA estimates the value of lost output by starting with workers'

compensation indemnity payments and then adding other losses associated

with work-related illnesses and injuries. The Agency then follows four

steps to arrive at a value for lost output:

(1) Calculate PPE-related illness and injury in terms of workers'

compensation indemnity payments;

(2) Add the difference between the value of these indemnity

payments and the worker's after-tax income, based on various studies

comparing workers' compensation payments with after-tax income. This

step estimates the magnitude of lost after-tax income;

(3) Add the estimated value of taxes, based on the typical value of

taxes as a percentage of after-tax income. This step estimates the

value of total income lost; and

(4) Add the value of fringe benefits, based on data on fringe

benefits as a percentage of total income. This step estimates the total

market value of the lost output.

In this approach, injuries are clearly undervalued, because OSHA

assumes that the value associated with injuries is the same as the

value of claims for workers' compensation. An analysis of workers'

compensation claim data from the Argonaut Insurance Company for 1993

show that the weighted average claim value of the injuries shown in

Table VI-3 is $2,408. Based on nationwide estimates from the U.S.

Social Security Administration, an average of 58 percent of these

payments are paid out for indemnity, and the remaining 42 percent are

paid out for medical costs [USSA, 1993].

Indemnity/Lost Income

Workers' compensation indemnity payments typically take two forms:

temporary total disability payments, which cover absences from work

prior to the stabilization of the condition, and permanent disability

payments, which compensate the worker for the long-term effects of a

stabilized condition. On a nationwide basis, it is estimated that

permanent disability payments account for 61.5 percent of all indemnity

payments [Berkowitz and Burton].

The extent to which income is replaced by each type of indemnity

payment (i.e., temporary or permanent) differs. First, although rules

vary by State, temporary disability income is designed in most States

to replace two-thirds of the worker's before-tax income. However, most

States place a maximum and minimum on the amount of money paid out to

the worker, regardless of his/her actual former income. Studies by the

Worker Compensation Research Institute (WCRI) show that temporary total

disability payments replace between 80 to 100 percent of the after-tax

income of the majority of workers [WCRI, 1993]. From 3 to 44 percent of

the workers receive less than 80 percent of their after-tax income, and

from 0 to 16 percent receive more than 100 percent of their after-tax

income. Unfortunately, WCRI does not provide estimates of the average

replacement rates for all workers in a State. However, based on these

data, it seems reasonable to assume that, on average, workers receive

no more than 90 percent of their after-tax income while on temporary

disability. On the other hand, data show that permanent partial

disability payments replaced 75 percent of income lost in Wisconsin, 58

percent in Florida, and 45 percent in California [Berkowitz and

Burton]. OSHA uses the simple average of these three--59 percent--to

estimate the extent of after-tax income replacement for permanent

partial disabilities 7.

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

\7\ The use of a simple average rather than a population-

weighted average results in a lower estimate of income loss and is

thus a conservative approach.

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

Based on these data, OSHA estimated after-tax income from the total

indemnities paid for injuries preventable by the proposed rule by

assuming, based on estimates for all workers' compensation claims

provided by Berkowitz and Burton, that temporary disabilities account

for 38.5 percent of all PPE-preventable indemnity payments and replace

90 percent of after-tax income, and that permanent partial disabilities

8 account for 61.5 percent of PPE-preventable indemnity

payments and replace 60 percent of after-tax income.

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

\8\ Permanent ``partial'' disabilities include all permanent

disabilities, ranging from 1 to 100 percent disabled.

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

Fringe Benefits

In addition to after-tax income loss, lost output includes the

value of taxes that would have been paid by the injured worker and

fringe benefits that would have been paid by the worker's employer.

Total income-based taxes (individual Social Security payments, Federal

income tax, and State income tax) paid were assumed to be 30 percent of

total income. Fringe benefits were estimated as 39 percent of before-

tax income, based on the average fringe benefit data provided by BLS

[BLS, 1997].

Tables VI-4 and VI-5 apply the estimation parameters developed

above to calculate the total value of the lost output potentially

associated with temporary and permanent partial disabilities,

respectively, once the final standard has been fully implemented. As

shown, the total value of the lost output associated with potentially

avoidable accepted workers' compensation claims that result in

temporary total disability is estimated at $55.8 million, and that

associated with permanent partial disabilities at $129.7 million a

year.

[[Page 15424]]

Table VI-4.--Value of Lost Output Associated With Temporary Total

Disabilities Resulting From PPE-Preventable Injuries

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

Injuries/costs

Type of benefit prevented

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

Total Number of PPE-Preventable Cases Annually.......... 47,785

Weighted Average Total Cost per Claim................... $2,408

Indemnity Share of Payment (58% of Total Claim)......... $1,396

Medical Share of Payment (42% of Total Claim)........... $1,011

Value of Temporary Total Disability Indemnity Payments $25,689,814

\1\....................................................

Lost-After-Tax Income Above the Value of Indemnity $2,854,424

Payments \2\...........................................

Lost Value of Tax Payments \3\.......................... $11,866,247

Lost Value of Fringe Benefits \4\....................... $15,426,122

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

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

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

\1\ Number of cases X indemnity payments per case X 38.5 percent

indemnity value share attributable to temporary total disability.

\2\ Temporary total disability payments have been estimated to equal 90

percent of lost after-tax income.

\3\ Taxes are estimated to equal 30 percent of before-tax income.

\4\ Fringe benefits=39 percent of wage income [BLS, 1995].

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

Table VI-5.--Value of Lost Output Associated With Permanent Partial

Disabilities Resulting From PPE-Preventable Injuries

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

Injuries/costs

Type of benefit prevented

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

Number of PPE-Preventable Injury Cases.................. 47,785

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

Lost-After-Tax Income Above the Value of Indemnity $28,517,220

Payments \2\...........................................

Lost Value of Tax Payments \3\.......................... $26,142,441

Lost Value of Fringe Benefits \4\....................... $33,985,174

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

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

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

\1\ Number of cases prevented X indemnity payments per claim X 61.5

percent value share attributable to permanent partial disability.

\2\ Permanent partial disability payments are estimated to equal 59

percent of the value of lost after-tax income.

\3\ Taxes are estimated to be 30 percent of before tax income.

\4\ Fringe benefits=39 percent of wage income (BLS, 1995].

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

Medical

Medical costs do not include any first-aid costs incurred by the

employer and, in some cases, costs for transportation to a medical

facility; however, most elements of medical costs are included in the

share of payments paid for medical costs, estimated to be 42 percent of

the cost of the claims. Costs for treating injuries will remain

relatively constant, regardless of who is actually paying for the

medical care (i.e., the employer through workers' compensation, or a

medical insurer). As presented in Table VI-6, OSHA estimates the

medical costs of injuries preventable by the proposed standard to be

$48.3 million a year.

Table VI-6. Annual Social Benefits Associated With the Reduction in

Injuries as a Result of Employer Payment for PPE

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

Injuries/costs

Type of benefit prevented

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

Lost Output Associated with Temporary Disabilities \1\.. $55,836,606

Lost Output Associated with Permanent Disabilities \2\.. 129,681,810

Medical Costs \3\....................................... 48,319,399

Insurance Administrative Costs \4\...................... 29,912,009

Indirect Costs \5\...................................... 23,929,607

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

Total............................................... 287,679,432

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

\1\ Derived from Table VI-4.

\2\ Derived from Table VI-5.

\3\ Calculated by multiplying the number of injuries by the value of

medical payments presented in Table VI-4.

\4\ Calculated by multiplying the total value of claims times 26

percent.

\5\ Calculated by multiplying the total value of workers' compensation

medical and indemnity payments times 20.8 percent.

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

Administrative Costs

The administrative costs of workers' compensation insurance include

all of the costs associated with the administration of workers'

compensation insurance. Such costs include any funds spent directly on

claims adjustment, as well as all other administrative costs incurred

by the insurer in conjunction with experienced losses.

OSHA estimates the administrative costs of PPE-related injury

claims as follows:

Costs to private insurance companies are estimated, based

on 1990 data, as 35.8 percent of the costs of incurred claims [Klein et

al., 1993]. These costs include those for claims adjustment, sales,

general expenses, taxes, licenses, and fees (historical data show that

all of these elements of private insurance costs increase as the value

of benefits paid out increases).

Costs to State funds were estimated, based on 1990 data,

as 17.8 percent of the costs of incurred claims [Klein et al., 1993].

These costs include those for claims administration and for costs

labeled as ``general costs.''

Costs to self-insured companies, estimated by the Social

Security Administration to be 6.8 percent of the value of benefits paid

in 1990 [Social Security Administration, 1993].

To estimate the aggregate value of the administrative costs of

insurance, these costs are weighted by the value of the benefits

payments made by each type of insurer (i.e., private insurer, state

fund, etc.), based on 1990 data. This calculation is shown in Table VI-

7, which indicates that estimated weighted administrative costs

constitute 26 percent of the total value of claims. The total value of

claims includes the value both of the indemnity and medical portions of

insurance company payments. The costs shown in Table VI-7 represent the

administrative costs associated with workers' compensation.

[[Page 15425]]

Table VI-7.--Derivation of Average Administrative Costs as a Percent of the Value of Claims, by Type of

Insurance

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

Administrative

costs as a

percentage of Percentage of

Type of insurance incurred total benefits Weighted value

claims \1\ paid \2\

(1990) (1990)

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

Private Insurance............................................... 35.5 58.1 20.6

State Fund...................................................... 17.8 22.8 4.1

Self-Insurance.................................................. 6.8 19.4 1.3

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

Total....................................................... .............. .............. 26.0

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

\1\ From Klein et al. (1993) for private insurance and State funds, and U.S. Social Security Administration

(1993) for self-insurance.

\2\ Values for administrative costs as a percent of incurred claims, weighted by total benefits paid.

It should be noted that cases that fall outside the workers'

compensation system will typically have administrative costs associated

with them--indeed, to the extent they are borne by private medical

insurers, they will carry relatively greater administrative expenses

than the average estimated here.

Indirect Costs

The term ``indirect costs'', describes the costs of work-related

injuries that are borne directly by employers but are not included in

workers' compensation claim costs. Such costs are best estimated by

looking at the costs an employer actually incurs at the time a workers'

compensation claim is filed. These costs include a number of social

benefits, such as payments of sick leave to workers for absences that

are shorter than the workers' compensation waiting period, losses in

production associated with the injured workers' departure and return to

work, losses in the productivity of other workers, and a wide variety

of administrative costs other than those borne directly by the workers'

compensation insurer, e.g., medical management costs for the injured

worker. Based on a study [Hinze & Applegate] of indirect costs of

injuries in the construction industry, OSHA estimates that indirect

costs are 20.8 percent of the value of workers' compensation medical

and indemnity payments, i.e., add up to an indirect cost multiplier of

1.21. As indicated in Table VI-6, the Agency estimates that this

proposed revision to the PPE standard will save $23.9 million annually

in these indirect costs.

Taken in its entirety, the proposed amendment to the PPE standard

is estimated to save $287.7 million annually in direct costs savings by

avoiding preventable injuries. These direct cost savings do not include

the economic value of the loss of leisure time. They do not account for

the burden of chores that are forced on other household members or

hired out. The direct savings also do not include the value of

preventing pain and suffering or loss of life.

Costs of Compliance

To assess the costs employers may incur to comply with the proposed

rule, OSHA first estimated the total costs associated with PPE

currently covered by OSHA PPE standards and affected by this rule.

OSHA's estimates of the costs of all required PPE were derived from the

PPE use estimates shown in Table VI-1, subtracting employees in State

plan States, who, as indicated in the previous section, comprise

approximately half of the affected workers. Unit costs for equipment

were taken from the Agency's economic analysis (Ex. 56, Docket S-060)

in support of the 1994 rulemaking that revised the personal protective

equipment standard (29 CFR 1910.132). Data from that analysis were

supplemented with new estimates of the unit costs of welding equipment

and goggles, and of fall protection equipment (ERG 1998). All cost

estimates were then updated to reflect 1998 prices.9 This

figure was then multiplied by the percentage of these costs not

currently being borne by employers (see Table VI-2).

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

\9\ Annualized costs, updated from those used in the Final

Regulatory Impact Analysis for the 1994 PPE rulemaking (OSHA 1994),

are hard hats, $6.67; non-prescription safety glasses, $6.69;

goggles, $15.07; gloves, $14.07; and faceshields, $13.45. According

to the expert panel, welders need both helmets and goggles at

different times of the year. Welding helmets were assumed to have a

life expectancy of 5 years and to cost $32.00; welding goggles were

assumed to be replaced every 3 months, and to cost $11.00 (these

assumptions yield a combined annualized welding unit cost of

$51.80). Fall protection (body harness and lanyard) is assumed to

have a life expectancy of 5 years, and to cost $60.00 (harnesses)

and $60.00 (lanyards), respectively, yielding a combined annualized

fall protection unit cost of $29.27. Reusable chemical protective

coveralls were assumed to have a life expectancy of one year and to

cost $20.00, based on a current supply catalog (Lab Safety 1995).

Safety shoes with metatarsal guards cost approximately $100 (ERG

1998); based on an average two year life (OSHA 1994) this yields an

annualized cost of $55.17.

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

Table VI-8 shows the total annualized costs of compliance for the

proposed rule, by industry and kind of PPE. Total annualized costs are

$61.9 million. Gloves and safety shoes (with metatarsal guards) account

for the largest portion of these costs, at $17.3 and $14.3 million,

respectively; welding helmets/goggles account for an additional $10.2

million per year. These three types of PPE together account for 68

percent of all of the proposed rule's costs of compliance. Construction

special trades (SIC 17), at $24.2 million, and building construction

contractors (SIC 15), at $6.2 million, are the industries estimated to

incur the greatest costs.

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[[Page 15428]]

Economic Impacts and Certification of No Significant Impact

OSHA analyzed the economic impacts of the proposed rule by

calculating average annualized compliance costs as a percentage of the

sales and profits of all establishments in affected industries. As

shown in Table VI-9, annualized costs to employers for establishments

in all affected industries are less than 0.01 percent of sales and only

0.02 percent of profits. Even in the most affected industry, Welding &

Other Repair (SIC 76), annualized costs are still less than 0.5 percent

of profits. Costs of this magnitude do not threaten the financial

health of even the most marginal firm. Since most employers in most

industries already pay for PPE, the major competitive effect of the

rule is to limit any small short-term competitive advantage a few firms

gain by not paying for PPE, i.e., by requiring their employees to pay

for PPE that other employers in their industry pay for. As shown in the

benefits section, many firms already pay for PPE because it proves

cost-effective; many other firms may find that, when benefits as well

as costs are considered, the costs of PPE are more than offset by these

benefits.

OSHA also assessed the economic impacts of the proposed rule on

small firms within each affected industry. Impacts on two sizes of

small firm were estimated: those with fewer than 500 employees, and

those with fewer than 20 employees. In using 500 employees and 20

employees to characterize firms for this screening analysis for

impacts, OSHA is not proposing definitions of small business that are

different from those established by the Small Business Administration

(SBA) in its Table of Size Standards. The SBA size definitions are SIC-

code specific, and are generally expressed either in terms of number of

employees or as annual receipts. Instead, OSHA is using 500 employees

and 20 employees as a simple method of screening for significant

impacts across the large number of industries potentially affected by

the proposed rule. Use of this approach avoids the need to interpolate

because the underlying industry profile data do not correspond with the

SIC-specific size categories established by the SBA. (OSHA notes that,

for almost all of the industries affected by this rulemaking, the SBA

size definitions fall within the 20- to 500-employee range.) OSHA

believes that this screening approach will capture any significant

impacts on small firms in affected industries. The Agency welcomes data

supporting this assumption or data demonstrating that firms in the

industry-specific size classes used by the SBA will experience

significant impacts.

The results of these analyses (Tables VI-10 and VI-11,

respectively) demonstrate that the annualized costs of compliance do

not exceed 0.1 percent of sales or 1 percent of profits for small firms

in any covered industry. Based on these analyses, in accordance with

the Regulatory Flexibility Act (5 U.S.C. 605) OSHA certifies that the

proposed rule will not have a significant impact on a substantial

number of small entities.

Because statistically meaningful survey data are available only at

the two-digit Standard Industrial Classification level, OSHA has

conducted this analysis of economic impacts at the 2-digit level. OSHA

believes that this level of analysis adequately captures meaningful

variations in economic impacts. Further, the costs are so low that even

if a sub-industry were to have substantially higher costs as a

percentage of sales or profits, the financial health of that sub-

industry would not be in any danger. However, the Agency requests

comment on any specific industry that may have an unusual pattern of

PPE usage or payment that could lead to more severe impacts than those

portrayed for its 2-digit sector.

To test its conclusions that the regulation is economically

feasible and will not have a significant impact on a substantial number

of small entities, the Agency performed sensitivity analyses relying on

``worst case'' scenarios. First, in order to test the potential impact

on OSHA's estimates of errors in the expert panel's characterization of

payment patterns, the Agency examined impacts across all industries

using the extreme assumption that employers were not currently paying

for any protective equipment. Under this extreme scenario, the proposed

rule's costs of compliance would quadruple, but the impacts of even

these costs in nearly all industries would still be below one percent

of profits. The largest impacts would occur in SIC 76 (Welding & other

repair), where costs under this extreme scenario would be less than 3

percent of profits.

Second, the Agency focused on the construction industry, which was

not covered in OSHA's 1989 PPE use survey and is estimated in OSHA's

analysis to account for half of the rule's costs of compliance, to see

what the impacts would be under an extremely unlikely scenario that

assumed that all construction employees wore all types of

PPE.10 Under this scenario, the largest impact would occur

in SIC 17, where costs would equal 2.1 percent of profits. This result

shows that, even if the Agency had no data on PPE usage in the

construction industry and simply assumed that every employee in the

sector used every possible type of PPE, the proposed standard would

still be economically feasible and would not have a significant impact

on a substantial number of small entities.

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

\10\ This assumes that all construction employees need welding

PPE, fall protection, chemical protective clothing and safety shoes

with metatarsal guards and that the same workers need faceshields

and standard goggles in addition to welding helmets and welding

goggles.

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

Third, the Agency has constructed a ``worst-worst'' case scenario

for the construction industry; this scenario assumes that employees in

this industry are wearing all types of PPE and pay for all of this PPE,

i.e., that no employer currently pays anything for any type of PPE.

Even under this scenario, the costs of the proposed rule would be less

than 5 percent of profits and less than 1 percent of revenues for firms

in all construction subsectors. This analysis shows that even if the

Agency had no data on either PPE use or PPE payment patterns in the

construction industry, it would still be reasonable to conclude that

the proposed standard is economically feasible in the construction

sector and that small firms in that sector would not experience

significant impacts.

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