[Federal Register Volume 73, Number 161 (Tuesday, August 19, 2008)]
[Proposed Rules]
[Pages 48335-48350]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-18991]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Parts 1910, 1915, 1917, 1918 and 1926
[Docket No. OSHA-2008-0031]
RIN 1218-AC42
Clarification of Remedy For Violation of Requirements To Provide
Personal Protective Equipment and Train Employees
AGENCY: Occupational Safety and Health Administration (OSHA), U.S.
Department of Labor.
ACTION: Proposed rule.
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SUMMARY: In this rulemaking, OSHA is proposing to amend its regulations
to add language clarifying that noncompliance with the personal
protective equipment (PPE) and training requirements in safety and
health standards in these parts may expose the employer to liability on
a per-employee basis. The amendments consist of new paragraphs added to
the introductory sections of the listed parts and changes to the
language of some existing respirator and training requirements. This
action, which is in accord with OSHA's longstanding position, is
proposed in response to recent decisions of the Occupational Safety and
Health Review Commission indicating that differences in wording among
the various PPE and training provisions in OSHA safety and health
standards affect the Agency's ability to treat an employer's failure to
provide PPE or training to each covered employee as a separate
violation. The amendments add no new compliance obligations. Employers
are not required to provide any new type of PPE or training, to provide
PPE or training to any employee not already covered by the existing
requirements, or to provide PPE or training in a different manner than
that already required. The amendments simply clarify the remedy for
violations of these requirements.
DATES: Written comments: Comments must be submitted (postmarked, sent
or received) by September 18, 2008.
Hearing Requests: Any request for a hearing must also be submitted
by September 18, 2008. See ADDRESSES section below for special
procedures for submitting hearing requests.
ADDRESSES: Written comments: You may submit comments, identified by
docket number OSHA-2008-0031, or regulatory information number (RIN)
1290-AA23, by any of the following methods:
Electronically: You may submit comments and attachments
electronically at http://www.regulations.gov, which is the Federal
eRulemaking Portal. Follow the instructions on-line for making
electronic submissions.
Fax: If your comments, including attachments, do not exceed 10
pages, you may fax them to the OSHA Docket Office at (202) 693-1648.
Mail, hand delivery, express mail, messenger or courier service:
You must submit three copies of your comments and attachments to the
OSHA Docket Office, Docket Number OSHA-2008-0031, U.S. Department of
Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210;
telephone (202) 693-2350 (OSHA's TTY number is (877) 889-5627).
Deliveries (hand, express mail, messenger and courier service) are
accepted during the Department of Labor's and Docket Office's normal
business hours, 8:15 a.m.-4:45 p.m., e.t.
Hearing Requests: A hearing request may only be submitted by one of
the following methods: Electronically, fax, express mail, hand
delivery, messenger or courier service. OSHA will not consider hearing
requests sent by regular mail.
Instructions: All submissions must include the docket number [OSHA-
2008-0031] or the regulatory information number (RIN) 1290-AA23, for
this rulemaking. All comments, including any personal information you
provide, are placed in the public without change and may be made
available online at http://www.regulations.gov. Therefore, OSHA
cautions you about submitting personal information such as Social
Security numbers and birthdates. For further information on submitting
comments, plus additional information on the
[[Page 48336]]
rulemaking process, see the ``Public Participation'' heading in the
SUPPLEMENTARY INFORMATION section of this document.
Docket: To read or download comments and materials submitted in
response to this Federal Register notice, go to docket number OSHA-
2008-0031, at http://regulations.gov or the OSHA Docket Office at the
address above. All comments and submissions are listed in the http://regulations.gov index, however, some information (e.g., copyrighted
material) is not publicly available to read or download through the Web
page. All comments and submissions, including copyrighted material, are
available for inspection and copying at the OSHA Docket Office.
For information on reading or downloading exhibits referenced in
this Federal Register notice, see the ``References and exhibits'' and
``Public Participation'' headings in the SUPPLEMENTARY INFORMATION
section of this document.
Electronic copies of this Federal Register document are available
at http://www.regulations.gov. This document, as well as news releases
and other relevant information, also is available at OSHA's Web page at
http://www.osha.gov.
FOR FURTHER INFORMATION CONTACT: Ms. Jennifer Ashley, OSHA Office of
Communications, Room N-3647; U.S. Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210. Telephone: (202) 693-1999.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Table of Contents
II. Background
III. Legal Authority
IV. Summary and Explanation of the Proposed Rule
V. Advisory Committee on Construction Safety and Health
VI. Preliminary Economic Analysis
VII. Regulatory Flexibility Certificate
VIII. Environmental Impact Assessment
IX. Federalism
X. Unfunded Mandates
XI. OMB Review Under the Paperwork Reduction Act
XII. State Plan States
XIII. Public Participation
II. Background
A. Personal Protective Equipment (PPE)
The use of personal protective equipment, including respirators, is
often necessary to protect employees from injury or illness caused by
exposure to toxic substances and other workplace hazards. Many OSHA
standards in Parts 1910 through 1926 require employers to provide PPE
to their employees and ensure the use of PPE. Some general standards
require the employer to provide appropriate PPE wherever necessary to
protect employees from hazards. See, e.g., Sec. Sec. 1910.132(a);
1915.152(a); 1926.95(a). Other standards require the employer to
provide specific types of PPE or to provide PPE in specific
circumstances. For example, the logging standard requires employers to
provide cut-resistant leg protection to employees operating a chainsaw,
29 CFR 1910. 266(d)(1)(iv); the coke oven emissions standard requires
the employer to provide flame-resistant clothing and other specialized
protective equipment, Sec. 1910.1029(h); and the methylene chloride
standard requires the employer to provide protective clothing and
equipment which is resistant to methylene chloride, Sec. 1910.1052(h).
OSHA's respirator standards follow a similar pattern. Section
1910.134, revised in 1998, requires employers to provide respirators
``when such equipment is necessary to protect the health of the
employee.'' Sec. 1910.134(a)(2). The section includes additional
paragraphs requiring employers to establish a respiratory protection
program, select an appropriate respirator based upon the hazard(s) to
which the employee is exposed, provide a medical examination to
determine the employee's ability to use a respirator, fit-test the
respirator to the individual employee and take other actions to ensure
that respirators are properly selected, used and maintained. E.g.,
Sec. 1910.134 (c) through (m); 63 FR 1152-1300 January 8, 1998
(Respiratory Protection rule). A variety of other standards require the
employer to provide respirators when employees are or may be exposed to
specific hazardous substances. See, e.g., Sec. 1910.1101(g)(asbestos);
Sec. 1910.1027(g)(cadmium). The 1998 Respiratory Protection rule
revised the substance-specific standards then in existence to simplify
and consolidate their respiratory protection provisions. 63 FR 1265-68.
Except for a limited number of respirator provisions unique to each
substance-specific standard, the regulatory text on respirators for
these standards is virtually the same. The construction industry
asbestos standard's initial respirator paragraph, which is virtually
identical to the initial respirator paragraphs in most substance-
specific standards, states as follows:
Sec. 1926.1101 Asbestos
* * * * *
(h) Respiratory protection. (1) General. For employees who use
respirators required by this section, the employer must provide
respirators that comply with the requirements of this paragraph.
Respirators must be used during: [specific work operations involving
exposure to asbestos]. (2) Respirator program. (i) The employer must
implement a respiratory protection program in accordance with Sec.
1910.134 (b) through (d) (except (d)(1)(iii), and (f) through (m).
B. Training
Training is also an important component of many OSHA standards.
Training is necessary to enable employees to recognize the hazards
posed by toxic substances and dangerous work practices and protect
themselves from these hazards. Virtually all of OSHA's toxic-substance
standards, such as the asbestos, vinyl chloride, lead, chromium,
cadmium and benzene standards, require the employer to train or provide
training to employees who may be exposed to the substance. Many safety
standards also contain training requirements. The lockout/tagout
standard, for example, requires the employer to provide training on the
purpose and function of the energy control program, Sec.
1910.147(c)(7), and the electric power generation standard requires
that employees be trained in and familiar with pertinent safety
requirements and procedures. Sec. 1910.269(a)(2).
The regulatory text on training varies from standard to standard.
Some standards explicitly state that ``each employee shall be trained''
or ``each employee shall receive training'' or contain similar language
that makes clear that the training must be provided to each individual
employee covered by the requirement. E.g., Process safety management,
Sec. 1910.119(g)(i) (each employee shall be trained); Lockout/tagout,
Sec. 1910.147(c)(7)(A) (each employee shall receive training); Vinyl
chloride, Sec. 1910.1017(j) (each employee shall be provided
training); General safety and health provisions, Sec. 1926.20(b)
(instruct each employee); Fall protection, Sec. 1926.503(a) (provide a
training program for each employee).
Other standards contain a slight variation; they state that
``employees shall be trained'' or that the employer must ``provide
employees with information and training.'' E.g., Electric power
generation, Sec. 1910.269(a)(2) (employees shall be trained); Benzene,
Sec. 1910.1028(j)(3)(i) (provide employees with information and
training); Hazard communication, Sec. 1910.1200(h) (same).
Finally, some standards state that the employer must ``institute a
training program [for exposed employees] and ensure their participation
in the program'' or contain similar language.
[[Page 48337]]
For example, the asbestos standard's initial training section states
that ``[t]he employer shall institute a training program for all
employees who are exposed to airborne concentrations of asbestos at or
above the PEL and/or excursion limit and ensure their participation in
the program.'' Sec. 1910.1001(j)(7). See also, e.g., Sec.
1926.1101(k)(9) (Construction asbestos); Sec. 1910.1025(l) (Lead);
Sec. 1910.1027(m)(4) (Cadmium).
The Agency interprets its respirator and training provisions to
impose a duty upon the employer to comply for each and every employee
subject to the requirement regardless of whether the provision
expressly states that respirators or training must be provided to
``each employee.'' Neither the Commission nor any court has ever
suggested that an employer can comply with the respirator and training
provisions in safety and health standards by providing respirators to
some employees covered by the requirement but not others, or that the
employer can train some employees covered by the training requirement
but not others. The basic nature of the employer's obligation is the
same in all of these provisions; each and every employee must receive
the required protection.
The agency therefore believes that a separate violation occurs for
each employee who is not provided required PPE or training, and that a
separate citation item and proposed penalty may be issued for each.
However, as discussed in the Legal Authority section, a recent decision
of the Review Commission in the Ho case suggests that minor variations
in the wording of the provisions affect the Secretary's authority to
cite and penalize separate violations. Secretary of Labor v. Erik K.
Ho, Ho Ho Ho Express, Inc. and Houston Fruitland, Inc., 20 O.S.H. Cas.
(BNA) 1361 (Rev. Comm'n 2003), aff'd, Chao v. OSHRC and Erik K. Ho, 401
F.3d 355 (5th Cir. 2005). The agency is proposing to amend its
standards to make it unmistakably clear that each instance when an
employee subject to a PPE or training requirement does not receive the
required PPE or training may be considered a separate violation.
Where an employer commits multiple violations of a single standard
or regulation, OSHA either groups the violations and proposes a single
penalty, or cites and proposes a penalty for each discrete violation.
Although ``grouping'' is the more common method, OSHA proposes separate
``per-instance'' penalties in cases where the resulting heightened
aggregate penalty is appropriate to deter flagrant violators and
increase the impact of OSHA's limited resources. Per-employee penalties
for violations of PPE and training requirements are no different in
kind than other types of per-instance penalties the agency has proposed
under this policy.
Accordingly, OSHA has preliminarily determined to amend the
respirator and training provisions in the standards in parts 1910
through 1926 to: (1) Revise the language of the initial respirator
paragraphs adopted in the 1998 respiratory protection rule to
explicitly state that the employer must provide each employee an
appropriate respirator and implement a respiratory protection program
for each employee, (2) revise the language of those initial training
paragraphs that require the employer to institute or provide a training
program to explicitly state that the employer must train each employee,
and (3) add a new section to the introductory subparts of each part to
clarify that standards requiring the employer to provide PPE, including
respirators, or to provide training to employees, impose a separate
compliance duty to each employee covered by the requirement and that
each employee who does not receive the required PPE or training may be
considered a separate violation.
III. Legal Authority
A. Introduction
Section 6(b) of the Act sets forth the procedures the Secretary
must follow in promulgating, modifying or revoking an occupational
safety or health standard. 29 U.S.C. 655(b). These procedures include
publication of a proposed rule and an opportunity for notice and
comment prior to promulgation of a final rule. Although the proposed
amendments involved here are remedial and interpretive in that they
merely clarify pre-existing obligations under safety and health
standards, the agency is according the public a full opportunity to
comment before taking final action.
The proposed amendments do not impose any new substantive
requirements. The proposed language clarifies that the duty to provide
personal protective equipment, including respirators, and training to
employees is a duty owed to each employee covered by the requirement.
This adds no new compliance burden; the nature of the employer's duty
to protect each employee is inherent in the existing provisions. To
comply with existing respirator and training provisions the employer
must provide a respirator to each employee who needs respiratory
protection and train each employee who must be informed of job hazards.
The employer cannot comply by leaving some employees without
respiratory protection or leaving some employees untrained. The agency
is proposing the new language to achieve greater consistency in the
regulatory text of the various respirator and training provisions in
parts 1910 through 1926, provide clearer notice of the nature of the
employer's duty under existing respirator and training provisions, and
address the Commission's interpretation that the language of some
respirator and training provisions does not support per-employee
citations and penalties.\1\
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\1\ Before OSHA can issue a new more protective standard, the
agency must find that the hazard being regulated poses a significant
risk of material health impairment and that the new standard is
reasonably necessary and appropriate to reduce that risk. Industrial
Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S.
607(1980). OSHA must also show that the new standard is
technologically and economically feasible, and cost effective.
American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490 (1980).
These requirements are not implicated in this rulemaking because the
amendments merely clarify the obligations and remedies under the
existing PPE and training provisions and add no additional
requirements. See sections V. and VI. infra. The agency met its
burden of showing significant risk, feasibility and cost
effectiveness in promulgating the existing PPE and training
requirements.
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B. General Principles Governing Per-Instance Penalties
Section 9(a) of the Act authorizes the Secretary to issue a
citation when ``an employer has violated a requirement of * * * any
standard.'' 29 U.S.C. 658(a). A separate penalty may be assessed for
``each violation.'' Id. at 666(a), (b), (c). ``The plain language of
the Act could hardly be clearer'' in authorizing a separate penalty for
each discrete instance of a violation of a duty imposed by a standard.
Kaspar Wire Works, Inc. v. Secretary of Labor, 268 F.3d 1123, 1130
(D.C. Cir. 2001).
What constitutes an instance of a violation for which a separate
penalty may be assessed depends upon the nature of the duty imposed by
the standard or regulation at issue. If the standard ``prohibits
individual acts rather than a single course of action,'' each
prohibited act constitutes a violation for which a penalty may be
assessed. Secretary of Labor v. General Motors Corp., CPCG Oklahoma
City Plant, 2007 WL 4350896 ,35 (GM) (Rev. Comm'n 2007); Sanders Lead
Co. 17 O.S.H. Cas. (BNA) 1197, 1203 (Rev. Comm'n 1995). Applying this
test, the Commission has held that the recordkeeping regulation's
requirement to record each injury or illness is violated each time the
employer failed to record an injury or illness, Secretary
[[Page 48338]]
of Labor v. Caterpillar Inc., 15 O.S.H. Cas. (BNA) 2153, 2172-73 (Rev.
Comm'n 1993); the machine guarding standard's requirement for point-of-
operation guards on machine parts that could injure employees is
violated at each unguarded machine, Hoffman Constr. Co. v. Secretary of
Labor, 6 O.S.H. Cas. (BNA) 1274, 1275 (Rev. Comm'n 1975); the fall
protection standard's requirement to guard floor and wall openings is
violated at each location on a construction site where appropriate fall
protection is lacking, Secretary of Labor v. J.A. Jones Constr. Co., 15
O.S.H. Cas. (BNA) 2201, 2212 (Rev. Comm'n 1993); the trenching
standard's shoring or shielding requirement is violated at each
unprotected trench, Secretary of Labor v. Andrew Catapano Enters., Inc.
17 O.S.H. Cas. (BNA) 1776, 1778 (Rev. Comm'n 1996) and the electrical
safety standard is violated at each location where non-complying
electrical equipment is installed. A.E. Staley Mfg. Co. v. Secretary of
Labor, 295 F.3d 1341, 1343 (D.C. Cir. 2002).
The failure to protect an employee is a discrete act for which a
separate penalty may be assessed when the standard imposes a specific
duty on the employer to protect individual employees:
Some standards implicate the protection, etc. of individual
employees to such an extent that the failure to have the protection
in place for each employee permits the Secretary to cite on a per-
instance basis. However, where a single practice, method or
condition affects multiple employees, there can be only one
violation of the standard.
Secretary of Labor v. Hartford Roofing Co., 17 O.S.H. Cas. (BNA) 1361,
1365 (Rev. Comm'n 1995). In Hartford Roofing, the Commission held that
abatement of an unguarded roof edge required the single action of
installing a motion stopping system or line that would constitute
compliance for all employees exposed to a fall. Id. at 1367.
Accordingly, the failure to abate the hazard could be cited only once
regardless of the number of exposed employees. Ibid. However, where the
employer fails to protect employees from falls at several different
locations in the same building, a violation exists at each such
location. J.A. Jones, 15 O.S.H. Cas. (BNA) at 2212. Thus, what
constitutes an ``instance'' of a violation varies depending upon the
standard. ``Per-instance'' can mean per-machine, or per-injury, or per-
location depending upon the nature of the employer's compliance
obligation.
Per-employee violations are no different from other types of per-
instance violations. Just as the employer must ensure that electrical
equipment is safe in each location where it is installed, Staley, 295
F.3d at 1343, the employer must ensure that each employee who requires
a respirator or training receives it. Hartford Roofing, 17 O.S.H. Cas.
(BNA) at 1366. The failure to provide an individual employee with an
appropriate respirator is a discrete instance of a violation of the
general respirator standard, 29 CFR 1910.134, because the standard
requires an individual act for each employee:
As long as employees are working in a contaminated environment,
the failure to provide each of them with appropriate respirators
could constitute a separate and discrete violation. * * * [T]he
condition or practice to which the standard is directed * * * [is]
the individual and discrete failure to provide an employee working
within a contaminated environment with a proper respirator.
17 O.S.H. Cas. (BNA) at 1366. Hartford Roofing reflects the guiding
principle that provisions requiring the employer to ``provide''
respirators to employees because of environmental or other hazards to
which they are exposed are intrinsically employee-specific because such
provisions require protection for employees as individuals. The
Commission reaffirmed this principle in subsequent cases. In Secretary
of Labor v. Sanders Lead Co., 17 O.S.H. Cas. (BNA) 1197, 1203 (Rev.
Comm'n 1995), the Commission held that the lead standard's requirement
for semiannual respirator fit-tests could be cited on a per-employee
basis because it involved evaluation of individual employees'
respirators under certain conditions peculiar to each employee.
Furthermore, in Catapano, 17 O.S.H. Cas. (BNA) at 1780, the Commission
indicated that the general construction training standard, Sec.
1926.21(b)(2), clearly supported per-employee citations for each
individual employee not trained. However, the Commission in Catapano
found that the Secretary had not cited training violations on a per-
employee basis, but rather, had impermissibly cited the employer for
each inspection in which employees were found not to have been trained.
Thus, the Commission affirmed only a single violation of the standard.
Ibid.
In the Ho decision, the Commission veered from these principles and
adopted an analysis focused on the presence or absence of certain
specific words in the respirator or training provision at issue. 20
O.S.H. Cas. (BNA) at 1369-1380. Under this approach, the agency's
ability to enforce respirator and training violations by per-employee
citations in appropriate cases turns on minor variations in the wording
of the requirements.
Erik Ho, a Texas businessman, was cited for multiple violations of
the construction asbestos respirator and training provisions. Ho's
conduct was particularly flagrant. He hired eleven undocumented Mexican
employees to remove asbestos from a vacant building without providing
any of them with appropriate protective equipment, including
respirators, and without training them on the hazards of asbestos. Ho
persisted in exposing the unprotected, untrained employees to asbestos
even after a city building inspector shut down the worksite, at which
point Ho began operating secretly at night behind locked gates. The
citations charged Ho with separate violations for each of the eleven
employees not provided a respirator. The respirator provision then in
effect stated, in relevant part, that ``[t]he employer shall provide
respirators and ensure that they are used * * * [d]uring all Class I
asbestos jobs.'' Sec. 1926.1101(h)(1)(i). Ho was also charged with
separate violations for each of the eleven employees not trained in
accordance with Sec. 1926.1101(k)(9)(i) and (k)(9)(viii). Paragraph
(k)(9)(i) requires the employer to ``institute a training program for
all [exposed] employees and * * * ensure their participation in the
program;'' paragraph (k)(9)(viii) states that ``[t]he training program
shall be conducted in a manner that the employee is able to understand
* * * [and] the employer shall ensure that each such employee is
informed of [specific hazard information].''
A divided Occupational Safety and Health Review Commission vacated
all but one of the respirator and one of the training violations.
According to the majority, the requirement to provide respirators and
ensure their use involves the single act of providing respirators to
the employees in the group performing the specified asbestos work. 17
O.S.H. Cas. (BNA) at 1372. Thus, the majority concluded, ``the plain
language of the standard addresses employees in the aggregate, not
individually.'' Ibid. The majority reached this conclusion despite
acknowledging that various subparagraphs immediately following the
cited provision required particularly employee-specific actions, such
as fit-testing individual employees. Ibid. n. 12.
The majority adopted an equally narrow interpretation of the
requirement in Sec. 1926.1101(k)(9)(i) to ``institute a training
program'' for all [exposed] employees and ensure their participation in
the program.''
[[Page 48339]]
According to the majority, this language requires the employer to have
a single training program for all exposed employees and imposes a
single duty to train employees generally. Id. at 1374. Although
paragraph (k)(9)(viii) explicitly states that, ``the employer shall
ensure that each such employee is informed of [specific hazard
information],'' the majority found that ``the mere use of the
terminology `each such employee' under (k)(9)(viii) does not
demonstrate that these [training] provisions define the relevant
workplace exposure in terms of exposure of individual employees.''
Ibid. One Commissioner dissented, arguing that the plain wording of the
respirator and training provisions authorizes OSHA to treat as a
discrete violation each employee not provided and required to use an
appropriate respirator, and each employee not trained in asbestos
hazards. Id. at 1380-86 (Rodgers, Comm'r dissenting).
A divided panel of the U.S. Court of Appeals for the Fifth Circuit
affirmed the result reached by the Commission, in part on different
grounds than those articulated by the Commission majority. 401 F.3d at
368-376. The majority agreed with the Commission that the language of
the respirator provision did not support per-employee penalties for
Ho's failure to provide a respirator to each employee who performed
covered asbestos work. Id. at 373-74. Disagreeing with the Commission,
the majority found that the language of the training provision permits
per-employee citations. Id. at 372. However, the majority concluded
that the agency's decision to cite and penalize Ho for each untrained
employee was unreasonable absent circumstances showing that different
training actions would have been required because of uniquely employee-
specific factors. Id. at 373. Judge Garza dissented. He read the
respirator provision to require action on a per-employee basis. Id. at
379 (Garza J. dissenting). He also found no support for the majority's
``employee-specific unique circumstances'' requirement under the
training provision and concluded that, in any event, the requirement
was met by Ho's failure to train the employees and ensure that they
understood the training. Id. at 379-80.
In two subsequent decisions, the Commission stated that respirator
and training requirements worded slightly differently from those at
issue in Ho may be cited on a per-employee basis. In Secretary of Labor
v. Manganas Painting Co., 21 O.S.H. Cas. (BNA) 1964, 1998-99 (Rev.
Comm'n 2007), the Commission indicated that the initial respiratory
protection paragraph of the 1993 construction lead standard, Sec.
1926.62(f)(1), authorizes per-employee citations. That paragraph
states, in relevant part, ``[w]here the use of respirators is required
under this section the employer shall provide * * * and assure the use
of respirators which comply with the requirements of this paragraph.''
The Commission distinguished Ho on the ground that the language in the
cited provision requiring the employer to provide respirators ``which
comply with the requirements of this paragraph'' means that compliance
with paragraph (f)(1) is predicated upon compliance with all of the
requirements in paragraph (f), including fit-testing requirements in
another section of the paragraph that are uniquely employee-
specific.\2\ Ibid. In contrast, in Ho the language requiring compliance
with such provisions immediately followed the cited initial provision,
and the Commission declined to read the initial provision in light of
the subsequent requirements. However, the Commission's interpretation
in Manganas that the lead standard authorizes per-employee violations
may not be part of the holding of the case. After stating that the
standard could be cited on a per-employee basis, the Commission then
stated that it declined to determine whether Manganas's failure to
provide respirators to multiple employees constituted a single
violation or multiple violations on the ground that the amount of the
total penalty would not be affected under the circumstances of that
case. Id. at 1999.
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\2\ The current version of Sec. 1926.62(f)(1) is virtually
identical to the 1993 version at issue in Manganas. The provision
now states in relevant part, ``[f]or employees who use respirators
required by this section, the employer must provide respirators that
comply with the requirements of this paragraph.''
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In December 2007, the Commission decided GM. 2007 WL 4350896. The
case involved citations issued in 1991 charging GM, inter alia, with
separate violations for each of six employees not trained in accordance
with the lockout/tagout (LOTO) standard's initial training paragraph,
Sec. 1910.147 (c)(7)(i). This paragraph states, in relevant part, that
``[t]he employer shall provide training to ensure that the purpose and
function of the energy control program are understood by employees . *
* * (A) Each authorized employee shall receive training . * * *'' The
citation also charged GM with separate violations for each of twelve
employees not retrained in accordance with the standard's retraining
provision, Sec. 1910.147(c)(7)(iii)(B), which requires retraining
whenever the employer is aware of inadequacies in the employee's
knowledge or use of the energy control procedures.
The Commission affirmed all of these per-employee violations. It
held that the LOTO training paragraph, unlike the initial paragraph at
issue in Ho, states that ``each employee'' is to be trained and
therefore ``imposes a specific duty on the employer to train each
individual employee.'' 2007 WL 4350896 at 36. The Commission also noted
that other requirements in paragraph (c)(7) clarify the individualized
nature of the training duty, such as the requirement to record the
employees' names and dates of training; that the preamble indicates
that training involves consideration of employee-specific factors, and
that ``the core concept of lockout/tagout is personal protection.'' Id.
at 37 (emphasis added). The Commission did not refer to the portion of
its Ho decision that rejected reliance on ``each employee'' language in
the training requirement at issue there or that refused to consider any
requirements in the standard other than the cited initial provision in
deciding the nature of the employer's duty.
For similar reasons, the Commission affirmed separate violations of
the requirement to retrain whenever the employer becomes aware of
deviations from or inadequacies in the employee's knowledge or use of
the energy control procedures. 29 CFR 1910.147 (c)(7)(iii)(B). This
provision, the Commission found, ``specifically targets deviations from
or inadequacies in the employee's knowledge or use of the energy
control procedures, an occurrence that would trigger an employer's
obligation to retrain only that particular employee.'' Ibid. (internal
quotations omitted).
The Commission held that because the training provisions impose a
specific duty on the employer to train each employee, it is irrelevant
whether the employer may choose to provide the required training
collectively, such as holding a single training session for all
employees. Id. at 36. Under the wording of the standard, the Commission
concluded, ``any failure to train would be a separate abrogation of the
employer's duty to train each untrained employee.'' Ibid. The
Commission distinguished the Ho decision on the ground that the
language at issue there, requiring ``a training program for all
employees,'' pertained to a single group of employees collectively
exposed to identical hazards. Ibid.
C. The Agency's Interpretation
The Agency's position is that despite minor differences in their
wording, all respirator and training provisions in
[[Page 48340]]
safety and health standards authorize the assessment of a separate
penalty for each employee not protected or trained. All of these
provisions impose the same basic duty on the employer to protect
employees individually--by providing personal protective equipment,
such as a respirator, or by communicating hazard information through
training. The individualized nature of the duty to comply does not
change because of the presence or absence of the words ``each
employee,'' or other words explicitly stating that the employer's duty
runs to each individual employee.
The employee-specific nature of the employer's duty to provide PPE
and training may be demonstrated in several different ways. First, the
employer must take a separate abatement action for each individual
employee. Where respirators are required, the employer must give a
separate respirator to each individual employee. Where training is
required, the employer must impart specific hazard information to each
individual employee. The employee-specific nature of the training
requirements is not altered because the employer may choose to conduct
training in a group session. As the Commission held in GM, the duty to
provide training is specific to each individual employee subject to the
requirement. 2007 WL 4350896. See also Ho, 401 F.3d at 380 (Garza, J.
dissenting). Thus regardless of how the training is conducted, the
employer must ensure that each individual employee receives the
required information at the appropriate time.
Second, unlike standards that do not permit per-employee citations,
the PPE and training requirements logically permit the employer to
comply for one employee and not another. In Hartford Roofing, the
Commission found that installation of a motion stopping system at a
roof edge was a single discrete action unaffected by the number of
employees on the roof, and therefore could not be cited on a per-
employee basis. 17 O.S.H. Cas. (BNA) at 1368-69. The employer could not
have complied for one employee without also complying for all other
employees exposed to the hazard.
By contrast, the actions necessary to comply with PPE and training
requirements for one employee do not constitute compliance for any
other employee. To fully comply with these requirements the employer
must take as many abatement actions as there are employees to be
protected. The fact that the employer may comply for one or a few
employees, while leaving many others unprotected, strongly supports the
availability of per-employee citations. Ho, 401 F.3d at 379 (Garza, J.
dissenting).
Finally, compliance with the PPE and training provisions requires
the employer to account for differences among individual employees. To
comply with the respirator requirements, the employer must, among other
things, select respirators based on the specific respiratory hazards to
which the employee is exposed and perform individual face-fit tests.
E.g., Sec. 1910.134(d), (f). To comply with training requirements, the
employer must ensure that each employee receives the required
information. E.g., Sec. 1910.1001(j)(7)(iii) (asbestos). The employer
must therefore account for factors such as when individual employees
commence work subject to the training requirement and when they are
available for training. Individual language differences also play a
role. For example, if one employee understands only English, and
another employee understands only Spanish, training must account for
this difference. The actions necessary to fit a respirator to an
individual employee's face and to ensure that hazard information is
received by an employee entail consideration of individual factors.
1. The Ho Decision
The Secretary believes that the Commission majority's analysis in
Ho is fundamentally flawed for several reasons discussed below. We
discuss this issue because it is important to an understanding of the
Secretary's interpretation of her standards and of the proposed
clarifying amendments to the PPE and training provisions. This
rulemaking is intended to confirm the interpretation the Secretary
intends when she promulgates standards of this kind.
a. The Ho majority's analysis is inconsistent with the proper
analytical framework outlined above. The requirement to provide
respirators because of environmental hazards involves a separate
discrete act for each employee exposed to the hazard. Hartford Roofing,
17 O.S.H. Cas. (BNA) at 1367. Eric Ho had eleven employees performing
Class I asbestos work; therefore he had to provide eleven separate
respirators and ensure that each of the eleven employees used the
devices. Ho also had to ensure that each employee received training on
asbestos hazards. The cited asbestos respirator and training provisions
required analytically distinct acts for each employee, and therefore
permitted per-employee citations.
b. The majority's analysis does not reflect Commission precedent
preceding Ho, or more recent Commission caselaw. Hartford Roofing
reflects the guiding principle distinguishing between requirements that
apply individually to each employee, such as respirator provisions, and
those that address hazardous conditions affecting employees as a group.
17 O.S.H. Cas. (BNA) at 1366-67. Manganas, recognizes the principle
that a requirement to provide respirators should be read in light of
the associated provisions requiring individualized actions such as
individual fit-testing. 21 O.S.H. Cas. (BNA) at 1998. And GM holds that
a training requirement containing ``each employee'' language, which was
also contained in the standard cited in Ho, imposes a specific duty to
train each individual employee and may be cited on a per-employee
basis. 2007 WL 4350896 at 24. Ibid.
c. The majority's analysis amounts to a ``magic words'' test for
determining the nature of the duty to comply with PPE and training
requirements that is at odds with the Secretary's intention and does
not make practical sense. There is only a minor difference between the
respirator standard in Manganas and that in Ho. In Manganas the
requirement to comply with the provisions of the standard as whole is
stated explicitly in the standard's first sentence, while in Ho the
requirement was implicit in that sentence and was explicitly stated by
the remaining provisions of the standard. Similarly, in GM the ``each
employee'' language was in the first enumerated subsection of the
training standard, while in Ho it was in a later subsection. As the
preceding discussion makes clear, the agency did not intend that minor
wording variations among various PPE and training provisions affect the
agency's ability to cite on a per-employee basis. Furthermore, there is
no sound reason for distinguishing among the various PPE and training
requirements based on minor differences in wording when all such
requirements impose the same basic duty--provision of appropriate
respirators and training to each employee covered by the requirements.
The requirements at issue in Ho were not substantively different than
those in Manganas and GM, and there should be no difference in the
availability of per-employee citations under these requirements.
Moreover, applying the Ho majority's analysis creates perverse
incentives in that an employer who provides no respirators at all is
eligible for only a single citation under the respirator provision at
issue in Ho,
[[Page 48341]]
while the employer who provides respirators, but fails to comply with
the specific fit-test requirements is liable for per-employee
violations.
Although the Secretary does not acquiesce in the Ho majority's
interpretation of the asbestos respirator and training requirements at
issue, the agency is proposing to modify the language of most of the
initial respirator provisions adopted in the 1998 rule to expressly
state that the employer must provide each employee an appropriate
respirator. There are several reasons for this. First, although the
Secretary believes that the respirator requirements clearly support
per-employee citations, employers may have some uncertainty in light of
the Ho decision. Second, although the Commission indicated in Manganas
that language similar to that in the 1998 rule permits per-employee
penalties, that aspect of the decision could be viewed as dicta.
Finally, the 1998 respirator language is virtually the same in all
standards with respirator requirements, and the same wording can be
used to amend all of the standards. The agency intends the proposed new
language to clearly convey that the respirator provisions in all OSHA
standards impose a duty to provide an appropriate respirator to each
individual employee that requires respiratory protection. The failure
to provide an appropriate respirator to each such employee may expose
the employer to per-employee citations.
OSHA also believes that the existing language of the training
provisions in safety and health standards makes reasonably clear that
the training obligation extends to each individual employee. Some of
these provisions explicitly state that ``each employee'' must be
trained. For example, the process safety management standard states
that ``each employee presently involved in operating a process * * *
must be trained.'' 29 CFR 1910.119(g)(i); 29 CFR 1926.64(g)
(construction); the logging standard states that ``[t]he employer shall
provide training for each employee,'' Sec. 1910.266(i); the vinyl
chloride standard states that ``[e]ach employee engaged in vinyl
chloride or polyvinyl chloride operations shall be provided training,''
Sec. 1910.1017(j); and the chromium standard states that ``[t]he
employer shall ensure that each employee can demonstrate knowledge of
[the Sec. 1926.1126(j)(2) (construction). The Commission in GM held
that provisions that explicitly require training for ``each employee''
may be cited separately for each employee not trained. GM, 2007 WL
4350896 at 36. Accordingly, these provisions require no amendatory
action.
Some standards contain provisions stating that the employer must
train ``employees'' exposed to the hazard addressed by the standard.
For example, the hazardous waste operations standard states that
``[a]ll employees [exposed to hazardous substances] shall receive
training,'' Sec. 1910.120 (e)(1); while the benzene standard states
that ``the employer shall provide employees with information and
training at the time of their initial assignment to a work area where
benzene is present.'' Sec. 1910.1028(j)(3)(i). There is no substantive
difference between the requirement to train ``employees'' exposed to a
hazard and the requirement to train ``each employee'' exposed to the
hazard. Under both formulations, the exposed employee is the subject of
the training requirement, and compliance cannot be achieved unless and
until each such employee receives the required training. Therefore
provisions requiring the employer to provide training to employees
exposed to a hazard, or ensure that employees receive training, or
contain similar language, are plainly susceptible to per-employee
citations in appropriate cases. GM, 2007 WL 4350896 at 36. No
additional language is needed to clarify the intent of these
provisions.
A minority of training provisions state that the employer must
``institute a training program for all [exposed] employees and ensure
their participation in the program'' or contain similar language. See
e.g., Sec. 1910.1001(j)(7)(i) (asbestos); Sec. 1910.1018(o)(1)(i)
(inorganic arsenic); Sec. 1910.1025(l)(1)(ii) (lead); Sec.
1910.1027(m)(4)(i) (cadmium). The Agency disagrees with the Ho
majority's conclusion that this language requires the employer to have
a training program, but does not impose a specific duty to train each
exposed employee. The requirement that the employer ``institute'' the
training program and ensure employee ``participation'' indicates that
the focus of the provision is on the communication of hazard
information to each employee. Furthermore, virtually all of the
provisions requiring a training program also contain language
explicitly stating that ``each employee'' must be informed of specific
hazard information. See Sec. 1910.1001(j)(7)(iii) (asbestos); Sec.
1910.1018(o)(1)(ii) (inorganic arsenic); Sec. 1910.1025(l)(1)(v)
(lead); Sec. 1910.1027(m)(4)(iii) (cadmium). Accordingly, the duty to
``institute a training program'' runs to each individual employee
subject to the training requirement, and a discrete violation occurs
for each such employee who does not receive training.
Ho, however, states the Commission's current interpretation as to
the meaning of the construction asbestos standard's training provision.
The Ho majority considered the language in Sec. 1926.1101(k)(9)(i) to
impose a duty to have a training program for employees collectively.
The failure to train each of a number of individual employees on
asbestos hazards was therefore considered a single violation. Although
the Secretary does not accept the Ho majority's interpretation, the
decision may be a significant impediment to the consistent and
effective enforcement of the asbestos standard and other standards that
contain similar wording. Accordingly, OSHA preliminarily believes it is
appropriate to amend those standards that require the employer to
``institute a training program'' to clarify that the employer's duty is
to train each employee in accordance with the training program. The
revised language expressly identifies the subject of the training
requirement as ``each employee'' and therefore imposes a ``specific
duty on the employer to train each individual employee.'' GM, 2007 WL
430896 at 36. The agency intends the revision to clarify without
question that the failure to train each individual employee covered by
the training requirement may be considered a separate violation with a
separate penalty.
IV. Summary and Explanation of the Proposed Rule
OSHA proposes to amend the standards in Parts 1910, 1915, 1917,
1918 and 1926 to provide additional clarity and consistency as to the
individualized nature of the employer's duty to provide personal
protective equipment, including respirators, and training under
standards in these parts. The proposed amendments include revisions to
existing language as well as new sections to be added to the
introductory subparts to Parts 1910 through 1926. The agency's reasons
for proposing to clarify the intent of the personal protective
equipment and training requirements are discussed in the preceding
sections. The following discussion addresses the actual proposed
language and how it is to be interpreted.
New Sections Added to Subpart A of Parts 1910 Through 1918, and Subpart
C of Part 1926
OSHA proposes to add a new section to subpart A of parts 1910,
1915, 1917 and 1918, and to subpart C of part 1926. These subparts
contain general
[[Page 48342]]
information about the scope and applicability of the standards in each
part. The proposed new sections contain two paragraphs, which are
identical for each new section. The first paragraph expressly states
that standards in the part requiring employers to provide PPE,
including respirators, impose a separate compliance duty to each
employee required to use the PPE, and that each failure to provide PPE
to an employee may be considered a separate violation. The new
paragraph applies to all standards in the part that require provision
of PPE, regardless of their wording. For example, Sec. 1910.132
requires employers to provide PPE when needed, and also recognizes that
an employer may allow an employee who voluntarily provides appropriate
PPE he or she owns to use that PPE in place of the employer-provided
equipment. See Sec. 1910.132 (h)(6). The underlying obligation is the
employer's, and each employee who lacks required PPE may be considered
a separate violation. The second paragraph expressly states that
standards in the part requiring training on hazards and related
matters, such as standards requiring that employees receive training or
that the employer train employees, provide training to employees or
institute or implement a training program, impose a separate compliance
duty to each employee covered by the requirement. Each failure to train
an employee may be considered a separate violation.
The new sections reflect the agency's intent, as discussed in the
preceding sections of this preamble, that standards requiring the
employer to protect employees by providing personal protective
equipment or imparting hazard information through training impose a
specific duty to protect each individual employee covered by the
requirement. The new sections are placed in the introductory subparts
of each part because the principle expressed in each section applies
generally to all PPE and training standards in the part. OSHA intends
the new sections to apply regardless of differences in wording between
the PPE and training provisions in the various parts. The new sections
provide unmistakable notice to employers that they are responsible for
protecting each employee covered by the PPE and training standards, and
consequently, that they may be subject to per-employee penalties for
violations.
Revisions to Specific Respirator Paragraphs
OSHA proposes to revise the initial respiratory protection
paragraph in a number of standards in parts 1910, 1915 and 1926 to add
language explicitly stating that the employer must provide an
appropriate respirator to each employee required to use a respirator
and implement a respiratory protection program for each such employee.
The affected standards include the general respirator standard, Sec.
1910.134, most general industry toxic-substance health standards in
Subpart Z of part 1910, the shipyard employment asbestos standard,
Sec. 1915.1101, and the construction industry methylenedianiline,
lead, asbestos, and cadmium standards, Sec. Sec. 1926.60, 62, 1101,
and 1127.
Section 1910.134 contains general respiratory protection
requirements for General Industry (part 1910), Shipyards (part 1915),
Marine Terminals (part 1917), Longshoring (part 1918), and Construction
(part 1926). The existing section 1910.134(a)(2) states:
[r]espirators shall be provided by the employer when such equipment
is necessary to protect the health of the employee. The employer
shall provide the respirators which are applicable and suitable for
the purposes intended. The employer shall be responsible for the
establishment and maintenance of a respiratory protection program
which shall include the requirements outlined in paragraph (c) of
this section.
OSHA proposes to revise the first and last sentences of paragraph
(a)(2) of section Sec. 1910.134. As proposed, the first sentence will
read, ``[r]espirators shall be provided by the employer to each
employee when such equipment is necessary to protect the health of such
employee'' (emphasis added). As proposed, the last sentence will read,
``[t]he employer shall be responsible for the establishment and
maintenance of a respiratory protection program, which shall include
the requirements outlined in paragraph (c) of this section, for each
employee required by this section to use a respirator'' (emphasis
added). Section 1910.134, as revised in this rulemaking, will apply to
construction under section 1926.103.
OSHA proposes similar revisions to the initial respirator
paragraphs of toxic substance standards in parts 1910, 1915 and 1926.
The initial respiratory protection paragraph of the construction
asbestos standard, which is virtually identical to all respirator
sections proposed for revision in this rule, states, in relevant part:
Section 1926.1101 Asbestos
* * * * *
(h) Respiratory protection. (1) General. For employees who use
respirators required by this section, the employer must provide
respirators that comply with the requirements of this paragraph.
Respirators must be used during:
* * *
(2) Respirator program. (i) The employer must implement a
respiratory protection program in accordance with Sec. 1910.134 (b)
through (d) (except (d)(1)(iii)), and (f) through (m).
OSHA proposes to revise the first sentence of paragraph (h)(1) of
section 1926.1101 to state, ``[f]or employees who use respirators
required by this section, the employer must provide each employee an
appropriate respirator that complies with the requirements of this
paragraph'' (emphasis added). The Agency proposes to revise paragraph
(h)(2)(i) to state, ``[t]he employer must implement a respiratory
protection program in accordance with Sec. 1910.134 (b) though (d)
(except (d)(1)(iii)), and (f) through (m) for each employee required by
this section to use a respirator'' (emphasis added). Identical language
revisions are proposed for the initial respirator paragraphs in other
toxic-substance health standards; only the section and paragraph
numbers are different.
OSHA preliminarily believes that these revisions are appropriate in
light of the Ho majority's narrow interpretation of the asbestos
respirator provision. OSHA is adding explicit ``each employee''
language to section 1910.134 and to the initial respirator paragraphs
of toxic-substance health standards to address the Commission's concern
that this language is necessary to inform employers of their specific
duty to provide a respirator to each individual employee required to
use a respirator. The revisions will improve these standards by
conforming them to each other and to the revised Sec. 1910.134, and
contribute to a greater awareness of the importance of full compliance
with these important requirements.
Revisions to Specific Training Paragraphs
OSHA proposes to revise those training provisions in safety and
health standards that require the employer to institute or provide a
training program for employees exposed to hazards. The Commission has
indicated that the requirement in section 1926.1101(k)(9)(i) to
``institute a training program for all employees who are likely to be
exposed in excess of a PEL and for all employees who perform Class I
through IV asbestos operations, and shall ensure their participation in
the program'' is not sufficiently explicit as to the employer's duty to
train each employee. A number of other standards
[[Page 48343]]
include similarly worded training provisions. Accordingly, this
proposed rule would revise section 1926.1101(k)(9)(i) to state, in
relevant part, ``[t]he employer shall train each employee who is likely
to be exposed in excess of a PEL, and each employee who performs Class
I through IV asbestos operations, in accordance with the requirements
of this section'' (emphasis added). Similar revised language is
proposed for training sections in other standards that contain similar
wording to section 1926.1101(k)(9)(i). The amended training provisions
will conform to the training provision that the Commission in GM
interpreted to permit per-employee citations.
V. 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, OSHA provided ACCSH with a copy of
the draft proposed construction amendments. ACCSH considered the
proposed amendments on May 15, 2008 and made the following
recommendation: ``ACCSH recommends that OSHA adopt the proposed
standard on Clarification of Remedy for Violation of Requirements To
Provide Personal Protective Equipment and Training.''
VI. Preliminary Economic Analysis
OSHA has determined that the proposed standard is not an
economically significant regulatory action under Executive Order (E.O.)
12866. E.O. 12866 requires regulatory agencies to conduct an economic
analysis for rules that meet certain criteria. The most frequently used
criterion under E.O. 12866 is that the rule will impose annual costs on
the economy of $100 million or more. Neither the benefits nor the costs
of this rule exceed $100 million.
OSHA has also determined that the proposed standard is not a major
rule under the Congressional Review provisions of the Small Business
Regulatory Enforcement Fairness Act. The Regulatory Flexibility Act of
1980 (RFA), as amended in 1996, requires OSHA to determine whether the
Agency's regulatory actions will have a significant impact on a
substantial number of small entities. OSHA's analysis, based on the
analysis in this section of the Preamble as well as the later section
``OMB Review Under the Paperwork Reduction Act'' below, indicates that
the proposed rule will not have significant impacts on a substantial
number of small entities.
The proposal inserts two new paragraphs in the general industry
health and safety standards (Part 1910), the shipyard employment
standards (Part 1915), the marine terminal standards (Part 1917), the
longshoring standards (Part 1918), and the construction standards (Part
1926). The new provisions, identical in each part, are as follows:
(a) Personal protective equipment. Standards in this part
requiring the employer to provide personal protective equipment
(PPE), including respirators, because of hazards to employees impose
a separate compliance duty to each employee covered by the
requirement. The employer must provide PPE to each employee required
to use the PPE, and each failure to provide PPE to an employee may
be considered a separate violation.
(b) Training. Standards in this part requiring training on
hazards and related matters, such as standards requiring that
employees receive training or that the employer train employees,
provide training to employees, or institute or implement a training
program, impose a separate compliance duty to each employee covered
by the requirement. The employer must train each affected employee
in the manner required by the standard, and each failure to train an
employee may be considered a separate violation.
These provisions do not require employers to provide any new or
additional PPE, respiratory equipment, or training that is not already
required in existing standards. (When the existing standards were
promulgated, OSHA estimated the costs to employers of the PPE and
respiratory equipment that would be required.) The proposed provisions
therefore impose no new cost burden. It has, however, been OSHA's
enforcement policy in appropriate cases to cite employers for each
separate violation regarding PPE, respiratory protection, and training.
These provisions will serve to make explicit the Agency's policy and
warn employers of the potential cost and penalties of violations. The
Agency's economic analyses of its occupational and health standards
assume employers' full compliance for estimating the cost, or employer
burden, of the standards it promulgates. For this reason, although the
revisions may change the frequency or number of violations and amount
of fines assessed, these are not material for estimating new costs to
comply with a standard.
The Agency has also editorially revised provisions for respiratory
protection, respiratory programs, and employee training across many
existing standards. These editorial revisions emphasize the employer's
responsibility to provide protection to each employee. For example, the
existing language of Sec. 1910.134(a)(2) ``Respirators shall be
provided by the employer when such equipment is necessary to protect
the health of the employee'' is replaced in the proposal by: ``A
respirator shall be provided to each employee when such equipment is
necessary to protect the health of such employee.'' These changes again
do not impose any additional employer responsibility for providing
respiratory protection, respiratory programs, or training for
employees. And therefore there are no costs attributed to these
proposed revisions. The existing standards and paragraphs that are
affected by the new, substitute language are identified above in the
Summary and Explanation part of this Preamble as well as the regulatory
text following the Preamble.
The proposed rule is technologically feasible because it does not
require employers to provide any additional equipment, such as
respirators, or training not already required in existing standards.
The Agency considered regulatory and non-regulatory alternatives to the
proposed rule. Because the newly proposed paragraphs and proposed
revisions to existing paragraphs merely clarify employer
responsibilities, especially in regard to the Agency's policy of
issuing violations, non-regulatory alternatives are not an appropriate
or relevant way to affect those changes and better inform employers.
Finally, because the proposed rule does not impose new costs on
employers, it is economically feasible.
VII. Regulatory Flexibility Certification
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq. (as amended), OSHA examined the regulatory requirements of the
proposed rule to determine if they would have a significant economic
impact on a substantial number of small entities. As indicated in
section VI (``Preliminary Economic Analysis'') of this preamble, the
proposed rule is expected to have no effect on compliance costs and
regulatory burden for all employers, large and small. Accordingly, the
Agency certifies that the proposed rule would not have a significant
economic impact on a substantial number of small entities.
VIII. Environmental Impact Assessment
OSHA has reviewed the proposed rule in accordance with the
requirements of the National Environmental Policy Act (NEPA) of 1969
(42 U.S.C. 4321 et seq.), the regulations of the Council on
[[Page 48344]]
Environmental Quality (40 U.S.C. part 1500), and the Department of
Labor's NEPA procedures (29 CFR part 11). The Agency finds that the
revisions included in the proposal would have no major negative impact
on air, water or soil quality, plant or animal life, the use of land or
other aspects of the environment.
IX. Federalism
OSHA has reviewed this proposed rule in accordance with E.O. 13132
regarding Federalism. E.O. 13132 requires that agencies, to the extent
possible, refrain from limiting State policy options, consult with
States prior to taking any actions that would restrict State policy
options, and take such actions only when there is clear constitutional
authority and the presence of a problem of national scope.
Additionally, E.O. 13132 provides for preemption of State law only if
there is a clear Congressional intent for the Agency to do so. Any such
preemption is to be limited to the extent possible.
Section 18 of the OSH Act, 29 U.S.C. 667, expresses Congress' clear
intent to preempt State laws relating to issues on which Federal OSHA
has promulgated occupational safety and health standards. A state can
avoid preemption by obtaining Federal approval of a State plan for the
development of such standards and their enforcement. Occupational
safety and health standards developed by such State Plan States must,
among other things, be at least as effective in providing safe and
healthful employment and places of employment as the Federal standards.
The Agency concludes that this proposed rule complies with E.O.
13132. In States without State Plans, Congress has expressly provided
for Federal preemption on issues addressed by an occupational safety
and health standard. The final rule would preempt State law in the same
manner as any OSHA standard. States with State Plans are free to
develop their own policy options on the issues addressed by this
proposed rule, provided their standards are at least as effective as
the final rule. State comments are invited on this proposal and will be
fully considered prior to promulgation of a final rule.
X. Unfunded Mandates
For the purposes of the Unfunded Mandates Reform Act of 1995, 2
U.S.C. 1501, et seq., as well as E.O. 12875, this proposed rule does
not include any Federal mandate that may result in increased
expenditures by State, local, and tribal governments, or increased
expenditures by the private sector of more than $100 million.
XI. OMB Review Under the Paperwork Reduction Act of 1995
This proposed rule does not contain collection-of-information
requirements subject to review by OMB under the Paperwork Reduction Act
of 1995, 44 U.S.C. 3501 et seq. and OMB regulations at 5 CFR part 1320.
XII. State Plan States
Those States and Territories with OSHA-approved State Plans must
revise their existing standards within six months of the publication
date of the final rule or show OSHA why there is no need for action,
e.g., because an existing State standard covering this area is ``at
least as effective as'' the revised Federal standard.
XIII. Public Participation
Submission of Comments and Access to Docket
OSHA invites comment on all aspects of the proposed rule. The
Agency will carefully review and evaluate these comments, information
and data, as well as all other information in the rulemaking record, to
determine how to proceed. You may submit comments in response to this
document (1) electronically at http://www.regulations.gov, which is the
Federal eRulemaking Portal; (2) by facsimile (FAX); or (3) by hard
copy. All comments, attachments and other material must identify the
Agency name and the OSHA docket number [OSHA-2008-0031] for this
rulemaking. You may supplement electronic submissions by uploading
document files electronically. If, instead, you wish to mail additional
materials in reference to an electronic or fax submission, you must
submit three copies to the OSHA Docket Office (see ADDRESSES section).
The additional materials must clearly identify your electronic comments
by name, date, and docket number [OSHA-2008-0031], so OSHA can attach
them to your comments.
Because of security-related procedures, the use of regular mail may
cause a significant delay in the receipt of comments. For information
about security procedures concerning the delivery of materials by hand,
express delivery, messenger or courier service, please contact the OSHA
Docket Office at (202) 693-2350 (TTY (877) 889-5627).
Comments and submissions in response to this Federal Register
notice are posted without change at http://www.regulations.gov.
Therefore, OSHA cautions commenters about submitting personal
information such as social security numbers and date of birth. Exhibits
referenced in this Federal Register document are posted at http://www.regulations.gov. Although all submissions in response to this
Federal Register notice and exhibits referenced in this Federal
Register notice are listed in the http://www.regulations.gov indexes,
some information (e.g., copyrighted material) is not publicly available
to read or download through those Web pages. All submissions and
exhibits, including copyrighted material, are available for inspection
and copying at the OSHA Docket Office. Information on using http://www.regulations.gov to submit comments and access dockets is available
at the Web page's User Tips link. Contact the OSHA Docket Office for
information about materials not available through the Web page and for
assistance in using the Internet to locate docket submissions.
Electronic copies of this Federal Register document are available
at http://www.regulations.gov. This document, as well as news releases
and other relevant information, also is available at OSHA's Web page at
http://www.osha.gov.
Requests for Informal Public Hearings
Under section 6(b)(3) of the OSH Act (29 U.S.C. 655) and Sec.
1911.11, interested parties may request an informal public hearing. If
a timely hearing request is made, OSHA tentatively intends to schedule
the hearing to commence in Washington, DC on October 3, 2008. Hearing
requests must be submitted to the OSHA Docket Office by September 18,
2008, and must comply with the following:
1. Hearing requests may only be submitted by one of the following
methods: electronically, fax, express mail, hand delivery, messenger or
courier service (see ADDRESSES section above).
2. Hearing requests must include the name and address of the person
submitting them;
3. The hearing requests must specify with particularity the
provision of the proposed rule to which each objection is taken and the
basis for the objection;
4. Each hearing request must be separately stated and numbered; and
5. The hearing requests must be accompanied by a detailed summary
of the evidence proposed to be presented at the requested hearing.
If a hearing is held, OSHA will allow an additional 30-day period
for submission of post-hearing comments before closing the public
comment period.
[[Page 48345]]
List of Subjects
29 CFR Part 1910
Chemicals, Gases, Hazardous substances, Occupational safety and
health, Protective equipment.
29 CFR Part 1915
Chemicals, Gases, Hazardous substances, Longshore and harbor
workers, Occupational safety and health, Protective equipment.
29 CFR Part 1917
Chemicals, Gases, Hazardous substances, Longshore and harbor
workers, Occupational safety and health, Protective equipment.
29 CFR Part 1918
Chemicals, Gases, Hazardous substances, Longshore and harbor
workers, Occupational safety and health, Protective equipment.
29 CFR Part 1926
Chemicals, Construction industry, Gases, Hazardous substances,
Occupational safety and health, Protective equipment.
Authority and Signature
This document was prepared under the direction of Edwin G. Foulke,
Jr., Assistant Secretary of Labor for Occupational Safety and Health,
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210. It is issued under sections 4, 6, and 8 of the Occupational
Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), section 941 of
the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 901 et
seq.), section 3704 of the Contract Work Hours and Safety Standards Act
(40 U.S.C. 3701 et seq.), Secretary of Labor's Order No. 5-2007, and 29
CFR part 1911.
Signed at Washington, DC this 12th day of August, 2008.
Edwin G. Foulke, Jr.,
Assistant Secretary of Labor for Occupational Safety and Health.
The Proposed Standard
Parts 1910, 1915, 1917, 1918 and 1926 of Title 29 of the Code of
Federal Regulations are hereby proposed to be amended as follows:
PART 1910--[AMENDED]
Subpart A--[Amended]
1. The authority citation for subpart A of 29 CFR part 1910 is
revised to read as follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, and 657); Secretary of
Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48
FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR
50017), 5-2002 (67 FR 65008), and 5-2007 (72 FR 31159), as
applicable.
Sections 1910.7, 1910.8, and 1910.9 also issued under 29 CFR
Part 1911. Section 1910.7(f) also issued under 31 U.S.C. 9701, 29
U.S.C. 9a, 5 U.S.C. 553; Pub. L. 106-113 (113 Stat. 1501A-222); and
OMB Circular A-25 (dated July 8, 1993) (58 FR 38142, July 15, 1993).
2. A new section 1910.9 is added to read as follows:
Sec. 1910.9 Compliance duties owed to each employee.
(a) Personal protective equipment. Standards in this part requiring
the employer to provide personal protective equipment (PPE), including
respirators, because of hazards to employees impose a separate
compliance duty to each employee covered by the requirement. The
employer must provide PPE to each employee required to use the PPE, and
each failure to provide PPE to an employee may be considered a separate
violation.
(b) Training. Standards in this part requiring training on hazards
and related matters, such as standards requiring that employees receive
training or that the employer train employees, provide training to
employees, or institute or implement a training program, impose a
separate compliance duty to each employee covered by the requirement.
The employer must train each affected employee in the manner required
by the standard, and each failure to train an employee may be
considered a separate violation.
Subpart G--[Amended]
3. The authority citation for subpart G of 29 CFR part 1910 is
revised to read as follows:
Authority: Secs. 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017),
5-2002 (67 FR 50017), or 5-2007 (72 FR 31159) as applicable; and 29
CFR part 1911.
4. In section 1910.95, paragraph (k)(1) is revised to read as
follows:
Sec. 1910.95 Occupational noise exposure.
* * * * *
(k) * * *
(1) The employer shall train each employee who is exposed to noise
at or above an 8-hour time weighted average of 85 decibels in
accordance with the requirements of this section. The employer shall
institute a training program and ensure employee participation in the
program.
* * * * *
Subpart I--[Amended]
5. The authority citation for subpart I of 29 CFR part 1910 is
revised to read as follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, and 657); Secretary of
Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48
FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR
50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160), as
applicable, and 29 CFR Part 1911.
6. In section 1910.134, paragraph (a)(2) is revised to read as
follows:
Sec. 1910.134 Respiratory protection.
* * * * *
(a) * * *
(2) A respirator shall be provided to each employee when such
equipment is necessary to protect the health of such employee. The
employer shall provide the respirators which are applicable and
suitable for the purpose intended. The employer shall be responsible
for the establishment and maintenance of a respiratory protection
program, which shall include the requirements outlined in paragraph (c)
of this section, for each employee required by this section to use a
respirator.
* * * * *
Subpart L--[Amended]
7. The authority citation for subpart L of 29 CFR part 1910 is
revised to read as follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, and 657); Secretary of
Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48
FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR
50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160), as
applicable, and 29 CFR Part 1911.
8. In section 1910.156, paragraph (f)(1)(i) is revised to read as
follows:
Sec. 1910.156 Fire brigades.
* * * * *
(f)* * *
(1)* * *
(i) The employer must ensure that respirators are provided to, and
used by, each fire brigade member, and that the respirators meet the
requirements of 29 CFR 1910.134 for each employee required by this
section to use a respirator.
* * * * *
[[Page 48346]]
Subpart Z--[Amended]
9. The authority citation for subpart Z of 29 CFR part 1910 is
revised to read as follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, and 657); Secretary of
Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48
FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR
50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160), as
applicable.
All of subpart Z issued under section 6(b) of the Occupational
Safety and Health Act, except those substances that have exposure
limits listed in Tables Z-1, Z-2, and Z-3 of 29 CFR 1910.1000. The
latter were issued under section 6(a) (29 U.S.C. 655(a)).
Section 1910.1000, Tables Z-1, Z-2, and Z-3 also issued under 5
U.S.C. 553, Section 1910.1000 Tables Z-1, Z-2, and Z-3 but not under
29 CFR part 1911 except for the arsenic (organic compounds),
benzene, cotton dust, and chromium (VI) listings.
Section 1910.1001 also issued under section 107 of the Contract
Work Hours and Safety Standards Act (40 U.S.C. 3704) and 5 U.S.C.
553.
Section 1910.1002 also issued under 5 U.S.C. 553 but not under
29 U.S.C. 655 or 29 CFR part 1911.
Sections 1910.1018, 1910.1029 and 1910.1200 also issued under 29
U.S.C. 653.
Section 1910.1030 also issued under Pub. L. 106-430, 114 Stat.
1901.
10. In section 1910.1001, paragraphs (g)(1), and (g)(2)(i), and
(j)(7)(i) are revised to read as follows:
Sec. 1910.1001 Asbestos.
* * * * *
(g) Respiratory protection.
* * *
(1) General. For employees who use respirators required by this
section, the employer must provide each employee an appropriate
respirator that complies with the requirements of this paragraph.
Respirators must be used during:
* * * * *
(2) * * *
(i) The employer must implement a respiratory protection program in
accordance with 29 CFR 134(b) through (d) (except (d)(1)(iii)), and (f)
through (m) for each employee required by this section to use a
respirator.
* * * * *
(j) * * *
(7) * * *
(i) The employer shall train each employee who is exposed to
airborne concentrations of asbestos at or above the PEL and/or
excursion limit in accordance with the requirements of this section.
The employer shall institute a training program and ensure employee
participation in the program.
* * * * *
11. In section 1910.1003, paragraphs (c)(4)(iv) and (d)(1) are
revised to read as follows:
Sec. 1910.1003 13 Carcinogens (4-Nitrobiphenyl, etc.).
* * * * *
(c) * * *
(4) * * *
(iv) Each employee engaged in handling operations involving the
carcinogens addressed by this section must be provided with, and
required to wear and use, a half-face filter type respirator for dusts,
mists, and fumes. A respirator affording higher levels of protection
than this respirator may be substituted.
* * * * *
(d) * * *
(1) Respiratory program. The employer must implement a respiratory
protection program in accordance with Sec. 1910.134(b), (c), (d)
(except (d)(1)(iii) and (iv), and (d)(3)), and (e) through (m) for each
employee required by this section to use a respirator.
* * * * *
12. In section 1910.1017, paragraphs (g)(1) and (g)(2) are revised
to read as follows:
Sec. 1910.1017 Vinyl chloride.
* * * * *
(g) Respiratory protection. (1) General. For employees who use
respirators required by this section, the employer must provide each
employee an appropriate respirator that complies with the requirements
of this paragraph. Respirators must be used during:
* * * * *
(2) Respirator program. The employer must implement a respiratory
protection program in accordance Sec. 1910.134(b) through (d) (except
(d)(1)(iii), and (d)(3)(iii)(B)(1) and (2)), and (f) through (m) for
each employee required by this section to use a respirator.
* * * * *
13. In section 1910.1018, paragraphs (h)(1) introductory text,
(h)(2)(i), and (o)(1)(i) are revised to read as follows:
Sec. 1910.1018 Inorganic arsenic.
* * * * *
(h) * * *
(1) General. For employees who use respirators required by this
section, the employer must provide each employee an appropriate
respirator that complies with the requirements of this paragraph.
Respirators must be used during:
* * * * *
(2) * * *
(i) The employer must implement a respiratory protection program in
accordance with Sec. 1910.134(b) through (d) (except (d)(1)(iii)), and
(f) through (m) for each employee required by this section to use a
respirator.
* * * * *
(o) * * *
(1) * * *
(i) The employer shall train each employee who is subject to
exposure to inorganic arsenic above the action level without regard to
respirator use, or for whom there is the possibility of skin or eye
irritation from inorganic arsenic, in accordance with the requirements
of this section. The employer shall institute a training program and
ensure employee participation in the program.
* * * * *
14. In section 1910.1025, paragraphs (f)(1) introductory text,
(f)(2)(i), and (l)(1)(ii) are revised to read as follows:
Sec. 1910.1025 Lead.
* * * * *
(f) * * *
(1) General. For employees who use respirators required by this
section, the employer must provide each employee an appropriate
respirator that complies with the requirements of this paragraph.
Respirators must be used during:
* * * * *
(2) * * *
(i) The employer must implement a respiratory protection program in
accordance with Sec. 1910.134(b) through (d) (except (d)(1)(iii)), and
(f) through (m) for each employee required by this section to use a
respirator.
* * * * *
(l) * * *
(1) * * *
(ii) The employer shall train each employee who is subject to
exposure to lead at or above the action level, or for whom the
possibility of skin or eye irritation exists, in accordance with the
requirements of this section. The employer shall institute a training
program and ensure employee participation in the program.
* * * * *
15. In section 1910.1026, paragraphs (g)(1) introductory text and
(g)(2) are revised to read as follows:
Sec. 1910.1026 Chromium (VI).
* * * * *
(g) * * *
(1) General. Where respiratory protection is required by this
section, the employer must provide each employee an appropriate
respirator that complies with the requirements of this paragraph.
Respiratory protection is required during:
* * * * *
(2) Respiratory protection program. Where respirator use is
required by this
[[Page 48347]]
section, the employer shall institute a respiratory protection program
in accordance with Sec. 1910.134 for each employee required to use a
respirator.
* * * * *
16. In section 1910.1027, paragraphs (g)(1) introductory text,
(g)(2)(i), and (m)(4)(i) are revised to read as follows:
Sec. 1910.1027 Cadmium.
* * * * *
(g) * * *
(1) General. For employees who use respirators required by this
section, the employer must provide each employee an appropriate
respirator that complies with the requirements of this paragraph.
Respirators must be used during:
* * * * *
(2) * * *
(i) The employer must implement a respiratory protection program in
accordance with Sec. 1910.134(b) through (d) (except (d)(1)(iii)), and
(f) through (m) for each employee required by this section to use a
respirator.
* * * * *
(m) * * *
(4) * * *
(i) The employer shall train each employee who is potentially
exposed to cadmium in accordance with the requirements of this section.
The employer shall institute a training program, ensure employee
participation in the program, and maintain a record of the contents of
such program.
* * * * *
17. In section 1910.1028, paragraph (g)(1) introductory text and
(g)(2)(i) are revised to read as follows:
Sec. 1910.1028 Benzene.
* * * * *
(g) * * *
(1) General. For employees who use respirators required by this
section, the employer must provide each employee an appropriate
respirator that complies with the requirements of this paragraph.
Respirators must be used during:
* * * * *
(2) * * *
(i) The employer must implement a respiratory protection program in
accordance with Sec. 1910.134(b) through (d) (except (d)(1)(iii),
(d)(3)(iii)(b)(1) and (2)), and (f) through (m) for each employee
required by this section to use a respirator.
* * * * *
18. In section 1910.1029, paragraphs (g)(1) introductory text,
(g)(2)(i), and (k)(1)(i) are revised to read as follows:
Sec. 1910.1029 Coke oven emissions.
* * * * *
(g) * * *
(1) General. For employees who use respirators required by this
section, the employer must provide each employee an appropriate
respirator that complies with the requirements of this paragraph.
Respirators must be used during:
* * * * *
(2) Respirator program. The employer must implement a respiratory
protection program in accordance with Sec. 1910.134 (b) through (d)
(except (d)(1)(iii)), and (f) through (m) for each employee required by
this section to use a respirator.
* * * * *
(k) * * *
(1) * * *
(i) The employer shall train each employee who is employed in a
regulated area in accordance with the requirements of this section. The
employer shall institute a training program and ensure employee
participation in the program.
* * * * *
19. In section 1910.1030, paragraph (g)(2)(i) is revised to read as
follows:
Sec. 1910.1030 Bloodborne pathogens.
* * * * *
(g) * * *
(2) * * *
(i) The employer shall train each employee with occupational
exposure in accordance with the requirements of this section. Such
training must be provided at no cost to the employee and during working
hours. The employer shall institute a training program and ensure
employee participation in the program.
* * * * *
20. In section 1910.1043, paragraphs (f)(1) introductory text,
(f)(2)(i), and (i)(1)(i) are revised to read as follows:
Sec. 1910.1043 Cotton dust.
* * * * *
(f) * * *
(1) General. For employees who are required to use respirators by
this section, the employer must provide each employee an appropriate
respirator that complies with the requirements of this paragraph.
Respirators must be used during:
* * * * *
(2) * * *
(i) The employer must implement a respiratory protection program in
accordance with Sec. 1910.134 (b) through (d) (except (d)(1)(iii)),
and (f) through (m) for each employee required by this section to use a
respirator
* * * * *
(i) * * *
(1) * * *
(i) The employer shall train each employee exposed to cotton dust
in accordance with the requirements of this section. The employer shall
institute a training program and ensure employee participation in the
program.
* * * * *
21. In section 1910.1044, paragraphs (h)(1) introductory text,
(h)(2), and (n)(1)(i) are revised to read as follows:
Sec. 1910.1044 1,2-Dibromo-3-chloropropane.
* * * * *
(h) * * *
(1) General. For employees who are required to use respirators by
this section, the employer must provide each employee an appropriate
respirator that complies with the requirements of this paragraph.
Respirators must be used during:
* * * * *
(2) Respirator Program. The employer must implement a respiratory
protection program in accordance with Sec. 1910.134(b) through (d)
(except (d)(1)(iii)), and (f) through (m) for each employee required by
this section to use a respirator.
* * * * *
(n) * * *
(1) * * *
(i) The employer shall train each employee who may be exposed to
DBCP in accordance with the requirements of this section. The employer
shall institute a training program and ensure employee participation in
the program.
* * * * *
22. In section 1910.1045, paragraphs (h)(1) introductory text,
(h)(2)(i), and (o)(1)(i) are revised to read as follows:
Sec. 1910.1045 Acrylonitrile.
* * * * *
(h) * * *
(1) General. For employees who use respirators required by this
section, the employer must provide each employee an appropriate
respirator that complies with the requirements of this paragraph.
Respirators must be used during:
* * * * *
(2) * * *
(i) The employer must implement a respiratory protection program in
accordance with Sec. 1910.134(b) through (d) (except (d)(1)(iii),
(d)(3)(iii)(b)(1), and (2)), and (f) through (m) for each employee
required by this section to use a respirator.
* * * * *
(o) * * *
(1) * * *
(i) The employer shall train each employee exposed to AN above the
action level, each employee whose exposures are maintained below the
action level by engineering and work practice controls, and each
employee
[[Page 48348]]
subject to potential skin or eye contact with liquid AN in accordance
with the requirements of this section. The employer shall institute a
training program and ensure employee participation in the program.
* * * * *
23. In section 1910.1047, paragraph (g)(1) introductory text and
(g)(2) are revised to read as follows:
Sec. 1910.1047 Ethylene oxide.
* * * * *
(g) * * *
(1) General. For employees who use respirators required by this
section, the employer must provide each employee an appropriate
respirator that complies with the requirements of this paragraph.
Respirators must be used during:
* * * * *
(2) Respirator program. The employer must implement a respiratory
protection program in accordance with Sec. 1910.134 (b) through (d)
(except (d)(i)(iii)), and (f) through (m) for each employee required by
this section to use a respirator.
* * * * *
24. In section 1910.1048, paragraphs (g)(1) introductory text and
(g)(2)(i) are revised to read as follows:
Sec. 1910.1048 Formaldehyde.
* * * * *
(g) * * *
(1) General. For employees who use respirators required by this
section, the employer must provide each employee an appropriate
respirator that complies with the requirements of this paragraph.
Respirators must be used during:
* * * * *
(2) * * *
(i) The employer must implement a respiratory protection program in
accordance with Sec. 1910.134 (b) through (d) (except (d)(1)(iii),
(d)(3)(iii)(b)(1), and (2)), and (f) through (m) for each employee
required by this section to use a respirator.
* * * * *
25. In section 1910.1050, paragraphs (h)(1) introductory text and
(h)(2) are revised to read as follows:
Sec. 1910.1050 Methylenedianiline.
* * * * *
(h) * * *
(1) General. For employees who use respirators required by this
section, the employer must provide each employee an appropriate
respirator that complies with the requirements of this paragraph.
Respirators must be used during:
* * * * *
(2) Respirator program. The employer must implement a respiratory
protection program in accordance with Sec. 1910.134 (b) through (d)
(except (d)(1)(iii)), and (f) through (m) for each employee required by
this section to use a respirator.
* * * * *
26. In section 1910.1051, paragraphs (h)(1) introductory text,
(h)(2)(i), and (l)(2)(ii) are revised to read as follows:
Sec. 1910.1051 Butadiene.
* * * * *
(h) * * *
(1) General. For employees who use respirators required by this
section, the employer must provide each employee an appropriate
respirator that complies with the requirements of this paragraph.
Respirators must be used during:
* * * * *
(2) * * *
(i) The employer must implement a respiratory protection program in
accordance with Sec. 1910.134 (b) through (d) (except (d)(1)(iii),
(d)(3)(iii), (B)(1), and (2)), and (f) through (m) for each employee
required by this section to use a respirator.
* * * * *
(l) * * *
(2) * * *
(ii) The employer shall train each employee who is potentially
exposed to BD at or above the action level or the STEL in accordance
with the requirements of this section. The employer shall institute a
training program, ensure employee participation in the program, and
maintain a record of the contents such program.
* * * * *
27. In section 1910.1052, paragraphs (g)(1) introductory text and
(g)(2)(i) are revised to read as follows:
Sec. 1910.1052 Methylene chloride.
* * * * *
(g) * * *
(1) General. For employees who use respirators required by this
section, the employer must provide each employee an appropriate
respirator that complies with the requirements of this paragraph.
Respirators must be used during:
* * * * *
(2) * * *
(i) The employer must implement a respiratory protection program in
accordance with Sec. 1910.134 (b) through (m) (except (d)(1)(iii)),
for each employee required by this section to use a respirator.
* * * * *
PART 1915--[AMENDED]
28. The authority citation for part 1915 is revised to read as
follows:
Authority: Section 41, Longshore and Harbor Workers'
Compensation Act (33 U.S.C. 941); Sections 4, 6, and 8 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-
2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160) as
applicable; 29 CFR Part 1911.
Subpart A--[Amended]
29. A new section 1915.9 is added, to read as follows:
Sec. 1915.9 Compliance duties owed to each employee.
(a) Personal protective equipment. Standards in this part requiring
the employer to provide personal protective equipment (PPE), including
respirators, because of hazards to employees impose a separate
compliance duty to each employee covered by the requirement. The
employer must provide PPE to each employee required to use the PPE, and
each failure to provide PPE to an employee may be considered a separate
violation.
(b) Training. Standards in this part requiring training on hazards
and related matters, such as standards requiring that employees receive
training or that the employer train employees, provide training to
employees, or institute or implement a training program, impose a
separate compliance duty to each employee covered by the requirement.
The employer must train each affected employee in the manner required
by the standard, and each failure to train an employee may be
considered a separate violation.
Subpart Z--[Amended]
30. In section 1915.1001, paragraphs (h)(1) introductory text,
(h)(3)(i), and (k)(9)(i), are revised to read as follows:
Sec. 1915.1001 Asbestos.
* * * * *
(h) * * *
(1) General. For employees who use respirators required by this
section, the employer must provide each employee an appropriate
respirator that complies with the requirements of this paragraph.
Respirators must be used in the following circumstances:
* * * * *
(3) * * *
(i) Where respirator use is required by this section, the employer
shall institute a respiratory protection program in accordance with
Sec. 1910.134(b), (d), (e), and (f) for each employee required by this
section to use a respirator.
* * * * *
(k) * * *
(9) * * *
[[Page 48349]]
(i) The employer shall train each employee who is likely to be
exposed in excess of a PEL and each employee who performs Class I
through IV asbestos operations in accordance with the requirements of
this section. Training shall be provided at no cost to the employee.
The employer shall institute a training program and ensure employee
participation in the program.
* * * * *
31. In section 1915.1026, paragraphs (f)(1) introductory text and
(f)(2) are revised to read as follows:
Sec. 1915.1026 Chromium (IV).
* * * * *
(f) * * *
(1) General. Where respiratory protection is required by this
section, the employer must provide each employee an appropriate
respirator that complies with the requirements of this paragraph.
Respiratory protection is required during:
* * * * *
(2) Respiratory Protection Program. Where respirator use is
required by this section, the employer shall institute a respiratory
protection program in accordance with Sec. 1910.134 for each employee
required to use a respirator.
* * * * *
PART 1917--[AMENDED]
32. The authority citation for part 1917 is revised to read as
follows:
Authority: Section 41, Longshore and Harbor Workers'
Compensation Act (33 U.S.C. 941); Sections 4, 6, and 8 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-
2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160) as
applicable; 29 CFR Part 1911.
Subpart A--[Amended]
33. A new section 1917.5 is added, to read as follows:
Sec. 1917.5 Compliance duties owed to each employee.
(a) Personal protective equipment. Standards in this part requiring
the employer to provide personal protective equipment (PPE), including
respirators, because of hazards to employees impose a separate
compliance duty to each employee covered by the requirement. The
employer must provide PPE to each employee required to use the PPE, and
each failure to provide PPE to an employee may be considered a separate
violation.
(b) Training. Standards in this part requiring training on hazards
and related matters, such as standards requiring that employees receive
training or that the employer train employees, provide training to
employees, or institute or implement a training program, impose a
separate compliance duty to each employee covered by the requirement.
The employer must train each affected employee in the manner required
by the standard, and each failure to train an employee may be
considered a separate violation.
PART 1918--[AMENDED]
34. The authority citation for part 1918 is revised to read as
follows:
Authority: Section 41, Longshore and Harbor Workers'
Compensation Act (33 U.S.C. 941); Sections 4, 6, and 8 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-
2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160) as
applicable; 29 CFR Part 1911.
Subpart A--[Amended]
35. A new section 1918.5 is added, to read as follows:
Sec. 1918.5 Compliance duties owed to each employee.
(a) Personal protective equipment. Standards in this part requiring
the employer to provide personal protective equipment (PPE), including
respirators, because of hazards to employees impose a separate
compliance duty to each employee covered by the requirement. The
employer must provide PPE to each employee required to use the PPE, and
each failure to provide PPE to an employee may be considered a separate
violation.
(b) Training. Standards in this part requiring training on hazards
and related matters, such as standards requiring that employees receive
training or that the employer train employees, provide training to
employees, or institute or implement a training program, impose a
separate compliance duty to each employee covered by the requirement.
The employer must train each affected employee in the manner required
by the standard, and each failure to train an employee may be
considered a separate violation.
PART 1926--[AMENDED]
Subpart C--[Amended]
36. The authority citation for subpart C of 29 CFR part 1926 is
revised to read as follows:
Authority: Sec. 3704, Contract Work Hours and Safety Standards
Act (40 U.S.C. 333); secs. 4, 6, and 8, Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), 6-96 (62 FR 111), or 5-2007 (72 FR 31160) as applicable; and
29 CFR part 1911.
37. In section 1926.20, a new paragraph (f) is added to read as
follows:
Sec. 1926.20 General safety and health provisions.
* * * * *
(f) Compliance duties owed to each employee. (1) Personal
protective equipment. Standards in this part requiring the employer to
provide personal protective equipment (PPE), including respirators,
because of hazards to employees impose a separate compliance duty to
each employee covered by the requirement. The employer must provide PPE
to each employee required to use the PPE, and each failure to provide
PPE to an employee may be considered a separate violation.
(2) Training. Standards in this part requiring training on hazards
and related matters, such as standards requiring that employees receive
training or that the employer train employees, provide training to
employees, or institute or implement a training program, impose a
separate compliance duty to each employee covered by the requirement.
The employer must train each affected employee in the manner required
by the standard, and each failure to train an employee may be
considered a separate violation.
Subpart D--[Amended]
38. The authority citation for subpart D of 29 CFR part 1926 is
revised to read as follows:
Authority: Section 3704 of the Contract Work Hours and Safety
Standards Act (40 U.S.C. 3701 et seq.); Sections 4, 6, and 8 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, and
657); Secretary of Labor's Orders 12-71 (36 FR 8754), 8-76 (41 FR
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-
2000 (62 FR 50017), 5-2002 (67 FR 650008); or 5-2007 (72 FR 31160)
as applicable; and 29 CFR part 11.
Sections 1926.58, 1926.59, 1926.60, and 1926.65 also issued
under 5 U.S.C. 553 and 29 CFR part 1911.
Section 1926.62 of 29 CFR also issued under section 1031 of the
Housing and Community Development Act of 1992 (42 U.S.C. 4853).
Section 1926.65 of 29 CFR also issued under section 126 of the
Superfund Amendments and Reauthorization Act of 1986, as amended (29
U.S.C. 655 note), and 5 U.S.C. 553.
[[Page 48350]]
39. In section 1926.60, paragraph (i)(1) introductory text and
(i)(2) are revised to read as follows:
Sec. 1926.60 Methylenedianiline.
* * * * *
(i) * * *
(1) General. For employees who use respirators required by this
section, the employer must provide each employee an appropriate
respirator that complies with the requirements of this paragraph.
Respirators must be used during:
* * * * *
(2) Respirator program. The employer must implement a respiratory
protection program in accordance with Sec. 1910.134(b) through (d)
(except (d)(1)(iii)), and (f) through (m) for each employee required by
this section to use a respirator.
* * * * *
40. In section 1926.62, paragraphs (f)(1) introductory text,
(f)(2)(i), and (l)(1)(ii) are revised to read as follows:
Sec. 1926.62 Lead.
* * * * *
(f) * * *
(1) General. For employees who use respirators required by this
section, the employer must provide each employee an appropriate
respirator that complies with the requirements of this paragraph.
Respirators must be used during:
* * * * *
(2) * * *
(i) The employer must implement a respiratory protection program in
accordance with Sec. 1910.134(b) through (d) (except (d)(1)(iii)), and
(f) through (m) for each employee required by this section to use a
respirator.
* * * * *
(l) * * *
(ii) The employer shall train each employee who is subject to
exposure to lead at or above the action level on any day, or who is
subject to exposure to lead compounds which may cause skin or eye
irritation (e.g., lead arsenate, lead azide), in accordance with the
requirements of this section. The employer shall institute a training
program and ensure employee participation in the program.
* * * * *
Subpart R--[Amended]
41. The authority citation for subpart R of 29 CFR part 1926 is
revised to read as follows:
Authority: Sec. 3704, Contract Work Hours and Safety Standards
Act (Construction Safety Act) (40 U.S.C. 333); Sec. 4, 6, and 8,
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657); Secretary of Labor's Order No. 3-2000 (65 FR 50017), No. 5-
2002 (67 FR 65008), or No. 5-2007 (72 FR 31160) as applicable; and
29 CFR part 1911.
42. In section 1926.761, paragraph (b) is revised to read as
follows:
Sec. 1926.761 Training.
* * * * *
(b) Fall hazard training. The employer shall train each employee
exposed to a fall hazard in accordance with the requirements of this
section. The employer shall institute a training program and ensure
employee participation in the program.
* * * * *
Subpart Z--[Amended]
43. The authority citation for subpart Z of 29 CFR part 1926 is
revised to read as follows:
Authority: Section 3704 of the Contract Work Hours and Safety
Standards Act (40 U.S.C. 3701 et seq.); Sections 4, 6, and 8 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657); Secretary of Labor's Orders 12-71 (36 FR 8754), 8-76 (41 FR
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-
2000 (62 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (71 FR 31160),
as applicable; and 29 CFR part 11.
Section 1926.1102 of 29 CFR not issued under 29 U.S.C. 655 or 29
CFR part 1911; also issued under 5 U.S.C. 553.
44. In section 1926.1101, paragraphs (h)(1) introductory text,
(h)(2), and (k)(9)(i) are revised to read as follows:
Sec. 1926.1101 Asbestos.
* * * * *
(h) * * *
(1) General. For employees who use respirators required by this
section, the employer must provide each employee an appropriate
respirator that complies with the requirements of this paragraph.
Respirators must be used during:
* * * * *
(2) * * *
(i) The employer must implement a respiratory protection program in
accordance with Sec. 1910.134(b) through (d) (except (d)(1)(iii)), and
(f) through (m) for each employee required by this section to use a
respirator.
* * * * *
(k) * * *
(9) * * *
(i) The employer shall train each employee who is likely to be
exposed in excess of a PEL, and each employee who performs Class I
through IV asbestos operations, in accordance with the requirements of
this section. Such training shall be conducted at no cost to the
employee. The employer shall institute a training program and ensure
employee participation in the program.
* * * * *
45. In section 1926.1126, paragraphs (f)(1) introductory text and
(f)(2) are revised to read as follows:
Sec. 1926.1126 Chromium (IV).
* * * * *
(f) * * *
(1) General. Where respiratory protection is required by this
section, the employer must provide each employee an appropriate
respirator that complies with the requirements of this paragraph.
Respiratory protection is required during:
* * * * *
(2) Respiratory protection program. Where respirator use is
required by this section, the employer shall institute a respiratory
protection program in accordance with Sec. 1910.134 for each employee
required to use a respirator.
* * * * *
46. In section 1926.1127, paragraphs (g)(1) introductory text,
(g)(2)(i), and (m)(4)(i) are revised to read as follows:
Sec. 1926.1127 Cadmium.
* * * * *
(g) * * *
(1) General. For employees who use respirators required by this
section, the employer must provide each employee an appropriate
respirator that complies with the requirements of this paragraph.
Respirators must be used during:
* * * * *
(2) * * *
(i) The employer must implement a respiratory protection program in
accordance with Sec. 1910.134(b) through (d) (except (d)(1)(iii)), and
(f) through (m) for each employee required by this section to use a
respirator.
* * * * *
(m) * * *
* * * * *
(4) * * *
(i) The employer shall train each employee who is potentially
exposed to cadmium in accordance with the requirements of this section.
The employer shall institute a training program, ensure employee
participation in the program, and maintain a record of the contents of
the training program.
* * * * *
[FR Doc. E8-18991 Filed 8-18-08; 8:45 am]
BILLING CODE 4510-26-P