[Federal Register: December 12, 2008 (Volume 73, Number 240)]
[Rules and Regulations]
[Page 75568-75589]
[DOCID:fr12de08-6]

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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 Employer Duty To Provide Personal Protective
Equipment and Train Each Employee

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

ACTION: Final rule.

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SUMMARY: In this rulemaking, OSHA is amending its standards to add
language clarifying that the personal protective equipment (PPE) and
training requirements impose a compliance duty to each and every
employee covered by the standards and that noncompliance 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 being taken 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 that the standards apply to each employee.

DATES: This final rule becomes effective on January 12, 2009.

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

FOR FURTHER INFORMATION CONTACT: Contact Ms. Jennifer Ashley, Director,
Office of Communications, OSHA, U.S. Department of Labor, Room N-3647,
200 Constitution Avenue, NW., Washington, DC 20210; telephone (202)
693-1999 or fax<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Table of Contents

I. Table of Contents
II. Background
III. Legal Authority
IV. Summary and Explanation of the Final Rule
V. Final Economic Analysis
VI. Regulatory Flexibility Certificate
VII. Environmental Impact Assessment
VIII. Federalism
IX. Unfunded Mandates
X. OMB Review Under the Paperwork Reduction Act
XI. State Plan States
XII. Authority and Signature

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 that 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, to select an
appropriate respirator based upon the hazard(s) to which the employee
is exposed, to provide a medical examination to determine the
employee's ability to use a respirator, to fit-test the respirator to
the individual employee and to 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 that, ``[f]or employees who use respirators
required by this section, the employer must provide respirators that
comply with the requirements of this paragraph.'' Sec.
1926.1101(h)(1). The standard also states that, ``the employer must
implement a respiratory protection program in accordance with [certain
requirements in Sec.  1910.134].'' Sec.  1926.1101(h)(2).

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); construction general safety and health provisions, Sec.
1926.20(b) (instruct each employee); construction 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) (provide employees
with effective information and training).
    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. 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 PPE 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 PPE or training must be provided to ``each employee.'' Neither the
Commission nor any court has ever suggested that an employer can comply
with the PPE and training provisions in safety and health standards by
providing PPE 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.
    Therefore, the agency's position is 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 covered employee is required to receive PPE and training, and 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 subject to a separate penalty.
    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. OSHA's current
policies for issuing instance-by-instance violations are described in
OSHA Instruction CPL 2.80 issued on October 21, 1990. These detailed
instructions to OSHA's field offices and the National Office ensure
that the policy is only used when a particularly flagrant violation is
discovered, and that each case receives careful review by the Agency's
senior officials before such citations are issued. Approximately seven
instance-by-instance, or egregious, citations are issued each year (Ex.
69).
    Accordingly, on August 19, 2008, OSHA proposed 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 instance of an employee who does not receive the required PPE or
training may be considered a separate violation (73 FR 48335-48350).
    OSHA received approximately 50 comments on the proposal, and, in
response to several requests, held a hearing on October 6, 2008. A 30-
day period was established for post-hearing comments and briefs, and
seven post-hearing submissions were received by the Agency.
    Following the notice and comment period, an informal rulemaking
hearing, and careful Agency deliberation, OSHA finds that its
preliminary conclusions are appropriate and is therefore issuing this
final standard clarifying employers' responsibilities to provide
required PPE and training to each and every one of their employees.
    Federal Register documents, comments, the transcript from the
hearing, and post hearing submissions can be accessed electronically at
http://www.regulations.gov, docket No. OSHA-2008-0031. Comments
received are identified at regulations.gov as Exhibits ``OSHA-2008-
0031-XXX''. However, in the discussion below, comments will simply be
referenced as ``Ex. XXX'' to shorten the references and make the
document more readable.
    Please note that the title of the final rulemaking has been changed
from the title used in the proposal. The proposed rulemaking title
``Clarification of Remedy for Violation of Requirements to Provide
Personal Protective Equipment and Train Each Employee'' caused some
confusion as to the nature of the rulemaking. Therefore, OSHA has
changed the title to ``Clarification of Employer Duty to Provide
Personal Protective Equipment and Training to Each Employee'' to show
that the rulemaking does not impose penalties, but rather clarifies
each employer's duty to provide PPE and training to each and every
employee covered by the standards and informs employers that the
failure to provide PPE or training to an employee may be considered a
separate violation.

III. Legal Authority

A. Introduction

    The final rule does not impose any new substantive requirements.
The regulatory text clarifies that the duty to provide personal
protective equipment of all types, 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 PPE and training provisions, the
employer must provide PPE to each employee who needs it and train each
employee who must be informed of job hazards. The employer is not in
compliance if some employees are without personal protection or are
untrained. The final rule achieves greater consistency in the
regulatory text of the various respirator and training provisions in
Parts 1910 through 1926, provides clearer notice of the nature of the
employer's duty under existing PPE and training provisions, and
addresses the Commission's interpretation that the language of some
respirator and training provisions does not allow separate per-employee
citations and penalties.
    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 final rule because the amendments merely clarify the
obligations 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.

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 (DC
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 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 (DC 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
PPE 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 using 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 standard's 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 involved 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.'' 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.\1\ 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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    \1\ 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.''
---------------------------------------------------------------------------

    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. Ho (construing 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 PPE and training provisions in safety and health standards
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. Thus, the existing PPE provisions may be cited
separately for each employee who requires PPE but does not receive it,
and the training provisions may be cited separately for each employee
who requires training but does not receive it.

    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. 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 PPE and training provisions requires the
employer to account for differences among individual employees. To
comply with 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 therefore clearly 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 clarifying
amendments to the PPE and training provisions. This final rule confirms
the Secretary's interpretation of 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 either 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
language of the respirator requirement in Manganas and that in Ho. In
Manganas the requirement to comply with the provisions of the standard
as a 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, 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 modifying 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 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 who
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. 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 to ensure that employees receive training, or
that 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 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.
2. Comments of the U.S. Chamber of Commerce
    The U.S. Chamber of Commerce, joined by the Associated Builders and
Contractors, Inc. and the National Association of Home Builders,
submitted comments challenging the Secretary's legal authority to
promulgate the final rule. (Exs. 28.1, 40.1, 82.1). The Chamber agrees
with OSHA that insubstantial differences in the wording of the PPE and
training standards should not affect resolution of the unit of
violation, and appears to question the correctness of the Commission's
analysis in Ho. (Ex. 28.1 at 1). Nevertheless, the Chamber argues that
the Secretary lacks authority under section 6(b) of the Act to issue a
rule clarifying that each employee not provided PPE or training as
required by the PPE and training standards may be considered a separate
violation for penalty purposes. (Ex. 28.1 at 1-3). In the Chamber's
view, section 6(b) limits the Secretary's rulemaking authority to
defining the conditions or practices required to provide safe and
healthful workplaces, while section 17 commits to the Commission alone
the determination whether one or more violations of standards have
occurred. The Administrative Procedure Act is a further limitation on
the Secretary's authority, the Chamber argues, as section 558(b) states
that ``[a] sanction may not be imposed * * * except within jurisdiction
delegated to the agency and as authorized by law.'' 5 U.S.C. 558(b)
(1994).
    The Chamber also disagrees with the proposition in the proposed
rule's preamble that a separate violation occurs for each employee who
is not provided PPE or training. The Chamber maintains that there might
be only one violation if the employer failed to cover a certain point
in training a group of employees or failed to provide the right
cartridge for the respirators provided a group of similarly exposed
employees.

(Ex. 28.1 at 4, 5). In light of these asserted legal defects in the
proposed rule, the Chamber recommends that the Secretary address the
problem presented by the Ho case by continuing to litigate the issue
before the Commission. (Id. at 4).
    a. OSHA disagrees with these arguments for the following reasons.
First, the Chamber fundamentally misinterprets both the rule and the
Act in suggesting that the amendments usurp the Commission's authority
under Section 17 to determine the amount of penalties. As the new
paragraphs to the introductory sections of the subparts make clear, the
final rule does not purport to set penalty amounts. Instead it
clarifies that the employer's substantive duty under existing PPE and
training standards is to comply with respect to each individual
employee who must use PPE or receive training, and it provides clear
notice that employers may be cited on a per-employee basis for
violations. For example, Sec.  1910.9 states ``[s]tandards in this part
requiring personal protective equipment (PPE), including respirators
and other types of PPE, because of hazards to employees impose a
separate compliance duty with respect 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 may be considered a
separate violation.'' (emphasis added).
    Section 6(b) of the Act authorizes the Secretary to ``promulgate,
modify or revoke any occupational safety or health standard'' by
following certain procedures, and the Secretary is exercising this
express authority here. As explained in the preceding subsections,
current Commission precedent indicates that the specific wording of
some respirator and training provisions may not support per-employee
citations while the slightly different wording of other respirator and
training provisions does support such citations. While the Secretary
believes that the PPE and training standards already support her
interpretation, she is amending the standards to conform to the
Commission's view that precise language is necessary. The amendments
also address the Commission's concern that the current language of some
standards may not provide fair notice. Only the Secretary has the
authority to amend her standards in this manner.
    The Secretary's exercise of her express authority to amend her
standards to add language the Commission has indicated is necessary is
hardly a usurpation of the Commission's authority. To the contrary, the
final rule amendments recognize and respect the Commission's
adjudicative role under section 10(c) of the Act.
    The Commission's authority under section 17 to assess penalties is
not implicated by this final rule. Where the Secretary has cited
separate violations of the same standard, the Commission may be
required to determine whether the standard authorizes the type of per-
instance violations charged. That issue, however, turns entirely on the
proper interpretation of the standard's text. Hartford Roofing, 17
O.S.H. Cas. (BNA) at 1367. The Commission's role is limited to
determining whether the Secretary's interpretation that the standard
permits per-instance violations is reasonable. Martin v. OSHRC, 499
U.S. 144 (1991). Where a standard is reasonably susceptible to citation
on a per-instance basis, the Secretary's authority to propose a
separate penalty for each such violation is clear. ``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 (DC Cir. 2001).
    The Commission's authority under section 17(j) to ``assess all
civil penalties provided in this section'' does not permit it to review
the Secretary's prosecutorial decision to cite and propose a separate
penalty for each discrete violation of a standard. Chao v. OSHRC (Saw
Pipes USA, Inc. and Jindal United Steel Corp.), 480 F.3d 320, 324 n. 3
(5th Cir. 2007). The Commission's adjudicative functions are to
determine whether the facts support the multiple violations charged,
and to apply the statutory criteria to determine the amount of the
penalty to be assessed for each proven violation. Id. at 325. These
functions are not affected by the final rule, which concerns only the
Secretary's interpretation that the PPE and training standards are
susceptible to per-employee citations.
    Reich v. Arcadian Corp., 110 F.3d 1192 (5th Cir. 1997), does not
support the Chamber's argument. There, the Fifth Circuit observed that
OSHA standards address ``conditions'' and ``practices'' and that the
unit of violation of a standard must reflect the particular hazardous
conditions regulated. 110 F.3d at 1198. While most standards require
abatement of hazardous conditions affecting employees collectively, the
condition or practice to which the PPE and training standards are
directed is the protection of individual employees. Hartford Roofing,
17 O.S.H. Cas. (BNA) at 1366-67 (``[T]he condition or practice to which
[the general respirator] standard is directed, within the meaning of
section 3(8) of the Act, is * * * the individual and discrete failure
to provide an employee working in a contaminated environment with a
proper respirator.''). The Arcadian court expressly recognized that an
individual employee may be the unit of prosecution ``if the regulated
condition or practice is unique to the employee (i.e., failure to train
or remove a worker)''. 110 F.3d at 1199 (citing Hartford Roofing, 17
O.S.H. Cas. (BNA) 1361).
    The foregoing discussion plainly disposes of the Chamber's claim
that the final rule imposes a sanction without an express
authorization, in violation of Sec.  558 of the APA. Nothing in the
final rule imposes a sanction. Insofar as the rule addresses penalties,
it does so only indirectly, by informing the public that the agency may
exercise prosecutorial discretion to cite on a per-employee basis for
violations of PPE and training standards. The Secretary's charging
decision whether to issue a single citation or separate per-employee
citations is not itself a penalty. Chao v. OSHRC, 480 F.3d at 325.
Moreover, citations reflect only the Secretary's proposed penalty
amounts--the Commission, not the Secretary, actually assesses
penalties. American Bus Ass'n v. Slater, 231 F.3d 1 (DC Cir. 2000),
cited by the Chamber, is obviously distinguishable in that the rule at
issue there authorized the agency to levy fines in specific amounts
directly against regulated entities for violations of bus accessibility
requirements. In any event, section 9(a) of the OSH Act expressly
authorizes the Secretary to issue a citation for violation of ``a
requirement * * * of any standard,'' and section 17 states that a
penalty may be assessed ``for each violation.'' Thus, the final rule
clearly falls ``within jurisdiction delegated to the agency'' and does
not violate section 558 of the APA.
    b. The Chamber's criticisms of isolated statements in the
proposal's preamble are irrelevant to the issue of the Secretary's
legal authority to promulgate the final rule. (Ex. 28.1 at 4, 5). The
Chamber chiefly challenges the proposal's statement that a separate
violation occurs for each employee not provided required PPE or
training, arguing that in some situations, the employer's failure to
provide PPE or training to a class of employees can be considered a
single violative condition or practice for which only a single citation
could be issued. (Ex. 28.1 at 4, 5). However, the Secretary clearly has
the authority to make specific changes

to the wording of her PPE and training standards, and to announce her
interpretation of the amended rules, by following the procedures in
section 6(b). At most, the Chamber's criticisms go to the legal effect
of amendments in some specific circumstances. Whether the Secretary's
interpretation will be accepted by the Commission or a court in these
circumstances, if and when they arise, is a matter to be resolved in an
enforcement proceeding.
    In any event, the Chamber's arguments are wholly unpersuasive on
their merits. The Chamber asserts that there might be only one training
violation if the employer fails to cover a certain required element in
training a group of employees and there might be only one respirator
violation if the employer fails to provide the right cartridge for
respirators used by a class of employees exposed to the same hazard.
(Ex. 28.1 at 4, 5). In these cases, the Chamber suggests that the
violation involves a single action by the employer affecting multiple
employees alike. Id. The Secretary rejects this reasoning for the same
reasons she rejects the Commission majority's analysis in Ho.
    The hazardous ``condition'' or ``practice'' addressed by the PPE
and training standards is the failure to protect each individual
employee--through personal protective equipment or training--from the
hazards of his or her or work environment. Hartford Roofing, 17 O.S.H.
Cas. (BNA) at 1367. The hazardous condition addressed by the standards
is always the same regardless of the actions taken by the employer to
comply or not comply. It does not matter that a single action or
decision by the employer results in several employees being exposed to
hazardous working conditions without PPE or training--the unit of
violation remains the individual unprotected employee. See Chao v.
OSHRC, 380 F.3d. at 323 (although multiple recordkeeping violations may
stem from a single company policy, each failure to record may represent
a separate and distinct violation). Secretary of Labor v. Caterpillar
Inc., 15 O.S.H. Cas. (BNA) 2153, 2173 (Rev. Comm'n 1993). For the same
reason, the availability of per-employee training violations does not
depend upon whether the employer could have conducted a single group
training session. GM, 2007 WL 4350896 at 36.
    The Chamber's approach is also internally inconsistent. The Chamber
appears to acknowledge that per-employee citations should have been
available in the Ho case. (Ex. 28.1 at 1, 4). There is no logical
distinction between the situation in Ho, where the employer failed to
provide any respirators to employees, and a case where the employer
provides noncomplying respirators to employees. (Ex. 28.1 at 4). In
both cases, employees are not protected. The Chamber asserts that ``it
all depends upon whether there are different violative conditions,''
but fails to explain how or why factual differences between Ho and its
hypothetical case would support the availability of per-employee
citations in one case but not the other.
    c. Finally, the Chamber's proposed solution to the problem
presented by the Ho case is no answer at all. The Chamber urges the
Secretary to continue to litigate the issue by raising the arguments in
the proposed rule directly to the Commission in the next appropriate
case. Thus, the Chamber posits that while the Secretary lacks statutory
authority to issue a rule clarifying her interpretation that the PPE
and training standards are susceptible to per-employee citations, the
Commission would accept this interpretation as a litigating position
and change its doctrine. This appears wholly counterintuitive. The
central tenet of the Secretary's position is that the statute supports
her approach. To accept the Chamber's comments as a basis for not
adopting a final rule would substantially weaken, if not destroy, the
legal underpinning of the Secretary's position. For these reasons, the
Secretary rejects both the Chamber's legal arguments and its
recommendation for a non-regulatory course of action.

IV. Summary and Explanation of the Proposed Rule

    In this final standard, OSHA is amending the standards in 29 CFR
Parts 1910, 1915, 1917, 1918 and 1926 to provide additional clarity and
consistency about the individualized nature of the employer's duty to
provide training and personal protective equipment (including eye,
hand, face, head, foot and hearing protection, respirators, and other
forms of PPE) under standards in these parts. The final rule revises
existing regulatory language and adds new sections to the introductory
subparts to Parts 1910 through 1926. The following discussion addresses
comments to the proposed language, OSHA's response to those comments,
the actual final rule language, and how the final rule is to be
interpreted.
    A number of commenters offered broad support for the revisions
(see, e.g., Exs. 3, 5, 18.1, 21.1, 29.1, 32.1, 39.1, 44.1, 83.1, 84.1).
ORC Worldwide remarked that the rulemaking is an appropriate action to
eliminate confusion and ensure consistent and effective enforcement of
OSHA's standards (Ex. 29.1). The American Federation of Labor and
Congress of Industrial Organizations (AFL-CIO) added that the rule will
remove any doubt that employers are obligated to provide required PPE
and training to each worker and that employers who fail to do so for
each individual employee are subject to per-instance citations for each
employee left unprotected (Ex. 32.1). The American Industrial Hygiene
Association (AIHA) urged OSHA to ``[m]ove forward with the completion
of this proposed rule in as timely a manner as possible to avoid any
potential delays in the protection of workers'' (Ex. 18.1).
    A number of commenters also opposed the rulemaking (see, e.g., Exs.
2, 19.1, 20.1, 22, 25.1, 26.1, 27.1, 28.1, 30, 38.1, 40.1, 41.1, 45.1,
48.1, 49.1, 51.1, 79 pp 35-46, 79 pp 73-77, 79 pp 87-92, 80.1, 81.1,
82.1). Several commenters expressed concern about OSHA's authority to
promulgate the standards (see, e.g., Exs. 28.1, 40.1, 80.1, 82.1).
OSHA's response to these concerns is in the legal authorities section
of this preamble. A number of commenters also expressed concerns about
the cost impact of the standards on employers. These concerns are
addressed in the economic analysis sections below. Remaining objections
and recommendations are discussed in the following sections.

New Sections Added to Subpart A of Parts 1910 Through 1918, and Subpart
C of Part 1926

    OSHA has added a new section to Subpart A of Parts 1910, 1915, 1917
and 1918, and to Subpart C of Part 1926. These subparts contain general
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, for standards in the part requiring employers to provide PPE,
employers must provide PPE to each employee required to use the PPE,
and each failure to provide PPE to an employee imposes a separate
compliance duty, and thus 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 to provide PPE to each
employee 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 adequately 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 citations and
proposed penalties for violations.
    The AFL-CIO, supported by the Building and Construction Trades
Department, proposed two changes to these general language sections
(Ex. 32.1, 39.1, 70 pp. 82-83, 83.1, 84.1). As proposed, these sections
read 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.

The AFL-CIO's first concern was that the first sentence of paragraph
(a), by singling out respirators as an example of the PPE involved,
``[c]ould lead to the view that the requirement focuses more narrowly
on respirators and not on the employer's more expansive duty to provide
all forms of PPE to each worker'' (Ex. 32.1). It suggested that new
text be inserted after the word ``including,'' which listed various
specific types of PPE, such as foot, hand, and eye protection. Second,
the AFL-CIO suggested inserting the words ``with respect'' after the
word ``duty'' in the first sentence of paragraphs (a) and (b) to make
clear that the employer's separate compliance duty was owed to each
employee.
    The Agency agrees with these recommendations in large part and has
made corresponding changes in the final rule. It is not OSHA's intent
to limit the PPE duties referenced in these sections to respirators
only. But rather than include a list of types of PPE, which might
itself be read as limiting, the final rule merely inserts the words
``and other types of PPE'' after the word ``respirators'' in the first
sentence of paragraph (a). The final rule also includes the words
``with respect'' where suggested by the unions.

Alternative Approach

    The Blueoceana Company (Ex. 77.) expressed a concern that OSHA's
proposal to include these general language sections did not provide
enough clarity in OSHA's regulations, and that the Agency should change
the language of each training and PPE standard to make the requirement
to provide PPE and training to each employee clear within each of those
standards. Specifically, Blueoceana recommended that:

    While we assume that all such PPE and Training regulations will
be included within the embrace of any final rule, it would have been
much ``cleaner'' to go directly to the source of any regulatory
ambiguity and rectify such defects right where they exist. As
proposed, the ``per employee rule'' will leave, unmolested, the
dichotomies complained of in Ho, and will cause employers and
employees to then look quizzically at the ``newly finalized''
sections while scratching their heads (Ex. 77).

    OSHA does not believe that it is necessary to change each PPE and
training standard to clarifiy the agency's interpretation. Most
employers already understand that they must provide required PPE and
training to each covered employee, so there is not widespread confusion
on this matter. The final paragraphs make clear that they apply to all
of the standards, and it will be quite clear that they apply throughout
all the standards. This is also an approach used successfully in other
rules. For example, in the PPE payment standard, the Agency requires
employers to pay for PPE throughout each part by language stated in
only one standard in the part (72 FR 64342, November 15, 2007). The
Agency is unaware of any confusion caused by the approach used in PPE
payment, and it does not expect any confusion for this clarification of
the training and PPE standards. Nevertheless, in its future PPE and
training standards, or when existing standards are modified, the Agency
will attempt to make the requirement to protect each employee clear, so
as to avoid additional confusion about the matter.

OSHA's Egregious Policy

    A number of commenters expressed a concern about OSHA's instance-
by-instance citation policy and the impact of the rulemaking on that
policy (see, e.g., Exs. 2, 14.1, 19.1, 22, 25.1, 27.1, 30, 36, 37.1,
38.1, 40.1, 41.1, 42.1, 45.1, 49.1, 51.1, 77, 79 pp 87-92, 80.1, 82.1).
For example, the American Association of Homes and Services for the
Aging (AAHSA) remarked that:

    [t]he Occupational Safety and Health Administration (``OSHA'')
states that the practice of ``grouping'' violations into a single
citation is the more common method of dealing with multiple
violations, whereas ``per instance'' violations are generally used
to deter ``flagrant violators.'' This principle is documented in
OSHA's CPL 2.80 Directive, entitled ``Handling of Cases to be
Proposed for Violation-by-Violation Penalties,'' released on October
21, 1990 (the ``Directive''). Specifically, the Directive provides
that only flagrant violations of the Occupational Safety and Health
Act (the ``Act'') are appropriate bases for ``per instance''
violations. Despite the plain meaning of the Directive, the
Clarification does not distinguish between flagrant violations for
which ``per instance'' citations are appropriate and non-flagrant or
unintentional violations for which ``grouping'' is appropriate. As a
result, the standards should be revised to make this distinction
(Ex. 36.1).

    Con-Way Inc. remarked that ``The proposed rule effectively
penalizes the employer multiple times for one infraction. There is no
limitation within the language to make it apply to only egregious
circumstances as OSHA has indicated. And that's a problem'' (Ex. 79, p
89). The American Society of Safety Engineers (ASSE) added that:

    The failure to provide appropriate PPE or provide adequate
training on how to use PPE

can be an egregious act by an employer with little or no regard for
employee safety and health. In practicality and in most workplaces,
however, violations of PPE standards are largely technical in nature
and do not result in harm to an employee. Violations often can
reflect unintended mistakes in its use by employees, a supervisor's
mistaken understanding, or an individual's failure to follow an
employer's or SH&E professional's best efforts to help that employee
be protected. In such cases, where the overall intent of the
employer is to meet or even exceed the OSHA standard and the overall
approach in the workplace reflects a commitment to safety and
health, a final rule should protect such employers against the
application of the ``per employee'' penalty (Ex. 37.1).

    The National Maritime Safety Association (NMSA) remarked: ``We note
that nowhere in the proposed rule is there a reference to the OSHA
Compliance Directive `Handling of Cases to be Proposed for Violation by
Violation Penalties' policy. If OSHA truly intends for this regulation
to apply to flagrant or egregious violators then the proposed rules
must state this in unequivocal language. Moreover, relevant Compliance
Directives should be appropriately promulgated and implemented'' (Ex.
80.1). The Associated Builders and Contractors, Inc. (ABC) suggested
OSHA incorporate its instance-by-instance policies directly into the
rulemaking to ensure OSHA's egregious policies would not be changed in
the future, stating that:

    The final rule's regulatory language, as opposed to the
preamble, needs to be revised to make absolutely clear that the more
expansive interpretation is not intended and cannot arise out of
this rulemaking, i.e., that any (and every) PPE training violation
will not be ``considered a separate violation.'' The codified
regulatory language, not the preamble, should specify the particular
circumstances under which an employer's failure to train will be
considered as separate violations. This could be done, for example,
by expressly incorporating the specific criteria set forth in CPL
02-00-080 (formerly CPL 2.80) that identifies the conditions under
which the Commission would consider as a flagrant violation has
occurred (Ex. 40.1).

    A few commenters incorrectly believed that the final rule
amendments would require OSHA inspectors to issue instance-by-instance
citations and penalties (see, e.g., Exs. 2, 14.1, 30, 38.1, 41.1, 49.1,
51.1). Michal L. Illes (Ex. 2) recommended that any instance-by-
instance penalty system for training should be limited to employers
with 50 or more employees. The Printing Industries of America/Graphic
Arts Technical Foundation (PIA/GATF) stated that:

    While OSHA compliance inspectors may have the flexibility to
group multiple violations under a single penalty or propose
aggregate, per-instance violations, the proposed language does not
provide inspectors with enough guidance at the time of an inspection
regarding when to apply the per-instance penalties versus a single
penalty. OSHA should reserve issuing per-instance violations for
only the worst-case offenders that require strong deterrents to
violating health and safety standards. The proposed language seems
to direct an OSHA inspector to the per-instance approach regardless
of the circumstances or the degree of violation. This potential
practice could cause unnecessary economic and time constraints on
small businesses that have not committed flagrant violations of the
Administration's health and safety standards (Ex. 38.1).

    OSHA wants to make it absolutely clear that this final rule simply
clarifies that the PPE and training standards are legally susceptible
to per-employee citations. Nothing in the final rule addresses the
circumstances in which the Secretary will or will not issue per-
employee citations in particular cases. The issuance of per-employee
citations, like other types of per-instance citations, is a matter of
prosecutorial discretion wholly outside the scope of this rulemaking.
    At present, OSHA's policy on the issuance of per-instance citations
and proposed penalties is outlined in Directive CPL 2.80, Handling of
Cases To Be Proposed for Violation-By-Violation Penalties. The
directive contains instructions to OSHA personnel on the criteria to be
considered in determining whether to charge a separate violation and
propose a separate penalty for each discrete instance of a violation of
a standard or regulation. The directive covers the issuance of per-
employee citations and proposed penalties for violation of PPE and
training standards. The per-employee citations in the Ho and GM cases
were issued pursuant to CPL 2.80.
    OSHA does not believe that it is appropriate to refer in this final
rule to Directive CPL 2.80, or to discuss the circumstances in which
per-employee citations might be issued for PPE and training violations.
As explained above, the agency's discretion to issue such citations is
not a subject of this rulemaking. Furthermore, there is no ambiguity in
the current directive as to its application to per-employee PPE and
training violations. Thus, there is no need for further clarification
on this point.
    Several additional factors militate against including references to
the directive in the final rule. The directive reflects the agency's
current enforcement policy; it is not a standard or regulation and
should not be construed as such. The Agency must have the flexibility
to modify its enforcement and policies in order to deploy its
enforcement resources efficiently, to meet its public policy goals, and
to respond to changing conditions and unforeseen circumstances. To fix
agency enforcement policies in a rulemaking such as this would limit
that flexibility. Moreover, the directive applies to any number of OSHA
standards, not just the PPE and training standards being modified in
this rulemaking. For example, per-instance citations under OSHA's
injury and illness recordkeeping regulation and machine guarding
requirements are covered by the directive. There is no reason to affect
the future enforcement of those rules in this action, which is limited
to PPE and training requirements.

Revisions to Specific Respirator Paragraphs

    OSHA proposed revisions to 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 proposed to revise the first and last sentences of paragraph
(a)(2) of section Sec.  1910.134. As proposed, the first sentence 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 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). This language has been carried through
to the final rule, with one change discussed below. Section 1910.134,
as revised in this rulemaking, will apply to construction under section
1926.103.
    AAHSA noted that the proposed new language in the last sentence,
when read literally, created an anomaly (Ex. 36.1). That is, the
language requires employers to establish and maintain ``a respiratory
protection program * * * for each employee. * * *'' It is not OSHA's
intent that employers create separate programs for each of their
employees; rather employers need have only one program covering all of
their employees who wear respirators. OSHA has corrected this problem
in the final rule by dividing the proposed sentence into two sentences,
the last of which reads ``The program shall cover each employee
required by this section to use a respirator.''
    The National Paint and Coating Association was concerned that the
proposed revision's requirement to provide respirators to each employee
could be read to require that a separate respirator be assigned to each
employee (Ex. 22). OSHA does not believe that this is a plausible
construction of the language or that employers would be misled by this
change. Rather, the plain language merely evinces the intent to ensure
that appropriate respiratory protection is provided to each employee
when needed on the worksite, and there is no requirement imposed by
this language to assign particular respirators to particular employees.
    OSHA proposed 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 revised in this rule, states that ``[f]or employees who use
respirators required by this section, the employer must provide
respirators that comply with the requirements of this paragraph.''
Sec.  1926.1101(h)(1). The standard also states that, ``[t]he employer
must implement a respiratory protection program in accordance with
Sec.  1910.134(b) through (d), (except (d)(1)(iii)), and (f) through
(m).'' Sec.  1926.1101(h)(2).
    OSHA proposed 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 proposed revising 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 were proposed for the initial respirator paragraphs in other
toxic-substance health standards; only the section and paragraph
numbers were different. These revisions are carried through in the
final rule with the change to ``which covers each employee'' to
eliminate the potential ambiguity described above.
    The National Association of Home Builders (NAHB) suggested that
these amendments might create an ambiguity (Ex. 43.1, 59). Focusing on
the requirement that employers select an ``appropriate'' respirator
that ``complies with the requirements of this paragraph,'' NAHB
suggested that the word ``appropriate'' might impose some requirement
in addition to being in compliance with the requirements of the
paragraph. However, OSHA intends no such additional requirement; a
respirator is ``appropriate'' if it complies with the requirements of
the paragraph. The word ``appropriate'' is included to emphasize the
employer's duty to provide an adequately protective respirator as
delineated by the standard.
    OSHA believes that all of 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 section 1910.134, and contribute
to a greater awareness of the importance of full compliance with these
important requirements.

Revisions to Specific Training Paragraphs

    The final rule carries through the proposed revisions to 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 had 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 ensure that each employee is
trained. A number of other standards include similarly worded training
provisions. Accordingly, the final rule revises 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 adopted 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.
    The Association of Environmental Contractors (AEC) objected to this
language (Ex. 34.1). Its members are asbestos abatement contractors who
have negotiated a collective bargaining agreement with a local union
under which the union provides the training required. Its concern is
that training provided by the union, which is otherwise compliant with
the standard, might not be acceptable because it was not provided by
the employer. This concern is unfounded. The intent of the new language
is to impose a duty on employers to ensure each employee is properly
trained, not to require each employer to actually conduct the training.
The employer's duty to train each employee may be discharged by
ensuring employees have received adequate training provided by a union
or other third party, and indeed OSHA has long taken this position in
interpreting similar language under the Hazard Communication Standard
(Letter to Frank Pelligrini, May 11, 1988). There is no need to change
the proposed language to accommodate AEC's comment.
    Stericycle argued that this language ``[i]mplies individual
customized training rather than attending group training sessions.''
(Ex. 35.1.) OSHA disagrees, and does not believe that the new language
can reasonably be read to exclude group training. Notably, no other
participant in this rulemaking has suggested this interpretation of the

provision. Regardless, it is OSHA's intent that employers may satisfy
this requirement through group training, provided that each employee in
the group receives and understands the training.

State Plan Issue

    The Public Risk Management Association (PRIMA), an organization of
risk management professionals for public entities and local
governments, argued against the proposal on the grounds that it would
discourage states from pursuing authorization to administer a state
plan under section 18 of the OSH Act. States would be discouraged,
PRIMA argues, because ``[t]hey may be subjecting themselves and their
political subdivisions to prohibitive substantial financial penalties
for a good faith effort toward compliance.'' (Ex. 26.1; see also Exs.
66.1, Ex. 79 p. 97.)
    OSHA disagrees for a number of reasons. Initially, as explained in
detail elsewhere in the preamble, the standard does nothing to change
regulated entities' compliance obligations. The standard places no new
duties on public entities covered under a state plan, and leaves both
federal and state plan enforcement policy unaffected. Thus, the
standard should not affect states' decisions on participation one way
or the other. Moreover, while PRIMA is concerned with the potential
that public employers would be subjected to large penalties for
citations made on a per-employee basis, CPL 2.80 provides that state-
plan states need not extend the egregious policy to public sector
programs (Ex. 70). Indeed, OSHA does not require state plans to impose
monetary sanctions on public employers if other adequate remedies are
available. 29 CFR 1956.11(c)(2)(x). Finally, there is no evidence that
any states have been discouraged from seeking or maintaining state-plan
status. To the contrary, PRIMA conceded at the hearing that it was not
aware of any state-plan states that were reconsidering their status as
a result of this rulemaking, (Ex. 79 p. 99), and the Kentucky OSH
Program submitted a comment in support of the proposal (Ex. 21.1).

Multi-Employer Worksites

    Two comments were received regarding application of per-instance
(or per-employee) citations to an employer under the multi-employer
citation policy. The Associated General Contractors of America (AGC)
noted that this rule ``could extend citations to the general
contractor'' (Ex. 42.1). The American Society of Safety Engineers
(ASSE) commented that the impact of the rulemaking is ``ambiguous''
with respect to a worksite where either the ``general contractor, or a
subcontractor is overseeing provision of PPE or training'' (Ex. 37.1).
    As explained above, this rulemaking does not address the
circumstances in which per-employee citations might be issued. The
final rule does not broaden or narrow the application of the Agency's
current multi-employer citation policy. For more discussion on this
issue, see the final rule for ``Employer Payment for Personal
Protective Equipment'' (72 FR 64342, 64363).
    This rulemaking does not impose any new substantive requirements
for employers and serves only to clarify the duty to provide personal
protective equipment and training to each employee. Therefore, the
application of OSHA's multi-employer citation policy (CPL 02-00-124) is
not affected.

Employer Liability for Employee Misconduct

    Several rulemaking participants expressed concern that the proposed
rule would increase employers' liabilities for citations when employees
failed to adhere to work rules requiring the proper use of PPE, even
when such employees were provided appropriate PPE and properly trained
in its use (Exs. 16, 20.1, 25.1, 42.1, 48.1, 80.1). Representative of
these is a submission by the American Health Care Association, which
stated that:

    It is difficult to determine whether, when employees are not
using PPE or are using it incorrectly, that it is due to
insufficient training on the part of the employer or if it is the
fault of the employee(s) involved. * * * [D]ocumentation that
training has occurred, that PPE is supplied, and that employees
stated that they understood the training upon its completion should
be adequate evidence to OSHA that the employer is in compliance (Ex.
25.1).

    Similarly, the National Maritime Safety Association (NMSA) stated
that, during OSHA investigations, it is possible that a ``[c]ompliance
officer can casually observe employees in an otherwise compliance
workplace * * * improperly using or not using PPE at all.'' NMSA argued
that, under the new standard, employers could be cited for each of
these employees who ``[s]imply were lax and for a brief period in time
failed to catch the attention of a supervisor who normally would have
corrected their lapse.'' (Ex. 80.1) Finally, in their pre-hearing
submission, ASSE stated that ``* * * [v]iolations often can reflect
unintended mistakes in its use by employees, a supervisor's mistaken
understanding, or an individual's failure to follow an employer's or *
* * [safety and health] professional's best efforts to help that
employee be protected.'' (Ex. 37.1)
    These comments appear to address situations in which an individual
employee's failure to use required PPE may result from unpreventable
employee misconduct; that is, misconduct that occurs despite the
existence of an adequately communicated and enforced work rule that
would have prevented the violation. Unpreventable employee misconduct
is an affirmative defense to a violation of a standard. Thus, if the
employer proves that the elements of the defense are satisfied with
respect to a citation alleging a violation for an individual employee's
failure to use required PPE, the employer is not liable. Nothing in the
final rule affects the applicability of the affirmative defense of
unpreventable employee misconduct to a citation issued on a per-
employee basis. Therefore, OSHA does not agree with these commenters
that the final rule will increase employers' liabilities for citations
in situations involving employee misconduct in following an employer's
established work rules.

PPE and Training for Short-Term Employees

    In its submission to the record, the Finishing Contractors
Association raised a concern with respect to providing PPE and training
of short-term employees, stating that:

    As union contractors who hire temporary employees off the bench
to supplement their regular crew, should the contractors be required
to provide PPE and training for these employees who may be with the
company a couple of weeks? Such a requirement provides an economic
burden, particularly on the smaller contractors. These temporary
employees, perhaps, should use their own safety equipment from their
previous job, unless this is their first assignment. * * * It is
also difficult for these contractors to honor their commitment to
provide updated training for these temporary workers on fast-paced,
contracted jobs, since time is of the essence. (Ex. 48.1)

    This comment appears both to question the nature of a short-term
employer's duty to comply with PPE and training standards and to
suggest that the final rule could impose additional costs on these
employers. Insofar as the comment relates to the cost of the rule, it
is addressed in section VI below. The following discussion addresses
the commenter's question about the applicability of the amendments to
short-term employers.
    OSHA's PPE and training standards require employers to ensure that
their

employees are provided appropriate PPE and are adequately trained in
its use. The final rule clarifies that employers have this obligation
for each employee who is required to use PPE, but does not otherwise
fundamentally alter the obligation to provide PPE and ensure that
employees are properly trained. OSHA's PPE and training requirements
apply to all employers covered under the Act, including those with
short-term employees, whether referred to as temporary employees, piece
workers, seasonal employees, hiring hall employees, labor pool
employees, or transient employees. If an employer-employee relationship
is established, then the employer must ensure that PPE is provided,
used, and maintained in a sanitary and reliable condition, as required
by 29 CFR 1910.132(a) (for general industry) and 29 CFR 1926.95(a) (for
construction). However, as does commonly occur with short-term
employees, both the general industry and construction standards permit
employers to allow employees to use their own PPE provided that the PPE
is appropriate for the hazards present at the worksite and is
effectively maintained (see 1910.132(b) and 1926.95(b)). Where
employers hire short-term employees, this final rule does not affect
the employer's obligations to ensure that PPE is provided to each
employee and that each employee is trained in its use.

Implied Ownership of PPE

    One rulemaking participant, Stericycle, believed that the proposed
language clarifying that PPE is to be provided to each employee implied
that employees would own the PPE (Ex. 35.1). They suggested language be
added to make clear that employers may ``maintain custody'' of PPE to
ensure its availability. OSHA does not believe such clarification is
necessary in the final rule since the Agency is simply clarifying its
intent that PPE and training requirements apply to each employee
covered by the requirements. The final rule does not affect ownership
of PPE and employers are free to maintain ownership of PPE that they
provide and pay for. For a further discussion of the ownership issue,
employers may consult the preamble to the PPE payment final rule (72 FR
64359).

V. Final Economic Analysis

    OSHA has determined that the final 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 to 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 final
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 in the later section ``OMB Review Under the Paperwork
Reduction Act'' below, indicates that the final rule will not have a
significant impact on a substantial number of small entities.
    The final rule 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, indentical in each part, clarify OSHA's
position that personal protective equipment and training standards
impose a separate compliance duty with respect to each employee covered
by the PPE or training requirement, and each failure to provide
necessary PPE or training may be considered a separate violation.
    In addition, 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 final rule by:
``A respirator shall be provided to each employee when such equipment
is necessary to protect the health of such employee.''
    There have been no changes in the final rule from the proposed rule
that would have any new effect on costs. In the proposed rule, OSHA
tentatively found that the proposed additions and changes to the
affected rules would have no costs for two reasons. First, OSHA
preliminarily concluded that the proposal would not represent any
change in OSHA policy but instead, as explained in detail in the
Summary and Explanation, would simply ``make explicit the Agency's
policy and warn employers of the potential cost and penalties of
violations.'' Where there exists no change, there can be no costs.
Second, OSHA pointed out that ``These changes again do not impose any
additional employer responsibility for providing respiratory
protection, respiratory programs, or training for employees.'' OSHA
also pointed out that the Agency examines the economic feasibility of
its standards assuming full compliance, and therefore the costs of
compliance with existing PPE and training standards have already been
considered. Therefore, OSHA reasoned, though the proposed rule ``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'' (73 FR 48343).
    After careful consideration of the rulemaking comments, OSHA finds
no basis to depart from these preliminary conclusions. Many commenters
objected that the rule would have substantial costs (see, e.g., Exs.
1.1, 7.1. 13.1, 26.1, 30.1, 40.1, 51.1, 66.1, and 81.1) or expressed a
special concern that the proposed rule could have significant costs for
small entities, perhaps sufficient to require a regulatory flexibility
analysis (see, e.g., Exs. 5, 38.1, 41.1. 42.1, 43.1, and 74). Some of
these commenters simply provided a generic statement that the proposed
rule would have costs or economic impacts with no details as to why
they thought this would be the case, or why they objected to OSHA's
arguments concerning costs and impacts (see, e.g., Exs. 7.1, 11.1,
13.1, 38.1, 40.1, 51.1, and 66.1). However some commenters also offered
specific reasons for holding that the proposed regulation would have
costs or significant impacts.
    Some commenters expressed concerns that actually represent
objections to the costs of the underlying rules--specifically, that
assuring all employees are trained represents a substantial cost and
undue burden on firms in industries with high turnover (Exs. 33, 48.1,
and 81.1). For example, as noted above, one commenter argued ``As union
contractors who hire temporary employees off the bench to supplement
their regular crew, should the contractors be required to provide PPE
and training for employees who may be with their company for only a
couple of weeks? Such a requirement provides an economic burden,
particularly on the smaller contractors.'' Such comments represent
objections to the costs and economic impacts of the underlying rules,
which have already been analyzed and found technologically and

economically feasible based on full compliance. This rule does not
change any obligation of employers, or add compliance costs not already
accounted for in the underlying rules.
    Some commenters were concerned with costs of penalties, or the
economic impact or significance of such penalties (see, e.g., Exs. 5,
26, 41.1, 43.1, and 48.1). None of these commenters addressed OSHA's
point concerning penalty costs mentioned in the proposed rule. First,
the changes to these rules are a clarification and not a change to
existing policies. Second, penalty costs are totally avoidable--simply
comply with the rule as OSHA has assumed employers will in all of its
analyses, and there are no additional costs for penalties. In addition,
it should be noted that penalty costs, while costs to employers, do
not, by and large represent true costs to the economy, but only
represent transfer from firms that choose not to comply with OSHA
regulations to the government. However, even ignoring these points, the
actual penalty costs of noncompliance and the number of firms directly
affected are likely to be minimal. An average of seven firms a year
have been subject to penalties based on a per-employee fine. Further,
many of these firms have not been small firms. Thus even if one
disagrees with OSHA's view that the amendments are only a
clarification, that compliance costs have already been accounted for,
and that penalties need not be incurred, the costs are minimal and the
number of firms affected cannot rise to the level of a substantial
number of small firms that would be needed for a regulatory flexibility
analysis to be required.
    Some commenters concerned with penalty costs also pointed out that
affected firms would have both higher penalties and higher legal costs,
since firms would be more likely to incur legal costs to fight higher
penalties (Exs. 42.1 and 43.1). OSHA views this argument as irrelevant
because there are no new costs for a rule that simply clarifies
existing policy. Further, even if this point is ignored, the legal
costs of fighting penalties are no more relevant than the penalties
themselves for purposes of feasibility analysis. They are not
compliance costs, are totally avoidable, and do not rise to the level
of affecting a substantial number of firms.
    One commenter (Ex. 42.1) was concerned that this regulation would
cause some employers to incur significant new recordkeeping costs.
Since the rule imposes no new obligations and simply clarifies existing
policy in a regulatory framework, OSHA considers this argument to be of
dubious merit. In most cases, the underlying PPE and training standards
require no recordkeeping. To the extent that recordkeeping for training
or PPE is normal and customary in these industries, OSHA sees no
difference between the records appropriate for showing that every
employee has received adequate PPE or training, and records appropriate
for showing that each employee has received adequate PPE or training.
The same exact records will suffice for either, if an employer chooses
to keep such records.
    Finally, one commenter (Ex. 43.1), expanding on the possibility of
new costs, more generally argued that employers would incur costs
because, in order to avoid higher penalties, they would ``overprotect''
their employees, providing unnecessary PPE or training. However,
``overprotection'' if it exists, is, by definition, not a requirement
of any standard, and is therefore not properly considered a cost of
compliance for the purposes of determining economic feasibility.
Furthermore, commenters have not provided any evidence that could be
used as a basis for estimating such costs or determining how many firms
might ``overprotect'' their employees as a result of this final rule.
    Having considered the comments arguing that this regulation imposes
new costs, or has significant economic impacts on a substantial number
of firms, OSHA finally concludes that this set of changes to existing
rules represents no new requirements, imposes no new costs, and raises
no new analytic issues not already considered in the development of the
rules being modified.

VI. 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
final rule to determine if they will have a significant economic impact
on a substantial number of small entities. As indicated in section V.
(``Final Economic Analysis'') of this preamble, the final rule is
expected to have no effect on compliance costs and regulatory burden
for any employer, large or small. Accordingly, the Agency certifies
that the final rule will not have a significant economic impact on a
substantial number of small entities.

VII. Environmental Impact Assessment

    OSHA has reviewed the final 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
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
final rule will 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.

VIII. Federalism

    OSHA has reviewed this final rule in accordance with the Executive
Order on Federalism (Executive Order 13132, 64 FR 43255, August 10,
1999), which requires that agencies, to the extent possible, refrain
from limiting state policy options, consult with states prior to taking
any actions that would restrict state policy options, and take such
actions only when there is clear constitutional authority and the
presence of a problem of national scope. Executive Order 13132 provides
for preemption of state law only if there is a clear congressional
intent for the Agency to do so. Any such preemption is to be limited to
the extent possible.
    Section 18 of the OSH Act (29 U.S.C. 651 et seq.) expresses
Congress' intent to preempt state laws where OSHA has promulgated
occupational safety and health standards. Under the OSH Act, a state
can avoid preemption on issues covered by federal standards only if it
submits, and obtains federal approval of, a plan for the development of
such standards and their enforcement (State Plan state). 29 U.S.C. 667.
Occupational safety and health standards developed by such State Plan
states must, among other things, be at least as effective in providing
safe and healthful employment and places of employment as the federal
standards. Subject to these requirements, State Plan states are free to
develop and enforce under state law their own requirements for safety
and health standards.
    This final rule complies with Executive Order 13132. As Congress
has expressed a clear intent for Federal preemption on issues addressed
by OSHA standards in states without OSHA-approved State Plans, this
rule preempts state law in the same manner as any OSHA standard. States
with OSHA-approved State Plans are free to develop policy options on
issues addressed herein, provided their standards are at least as
protective as this final rule.

IX. 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 final 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.

X. OMB Review Under the Paperwork Reduction Act of 1995

    This final rule does not contain any new collection of information
requirements that are 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.
    Several commenters suggested that the rule could increase paperwork
burdens on employers (See, e.g., Exs. 40.1, 42.1, 80.1, 81.1). The
Associated General Contractors of America (AGC) remarked that ``This
proposal has substantial economic impact on small business owners
within the construction industry. Requiring a contractor to prove that
he or she provided appropriate PPE and training for each employee would
result in a considerable amount of recordkeeping, which would overly
burden small employers'' (Ex. 42.1). Associated Builders and
Contractors, Inc. (ABC) recommended that OSHA ``[i]nclude specific
guidance on what evidence OSHA will require (or otherwise expect)
employers to provide in order to document that the requisite training
has in fact been provided'' (Ex. 40.1).
    As OSHA has stated numerous times throughout this preamble, these
standards do not make any changes to the substantive requirements of
the standards and thus do not impose any new duties on employers,
including the duty to keep training and PPE records. The recordkeeping
requirements of individual PPE and training requirements located in
many of OSHA's standards vary on this matter: Some require training
records, some require training certifications, and some do not require
records at all. These requirements continue unchanged and OSHA
therefore reiterates its finding that the rulemaking imposes no new
paperwork burdens.

XI. State Plan States

    When federal OSHA promulgates a new standard or more stringent
amendment to an existing standard, the 26 states or U.S. territories
with their own OSHA-approved occupational safety and health plans must
revise their standards to reflect the new standard or amendment, or
show OSHA why there is no need for action, e.g., because an existing
state standard covering this area is already ``at least as effective''
as the new federal standard or amendment. 29 CFR 1953.5(a). The state
standard must be at least as effective as the final federal rule, must
be applicable to both the private and public (state and local
government employees) sectors, and must be completed within six months
of the publication date of the final federal rule. When OSHA
promulgates a new standard or a standards amendment which does not
impose additional or more stringent requirements than an existing
standard, states are not required to revise their standards, although
OSHA may encourage them to do so. The 26 states and territories with
OSHA-approved State Plans are: Alaska, Arizona, California, Connecticut
(plan covers only State and local government employees), Hawaii,
Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New
Mexico, New Jersey (plan covers only State and local government
employees), New York (plan covers only State and local government
employees), North Carolina, Oregon, Puerto Rico, South Carolina,
Tennessee, Utah, Vermont, Virginia, Virgin Islands (plan covers only
State and local government employees), Washington, and Wyoming.
    With regard to this final rule, while it does not impose any
additional or more stringent requirements, it adds language clarifying
that the personal protective equipment and training requirements of
OSHA's standards impose a compliance duty with respect to each employee
covered by the requirements. State Plan states must ensure that their
PPE and training standards are at least as effective as the federal
standards as amended by this final rule. States must adopt revisions,
if necessary, within six months of the publication of this rule.

XII. Authority and Signature

    This document was prepared under the direction of Thomas M.
Stohler, Acting 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 4th day of December, 2008.
Thomas M. Stohler,
Acting Assistant Secretary of Labor for Occupational Safety and Health.

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.

The Final Standard

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Parts 1910, 1915, 1917, 1918 and 1926 of Title 29 of the Code of
Federal Regulations are hereby amended as follows:

PART 1910--[AMENDED]

Subpart A--[Amended]

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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).

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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 and other types of PPE, because of hazards to employees
impose a separate compliance duty with respect 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 with respect 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]

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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.

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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]

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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.

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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. The program shall cover each employee required by this
section to use a respirator.
* * * * *

Subpart L--[Amended]

0
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.

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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.
* * * * *

Subpart Z--[Amended]

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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.

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10. In section 1910.1001, paragraphs (g)(1) introductory text,
(g)(2)(i), and (j)(7)(i) are revised to read as follows:

Sec.  1910.1001  Asbestos.

* * * * *
    (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 29 CFR 134 (b) through (d) (except (d)(1)(iii)), and
(f) through (m), which covers 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.
* * * * *

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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), which
covers each employee required by this section to use a respirator.
* * * * *

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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.
    (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) which
covers each employee required by this section to use a respirator.
* * * * *

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13. In section 1910.1018, paragraphs (h)(1) introductory text, and
(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), which covers each employee required by this section to
use a respirator.
* * * * *
    (o) * * *
    (l) * * *
    (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.
* * * * *

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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), which covers 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.
* * * * *

0