simply because an employee may own the protective equipment. If that
were permitted, employees would receive less effective PPE protection.
    To recognize an employer's fundamental obligation to ensure that
PPE used is adequate to protect affected employees, the final PPE
payment rule refers to the employee providing his or her own ``adequate
protective equipment.'' OSHA has included this phrase to ensure that
employee-owned PPE is used only where the PPE is adequate to protect
the employee from hazards in the particular workplace where it is being
used. Furthermore, references to Sec. Sec.  1910.132(b) and 1926.95(b)
remain in the general industry and construction standards to ensure
that when employers allow employees to use personally-owned PPE at
work, the employer evaluates the PPE to make sure that it is adequate
to protect employees, that it is properly maintained, and that it is
kept in sanitary condition.\4\ While the maritime standards in Parts
1915, 1917, and 1918 do not contain explicit language concerning
employee-owned PPE as in Sec. Sec.  1910.132(b) and 1926.95(b), the
final PPE payment rule contains the phrase ``adequate protective
equipment'' as a pre-requisite to use of the employee-owned PPE in the
affected maritime workplaces. It is the Agency's position that when
allowing the use of employee-owned PPE in the maritime setting, the
employer is still obligated to ensure that the PPE used is appropriate
and adequately protective of employees. These obligations are inherent
in the requirement that the employer ``provide'' PPE. Several of the
PPE provisions in the maritime standards also specifically require that
employers ensure the use of ``appropriate'' PPE. (See, e.g., 29 CFR
1915.152(a) (``The employer shall provide and shall ensure that each
affected employee uses the appropriate personal protective equipment *
* *.''))
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    \4\ Use of the word ``sanitary'' does not indicate that the
Agency expects PPE to be maintained at a level approaching
``hospital clean.'' ``Sanitary condition'' simply means that the PPE
must be kept at a level of cleanliness such that it does not present
a health hazard to the employee who is using it.
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B. Employees Who Already Own PPE

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

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

C. Employer Ownership and Control Over PPE

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

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

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

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

D. Upgraded and Personalized PPE

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

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

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

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

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

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

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

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

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

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

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

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

VII. Industries and Employees Affected by the Standard

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

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

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

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

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

A. OSH Act Definition of Employee

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

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

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

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

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

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

B. Self-Employed Independent Contractors

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

C. Temporary Help Services and Subcontractors

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

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

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

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

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

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

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

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

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

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

D. Part-Time and Short-Term Employees

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

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

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

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

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

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

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

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

E. Longshoring and Marine Terminals

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

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

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

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

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

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

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

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

F. Shipyards

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

G. Construction

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

    OSHA realizes that there is frequent turnover in the
construction industry, where employees frequently move from job-site
to job-site. This is an important factor because an employer with a
high turnover workplace would have to buy PPE for more employees if
the PPE was of the type that could only be used by one employee.
OSHA requests comment on whether its proposed exceptions for safety-
toe footwear and prescription safety eyewear are appropriate in the
construction industry. Are there any other approaches to handle the
turnover situation that would be protective of construction workers?
Are there any other issues unique to the construction industry that
should be considered in this rulemaking? (64 FR 15416).

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

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

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

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

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

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

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

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

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

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

VIII. Acceptable Methods of Payment

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

A. Employer Purchase and Distribution

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

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

B. Allowances

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

C. Vouchers

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

D. Employee Purchase With Employer Reimbursement

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

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

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

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

IX. Effective Dates

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

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

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

X. Effect on Existing Union Contracts

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

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

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

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

XI. Effect on Other OSHA Standards

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

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

              Table XI-1.--OSHA Standards that Require PPE
------------------------------------------------------------------------

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

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

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

XII. Miscellaneous Issues

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

A. Procedural Issues

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

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

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

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

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

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

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

Following this statement, OSHA took questions from the public. During
this questioning period, none of the attendees posed questions or
expressed concerns about OSHA's estimates of the safety advantages of
employer-purchased PPE.
    During this same hearing, Dr. Stull testified as OSHA's designated
PPE expert. In accordance with the hearing procedures published in the
Federal Register, Rescheduling of Informal Public Hearing, 64 FR 27941
(May 24, 1999), on July 15, 1999, OSHA provided notice to the Docket
Office of Dr. Stull's intent to appear as OSHA's expert witness along
with his curriculum vitae (Ex. 13: 16). On July 23, 1999, the full text
of Dr. Stull's testimony was submitted to the Docket Office for review
by the public (Ex. 13: 16-1).
    After his prepared testimony, Dr. Stull also took questions. A
representative of the AFL-CIO asked for specific data regarding the
frequency of use of PPE off of the jobsite (Tr. 73). Subsequently, an
attorney from the Office of the Solicitor asked Dr. Stull about the
safety advantage of requiring the employer to pay for PPE (Tr. 80).
Even though Dr. Stull was asked specifically to discuss data on PPE use
and then to address the benefits of employer-purchased PPE, none of the
attendees--including those commenters above that questioned OSHA's
benefits estimate--took the opportunity to ask the witness about data
related to the safety benefit of employer-purchased PPE.
    In short, OSHA provided ample opportunity for the public to pose
questions to the Agency's representatives as well as the Agency's
designated PPE expert about the specific figures used in its benefits
analysis, but none did so. Furthermore, no commenters offered
alternative point estimates of the safety benefits of employer payment
for PPE. The rulemaking process and OSHA's analyses were transparent.
The public was not deprived of the opportunity to comment or question
the Agency's benefits analysis.
2. Data Quality
    The Society for Human Resource Management (SHRM) expressed concern
about the quality of the data that OSHA relied on in performing the
benefits estimate in the proposal, stating ``SHRM questions whether the
proposed * * * rule will significantly advance workplace safety since
it is not shown to be based upon sound scientific studies nor is it
established that the data was gathered pursuant to the Data Quality Act
requirements'' (46: 43).
    The Department of Labor's ``Guidelines for Ensuring and Maximizing
the Quality, Objectivity, Utility, and Integrity of Information
Disseminated by the Department of Labor'' (Guidelines) (Available at
DOL.gov at http://www.dol.gov/cio/programs/InfoGuidelines/InfoQualityGuidelines.pdf
) establish Departmental guidance for ensuring

that the quality of information disseminated by the Department meets
the standards of quality, including objectivity, utility, and
integrity. The Guidelines also contain specific principles for agencies
to follow when analyzing safety and health risks. While much of the
information used in the final rule was developed prior to publication
of the guidelines, the information was gathered using techniques that
meet the guidelines.
    Contrary to the suggestion of SHRM, the information presented to
support the safety benefits of the final rule fully complies with the
Guidelines. The benefits analysis in the final rule is based on the
best available evidence. In addition to the expert panel described
above, in 1999, OSHA engaged Eastern Research Group (ERG) to perform a
large-scale telephone survey to collect industry-specific data
describing PPE usage patterns and the extent to which employers pay for
OSHA-required PPE. The results were published in the PPE Cost Survey
report on June 23, 1999 and made available in the Docket Office (Ex.

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

B. Turning in Old Equipment

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

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

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

C. Guidance To Assist Employers With PPE Issues

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

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

    OSHA agrees that training aids are needed to help employers, and
most especially smaller employers, with a variety of PPE issues, and
the Agency has various resources and materials available to help
provide PPE information. OSHA has two Internet topics pages devoted to
PPE, one for construction and another for general industry employers
(look for ``personal protective equipment'' under the alphabetic index
at http://www.osha.gov). These include several resources, including the

OSHA PPE standards, electronic aids called e-tools that will help
employers with selection and other PPE issues, and links to other PPE
resources on the Internet. OSHA also provides Publication 3151--
Personal Protective Equipment to employers and employees free of
charge. The publication discusses PPE hazard assessment and selection,
employee training, and various types of PPE that may be needed to
protect employees. Additionally, PPE is mentioned in many of OSHA's
hazard specific publications, such as those dealing with bloodborne
pathogens and chemical hazards.
    While OSHA has provided the public with a variety of resources to
help them with PPE selection, training, and use, the Agency will
continue to look for ways to assist employers and employees with PPE
issues. The Agency will continue to provide information on the
Internet, and welcomes any specific suggestions on products or training
aids that would assist employers and employees with PPE issues.
However, the ultimate responsibility for ensuring the PPE is adequate
rests with the employer.

D. Transmission of Disease Through Shared Equipment

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

E. Taking Home Contaminants on Clothing

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

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

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

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

XIII. Other Alternatives Considered During the Rulemaking Process

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

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

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

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

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

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

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

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

    OSHA also considered adding a specific exemption from the employer
payment rule for PPE considered ``tools of the trade,'' where the
employer could demonstrate that (1) the PPE could only be used by one
employee for reasons of customized fit or hygiene, and (2) it is
customary in the industry for employees to select and pay for the PPE.
In response to OSHA's 1999 proposal, several commenters argued that
employers should not be required to pay for PPE items that employees
now customarily purchase themselves and take with them from job to job.
    After reviewing these comments, OSHA determined that more
information was needed on the nature and extent of such customary
practices to fully evaluate the impact of a final rule on various