III. Summary and Explanation of the Final Rule

This section contains an analysis of the rulemaking record pertaining to certain issues raised in the NPRM, and to the provisions of the standard, both as proposed and as promulgated.

One general objection received during this rulemaking concerned the use of the phrase "employers shall ensure" in certain provisions of the proposed standard (e.g. Ex. 3: 46, 80, 94). The commenters expressed the view that, under the proposed language, employers would be held liable for violations of the standards, regardless of employee misconduct or other exculpatory considerations. The Agency had proposed the language in question to emphasize the employer's obligations for compliance with OSHA standards. The proposed language would not have affected an employer's ability to raise defenses to a citation.

In light of the objections, OSHA is revising the proposed language to remove the phrase "the employer shall ensure" wherever it appears. The employer's obligations for compliance with standards issued under the OSH Act are unaffected by this change.

Also, concern was expressed regarding the extent to which the proposed standard would allow employees to use PPE that satisfied the old ANSI standards which were being superseded by current editions through the proposal. In particular, some commenters (Ex. 3: 68, 69, 100) suggested that the Agency "grandfather" existing stocks of PPE (i.e., allow existing stocks of PPE to be depleted) as long as the PPE meets the ANSI standard in effect at the time of manufacture. Those commenters stated that, without grandfathering, employers would be required to bear the unreasonable expense and disruption of replacing millions of items of usable PPE.

The proposal simply required the affected PPE to comply with the then-current editions of the pertinent ANSI standards, without indicating how PPE produced and tested to satisfy the existing OSHA standards would be treated.

The Agency believes that virtually all of the PPE in question has been produced and tested to satisfy the ANSI editions referenced in either the proposed rule or in the final rule. Therefore, OSHA believes that, by and large, existing stocks of PPE would comply with the final rule. However, the Agency recognizes that some PPE that pre-dates the referenced ANSI standards might be unnecessarily excluded from use unless it was "grandfathered".

In particular, certain protective footwear that complied with the 1983 ANSI edition referenced by the proposal could be excluded from use because it was not produced and tested to satisfy the 1991 edition referenced by the final rule, unless the employer demonstrated that the footwear provided equivalent protection. OSHA believes that the differences between the 1983 and 1991 editions are so slight that it would be unreasonable to require employers to demonstrate equivalency. The Agency also believes that PPE satisfying the pertinent criteria of the pre-1989 ANSI Z87.1 standard for eye and face protection or the pre-1986 Z89.1 standard for head protection will adequately protect affected employees. Therefore, the Agency agrees that it is appropriate to allow continued use of PPE that was purchased prior to the effective date of the final rule and has revised the proposed rule accordingly.

In the final rule, as in the NPRM, OSHA has incorporated the pertinent ANSI standards by reference. The Agency has determined that it is unnecessary to adopt the text of the three ANSI standards, because their criteria are addressed to PPE manufacturers, not to employers who would be selecting PPE for use by their employees. OSHA believes that it is sufficient to require that employers ensure either that the PPE used by employees complies with the appropriate ANSI standard or that the PPE provides protection equivalent to that provided by PPE manufactured to the ANSI criteria.

1910.132 General Requirements.

Paragraphs (a), (b), and (c) of this section were not proposed for revision. Paragraph (a) requires that protective equipment be provided, used and maintained in sanitary and reliable condition, as necessary, to protect employees from workplace hazards.

Paragraph (b) requires that, where employees provide their own equipment, the employer assure the adequacy, including the proper maintenance and sanitation, of such equipment.

Paragraph (c) requires that all personal protective equipment be of safe design and construction for the work to be performed.

Paragraph (d): Selection.

OSHA proposed to add a new paragraph, (d), to 1910.132 to address the selection of PPE. OSHA proposed to require employers to select the PPE for their employees based on an assessment of the hazards in the workplace, and the hazards which employees are likely to encounter. Because OSHA is aware that some employees obtain their own PPE, the Agency also proposed that employers be required to inform their employees of the selection decisions and to have their employees follow those decisions when obtaining PPE.

OSHA believes that a hazard assessment is an important element of a PPE program because it produces the information needed to select the appropriate PPE for the hazards present or likely to be present at particular workplaces. The Agency believes that the employer will be capable of determining and evaluating the hazards of a particular workplace. Paragraph (d) of the final rule is a performance-oriented provision which simply requires employers to use their awareness of workplace hazards to enable them to select the appropriate PPE for the work being performed. Paragraph (d) clearly indicates that the employer is accountable both for the quality of the hazard assessment and for the adequacy of the PPE selected.

Proposed paragraph (d), which was substantively identical to the final rule, has been revised for the sake of clarity. The Agency has also added a note which references Non-mandatory Appendix B of 1910.132. That Appendix provides an example of procedures that satisfy the hazard assessment requirement.

Most rulemaking participants supported the proposed requirement (e.g. Ex. 3: 90, 91, 102). However, some commenters stated that the proposed paragraph did not clearly indicate if employers would be required to document the hazard assessment. For example, a commenter from S.C. Johnson & Son, Inc. (Ex. 3: 1) suggested that OSHA clarify documentation requirements of the workplace assessment. In addition, a commenter from Union Carbide (Ex. 3: 68, pp. 1-2) stated:

* * * OSHA should clarify that the hazard assessment referred to there need not be in writing.

OSHA can best determine whether the employer conducted an adequate hazard assessment by inspecting the areas where PPE is required. It should not be necessary for employers to prepare and retain a formal written hazard assessment.

OSHA believes that some form of record is needed to provide OSHA compliance officers and affected employees with appropriate assurance that the required hazard assessment has been performed. The Agency agrees with the commenter that it is not "necessary for employers to prepare and retain a formal written hazard assessment." Given the performance-oriented nature of this rulemaking, OSHA has determined that the generation and review of extensive documentation would be unnecessarily burdensome.

The Agency has addressed such situations in other rulemakings by requiring employers to verify their compliance with a requirement through a written certification. For example, OSHA has required certification of training in the permit-required confined space standard, 1910.146(g)(4); the control of hazardous energy (lockout/tagout) standard, 1910.147(c)(7)(iv); in the Telecommuni-cations standard, 1910.268(c); and (as discussed below) in 1910.132(f)(4) of this final rule. The Agency has found that a written certification is a reasonable means by which to establish accountability for compliance.

Therefore, the Agency has determined that employers can adequately verify compliance with 1910.132(d) of the final rule through a written certification which identifies the workplace evaluated; the person certifying that the evaluation has been performed; the date(s) of the hazard assessment; and which identifies the document as a certification of hazard assessment. This requirement has been added to the final rule as paragraph (d)(2).

The Paperwork Reduction Act (PRA) (44 U.S.C. Chapter 35) sets limits on the efforts of federal agencies to collect "information". The definition of "information" in the OMB regulations implementing the PRA (5 CFR 1320.7(j)) specifies that "Information does not generally include * * * certifications * * * provided that they entail no burden other than that necessary to identify the respondent, the date, the respondent's address, and the nature of the instrument." OSHA has determined that the certification required by paragraph (d)(2) constitutes a "certification" for the purposes of the PRA. Therefore, that certification would not be subject to the requirements of the Paperwork Reduction Act or of the implementing regulations (5 CFR part 1320).

Another concern raised during this rulemaking, related to the selection process, was the subject of proper fit of PPE. A commenter (Ex. 7:10) has stated that, in the past, males constituted the majority of the workforce and PPE was sized accordingly. As more and more females have entered the workforce, they often have had to choose between wearing PPE that was sized to fit males, and not wearing PPE at all. This was particularly common with foot protection. As a result, female workers frequently either have used PPE which did not adequately protect them, or have simply stopped using PPE because of improper fit and subsequent discomfort. Based on concern for the safety of female employees, the commenter suggested that OSHA require PPE to fit properly.

OSHA agrees with this comment. Since females constitute a larger percentage of the workforce than ever before, it is imperative that they (as well as male employees) be provided with PPE that fits properly. Therefore, OSHA is revising 1910.132 (d) to add proper fit as a criterion for PPE selection.

Paragraph (e): Defective and damaged equipment.

OSHA proposed to add a new paragraph, (e), to 1910.132 that stated:

Defective or damaged personal protective equipment shall not be used.

This paragraph is based, in part, on existing 1910.133(a)(2)(vii), which states that eye protectors should be kept clean and in good repair. Under the proposed paragraph, the existing requirement was to be strengthened and extended to cover all PPE, not just eye protectors.

Some commenters (e.g. Ex. 3: 1, 41) stated that proposed paragraph (e) should only cover visually observable defects or damage. For example, a commenter from Johnson Wax (Ex. 3: 1) stated:

We urge OSHA to limit the scope of this section to "visible" defects or damage in PPE.

OSHA certainly agrees that visibly damaged or defective PPE must not be used. However, there are other methods (such as performance tests to ensure continued integrity) that the employer could use to assure that the PPE used by employees is repaired or replaced as necessary for the protection of each affected employee. Also, employees can often determine if the protectiveness of the PPE has been compromised when they are handling the PPE prior to or while donning it. Accordingly, OSHA believes it would be inappropriate to narrow this provision to cover only visible defects or damage. Therefore, the Agency is promulgating paragraph 1910.132(e) as proposed.

Paragraph (f): Training.

Proposed paragraph (f) required employers to train employees in the proper use of their PPE. This proposed provision was based on OSHA's recognition that, as documented by the Bureau of Labor Statistics Work Injury Reports (Ex. 2: 11, 12, 13, 14), a significant number of the employees who sustain work-related injuries have not been trained in the proper use of PPE.

Some commenters (Ex. 3: 64, 117, 119) stated that PPE training, while necessary for respirators and other complex PPE, is not necessary for relatively simple equipment such as safety shoes and eye protectors. In particular, the American Trucking Association (ATA) (Ex. 3: 64) stated:

Requiring training and record-keeping for all PPE would severely burden motor carriers in terms of time and the related costs.

As an alternative, the ATA suggested that OSHA set non-mandatory appendices for the guidance of employers.

Other commenters (Ex. 3: 84, 104, 121) suggested that the employer be required to train employees only for use of the PPE that is required by the employer to provide protection against hazards identified for the particular workplace. The Texas Chemical Council (Ex. 3: 121) stated:

Requiring the employer to train employees on equipment they provide creates an unnecessary and inappropriate burden on the employer.

Several commenters (Ex. 3: 75, 83, 90, 106, 126) supported the training requirement, as proposed. Du Pont (Ex. 3: 90, pg. 2) remarked:

Du Pont's position is that proper employee training is fundamental to an effective PPE program. We also agree with the flexibility this proposed section provides employers.

Some commenters (e.g. Ex. 3: 100, 104) suggested that OSHA revise the proposed paragraph (f) to indicate that training need only be provided when PPE is first provided to employees. For example, Union Electric (Ex. 3: 100) said:

Company suggests adding "at the time it is initially issued." The proposal, as written, could imply that employees must be periodically retrained in the proper use of their equipment. This certainly is unnecessary for such items as safety glasses, footwear and headgear, which usually are worn routinely on the job. Respirators already have a periodic training requirement.

Also, several commenters (Ex. 3: 46, 64, 102, 117) expressed concern that proposed 1910.132(f) would require employers to operate formal training programs. For example, Monsanto (Ex. 3: 102, pg. 2) stated that OSHA should revise proposed paragraph (f) to indicate clearly that the training required need not be formal classroom training.

In addition, McDonnell Douglas (Ex. 3: 129) inquired:

In regard to training all employees in the proper use of all PPE, what would qualify as "training"? The term "training" could range from awareness type information to competency training of the employee.

OSHA should define the term "training" or be specific in individual standards.

Some commenters (Ex. 3: 36, 81, 119) stated that proposed paragraph (f) should be revised to require "instruction" rather than "training". The Motor Vehicle Manufacturers Association (MVMA) (Ex. 3: 81, pg. 2) said:

Training is too elaborate a term for the degree of explanation required with PPE. More sophisticated PPE such as respirators or hearing protection, which require detailed training, is already provided for by certain OSHA standards. MVMA recommends that subparagraph (f) be retitled "Instruction" and the term "training" be changed to "instructed".

Some public hearing participants testified in support of the proposed 1910.132(f) performance-oriented approach to training. For example, the Chemical Manufacturers Association (CMA) testified (Tr. 159: 4/3):

* * * CMA agrees that training is an essential element of an effective personal protective equipment program. We believe, however, that OSHA should continue to address training with performance-oriented provisions, not with HAZWOPER-type training requirements. Not only are additional requirements not necessary, they would be over-burdensome.

In addition, many commenters (e.g., Ex. 3: 36, 41, 50, 60, 73, 86, 98, 116, 128) suggested that OSHA revise proposed 1910.132(f) to provide more detailed guidance regarding what constitutes adequate training. For example, CSX Transportation (Ex. 3: 116) remarked:

A description of the performance requirements for a PPE training program should be included under 1910.132(f), since training is the responsibility of the employer.

Other commenters (Ex. 3: 123 and 128) emphasized that "personal"

training is important to a successful training program. For example, the Food & Allied Services Trades (Ex. 3: 128, pg. 6) stated:

It is imperative that this training be conducted by "live" personnel who will be available to answer questions that workers may have. Simply showing a twenty minute video tape shall not constitute adequate training.

Also, commenters (Ex. 3: 36, 73) suggested that OSHA require training in the "use and care" of PPE. For example, the Edison Electric Institute (EEI) (Ex. 3: 73, pg. 2) said:

To further enhance the protection provided by the standard, EEI recommends amending proposed 1910.132(f) to require employees to be trained not only in the use of their equipment, but also in its care.

Further, some commenters (Ex. 3: 41, 59, 128) suggested that OSHA require training in the "use and limitations" of PPE. The Food & Allied Services Trades (Ex. 3: 128) stated that training in the limitations of PPE is needed "to prevent accidents from occurring due to overconfidence in the protective ability of certain types of equipment."

Other commenters (Ex. 3: 60, 107-D) suggested that employees be trained regarding PPE limitations and precautions. The American Optometric Association (Ex. 3: 60) remarked:

We do not believe that Section 1910.132(f) on training requirements goes far enough to ensure that any limitations or precautions provided by the manufacturer of the protector are transmitted to the user and care is taken to see that such limitations are strictly observed. In addition, we do not believe that appendix B Non-Mandatory Compliance Guidelines for Hazard Assessment and Personal Protective Equipment Selection adequately addresses this area. There is no guarantee that the training provided employees in the use of eye and face protectors will uniformly cover the limitations and precautions relating to the use of protectors unless specific requirements for this training are given. We strongly urge that language making this a mandatory part of training be included in the regulation.

Some other commenters (Ex. 3: 74, 88) suggested that training include information provided by PPE manufacturers. For example, CF Industries, Inc. (CF) (Ex. 3: 74) objected to the proposed replacement of existing 1910.133(a)(5) (which requires employers to pass on to employees any information received from manufacturers regarding the limitations and precautions to be considered when using eye and face protection) by proposed 1910.132(f). The commenter stated: "CF believes that the proposed section is too broad. Various pieces of personal protective equipment can be used for the same purpose, but have very different limitations."

Also, two commenters from the State of Connecticut (Ex. 3: 50, 51) stated that "the final rule for 1910.132(f) should lean towards being more specific" and that proposed paragraph (f) should be revised to provide that "Employees shall be trained in the proper use, maintenance, care, warning labels and limitations of their personal protective equipment."

Other commenters (Ex. 3: 70, 86, 97) stated that proposed 1910.132(f) should be revised to incorporate the specific training requirements of existing 1910.120, the standard for Hazardous Waste Operations and Emergency Response (HAZWOPER). For example, the Emergency Response Management & Training Corporation (Ex. 3: 97) stated:

As it [proposed 1910.132(f)] is currently written there are no specifications as to the quality or quantity of training an employee will receive on the proper use and limitations of personal protective equipment. The inclusion of specific knowledge requirements and competency demonstration may assist in the goal of improving worker safety in hazardous environments. 29 CFR 1910.120 and NFPA 472-1989 (Standard for Professional Competence of Responders to Hazardous Materials Incidents) are two examples of this type.

Based on the concerns expressed regarding what constitutes adequate training, OSHA requested testimony in Issue 4 of the hearing notice (54 FR 3414, February 1, 1990) on the need for additional training requirements. In particular, Issue 4 indicated that OSHA was considering the promulgation of more specific training requirements, including provisions similar to those in existing 1910.120, Hazardous Waste Operations and Emergency Response (HAZWOPER). The Agency also solicited input regarding what training is needed; how training can be evaluated; when retraining is necessary; how much time is required for training; what recordkeeping is necessary for training activities; and what impacts (i.e., costs and benefits) the training requirements would have.

With respect to Issue 4, several commenters (Ex. 7: 3, 8, 11, 20, 29, 38) stated that the training requirements should be more detailed. For example, the General Electric Company (Ex. 7: 3, pg. 2) said:

  Protective equipment training needs to include:

  1.  Where and how personnel can get the equipment,
  2.  A system for identifying the correct equipment for an application
* * * procedures and operating manuals should include specifics on
protective equipment types, needs and objectives,
  3.  Equipment should be shown to individuals prior to using each for the
first time *  *  * let them touch and try the items on, the more senses
you allow one to use during training the better the person will recall
what he/she learned,
  4.  Persons should not be considered competent in protective equipment
items until they do a practical test *  *  *  are able to properly put on
the item, explain what protection it provides, etc.

Also, Boeing (Ex. 7: 38) remarked:

Boeing supports the position that additional detail be included in 1910.132 regarding training objectives and methods. Training should be based on the complexity of the protective equipment requirements. For certain protective equipment (e.g. safety spectacles) training requirements should be minimal or nonexistent.

In addition, OSHA received testimony in favor of more specific training requirements at the public hearing. For example, the National Institute for Occupational Safety and Health (NIOSH) testified (Tr. 23-24: 4/3) that the key elements of a successful training program are:

1) Sensitizing the workers to the need for such protectors and inviting their participation in developing a suitable plan for affecting PPE use.

2) Clearly defining the written goals of the PPE program in terms of the target behaviors sought (e.g., appropriate footwear/eyewear/headwear to be worn, in what areas, what kinds of care required).

3) Explicit rewards or recognition to be given contingent on the workers displaying actions that conform to the aforementioned positive acts, including knowledge of results or other forms of feedback.

4) Each PPE program should have some basis for evaluation (numbers of workers using/not using specified PPE) so that modifications could be made should the efforts fall short of the stated goals.

Also, the International Chemical Workers Union testified (Tr. 16: 4/4):

Who is responsible for training employees in the proper use and limitations of personal protective equipment? It is the employer's responsibility to carry out this training but it is not being done * * * Every worker should be able to determine that the glove being provided to them by their employer is the right one for the chemicals which they handle.

Another hearing participant, the National Environmental Training Association (NETA), testified (Tr. 272: 4/4) that "the proposal in 132(f) is not performance-oriented, it's too vague and nonspecific." NETA also testified (Tr. 285: 4/4):

The National Environmental Testing Association feels that if OSHA seriously considers training to be important in protecting worker safety * * * then the language at 29 CFR 1910.132(f) will have to be more specific. Unless training is based on measurable objectives as OSHA has pointed out in the U.S. Department of Labor publication OSHA 2254 (Training Requirements in OSHA Standards and Training Guidelines) then it can only be effective by coincidence.

Many Issue 4 commenters (e.g. Ex. 7: 2, 13, 15, 21, 22) stated that OSHA should not promulgate more detailed training requirements. Those commenters expressed the belief that performance-oriented proposed 1910.132(f) allowed employers in general industry the flexibility to implement training programs as needed. For example, Amoco Corporation (Ex. 7: 21, pg.2) stated:

We agree that employees should be trained in the proper use of their personal protective equipment, since the equipment may not provide adequate protection if used improperly. We feel, however, that training programs are best left to each employer to develop on an individualized, site-specific basis. Manufacturers often provide information on their particular products upon which an instructional program can be based. Employers do need an effective formal training session when the use of new or significantly different equipment is instituted. This requirement helps ensure that time is actually dedicated to this purpose, and emphasizes the importance of proper use to the employee. Training guidance would be helpful, especially to small businesses, but we feel strongly that such guidance should be of a non-mandatory nature.

In addition, the Department of the Air Force (Ex. 7: 25) stated that it "supports locally devised training, rather than an OSHA legislated program training requirement, as both cost efficient and effective."

Also, several Issue 4 commenters (Ex. 7: 19, 31, 35) stated that proposed 1910.132(f) should not incorporate the HAZWOPER training requirements, because 1) general industry PPE was used in a broader class of work environments than HAZWOPER-mandated PPE, and 2) the PPE covered by proposed 1910.132(f) (e.g., eye and face protection, head protection and foot protection) was much less complex than that covered by HAZWOPER. For example, the American Petroleum Institute (API) (Ex. 7: 35) stated:

Suggestions that would treat Subpart I in a manner similar to paragraph 1910.120 are without justification. There is no relationship between the training requirements of paragraph 1910.120 (which are directly responsive to the enabling legislation dealing with hazardous waste sites) and the use of PPE in the controlled environment of a more typical place of employment.

In addition, the National Solid Waste Management Association (NSWMA) stated (Ex. 7: 19, pg. 2-3):

While NSWMA supports the concept of a structure for training of employees in the use of PPE, we find the use of the Part 1910.120 training requirements for Hazardous Waste Operations and Emergency Response as a model for general industry to be without any justification.

The Section 1910.120 rule was intended to provide specific safety criteria to cover a specific industry segment. There are other industries with equivalent or higher risks where the use of this section as a model would be appropriate.

NSWMA suggests that OSHA instead consider a training requirement more closely aligned with the concepts of its Hazard Communication Standard, wherein the complexity of the program required for compliance would be directly related to the hazards present. Such a program would require a survey of hazards, establishment of specifications for PPE to control those hazards, training for employees and documentation of the training, and availability of PPE information to employees * * * In the low-risk example, having donning and doffing procedures formalized provides no useful function. What is critical is communicating the need for employees to understand the hazards and the need to utilize PPE on a consistent basis.

Based on the rulemaking record, OSHA agrees with commenters that employers need more specific guidance regarding how to train employees who use PPE. In particular, the Agency has determined that employees need training which enables them to know, at least: (1) when PPE is necessary; (2) what PPE is necessary; (3) how to properly don, doff, adjust, and wear PPE; (4) the limitations of the PPE; and (5) the proper care, maintenance, useful life and disposal of the PPE.

Accordingly, OSHA has revised proposed paragraph (f) so that paragraph (f)(1) of the final rule reads as follows:

The employer shall provide training, including retraining where appropriate, to each employee who is required by this section to use PPE. Each such employee shall be trained to know at least the following:

  (i) When PPE is necessary;
  (ii) What PPE is necessary;
  (iii) How to properly don, doff, adjust, and wear PPE;
  (iv) The limitations of the PPE; and
  (v) The proper care, maintenance, useful life, and disposal of the PPE.

The National Environmental Training Association (NETA) and other rulemaking participants asserted that in order to have a successful training program, employers should set measurable training objectives and have their employees demonstrate that they have reached those objectives. For example, NETA testified (Tr. 272-286: 4/4) that in order for training to be successful, clear and measurable objectives must be set, and employees must demonstrate that the training objectives have been reached, by showing that they understand the information provided and that they can use the PPE properly.

OSHA agrees with these remarks and has stated in one of its own publications (OSHA 2254-1988):

* * * in order for the training to be as successful as possible, clear and measurable objectives should be thought out before the training begins. For an objective to be effective, it should identify as precisely as possible what the individuals will do to demonstrate that they have learned, or that the objective has been reached. They should also describe the important conditions under which the individual will demonstrate competence and define what constitutes acceptable performance.

Therefore, paragraph (f)(2) of the final rule requires that each affected employee demonstrate an understanding of the training specified in paragraph (f)(1), and the ability to use the PPE properly, before being allowed to perform work requiring the use of PPE.

Paragraph (f)(3) of the final rule requires retraining when changes in workplace conditions or changes in the types of PPE to be used render previous training obsolete, and when inadequacies in an affected employee's knowledge or use of assigned PPE indicate that the employee has not retained the understanding or skill required by paragraph (f)(2). This provision, which did not appear in the proposed rule, indicates clearly that employers have an ongoing responsibility to maintain employee proficiency in the use and care of their PPE.

OSHA received many comments regarding how employers would indicate their compliance with the proposed training requirement. Some commenters (e.g., Ex. 3: 41, 90) noted a statement in the NPRM (54 FR at 33841) that "the proposal contains no recordkeeping requirements." Those commenters agreed with that approach, expressing the belief that detailed recordkeeping would impose an unreasonable burden, and requested "clarification" that no recordkeeping for training would be required.

Further, Detroit Edison (Ex. 3: 62), referring to proposed paragraph (f), noted, "Documented proof of training is required by other regulation. Is documentation required? OSHA should present a clearer picture of this requirement or delete it."

In addition, United Technologies (Ex. 3: 96) inquired, "Will perceived improper use of PPE be deemed by OSHA evidence of inadequate training in the absence of training documentation?"

Also, McDonnell Douglas (Ex. 3: 129) stated, "Even though OSHA has stated to OMB that this NPR does not have any recordkeeping requirements, what would be required to prove the "training" has been performed?"

Members of the Midwest Consortium for Hazardous Waste Worker Training (Ex. 3: 49, 59, 98, 123) suggested that OSHA require employers to document the content of their training programs. For example, Murray State University (Ex. 3: 123) stated, "Training should be mainly hands-on with appropriate documentation."

In addition, several commenters (e.g. 3: 46, 75, 88, 116) stated that proposed paragraph (f) would already require employers to document training. Some of those commenters (Ex. 3: 46, 88) stated simply that, contrary to the statement in Section VII of the proposed rule, OSHA had proposed to require recordkeeping, so the Agency had a responsibility to justify the burden and to properly estimate the cost of documentation. Other commenters (Ex. 3: 75, 116) stated that the documentation was needed to verify compliance with the training requirements, and that OSHA should not impose extensive recordkeeping requirements. For example, the Chemical Manufacturers Association (CMA) stated (Ex. 3: 75):

CMA agrees with OSHA's determination to omit recordkeeping from the proposed rule. While some form of verification should be maintained as an indication that training has taken place, specific documentation requirements would only add to the recordkeeping burden without increased safety benefits for employees.

In addition, CSX Transportation (Ex. 3: 116) remarked:

In Section 1910.132 a new training requirement exists that will require the establishment of training records for employees using PPE. While the standard does not specify any recordkeeping requirements, documentation for compliance purposes is clearly indicated.

As noted above, OSHA requested additional comments on the proposed training provision, including information on the recordkeeping needed to document compliance, in Issue 4 of the hearing notice (55 FR 3414, February 1, 1990). In particular, Issue 4 indicated that, based on NPRM comments (Ex. 3: 70, 86, 97), OSHA was considering training requirements similar to the HAZWOPER provisions promulgated in 1910.120(e). Section 1910.120(e)(6) requires employers to certify successful completion of training and to give graduates a written certificate. That provision further provides that persons who lack such certification shall be prohibited from engaging in hazardous waste operations.

In response to Issue 4, Jackson Products (Ex. 7: 8, pg. 2) stated:

Training of employees in the use of PPE should be the central focus of any rules OSHA is promulgating, as this issue has the highest potential for reducing worker injuries. Documentation of the training programs could follow the existing guidelines OSHA has developed for hazardous waste operations and employee right to know training, i.e., training log, employee signature sheet, etc.

In addition, BP America (Ex. 7: 39) stated, "we feel that the only criteria for successful completion of a training course can be that the trainee has mastered the information to the instructor's satisfaction. This can be documented in several ways including written exams and awarding of certificates."

As noted above, some Issue 4 commenters (Ex. 7: 13, 19, 25, 31, 35) opposed the adoption of the HAZWOPER training provisions in proposed paragraph (f). Regarding the applicability of the HAZWOPER recordkeeping requirements, the National Solid Wastes Management Association (NSWMA) stated (Ex. 7: 19, pg. 3):

Congress mandated additional regulations in the narrow field of the occupational safety and health of hazardous waste workers because hazardous waste operations and remediations involve, in OSHA's words, "unique" work environments. 54 Fed. Reg. 9312. Congress recognized that such operations involve potential exposure to a number of hazardous health risks unlike those encountered by employees in general industry activities. Thus, the OSHA standard prohibits work upon a hazardous waste site by anyone who is not properly OSHA-qualified and OSHA-certified. Certification may be granted only upon completion of initial training and continuing education courses within a comprehensive and exhaustive number of areas. See 29 CFR 1910.120(e)(6). These comprehensive standards apply whenever and wherever hazardous waste workers handle hazardous substances. The occupational safety and health requirements in Section 1910.120 were, accordingly, crafted in response to the Congressional insistence that safety and health standards more stringent than those applied to general industry be fashioned.

As noted above, the NSWMA suggested that OSHA model the requirements of proposed 1910.132(f) on the Hazard Communication Standard. The NSWMA recognized that recordkeeping would be necessary for training, stating: "In a low-risk situation, where bump hats and eye shields may be the only devices needed, a simple written program of several pages would suffice." In addition, the NSWMA stated:

Companies should not be required under this suggested system to gain prior OSHA certification of individual programs. Rather, companies should be permitted to certify that they have developed and implemented programs that are consistent with OSHA approved standards.

OSHA acknowledges that the proposed training provision implicitly required some method for verifying compliance. The Agency believes that the discussion of recordkeeping in Issue 4 of the hearing notice provided adequate notice that OSHA might require employers to create some method of verifying their training activities. Accordingly, based on the rulemaking record and for the sake of clarity, the Agency is revising proposed paragraph (f) to state explicitly that employers must verify that they have provided their employees with the requisite training.

Regarding the information needed to verify compliance, OSHA agrees with the commenters who have stated that it would be inappropriate to require specific documentation of the training provided. Given the performance-oriented focus of this rulemaking, the Agency has determined that the generation and review of extensive documentation would be unnecessarily burdensome. The Agency also notes that the training needs of employees covered by paragraph (f) of this section (approximately 22 million) are too diverse to enable OSHA to specify the details required for all of their PPE training.

Based on the rulemaking record, OSHA has determined that employers can adequately verify compliance with 1910.132(f) of the final rule through a written certification. The Agency has determined that a certification record which identifies each employee trained, the date(s) of training, and which identifies the document as a certification of training in the use of PPE, will provide adequate assurance that the employer has provided the requisite training.

The Agency notes that OSHA has also required certification of training in the permit-required confined space standard, 1910.146(g)(4); the control of hazardous energy (lockout/tagout) standard, 1910.147(c)(7)(iv); and, in the Telecommunications standard, 1910.268(c).

OSHA also notes that such a document will not preclude a citation if the Agency determines that the employees have not, in fact, been adequately trained. OSHA believes that compliance with this requirement, while imposing a minimal burden, provides an important benefit because it enables the employer and OSHA to verify the status of training efforts. Therefore, OSHA is promulgating new 1910.132(f)(4).

The Paperwork Reduction Act (PRA) (44 U.S.C. Chapter 35) sets limits on the efforts of federal agencies to collect "information". The definition of "information" in the OMB regulations implementing the PRA (5 CFR 1320.7(j)) specifies that "Information does not generally include * * * certifications * * * provided that they entail no burden other than that necessary to identify the respondent, the date, the respondent's address, and the nature of the instrument."

OSHA has determined that the certification of training required by paragraph (f)(4) constitutes a "certification" for the purposes of the PRA.Therefore, the certification would not be subject to the requirements of the Paperwork Reduction Act or of the implementing regulations (5 CFR Part 1320).

1910.133 Eye and face protection.

Proposed 1910.133(a) contained general requirements for eye and face protection. Proposed paragraph (a)(1) required the employer to ensure that employees use appropriate eye or face protection when they are exposed to eye or face hazards from flying particles, molten metal, liquid chemicals, acid and caustic liquids, chemical gases or vapors, or potentially injurious light radiation.

Proposed paragraph (a)(1) also required that eye protection used by employees provide both front and side protection from flying objects. This portion of proposed paragraph (a)(1) resulted in many comments. Most rulemaking participants agreed with OSHA that eye protectors should provide both front and side protection from flying objects (e.g. Ex. 3: 28, 49, 59, 61, 83, 128; Tr. 53: 4/3) because studies (Ex. 2: 11) have indicated that most injuries have occurred (in those instances when eye protection was used) because flying objects went around the protection. However, several rulemaking participants disagreed with this requirement because they believed that OSHA was proposing that all eye protectors would have to provide side protection (e.g. Ex. 3: 41, 69). For example, a commenter from the Exxon Company (Ex. 3: 47, pp.1-2) said:

Exxon is concerned that the proposal could be interpreted to require all safety glasses to be equipped with side shields. Exxon's position is that many situations exist where safety glasses without side shields are adequate. For such routine operations, OSHA should not ignore the fact that most employees will be more reluctant to wear safety glasses with side shields than glasses without side shields. The mandatory use of side shields on all safety glasses could deter the overall use of safety glasses on and off the job which would ultimately lead to an increase in the total number of eye injuries.

We concur with OSHA that employees should be equipped with adequate eye protection to prevent injuries from flying objects. In those instances where our employees may be potentially exposed to flying objects, our safety program calls for the mandatory use of eye protection that provides both front and side protection.

Another commenter, from the American Optometric Association, remarked (Ex. 3: 60, pg. 2):

While we recognize that mandatory side shields would afford additional protection in many instances, they may not be practical in all situations. In addition, they may tend to reduce compliance with the use of the protector in cases where peripheral hazard protection is not required. We would recommend that side shields be required only when the job evaluation indicates that a definite peripheral hazard exists.

OSHA intended that proposed paragraph (a)(2) require side protection only when flying object hazards were present. Therefore, the Agency has revised the provision concerning flying object hazards to state clearly that front and side protection are required when there is a hazard from flying objects.

OSHA agrees that there are situations when side protection is unnecessary, and that employers should be allowed to decide, based on a hazard assessment which complies with the requirements of 1910.132(d) of the final rule, if such protection is necessary for their employees.

While one rulemaking participant (Ex. 3: 66) believed that side shields should be permanently attached, other rulemaking participants stated that side protectors need not be permanent and that OSHA should permit detachable or clip-on side protectors. For example, a commenter from Liberty Optical (Ex. 3: 63) said:

Clip-on side shields meet all the Z-87 performance standards that the permanent side shields meet and can be worn when necessary. To be able to wear proper protection where appropriate and be realistic in its use, will make the employee not look to side step it and, therefore, make it more effective and safer. If a blanket mandatory permanent side shield regulation to cover all industrial environments is implemented, it will reverse all gains made in recent years and will not accomplish its goal for a safer industrial environment.

OSHA agrees that side protection need not be permanent and that detachable side shields should be permitted as long as they meet the criteria specified in this section of the final rule. Permitting detachable side shields will provide employers the flexibility to use this kind of protection when necessary, based on conditions at the workplace.

The Agency has revised proposed paragraph (a)(1) accordingly, dividing the proposed paragraph into two provisions, 1910.133(a)(1) and (a)(2). Paragraph (a)(1) of the final rule states the general requirement to have each employee use eye or face PPE when exposed to eye or face hazards, while paragraph (a)(2) states that eye PPE must provide side protection, which may be detachable, when flying object hazards are present.

Proposed paragraph (a)(2) required that eye and face protection properly fit employees. Although the Agency did not receive any comments concerning the proper fit of eye and face protection, OSHA did receive comments addressing the proper fit of PPE, in general, and the need for properly fitting PPE for both male and female employees. This subject was discussed previously under 1910.132 of this preamble, and OSHA has included a requirement in 1910.132 of the final rule that all PPE properly fit employees. Therefore, proposed paragraph (a)(2) has not been included in the final rule, since it would be redundant.

OSHA proposed in paragraph (a)(3) that protectors with tinted or variable tinted lenses not be worn when an employee must pass from a brightly lighted area, such as outdoors, into a dimly lighted area, such as a warehouse. The Agency proposed this requirement because it believed that the provision might reduce the likelihood that extreme lighting changes would temporarily impair the vision of an employee.

This proposed requirement was the subject of Issue 3 of the hearing notice (55 FR 3412, February 1, 1990). The proposed paragraph and Issue 3 generated a substantial amount of comment and testimony. While a few rulemaking participants agreed with the proposed provision (e.g. Ex. 3: 28; Ex. 7: 2, 38), many opposed the provision and/or approach proposed by OSHA (e.g. Ex. 3: 55, 61, 68; Ex. 7: 7, 8, 15, 23; Tr. 193: 4/3; Tr. 150-156: 4/4; Tr. 169: 4/4). Some of the rulemaking participants stated that the proposed paragraph was too restrictive and vague. These rulemaking participants stated that the employer (or designated safety officer) should decide when the use of this type of eyewear may create a hazard. This approach is similar to that used in the ANSI standard for eye protection (ANSI Z87.1-1989; paragraph 6.5.2).

For example, a commenter from the American Optometric Association (Ex. 7: 11, pg. 2) stated:

The use of photochromic lenses in industrial situations is dependent upon the visual demands of the task and the visual needs of the wearer. The decision on the need for and use of photochromic lenses can best be made by evaluation of the work place requirements by the employer in consultation with the employee's eye doctor. The development of a blanket policy restricting the use of photochromic lenses for certain job tasks is unwarranted. The individual visual needs and working conditions should dictate when photochromic lenses may be inappropriate.

The American Optometric Association supports the ANSI Z87.1 position which provides employers the discretion to decide when photochromic lenses may be utilized.

Additionally, an ophthalmologist from the Mount Sinai Medical Center (Ex. 7: 14 pg. 2) remarked:

* * * the many beneficial features of photochromic lenses, particularly in safety glasses, justifies their continued unfettered use in the workplace. My concern is that this proposed government intervention will likely deter workers from using these photochromic lenses as safety devices and that increased numbers of eye injuries and workplace accidents will ultimately result.

A hearing participant from Corning, Inc. (Tr. 111-114: 4/4) testified:

Today, photochromic lenses are used throughout the world and over 500 million lenses have been sold. Roughly, more than 250 million pairs of eye glasses. Currently, more than 38 million photochromic lens blanks are sold each year. Corning has therefore literally hundreds of millions of man years of experience with the use of photochromic eyeglasses without any reported health of safety problem of the type to which the proposed regulation is addressed. I believe that proposal 1910.133(a)(3) is too vague and is in any event unnecessary and overly restrictive. The use of photochromic lenses are subject to the ANSI Z87.1 standards including paragraph 6.5.2 and we believe this is the appropriate standard for dealing with any possible need for a limitation on photochromic usage.

That witness also asserted (Tr. 120: 4/4):

In daylight, outdoors, when the photochromic lenses darken to function as sunglasses they protect the eyes dark adaptation process. It is well known that those who wear sunglasses in sunlight adapt to darker environments up to twice as fast as those who do not. In the transient condition, that is, coming in from a brighter outdoor condition to a darker indoor condition, wearing photochromic lenses can actually provide better and more comfortable vision under a broad variety of work conditions. Visual function in the transition to and from bright light is superior when photochromic rather than clear lenses are used.

After evaluating the rulemaking record, OSHA has concluded that the proposed requirement was too restrictive. The Agency has determined that the employer, or the employer's representative (such as the company safety professional), will be in the best position to determine when tinted or variable tint lenses should or should not be used, based on awareness of workplace conditions. OSHA also notes that this approach is consistent with the current ANSI standard (ANSI Z87.1-1989-paragraph 6.5.2) which is (as discussed below) being incorporated by reference in the final rule. Accordingly, proposed paragraph (a)(3) has not been retained in the final rule.

Proposed paragraph (a)(4) required that employees who wear prescription lenses while engaged in operations that involve eye hazards shall wear eye protection that incorporates the prescription in their design, or shall be protected by eye protection that can be worn over prescription lenses without disturbing the proper position of the prescription or protective lenses.

The Agency did not receive any comments on this proposed provision and it is, therefore, contained in the final rule as proposed. However, since this section has been reorganized, the provision has been redesignated as 1910.133(a)(3) of the final rule.

Existing 1910.133(a)(4) states that "every protector shall be distinctly marked to facilitate identification only of the manufacturer." OSHA had proposed to delete this provision because the Agency believed that compliance did not add to or detract from the safety of the protector.

Although a few commenters agreed with OSHA in principle (e.g. Ex. 3: 50, 92, 115), the vast majority of commenters stated that the marking requirement should not be deleted (e.g. Ex. 3: 75, 88, 92, 114, 126).

For example, a commenter from the Optical Laboratories Association (Ex. 3: 71, pg. 4) asserted:

The existing system of easily identifying the manufacturers of the components of eye PPE is embedded in the standard to assure accountability and is accepted throughout the industry. It should be retained.

In addition, a commenter from Monsanto (Ex. 3: 102, pg. 3) stated:

Since employees are permitted to provide their own eye protection and employers are held accountable to ensure that employees are wearing the proper eye protection, these markings provide employers a ready way of checking for whether or not employees are wearing the proper eye protection.

Also, CF Industries (Ex. 3: 74) commented:

The identification markings are necessary in the event of a manufacturing defect or material defect, so that the purchaser may receive an adjustment from the seller or manufacturer. Identification is also needed in case the manufacturer makes a product recall.

Dr. Joseph F. Novak (Ex. 3: 107-A) commented:

My suggestion is that OSHA approved safety eyewear be marked in a manner similar to that of the ANSI Z87.1-1989 Code.

In supporting the concept that OSHA should be consistent with the ANSI requirement for marking, a commenter from US West, Inc. (Ex. 3: 85, pp. 2-3) stated:

US WEST, Inc. recommends that the identifying marking, i.e. manufacturers monogram and "Z87", continue to be required (ANSI Z87.1-1989 8.10). US WEST, Inc. disagrees with OSHA's statement that " * * * marking to identify the manufacturers of eye and face protection does not add or delete from the safety afforded by the protector." Lenses meeting ANSI Z87 are easily identified by the manufacturers monogram. "Street" or "dress" spectacles not meeting ANSI Z87 are also easily identified by the absence of such markings. US WEST, Inc. has found non-Z87 replacement prescription lenses placed in employees Z87 frames, reducing the employees degree of protection.

Based on the above-discussed comments, OSHA included Issue 1 in the Hearing Notice, to elicit more information regarding the utility of compliance with existing 1910.133(a)(4). The comments and testimony received (Ex. 7: 2, 13, 31; Tr. 55, 133, 156: 4/3; Tr. 68, 148, 225: 4/4) uniformly supported retaining the marking requirement.

For example, one commenter from SIGNODE (Ex. 7: 6) stated:

There is agreement that marking of eye and face protection "does not add or detract from the safety afforded by the protector" however, the current etched lens marking provide the safety manager, management and supervision a means of verifying that the worker, employee, contractor or visitor is, in fact, wearing proper safety eyewear, not street wear.Based on the rulemaking record, OSHA has concluded that the requirement for marking of eye and face protectors should be retained. OSHA agrees with commenters that the marking of eye and face protectors provides easy recognition that the protectors meet specified criteria (ANSI Z87.1-1989); that marking will provide accountability, and traceability in cases of product recall; and that marking requirements should be consistent with the ANSI Z87.1-1989 standard, since this is the accepted and recognized practice throughout the industry. Accordingly, the requirement for marking of eye and face protectors is being retained in 1910.133(a)(4) of the final rule.

Proposed paragraph (a)(5) required that employees use equipment with filter lenses that have a shade number appropriate for the work being performed for protection from potentially injurious light radiation. OSHA also proposed a table in this paragraph which contained a list of appropriate shade numbers for various operations. The Agency did not receive any comments on this provision, and it is contained in the final rule with minor editorial changes.

Proposed paragraph (b) of 1910.133 contained "acceptable design"

requirements for eye and face protection. In this provision, OSHA proposed that eye and face protection comply with the design requirements specified in ANSI Z87.1-1989, or be of a design which could be demonstrated to be equally effective.

Rulemaking participants supported the proposed adoption of the ANSI standard for eye and face protection (ANSI Z87.1-1989). However, a few commenters (e.g. Ex. 3: 101, 125) expressed concern that the Agency proposed to adopt only the "design requirements" of ANSI Z87.1. These commenters asserted that OSHA should adopt by reference all of the ANSI standard, not just the design requirements.

OSHA agrees that eye and face protective devices must meet all of the provisions contained in the ANSI standard. This requirement is stated explicitly in ANSI Z87.1-1989, Section 3. OSHA acknowledges that the proposal did not clearly express the Agency's intent to reference ANSI Z87.1-1989 in its entirety and is revising the proposed rule accordingly.

Other rulemaking participants (e.g. Ex. 3: 1, 62, 75, 102, 128) suggested that OSHA adopt by reference the "current" edition of all of the applicable ANSI standards (i.e., the ANSI standards for eye and face protection, head protection, and foot protection) rather than referencing a specific edition. These commenters stated that this approach would prevent a situation where the OSHA standards would be outdated when the ANSI standards are revised in the future.

OSHA notes that it would be improper for the Agency to reference consensus standards as suggested, because such action would illegally subdelegate authority over the content of OSHA standards to the committees responsible for updating the ANSI standards.

The Agency will accept eye and face protective devices as complying with this section if they are demonstrated to be as effective as those meeting the specific ANSI standard referenced by the final rule. For example, the final rule is incorporating by reference the 1989 edition of ANSI Z87.1 for eye and face protection. Eye and face protective devices meeting a subsequent edition of the same ANSI standard would be acceptable to the Agency (and a de minimis violation of the standard) if it could be demonstrated by the employer that they were as effective as those meeting the 1989 edition.

In particular, employers would need to establish either that there was no substantive difference between a subsequent edition of Z87.1 and the 1989 edition, or that PPE which satisfied subsequently modified test criteria provided protection equivalent to that provided by PPE which satisfied the 1989 edition. Proposed paragraph (b) of 1910.133 has been revised accordingly.

The incorporation by reference of ANSI Z87.1-1989 has been approved by the Office of the Federal Register, in accordance with the requirements of 5 U.S.C. 552(a) and 1 CFR part 51. Therefore, proposed paragraph (b) has been revised so that paragraph (b)(1) of the final rule reflects that approval and provides the requisite information regarding access to the text of ANSI Z87.1-1989.

As discussed above, OSHA has also determined that it is appropriate to permit the continued use of eye and face PPE purchased prior to the effective date of the final rule, as long as it complies with the ANSI standard (Z87.1-1968) referenced by existing 1910.133(a)(6). To this end, the Agency has redesignated proposed paragraph (b) as paragraph (b)(1) of the final rule and has added "grandfathering" text in paragraph (b)(2) of the final rule.

With respect to the subject of eye and face protection, Issue 5 of the Hearing Notice (55 FR 3412) requested comments and information concerning the use of contact lenses. Specifically, the Agency asked if it should expand its eye and face requirements to cover contact lenses.

Some commenters (e.g. Ex. 7: 13, 15, 16) stated that no additional regulations were necessary for the use of contact lenses. Other commenters (Ex. 7: 21, 26) believed that OSHA should address the issue of contact lenses in the final rule, and should clarify if it is permissible to wear contact lenses with eye protection.

Several commenters (e.g. Ex. 3: 107-D; Ex. 7: 5, 22) stated that wearing contact lenses with appropriate eye protection does not present any additional hazards.

Based on the rulemaking record, OSHA believes that contact lenses do not pose additional hazards to the wearer, and has determined that additional regulation addressing the use of contact lenses is unnecessary. The Agency wants to make it clear, however, that contact lenses are not eye protective devices. If eye hazards are present, appropriate eye protection must be worn instead of, or in conjunction with, contact lenses.

1910.135 Head Protection

Proposed 1910.135 set requirements for the use of protective helmets and set criteria for acceptable equipment designs. Proposed paragraph (a) required employees to wear protective helmets (1) "when working in areas where there is a potential for injury to the head from falling or moving objects" and (2) "where they are near exposed electrical conductors which could be contacted by the protective helmets." Proposed paragraph (b) referenced American National Standard, ANSI Z89.1-1986, "Protective Headwear for Industrial Workers-Requirements".

The proposed language was based on existing 1910.132(a) and 1910.135 and on ANSI Z89.1-1986. Existing 1910.132(a) requires that the PPE necessary to protect employees from workplace hazards be provided, used and maintained properly. That standard specifically includes head protection under its coverage. Existing 1910.135 facilitates compliance with existing 1910.132(a) regarding helmets worn for protection "from falling and flying objects and from limited electric shock and burn," by requiring that those helmets comply with the American National Standard Safety Requirements for Industrial Head Protection, Z89.1-1969. ANSI Z89.1-1986 is the most recent edition of the pertinent national consensus standard.

Proposed 1910.135(a)(1), unlike existing 1910.135, explicitly required the use of protective helmets. The proposed paragraph also made some editorial revisions to existing 1910.135. For example, the proposal replaced "flying" with "moving", because OSHA believed the term "moving" better described the means in which objects contact employees. OSHA used the terms "flying" and "moving" in the existing and proposed rules, respectively, in conjunction with the term "falling" to be consistent with ANSI Z89.1-1969.

A commenter (Ex. 7: 20) stated that OSHA should address lateral impact protection "since there are substantial injuries that occur from directions other than vertical impact* * *" In the course of this rulemaking, OSHA obtained a helmet (Ex. 46) capable of protecting employees against lateral as well as vertical impacts.

In addition, NIOSH testified (Tr. 30: 4/3) that, while most blows to the head come from the back, front or side, ANSI Z89.1 1986 addresses only protection for the top of the head. NIOSH further testified: "Currently helmets are being marketed that provide impact protection to most parts of the head. OSHA standards should encourage the use of these more protective helmets."

Some rulemaking participants (Ex. 3: 84, 96) expressed concern regarding the use of the term "moving" in the proposed paragraph. For example, the American Petroleum Institute (API) (Ex. 3: 84, pg. 4) stated:

API is opposed to the wording of this paragraph. The ANSI Standard Z89.1-1986 referenced in 1910.135(b) contains helmet specifications "to protect the heads of industrial workers from impact or penetration by falling objects* * *" OSHA must recognize that the ANSI standard does not provide design criteria for moving objects. If OSHA intends this section to also cover helmets protecting against moving objects, as proposed in 1910.135(a)(1), additional design criteria should be cited in 1910.135(b).

In addition, United Technologies (Ex. 3: 96, pg. 2) stated:

Under 1910.135 Head Protection, we find the requirement to provide head protection vague, and welcome additional clarification from OSHA with regard to potential for injury to the head from moving objects. We are concerned compliance personnel will interpret the requirement so broadly as to include any use of hoisting equipment. Although we can envision an occasional situation where there may be a hazard, most operations using a hoist would present no significant hazard.

Another commenter (Ex. 3: 40) suggested that OSHA revise proposed 1910.135(a)(1) so that the provision "Mandates that employers require their employees wear protective helmets when they are in an area where there is potential for injury to the head from falling, moving, swinging, flying or airborne objects." The commenter did not state why it believed the recommended language was needed.

Also, commenters (Ex. 3: 72, 79) stated that proposed 1910.135(a)(1) should also require employees to wear head protection when working in confined spaces and commenters (Ex. 3: 79, 119) have stated that OSHA should require protection against impacts with fixed objects.. For example, Centel (Ex. 3: 72) noted that injuries may result from contact with low hanging structures and that Centel already requires its employees working in confined spaces to wear head protection.

In addition, the Tennessee Valley Authority (TVA) (Ex. 3: 79) stated:

We believe a statement should be added with provision for protection against impacts with fixed objects. We recommend a sentence should be added that addresses this hazard. We also suggest that in areas that are confined or congested and the employee is subject to impact with fixed objects, suitable protective helmets be worn. We recommend that bump caps should not be used in an industrial environment because there are too many possibilities of head injuries that could occur. We recommend maximum head protection at all times in this type of environment.

The current ANSI standard, Z89.1-1986, addresses only protection "from impact and penetration by falling objects and from high-voltage electric shock and burn." The Agency has determined that it would be inappropriate for 1910.135(a) to cover head protection that is not also covered by the ANSI standard referenced in 1910.135(b), unless OSHA provides criteria for assessing compliance. The Agency has determined that it is not in a position to set such criteria, so OSHA has deleted the term "moving" from 1910.135(a)(1) of the final rule and has not added the terms suggested by commenters.

The Agency believes that compliance with the ANSI criteria referenced through 1910.135(b) of the final rule will enable employers to protect their employees from a large proportion of potential head hazards. Head protection not covered by 1910.135 of the final rule, such as would be needed to protect employees from "moving" or "fixed" objects, is covered by the general requirements of 1910.132, as revised. OSHA anticipates that employers whose hazard assessments identify head hazards that are not abated through compliance with ANSI Z89.1-1986, will develop and implement other measures as necessary, to protect their employees.

Proposed 1910.135(a)(2) required that employees who are near exposed energized conductors which their heads could contact must wear helmets designed for protection from electrical hazards. Two commenters (Ex. 3: 36, 73) suggested that OSHA revise the proposed provision by adding requirements for proper maintenance of head protection. In particular, Public Service Electric and Gas Company (Ex. 3: 36) stated that proposed paragraph (a)(2) should also require: "Protective helmets shall be worn and cared for as recommended by the manufacturer. Protective helmets shall not be altered or defaced which would take away the impact and/or dielectric integrity of the helmet."

OSHA has determined that any employee protection which could result from compliance with the suggested language on maintenance will already be attained through compliance with existing and proposed 1910.132. This section contains requirements concerning defective and damaged equipment, 1910.132(e); and, training requirements pertaining to the maintenance of PPE, 1910.132(f)(1)(v).

Another commenter (Ex. 3: 81) stated that proposed paragraph (a)(2) was unclear, because it appeared "to require nonconductive helmets for electricians whenever they are "near exposed electrical conductors" even if there is no reasonable probability of contact." The commenter suggested that OSHA revise the proposed language to require the wearing of protective helmets "WHEN they are near exposed electrical conductors which their heads could contact."

The Agency notes that the suggested language is consistent with the description of proposed paragraph (a)(2) in the preamble to the proposed rule (54 FR 33836). OSHA agrees that clarification of the proposed paragraph is appropriate and has revised the proposed paragraph accordingly.

Proposed 1910.135(b) required that the design of protective helmets comply with the design requirements of ANSI Z89.1-1986 or be of a design that provides equivalent protection. Existing 1910.135 references the requirements and specifications established in ANSI Z89.1-1969. As noted in the preamble to the NPRM (54 FR 33837), OSHA has determined that, except as regards electrical insulation for Class B helmets, the 1969 and 1986 editions of ANSI Z89.1 set essentially the same requirements. The Agency also has determined that Class B helmets currently in use already comply with the electrical insulation requirements of ANSI Z89.1-1986.

OSHA also proposed to allow protective helmets which, while not designed to the specifications of ANSI Z89.1-1986, were "demonstrated to be equally effective". The Agency believed that this performance-oriented approach would encourage innovation and the use of improved equipment.

A commenter (Ex. 3: 119) stated that the proposed language allowing protective helmets of a design which has been demonstrated to be equally effective "is not well defined." In addition, the commenter questioned the availability of the means and the personnel to determine if helmets not designed according to ANSI Z89.1-1986 were equally effective. The commenter suggested that OSHA delete the language in question and require compliance with ANSI Z89.1-1986.

Another commenter (Ex. 7: 20, pg. 3), in discussing the proposed language "demonstrated to be equally effective", inquired:

Does this mean or does it include possible:

- prototype lab tests with field trials - engineering or technical expert evaluation - certification agency assessment - appropriate standard and certification by foreign manufacturer, or certification or testing agency which could presumably satisfy the primary intent for protection of the reference standard.

To require a user to develop a new standard or a new certification process for a new product or design already proven elsewhere could void the flexibility intended in the "equivalency" clause.

OSHA believes that the performance criteria set out in ANSI Z89.1-1986, Section 7, indicate clearly how employers or the Agency can determine if helmets that do not otherwise comply with the consensus standard are "equally effective". OSHA also believes that the performance-oriented language of proposed paragraph (b) allows employers the appropriate flexibility to address their particular safety needs.

Another commenter (Ex. 3: 126) stated that "protective helmets should comply with the performance requirements as well as the design requirements of ANSI Standard Z89.1-1986."

In the course of evaluating these comments, OSHA noted that there are no provisions specifically designated as "design requirements" in ANSI Z89.1-1969 or ANSI Z89.1-1986. The 1986 edition, in particular, sets scope and purpose provisions; definitions; types and classes provisions; materials provisions; physical requirements; performance requirements; and test methods for protective helmets. The preamble discussion of proposed paragraph (b) (54 FR 33836-33837) referenced the physical requirements (e.g., the maximum weight), the performance requirements (e.g., impact resistance, penetration protection, flammability, water absorption resistance and electrical insulation) and the test methods (e.g., "stringent" test methods for testing of "Class B" helmets against high-voltage) of ANSI Z89.1-1986.

OSHA agrees, and intends, that head PPE meet all of the provisions contained in the ANSI standard. This requirement is stated explicitly in ANSI Z89.1-1986, Section 2. OSHA acknowledges that the proposal did not clearly express the Agency's intent to reference ANSI Z89.1-1986 in its entirety and is revising the proposed provision accordingly.

The incorporation by reference of ANSI Z89.1-1986 has been approved by the Office of the Federal Register, in accordance with the requirements of 5 U.S.C. 552(a) and 1 CFR part 51. Paragraph (b) of the final rule has been revised to reflect that approval and to provide the requisite information regarding access to the text of ANSI Z89.1-1986.

As discussed above, OSHA has determined that it is appropriate to permit the continued use of head PPE purchased prior to the effective date of the final rule, as long as it complies with the ANSI standard (Z89.1-1969) referenced by existing 1910.135. To this end, the Agency has redesignated proposed paragraph (b) as paragraph (b)(1) of the final rule and has added "grandfathering" text in paragraph (b)(2) of the final rule.

In the proposal (54 FR 33837), OSHA solicited comments and information concerning bump caps, head protection that was not addressed in existing or proposed 1910.135 and that would not satisfy the criteria of Z89.1-1986. In particular, the Agency requested information with respect to the appropriateness of addressing this type of head protection in the final rule. OSHA also solicited input regarding the need for regulation of bump caps in Issue 5 of the Hearing Notice (55 FR 3412). Some rulemaking participants (e.g. Ex. 3: 28, 40, 58) have suggested that OSHA establish requirements for bump caps. For example, Sandia National Laboratories (Ex. 3: 58) stated:

Currently, there are no Federal standards, regulations, or guidance of any kind with which industry can make proper and adequate decisions on the use of bump caps.

Bump caps are not new to the work place. Where the risk of head injury has been determined to be of low probability or result in minor contusions, scraps or cuts, bump caps have been provided. The old adage that "something is better than nothing" tends to prevail when industry is forced to make an educated guess. Is the adage true in the case of bump caps? In summary there is a need for Federal time and money to be spent on discovering the pro's and con's associated with bump caps and developing corresponding guidance for their use in the work place.

On the other hand, Kerr-McGee Corporation (Ex. 3: 119, pg. 3) stated :

Kerr-McGee's use of bump caps is limited to areas where there is no potential for injury to the head from electrical contact or from falling or moving objects, but where a hazard may exist due to striking one's head against fixed, low-clearance objects.

Kerr-McGee is not aware of any voluntary or consensus standards covering bump caps. If the degree of protection afforded by currently-produced bump caps is determined by scientific studies to be inadequate for their intended use as stated on the products, then OSHA should request ANSI to develop a standard. Otherwise, we do not see the need for additional specifications or standards.

Most rulemaking participants (e.g. Ex. 3: 2, 64, 65, 68; Ex. 7: 22; Tr. 140: 4/3; Tr. 160-61: 4/3) opposed adding requirements for bump caps to the final rule because they believe that if head protection is needed, then it would be safer to require head protection meeting ANSI Z89.1-1986. For example, a commenter from the American Trucking Association (Ex. 3: 64, pg. 5) remarked:

For the trucking industry in general, bump caps are not practical. Although they are used in some operations for select job tasks, the motor carrier industry has found little benefit in reducing minor head injuries through their use. In fact, safety personnel from a cross section of the nation's motor carriers recently explained that bump caps can be more of a hinderance than a help; they frequently fall off, and in some instances, they can cause vision obstructions.

Another commenter, from the Union Carbide Corporation (Ex. 3: 68, pg. 3), said:

* * * Union Carbide would not support a provision pertaining to "bump caps". Where there is sufficient hazard potential to indicate the need for bump caps, it is safer simply to require that hard hats be used.

A commenter from the Amoco Corporation (Ex. 7: 21, pg. 2) stated:

We believe that the use of "bump caps" has no place in a company-sponsored safety program and therefore do not favor its inclusion in this proposal.

OSHA has concluded, based on review of the rulemaking record, that the available data do not support regulatory action regarding bump caps. Therefore, the Agency will neither restrict the use of bump caps nor set criteria for such use. OSHA will evaluate an employer's choice of head protection based on the e hazards to which employees may be exposed. Therefore, the employer's compliance with the requirement for a hazard assessment, in 1910.132(d), is of critical importance.

1910.136 Foot Protection

Proposed paragraph (a) of this section required employers to ensure that employees wear protective footwear when working in areas where there is a danger of foot injuries due to falling and rolling objects, or objects piercing the sole. This proposed provision received a large amount of support from rulemaking participants (e.g. Ex. 3: 49, 59, 64, 67). Many of the rulemaking participants agreed with referencing the American National Standards Institute (ANSI) standard for personal protection, ANSI Z411983, "Protective Footwear," particularly since this standard, unlike the superseded 1967 edition, sets criteria for women's footwear and for puncture resistance. However, two commenters were concerned as to when this protection would be required. A commenter from the American Trucking Association (ATA) stated (Ex. 3: 64, pp. 4-5):

* * * in some operations drivers may be exposed to falling or rolling freight hazards, or other hazards presented by nails or other sharp objects. In these cases, safety shoes, non-penetrable soles, or some other type of protective footwear are appropriate. On the other hand, there are thousands of drivers that never handle freight or come into exposure with falling or rolling freight, sharp objects, or any other number of hazards.

* * * The need to require the equipment must be determined on a case by case basis--taking into account the specific operations, and the specific tasks and hazards of the various job functions.

Another commenter, from the Aluminum Company of America (ALCOA), expressed a similar concern with respect to when foot protection is required (Ex. 3: 2):

Specialty shoes such as "electrical hazard" footwear or "conductive"

shoes have special requirements that would not permit metal insoles to prevent the puncture. If this requirement is upheld, the current design standards and performance criteria for electrical hazard shoes could not be met.

OSHA notes that these concerns are addressed by 1910.132(d), as proposed and as promulgated. That provision requires the employer to perform a hazard assessment. From the hazard assessment, the employer can determine what PPE is needed. As to the example presented by the ATA, if it is determined through an appropriate hazard assessment that an employee is not exposed to foot hazards, the employer would not have to provide this type of protection. As discussed above, the hazard assessment provision allows employers the flexibility to choose the PPE that is appropriate for a particular workplace situation.

Regarding the ALCOA comment, OSHA notes that if it is determined through a hazard assessment that electrical workers are not exposed to the hazard of sharp objects puncturing the soles of shoes (which would be the case in many instances), the protective footwear would not have to provide this type of protection.

On the other hand, if it is determined through a hazard assessment that employees are exposed both to electrical and puncture hazards, the employer would be required to ensure that employees wear shoes which protect the employees from both hazards.

Both the 1983 and 1991 editions of ANSI Z41 set criteria for protection of feet from electrical hazards. While proposed 1910.136(b) required that footwear be designed to either comply with Z41-1983 or be demonstrated to provide equivalent protection, proposed 1910.136(a) did not explicitly require that employees wear foot protection against electrical hazards. The Agency had intended proposed paragraphs (a) and (b) to be consistent and to reflect the 1983 edition of ANSI Z41. While employers are already required to protect employees from electrical hazards under existing 1910.132, OSHA believes that guidance regarding foot protection against electrical hazards will be clearer and more useful if it appears in 1910.136. OSHA has revised proposed 1910.136(a) accordingly.

In paragraph (b) of 1910.136, OSHA proposed that the design of protective footwear comply with the requirements of ANSI Z41-1983, or be of a design which has been demonstrated to be equally effective.

Rulemaking participants (e.g. Ex. 3: 49, 59, 67, 72, 105, 118, 123) supported the adoption of the ANSI standard for foot protection (ANSI Z41). Further, several commenters (e.g. Ex. 3: 65, 67, 82, 84) suggested that OSHA adopt by reference the "updated" or "current" edition of ANSI Z41. For example, Footwear Industries of America (FIA) (Ex. 3: 67, pg. 2) remarked:

FIA therefore agrees with OSHA's proposal to update its personal protective equipment standard for foot protection to comply with the improvements made in the ANSI standard. The Agency should note, however, that the 1983 version of the ANSI Z41 standard may soon be replaced by an updated set of industry standards.

FIA suggests that OSHA may wish to await the 1990 version of ANSI Z41 rather than to incorporate a seven-year old, nearly outdated standard into 29 C.F.R. 1910.136.

The Agency notes that the 1991 edition of the ANSI standard for foot protection has, in fact, replaced the 1983 edition of ANSI Z41 referenced by OSHA in proposed 1910.136(b).

OSHA has determined that it is appropriate to reference the current 1991 edition of ANSI Z41 in 1910.136(b) of the final rule because that edition imposes essentially the same requirements as the 1983 edition, except that the 1991 edition provides more specific performance requirements for resistance to compressive forces and standardizes the puncture resistance testing method. OSHA believes, based on its review of the pertinent ANSI standards and of the protective footwear currently available, that compliance with the referenced requirements of ANSI Z41-1991 will not result in disallowing foot protection that would have complied with the requirements of ANSI Z41-1983.

As discussed above, OSHA has determined that it is appropriate to provide explicitly for the continued use of foot PPE purchased prior to the effective date of the final rule, as long as it complies with the ANSI standard (ANSI Z41.1-1967) referenced by existing 1910.136. Therefore, the Agency has redesignated proposed paragraph (b) as paragraph (b)(1) of the final rule, and has added "grandfathering" text in paragraph (b)(2) of the final rule.

A commenter from the Tennessee Valley Authority (Ex. 3: 79) observed that OSHA proposed to incorporate only the design requirements of the referenced ANSI standards and not the selection requirements, guidelines, and other general information contained in the documents. As explained above in the preamble, OSHA acknowledges that the proposal did not clearly express the Agency's intent to reference the ANSI standards in their entirety and is revising proposed paragraph (b) accordingly.

The incorporation by reference of the pertinent ANSI standards has been approved by the Office of the Federal Register, in accordance with the requirements of 5 U.S.C. 552(a) and 1 CFR part 51. Therefore, proposed paragraph (b) has been revised so that paragraphs (b)(1) and (b)(2) of the final rule reflect that approval and provide the requisite information regarding access to the text of those ANSI standards.

1910.138 Hand protection.

Issue 5 of the hearing notice (55 FR 3414), requested testimony, comments and information regarding the need for regulation of additional types of PPE. Specifically, the Agency stated that it was considering the appropriateness of promulgating requirements for hand protection (gloves) and skin protection (chemical protective clothing).

The Agency's concern with respect to hand protection and chemical protective clothing arose from information contained in the record (e.g. Ex. 6: 2, 3, 4, 5), which indicates that a large number of employee injuries are occurring due to the lack of adequate protection from hand and skin hazards. Additionally, neither OSHA or ANSI currently have criteria for hand protection nor for chemical protective clothing.

While OSHA received some information pertaining to chemical protective clothing, most of the rulemaking participants who addressed Issue 5 focused their remarks on gloves. Those rulemaking participants suggested that OSHA provide performance criteria and test methods for gloves and provide better guidance for the selection of gloves. They stated that in many instances gloves are not being worn, and when gloves are worn, they are often the wrong type of glove for the application involved (e.g. Ex. 3: 114; Ex. 7: 33, 38, 42; Ex. 53; Tr. 213-236: 4/3; Tr. 13-20: 4/4).

For instance, a commenter from the United Steelworkers of America (Ex. 3: 114, pg. 2) said:

Protective clothing and gloves: OSHA should also set standards for these items since so many gloves do not work with some chemicals and last longer with other chemicals.

Also, a commenter from the Washington State Department of Transportation (Ex. 7: 33) stated:

I think that additional language regarding skin and hand protection needs to be added to this section so this type of PPE is not excluded from the selection process.

That commenter also submitted suggested language to address hand hazards, and the selection and fit of gloves.

Boeing (Ex. 7: 38, pg. 2) commented:

Boeing supports the position that additional guidelines related to body and hand protection are necessary in 1910.132. Such guidelines should provide information on the selection of hand and body PPE based on reported experience and industry needs. Such guidance would facilitate the acquisition and use of appropriate PPE and eliminate any uncertainty regarding proper application.

A hearing participant from the Occupational Health Foundation testified (Tr. 213: 4/3):

Based on our experience visiting plants and working with workers, we believe there's a critical need for language to really spell out the program requirements for effective use of gloves.

That participant also remarked (Tr. 215: 4/3):

In 1988, occupational skin disease accounted for about one-fourth of all reported occupational illnesses. Even with under-reporting, it's a very serious worker health problem.

In addition, a hearing participant from the International Chemical Workers Union testified (Tr. 15-16: 4/4):

I go into a lot of plants throughout the country and site visits and the first thing I do is I look at the OSHA 200 log. I see many cases of occupational dermatitis. My first assumption was these people are not wearing gloves. After further investigation once I'm in that facility, I find out that the workers are wearing gloves, but they're wearing the wrong glove for the application involved. So, this really needs to be addressed.

The Agency also received some useful information about the various types of gloves and types of hazards for which they should be used; the composition of the various types of gloves; and, other helpful information (Ex. 3: 27). There were also some informative studies submitted to the record concerning the hand and skin hazards posed by certain chemicals (Ex. 42).

After careful evaluation of the rulemaking record, OSHA has concluded that the high incidence of hand injuries, together with evidence that hand protection either is not being worn by employees or is being worn for the wrong type of hazards, warrants the inclusion of more detailed requirements for selection and wearing of hand protection.

Therefore, a new section, 1910.138, is being added to the final rule to address hand protection.

Paragraph (a) requires that employers select, and that employees use, appropriate hand protection. In addition, paragraph (a) identifies some of the types of hazards for which hand protection must be worn by employees. These include hand hazards and potential hand hazards from skin absorption of harmful substances; severe cuts or lacerations; severe abrasions; punctures; chemical burns; thermal burns; and harmful temperature extremes.

Paragraph (b) addresses the selection of the appropriate type of hand protection for the hazard or potential hazard that is present at the workplace. The purpose of this provision is to assure that employees are using the appropriate type of gloves for the tasks to be performed. For example, foundry workers generally must wear gloves that provide thermal protection, while meat cutters must wear gloves that protect against cuts. While the selection of the appropriate type of glove for a certain task or hazard may seem to be obvious, the rulemaking record indicates that many hand injuries have occurred because the wrong type of glove was used for a certain task.

Therefore, OSHA has determined that employers need more explicit guidance in determining what hand protection their employees need. The Agency anticipates that compliance with this provision will assure that employees use the appropriate type of hand protection for the assigned tasks and the identified hazards.

OSHA has also added information to Appendix B of the final rule regarding the selection of appropriate hand protection.

Third party certification

In the NPRM (54 FR 33835), OSHA solicited comments on whether or not the Agency should require third party certification of PPE. OSHA indicated that it would consider promulgating such a provision to ensure that PPE meets OSHA standards. In addition, Issue 2 of the hearing notice (55 FR 3413) solicited testimony, with supporting information, regarding the extent to which third party certification of PPE required by Subpart I would be appropriate.

The third party certification issue generated more response than any other subject covered by this rulemaking. Many of the participants in this rulemaking supported third party certification (e.g. Ex. 3: 3, 16, 27, 37, 83, 90, 92, 98, 114, 120, 123; Ex. 7: 3, 18, 20; Tr. 55: 4/3; Tr. 92-97: 4/3; Tr. 6-7: 4/4; Ex. 49).

In supporting third party certification, a commenter from MSA (Ex. 3:

18) stated:

In order to provide user companies with assurances that personal protective equipment meets the appropriate standards, we think it would be highly desirable for OSHA to require third-party certification of PPE. We think a program such as the one offered by the Safety Equipment Institute that provides independent testing and quality assurance audits is extremely valuable and adds minimum cost to safety equipment.

A commenter from ETL Testing Laboratories, Inc. (Ex. 3: 43) added:

Our experience supports the use of third-party certification as positive assurance that the products covered by a program do, in fact, meet the standards to which they are tested, and that follow-up inspections verify that they continue to meet the requirements. Third-party certification programs offer the user of personal protective equipment a positive pledge that the product has been designed and manufactured to provide the protection needed. It further simplifies the selection process by way of readily available lists of complying products and recognizable labels and marks on them.

Although we are not prepared to give detailed estimates of costs of third-party certification for the various products, the fees are not burdensome, even on small businesses. The equipment must be tested, whether it is in a program or not; therefore, that cost is present in either case. The administration of a simple yet effective program with follow-up factory inspection would probably not exceed $1,500-2,000 per year per plant based on some similar programs we operate. Obviously, there are many types of programs, and the fees will vary dependent on the level of services rendered.

In supporting third party certification, a commenter (Ex. 3: 103) from the Safety Equipment Institute (SEI) described that organization's certification program as follows:

SEI's program of periodic quality assurance audits and product testing is now widely accepted by industry and government. Over two hundred organizations and federal agencies require the SEI certification as a condition of procurement for PPE. SEI combines both compliance testing of product and periodic quality assurance audits of manufacturers' production facilities. These activities are performed under SEI direction by independent third parties to maintain an objective program.

A commenter from the Food & Allied Service Trades (Ex. 3: 128, p.4) asserted:

We feel that third party certification, akin to that currently required for respiratory protection, should be mandated by the proposed rule. Such certification would guarantee that equipment was thoroughly tested prior to its being relied on to provide safety for workers who may daily, or even occasionally, encounter hazardous situations.

A hearing participant from the Industrial Safety Equipment Association (ISEA) (Tr. 136-137: 4/3) testified:

Whether the third party certification is performed by private or governmental entity, ISEA supports its use as a means of confirming the quality of products made for the protection of workers. In the absence of government standards and certification of compliance, ISEA endorses third party certification of compliance with ANSI standard Z87.1, 1989, and Z89.1, 1986.

We believe that the additional cost involved for manufacturers of personal protective equipment to obtain certification is minimal, as is reflected by the number of eye and face protection devices and industrial helmets which are already certified by the Safety Equipment Institute.

Third party certification costs are averaged over the volume of units sold, and we believe end up as an insignificant cost increase.

Other rulemaking participants expressed concerns with the concept of third party certification. One concern expressed by several rulemaking participants (e.g. Ex. 3: 28, 79, 87, 105) was the belief that OSHA envisioned requiring employers, rather than manufacturers of the PPE, to obtain the third party certification. That was not the Agency's intent. OSHA notes that the manufacturer of the PPE, not the purchaser/user, is, in general, the party who is in the appropriate position to have products tested and evaluated. OSHA's intention regarding the duty of employers was to reaffirm the employer's responsibility to purchase and have employees use only PPE that would meet the requirements of the pertinent standards.

Rulemaking participants also expressed concern that it would be very difficult to have third party certification of prescription safety eyewear (e.g. Ex. 3: 60, 71, 93, 115; Ex. 7: 11, 34; Tr. 184-191: 4/3; Tr. 206: 4/4; Ex. 50). They asserted that third party certification would not be practical since the eyecare providers and prescription laboratories, generally small businesses, who produce prescription eyewear would be unable to bear the burden of third party certification. They also stated that each pair of prescription glasses is unique to the individual for whom it was prescribed. Those rulemaking participants explained that lenses are tested by the manufacturer to meet ANSI standards, and frames are tested to meet ANSI standards by the frame manufacturers. Those participants also expressed the belief that this testing meets the intent of third party certification. OSHA notes that the assurance provided by such procedures may be even better than that obtained through third party certification because each lens and frame is tested, rather than the representative sample of eyewear that would be tested through a third party certification program.

For example, a commenter from the Optical Laboratories Association (OLA), stated (Ex. 3: 71, pp.1-2):

It is the position of OLA that third-party certification of devices utilizing lenses made to individual prescription (Rx) is not feasible, and in fact would not guarantee the safety-level provided by the present system as prescribed by Z87. This is so because third-party certification of all devices would not be practicable, whereas under the present system prescription lenses are subject to a rigorous test and the fabricator of each lens certifies, by its trademark, that the lens meets the standard.

It is therefore submitted that the existing system of separate testing of the frame and lenses of spectacles containing prescription lenses meets OSHA's objectives and is practical. Further testing of the completed device after the lenses are inserted would not be feasible. While the test may not cause a device failure, it may damage the lenses and weaken the frame.

A commenter from Corning (Ex. 3: 115, pg. 4) said:

We do not believe that this [third party testing of prescription eyewear] is practical. Most industrial eyewear today [is] prescribed.

* * * each prescription pair of glasses is unique to the individual for which it was prescribed and made. The common denominator is that prescription eyewear lenses are 100% tested to pass the industrial eyewear requirements for primary protection, i.e., impact resistance. Further, frames are tested and marked by the frame manufacturer to meet the requirements.

Other rulemaking participants opposed third party certification of PPE (e.g. Ex. 3: 65, 68, 99; Ex. 7: 1, 8, 39). For instance, the belief was expressed (Ex. 3: 119) that the present voluntary system is adequate, particularly in light of widespread concerns regarding product liability. In general, those opposed to third party certification believed it would add cost, without adding any appreciable safety benefit.

For example, a commenter from the American Gas Association (Ex. 3: 46, pg. 13) stated:

We urge OSHA not to adopt such a requirement. Such certification would increase unnecessarily the incremental cost of compliance while providing few, if any, benefits. Manufacturers who claim they are in compliance with the ANSI standard could be subject to liability in cases where products fail to meet that standard. The cost of third party compliance would be borne by the industry when the risk of liability should be sufficient to ensure compliance.

Another commenter, from the Pacific Maritime Association (Ex. 3: 80), remarked:

Third party certification of personal protective equipment by employers would be both costly to the manufacturer and, subsequently, the employer. Additionally, it is not clear in the proposal as to how this requirement would enhance the safety of the workforce. It would place an additional administrative and financial burden on both manufacturers and employers, which does not seem to be justified.

In response to the hearing notice, a commenter from the Motor Vehicle Manufacturers Association (MVMA) asserted (Ex. 7: 31, pg. 2):

MVMA strongly objects to the proposal of requiring third party certification for personal protective equipment. We believe that personal protective equipment which meets the requirements of various safety standards such as ANSI and the certification programs conducted by the Safety Equipment Institute are adequate to provide the assurance that the PPE will meet the performance specifications necessary to protect an employee. To require a third party certification will be redundant, costly and will not enhance the safety or performance of PPE.

In opposing third party certification, a commenter from Monsanto (Ex. 7:

16) said:

[W]e question whether third party certification will add any benefits in terms of protection for employees. It will certainly add to the cost of such equipment. We believe that the manufacturers' written statement that their equipment meets the requirements of the appropriate ANSI standard should be sufficient. Our perception is that this arrangement has worked well over the years and we see no benefit in changing it.

OSHA has carefully considered this issue and, after a thorough evaluation of all of the information contained in the record, has concluded for several reasons, that it would not be appropriate to require third party certification.

First, while OSHA has recognized that third party certification of PPE can increase confidence in and use of PPE, a requirement for such third party certification will not add to the inherent safety of the PPE tested and certified. Also, given the extent to which the PPE industry has already voluntarily adopted third party certification, the Agency believes that any benefit resulting from the addition of such a requirement would be minimal.

Furthermore, revised subpart I provides other means to determine if PPE meets the pertinent standard. In particular, compliance with revised subpart I's performance-oriented requirements for hazard assessment, PPE selection, and training will result in appropriate selection, use and maintenance of PPE by affected employees. For example, the Agency expects that the training required in new 1910.132(f) will increase affected employee confidence in the assigned PPE and, as a consequence, increase the use of PPE.

Also, OSHA believes, given the limited benefit expected from third party certification, that it would be unreasonable to require that employers procure only PPE that has third party certification. Such a requirement would impose unnecessary burdens on PPE manufacturers who can establish by other means that their products comply with the pertinent OSHA standards.

In addition, the Agency believes that allocating the resources needed to implement and enforce a requirement for third party certification would unreasonably detract from OSHA's ability to enforce the other provisions of revised subpart I.

The Agency is also adding non-mandatory appendices A and B to provide additional guidance to employers and employees with regard to PPE for eye, face, head, foot, and hand hazards.

[59 FR 16334, April 6, 1994]