Updating OSHA Standards Based on National Consensus Standards; Personal Protective Equipment, 27771-27782 [E7-9315]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 72, Number 95 (Thursday, May 17, 2007)]
[Proposed Rules]
[Pages 27771-27782]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-9315]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1910, 1915, 1917, and 1918

[Docket No. OSHA-2007-0044]
RIN 1218-AC08


Updating OSHA Standards Based on National Consensus Standards; 
Personal Protective Equipment

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: OSHA is proposing to revise the personal protective equipment 
(PPE) sections of its general industry, shipyard employment, 
longshoring, and marine terminals standards regarding the use of eye 
and face protective devices, head protection, and foot protection. OSHA 
is proposing to replace the existing references to specific consensus 
standards with performance language requiring PPE to be constructed in 
accordance with good design standards. The proposed revision includes 
guidance for determining what is a good design standard. In addition, 
OSHA is proposing to add non-mandatory appendices that list standards 
that constitute good design standards as used in the requirement.
    OSHA is also proposing to delete a paragraph in its ventilation 
standard that requires safety shoes to comply with a specific American 
National Standards Institute (ANSI) standard, and another paragraph in 
in its welding, cutting and brazing standard that requires filter 
lenses and plates in eye protective equipment to meet a test for 
transmission of radiant energy prescribed in another specific ANSI 
standard. In proposing to delete these paragraphs, OSHA intends for 
this safety equipment to comply with the applicable PPE design 
provisions in Subpart I of the general industry standards.
    These proposed revisions are a continuation of OSHA's effort to 
update or remove references to specific consensus and industry 
standards

[[Page 27772]]

located throughout the Agency's standards.

DATES: Comments and requests for an informal public hearing must be 
submitted by the following dates:
     Hard copy: Your comments or hearing requests must be 
submitted (postmarked or sent) by July 16, 2007.
     Electronic transmission and facsimile: Your comments or 
hearing requests must be sent by July 16, 2007.

ADDRESSES: You may submit comments, requests for hearings and 
additional materials by any of the following methods:
    Electronically: You may submit comments, requests for hearings, and 
attachments electronically at https://www.regulations.gov, which is the 
Federal eRulemaking Portal. Follow the instructions on-line for making 
electronic submissions.
    Fax: If your submissions, including attachments, are not longer 
than 10 pages, you may fax them to the OSHA Docket Office at (202) 693-
1648.
    Mail, hand delivery, express mail, messenger or courier service: 
You must submit three copies of your comments, requests for hearings 
and attachments to the OSHA Docket Office, Docket No. OSHA--2007--0044, 
U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, NW., 
Washington, DC 20210. Deliveries (hand, express mail, messenger and 
courier service) are accepted during the Department of Labor's and 
Docket Office's normal business hours, 8:15 a.m.-4:45 p.m., e.t.
    Instructions: All submissions must include the Agency name and the 
OSHA docket number for this rulemaking (OSHA Docket No. OSHA-2007-
0044). Submissions, including any personal information you provide, are 
placed in the public docket without change and may be made available 
online at https://www.regulations.gov.
    Docket: To read or download submissions or other material in the 
docket, go to https://www.regulations.gov or the OSHA Docket Office at 
the address above. All documents in the docket are listed in the 
www.regulations.gov index, however, some information (e.g., copyrighted 
material) is not publicly available to read or download through the Web 
site. All submissions, including copyrighted material, are available 
for inspection and copying at the OSHA Docket Office.

FOR FURTHER INFORMATION CONTACT: For general information and press 
inquiries contact Kevin Ropp, Director, OSHA Office of Communications, 
Room N-3647, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Washington, DC 20210; telephone: (202) 693-1999. For technical 
inquiries, contact Ted Twardowski, Directorate of Standards and 
Guidance, Room N-3609, OSHA, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Washington, DC 20210; telephone: (202) 693-2070 or fax: 
(202) 693-1663. Copies of this Federal Register notice are available 
from the OSHA Office of Publications, Room N-3101, U.S. Department of 
Labor, 200 Constitution Avenue, NW., Washington, DC 20210, telephone: 
(202) 693-1888. Electronic copies of this Federal Register notice, as 
well as news releases and other relevant documents, are available at 
OSHA's Web page at https://www.osha.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Discussion of Changes
II. Legal Considerations
III. Preliminary Economic Analysis and Regulatory Flexibility Act 
Certification
IV. Paperwork Reduction Act
V. Federalism
VI. State-Plan States
VII. Unfunded Mandates Reform Act
VIII. Authority and Signature

I. Discussion of Changes

A. Introduction

    As discussed in a previous Federal Register notice (69 FR 68283), 
OSHA is undertaking a series of projects to update its standards to 
reflect the latest versions of consensus and industry standards. These 
projects will include updating or revoking consensus and industry 
standards incorporated by reference, updating regulatory text of 
current OSHA rules that were adopted directly from the language of 
outdated consensus standards, and, where appropriate, replacing 
specific references to outdated consensus standards with performance-
oriented requirements. This action is another step in OSHA's long-term 
effort to update or revoke references to specific consensus and 
industry standards.
    OSHA is performing two main actions in this proposal. First, OSHA 
is proposing to revise the personal protective equipment (PPE) sections 
of its general industry, shipyard employment, longshoring, and marine 
terminals rules to require that PPE be constructed in accordance with 
good design standards. The proposed revision also provides guidance on 
what is a good design standard. In addition, OSHA is proposing to add 
non-mandatory appendices that list standards that constitute good 
design standards for purposes of the requirement. Second, OSHA is 
proposing to delete two paragraphs in Sec.  1910.94 (Ventilation) and 
Sec.  1910.252 (Welding, cutting and brazing) referencing specific 
versions of American National Standards Institute (ANSI) standards on 
foot protection and eye and face protective devices, respectively. OSHA 
discusses each action below.

B. Revisions to PPE Sections in General Industry, Shipyard Employment, 
Longshoring, and Marine Terminals Standards

(1) Background
    Subpart I of OSHA's general industry standards contains design 
requirements for eye and face protective devices, head protection, and 
foot protection. See Sec. Sec.  1910.133, 1910.135, 1910.136. OSHA has 
similar requirements in subpart I of part 1915 (Shipyard Employment), 
subpart E of part 1917 (Marine Terminals), and subpart J of part 1918 
(Longshoring). These rules require, among other things, that this PPE 
comply with certain ANSI standards incorporated by reference, unless 
the employer demonstrates that a piece of equipment is as effective as 
equipment that complies with the incorporated ANSI standard. See, e.g., 
Sec.  1910.133(b)(1).\1\ These design provisions are part of 
comprehensive requirements to ensure that employees use PPE that will 
protect them from hazards in the workplace.
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    \1\ The general industry and shipyard employment standards 
expressly allow employers to use PPE that is as protective as PPE 
constructed in accordance with the incorporated standards. OSHA uses 
its de minimis policy to allow employers covered by the longshoring 
and marine terminals standards to use PPE that is as protective as 
PPE constructed in accordance with the incorporated standards. See 
OSHA Instruction CPL 2.103, Field Inspection Reference Manual Ch. 
III, C.2.g; Memorandum from Richard Fairfax, Director, Directorate 
of Enforcement Programs to Regional Administrators (June 19, 2006).
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    All of the incorporated ANSI standards have been superseded by more 
current versions. Table I lists the ANSI standards that are 
incorporated by reference and the current versions of those standards 
for the PPE that are covered by this proposed rule.

[[Page 27773]]



                                     Table 1.--Current OSHA PPE Requirements
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                                                             Incorporated
         Subpart/section                     PPE             ANSI standard    Current version of ANSI standard
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Subpart I/Sec.   1910.133 (Eye    Sec.   1910.133(b)(1)         Z87.1-1989  ANSI Z87.1-2003.
 and Face Devices-General          Protective eye and face
 Industry).                        devices purchased after
                                   July 5, 1994.
                                  Sec.   1910.133(b)(2)         Z87.1-1968  ANSI Z87.1-2003.
                                   Protective eye and face
                                   devices purchased
                                   before July 5, 1994.
Subpart I/Sec.   1910.135         Sec.   1910.135(b)(1)         Z89.1-1986  ANSI Z89.1-2003.
 (Headwear-General Industry).      Protective helmets
                                   purchased after July 5,
                                   1994.
                                  Sec.   1910.135(b)(2)         Z89.1-1969  ANSI Z89.1-2003.
                                   Protective helmets
                                   purchased before July
                                   5, 1994.
Subpart I/Sec.   1910.136         Sec.   1910.136(b)(1)           Z41-1991  ASTM F-2412-05 &-2413-05 \2\
 (Footwear-General Industry).      Protective footwear
                                   purchased after July 5,
                                   1994.
                                  Sec.   1910.136(b)(2)         Z41.1-1967  ASTM F-2412-05 &-2413-05
                                   Protective footwear
                                   purchased before July
                                   5, 1994.
Subpart I/Sec.   1915.153 (Eye    Sec.   1915.153(b)(1)         Z87.1-1989  ANSI Z87.1-2003.
 and Face Devices-Shipyard         Protective eye and face
 Employment).                      devices purchased after
                                   May 20, 1982.
                                  Sec.   1915.153(b)(2)         Z87.1-1979  ANSI Z87.1-2003.
                                   Protective eye and face
                                   devices purchased
                                   before May 20, 1982.
Subpart I/Sec.   1915.155         Sec.   1915.155(b)(1)         Z89.1-1986  ANSI Z89.1-2003.
 (Headwear-Shipyard Employment).   Protective helmets
                                   purchased after August
                                   22, 1996.
                                  Sec.   1915.155(b)(2)         Z89.1-1969  ANSI Z89.1-2003.
                                   Protective helmets
                                   purchased before August
                                   22, 1996.
Subpart I/Sec.   1915.156         Sec.   1915.156(b)(1)           Z41-1991  ASTM F-2412-05 &-2413-05
 (Footwear-Shipyard Employment).   Protective footwear
                                   purchased after August
                                   22, 1996.
                                  Sec.   1915.156(b)(2)           Z41-1983  ASTM F-2412-05 &-2413-05
                                   Protective footwear
                                   purchased before August
                                   22, 1996.
Subpart E/Sec.   1917.91 (Eye     1917.91(a)(1) Protective      Z87.1-1989  ANSI Z87.1-2003.
 and Face Devices-Marine           eye and face devices.
 Terminals).
Subpart E/1917.93 (Headwear-      Sec.   1917.93(b)             Z89.1-1986  ANSI Z89.1-2003.
 Marine Terminals).                Protective headwear.
Subpart E/Sec.   1917.94          Sec.   1917.94(b)               Z41-1991  ASTM F-2412-05 &-2413-05
 (Footwear-Marine Terminals).      Protective footwear.
Subpart J/Sec.   1918.101 (Eye    Sec.   1918.101(a)            Z87.1-1989  ANSI Z87.1-2003.
 and Face Devices-Longshoring).    Protective eye and face
                                   devices.
Subpart J/Sec.   1918.103         Sec.   1918.103(b)            Z89.1-1986  ANSI Z89.1-2003.
 (Headwear-Longshoring).           Protective headwear.
Subpart J/Sec.   1918.104         Sec.   1918.104(b)              Z41-1991  ASTM F-2412-05 &-2413-05
 (Footwear-Longshoring).           Protective footwear.
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    As Table I indicates, the incorporated ANSI standards are all over 
a decade old and in some instances are two decades old. All of the ANSI 
standards have been updated, and in one instance, the ANSI Z41 standard 
for protective footwear, has been completely replaced. As the standards 
have been updated, manufacturers have switched to manufacturing PPE 
that is in accord with the updated standards. As a result, employers 
and employees have difficulty obtaining PPE manufactured in accordance 
with the incorporated standards. OSHA estimates the average life of 
these types of PPE to be about two to four years. OSHA Docket S-060, 
Preliminary Regulatory Impact & Regulatory Flexibility Analysis of the 
Personal Protective Equipment Standard Table IV-2 (U.S. Dep't of Labor, 
OSHA, Office of Regulatory Analysis, June 30, 1989). Accordingly, the 
difficulty is widespread and occurs on a regular basis.
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    \2\ ANSI's Z41 standard has been withdrawn and replaced by the 
cited ASTM International standards. ASTM International was formerly 
the American Society for Testing and Materials.
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    In the past, OSHA has updated its PPE standards by revising them to 
incorporate more recent versions of the ANSI standards. 59 FR 16360 
(Apr. 6, 1994). This temporarily alleviates the problem of trying to 
obtain PPE manufactured in accordance with an outdated version of an 
ANSI standard, but it ensures that the problem will arise again as the 
incorporated standards are superseded by future versions. Despite its 
best efforts, OSHA cannot propose and finalize its standards as 
frequently as the consensus standards development organizations (SDOs). 
Some consensus standards are updated every 3-5 years; OSHA simply does 
not have the resources to engage in full rulemaking at this frequency 
for all of its PPE standards.
    OSHA has preliminarily concluded that incorporating specific 
versions of ANSI standards is not an effective approach for its PPE 
design requirements. Therefore, OSHA is proposing a performance-
oriented approach: to replace references to specific ANSI standards 
with a requirement that PPE be constructed in accordance with good 
design standards. It also establishes additional guidance for employers 
as to what constitutes a good design standard.
2. The Provisions of the Proposal
    The crux of the proposed revision is the requirement that the PPE 
be constructed in accordance with good design standards. Eye and face, 
head, and foot PPE are commonly worn in general industry, shipyard 
employment, longshoring, and marine terminals. The PPE must be strong 
enough to protect employees from the hazards they face in the 
workplace. It also must be constructed and tested in accordance with 
sound and accepted principles that will ensure the safety of 
employees.\3\
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    \3\ An inherent part of any good design standard is a testing 
protocol for ensuring that the manufactured equipment will provide a 
specified level of protection. Accordingly, the requirement that the 
PPE be constructed in accordance with good design standards includes 
the requirement that the PPE be tested in accordance with a testing 
protocol that is designed to ensure that the PPE provides the level 
of protection the good design standard is intended to achieve.
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    Generally, good design standards for these types of PPE are 
reflected in the relevant national consensus standards.

[[Page 27774]]

OSHA has examined the standards for eye and face, head, and foot PPE 
issued by ANSI and ASTM International (ASTM) over the last 40 years. 
OSHA has found that these standards reflect the state of the art in 
terms of design safety that existed at the time they were issued.\4\ 
Furthermore, each successive edition of these standards has improved 
the design features of the PPE. For example, a comparison between the 
1989 and 2003 versions of the ANSI standard for protective eye and face 
equipment shows that ANSI has strengthened the impact resistance 
requirements of the standard. Similarly, the current ASTM International 
standard for footwear improves on prior ANSI standards for footwear by 
increasing protection against electrical hazards.
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    \4\ OSHA has placed copies of these national consensus standards 
in the docket for this rulemaking (OSHA--2007--0044).
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    To develop their standards, these SDOs receive input from industry 
groups, employee representatives, government agencies, safety experts, 
and other affected parties. See, e.g., ANSI Z89.1-2003, American 
National Standard for Industrial Head Protection Foreword. As a result, 
they develop standards that are generally recognized as providing an 
adequate level of safety, as shown by the widespread use of these 
standards by manufacturers even where OSHA standards specify an earlier 
version.
    Congress recognized the importance of national consensus standards 
in the effort to protect employee safety and health. For the first two 
years following promulgation of the Occupational Safety and Health Act 
of 1970 (OSH Act), Congress authorized the adoption of national 
consensus standards as OSHA standards without notice and comment. 29 
U.S.C. 655(a). For standards adopted using the notice-and-comment 
procedures of the OSH Act, relevant national consensus standards are 
the baseline for evaluating OSHA standards. See 29 U.S.C. 655(b)(8) 
(when a new standard differs from a national consensus standard, the 
Secretary must explain why the new standard will better effectuate 
purposes of the Act than the national consensus standard).
    In light of this, OSHA believes that design standards that are 
formulated pursuant to the processes described above will generally 
constitute good design standards. OSHA's analysis of the PPE design 
standards over the last 40 years provides evidence of this. OSHA is 
thus including in the proposal a presumption that PPE complies with the 
good design requirement if it is constructed in accordance with a 
design standard that meets specified criteria consistent with the 
criteria for the development of national consensus standards.
    The specific criteria of the proposal are drawn from the criteria 
nationally recognized testing laboratories must apply for determining 
if a standard is appropriate for evaluating the safety of equipment or 
materials. See Sec.  1910.7(c). They also reflect the criteria of a 
national consensus standard as defined in the OSH Act and the way many 
SDOs operate. See 29 U.S.C. 652(9). The proposal is intended to codify 
the criteria that have been used successfully for developing design 
standards that ensure an adequate level of safety.
    The first of these criteria ensures that the design standard 
incorporates safety concerns as part of the standard and that these 
safety concerns are related to the particular piece of PPE covered by 
the OSHA standard. The second ensures that the design standard provides 
guidelines for constructing the equipment and has achieved a minimum 
level of recognition by safety experts as providing an adequate level 
of safety. The third of these criteria is process-oriented; it ensures 
that knowledgeable and affected interests have an opportunity to 
provide input into the development of the standard, which advances the 
goal of ensuring that the design standard provides an adequate level of 
safety.
    PPE constructed in accordance with the proposal's criteria for a 
good design standard is only presumptively compliant with the 
standard's general requirement that the PPE be constructed in 
accordance with good design standards. The presumption is primarily 
intended to reserve OSHA's authority to determine that a future 
national consensus standard for PPE design specifications will not 
provide an adequate level of protection and therefore will not meet the 
general good design requirement. OSHA believes that it will rarely, if 
ever, determine that a future national consensus standard related to 
PPE design specifications does not provide sufficient protection; 
nevertheless, OSHA's proposed approach provides for that possibility.
    To further increase the notice employers have of their obligations 
under the proposed requirements, OSHA is also proposing to list in non-
mandatory appendices the national consensus standards that OSHA has 
determined are good design standards as that concept is used in the 
proposal. OSHA is proposing to reference in the non-mandatory 
appendices the 1986 (headwear), 1989 (eye and face devices), and 1991 
(footwear) versions of the national consensus standards incorporated in 
the existing standards for PPE, as well as the more recent versions of 
those national consensus standards. Specifically, OSHA proposes to list 
in the non-mandatory appendices the following standards: for protective 
eye and face devices, ANSI Z87.1-1989, ANSI Z87.1-1998, and ANSI Z87.1-
2003; for protective headwear, ANSI Z89.1-1986, ANSI Z89.1-1997, and 
ANSI Z89.1-2003; and for protective footwear, ANSI Z41-1991, ANSI Z41-
1999, and ASTM F-2412-05 and ASTM F-2413-05. As stated above, OSHA has 
carefully reviewed all of these standards and has found that they 
establish design criteria that provide adequate protection for 
employees.
    OSHA has not, however, proposed to list ANSI standards from before 
1986. OSHA's incorporation of earlier versions in its existing PPE 
design standards was limited to allowing the use of PPE that was 
purchased by a certain date that has long passed. For ten years or 
more, the existing standards have not permitted the use of PPE 
manufactured in accordance with those earlier versions if the PPE was 
purchased after those specified dates. In addition, for some time 
manufacturers have not been manufacturing PPE in accordance with those 
earlier versions. Given the limited useful life of PPE and the length 
of time that has passed since employers and employees have been able to 
use PPE manufactured in accordance with those earlier versions, OSHA 
believes that no PPE currently in use was constructed in accordance 
with those earlier standards. Accordingly, there is no need to list 
those earlier standards.
    Employers are not required to ensure that the PPE is constructed in 
accordance with a listed national consensus standard. The fundamental 
requirement is that the PPE be constructed in accordance with good 
design standards. However, OSHA is proposing that once a national 
consensus standard is listed in the non-mandatory appendices, the 
presumption in the standard would be conclusive for enforcement 
purposes. Of course, OSHA's decision to list a national consensus 
standard in the non-mandatory appendices would not preclude OSHA from 
initiating appropriate procedures to revoke that listing. But until and 
unless OSHA revokes a listing through that procedure, employers will be 
assured that their use of PPE that was constructed in accordance with a 
listed national consensus standard meets the good design requirement. 
An employer's

[[Page 27775]]

reasonable reliance on a manufacturer's certification that the PPE was 
constructed in accordance with any of the listed national consensus 
standards satisfies the employer's obligation to ensure that the PPE 
was constructed in accordance with a good design standard.
    OSHA also intends to update in the future the non-mandatory 
appendices to include any future national consensus standard it 
determines meets the requirements of the proposed rule. OSHA is 
committing itself to reviewing future national consensus standards for 
PPE design criteria as they are promulgated. Assuming the review 
confirms that a newly promulgated national consensus standard is a good 
design standard, OSHA will use the procedures it has developed for 
direct final rules to add the newly promulgated national consensus 
standard to the non-mandatory appendices. Those procedures involve OSHA 
publishing the direct final rule in the Federal Register along with an 
identical proposed rule. The direct final rule will go into effect 
unless OSHA receives a significant adverse comment within a specified 
period. If OSHA receives significant adverse comments, it will withdraw 
the direct final rule and treat the comments as responses to the 
proposed rule. When using the direct final rule procedures for updating 
the non-mandatory appendices for the PPE design standards, OSHA will 
consider as significant adverse comments only those comments that 
explain why the reviewed version does not provide equivalent or greater 
protection to employees. As stated, the addition of a new national 
consensus standard would not require employers to use PPE constructed 
in accordance with that standard; it would merely provide employers 
with an additional option for meeting the good design requirement. OSHA 
anticipates that additions to the non-mandatory appendices will occur 
rapidly and without controversy.
    Finally, in switching from a specification provision to a 
performance oriented provision, OSHA is not intending to decrease 
employee protection. The references to the specific ANSI standards in 
OSHA's existing rules are the minimum design specifications for PPE 
used in the workplace and, as stated above, OSHA is listing them in the 
non-mandatory appendices. PPE meeting good design standards must at a 
minimum be constructed to provide protection equivalent to, or greater 
than, this minimum level of protection. OSHA is adding language in the 
regulatory text of the proposed rule that makes this clear.\5\
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    \5\ See, e.g., Proposed Sec.  1910.133(b)(2).
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3. Effects of the Proposal
    OSHA believes that requiring use of PPE that meets good design 
standards is appropriate and will increase employee safety and health 
by facilitating the use of state of-the-art PPE. It is appropriate to 
provide this type of flexibility because, as stated above, OSHA's 
experience has shown that overall safety increases with each update of 
national consensus standards.
    OSHA standards should be written to facilitate the ability of 
employers to take advantage of safety advances developed by ANSI and 
similar organizations. Even when an updated national consensus standard 
merely maintains the status quo in terms of safety, ensuring that OSHA 
standards are written to facilitate the use of PPE constructed in 
accordance with those standards serves the interest of protecting 
employee safety. Once updated standards are promulgated, over time PPE 
constructed in accordance with those standards become increasingly more 
available and PPE constructed under the predecessor standards become 
increasingly unavailable. Those seeking to obtain PPE will therefore 
usually have an easier time finding PPE manufactured in accordance with 
a current version than PPE manufactured in accordance with an older 
version.
    OSHA's current PPE design standards, however, impose obstacles to 
allowing employers and employees to obtain the benefit of better PPE 
manufactured under improved standards or newer equipment manufactured 
under updated standards that maintain the status quo. Under the current 
general industry and shipyard employment standards, to obtain these 
benefits employers must be able to demonstrate that the PPE 
manufactured in accordance with the updated versions are as protective 
as PPE manufactured in accordance with the referenced versions. 
Employers need to research the referenced national consensus standards, 
identify and analyze the updated versions, and make the determination 
as to whether PPE designed to meet the updated versions provide 
employees with protection equivalent to or greater than the protection 
they receive with PPE designed in accordance with the referenced 
versions.
    The proposal reduces if not eliminates this burden. It will 
authorize the use of PPE that meets the current versions of the 
referenced standards, which as noted above OSHA has determined meet the 
good design requirement and which therefore will be listed in the non-
mandatory appendices. Similarly, the proposal presumes that a future 
national consensus standard, as described in this proposal, will meet 
the good design requirement. The possibility that a future national 
consensus standard will not be a good design standard is remote, and 
employers will be able to rely on the presumption established by the 
proposal with a high degree of confidence.
    In sum, by replacing the existing PPE provisions with performance 
requirements, the transition to the use of PPE built in accordance with 
updated standards will occur more certainly and rapidly than it occurs 
under the present OSHA standards. This will facilitate employer efforts 
to improve the safety and health of employees by providing state of the 
art PPE. In addition, the proposal does not add any compliance burdens 
on employers.
4. Alternatives
    In developing the proposal, OSHA considered several alternatives. 
While some of these approaches had advantages, for the reasons stated 
below, OSHA has decided preliminarily not to adopt them.
    First, OSHA considered proposing to update the PPE standards by 
incorporating the most current versions of the referenced national 
consensus standards. As discussed above, OSHA has done this in the 
past. However, this would provide only a short-term fix to the problem 
of references to outdated consensus standards. In OSHA's view, this 
approach would simply perpetuate the obstacles to using state-of-the 
art PPE that are contained in the current OSHA standards.
    Second, OSHA considered replacing the references to specific design 
standards with performance-oriented language that would require the PPE 
to provide the level of protection that a conscientious safety expert 
would provide. In OSHA's view, the proposal is superior to this 
alternative because it provides greater notice to employers of their 
compliance obligations.
    Finally, OSHA considered proposing specific performance-based 
criteria, such as a particular level of impact-resistance, that the 
various types of PPE would have to meet. The specific performance-based 
criteria of design standards, however, are generally tied to particular 
test methods, and employers are not in the best position to determine 
if the performance-based criteria have been met. Thus, in OSHA's view, 
the proposal is easier for employers to implement than a standard of 
this type.

[[Page 27776]]

Moreover, OSHA believes that this alternative would tend to favor a 
particular design standard at the potential expense of discouraging 
adherence to future improved design standards.
5. Request for Comments
    OSHA solicits comments on the proposal's combination of a general 
good design requirement and the presumption that PPE constructed in 
accordance with certain specific criteria complies with the good design 
requirement. More specifically, OSHA solicits comments on the following 
issues:
    1. Does this approach provide employers with sufficient notice of 
their legal obligations while also providing sufficient flexibility to 
account for future developments in design standards for PPE?
    2. Has OSHA accurately prescribed the criteria that will ensure 
that a standard meeting those criteria will at least presumptively be a 
good design standard? Are the criteria sufficiently clear for employers 
to determine whether certain PPE meets the good design requirement? In 
particular, can employers easily understand and apply the second 
criterion--that a particular design standard be recognized in the 
United States as providing specifications that result in an adequate 
level of safety? If not, what criterion should be used to determine 
whether a particular design standard is or is not recognized in the 
United States as providing specifications that result in an adequate 
level of safety?
    3. Should the listing of a design standard in a Non-Mandatory 
Appendix be conclusive on whether PPE constructed in accordance with 
that standard meets the good design requirement?
    4. Are there other publicly available design standards that are not 
included in the proposed non-mandatory appendices that would provide an 
adequate level of protection and therefore should be included in the 
appendices?
    5. Are there other alternatives the Agency should consider that 
will provide sufficient notice to employers, appropriate protection for 
employees, and flexibility to account for future developments in design 
standards for PPE?
    6. Are there PPE currently in use that were constructed in 
accordance with national consensus standards not included in the 
proposed appendices?

C. Deletions of Outdated References From Ventilation and Welding 
Standards

    Section 1910.94(a)(5)(v)(a) of OSHA's ventilation standard requires 
that safety shoes comply with ANSI Z41.1-1967; Sec.  
1910.252(b)(2)(ii)(I) of OSHA's welding standard requires filter lenses 
and plates in protective eyewear to comply with the transmission test 
for radiant energy prescribed in ANSI Z87.1-1968. OSHA is proposing to 
delete these paragraphs. By doing so, OSHA intends for the safety shoes 
required by Sec.  1910.94(a)(5)(v) to comply with revised section 
1910.136(b) requiring footwear to meet good design standards. OSHA 
intends for filter lenses and plates in protective eyewear required by 
section 1910.252(b)(2) to comply with revised section 1910.133(b) 
requiring eye and face protective devices to meet good design 
standards. OSHA is not deleting the requirements in Sec. Sec.  1910.94 
and 1910.252 that specify when, and under what conditions, employees 
must use certain PPE; these requirements will remain in the affected 
standards.
    OSHA believes that these deletions will not increase compliance 
burdens, including compliance costs. It is unlikely that employees are 
using safety shoes that are manufactured in accordance with ANSI Z41.1-
1967. Instead, employees are presumably using shoes that were 
manufactured in accordance with the 1991 or 1999 version or its current 
replacement, ASTM F-2412-05 and 2413-05. Furthermore, OSHA believes 
that virtually all employees affected by the welding standard use 
eyewear that complies with ANSI Z87.1-1989, ANSI 87.1-1998, or ANSI 
Z87.1-2003, rather than eyewear manufactured in accordance with the 
1968 transmission test for radiant energy required in the existing OSHA 
standard.
    OSHA solicits comments on whether OSHA is correct that compliance 
burdens would not increase under the proposal. OSHA also solicits 
comments on whether OSHA should, rather than delete the paragraphs, 
replace them with cross references to Sec. Sec.  1910.136(b) and 
1910.133(b).

II. Legal Considerations

    The purpose of the Occupational Safety and Health Act of 1970, 29 
U.S.C. 651 et seq., is to achieve to the extent possible safe and 
healthful working conditions for all employees. 29 U.S.C. 651(b). To 
achieve this goal Congress authorized the Secretary of Labor to 
promulgate and enforce occupational safety and health standards. 29 
U.S.C. 654(b), 655(b). A safety or health standard is a standard which 
requires employers to maintain conditions or adopt practices that are 
reasonably necessary or appropriate to provide safe or healthful 
working conditions. 29 U.S.C. 652(8). A standard is reasonably 
necessary or appropriate within the meaning of section 652(8) if, among 
other things, a significant risk of material harm exists in the 
workplace and the proposed standard would substantially reduce or 
eliminate that workplace risk.
    OSHA has already determined that requirements for PPE, including 
design requirements, are reasonably necessary or appropriate within the 
meaning of section 652(8). This proposed rule neither reduces employee 
protection nor alters an employer's obligations under the existing OSHA 
standard. Under the proposal, employers will be able to continue to use 
the same equipment they have been using to meet their compliance 
obligation under the existing standards' design criteria requirement. 
The proposal provides guidance on additional PPE employers can use to 
comply with the design criteria requirement by providing equivalent or 
greater protection. By facilitating but not mandating the transition to 
PPE constructed in accordance with updated versions of national 
consensus standards, employee protection will increase and compliance 
burdens on employers will stay the same or decrease. For these reasons, 
OSHA is not required in this action to determine significant risk or 
the extent to which the proposal would reduce that risk, as would 
typically be required by Industrial Union Department, AFL-CIO v. 
American Petroleum Institute, 448 U.S. 607 (1980).

III. Preliminary Economic Analysis and Regulatory Flexibility Act 
Certification

    This action is not economically significant within the context of 
Executive Order 12866, or a major rule under the Unfunded Mandates 
Reform Act or Section 801 of the Small Business Regulatory Enforcement 
Fairness Act. The rulemaking would impose no additional costs on any 
private or public sector entity, and does not meet any of the criteria 
for an economically significant or major rule specified by the 
Executive Order or relevant statutes.
    This action allows for increased flexibility in choosing the PPE 
used by employees. However, the rule does not require an employer to 
update or replace its PPE solely as a result of this rule, if the PPE 
currently in use meets the existing OSHA standard.

[[Page 27777]]

    Furthermore, because the rule imposes no costs, OSHA certifies that 
it would not have a significant impact on a substantial number of small 
entities.

IV. Paperwork Reduction Act

    This action does not impose new information collection requirements 
for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-30.

V. Federalism

    OSHA has reviewed this proposed rule in accordance with the 
Executive Order on Federalism (Executive Order 13132, 64 FR 43255, 
August 10, 1999), which requires that agencies, to the extent possible, 
refrain from limiting State policy options, consult with States prior 
to taking any actions that would restrict State policy options, and 
take such actions only when there is clear constitutional authority and 
the presence of a problem of national scope. Executive Order 13132 
provides for preemption of State law only if there is a clear 
congressional intent for the Agency to do so. Any such preemption is to 
be limited to the extent possible.
    Section 18 of the OSH Act, 29 U.S.C. 667, expresses Congress' 
intent to preempt State laws where OSHA has promulgated occupational 
safety and health standards. Under the OSH Act, a State can avoid 
preemption on issues covered by Federal standards only if it submits, 
and obtains Federal approval of, a plan for the development of such 
standards and their enforcement (State-Plan State). 29 U.S.C. 667. 
Occupational safety and health standards developed by such State-Plan 
States must, among other things, be at least as effective in providing 
safe and healthful employment and places of employment as the Federal 
standards. Subject to these requirements, State-Plan States are free to 
develop and enforce under State law their own requirements for safety 
and health standards.
    This proposed rule complies with Executive Order 13132. In States 
without OSHA-approved State Plans, this action limits State policy 
options in the same manner as all OSHA standards. In State-Plan States, 
this action does not significantly limit State policy options. As 
explained below, State-Plan States will not have to adopt the proposal, 
if it is promulgated as proposed.

VI. State Plan States

    When Federal OSHA promulgates a new standard or more stringent 
amendment to an existing standard, the 26 States or U.S. Territories 
with their own OSHA-approved occupational safety and health plans must 
revise their standards to reflect the new standard or amendment, or 
show OSHA why there is no need for action, e.g., because an existing 
State standard covering this area is already at least as effective as 
the new Federal standard or amendment. 29 CFR 1953.5(a). These 26 
States and territories are: Alaska, Arizona, California, Connecticut 
(plan covers only State and local government employees), Hawaii, 
Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New 
Mexico, New Jersey (plan covers only State and local government 
employees), New York (plan covers only State and local government 
employees), North Carolina, Oregon, Puerto Rico, South Carolina, 
Tennessee, Utah, Vermont, Virginia, Virgin Islands (plan covers only 
territorial and local government employees), Washington, and Wyoming.
    OSHA does not consider the proposal as proposing a change that will 
trigger the requirements of Sec.  1953.5(a). Accordingly, State-Plan 
States will not be required to adopt the proposal, if it is promulgated 
as proposed, or show why there is no need for action on their part. At 
the conclusion of the rulemaking proceedings, OSHA will advise State-
Plan States if OSHA intends to require them to inform OSHA of what 
action, if any, they will take with regard to the matter covered by the 
proposal. See 29 CFR 1953.4(b)(7).

VII. Unfunded Mandates Reform Act

    This proposed rule has been reviewed in accordance with the 
Unfunded Mandates Reform Act of 1995 (UMRA). 2 U.S.C. 1501 et seq. For 
the purposes of the UMRA, the Agency certifies that this proposed rule 
does not impose any Federal mandate that may result in increased 
expenditures by State, local, or tribal governments, in the aggregate, 
or increased expenditures by the private sector, of more than $100 
million in any year.

List of Subjects in 29 CFR Parts 1910, 1915, 1917, and 1918

    Incorporation by reference, Occupational safety and health, 
Personal protective equipment.

VIII. Authority and Signature

    This document was prepared under the direction of Edwin G. Foulke, 
Jr., Assistant Secretary of Labor for Occupational Safety and Health, 
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210. It is issued pursuant to sections 4, 6, and 8 of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), 
section 941 of the Longshore and Harbor Workers' Compensation Act (33 
U.S.C. 901 et seq.); 5 U.S.C. 553, Secretary of Labor's Order 5-2002, 
and 29 CFR part 1911.

    Signed at Washington, DC this 10th day of May, 2007.
Edwin G. Foulke, Jr.,
Assistant Secretary of Labor for Occupational Safety and Health.

Proposed Amendments to Standards

    The Occupational Safety and Health Administration is proposing to 
amend parts 1910, 1915, 1917, and 1918 of Title 29 of the Code of 
Federal Regulations as set forth below.

PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS

Subpart A--General

    1. The authority citation for subpart A of part 1910 is revised to 
read as follows:

    Authority: Secs. 4, 6, 8, Occupational Safety and Health Act of 
1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 12-71 
(36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 
9033), 6-96 (62 FR 111), or 5-2002 (67 FR 65008), as applicable.
    Section 1910.6 also issued under 5 U.S.C. Sec.  553. Sections 
1910.6, 1910.7, and 1910.8 also issued under 29 CFR part 1911. 
Section 1910.7(f) also issued under 31 U.S.C. 9701, 29 U.S.C. 9a, 5 
U.S.C. 553; Pub. L. 106-113 (113 Stat. 1501A-222); and OMB Circular 
A-25 (dated July 8, 1993) (58 FR 38142, July 15, 1993).


Sec.  1910.6  [Amended]

    2. In Sec.  1910.6, paragraphs (e)(60), (e)(61), (e)(67), (e)(68), 
(e)(70), (e)(71) are removed. Paragraphs (e)(62) through (e)(66) are 
redesignated as paragraphs (e)(60) through (e)(64), respectively; 
paragraph (e)(69) is redesignated as paragraph (e)(65); and paragraph 
(e)(72) is redesignated as paragraph (e)(66).

Subpart G--Occupational Health and Environmental Control

    3. The authority citation for subpart G of part 1910 is revised to 
read as follows:

    Authority: Sections 4, 6, and 8 of the Occupational Safety and 
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's 
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 
35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), or 5-2002 (67 FR 
65008), as applicable; and 29 CFR part 1911.
    Section 1910.94 also issued under 5 U.S.C. 553.


Sec.  1910.94  [Amended]

    4. Section 1910.94 is amended by removing and reserving paragraph 
(a)(5)(v)(a).

[[Page 27778]]

Subpart I--Personal Protective Equipment

    5. The authority citation for subpart I of part 1910 is revised to 
read as follows:

    Authority: Sections 4, 6, and 8, Occupational Safety and Health 
Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order 
No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 
(55 FR 9033), 6-96 (62 FR 111), or 5-2002 (67 FR 65008), as 
applicable.
    Sections 1910.132, 1910.134, and 1910.138 also issued under 29 
CFR part 1911.
    Sections 1910.133, 1910.135, and 1910.136 also issued under 29 
CFR part 1911 and 5 U.S.C. 553.

    6. Paragraph (b) of Sec.  1910.133 is revised to read as follows:


Sec.  1910.133  Eye and face protection.

* * * * *
    (b) Criteria for protective eye and face devices. (1) The employer 
shall ensure that the protective eye and face devices are constructed 
in accordance with good design standards. Equipment that is constructed 
in accordance with an equipment design standard that meets the 
following criteria will be presumed to be constructed in accordance 
with good design standards:
    (i) The standard specifies the safety requirements for the 
particular equipment;
    (ii) The standard is recognized in the United States as providing 
specifications that result in an adequate level of safety; and
    (iii) The standard was developed by a standards development 
organization under a method providing for input and consideration of 
views of industry groups, experts, users, governmental authorities, and 
others having broad experience and expertise in issues related to the 
design and construction of the particular equipment.
    (2) Non-mandatory appendix C to this subpart contains examples of 
national consensus standards that OSHA has determined meet the criteria 
of paragraph (b)(1) of this section. Protective eye and face devices 
that are constructed in accordance with any of the listed national 
consensus standards will be deemed to meet the good design requirement 
of paragraph (b)(1). Protective eye and face devices are not required 
to be constructed in accordance with one of the listed standards, but 
the protective eye and face devices must be constructed in accordance 
with good design standards. To meet this requirement, the protective 
eye and face device must provide protection equivalent to or greater 
than a protective eye and face device of the same type that is 
constructed in accordance with one of the listed national consensus 
standards.
    7. Paragraph (b) of Sec.  1910.135 is revised to read as follows:


Sec.  1910.135  Head protection.

* * * * *
    (b) Criteria for protective helmets. (1) The employer shall ensure 
that the protective helmets are constructed in accordance with good 
design standards. A protective helmet that is constructed in accordance 
with an equipment design standard that meets the following criteria 
will be presumed to be constructed in accordance with good design 
standards:
    (i) The standard specifies the safety requirements for the 
particular equipment;
    (ii) The standard is recognized in the United States as providing 
specifications that result in an adequate level of safety; and
    (iii) The standard was developed by a standards development 
organization under a method providing for input and consideration of 
views of industry groups, experts, users, governmental authorities, and 
others having broad experience and expertise in issues related to the 
design and construction of the particular equipment.
    (2) Non-mandatory appendix C to this subpart contains examples of 
national consensus standards that OSHA has determined meet the criteria 
of paragraph (b)(1) of this section. Protective helmets that are 
constructed in accordance with any of the listed national consensus 
standards will be deemed to meet the good design requirement of 
paragraph (b)(1). Protective helmets are not required to be constructed 
in accordance with one of the listed standards, but the protective 
helmets must be constructed in accordance with good design standards. 
To meet this requirement, the protective helmet must provide protection 
equivalent to or greater than a protective helmet of the same type that 
is constructed in accordance with one of the listed national consensus 
standards.
    8. Paragraph (b) of Sec.  1910.136 is revised to read as follows:


Sec.  1910.136  Foot protection.

* * * * *
    (b) Criteria for protective footwear. (1) The employer shall ensure 
that the protective footwear is constructed in accordance with good 
design standards. Protective footwear that is constructed in accordance 
with an equipment design standard that meets the following criteria 
will be presumed to be constructed in accordance with good design 
standards:
    (i) The standard specifies the safety requirements for the 
particular equipment;
    (ii) The standard is recognized in the United States as providing 
specifications that result in an adequate level of safety; and
    (iii) The standard was developed by a standards development 
organization under a method providing for input and consideration of 
views of industry groups, experts, users, governmental authorities, and 
others having broad experience and expertise in issues related to the 
design and construction of the particular equipment.
    (2) Non-mandatory appendix C to this subpart contains examples of 
national consensus standards that OSHA has determined meet the criteria 
of paragraph (b)(1) of this section. Protective footwear that is 
constructed in accordance with any of the listed national consensus 
standards will be deemed to meet the good design requirement of 
paragraph (b)(1). Protective footwear is not required to be constructed 
in accordance with one of the listed standards, but the protective 
footwear must be constructed in accordance with good design standards. 
To meet this requirement, the protective footwear must provide 
protection equivalent to or greater than protective footwear of the 
same type that is constructed in accordance with one of the listed 
national consensus standards.
    9. Appendix C to Subpart I is added as follows:

Appendix C to Subpart I of Part 1910--Criteria for Personal Protective 
Equipment (Non-Mandatory)

    This appendix lists equipment design standards that OSHA has 
determined are ``good design standards'' as that phrase is used in 
Sec. Sec.  1910.133(b), 1910.135(b), and 1910.136(b).
    1. Good design standards for protective eye and face devices 
(1910.133(b))
    ANSI Z87.1-2003, ``American National Standard Practice for 
Occupational and Educational Eye and Face Protection''
    ANSI Z87.1-1998, ``American National Standard Practice for 
Occupational and Educational Eye and Face Protection''
    ANSI Z87.1-1989, ``American National Standard Practice for 
Occupational and Educational Eye and Face Protection''
    2. Good design standards for protective helmets (1910.135(b))
    ANSI Z89.1-2003, ``American National Standard for Personnel 
Protection--Protective Headwear for Industrial Workers-
Requirements''
    ANSI Z89.1-1997, ``American National Standard for Personnel 
Protection--Protective Headwear for Industrial Workers-
Requirements''
    ANSI Z89.1-1986, ``American National Standard for Personnel 
Protection--

[[Page 27779]]

Protective Headwear for Industrial Workers-Requirements''
    3. Good design standards for protective footwear (1910.136(b))
    ASTM F-2412-2005, ``Standard Test Methods for Foot Protection,'' 
and ASTM F-2413-2005, ``Specification for Performance Requirements 
for Protective Footwear.'' These two standards together constitute a 
good design standard.
    ANSI Z41-1999, ``American National Standard for Personal 
Protection--Protective Footwear''
    ANSI Z41-1991, ``American National Standard for Personal 
Protection--Protective Footwear''

Subpart Q--Welding, Cutting and Brazing

    10. The authority citation for subpart Q of part 1910 is revised to 
read as follows:

    Authority: Secs. 4, 6, and 8 of the Occupational Safety and 
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's 
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 
35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), or 5-2002 (67 FR 
65008), as applicable; and 29 CFR part 1911.

    Section 1910.252 also issued under 5 U.S.C. 553.


Sec.  1910.252  [Amended]

    11. Section 1910.252 is amended by removing and reserving paragraph 
(b)(2)(ii)(I).

PART 1915--OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR SHIPYARD 
EMPLOYMENT

    12. The authority citation for part 1915 is revised to read as 
follows:

    Authority: Sec. 41, Longshore and Harbor Workers' Compensation 
Act (33 U.S.C. 941); secs. 4, 6, 8, Occupational Safety and Health 
Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order 
No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 
(55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), or 5-2002 (67 
FR 65008), as applicable; and 29 CFR part 1911.

    Sections 1915.5, 1915.153, 1915.155, and 1915.156 also issued 
under 5 U.S.C. 553.


Sec.  1915.5  Incorporation by reference.

    13. Section 1915.5 is amended by removing paragraphs (d)(1)(iv) 
through (d)(1)(ix).
    14. Paragraph (b) of Sec.  1915.153 is revised to read as follows:


Sec.  1915.153  Eye and face protection.

* * * * *
    (b) Criteria for protective eye and face devices. (1) The employer 
shall ensure that the protective eye and face devices are constructed 
in accordance with good design standards. Equipment that is constructed 
in accordance with an equipment design standard that meets the 
following criteria will be presumed to be constructed in accordance 
with good design standards:
    (i) The standard specifies the safety requirements for the 
particular equipment;
    (ii) The standard is recognized in the United States as providing 
specifications that result in an adequate level of safety; and
    (iii) The standard was developed by a standards development 
organization under a method providing for input and consideration of 
views of industry groups, experts, users, governmental authorities, and 
others having broad experience and expertise in issues related to the 
design and construction of the particular equipment.
    (2) Non-mandatory appendix C to this subpart contains examples of 
national consensus standards that OSHA has determined meet the criteria 
of paragraph (b)(1) of this section. Protective eye and face devices 
that are constructed in accordance with any of the listed national 
consensus standards will be deemed to meet the good design requirement 
of paragraph (b)(1). Protective eye and face devices are not required 
to be constructed in accordance with one of the listed standards, but 
the protective eye and face devices must be constructed in accordance 
with good design standards. To meet this requirement, the protective 
eye and face device must provide protection equivalent to or greater 
than a protective eye and face device of the same type that is 
constructed in accordance with one of the listed national consensus 
standards.
    15. Paragraph (b) of Sec.  1915.155 is revised to read as follows:


Sec.  1915.155  Head protection.

* * * * *
    (b) Criteria for protective helmets. (1) The employer shall ensure 
that the protective helmets are constructed in accordance with good 
design standards. A protective helmet that is constructed in accordance 
with an equipment design standard that meets the following criteria 
will be presumed to be constructed in accordance with good design 
standards:
    (i) The standard specifies the safety requirements for the 
particular equipment;
    (ii) The standard is recognized in the United States as providing 
specifications that result in an adequate level of safety; and
    (iii) The standard was developed by a standards development 
organization under a method providing for input and consideration of 
views of industry groups, experts, users, governmental authorities, and 
others having broad experience and expertise in issues related to the 
design and construction of the particular equipment.
    (2) Non-mandatory appendix C to this subpart contains examples of 
national consensus standards that OSHA has determined meet the criteria 
of paragraph (b)(1) of this section. Protective helmets that are 
constructed in accordance with any of the listed national consensus 
standards will be deemed to meet the good design requirement of 
paragraph (b)(1). Protective helmets are not required to be constructed 
in accordance with one of the listed standards, but the protective 
helmets must be constructed in accordance with good design standards. 
To meet this requirement, the protective helmet must provide protection 
equivalent to or greater than a protective helmet of the same type that 
is constructed in accordance with one of the listed national consensus 
standards.
    16. Paragraph (b) of Sec.  1915.156 is revised to read as follows:


Sec.  1915.156  Foot protection.

* * * * *
    (b) Criteria for protective footwear. (1) The employer shall ensure 
that the protective footwear is constructed in accordance with good 
design standards. Protective footwear that is constructed in accordance 
with an equipment design standard that meets the following criteria 
will be presumed to be constructed in accordance with good design 
standards:
    (i) The standard specifies the safety requirements for the 
particular equipment;
    (ii) The standard is recognized in the United States as providing 
specifications that result in an adequate level of safety; and
    (iii) The standard was developed by a standards development 
organization under a method providing for input and consideration of 
views of industry groups, experts, users, governmental authorities, and 
others having broad experience and expertise in issues related to the 
design and construction of the particular equipment.
    (2) Non-mandatory appendix C to this subpart contains examples of 
national consensus standards that OSHA has determined meet the criteria 
of paragraph (b)(1) of this section. Protective footwear that is 
constructed in accordance with any of the listed national consensus 
standards will be deemed to meet the good design requirement of 
paragraph (b)(1). Protective footwear is not required to be constructed 
in accordance with one of the listed standards, but the protective 
footwear must be constructed in

[[Page 27780]]

accordance with good design standards. To meet this requirement, the 
protective footwear must provide protection equivalent to or greater 
than protective footwear of the same type that is constructed in 
accordance with one of the listed national consensus standards.
    17. Appendix C to subpart I is added to read as follows:

Appendix C to Subpart I of Part 1915--Criteria for Personal Protective 
Equipment (Non-Mandatory)

    This appendix lists equipment design standards that OSHA has 
determined are ``good design standards'' as that phrase is used in 
sections 1915.153(b), 1915.155(b), and 1915.156(b).
    1. Good design standards for protective eye and face devices 
(1915.153(b))
    ANSI Z87.1-2003, ``American National Standard Practice for 
Occupational and Educational Eye and Face Protection''
    ANSI Z87.1-1998, ``American National Standard Practice for 
Occupational and Educational Eye and Face Protection''
    ANSI Z87.1-1989, ``American National Standard Practice for 
Occupational and Educational Eye and Face Protection''
    2. Good design standards for protective helmets (1915.155(b))
    ANSI Z89.1-2003, ``American National Standard for Personnel 
Protection--Protective Headwear for Industrial Workers--
Requirements''
    ANSI Z89.1-1997, ``American National Standard for Personnel 
Protection--Protective Headwear for Industrial Workers--
Requirements''
    ANSI Z89.1-1986, ``American National Standard for Personnel 
Protection--Protective Headwear for Industrial Workers--
Requirements''
    3. Good design standards for protective footwear (1915.156(b))
    ASTM F-2412-2005, ``Standard Test Methods for Foot Protection,'' 
and ASTM F-2413-2005, ``Specification for Performance Requirements 
for Protective Footwear.'' These two standards together constitute a 
good design standard.
    ANSI Z41-1999, ``American National Standard for Personal 
Protection--Protective Footwear''
    ANSI Z41-1991, ``American National Standard for Personal 
Protection--Protective Footwear''

PART 1917--MARINE TERMINALS

    18. The authority citation for part 1917 is revised to read as 
follows:

    Authority: Sec. 41, Longshore and Harbor Worker's Compensation 
Act (33 U.S.C. 941); Secs. 4, 6, 8, Occupational Safety and Health 
Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order 
No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 6-96 
(62 FR 111), or 5-2002 (67 FR 65008), as applicable; and 29 CFR part 
1911.

    Sections 1917.3, 1917.28, 1917.91, 1917.93, 1917.94 also issued 
under 5 U.S.C. 553. Section 1917.29, also issued under Sec. 29, 
Hazardous Materials Transportation Uniform Safety Act of 1990 (49 
U.S.C. 1801-1819 and 5 U.S.C. 553).


Sec.  1917.3  [Amended]

    19. Section 1917.3 is amended by removing paragraphs (b)(4) through 
(b)(6) and redesignating paragraph (b)(7) as (b)(4).
    20. Paragraph (a)(1) of Sec.  1917.91 is revised to read as 
follows:


Sec.  1917.91  Eye and face protection.

    (a)(1)(i) The employer shall ensure that each affected employee 
uses appropriate eye and/or face protection where there are exposures 
to eye and/or face hazards. Protective eye and face devices shall be 
constructed in accordance with good design standards. Equipment that is 
constructed in accordance with an equipment design standard that meets 
the following criteria will be presumed to be constructed in accordance 
with good design standards:
    (A) The standard specifi