Clarification of Remedy For Violation of Requirements To Provide Personal Protective Equipment and Train Employees, 48335-48350 [E8-18991]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 73, Number 161 (Tuesday, August 19, 2008)]
[Proposed Rules]
[Pages 48335-48350]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-18991]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1910, 1915, 1917, 1918 and 1926

[Docket No. OSHA-2008-0031]
RIN 1218-AC42


Clarification of Remedy For Violation of Requirements To Provide 
Personal Protective Equipment and Train Employees

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

ACTION: Proposed rule.

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SUMMARY: In this rulemaking, OSHA is proposing to amend its regulations 
to add language clarifying that noncompliance with the personal 
protective equipment (PPE) and training requirements in safety and 
health standards in these parts may expose the employer to liability on 
a per-employee basis. The amendments consist of new paragraphs added to 
the introductory sections of the listed parts and changes to the 
language of some existing respirator and training requirements. This 
action, which is in accord with OSHA's longstanding position, is 
proposed in response to recent decisions of the Occupational Safety and 
Health Review Commission indicating that differences in wording among 
the various PPE and training provisions in OSHA safety and health 
standards affect the Agency's ability to treat an employer's failure to 
provide PPE or training to each covered employee as a separate 
violation. The amendments add no new compliance obligations. Employers 
are not required to provide any new type of PPE or training, to provide 
PPE or training to any employee not already covered by the existing 
requirements, or to provide PPE or training in a different manner than 
that already required. The amendments simply clarify the remedy for 
violations of these requirements.

DATES: Written comments: Comments must be submitted (postmarked, sent 
or received) by September 18, 2008.
    Hearing Requests: Any request for a hearing must also be submitted 
by September 18, 2008. See ADDRESSES section below for special 
procedures for submitting hearing requests.

ADDRESSES: Written comments: You may submit comments, identified by 
docket number OSHA-2008-0031, or regulatory information number (RIN) 
1290-AA23, by any of the following methods:
    Electronically: You may submit comments and attachments 
electronically at https://www.regulations.gov, which is the Federal 
eRulemaking Portal. Follow the instructions on-line for making 
electronic submissions.
    Fax: If your comments, including attachments, do not exceed 10 
pages, you may fax them to the OSHA Docket Office at (202) 693-1648.
    Mail, hand delivery, express mail, messenger or courier service: 
You must submit three copies of your comments and attachments to the 
OSHA Docket Office, Docket Number OSHA-2008-0031, U.S. Department of 
Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210; 
telephone (202) 693-2350 (OSHA's TTY number is (877) 889-5627). 
Deliveries (hand, express mail, messenger and courier service) are 
accepted during the Department of Labor's and Docket Office's normal 
business hours, 8:15 a.m.-4:45 p.m., e.t.
    Hearing Requests: A hearing request may only be submitted by one of 
the following methods: Electronically, fax, express mail, hand 
delivery, messenger or courier service. OSHA will not consider hearing 
requests sent by regular mail.
    Instructions: All submissions must include the docket number [OSHA-
2008-0031] or the regulatory information number (RIN) 1290-AA23, for 
this rulemaking. All comments, including any personal information you 
provide, are placed in the public without change and may be made 
available online at https://www.regulations.gov. Therefore, OSHA 
cautions you about submitting personal information such as Social 
Security numbers and birthdates. For further information on submitting 
comments, plus additional information on the

[[Page 48336]]

rulemaking process, see the ``Public Participation'' heading in the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: To read or download comments and materials submitted in 
response to this Federal Register notice, go to docket number OSHA-
2008-0031, at https://regulations.gov or the OSHA Docket Office at the 
address above. All comments and submissions are listed in the https://
regulations.gov index, however, some information (e.g., copyrighted 
material) is not publicly available to read or download through the Web 
page. All comments and submissions, including copyrighted material, are 
available for inspection and copying at the OSHA Docket Office.
    For information on reading or downloading exhibits referenced in 
this Federal Register notice, see the ``References and exhibits'' and 
``Public Participation'' headings in the SUPPLEMENTARY INFORMATION 
section of this document.
    Electronic copies of this Federal Register document are available 
at https://www.regulations.gov. This document, as well as news releases 
and other relevant information, also is available at OSHA's Web page at 
https://www.osha.gov.

FOR FURTHER INFORMATION CONTACT: Ms. Jennifer Ashley, OSHA Office of 
Communications, Room N-3647; U.S. Department of Labor, 200 Constitution 
Avenue, NW., Washington, DC 20210. Telephone: (202) 693-1999.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Table of Contents
II. Background
III. Legal Authority
IV. Summary and Explanation of the Proposed Rule
V. Advisory Committee on Construction Safety and Health
VI. Preliminary Economic Analysis
VII. Regulatory Flexibility Certificate
VIII. Environmental Impact Assessment
IX. Federalism
X. Unfunded Mandates
XI. OMB Review Under the Paperwork Reduction Act
XII. State Plan States
XIII. Public Participation

II. Background

A. Personal Protective Equipment (PPE)

    The use of personal protective equipment, including respirators, is 
often necessary to protect employees from injury or illness caused by 
exposure to toxic substances and other workplace hazards. Many OSHA 
standards in Parts 1910 through 1926 require employers to provide PPE 
to their employees and ensure the use of PPE. Some general standards 
require the employer to provide appropriate PPE wherever necessary to 
protect employees from hazards. See, e.g., Sec. Sec.  1910.132(a); 
1915.152(a); 1926.95(a). Other standards require the employer to 
provide specific types of PPE or to provide PPE in specific 
circumstances. For example, the logging standard requires employers to 
provide cut-resistant leg protection to employees operating a chainsaw, 
29 CFR 1910. 266(d)(1)(iv); the coke oven emissions standard requires 
the employer to provide flame-resistant clothing and other specialized 
protective equipment, Sec.  1910.1029(h); and the methylene chloride 
standard requires the employer to provide protective clothing and 
equipment which is resistant to methylene chloride, Sec.  1910.1052(h).
    OSHA's respirator standards follow a similar pattern. Section 
1910.134, revised in 1998, requires employers to provide respirators 
``when such equipment is necessary to protect the health of the 
employee.'' Sec.  1910.134(a)(2). The section includes additional 
paragraphs requiring employers to establish a respiratory protection 
program, select an appropriate respirator based upon the hazard(s) to 
which the employee is exposed, provide a medical examination to 
determine the employee's ability to use a respirator, fit-test the 
respirator to the individual employee and take other actions to ensure 
that respirators are properly selected, used and maintained. E.g., 
Sec.  1910.134 (c) through (m); 63 FR 1152-1300 January 8, 1998 
(Respiratory Protection rule). A variety of other standards require the 
employer to provide respirators when employees are or may be exposed to 
specific hazardous substances. See, e.g., Sec.  1910.1101(g)(asbestos); 
Sec.  1910.1027(g)(cadmium). The 1998 Respiratory Protection rule 
revised the substance-specific standards then in existence to simplify 
and consolidate their respiratory protection provisions. 63 FR 1265-68. 
Except for a limited number of respirator provisions unique to each 
substance-specific standard, the regulatory text on respirators for 
these standards is virtually the same. The construction industry 
asbestos standard's initial respirator paragraph, which is virtually 
identical to the initial respirator paragraphs in most substance-
specific standards, states as follows:

Sec.  1926.1101   Asbestos

* * * * *
    (h) Respiratory protection. (1) General. For employees who use 
respirators required by this section, the employer must provide 
respirators that comply with the requirements of this paragraph. 
Respirators must be used during: [specific work operations involving 
exposure to asbestos]. (2) Respirator program. (i) The employer must 
implement a respiratory protection program in accordance with Sec.  
1910.134 (b) through (d) (except (d)(1)(iii), and (f) through (m).

B. Training

    Training is also an important component of many OSHA standards. 
Training is necessary to enable employees to recognize the hazards 
posed by toxic substances and dangerous work practices and protect 
themselves from these hazards. Virtually all of OSHA's toxic-substance 
standards, such as the asbestos, vinyl chloride, lead, chromium, 
cadmium and benzene standards, require the employer to train or provide 
training to employees who may be exposed to the substance. Many safety 
standards also contain training requirements. The lockout/tagout 
standard, for example, requires the employer to provide training on the 
purpose and function of the energy control program, Sec.  
1910.147(c)(7), and the electric power generation standard requires 
that employees be trained in and familiar with pertinent safety 
requirements and procedures. Sec.  1910.269(a)(2).
    The regulatory text on training varies from standard to standard. 
Some standards explicitly state that ``each employee shall be trained'' 
or ``each employee shall receive training'' or contain similar language 
that makes clear that the training must be provided to each individual 
employee covered by the requirement. E.g., Process safety management, 
Sec.  1910.119(g)(i) (each employee shall be trained); Lockout/tagout, 
Sec.  1910.147(c)(7)(A) (each employee shall receive training); Vinyl 
chloride, Sec.  1910.1017(j) (each employee shall be provided 
training); General safety and health provisions, Sec.  1926.20(b) 
(instruct each employee); Fall protection, Sec.  1926.503(a) (provide a 
training program for each employee).
    Other standards contain a slight variation; they state that 
``employees shall be trained'' or that the employer must ``provide 
employees with information and training.'' E.g., Electric power 
generation, Sec.  1910.269(a)(2) (employees shall be trained); Benzene, 
Sec.  1910.1028(j)(3)(i) (provide employees with information and 
training); Hazard communication, Sec.  1910.1200(h) (same).
    Finally, some standards state that the employer must ``institute a 
training program [for exposed employees] and ensure their participation 
in the program'' or contain similar language.

[[Page 48337]]

For example, the asbestos standard's initial training section states 
that ``[t]he employer shall institute a training program for all 
employees who are exposed to airborne concentrations of asbestos at or 
above the PEL and/or excursion limit and ensure their participation in 
the program.'' Sec.  1910.1001(j)(7). See also, e.g., Sec.  
1926.1101(k)(9) (Construction asbestos); Sec.  1910.1025(l) (Lead); 
Sec.  1910.1027(m)(4) (Cadmium).
    The Agency interprets its respirator and training provisions to 
impose a duty upon the employer to comply for each and every employee 
subject to the requirement regardless of whether the provision 
expressly states that respirators or training must be provided to 
``each employee.'' Neither the Commission nor any court has ever 
suggested that an employer can comply with the respirator and training 
provisions in safety and health standards by providing respirators to 
some employees covered by the requirement but not others, or that the 
employer can train some employees covered by the training requirement 
but not others. The basic nature of the employer's obligation is the 
same in all of these provisions; each and every employee must receive 
the required protection.
    The agency therefore believes that a separate violation occurs for 
each employee who is not provided required PPE or training, and that a 
separate citation item and proposed penalty may be issued for each. 
However, as discussed in the Legal Authority section, a recent decision 
of the Review Commission in the Ho case suggests that minor variations 
in the wording of the provisions affect the Secretary's authority to 
cite and penalize separate violations. Secretary of Labor v. Erik K. 
Ho, Ho Ho Ho Express, Inc. and Houston Fruitland, Inc., 20 O.S.H. Cas. 
(BNA) 1361 (Rev. Comm'n 2003), aff'd, Chao v. OSHRC and Erik K. Ho, 401 
F.3d 355 (5th Cir. 2005). The agency is proposing to amend its 
standards to make it unmistakably clear that each instance when an 
employee subject to a PPE or training requirement does not receive the 
required PPE or training may be considered a separate violation.
    Where an employer commits multiple violations of a single standard 
or regulation, OSHA either groups the violations and proposes a single 
penalty, or cites and proposes a penalty for each discrete violation. 
Although ``grouping'' is the more common method, OSHA proposes separate 
``per-instance'' penalties in cases where the resulting heightened 
aggregate penalty is appropriate to deter flagrant violators and 
increase the impact of OSHA's limited resources. Per-employee penalties 
for violations of PPE and training requirements are no different in 
kind than other types of per-instance penalties the agency has proposed 
under this policy.
    Accordingly, OSHA has preliminarily determined to amend the 
respirator and training provisions in the standards in parts 1910 
through 1926 to: (1) Revise the language of the initial respirator 
paragraphs adopted in the 1998 respiratory protection rule to 
explicitly state that the employer must provide each employee an 
appropriate respirator and implement a respiratory protection program 
for each employee, (2) revise the language of those initial training 
paragraphs that require the employer to institute or provide a training 
program to explicitly state that the employer must train each employee, 
and (3) add a new section to the introductory subparts of each part to 
clarify that standards requiring the employer to provide PPE, including 
respirators, or to provide training to employees, impose a separate 
compliance duty to each employee covered by the requirement and that 
each employee who does not receive the required PPE or training may be 
considered a separate violation.

III. Legal Authority

A. Introduction

    Section 6(b) of the Act sets forth the procedures the Secretary 
must follow in promulgating, modifying or revoking an occupational 
safety or health standard. 29 U.S.C. 655(b). These procedures include 
publication of a proposed rule and an opportunity for notice and 
comment prior to promulgation of a final rule. Although the proposed 
amendments involved here are remedial and interpretive in that they 
merely clarify pre-existing obligations under safety and health 
standards, the agency is according the public a full opportunity to 
comment before taking final action.
    The proposed amendments do not impose any new substantive 
requirements. The proposed language clarifies that the duty to provide 
personal protective equipment, including respirators, and training to 
employees is a duty owed to each employee covered by the requirement. 
This adds no new compliance burden; the nature of the employer's duty 
to protect each employee is inherent in the existing provisions. To 
comply with existing respirator and training provisions the employer 
must provide a respirator to each employee who needs respiratory 
protection and train each employee who must be informed of job hazards. 
The employer cannot comply by leaving some employees without 
respiratory protection or leaving some employees untrained. The agency 
is proposing the new language to achieve greater consistency in the 
regulatory text of the various respirator and training provisions in 
parts 1910 through 1926, provide clearer notice of the nature of the 
employer's duty under existing respirator and training provisions, and 
address the Commission's interpretation that the language of some 
respirator and training provisions does not support per-employee 
citations and penalties.\1\
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    \1\ Before OSHA can issue a new more protective standard, the 
agency must find that the hazard being regulated poses a significant 
risk of material health impairment and that the new standard is 
reasonably necessary and appropriate to reduce that risk. Industrial 
Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 
607(1980). OSHA must also show that the new standard is 
technologically and economically feasible, and cost effective. 
American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490 (1980). 
These requirements are not implicated in this rulemaking because the 
amendments merely clarify the obligations and remedies under the 
existing PPE and training provisions and add no additional 
requirements. See sections V. and VI. infra. The agency met its 
burden of showing significant risk, feasibility and cost 
effectiveness in promulgating the existing PPE and training 
requirements.
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B. General Principles Governing Per-Instance Penalties

    Section 9(a) of the Act authorizes the Secretary to issue a 
citation when ``an employer has violated a requirement of * * * any 
standard.'' 29 U.S.C. 658(a). A separate penalty may be assessed for 
``each violation.'' Id. at 666(a), (b), (c). ``The plain language of 
the Act could hardly be clearer'' in authorizing a separate penalty for 
each discrete instance of a violation of a duty imposed by a standard. 
Kaspar Wire Works, Inc. v. Secretary of Labor, 268 F.3d 1123, 1130 
(D.C. Cir. 2001).
    What constitutes an instance of a violation for which a separate 
penalty may be assessed depends upon the nature of the duty imposed by 
the standard or regulation at issue. If the standard ``prohibits 
individual acts rather than a single course of action,'' each 
prohibited act constitutes a violation for which a penalty may be 
assessed. Secretary of Labor v. General Motors Corp., CPCG Oklahoma 
City Plant, 2007 WL 4350896 ,35 (GM) (Rev. Comm'n 2007); Sanders Lead 
Co. 17 O.S.H. Cas. (BNA) 1197, 1203 (Rev. Comm'n 1995). Applying this 
test, the Commission has held that the recordkeeping regulation's 
requirement to record each injury or illness is violated each time the 
employer failed to record an injury or illness, Secretary

[[Page 48338]]

of Labor v. Caterpillar Inc., 15 O.S.H. Cas. (BNA) 2153, 2172-73 (Rev. 
Comm'n 1993); the machine guarding standard's requirement for point-of-
operation guards on machine parts that could injure employees is 
violated at each unguarded machine, Hoffman Constr. Co. v. Secretary of 
Labor, 6 O.S.H. Cas. (BNA) 1274, 1275 (Rev. Comm'n 1975); the fall 
protection standard's requirement to guard floor and wall openings is 
violated at each location on a construction site where appropriate fall 
protection is lacking, Secretary of Labor v. J.A. Jones Constr. Co., 15 
O.S.H. Cas. (BNA) 2201, 2212 (Rev. Comm'n 1993); the trenching 
standard's shoring or shielding requirement is violated at each 
unprotected trench, Secretary of Labor v. Andrew Catapano Enters., Inc. 
17 O.S.H. Cas. (BNA) 1776, 1778 (Rev. Comm'n 1996) and the electrical 
safety standard is violated at each location where non-complying 
electrical equipment is installed. A.E. Staley Mfg. Co. v. Secretary of 
Labor, 295 F.3d 1341, 1343 (D.C. Cir. 2002).
    The failure to protect an employee is a discrete act for which a 
separate penalty may be assessed when the standard imposes a specific 
duty on the employer to protect individual employees:

    Some standards implicate the protection, etc. of individual 
employees to such an extent that the failure to have the protection 
in place for each employee permits the Secretary to cite on a per-
instance basis. However, where a single practice, method or 
condition affects multiple employees, there can be only one 
violation of the standard.


Secretary of Labor v. Hartford Roofing Co., 17 O.S.H. Cas. (BNA) 1361, 
1365 (Rev. Comm'n 1995). In Hartford Roofing, the Commission held that 
abatement of an unguarded roof edge required the single action of 
installing a motion stopping system or line that would constitute 
compliance for all employees exposed to a fall. Id. at 1367. 
Accordingly, the failure to abate the hazard could be cited only once 
regardless of the number of exposed employees. Ibid. However, where the 
employer fails to protect employees from falls at several different 
locations in the same building, a violation exists at each such 
location. J.A. Jones, 15 O.S.H. Cas. (BNA) at 2212. Thus, what 
constitutes an ``instance'' of a violation varies depending upon the 
standard. ``Per-instance'' can mean per-machine, or per-injury, or per-
location depending upon the nature of the employer's compliance 
obligation.
    Per-employee violations are no different from other types of per-
instance violations. Just as the employer must ensure that electrical 
equipment is safe in each location where it is installed, Staley, 295 
F.3d at 1343, the employer must ensure that each employee who requires 
a respirator or training receives it. Hartford Roofing, 17 O.S.H. Cas. 
(BNA) at 1366. The failure to provide an individual employee with an 
appropriate respirator is a discrete instance of a violation of the 
general respirator standard, 29 CFR 1910.134, because the standard 
requires an individual act for each employee:

    As long as employees are working in a contaminated environment, 
the failure to provide each of them with appropriate respirators 
could constitute a separate and discrete violation. * * * [T]he 
condition or practice to which the standard is directed * * * [is] 
the individual and discrete failure to provide an employee working 
within a contaminated environment with a proper respirator.


17 O.S.H. Cas. (BNA) at 1366. Hartford Roofing reflects the guiding 
principle that provisions requiring the employer to ``provide'' 
respirators to employees because of environmental or other hazards to 
which they are exposed are intrinsically employee-specific because such 
provisions require protection for employees as individuals. The 
Commission reaffirmed this principle in subsequent cases. In Secretary 
of Labor v. Sanders Lead Co., 17 O.S.H. Cas. (BNA) 1197, 1203 (Rev. 
Comm'n 1995), the Commission held that the lead standard's requirement 
for semiannual respirator fit-tests could be cited on a per-employee 
basis because it involved evaluation of individual employees' 
respirators under certain conditions peculiar to each employee. 
Furthermore, in Catapano, 17 O.S.H. Cas. (BNA) at 1780, the Commission 
indicated that the general construction training standard, Sec.  
1926.21(b)(2), clearly supported per-employee citations for each 
individual employee not trained. However, the Commission in Catapano 
found that the Secretary had not cited training violations on a per-
employee basis, but rather, had impermissibly cited the employer for 
each inspection in which employees were found not to have been trained. 
Thus, the Commission affirmed only a single violation of the standard. 
Ibid.
    In the Ho decision, the Commission veered from these principles and 
adopted an analysis focused on the presence or absence of certain 
specific words in the respirator or training provision at issue. 20 
O.S.H. Cas. (BNA) at 1369-1380. Under this approach, the agency's 
ability to enforce respirator and training violations by per-employee 
citations in appropriate cases turns on minor variations in the wording 
of the requirements.
    Erik Ho, a Texas businessman, was cited for multiple violations of 
the construction asbestos respirator and training provisions. Ho's 
conduct was particularly flagrant. He hired eleven undocumented Mexican 
employees to remove asbestos from a vacant building without providing 
any of them with appropriate protective equipment, including 
respirators, and without training them on the hazards of asbestos. Ho 
persisted in exposing the unprotected, untrained employees to asbestos 
even after a city building inspector shut down the worksite, at which 
point Ho began operating secretly at night behind locked gates. The 
citations charged Ho with separate violations for each of the eleven 
employees not provided a respirator. The respirator provision then in 
effect stated, in relevant part, that ``[t]he employer shall provide 
respirators and ensure that they are used * * * [d]uring all Class I 
asbestos jobs.'' Sec.  1926.1101(h)(1)(i). Ho was also charged with 
separate violations for each of the eleven employees not trained in 
accordance with Sec.  1926.1101(k)(9)(i) and (k)(9)(viii). Paragraph 
(k)(9)(i) requires the employer to ``institute a training program for 
all [exposed] employees and * * * ensure their participation in the 
program;'' paragraph (k)(9)(viii) states that ``[t]he training program 
shall be conducted in a manner that the employee is able to understand 
* * * [and] the employer shall ensure that each such employee is 
informed of [specific hazard information].''
    A divided Occupational Safety and Health Review Commission vacated 
all but one of the respirator and one of the training violations. 
According to the majority, the requirement to provide respirators and 
ensure their use involves the single act of providing respirators to 
the employees in the group performing the specified asbestos work. 17 
O.S.H. Cas. (BNA) at 1372. Thus, the majority concluded, ``the plain 
language of the standard addresses employees in the aggregate, not 
individually.'' Ibid. The majority reached this conclusion despite 
acknowledging that various subparagraphs immediately following the 
cited provision required particularly employee-specific actions, such 
as fit-testing individual employees. Ibid. n. 12.
    The majority adopted an equally narrow interpretation of the 
requirement in Sec.  1926.1101(k)(9)(i) to ``institute a training 
program'' for all [exposed] employees and ensure their participation in 
the program.''

[[Page 48339]]

According to the majority, this language requires the employer to have 
a single training program for all exposed employees and imposes a 
single duty to train employees generally. Id. at 1374. Although 
paragraph (k)(9)(viii) explicitly states that, ``the employer shall 
ensure that each such employee is informed of [specific hazard 
information],'' the majority found that ``the mere use of the 
terminology `each such employee' under (k)(9)(viii) does not 
demonstrate that these [training] provisions define the relevant 
workplace exposure in terms of exposure of individual employees.'' 
Ibid. One Commissioner dissented, arguing that the plain wording of the 
respirator and training provisions authorizes OSHA to treat as a 
discrete violation each employee not provided and required to use an 
appropriate respirator, and each employee not trained in asbestos 
hazards. Id. at 1380-86 (Rodgers, Comm'r dissenting).
    A divided panel of the U.S. Court of Appeals for the Fifth Circuit 
affirmed the result reached by the Commission, in part on different 
grounds than those articulated by the Commission majority. 401 F.3d at 
368-376. The majority agreed with the Commission that the language of 
the respirator provision did not support per-employee penalties for 
Ho's failure to provide a respirator to each employee who performed 
covered asbestos work. Id. at 373-74. Disagreeing with the Commission, 
the majority found that the language of the training provision permits 
per-employee citations. Id. at 372. However, the majority concluded 
that the agency's decision to cite and penalize Ho for each untrained 
employee was unreasonable absent circumstances showing that different 
training actions would have been required because of uniquely employee-
specific factors. Id. at 373. Judge Garza dissented. He read the 
respirator provision to require action on a per-employee basis. Id. at 
379 (Garza J. dissenting). He also found no support for the majority's 
``employee-specific unique circumstances'' requirement under the 
training provision and concluded that, in any event, the requirement 
was met by Ho's failure to train the employees and ensure that they 
understood the training. Id. at 379-80.
    In two subsequent decisions, the Commission stated that respirator 
and training requirements worded slightly differently from those at 
issue in Ho may be cited on a per-employee basis. In Secretary of Labor 
v. Manganas Painting Co., 21 O.S.H. Cas. (BNA) 1964, 1998-99 (Rev. 
Comm'n 2007), the Commission indicated that the initial respiratory 
protection paragraph of the 1993 construction lead standard, Sec.  
1926.62(f)(1), authorizes per-employee citations. That paragraph 
states, in relevant part, ``[w]here the use of respirators is required 
under this section the employer shall provide * * * and assure the use 
of respirators which comply with the requirements of this paragraph.'' 
The Commission distinguished Ho on the ground that the language in the 
cited provision requiring the employer to provide respirators ``which 
comply with the requirements of this paragraph'' means that compliance 
with paragraph (f)(1) is predicated upon compliance with all of the 
requirements in paragraph (f), including fit-testing requirements in 
another section of the paragraph that are uniquely employee-
specific.\2\ Ibid. In contrast, in Ho the language requiring compliance 
with such provisions immediately followed the cited initial provision, 
and the Commission declined to read the initial provision in light of 
the subsequent requirements. However, the Commission's interpretation 
in Manganas that the lead standard authorizes per-employee violations 
may not be part of the holding of the case. After stating that the 
standard could be cited on a per-employee basis, the Commission then 
stated that it declined to determine whether Manganas's failure to 
provide respirators to multiple employees constituted a single 
violation or multiple violations on the ground that the amount of the 
total penalty would not be affected under the circumstances of that 
case. Id. at 1999.
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    \2\ The current version of Sec.  1926.62(f)(1) is virtually 
identical to the 1993 version at issue in Manganas. The provision 
now states in relevant part, ``[f]or employees who use respirators 
required by this section, the employer must provide respirators that 
comply with the requirements of this paragraph.''
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    In December 2007, the Commission decided GM. 2007 WL 4350896. The 
case involved citations issued in 1991 charging GM, inter alia, with 
separate violations for each of six employees not trained in accordance 
with the lockout/tagout (LOTO) standard's initial training paragraph, 
Sec.  1910.147 (c)(7)(i). This paragraph states, in relevant part, that 
``[t]he employer shall provide training to ensure that the purpose and 
function of the energy control program are understood by employees . * 
* * (A) Each authorized employee shall receive training . * * *'' The 
citation also charged GM with separate violations for each of twelve 
employees not retrained in accordance with the standard's retraining 
provision, Sec.  1910.147(c)(7)(iii)(B), which requires retraining 
whenever the employer is aware of inadequacies in the employee's 
knowledge or use of the energy control procedures.
    The Commission affirmed all of these per-employee violations. It 
held that the LOTO training paragraph, unlike the initial paragraph at 
issue in Ho, states that ``each employee'' is to be trained and 
therefore ``imposes a specific duty on the employer to train each 
individual employee.'' 2007 WL 4350896 at 36. The Commission also noted 
that other requirements in paragraph (c)(7) clarify the individualized 
nature of the training duty, such as the requirement to record the 
employees' names and dates of training; that the preamble indicates 
that training involves consideration of employee-specific factors, and 
that ``the core concept of lockout/tagout is personal protection.'' Id. 
at 37 (emphasis added). The Commission did not refer to the portion of 
its Ho decision that rejected reliance on ``each employee'' language in 
the training requirement at issue there or that refused to consider any 
requirements in the standard other than the cited initial provision in 
deciding the nature of the employer's duty.
    For similar reasons, the Commission affirmed separate violations of 
the requirement to retrain whenever the employer becomes aware of 
deviations from or inadequacies in the employee's knowledge or use of 
the energy control procedures. 29 CFR 1910.147 (c)(7)(iii)(B). This 
provision, the Commission found, ``specifically targets deviations from 
or inadequacies in the employee's knowledge or use of the energy 
control procedures, an occurrence that would trigger an employer's 
obligation to retrain only that particular employee.'' Ibid. (internal 
quotations omitted).
    The Commission held that because the training provisions impose a 
specific duty on the employer to train each employee, it is irrelevant 
whether the employer may choose to provide the required training 
collectively, such as holding a single training session for all 
employees. Id. at 36. Under the wording of the standard, the Commission 
concluded, ``any failure to train would be a separate abrogation of the 
employer's duty to train each untrained employee.'' Ibid. The 
Commission distinguished the Ho decision on the ground that the 
language at issue there, requiring ``a training program for all 
employees,'' pertained to a single group of employees collectively 
exposed to identical hazards. Ibid.

C. The Agency's Interpretation

    The Agency's position is that despite minor differences in their 
wording, all respirator and training provisions in

[[Page 48340]]

safety and health standards authorize the assessment of a separate 
penalty for each employee not protected or trained. All of these 
provisions impose the same basic duty on the employer to protect 
employees individually--by providing personal protective equipment, 
such as a respirator, or by communicating hazard information through 
training. The individualized nature of the duty to comply does not 
change because of the presence or absence of the words ``each 
employee,'' or other words explicitly stating that the employer's duty 
runs to each individual employee.
    The employee-specific nature of the employer's duty to provide PPE 
and training may be demonstrated in several different ways. First, the 
employer must take a separate abatement action for each individual 
employee. Where respirators are required, the employer must give a 
separate respirator to each individual employee. Where training is 
required, the employer must impart specific hazard information to each 
individual employee. The employee-specific nature of the training 
requirements is not altered because the employer may choose to conduct 
training in a group session. As the Commission held in GM, the duty to 
provide training is specific to each individual employee subject to the 
requirement. 2007 WL 4350896. See also Ho, 401 F.3d at 380 (Garza, J. 
dissenting). Thus regardless of how the training is conducted, the 
employer must ensure that each individual employee receives the 
required information at the appropriate time.
    Second, unlike standards that do not permit per-employee citations, 
the PPE and training requirements logically permit the employer to 
comply for one employee and not another. In Hartford Roofing, the 
Commission found that installation of a motion stopping system at a 
roof edge was a single discrete action unaffected by the number of 
employees on the roof, and therefore could not be cited on a per-
employee basis. 17 O.S.H. Cas. (BNA) at 1368-69. The employer could not 
have complied for one employee without also complying for all other 
employees exposed to the hazard.
    By contrast, the actions necessary to comply with PPE and training 
requirements for one employee do not constitute compliance for any 
other employee. To fully comply with these requirements the employer 
must take as many abatement actions as there are employees to be 
protected. The fact that the employer may comply for one or a few 
employees, while leaving many others unprotected, strongly supports the 
availability of per-employee citations. Ho, 401 F.3d at 379 (Garza, J. 
dissenting).
    Finally, compliance with the PPE and training provisions requires 
the employer to account for differences among individual employees. To 
comply with the respirator requirements, the employer must, among other 
things, select respirators based on the specific respiratory hazards to 
which the employee is exposed and perform individual face-fit tests. 
E.g., Sec.  1910.134(d), (f). To comply with training requirements, the 
employer must ensure that each employee receives the required 
information. E.g., Sec.  1910.1001(j)(7)(iii) (asbestos). The employer 
must therefore account for factors such as when individual employees 
commence work subject to the training requirement and when they are 
available for training. Individual language differences also play a 
role. For example, if one employee understands only English, and 
another employee understands only Spanish, training must account for 
this difference. The actions necessary to fit a respirator to an 
individual employee's face and to ensure that hazard information is 
received by an employee entail consideration of individual factors.
 1. The Ho Decision
    The Secretary believes that the Commission majority's analysis in 
Ho is fundamentally flawed for several reasons discussed below. We 
discuss this issue because it is important to an understanding of the 
Secretary's interpretation of her standards and of the proposed 
clarifying amendments to the PPE and training provisions. This 
rulemaking is intended to confirm the interpretation the Secretary 
intends when she promulgates standards of this kind.
    a. The Ho majority's analysis is inconsistent with the proper 
analytical framework outlined above. The requirement to provide 
respirators because of environmental hazards involves a separate 
discrete act for each employee exposed to the hazard. Hartford Roofing, 
17 O.S.H. Cas. (BNA) at 1367. Eric Ho had eleven employees performing 
Class I asbestos work; therefore he had to provide eleven separate 
respirators and ensure that each of the eleven employees used the 
devices. Ho also had to ensure that each employee received training on 
asbestos hazards. The cited asbestos respirator and training provisions 
required analytically distinct acts for each employee, and therefore 
permitted per-employee citations.
    b. The majority's analysis does not reflect Commission precedent 
preceding Ho, or more recent Commission caselaw. Hartford Roofing 
reflects the guiding principle distinguishing between requirements that 
apply individually to each employee, such as respirator provisions, and 
those that address hazardous conditions affecting employees as a group. 
17 O.S.H. Cas. (BNA) at 1366-67. Manganas, recognizes the principle 
that a requirement to provide respirators should be read in light of 
the associated provisions requiring individualized actions such as 
individual fit-testing. 21 O.S.H. Cas. (BNA) at 1998. And GM holds that 
a training requirement containing ``each employee'' language, which was 
also contained in the standard cited in Ho, imposes a specific duty to 
train each individual employee and may be cited on a per-employee 
basis. 2007 WL 4350896 at 24. Ibid.
    c. The majority's analysis amounts to a ``magic words'' test for 
determining the nature of the duty to comply with PPE and training 
requirements that is at odds with the Secretary's intention and does 
not make practical sense. There is only a minor difference between the 
respirator standard in Manganas and that in Ho. In Manganas the 
requirement to comply with the provisions of the standard as whole is 
stated explicitly in the standard's first sentence, while in Ho the 
requirement was implicit in that sentence and was explicitly stated by 
the remaining provisions of the standard. Similarly, in GM the ``each 
employee'' language was in the first enumerated subsection of the 
training standard, while in Ho it was in a later subsection. As the 
preceding discussion makes clear, the agency did not intend that minor 
wording variations among various PPE and training provisions affect the 
agency's ability to cite on a per-employee basis. Furthermore, there is 
no sound reason for distinguishing among the various PPE and training 
requirements based on minor differences in wording when all such 
requirements impose the same basic duty--provision of appropriate 
respirators and training to each employee covered by the requirements. 
The requirements at issue in Ho were not substantively different than 
those in Manganas and GM, and there should be no difference in the 
availability of per-employee citations under these requirements. 
Moreover, applying the Ho majority's analysis creates perverse 
incentives in that an employer who provides no respirators at all is 
eligible for only a single citation under the respirator provision at 
issue in Ho,

[[Page 48341]]

while the employer who provides respirators, but fails to comply with 
the specific fit-test requirements is liable for per-employee 
violations.
    Although the Secretary does not acquiesce in the Ho majority's 
interpretation of the asbestos respirator and training requirements at 
issue, the agency is proposing to modify the language of most of the 
initial respirator provisions adopted in the 1998 rule to expressly 
state that the employer must provide each employee an appropriate 
respirator. There are several reasons for this. First, although the 
Secretary believes that the respirator requirements clearly support 
per-employee citations, employers may have some uncertainty in light of 
the Ho decision. Second, although the Commission indicated in Manganas 
that language similar to that in the 1998 rule permits per-employee 
penalties, that aspect of the decision could be viewed as dicta. 
Finally, the 1998 respirator language is virtually the same in all 
standards with respirator requirements, and the same wording can be 
used to amend all of the standards. The agency intends the proposed new 
language to clearly convey that the respirator provisions in all OSHA 
standards impose a duty to provide an appropriate respirator to each 
individual employee that requires respiratory protection. The failure 
to provide an appropriate respirator to each such employee may expose 
the employer to per-employee citations.
    OSHA also believes that the existing language of the training 
provisions in safety and health standards makes reasonably clear that 
the training obligation extends to each individual employee. Some of 
these provisions explicitly state that ``each employee'' must be 
trained. For example, the process safety management standard states 
that ``each employee presently involved in operating a process * * * 
must be trained.'' 29 CFR 1910.119(g)(i); 29 CFR 1926.64(g) 
(construction); the logging standard states that ``[t]he employer shall 
provide training for each employee,'' Sec.  1910.266(i); the vinyl 
chloride standard states that ``[e]ach employee engaged in vinyl 
chloride or polyvinyl chloride operations shall be provided training,'' 
Sec.  1910.1017(j); and the chromium standard states that ``[t]he 
employer shall ensure that each employee can demonstrate knowledge of 
[the Sec.  1926.1126(j)(2) (construction). The Commission in GM held 
that provisions that explicitly require training for ``each employee'' 
may be cited separately for each employee not trained. GM, 2007 WL 
4350896 at 36. Accordingly, these provisions require no amendatory 
action.
    Some standards contain provisions stating that the employer must 
train ``employees'' exposed to the hazard addressed by the standard. 
For example, the hazardous waste operations standard states that 
``[a]ll employees [exposed to hazardous substances] shall receive 
training,'' Sec.  1910.120 (e)(1); while the benzene standard states 
that ``the employer shall provide employees with information and 
training at the time of their initial assignment to a work area where 
benzene is present.'' Sec.  1910.1028(j)(3)(i). There is no substantive 
difference between the requirement to train ``employees'' exposed to a 
hazard and the requirement to train ``each employee'' exposed to the 
hazard. Under both formulations, the exposed employee is the subject of 
the training requirement, and compliance cannot be achieved unless and 
until each such employee receives the required training. Therefore 
provisions requiring the employer to provide training to employees 
exposed to a hazard, or ensure that employees receive training, or 
contain similar language, are plainly susceptible to per-employee 
citations in appropriate cases. GM, 2007 WL 4350896 at 36. No 
additional language is needed to clarify the intent of these 
provisions.
    A minority of training provisions state that the employer must 
``institute a training program for all [exposed] employees and ensure 
their participation in the program'' or contain similar language. See 
e.g., Sec.  1910.1001(j)(7)(i) (asbestos); Sec.  1910.1018(o)(1)(i) 
(inorganic arsenic); Sec.  1910.1025(l)(1)(ii) (lead); Sec.  
1910.1027(m)(4)(i) (cadmium). The Agency disagrees with the Ho 
majority's conclusion that this language requires the employer to have 
a training program, but does not impose a specific duty to train each 
exposed employee. The requirement that the employer ``institute'' the 
training program and ensure employee ``participation'' indicates that 
the focus of the provision is on the communication of hazard 
information to each employee. Furthermore, virtually all of the 
provisions requiring a training program also contain language 
explicitly stating that ``each employee'' must be informed of specific 
hazard information. See Sec.  1910.1001(j)(7)(iii) (asbestos); Sec.  
1910.1018(o)(1)(ii) (inorganic arsenic); Sec.  1910.1025(l)(1)(v) 
(lead); Sec.  1910.1027(m)(4)(iii) (cadmium). Accordingly, the duty to 
``institute a training program'' runs to each individual employee 
subject to the training requirement, and a discrete violation occurs 
for each such employee who does not receive training.
    Ho, however, states the Commission's current interpretation as to 
the meaning of the construction asbestos standard's training provision. 
The Ho majority considered the language in Sec.  1926.1101(k)(9)(i) to 
impose a duty to have a training program for employees collectively. 
The failure to train each of a number of individual employees on 
asbestos hazards was therefore considered a single violation. Although 
the Secretary does not accept the Ho majority's interpretation, the 
decision may be a significant impediment to the consistent and 
effective enforcement of the asbestos standard and other standards that 
contain similar wording. Accordingly, OSHA preliminarily believes it is 
appropriate to amend those standards that require the employer to 
``institute a training program'' to clarify that the employer's duty is 
to train each employee in accordance with the training program. The 
revised language expressly identifies the subject of the training 
requirement as ``each employee'' and therefore imposes a ``specific 
duty on the employer to train each individual employee.'' GM, 2007 WL 
430896 at 36. The agency intends the revision to clarify without 
question that the failure to train each individual employee covered by 
the training requirement may be considered a separate violation with a 
separate penalty.

IV. Summary and Explanation of the Proposed Rule

    OSHA proposes to amend the standards in Parts 1910, 1915, 1917, 
1918 and 1926 to provide additional clarity and consistency as to the 
individualized nature of the employer's duty to provide personal 
protective equipment, including respirators, and training under 
standards in these parts. The proposed amendments include revisions to 
existing language as well as new sections to be added to the 
introductory subparts to Parts 1910 through 1926. The agency's reasons 
for proposing to clarify the intent of the personal protective 
equipment and training requirements are discussed in the preceding 
sections. The following discussion addresses the actual proposed 
language and how it is to be interpreted.

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

    OSHA proposes to add a new section to subpart A of parts 1910, 
1915, 1917 and 1918, and to subpart C of part 1926. These subparts 
contain general

[[Page 48342]]

information about the scope and applicability of the standards in each 
part. The proposed new sections contain two paragraphs, which are 
identical for each new section. The first paragraph expressly states 
that standards in the part requiring employers to provide PPE, 
including respirators, impose a separate compliance duty to each 
employee required to use the PPE, and that each failure to provide PPE 
to an employee may be considered a separate violation. The new 
paragraph applies to all standards in the part that require provision 
of PPE, regardless of their wording. For example, Sec.  1910.132 
requires employers to provide PPE when needed, and also recognizes that 
an employer may allow an employee who voluntarily provides appropriate 
PPE he or she owns to use that PPE in place of the employer-provided 
equipment. See Sec.  1910.132 (h)(6). The underlying obligation is the 
employer's, and each employee who lacks required PPE may be considered 
a separate violation. The second paragraph expressly states that 
standards in the part requiring training on hazards and related 
matters, such as standards requiring that employees receive training or 
that the employer train employees, provide training to employees or 
institute or implement a training program, impose a separate compliance 
duty to each employee covered by the requirement. Each failure to train 
an employee may be considered a separate violation.
    The new sections reflect the agency's intent, as discussed in the 
preceding sections of this preamble, that standards requiring the 
employer to protect employees by providing personal protective 
equipment or imparting hazard information through training impose a 
specific duty to protect each individual employee covered by the 
requirement. The new sections are placed in the introductory subparts 
of each part because the principle expressed in each section applies 
generally to all PPE and training standards in the part. OSHA intends 
the new sections to apply regardless of differences in wording between 
the PPE and training provisions in the various parts. The new sections 
provide unmistakable notice to employers that they are responsible for 
protecting each employee covered by the PPE and training standards, and 
consequently, that they may be subject to per-employee penalties for 
violations.

Revisions to Specific Respirator Paragraphs

    OSHA proposes to revise the initial respiratory protection 
paragraph in a number of standards in parts 1910, 1915 and 1926 to add 
language explicitly stating that the employer must provide an 
appropriate respirator to each employee required to use a respirator 
and implement a respiratory protection program for each such employee. 
The affected standards include the general respirator standard, Sec.  
1910.134, most general industry toxic-substance health standards in 
Subpart Z of part 1910, the shipyard employment asbestos standard, 
Sec.  1915.1101, and the construction industry methylenedianiline, 
lead, asbestos, and cadmium standards, Sec.  Sec.  1926.60, 62, 1101, 
and 1127.
    Section 1910.134 contains general respiratory protection 
requirements for General Industry (part 1910), Shipyards (part 1915), 
Marine Terminals (part 1917), Longshoring (part 1918), and Construction 
(part 1926). The existing section 1910.134(a)(2) states:

[r]espirators shall be provided by the employer when such equipment 
is necessary to protect the health of the employee. The employer 
shall provide the respirators which are applicable and suitable for 
the purposes intended. The employer shall be responsible for the 
establishment and maintenance of a respiratory protection program 
which shall include the requirements outlined in paragraph (c) of 
this section.

    OSHA proposes to revise the first and last sentences of paragraph 
(a)(2) of section Sec.  1910.134. As proposed, the first sentence will 
read, ``[r]espirators shall be provided by the employer to each 
employee when such equipment is necessary to protect the health of such 
employee'' (emphasis added). As proposed, the last sentence will read, 
``[t]he employer shall be responsible for the establishment and 
maintenance of a respiratory protection program, which shall include 
the requirements outlined in paragraph (c) of this section, for each 
employee required by this section to use a respirator'' (emphasis 
added). Section 1910.134, as revised in this rulemaking, will apply to 
construction under section 1926.103.
    OSHA proposes similar revisions to the initial respirator 
paragraphs of toxic substance standards in parts 1910, 1915 and 1926. 
The initial respiratory protection paragraph of the construction 
asbestos standard, which is virtually identical to all respirator 
sections proposed for revision in this rule, states, in relevant part:

Section 1926.1101 Asbestos

* * * * *
    (h) Respiratory protection. (1) General. For employees who use 
respirators required by this section, the employer must provide 
respirators that comply with the requirements of this paragraph. 
Respirators must be used during:
    * * *
    (2) Respirator program. (i) The employer must implement a 
respiratory protection program in accordance with Sec.  1910.134 (b) 
through (d) (except (d)(1)(iii)), and (f) through (m).
    OSHA proposes to revise the first sentence of paragraph (h)(1) of 
section 1926.1101 to state, ``[f]or employees who use respirators 
required by this section, the employer must provide each employee an 
appropriate respirator that complies with the requirements of this 
paragraph'' (emphasis added). The Agency proposes to revise paragraph 
(h)(2)(i) to state, ``[t]he employer must implement a respiratory 
protection program in accordance with Sec.  1910.134 (b) though (d) 
(except (d)(1)(iii)), and (f) through (m) for each employee required by 
this section to use a respirator'' (emphasis added). Identical language 
revisions are proposed for the initial respirator paragraphs in other 
toxic-substance health standards; only the section and paragraph 
numbers are different.
    OSHA preliminarily believes that these revisions are appropriate in 
light of the Ho majority's narrow interpretation of the asbestos 
respirator provision. OSHA is adding explicit ``each employee'' 
language to section 1910.134 and to the initial respirator paragraphs 
of toxic-substance health standards to address the Commission's concern 
that this language is necessary to inform employers of their specific 
duty to provide a respirator to each individual employee required to 
use a respirator. The revisions will improve these standards by 
conforming them to each other and to the revised Sec.  1910.134, and 
contribute to a greater awareness of the importance of full compliance 
with these important requirements.

Revisions to Specific Training Paragraphs

    OSHA proposes to revise those training provisions in safety and 
health standards that require the employer to institute or provide a 
training program for employees exposed to hazards. The Commission has 
indicated that the requirement in section 1926.1101(k)(9)(i) to 
``institute a training program for all employees who are likely to be 
exposed in excess of a PEL and for all employees who perform Class I 
through IV asbestos operations, and shall ensure their participation in 
the program'' is not sufficiently explicit as to the employer's duty to 
train each employee. A number of other standards

[[Page 48343]]

include similarly worded training provisions. Accordingly, this 
proposed rule would revise section 1926.1101(k)(9)(i) to state, in 
relevant part, ``[t]he employer shall train each employee who is likely 
to be exposed in excess of a PEL, and each employee who performs Class 
I through IV asbestos operations, in accordance with the requirements 
of this section'' (emphasis added). Similar revised language is 
proposed for training sections in other standards that contain similar 
wording to section 1926.1101(k)(9)(i). The amended training provisions 
will conform to the training provision that the Commission in GM 
interpreted to permit per-employee citations.

V. Advisory Committee on Construction Safety and Health

    The Advisory Committee on Construction Safety and Health (ACCSH) 
assists OSHA by providing comments and recommendations on proposed 
construction standards. Accordingly, OSHA provided ACCSH with a copy of 
the draft proposed construction amendments. ACCSH considered the 
proposed amendments on May 15, 2008 and made the following 
recommendation: ``ACCSH recommends that OSHA adopt the proposed 
standard on Clarification of Remedy for Violation of Requirements To 
Provide Personal Protective Equipment and Training.''

 VI. Preliminary Economic Analysis

    OSHA has determined that the proposed standard is not an 
economically significant regulatory action under Executive Order (E.O.) 
12866. E.O. 12866 requires regulatory agencies to conduct an economic 
analysis for rules that meet certain criteria. The most frequently used 
criterion under E.O. 12866 is that the rule will impose annual costs on 
the economy of $100 million or more. Neither the benefits nor the costs 
of this rule exceed $100 million.
    OSHA has also determined that the proposed standard is not a major 
rule under the Congressional Review provisions of the Small Business 
Regulatory Enforcement Fairness Act. The Regulatory Flexibility Act of 
1980 (RFA), as amended in 1996, requires OSHA to determine whether the 
Agency's regulatory actions will have a significant impact on a 
substantial number of small entities. OSHA's analysis, based on the 
analysis in this section of the Preamble as well as the later section 
``OMB Review Under the Paperwork Reduction Act'' below, indicates that 
the proposed rule will not have significant impacts on a substantial 
number of small entities.
    The proposal inserts two new paragraphs in the general industry 
health and safety standards (Part 1910), the shipyard employment 
standards (Part 1915), the marine terminal standards (Part 1917), the 
longshoring standards (Part 1918), and the construction standards (Part 
1926). The new provisions, identical in each part, are as follows:

    (a) Personal protective equipment. Standards in this part 
requiring the employer to provide personal protective equipment 
(PPE), including respirators, because of hazards to employees impose 
a separate compliance duty to each employee covered by the 
requirement. The employer must provide PPE to each employee required 
to use the PPE, and each failure to provide PPE to an employee may 
be considered a separate violation.
    (b) Training. Standards in this part requiring training on 
hazards and related matters, such as standards requiring that 
employees receive training or that the employer train employees, 
provide training to employees, or institute or implement a training 
program, impose a separate compliance duty to each employee covered 
by the requirement. The employer must train each affected employee 
in the manner required by the standard, and each failure to train an 
employee may be considered a separate violation.


These provisions do not require employers to provide any new or 
additional PPE, respiratory equipment, or training that is not already 
required in existing standards. (When the existing standards were 
promulgated, OSHA estimated the costs to employers of the PPE and 
respiratory equipment that would be required.) The proposed provisions 
therefore impose no new cost burden. It has, however, been OSHA's 
enforcement policy in appropriate cases to cite employers for each 
separate violation regarding PPE, respiratory protection, and training. 
These provisions will serve to make explicit the Agency's policy and 
warn employers of the potential cost and penalties of violations. The 
Agency's economic analyses of its occupational and health standards 
assume employers' full compliance for estimating the cost, or employer 
burden, of the standards it promulgates. For this reason, although the 
revisions may change the frequency or number of violations and amount 
of fines assessed, these are not material for estimating new costs to 
comply with a standard.
    The Agency has also editorially revised provisions for respiratory 
protection, respiratory programs, and employee training across many 
existing standards. These editorial revisions emphasize the employer's 
responsibility to provide protection to each employee. For example, the 
existing language of Sec.  1910.134(a)(2) ``Respirators shall be 
provided by the employer when such equipment is necessary to protect 
the health of the employee'' is replaced in the proposal by: ``A 
respirator shall be provided to each employee when such equipment is 
necessary to protect the health of such employee.'' These changes again 
do not impose any additional employer responsibility for providing 
respiratory protection, respiratory programs, or training for 
employees. And therefore there are no costs attributed to these 
proposed revisions. The existing standards and paragraphs that are 
affected by the new, substitute language are identified above in the 
Summary and Explanation part of this Preamble as well as the regulatory 
text following the Preamble.
    The proposed rule is technologically feasible because it does not 
require employers to provide any additional equipment, such as 
respirators, or training not already required in existing standards. 
The Agency considered regulatory and non-regulatory alternatives to the 
proposed rule. Because the newly proposed paragraphs and proposed 
revisions to existing paragraphs merely clarify employer 
responsibilities, especially in regard to the Agency's policy of 
issuing violations, non-regulatory alternatives are not an appropriate 
or relevant way to affect those changes and better inform employers. 
Finally, because the proposed rule does not impose new costs on 
employers, it is economically feasible.

VII. Regulatory Flexibility Certification

    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq. (as amended), OSHA examined the regulatory requirements of the 
proposed rule to determine if they would have a significant economic 
impact on a substantial number of small entities. As indicated in 
section VI (``Preliminary Economic Analysis'') of this preamble, the 
proposed rule is expected to have no effect on compliance costs and 
regulatory burden for all employers, large and small. Accordingly, the 
Agency certifies that the proposed rule would not have a significant 
economic impact on a substantial numb