Clarification of Employer Duty To Provide Personal Protective Equipment and Train Each Employee, 75568-75589 [E8-29122]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 73, Number 240 (Friday, December 12, 2008)]
[Rules and Regulations]
[Pages 75568-75589]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-29122]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

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

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


Clarification of Employer Duty To Provide Personal Protective 
Equipment and Train Each Employee

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

ACTION: Final rule.

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

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

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

FOR FURTHER INFORMATION CONTACT: Contact Ms. Jennifer Ashley, Director, 
Office of Communications, OSHA, U.S. Department of Labor, Room N-3647, 
200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 
693-1999 or fax (202) 693-1634.

SUPPLEMENTARY INFORMATION: 

I. Table of Contents

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

II. Background

A. Personal Protective Equipment (PPE)

    The use of personal protective equipment, including respirators, is 
often necessary to protect employees from injury or illness caused by 
exposure to toxic substances and other workplace hazards. Many OSHA 
standards in Parts 1910 through 1926 require employers to provide PPE 
to their employees and ensure the use of PPE. Some general standards 
require the employer to provide appropriate PPE wherever necessary to 
protect employees from hazards. See, e.g., Sec. Sec.  1910.132(a); 
1915.152(a); 1926.95(a). Other standards require the employer to

[[Page 75569]]

provide specific types of PPE or to provide PPE in specific 
circumstances. For example, the logging standard requires employers to 
provide cut-resistant leg protection to employees operating a chainsaw, 
29 CFR 1910.266(d)(1)(iv); the coke oven emissions standard requires 
the employer to provide flame resistant clothing and other specialized 
protective equipment, Sec.  1910.1029(h); and the methylene chloride 
standard requires the employer to provide protective clothing and 
equipment that is resistant to methylene chloride, Sec.  1910.1052(h). 
OSHA's respirator standards follow a similar pattern. Section 1910.134, 
revised in 1998, requires employers to provide respirators ``when such 
equipment is necessary to protect the health of the employee.'' Sec.  
1910.134(a)(2). The section includes additional paragraphs requiring 
employers to establish a respiratory protection program, to select an 
appropriate respirator based upon the hazard(s) to which the employee 
is exposed, to provide a medical examination to determine the 
employee's ability to use a respirator, to fit-test the respirator to 
the individual employee and to take other actions to ensure that 
respirators are properly selected, used and maintained. E.g., Sec.  
1910.134(c) through (m); 63 FR 1152-1300 January 8, 1998 (Respiratory 
Protection rule). A variety of other standards require the employer to 
provide respirators when employees are or may be exposed to specific 
hazardous substances. See, e.g., Sec.  1910.1101(g)(asbestos); Sec.  
1910.1027(g)(cadmium). The 1998 Respiratory Protection rule revised the 
substance-specific standards then in existence to simplify and 
consolidate their respiratory protection provisions. 63 FR 1265-68. 
Except for a limited number of respirator provisions unique to each 
substance-specific standard, the regulatory text on respirators for 
these standards is virtually the same. The construction industry 
asbestos standard's initial respirator paragraph, which is virtually 
identical to the initial respirator paragraphs in most substance 
specific standards, states that, ``[f]or employees who use respirators 
required by this section, the employer must provide respirators that 
comply with the requirements of this paragraph.'' Sec.  
1926.1101(h)(1). The standard also states that, ``the employer must 
implement a respiratory protection program in accordance with [certain 
requirements in Sec.  1910.134].'' Sec.  1926.1101(h)(2).

B. Training

    Training is also an important component of many OSHA standards. 
Training is necessary to enable employees to recognize the hazards 
posed by toxic substances and dangerous work practices and protect 
themselves from these hazards. Virtually all of OSHA's toxic-substance 
standards, such as the asbestos, vinyl chloride, lead, chromium, 
cadmium and benzene standards, require the employer to train or provide 
training to employees who may be exposed to the substance. Many safety 
standards also contain training requirements. The lockout/tagout 
standard, for example, requires the employer to provide training on the 
purpose and function of the energy control program, Sec.  
1910.147(c)(7), and the electric power generation standard requires 
that employees be trained in and familiar with pertinent safety 
requirements and procedures. Sec.  1910.269(a)(2).
    The regulatory text on training varies from standard to standard. 
Some standards explicitly state that ``each employee shall be trained'' 
or ``each employee shall receive training'' or contain similar language 
that makes clear that the training must be provided to each individual 
employee covered by the requirement. E.g., process safety management, 
Sec.  1910.119(g)(i) (each employee shall be trained); lockout/tagout, 
Sec.  1910.147(c)(7)(A) (each employee shall receive training); vinyl 
chloride, Sec.  1910.1017(j) (each employee shall be provided 
training); construction general safety and health provisions, Sec.  
1926.20(b) (instruct each employee); construction fall protection, 
Sec.  1926.503(a) (provide a training program for each employee).
    Other standards contain a slight variation; they state that 
``employees shall be trained'' or that the employer must ``provide 
employees with information and training.'' E.g., Electric power 
generation, Sec.  1910.269(a)(2) (employees shall be trained); Benzene, 
Sec.  1910.1028(j)(3)(i) (provide employees with information and 
training); Hazard communication, Sec.  1910.1200(h) (provide employees 
with effective information and training).
    Finally, some standards state that the employer must ``institute a 
training program [for exposed employees] and ensure their participation 
in the program'' or contain similar language. For example, the asbestos 
standard's initial training section states that ``[t]he employer shall 
institute a training program for all employees who are exposed to 
airborne concentrations of asbestos at or above the PEL and/or 
excursion limit and ensure their participation in the program.'' Sec.  
1910.1001(j)(7). See also, e.g., Sec.  1926.1101(k)(9) (Construction 
asbestos); Sec.  1910.1025(l) (Lead); Sec.  1910.1027(m)(4) (Cadmium).
    The Agency interprets its PPE and training provisions to impose a 
duty upon the employer to comply for each and every employee subject to 
the requirement regardless of whether the provision expressly states 
that PPE or training must be provided to ``each employee.'' Neither the 
Commission nor any court has ever suggested that an employer can comply 
with the PPE and training provisions in safety and health standards by 
providing PPE to some employees covered by the requirement but not 
others, or that the employer can train some employees covered by the 
training requirement but not others. The basic nature of the employer's 
obligation is the same in all of these provisions; each and every 
employee must receive the required protection.
    Therefore, the agency's position is that a separate violation 
occurs for each employee who is not provided required PPE or training, 
and that a separate citation item and proposed penalty may be issued 
for each. However, as discussed in the Legal Authority section, a 
recent decision of the Review Commission in the Ho case suggests that 
minor variations in the wording of the provisions affect the 
Secretary's authority to cite and penalize separate violations. 
Secretary of Labor v. Erik K. Ho, Ho Ho Ho Express, Inc. and Houston 
Fruitland, Inc., 20 O.S.H. Cas. (BNA) 1361 (Rev. Comm'n 2003), aff'd, 
Chao v. OSHRC and Erik K. Ho, 401 F.3d 355 (5th Cir. 2005). The agency 
is proposing to amend its standards to make it unmistakably clear that 
each covered employee is required to receive PPE and training, and that 
each instance when an employee subject to a PPE or training requirement 
does not receive the required PPE or training may be considered a 
separate violation subject to a separate penalty.
    Where an employer commits multiple violations of a single standard 
or regulation, OSHA either groups the violations and proposes a single 
penalty, or cites and proposes a penalty for each discrete violation. 
Although ``grouping'' is the more common method, OSHA proposes separate 
``per-instance'' penalties in cases where the resulting heightened 
aggregate penalty is appropriate to deter flagrant violators and 
increase the impact of OSHA's limited resources. Per-employee penalties 
for violations of PPE and training requirements are no different in 
kind than other types of per-instance

[[Page 75570]]

penalties the agency has proposed under this policy. OSHA's current 
policies for issuing instance-by-instance violations are described in 
OSHA Instruction CPL 2.80 issued on October 21, 1990. These detailed 
instructions to OSHA's field offices and the National Office ensure 
that the policy is only used when a particularly flagrant violation is 
discovered, and that each case receives careful review by the Agency's 
senior officials before such citations are issued. Approximately seven 
instance-by-instance, or egregious, citations are issued each year (Ex. 
69).
    Accordingly, on August 19, 2008, OSHA proposed to amend the 
respirator and training provisions in the standards in Parts 1910 
through 1926 to: (1) Revise the language of the initial respirator 
paragraphs adopted in the 1998 respiratory protection rule to 
explicitly state that the employer must provide each employee an 
appropriate respirator and implement a respiratory protection program 
for each employee, (2) revise the language of those initial training 
paragraphs that require the employer to institute or provide a training 
program to explicitly state that the employer must train each employee, 
and (3) add a new section to the introductory Subparts of each Part to 
clarify that standards requiring the employer to provide PPE, including 
respirators, or to provide training to employees, impose a separate 
compliance duty to each employee covered by the requirement and that 
each instance of an employee who does not receive the required PPE or 
training may be considered a separate violation (73 FR 48335-48350).
    OSHA received approximately 50 comments on the proposal, and, in 
response to several requests, held a hearing on October 6, 2008. A 30-
day period was established for post-hearing comments and briefs, and 
seven post-hearing submissions were received by the Agency.
    Following the notice and comment period, an informal rulemaking 
hearing, and careful Agency deliberation, OSHA finds that its 
preliminary conclusions are appropriate and is therefore issuing this 
final standard clarifying employers' responsibilities to provide 
required PPE and training to each and every one of their employees.
    Federal Register documents, comments, the transcript from the 
hearing, and post hearing submissions can be accessed electronically at 
https://www.regulations.gov, docket No. OSHA-2008-0031. Comments 
received are identified at regulations.gov as Exhibits ``OSHA-2008-
0031-XXX''. However, in the discussion below, comments will simply be 
referenced as ``Ex. XXX'' to shorten the references and make the 
document more readable.
    Please note that the title of the final rulemaking has been changed 
from the title used in the proposal. The proposed rulemaking title 
``Clarification of Remedy for Violation of Requirements to Provide 
Personal Protective Equipment and Train Each Employee'' caused some 
confusion as to the nature of the rulemaking. Therefore, OSHA has 
changed the title to ``Clarification of Employer Duty to Provide 
Personal Protective Equipment and Training to Each Employee'' to show 
that the rulemaking does not impose penalties, but rather clarifies 
each employer's duty to provide PPE and training to each and every 
employee covered by the standards and informs employers that the 
failure to provide PPE or training to an employee may be considered a 
separate violation.

III. Legal Authority

A. Introduction

    The final rule does not impose any new substantive requirements. 
The regulatory text clarifies that the duty to provide personal 
protective equipment of all types, including respirators, and training 
to employees is a duty owed to each employee covered by the 
requirement. This adds no new compliance burden; the nature of the 
employer's duty to protect each employee is inherent in the existing 
provisions. To comply with existing PPE and training provisions, the 
employer must provide PPE to each employee who needs it and train each 
employee who must be informed of job hazards. The employer is not in 
compliance if some employees are without personal protection or are 
untrained. The final rule achieves greater consistency in the 
regulatory text of the various respirator and training provisions in 
Parts 1910 through 1926, provides clearer notice of the nature of the 
employer's duty under existing PPE and training provisions, and 
addresses the Commission's interpretation that the language of some 
respirator and training provisions does not allow separate per-employee 
citations and penalties.
    Before OSHA can issue a new more protective standard, the agency 
must find that the hazard being regulated poses a significant risk of 
material health impairment and that the new standard is reasonably 
necessary and appropriate to reduce that risk. Industrial Union 
Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 
(1980). OSHA must also show that the new standard is technologically 
and economically feasible, and cost effective. American Textile Mfrs. 
Inst., Inc. v. Donovan, 452 U.S. 490 (1980). These requirements are not 
implicated in this final rule because the amendments merely clarify the 
obligations under the existing PPE and training provisions and add no 
additional requirements. See sections V and VI infra. The agency met 
its burden of showing significant risk, feasibility and cost 
effectiveness in promulgating the existing PPE and training 
requirements.

B. General Principles Governing Per-Instance Penalties

    Section 9(a) of the Act authorizes the Secretary to issue a 
citation when ``an employer has violated a requirement of * * * any 
standard.'' 29 U.S.C. 658(a). A separate penalty may be assessed for 
``each violation.'' Id. at 666(a), (b), (c). ``The plain language of 
the Act could hardly be clearer'' in authorizing a separate penalty for 
each discrete instance of a violation of a duty imposed by a standard. 
Kaspar Wire Works, Inc. v. Secretary of Labor, 268 F.3d 1123, 1130 (DC 
Cir. 2001).
    What constitutes an instance of a violation for which a separate 
penalty may be assessed depends upon the nature of the duty imposed by 
the standard or regulation at issue. If the standard ``prohibits 
individual acts rather than a single course of action,'' each 
prohibited act constitutes a violation for which a penalty may be 
assessed. Secretary of Labor v. General Motors Corp., CPCG Oklahoma 
City Plant, 2007 WL 4350896, 35 (GM) (Rev. Comm'n 2007); Sanders Lead 
Co. 17 O.S.H. Cas. (BNA) 1197, 1203 (Rev. Comm'n 1995). Applying this 
test, the Commission has held that the recordkeeping regulation's 
requirement to record each injury or illness is violated each time the 
employer failed to record an injury or illness, Secretary of Labor v. 
Caterpillar Inc., 15 O.S.H. Cas. (BNA) 2153, 2172-73 (Rev. Comm'n 
1993); the machine guarding standard's requirement for point-of-
operation guards on machine parts that could injure employees is 
violated at each unguarded machine, Hoffman Constr. Co. v. Secretary of 
Labor, 6 O.S.H. Cas. (BNA) 1274, 1275 (Rev. Comm'n 1975); the fall 
protection standard's requirement to guard floor and wall openings is 
violated at each location on a construction site where appropriate fall 
protection is lacking, Secretary of Labor v. J.A. Jones Constr. Co., 15 
O.S.H. Cas. (BNA) 2201, 2212 (Rev. Comm'n 1993); the trenching 
standard's shoring or shielding requirement is violated at each

[[Page 75571]]

unprotected trench, Secretary of Labor v. Andrew Catapano Enters., 
Inc., 17 O.S.H. Cas. (BNA) 1776, 1778 (Rev. Comm'n 1996) and the 
electrical safety standard is violated at each location where non-
complying electrical equipment is installed. A.E. Staley Mfg. Co. v. 
Secretary of Labor, 295 F.3d 1341, 1343 (DC Cir. 2002).
    The failure to protect an employee is a discrete act for which a 
separate penalty may be assessed when the standard imposes a specific 
duty on the employer to protect individual employees:

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

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

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

17 O.S.H. Cas. (BNA) at 1366. Hartford Roofing reflects the guiding 
principle that provisions requiring the employer to ``provide'' 
respirators to employees because of environmental or other hazards to 
which they are exposed are intrinsically employee-specific because such 
provisions require protection for employees as individuals. The 
Commission reaffirmed this principle in subsequent cases. In Secretary 
of Labor v. Sanders Lead Co., 17 O.S.H. Cas. (BNA) 1197, 1203 (Rev. 
Comm'n 1995), the Commission held that the lead standard's requirement 
for semiannual respirator fit-tests could be cited on a per-employee 
basis because it involved evaluation of individual employees' 
respirators under certain conditions peculiar to each employee. 
Furthermore, in Catapano, 17 O.S.H. Cas. (BNA) at 1780, the Commission 
indicated that the general construction training standard, Sec.  
1926.21(b)(2), clearly supported per-employee citations for each 
individual employee not trained. However, the Commission in Catapano 
found that the Secretary had not cited training violations on a per-
employee basis, but rather, had impermissibly cited the employer for 
each inspection in which employees were found not to have been trained. 
Thus, the Commission affirmed only a single violation of the standard. 
Ibid.
    In the Ho decision, the Commission veered from these principles and 
adopted an analysis focused on the presence or absence of certain 
specific words in the respirator or training provision at issue. 20 
O.S.H. Cas. (BNA) at 1369-1380. Under this approach, the agency's 
ability to enforce respirator and training violations using per-
employee citations in appropriate cases turns on minor variations in 
the wording of the requirements.
    Erik Ho, a Texas businessman, was cited for multiple violations of 
the construction asbestos standard's respirator and training 
provisions. Ho's conduct was particularly flagrant. He hired eleven 
undocumented Mexican employees to remove asbestos from a vacant 
building without providing any of them with appropriate protective 
equipment, including respirators, and without training them on the 
hazards of asbestos. Ho persisted in exposing the unprotected, 
untrained employees to asbestos even after a city building inspector 
shut down the worksite, at which point Ho began operating secretly at 
night behind locked gates. The citations charged Ho with separate 
violations for each of the eleven employees not provided a respirator. 
The respirator provision then in effect stated, in relevant part, that 
``[t]he employer shall provide respirators and ensure that they are 
used * * * [d]uring all Class I asbestos jobs.'' Sec.  
1926.1101(h)(1)(i). Ho was also charged with separate violations for 
each of the eleven employees not trained in accordance with Sec.  
1926.1101(k)(9)(i) and (k)(9)(viii). Paragraph (k)(9)(i) requires the 
employer to ``institute a training program for all [exposed] employees 
and * * * ensure their participation in the program;'' paragraph 
(k)(9)(viii) states that ``[t]he training program shall be conducted in 
a manner that the employee is able to understand * * * [and] the 
employer shall ensure that each such employee is informed of [specific 
hazard information].''
    A divided Occupational Safety and Health Review Commission vacated 
all but one of the respirator and one of the training violations. 
According to the majority, the requirement to provide respirators and 
ensure their use involved the single act of providing respirators to 
the employees in the group performing the specified asbestos work. 17 
O.S.H. Cas. (BNA) at 1372. Thus, the majority concluded, ``the plain 
language of the standard addresses employees in the aggregate, not 
individually.'' Ibid. The majority reached this conclusion despite 
acknowledging that various subparagraphs immediately following the 
cited provision required particularly employee-specific actions, such 
as fit-testing individual employees. Ibid. n. 12.
    The majority adopted an equally narrow interpretation of the 
requirement in Sec.  1926.1101(k)(9)(i) to ``institute a training 
program'' for all [exposed] employees and ensure their participation in 
the program.'' According to the majority, this language requires the 
employer to have a single training program for all exposed employees 
and imposes a single duty to train employees generally. Id. at 1374. 
Although paragraph (k)(9)(viii) explicitly states that, ``the employer 
shall ensure that each such employee is informed of [specific hazard 
information],'' the majority found that ``the mere use of the 
terminology `each such employee' under (k)(9)(viii) does not 
demonstrate that these [training] provisions define the relevant 
workplace exposure in terms of exposure of individual employees.'' 
Ibid. One Commissioner dissented, arguing that the plain wording of the 
respirator and training provisions

[[Page 75572]]

authorizes OSHA to treat as a discrete violation each employee not 
provided and required to use an appropriate respirator, and each 
employee not trained in asbestos hazards. Id. at 1380-86 (Rodgers, 
Comm'r dissenting).
    A divided panel of the U.S. Court of Appeals for the Fifth Circuit 
affirmed the result reached by the Commission, in part on different 
grounds than those articulated by the Commission majority. 401 F.3d at 
368-376. The majority agreed with the Commission that the language of 
the respirator provision did not support per-employee penalties for 
Ho's failure to provide a respirator to each employee who performed 
covered asbestos work. Id. at 373-74. Disagreeing with the Commission, 
the majority found that the language of the training provision permits 
per-employee citations. Id. at 372. However, the majority concluded 
that the agency's decision to cite and penalize Ho for each untrained 
employee was unreasonable absent circumstances showing that different 
training actions would have been required because of uniquely employee-
specific factors. Id. at 373. Judge Garza dissented. He read the 
respirator provision to require action on a per-employee basis. Id. at 
379 (Garza J. dissenting). He also found no support for the majority's 
``employee-specific unique circumstances'' requirement under the 
training provision and concluded that, in any event, the requirement 
was met by Ho's failure to train the employees and ensure that they 
understood the training. Id. at 379-80.
    In two subsequent decisions, the Commission stated that respirator 
and training requirements worded slightly differently from those at 
issue in Ho may be cited on a per-employee basis. In Secretary of Labor 
v. Manganas Painting Co., 21 O.S.H. Cas. (BNA) 1964, 1998-99 (Rev. 
Comm'n 2007), the Commission indicated that the initial respiratory 
protection paragraph of the 1993 construction lead standard, Sec.  
1926.62(f)(1), authorizes per-employee citations. That paragraph 
states, in relevant part, ``[w]here the use of respirators is required 
under this section the employer shall provide * * * and assure the use 
of respirators which comply with the requirements of this paragraph.'' 
The Commission distinguished Ho on the ground that the language in the 
cited provision requiring the employer to provide respirators ``which 
comply with the requirements of this paragraph'' means that compliance 
with paragraph (f)(1) is predicated upon compliance with all of the 
requirements in paragraph (f), including fit-testing requirements in 
another section of the paragraph that are uniquely employee-
specific.\1\ Ibid. In contrast, in Ho the language requiring compliance 
with such provisions immediately followed the cited initial provision, 
and the Commission declined to read the initial provision in light of 
the subsequent requirements. However, the Commission's interpretation 
in Manganas that the lead standard authorizes per-employee violations 
may not be part of the holding of the case. After stating that the 
standard could be cited on a per-employee basis, the Commission then 
stated that it declined to determine whether Manganas's failure to 
provide respirators to multiple employees constituted a single 
violation or multiple violations on the ground that the amount of the 
total penalty would not be affected under the circumstances of that 
case. Id. at 1999.
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    \1\ The current version of Sec.  1926.62(f)(1) is virtually 
identical to the 1993 version at issue in Manganas. The provision 
now states in relevant part, ``[f]or employees who use respirators 
required by this section, the employer must provide respirators that 
comply with the requirements of this paragraph.''
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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. Ho (construing 29 CFR 
1910.147(c)(7)(iii)(B)). This provision, the Commission found, 
``specifically targets deviations from or inadequacies in the 
employee's knowledge or use of the energy control procedures, an 
occurrence that would trigger an employer's obligation to retrain only 
that particular employee.'' Ibid. (internal quotations omitted).
    The Commission held that because the training provisions impose a 
specific duty on the employer to train each employee, it is irrelevant 
whether the employer may choose to provide the required training 
collectively, such as holding a single training session for all 
employees. Id. at 36. Under the wording of the standard, the Commission 
concluded, ``any failure to train would be a separate abrogation of the 
employer's duty to train each untrained employee.'' Ibid. The 
Commission distinguished the Ho decision on the ground that the 
language at issue there, requiring ``a training program for all 
employees,'' pertained to a single group of employees collectively 
exposed to identical hazards. Ibid.

C. The Agency's Interpretation

    The Agency's position is that despite minor differences in their 
wording, all PPE and training provisions in safety and health standards 
impose the same basic duty on the employer to protect employees 
individually--by providing personal protective equipment, such as a 
respirator, or by communicating hazard information through training. 
The individualized nature of the duty to comply does not change because 
of the presence or absence of the words ``each employee,'' or other 
words explicitly stating that the employer's duty runs to each 
individual employee. Thus, the existing PPE provisions may be cited 
separately for each employee who requires PPE but does not receive it, 
and the training provisions may be cited separately for each employee 
who requires training but does not receive it.

[[Page 75573]]

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

[[Page 75574]]

although the Commission indicated in Manganas that language similar to 
that in the 1998 rule permits per-employee penalties, that aspect of 
the decision could be viewed as dicta. Finally, the 1998 respirator 
language is virtually the same in all standards with respirator 
requirements, and the same wording can be used to amend all of the 
standards. The agency intends the new language to clearly convey that 
the respirator provisions in all OSHA standards impose a duty to 
provide an appropriate respirator to each individual employee who 
requires respiratory protection. The failure to provide an appropriate 
respirator to each such employee may expose the employer to per-
employee citations.
    OSHA also believes that the existing language of the training 
provisions in safety and health standards makes reasonably clear that 
the training obligation extends to each individual employee. Some of 
these provisions explicitly state that ``each employee'' must be 
trained. For example, the process safety management standard states 
that ``each employee presently involved in operating a process * * * 
must be trained.'' 29 CFR 1910.119(g)(i); 29 CFR 1926.64(g) 
(construction); the logging standard states that ``[t]he employer shall 
provide training for each employee,'' Sec.  1910.266(i); the vinyl 
chloride standard states that ``[e]ach employee engaged in vinyl 
chloride or polyvinyl chloride operations shall be provided training,'' 
Sec.  1910.1017(j); and the chromium standard states that ``[t]he 
employer shall ensure that each employee can demonstrate knowledge of 
[the Sec.  1926.1126(j)(2) (construction). The Commission in GM held 
that provisions that explicitly require training for ``each employee'' 
may be cited separately for each employee not trained. 2007 WL 4350896 
at 36. Accordingly, these provisions require no amendatory action.
    Some standards contain provisions stating that the employer must 
train ``employees'' exposed to the hazard addressed by the standard. 
For example, the hazardous waste operations standard states that 
``[a]ll employees [exposed to hazardous substances] shall receive 
training,'' Sec.  1910.120 (e)(1); while the benzene standard states 
that ``the employer shall provide employees with information and 
training at the time of their initial assignment to a work area where 
benzene is present.'' Sec.  1910.1028(j)(3)(i). There is no substantive 
difference between the requirement to train ``employees'' exposed to a 
hazard and the requirement to train ``each employee'' exposed to the 
hazard. Under both formulations, the exposed employee is the subject of 
the training requirement, and compliance cannot be achieved unless and 
until each such employee receives the required training. Therefore 
provisions requiring the employer to provide training to employees 
exposed to a hazard, or to ensure that employees receive training, or 
that contain similar language, are plainly susceptible to per-employee 
citations in appropriate cases. GM, 2007 WL 4350896 at 36. No 
additional language is needed to clarify the intent of these 
provisions.
    A minority of training provisions state that the employer must 
``institute a training program for all [exposed] employees and ensure 
their participation in the program'' or contain similar language. See 
e.g., Sec.  1910.1001(j)(7)(i) (asbestos); Sec.  1910.1018(o)(1)(i) 
(inorganic arsenic); Sec.  1910.1025(l)(1)(ii) (lead); Sec.  
1910.1027(m)(4)(i) (cadmium). The Agency disagrees with the Ho 
majority's conclusion that this language requires the employer to have 
a training program, but does not impose a specific duty to train each 
exposed employee. The requirement that the employer ``institute'' the 
training program and ensure employee ``participation'' indicates that 
the focus of the provision is on the communication of hazard 
information to each employee. Furthermore, virtually all of the 
provisions requiring a training program also contain language 
explicitly stating that ``each employee'' must be informed of specific 
hazard information. See Sec.  1910.1001(j)(7)(iii) (asbestos); Sec.  
1910.1018(o)(1)(ii) (inorganic arsenic); Sec.  1910.1025(l)(1)(v) 
(lead); Sec.  1910.1027(m)(4)(iii) (cadmium). Accordingly, the duty to 
``institute a training program'' runs to each individual employee 
subject to the training requirement, and a discrete violation occurs 
for each such employee who does not receive training.
    Ho, however, states the Commission's current interpretation as to 
the meaning of the construction asbestos standard's training provision. 
The Ho majority considered the language in Sec.  1926.1101(k)(9)(i) to 
impose a duty to have a training program for employees collectively. 
The failure to train each of a number of individual employees on 
asbestos hazards was therefore considered a single violation. Although 
the Secretary does not accept the Ho majority's interpretation, the 
decision may be a significant impediment to the consistent and 
effective enforcement of the asbestos standard and other standards that 
contain similar wording. Accordingly, OSHA believes it is appropriate 
to amend those standards that require the employer to ``institute a 
training program'' to clarify that the employer's duty is to train each 
employee in accordance with the training program. The revised language 
expressly identifies the subject of the training requirement as ``each 
employee'' and therefore imposes a ``specific duty on the employer to 
train each individual employee.'' GM, 2007 WL 430896 at 36. The agency 
intends the revision to clarify without question that the failure to 
train each individual employee covered by the training requirement may 
be considered a separate violation with a separate penalty.
2. Comments of the U.S. Chamber of Commerce
    The U.S. Chamber of Commerce, joined by the Associated Builders and 
Contractors, Inc. and the National Association of Home Builders, 
submitted comments challenging the Secretary's legal authority to 
promulgate the final rule. (Exs. 28.1, 40.1, 82.1). The Chamber agrees 
with OSHA that insubstantial differences in the wording of the PPE and 
training standards should not affect resolution of the unit of 
violation, and appears to question the correctness of the Commission's 
analysis in Ho. (Ex. 28.1 at 1). Nevertheless, the Chamber argues that 
the Secretary lacks authority under section 6(b) of the Act to issue a 
rule clarifying that each employee not provided PPE or training as 
required by the PPE and training standards may be considered a separate 
violation for penalty purposes. (Ex. 28.1 at 1-3). In the Chamber's 
view, section 6(b) limits the Secretary's rulemaking authority to 
defining the conditions or practices required to provide safe and 
healthful workplaces, while section 17 commits to the Commission alone 
the determination whether one or more violations of standards have 
occurred. The Administrative Procedure Act is a further limitation on 
the Secretary's authority, the Chamber argues, as section 558(b) states 
that ``[a] sanction may not be imposed * * * except within jurisdiction 
delegated to the agency and as authorized by law.'' 5 U.S.C. 558(b) 
(1994).
    The Chamber also disagrees with the proposition in the proposed 
rule's preamble that a separate violation occurs for each employee who 
is not provided PPE or training. The Chamber maintains that there might 
be only one violation if the employer failed to cover a certain point 
in training a group of employees or failed to provide the right 
cartridge for the respirators provided a group of similarly exposed 
employees.

[[Page 75575]]

(Ex. 28.1 at 4, 5). In light of these asserted legal defects in the 
proposed rule, the Chamber recommends that the Secretary address the 
problem presented by the Ho case by continuing to litigate the issue 
before the Commission. (Id. at 4).
    a. OSHA disagrees with these arguments for the following reasons. 
First, the Chamber fundamentally misinterprets both the rule and the 
Act in suggesting that the amendments usurp the Commission's authority 
under Section 17 to determine the amount of penalties. As the new 
paragraphs to the introductory sections of the subparts make clear, the 
final rule does not purport to set penalty amounts. Instead it 
clarifies that the employer's substantive duty under existing PPE and 
training standards is to comply with respect to each individual 
employee who must use PPE or receive training, and it provides clear 
notice that employers may be cited on a per-employee basis for 
violations. For example, Sec.  1910.9 states ``[s]tandards in this part 
requiring personal protective equipment (PPE), including respirators 
and other types of PPE, because of hazards to employees impose a 
separate compliance duty with respect to each employee covered by the 
requirement. The employer must provide PPE to each employee required to 
use the PPE and each failure to provide PPE may be considered a 
separate violation.'' (emphasis added).
    Section 6(b) of the Act authorizes the Secretary to ``promulgate, 
modify or revoke any occupational safety or health standard'' by 
following certain procedures, and the Secretary is exercising this 
express authority here. As explained in the preceding subsections, 
current Commission precedent indicates that the specific wording of 
some respirator and training provisions may not support per-employee 
citations while the slightly different wording of other respirator and 
training provisions does support such citations. While the Secretary 
believes that the PPE and training standards already support her 
interpretation, she is amending the standards to conform to the 
Commission's view that precise language is necessary. The amendments 
also address the Commission's concern that the current language of some 
standards may not provide fair notice. Only the Secretary has the 
authority to amend her standards in this manner.
    The Secretary's exercise of her express authority to amend her 
standards to add language the Commission has indicated is necessary is 
hardly a usurpation of the Commission's authority. To the contrary, the 
final rule amendments recognize and respect the Commission's 
adjudicative role under section 10(c) of the Act.
    The Commission's authority under section 17 to assess penalties is 
not implicated by this final rule. Where the Secretary has cited 
separate violations of the same standard, the Commission may be 
required to determine whether the standard authorizes the type of per-
instance violations charged. That issue, however, turns entirely on the 
proper interpretation of the standard's text. Hartford Roofing, 17 
O.S.H. Cas. (BNA) at 1367. The Commission's role is limited to 
determining whether the Secretary's interpretation that the standard 
permits per-instance violations is reasonable. Martin v. OSHRC, 499 
U.S. 144 (1991). Where a standard is reasonably susceptible to citation 
on a per-instance basis, the Secretary's authority to propose a 
separate penalty for each such violation is clear. ``The plain language 
of the Act could hardly be clearer'' in authorizing a separate penalty 
for each discrete instance of a violation of a duty imposed by a 
standard. Kaspar Wire Works, Inc. v. Secretary of Labor, 268 F.3d 1123, 
1130 (DC Cir. 2001).
    The Commission's authority under section 17(j) to ``assess all 
civil penalties provided in this section'' does not permit it to review 
the Secretary's prosecutorial decision to cite and propose a separate 
penalty for each discrete violation of a standard. Chao v. OSHRC (Saw 
Pipes USA, Inc. and Jindal United Steel Corp.), 480 F.3d 320, 324 n. 3 
(5th Cir. 2007). The Commission's adjudicative functions are to 
determine whether the facts support the multiple violations charged, 
and to apply the statutory criteria to determine the amount of the 
penalty to be assessed for each proven violation. Id. at 325. These 
functions are not affected by the final rule, which concerns only the 
Secretary's interpretation that the PPE and training standards are 
susceptible to per-employee citations.
    Reich v. Arcadian Corp., 110 F.3d 1192 (5th Cir. 1997), does not 
support the Chamber's argument. There, the Fifth Circuit observed that 
OSHA standards address ``conditions'' and ``practices'' and that the 
unit of violation of a standard must reflect the particular hazardous 
conditions regulated. 110 F.3d at 1198. While most standards require 
abatement of hazardous conditions affecting employees collectively, the 
condition or practice to which the PPE and training standards are 
directed is the protection of individual employees. Hartford Roofing, 
17 O.S.H. Cas. (BNA) at 1366-67 (``[T]he condition or practice to which 
[the general respirator] standard is directed, within the meaning of 
section 3(8) of the Act, is * * * the individual and discrete failure 
to provide an employee working in a contaminated environment with a 
proper respirator.''). The Arcadian court expressly recognized that an 
individual employee may be the unit of prosecution ``if the regulated 
condition or practice is unique to the employee (i.e., failure to train 
or remove a worker)''. 110 F.3d at 1199 (citing Hartford Roofing, 17 
O.S.H. Cas. (BNA) 1361).
    The foregoing discussion plainly disposes of the Chamber's claim 
that the final rule imposes a sanction without an express 
authorization, in violation of Sec.  558 of the APA. Nothing in the 
final rule imposes a sanction. Insofar as the rule addresses penalties, 
it does so only indirectly, by informing the public that the agency may 
exercise prosecutorial discretion to cite on a per-employee basis for 
violations of PPE and training standards. The Secretary's charging 
decision whether to issue a single citation or separate per-employee 
citations is not itself a penalty. Chao v. OSHRC, 480 F.3d at 325. 
Moreover, citations reflect only the Secretary's proposed penalty 
amounts--the Commission, not the Secretary, actually assesses 
penalties. American Bus Ass'n v. Slater, 231 F.3d 1 (DC Cir. 2000), 
cited by the Chamber, is obviously distinguishable in that the rule at 
issue there authorized the agency to levy fines in specific amounts 
directly against regulated entities for violations of bus accessibility 
requirements. In any event, section 9(a) of the OSH Act expressly 
authorizes the Secretary to issue a citation for violation of ``a 
requirement * * * of any standard,'' and section 17 states that a 
penalty may be assessed ``for each violation.'' Thus, the final rule 
clearly falls ``within jurisdiction delegated to the agency'' and does 
not violate section 558 of the APA.
    b. The Chamber's criticisms of isolated statements in the 
proposal's preamble are irrelevant to the issue of the Secretary's 
legal authority to promulgate the final rule. (Ex. 28.1 at 4, 5). The 
Chamber chiefly challenges the proposal's statement that a separate 
violation occurs for each employee not provided required PPE or 
training, arguing that in some situations, the employer's failure to 
provide PPE or training to a class of employees can be considered a 
single violative condition or practice for which only a single citation 
could be issued. (Ex. 28.1 at 4, 5). However, the Secretary clearly has 
the authority to make specific changes

[[Page 75576]]

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

IV. Summary and Explanation of the Proposed Rule

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

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

    OSHA has added a new section to Subpart A of Parts 1910, 1915, 1917 
and 1918, and to Subpart C of Part 1926. These subparts contain general 
information about the scope and applicability of the standards in each 
part. The proposed new sections contain two paragraphs, which are 
identical for each new section. The first paragraph expressly states 
that, for standards in the part requiring employers to provide PPE, 
employers must provide PPE to each employee required to use the PPE, 
and each failure to provide PPE to an employee imposes a separate 
compliance duty, and thus may be considered a separate violation. The 
new paragraph applies to all standards in the part that require 
provision of PPE, regardless of their wording. For example, Sec.  
1910.132 requires employers to provide PPE when needed, and also 
recognizes that an employer may allow an employee who voluntarily 
provides appropriate PPE he or she owns to use that PPE in place of the 
employer-provided equipment. See

[[Page 75577]]

Sec.  1910.