Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Rules and Regulations 46347 

dealing regulations.’’ is corrected to read 

‘‘of new global dealing regulations.’’. 

7. On page 38837, column 1, in the 

first paragraph heading, the language 

‘‘D. Stewardship Expenses—§ 1.861–8’’ 

is corrected to read ‘‘D. Apportionment 

of Stewardship Expenses—§ 1.861–8’’. 

LaNita Van Dyke, 

Chief, Publications and Regulations Branch, 

Legal Processing Division, Associate Chief 

Counsel (Procedure and Administration). 

[FR Doc. E9–21227 Filed 9–8–09; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 301 

[TD 9460] 

RIN 1545–BD67 

Declaratory Judgments—Gift Tax 

Determinations 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Final regulations. 

SUMMARY: This document contains final 

regulations under section 7477 of the 

Internal Revenue Code (Code) regarding 

petitions filed with the United States 

Tax Court for declaratory judgments 

with respect to the valuation of gifts. 

Changes to the applicable law were 

made by section 506(c)(1) of the 

Taxpayer Relief Act of 1997. These final 

regulations primarily affect individuals 

who are donors of gifts. The final 

regulations provide rules for 

determining whether a donor may 

petition the Tax Court for a 

determination regarding the value of a 

gift, including guidance regarding the 

definition of ‘‘exhaustion of 

administrative remedies.’’ 

DATES: Effective date: These regulations 

are effective September 9, 2009. 

Applicability date: For the date of 

applicability, see § 301.7477–1(f). 

FOR FURTHER INFORMATION CONTACT: 

Deborah S. Ryan or George Masnik (202) 

622–3090 (not a toll free number). 

Background 

Section 7477, enacted in conjunction 

with other provisions as part of the 

Taxpayer Relief Act of 1997 (TRA) (Pub. 

L. 105–34, 111 Stat. 855), provides a 

declaratory judgment procedure 

pursuant to which taxpayers may 

contest in the United States Tax Court 

an IRS determination regarding the 

value of a gift. Prior law did not provide 

a judicial remedy in situations where 

the proposed IRS adjustment would not 

result in a gift tax deficiency or a tax 

overpayment. The new procedure 

applies, for example, where an increase 

in gift tax determined under section 

2502 is offset by the taxpayer’s 

applicable credit amount under section 

2505(a), so that no additional tax is 

assessed as a result of a valuation 

increase. Because there is no tax 

deficiency, in the absence of section 

7477, the taxpayer would be unable to 

challenge the IRS determination, even 

though, upon the expiration of the 

statute of limitations, that determination 

would become binding for purposes of 

calculating the cumulative gift tax on all 

future gifts of that taxpayer, as well as 

the taxpayer’s estate tax liability. See 

H.R. Conf. Rep. No. 105–220, at 407–408 

(1997). 

On June 9, 2008, proposed regulations 

under section 7477 were published in 

the Federal Register (REG–143716–04, 

73 FR 32503, 2008–25 IRB 1170). The 

IRS received no written or oral 

comments responding to the notice of 

proposed rulemaking. No public hearing 

was requested or held. 

The final regulations include a few 

clarifications. In particular, under 

section 7477, in order to be eligible for 

the declaratory judgment procedure, the 

Tax Court must determine that the 

donor exhausted all administrative 

remedies. In general, the proposed 

regulations provide that the IRS will 

consider a donor to have exhausted all 

administrative remedies if an Appeals 

conference is requested timely and the 

donor (or an authorized representative) 

‘‘participates fully’’ in the Appeals 

process. The final regulations contain a 

separate subsection specifying that full 

participation requires timely submission 

of requested information and disclosure 

of all relevant information regarding the 

controversy. In addition, a provision has 

been added specifying that, if Appeals 

does not grant the donor’s request for a 

conference, the donor will be treated as 

having exhausted all administrative 

remedies if, after filing a Tax Court 

petition for a declaratory judgment, the 

donor (or authorized representative) 

participates fully in the Appeals office 

consideration when offered by the IRS 

while the case is in docketed status. 

Special Analyses 

It has been determined that this 

Treasury decision is not a significant 

regulatory action as defined in 

Executive Order 12866. Therefore, a 

regulatory assessment is not required. It 

also has been determined that section 

553(b) of the Administrative Procedure 

Act (5 U.S.C. chapter 5) does not apply 

to these regulations and, because these 

regulations do not impose on small 

entities a collection of information 

requirement, the Regulatory Flexibility 

Act (5 U.S.C. chapter 6) does not apply. 

Pursuant to section 7805(f) of the Code, 

the notice of proposed rulemaking 

preceding this regulation was submitted 

to the Chief Counsel for Advocacy of the 

Small Business Administration for 

comment on its impact on small 

business. 

Drafting Information 

The principal authors of these final 

regulations are Deborah Ryan and Juli 

Ro Kim, Office of the Associate Chief 

Counsel (Passthroughs and Special 

Industries), IRS. Other personnel from 

the IRS and the Treasury Department 

participated in their development. 

List of Subjects in 26 CFR Part 301 

Employment taxes, Estate taxes, 

Excise taxes, Gift taxes, Income taxes, 

Penalties, Reporting and recordkeeping 

requirements. 

Adoption of Amendments to the 

Regulations 

■ Accordingly, 26 CFR part 301 is 

amended as follows: 

PART 301—PROCEDURE AND 

ADMINISTRATION 

■ Paragraph 1. The authority citation 

for part 301 continues to read in part as 

follows: 

Authority: 26 U.S.C. 7805 * * * 

■ Par. 2. Section 301.7477–1 is revised 

to read as follows: 

§ 301.7477–1 Declaratory judgments 

relating to the value of certain gifts for gift 

tax purposes. 

(a) In general. If the adjustment(s) 

proposed by the Internal Revenue 

Service (IRS) will not result in any 

deficiency in or refund of the donor’s 

gift tax liability for the calendar year, 

and if the requirements contained in 

paragraph (d) of this section are 

satisfied, then the declaratory judgment 

procedure under section 7477 is 

available to the donor for determining 

the amount of one or more of the 

donor’s gifts during that calendar year 

for Federal gift tax purposes. 

(b) Declaratory judgment procedure— 

(1) In general. If a donor does not 

resolve a dispute with the IRS 

concerning the value of a transfer for gift 

tax purposes at the Examination level, 

the donor will be sent a notice of 

preliminary determination of value 

(Letter 950–G or such other document as 

may be utilized by the IRS for this 

purpose from time to time, but referred 

to in this section as Letter 950–G), 

inviting the donor to file a formal 


jlentini on DSKJ8SOYB1PROD with RULES
46348 Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Rules and Regulations 

protest and to request consideration by 

the appropriate IRS Appeals office. See 

§§ 601.105 and 601.106 of this chapter. 

Subsequently, the donor will be sent a 

notice of determination of value (Letter 

3569, or such other document as may be 

utilized from time to time by the IRS for 

this purpose in cases where no 

deficiency or refund would result, but 

referred to in this section as Letter 3569) 

if— 

(i) The donor requests Appeals 

consideration in writing within 30 

calendar days after the mailing date of 

the Letter 950–G, or by such later date 

as determined pursuant to IRS 

procedures, and the matter is not 

resolved by Appeals; 

(ii) The donor does not request 

Appeals consideration within the time 

provided in paragraph (b)(1)(i) of this 

section; or 

(iii) The IRS does not issue a Letter 

950–G in circumstances described in 

paragraph (d)(4)(iv) of this section. 

(2) Notice of determination of value. 

The Letter 3569 will notify the donor of 

the adjustment(s) proposed by the IRS, 

and will advise the donor that the donor 

may contest the determination made by 

the IRS by filing a petition with the Tax 

Court before the 91st day after the date 

on which the Letter 3569 was mailed to 

the donor by the IRS. 

(3) Tax Court petition. If the donor 

does not file a timely petition with the 

Tax Court, the IRS determination as set 

forth in the Letter 3569 will be 

considered the final determination of 

value, as defined in sections 2504(c) and 

2001(f). If the donor files a timely 

petition with the Tax Court, the Tax 

Court will determine whether the donor 

has exhausted available administrative 

remedies. Under section 7477, the Tax 

Court is not authorized to issue a 

declaratory judgment unless the Tax 

Court finds that the donor has 

exhausted all administrative remedies 

within the IRS. See paragraph (d)(4) of 

this section regarding the exhaustion of 

administrative remedies. 

(c) Adjustments subject to declaratory 

judgment procedure. The declaratory 

judgment procedures set forth in this 

section apply to adjustments involving 

all issues relating to the transfer, 

including without limitation valuation 

issues and legal issues involving the 

interpretation and application of the gift 

tax law. 

(d) Requirements for declaratory 

judgment procedure—(1) In general. 

The declaratory judgment procedure 

provided in this section is available to 

a donor with respect to a transfer only 

if all the requirements of paragraphs 

(d)(2) through (5) of this section with 

regard to that transfer are satisfied. 

(2) Reporting. The transfer is shown 

or disclosed on the return of tax 

imposed by chapter 12 for the calendar 

year during which the transfer was 

made or on a statement attached to such 

return. For purposes of this paragraph 

(d)(2), the term return of tax imposed by 

chapter 12 means the last gift tax return 

(Form 709, ‘‘United States Gift (and 

Generation-skipping Transfer) Tax 

Return’’ or such other form as may be 

utilized for this purpose from time to 

time by the IRS) for the calendar year 

filed on or before the due date of the 

return, including extensions granted if 

any, or, if a timely return is not filed, 

the first gift tax return for that calendar 

year filed after the due date. For 

purposes of satisfying this requirement, 

the transfer need not be reported in a 

manner that constitutes adequate 

disclosure within the meaning of 

§ 301.6501(c)–1(e) or (f) (and thus for 

which, under §§ 20.2001–1(b) and 

25.2504–2(b) of this chapter, the period 

during which the IRS may adjust the 

value of the gift will not expire). The 

issuance of a Letter 3569 with regard to 

a transfer disclosed on a return does not 

constitute a determination by the IRS 

that the transfer was adequately 

disclosed, or otherwise cause the period 

of limitations on assessment to 

commence to run with respect to that 

transfer. In addition, in the case of a 

transfer that is shown on the return, the 

IRS may in its discretion defer until a 

later time making a determination with 

regard to such transfer. If the IRS 

exercises its discretion to defer such 

determination in that case, the transfer 

will not be addressed in the Letter 3569 

(if any) sent to the donor currently, and 

the donor is not yet eligible for a 

declaratory judgment with regard to that 

transfer under section 7477. 

(3) IRS determination and actual 

controversy. The IRS makes a 

determination regarding the gift tax 

treatment of the transfer that results in 

an actual controversy. The IRS makes a 

determination that results in an actual 

controversy with respect to a transfer by 

mailing a Letter 3569 to the donor, 

thereby notifying the donor of the 

adjustment(s) proposed by the IRS with 

regard to that transfer and of the donor’s 

rights under section 7477. 

(4) Exhaustion of administrative 

remedies—(i) In general. The Tax Court 

determines whether the donor has 

exhausted all administrative remedies 

available within the IRS for resolving 

the controversy. 

(ii) Appeals office consideration. For 

purposes of this section, the IRS will 

consider a donor to have exhausted all 

administrative remedies if, prior to 

filing a petition in Tax Court (except as 

provided in paragraphs (d)(4)(iii) and 

(iv) of this section), the donor, or a 

qualified representative of the donor 

described in § 601.502 of this chapter, 

timely requests consideration by 

Appeals and participates fully (within 

the meaning of paragraph (d)(4)(vi) of 

this section) in the Appeals 

consideration process. A timely request 

for consideration by Appeals is a 

written request from the donor for 

Appeals consideration made within 30 

days after the mailing date of the Letter 

950–G, or by such later date for 

responding to the Letter 950–G as is 

agreed to between the donor and the 

IRS. 

(iii) Request for Appeals office 

consideration not granted. If the donor, 

or a qualified representative of the 

donor described in § 601.502 of this 

chapter, timely requests consideration 

by Appeals and Appeals does not grant 

that request, the IRS nevertheless will 

consider the donor to have exhausted all 

administrative remedies within the IRS 

for purposes of section 7477 upon the 

issuance of the Letter 3569, provided 

that the donor, or a qualified 

representative of the donor described in 

§ 601.502 of this chapter, after the filing 

of a petition in Tax Court for a 

declaratory judgment pursuant to 

section 7477, participates fully (within 

the meaning of paragraph (d)(4)(vi) of 

this section) in the Appeals office 

consideration if offered by the IRS while 

the case is in docketed status. 

(iv) No Letter 950–G issued. If the IRS 

does not issue a Letter 950–G to the 

donor prior to the issuance of Letter 

3569, the IRS nevertheless will consider 

the donor to have exhausted all 

administrative remedies within the IRS 

for purposes of section 7477 upon the 

issuance of the Letter 3569, provided 

that— 

(A) The IRS decision not to issue the 

Letter 950–G was not due to actions or 

inactions of the donor (such as a failure 

to supply requested information or a 

current mailing address to the Area 

Director having jurisdiction over the tax 

matter); and 

(B) The donor, or a qualified 

representative of the donor described in 

§ 601.502 of this chapter, after the filing 

of a petition in Tax Court for a 

declaratory judgment pursuant to 

section 7477, participates fully (within 

the meaning of paragraph (d)(4)(vi) of 

this section) in the Appeals office 

consideration if offered by the IRS while 

the case is in docketed status. 

(v) Failure to agree to extension of 

time for assessment. For purposes of 

section 7477, the donor’s refusal to 

agree to an extension of the time under 

section 6501 within which gift tax with 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Rules and Regulations 46349 

respect to the transfer at issue (if any) 

may be assessed will not be considered 

by the IRS to constitute a failure by the 

donor to exhaust all administrative 

remedies available to the donor within 

the IRS. 

(vi) Participation in Appeals 

consideration process. For purposes of 

this section, the donor or a qualified 

representative of the donor described in 

§ 601.502 of this chapter participates 

fully in the Appeals consideration 

process if the donor or the qualified 

representative timely submits all 

information related to the transfer that 

is requested by the IRS in connection 

with the Appeals consideration and 

discloses to the Appeals office all 

relevant information regarding the 

controversy to the extent such 

information and its relevance is known 

or should be known by the donor or the 

qualified representative during the time 

the issue is under consideration by 

Appeals. 

(5) Timely petition in Tax Court. The 

donor files a pleading with the Tax 

Court requesting a declaratory judgment 

under section 7477. This pleading must 

be filed with the Tax Court before the 

91st day after the date of mailing of the 

Letter 3569 by the IRS to the donor. The 

pleading must be in the form of a 

petition subject to Tax Court Rule 

211(d). 

(e) Examples. The following examples 

illustrate the provisions of this section, 

and assume that in each case the Tax 

Court petition is filed on or after 

September 9, 2009. 

These examples, however, do not 

address any other situations that might 

affect the Tax Court’s jurisdiction over 

the proceeding: 

Example 1. Exhaustion of administrative 

remedies. The donor (D) timely files a Form 

709, ‘‘United States Gift (and GenerationSkipping Transfer) Tax Return,’’ on which D 

reports D’s completed gift of closely held 

stock. After conducting an examination, the 

IRS concludes that the value of the stock on 

the date of the gift is greater than the value 

reported on the return. Because the amount 

of D’s available applicable credit amount 

under section 2505 is sufficient to cover any 

resulting tax liability, no gift tax deficiency 

will result from the adjustment. D is unable 

to resolve the matter with the IRS examiner. 

The IRS sends a Letter 950–G to D informing 

D of the proposed adjustment. D, within 30 

calendar days after the mailing date of the 

letter, submits a written request for Appeals 

consideration. During the Appeals process, D 

provides to the Appeals office all additional 

information (if any) requested by Appeals 

relevant to the determination of the value of 

the stock in a timely fashion. The Appeals 

office and D are unable to reach an agreement 

regarding the value of the stock as of the date 

of the gift. The Appeals office sends D a 

notice of determination of value (Letter 

3569). For purposes of section 7477, the IRS 

will consider D to have exhausted all 

available administrative remedies within the 

IRS, and thus will not contest the allegation 

in D’s petition that D has exhausted all such 

administrative remedies. 

Example 2. Exhaustion of administrative 

remedies. Assume the same facts as in 

Example 1, except that D does not timely 

request consideration by Appeals after 

receiving the Letter 950–G. A Letter 3569 is 

mailed to D more than 30 days after the 

mailing of the Letter 950–G and prior to the 

expiration of the period of limitations for 

assessment of gift tax. D timely files a 

petition in Tax Court pursuant to section 

7477. After the case is docketed, D requests 

Appeals consideration. In this situation, 

because D did not respond timely to the 

Letter 950–G with a written request for 

Appeals consideration, the IRS will not 

consider D to have exhausted all 

administrative remedies available within the 

IRS for purposes of section 7477 prior to 

filing the petition in Tax Court, and thus may 

contest any allegation in D’s petition that D 

has exhausted all such administrative 

remedies. 

Example 3. Exhaustion of administrative 

remedies. D timely files a Form 709 on which 

D reports D’s completed gifts of interests in 

a family limited partnership. After 

conducting an examination, the IRS proposes 

to adjust the value of the gifts as reported on 

the return. No gift tax deficiency will result 

from the adjustments, however, because D 

has a sufficient amount of available 

applicable credit amount under section 2505. 

D declines to consent to extend the time for 

the assessment of gift tax with respect to the 

gifts at issue. Because of the pending 

expiration of the period of limitation on 

assessment within which a gift tax, if any, 

could be assessed, the IRS determines that 

there is not adequate time for Appeals 

consideration. Accordingly, the IRS mails to 

D a Letter 3569, even though a Letter 950– 

G had not first been issued to D. D timely 

files a petition in Tax Court pursuant to 

section 7477. After the case is docketed in 

Tax Court, D is offered the opportunity for 

Appeals to consider any dispute regarding 

the determination and participates fully in 

the Appeals consideration process. However, 

the Appeals office and D are unable to 

resolve the issue. The IRS will consider D to 

have exhausted all administrative remedies 

available within the IRS, and thus will not 

assert that D has not exhausted all such 

administrative remedies. 

Example 4. Legal issue. D transfers 

nonvested stock options to a trust for the 

benefit of D’s child. D timely files a Form 709 

reporting the transfer as a completed gift for 

Federal gift tax purposes and complies with 

the adequate disclosure requirements for 

purposes of triggering the commencement of 

the applicable statute of limitations. Pursuant 

to § 301.6501(c)–1(f)(5), adequate disclosure 

of a transfer that is reported as a completed 

gift on the Form 709 will commence the 

running of the period of limitations for 

assessment of gift tax on D, even if the 

transfer is ultimately determined to be an 

incomplete gift for purposes of § 25.2511–2 of 

this chapter. After conducting an 

examination, the IRS concurs with the 

reported valuation of the stock options, but 

concludes that the reported transfer is not a 

completed gift for Federal gift tax purposes. 

D is unable to resolve the matter with the IRS 

examiner. The IRS sends a Letter 950–G to 

D, who timely mails a written request for 

Appeals consideration. Assuming that the 

IRS mails to D a Letter 3569 with regard to 

this transfer, and that D complies with the 

administrative procedures set forth in this 

section, including the exhaustion of all 

administrative remedies available within the 

IRS, then D may file a petition for declaratory 

judgment with the Tax Court pursuant to 

section 7477. 

Example 5. Transfers in controversy. On 

April 16, 2007, D timely files a Form 709 on 

which D reports gifts made in 2006 of 

fractional interests in certain real property 

and of interests in a family limited 

partnership (FLP). However, although the 

gifts are disclosed on the return, the return 

does not contain information sufficient to 

constitute adequate disclosure under 

§ 301.6501(c)–1(e) or (f) for purposes of the 

application of the statute of limitations on 

assessment of gift tax with respect to the 

reported gifts. The IRS conducts an 

examination and concludes that the value of 

both the interests in the real property and the 

FLP interests on the date(s) of the transfers 

are greater than the values reported on the 

return. No gift tax deficiency will result from 

the adjustments because D has a sufficient 

amount of remaining applicable credit 

amount under section 2505. However, D does 

not agree with the adjustments. The IRS 

sends a Letter 950–G to D informing D of the 

proposed adjustments in the value of the 

reported gifts. D, within 30 calendar days 

after the mailing date of the letter, submits 

a written request for Appeals consideration. 

The Appeals office and D are unable to reach 

an agreement regarding the value of any of 

the gifts. In the exercise of its discretion, the 

IRS decides to resolve currently only the 

value of the real property interests, and to 

defer the resolution of the value of the FLP 

interests. On May 28, 2009, the Appeals 

office sends D a Letter 3569 addressing only 

the value of the gifts of interests in the real 

property. Because none of the gifts reported 

on the return filed on April 16, 2007 were 

adequately disclosed for purposes of 

§ 301.6501(c)–1(e) or (f), the period of 

limitations during which the IRS may adjust 

the value of those gifts has not begun to run. 

Accordingly, the Letter 3569 is timely 

mailed. If D timely files a petition in Tax 

Court pursuant to section 7477 with regard 

to the value of the interests in the real 

property, then, assuming the other 

requirements of section 7477 are satisfied 

with regard to those interests, the Tax Court’s 

declaratory judgment, once it becomes final, 

will determine the value of the gifts of the 

interests in the real property. Because the IRS 

has not yet put the gift tax value of the 

interests in the FLP into controversy, the 

procedure under section 7477 is not yet 

available with regard to those gifts. 

(f) Effective/applicability date. This 

section applies to civil proceedings 

described in section 7477 filed in the 


jlentini on DSKJ8SOYB1PROD with RULES
46350 Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Rules and Regulations 

1The general industry and shipyard employment 

standards expressly allow employers to use PPE 

that is as protective as PPE constructed in 

accordance with the incorporated standards. OSHA 

uses its de minimis policy to allow employers 

covered by the longshoring and marine terminals 

standards to use PPE that is as protective as PPE 

constructed in accordance with the incorporated 

standards. (See OSHA Instruction CPL 2.103, ‘‘Field 

Inspection Reference Manual,’’ Chapter III.C.2.g; 

and memorandum from Richard Fairfax, Director, 

Directorate of Enforcement Programs to Regional 

Administrators (June 19, 2006).) 

United States Tax Court on or after 

September 9, 2009. 

Linda E. Stiff, 

Deputy Commissioner for Services and 

Enforcement. 

Approved: August 26, 2009. 

Michael Mundaca, 

Assistant Secretary of the Treasury (Tax 

Policy). 

[FR Doc. E9–21458 Filed 9–8–09; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Parts 1910, 1915, 1917, and 

1918 

[Docket No. OSHA–2007–0044] 

RIN 1218–AC08 

Updating OSHA Standards Based on 

National Consensus Standards; 

Personal Protective Equipment 

AGENCY: Occupational Safety and Health 

Administration (OSHA), Department of 

Labor. 

ACTION: Final rule. 

SUMMARY: OSHA is issuing this final 

rule to revise the personal protective 

equipment (PPE) sections of its general 

industry, shipyard employment, 

longshoring, and marine terminals 

standards regarding requirements for 

eye- and face-protective devices, head 

protection, and foot protection. OSHA is 

updating the references in its 

regulations to recognize more recent 

editions of the applicable national 

consensus standards, and is deleting 

editions of the national consensus 

standards that PPE must meet if 

purchased before a specified date. In 

addition, OSHA is amending its 

provision that requires safety shoes to 

comply with a specific American 

National Standards Institute (ANSI) 

standard, and a provision that requires 

filter lenses and plates in eye-protective 

equipment to meet a test for 

transmission of radiant energy specified 

by another ANSI standard. In amending 

these paragraphs, OSHA will require 

this safety equipment to comply with 

the applicable PPE design provisions. 

These revisions are a continuation of 

OSHA’s effort to update or remove 

references to specific consensus and 

industry standards located throughout 

its standards. 

DATES: This final rule will become 

effective on October 9, 2009. 

The incorporation by reference of 

specific publications listed in this final 

rule is approved by the Director of the 

Federal Register as of October 9, 2009. 

FOR FURTHER INFORMATION CONTACT: 

General information and press inquiries: 

Contact Jennifer Ashley, Director, OSHA 

Office of Communications, Room N– 

3647, U.S. Department of Labor, 200 

Constitution Avenue, NW., Washington, 

DC 20210; telephone: (202) 693–1999. 

Technical inquiries: Contact Ted 

Twardowski, Directorate of Standards 

and Guidance, Room N–3609, OSHA, 

U.S. Department of Labor, 200 

Constitution Avenue, NW., Washington, 

DC 20210; telephone: (202) 693–2070; 

fax: (202) 693–1663. 

Copies of this Federal Register notice. 

Electronic copies of this Federal 

Register notice are available at http:// 

www.regulations.gov. This Federal 

Register notice, as well as news releases 

and other relevant information, are also 

available at OSHA’s Web page at http:// 

www.osha.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Summary and Explanation of the Final 

Rule 

A. General Background 

B. Revisions to the PPE Provisions of the 

OSHA Standards 

C. Discussion of Comments and Hearing 

Testimony 

D. Summary of the Final Rule 

II. Procedural Determinations 

A. Legal Considerations 

B. Final Economic Analysis and Regulatory 

Flexibility Act Certification 

C. OMB Review Under the Paperwork 

Reduction Act of 1995 

D. Federalism 

E. State-Plan States 

F. Unfunded Mandates Reform Act 

III. Authority and Signature 

I. Summary and Explanation of the 

Final Rule 

A. General Background 

As discussed in a previous Federal 

Register document (69 FR 68283), 

OSHA is undertaking a series of projects 

to update its standards to incorporate 

the latest versions of national consensus 

and industry standards. These projects 

include updating or revoking national 

consensus and industry standards 

referenced in existing OSHA standards, 

updating regulatory text of standards 

adopted directly by OSHA from the 

language of outdated consensus 

standards, and, when appropriate, 

replacing specific references to outdated 

national consensus and industry 

standards with performance-oriented 

requirements. 

On May 17, 2007, OSHA published a 

Notice of Proposed Rulemaking (NPRM) 

(72 FR 27771) entitled ‘‘Updating OSHA 

Standards Based on National Consensus 

Standards; Personal Protective 

Equipment.’’ The NPRM set July 16, 

2007, as a deadline for submitting 

comments and for requesting an 

informal public hearing on the proposed 

rule. The Agency received 

approximately 25 comments and 4 

requests for an informal public hearing. 

OSHA then published a Federal 

Register notice scheduling an informal 

public hearing for December 4, 2007 (72 

FR 50302). The informal public hearing 

took place as scheduled, and OSHA 

received testimony from nine witnesses. 

Thomas M. Burke, Administrative Law 

Judge, presided at the hearing. At the 

end of the hearing, Judge Burke set 

deadlines of January 3, 2008, for 

submission of post-hearing comments, 

and February 4, 2008, for the 

submission of final summations and 

briefs. Judge Burke closed and certified 

the record for this rulemaking on June 

23, 2008. 

B. Revisions to the PPE Provisions of the 

OSHA Standards 

1. Background of OSHA’s PPE 

Standards 

Subpart I of OSHA’s general industry 

standards contains design requirements 

for eye- and face-protective devices, 

head protection, and foot protection. 

(See 29 CFR 1910.133, 1910.135, 

1910.136.) OSHA has similar 

requirements in subpart I of part 1915 

(Shipyard Employment), subpart E of 

part 1917 (Marine Terminals), and 

subpart J of part 1918 (Longshoring). 

These rules require that the specified 

PPE comply with national consensus 

standards incorporated by reference into 

the OSHA standards, unless the 

employer demonstrates that a piece of 

equipment is as effective as equipment 

that complies with the incorporated 

national consensus standard. (See, e.g., 

29 CFR 1910.133(b)(1).) 1 These design 

provisions are part of comprehensive 

requirements to ensure that employees 

use PPE that will protect them from 

hazards in the workplace. 

The incorporated ANSI standards are 

over a decade old and, in some 

instances, are two decades old. Over 

this period, ANSI updated all of the 

standards, and, in one instance (i.e., the 


jlentini on DSKJ8SOYB1PROD with RULES