Federal Register / Vol. 73, No. 161 / Tuesday, August 19, 2008 / Proposed Rules 48335 

Micki Jay (‘‘Jay’’) 

Kenneth Jensen (‘‘Jensen’’) 

Paul Johnson (‘‘Johnson’’) 

Tacie Jones (‘‘Jones’’) 

Joy (‘‘Joy’’) 

John Kaercher (‘‘Kaercher’’) 

Kas Kas (‘‘Kas’’) 

Kipp (‘‘Kipp’’) 

Paola Kipp (‘‘P. Kipp’’) 

Jerry LeCompte (‘‘LeCompte’’) 

Kurt Lennert (‘‘Lennert’’) 

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Catherine May (‘‘May’’) 

Mike Mazur (‘‘Mazur’’) 

Sean McGill (‘‘McGill’’) 

Kathy Meadows (‘‘Meadows’’) 

Managed Funds Association; Futures 

Industries Association; New York 

Mercantile Exchange; and CME Group Inc. 

(‘‘MFA’’) 

Bret Morris (‘‘Morris’’) 

Theresa Morris-Ramos (‘‘Morris-Ramos’’) 

Scott Morosini (‘‘Morosini’’) 

Timothy J. Muris and J. Howard Beales, III 

(‘‘Muris’’) 

Navajo Nation Resolute Natural Resources 

Company and Navajo Nation Oil and Gas 

Company (‘‘Navajo Nation’’) 

Laurie Nenortas (‘‘Nenortas’’) 

James Nichols (‘‘Nichols’’) 

Virgil Noffsinger (‘‘Noffsinger’’) 

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National Propane Gas Association (‘‘NPGA’’) 

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P D (‘‘PD’’) 

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James Persinger (‘‘Persinger’’) 

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Plains All American Pipeline, LLP (‘‘Plains’’) 

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Petroleum Marketers Association of America 

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Mel Rubinstein (‘‘Rubinstein’’) 

secret (‘‘secret’’) 

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Society of Independent Gasoline Marketers of 

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Jeff Van Hecke (‘‘Van Hecke’’) 

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[FR Doc. E8–19154 Filed 8–18–08; 8:45 am] 

BILLING CODE 6750–01–S 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Parts 1910, 1915, 1917, 1918 

and 1926 

[Docket No. OSHA–2008–0031] 

RIN 1218–AC42 

Clarification of Remedy For Violation 

of Requirements To Provide Personal 

Protective Equipment and Train 

Employees 

AGENCY: Occupational Safety and Health 

Administration (OSHA), U.S. 

Department of Labor. 

ACTION: Proposed rule. 

SUMMARY: In this rulemaking, OSHA is 

proposing to amend its regulations to 

add language clarifying that 

noncompliance with the personal 

protective equipment (PPE) and training 

requirements in safety and health 

standards in these parts may expose the 

employer to liability on a per-employee 

basis. The amendments consist of new 

paragraphs added to the introductory 

sections of the listed parts and changes 

to the language of some existing 

respirator and training requirements. 

This action, which is in accord with 

OSHA’s longstanding position, is 

proposed in response to recent 

decisions of the Occupational Safety 

and Health Review Commission 

indicating that differences in wording 

among the various PPE and training 

provisions in OSHA safety and health 

standards affect the Agency’s ability to 

treat an employer’s failure to provide 

PPE or training to each covered 

employee as a separate violation. The 

amendments add no new compliance 

obligations. Employers are not required 

to provide any new type of PPE or 

training, to provide PPE or training to 

any employee not already covered by 

the existing requirements, or to provide 

PPE or training in a different manner 

than that already required. The 

amendments simply clarify the remedy 

for violations of these requirements. 

DATES: Written comments: Comments 

must be submitted (postmarked, sent or 

received) by September 18, 2008. 

Hearing Requests: Any request for a 

hearing must also be submitted by 

September 18, 2008. See ADDRESSES

section below for special procedures for 

submitting hearing requests. 

ADDRESSES: Written comments: You may 

submit comments, identified by docket 

number OSHA–2008–0031, or 

regulatory information number (RIN) 

1290–AA23, by any of the following 

methods: 

Electronically: You may submit 

comments and attachments 

electronically at http:// 

www.regulations.gov, which is the 

Federal eRulemaking Portal. Follow the 

instructions on-line for making 

electronic submissions. 

Fax: If your comments, including 

attachments, do not exceed 10 pages, 

you may fax them to the OSHA Docket 

Office at (202) 693–1648. 

Mail, hand delivery, express mail, 

messenger or courier service: You must 

submit three copies of your comments 

and attachments to the OSHA Docket 

Office, Docket Number OSHA–2008–

0031, U.S. Department of Labor, Room 

N–2625, 200 Constitution Avenue, NW., 

Washington, DC 20210; telephone (202) 

693–2350 (OSHA’s TTY number is (877) 

889–5627). Deliveries (hand, express 

mail, messenger and courier service) are 

accepted during the Department of 

Labor’s and Docket Office’s normal 

business hours, 8:15 a.m.–4:45 p.m., e.t. 

Hearing Requests: A hearing request 

may only be submitted by one of the 

following methods: Electronically, fax, 

express mail, hand delivery, messenger 

or courier service. OSHA will not 

consider hearing requests sent by 

regular mail. 

Instructions: All submissions must 

include the docket number [OSHA–

2008–0031] or the regulatory 

information number (RIN) 1290–AA23, 

for this rulemaking. All comments, 

including any personal information you 

provide, are placed in the public 

without change and may be made 

available online at http:// 

www.regulations.gov. Therefore, OSHA 

cautions you about submitting personal 

information such as Social Security 

numbers and birthdates. For further 

information on submitting comments, 

plus additional information on the 


ebenthall on PRODPC60 with PROPOSALS
48336 Federal Register / Vol. 73, No. 161 / Tuesday, August 19, 2008 / Proposed Rules 

rulemaking process, see the ‘‘Public 

Participation’’ heading in the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: To read or download 

comments and materials submitted in 

response to this Federal Register notice, 

go to docket number OSHA–2008–0031, 

at http://regulations.gov or the OSHA 

Docket Office at the address above. All 

comments and submissions are listed in 

the http://regulations.gov index, 

however, some information (e.g., 

copyrighted material) is not publicly 

available to read or download through 

the Web page. All comments and 

submissions, including copyrighted 

material, are available for inspection 

and copying at the OSHA Docket Office. 

For information on reading or 

downloading exhibits referenced in this 

Federal Register notice, see the 

‘‘References and exhibits’’ and ‘‘Public 

Participation’’ headings in the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Electronic copies of this Federal 

Register document are available at 

http://www.regulations.gov. This 

document, as well as news releases and 

other relevant information, also is 

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

www.osha.gov. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Jennifer Ashley, OSHA Office of 

Communications, Room N–3647; U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Washington, DC 20210. 

Telephone: (202) 693–1999. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Table of Contents 

II. Background 

III. Legal Authority 

IV. Summary and Explanation of the 

Proposed Rule 

V. Advisory Committee on Construction 

Safety and Health 

VI. Preliminary Economic Analysis 

VII. Regulatory Flexibility Certificate 

VIII. Environmental Impact Assessment 

IX. Federalism 

X. Unfunded Mandates 

XI. OMB Review Under the Paperwork 

Reduction Act 

XII. State Plan States 

XIII. Public Participation 

II. Background 

A. Personal Protective Equipment (PPE) 

The use of personal protective 

equipment, including respirators, is 

often necessary to protect employees 

from injury or illness caused by 

exposure to toxic substances and other 

workplace hazards. Many OSHA 

standards in Parts 1910 through 1926 

require employers to provide PPE to 

their employees and ensure the use of 

PPE. Some general standards require the 

employer to provide appropriate PPE 

wherever necessary to protect 

employees from hazards. See, e.g., 

§§ 1910.132(a); 1915.152(a); 1926.95(a). 

Other standards require the employer to 

provide specific types of PPE or to 

provide PPE in specific circumstances. 

For example, the logging standard 

requires employers to provide cutresistant 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, 

§ 1910.1029(h); and the methylene 

chloride standard requires the employer 

to provide protective clothing and 

equipment which is resistant to 

methylene chloride, § 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.’’

§ 1910.134(a)(2). The section includes 

additional paragraphs requiring 

employers to establish a respiratory 

protection program, select an 

appropriate respirator based upon the 

hazard(s) to which the employee is 

exposed, provide a medical examination 

to determine the employee’s ability to 

use a respirator, fit-test the respirator to 

the individual employee and take other 

actions to ensure that respirators are 

properly selected, used and maintained. 

E.g., § 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., 

§ 1910.1101(g)(asbestos); 

§ 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 substancespecific standards, states as follows: 

§ 1926.1101 Asbestos 

* * * * * 

(h) Respiratory protection. (1) General. For 

employees who use respirators required by 

this section, the employer must provide 

respirators that comply with the 

requirements of this paragraph. Respirators 

must be used during: [specific work 

operations involving exposure to asbestos]. 

(2) Respirator program. (i) The employer 

must implement a respiratory protection 

program in accordance with § 1910.134 (b) 

through (d) (except (d)(1)(iii), and (f) through 

(m). 

B. Training 

Training is also an important 

component of many OSHA standards. 

Training is necessary to enable 

employees to recognize the hazards 

posed by toxic substances and 

dangerous work practices and protect 

themselves from these hazards. 

Virtually all of OSHA’s toxic-substance 

standards, such as the asbestos, vinyl 

chloride, lead, chromium, cadmium and 

benzene standards, require the employer 

to train or provide training to employees 

who may be exposed to the substance. 

Many safety standards also contain 

training requirements. The lockout/ 

tagout standard, for example, requires 

the employer to provide training on the 

purpose and function of the energy 

control program, § 1910.147(c)(7), and 

the electric power generation standard 

requires that employees be trained in 

and familiar with pertinent safety 

requirements and procedures. 

§ 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, § 1910.119(g)(i) (each 

employee shall be trained); Lockout/ 

tagout, § 1910.147(c)(7)(A) (each 

employee shall receive training); Vinyl 

chloride, § 1910.1017(j) (each employee 

shall be provided training); General 

safety and health provisions, 

§ 1926.20(b) (instruct each employee); 

Fall protection, § 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, § 1910.269(a)(2) 

(employees shall be trained); Benzene, 

§ 1910.1028(j)(3)(i) (provide employees 

with information and training); Hazard 

communication, § 1910.1200(h) (same). 

Finally, some standards state that the 

employer must ‘‘institute a training 

program [for exposed employees] and 

ensure their participation in the 

program’’ or contain similar language. 


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Federal Register / Vol. 73, No. 161 / Tuesday, August 19, 2008 / Proposed Rules 48337 

1Before OSHA can issue a new more protective 

standard, the agency must find that the hazard 

being regulated poses a significant risk of material 

health impairment and that the new standard is 

reasonably necessary and appropriate to reduce that 

risk. Industrial Union Department, AFL–CIO v. 

American Petroleum Institute, 448 U.S. 607(1980). 

OSHA must also show that the new standard is 

technologically and economically feasible, and cost 

effective. American Textile Mfrs. Inst., Inc. v. 

Donovan, 452 U.S. 490 (1980). These requirements 

are not implicated in this rulemaking because the 

amendments merely clarify the obligations and 

remedies under the existing PPE and training 

provisions and add no additional requirements. See 

sections V. and VI. infra. The agency met its burden 

of showing significant risk, feasibility and cost 

effectiveness in promulgating the existing PPE and 

training requirements. 

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.’’

§ 1910.1001(j)(7). See also, e.g., 

§ 1926.1101(k)(9) (Construction 

asbestos); § 1910.1025(l) (Lead); 

§ 1910.1027(m)(4) (Cadmium). 

The Agency interprets its respirator 

and training provisions to impose a duty 

upon the employer to comply for each 

and every employee subject to the 

requirement regardless of whether the 

provision expressly states that 

respirators or training must be provided 

to ‘‘each employee.’’ Neither the 

Commission nor any court has ever 

suggested that an employer can comply 

with the respirator and training 

provisions in safety and health 

standards by providing respirators to 

some employees covered by the 

requirement but not others, or that the 

employer can train some employees 

covered by the training requirement but 

not others. The basic nature of the 

employer’s obligation is the same in all 

of these provisions; each and every 

employee must receive the required 

protection. 

The agency therefore believes that a 

separate violation occurs for each 

employee who is not provided required 

PPE or training, and that a separate 

citation item and proposed penalty may 

be issued for each. However, as 

discussed in the Legal Authority 

section, a recent decision of the Review 

Commission in the Ho case suggests that 

minor variations in the wording of the 

provisions affect the Secretary’s 

authority to cite and penalize separate 

violations. Secretary of Labor v. Erik K. 

Ho, Ho Ho Ho Express, Inc. and 

Houston Fruitland, Inc., 20 O.S.H. Cas. 

(BNA) 1361 (Rev. Comm’n 2003), aff’d, 

Chao v. OSHRC and Erik K. Ho, 401 

F.3d 355 (5th Cir. 2005). The agency is 

proposing to amend its standards to 

make it unmistakably clear that each 

instance when an employee subject to a 

PPE or training requirement does not 

receive the required PPE or training may 

be considered a separate violation. 

Where an employer commits multiple 

violations of a single standard or 

regulation, OSHA either groups the 

violations and proposes a single 

penalty, or cites and proposes a penalty 

for each discrete violation. Although 

‘‘grouping’’ is the more common 

method, OSHA proposes separate ‘‘perinstance’’ penalties in cases where the 

resulting heightened aggregate penalty 

is appropriate to deter flagrant violators 

and increase the impact of OSHA’s 

limited resources. Per-employee 

penalties for violations of PPE and 

training requirements are no different in 

kind than other types of per-instance 

penalties the agency has proposed 

under this policy. 

Accordingly, OSHA has preliminarily 

determined to amend the respirator and 

training provisions in the standards in 

parts 1910 through 1926 to: (1) Revise 

the language of the initial respirator 

paragraphs adopted in the 1998 

respiratory protection rule to explicitly 

state that the employer must provide 

each employee an appropriate respirator 

and implement a respiratory protection 

program for each employee, (2) revise 

the language of those initial training 

paragraphs that require the employer to 

institute or provide a training program 

to explicitly state that the employer 

must train each employee, and (3) add 

a new section to the introductory 

subparts of each part to clarify that 

standards requiring the employer to 

provide PPE, including respirators, or to 

provide training to employees, impose a 

separate compliance duty to each 

employee covered by the requirement 

and that each employee who does not 

receive the required PPE or training may 

be considered a separate violation. 

III. Legal Authority 

A. Introduction 

Section 6(b) of the Act sets forth the 

procedures the Secretary must follow in 

promulgating, modifying or revoking an 

occupational safety or health standard. 

29 U.S.C. 655(b). These procedures 

include publication of a proposed rule 

and an opportunity for notice and 

comment prior to promulgation of a 

final rule. Although the proposed 

amendments involved here are remedial 

and interpretive in that they merely 

clarify pre-existing obligations under 

safety and health standards, the agency 

is according the public a full 

opportunity to comment before taking 

final action. 

The proposed amendments do not 

impose any new substantive 

requirements. The proposed language 

clarifies that the duty to provide 

personal protective equipment, 

including respirators, and training to 

employees is a duty owed to each 

employee covered by the requirement. 

This adds no new compliance burden; 

the nature of the employer’s duty to 

protect each employee is inherent in the 

existing provisions. To comply with 

existing respirator and training 

provisions the employer must provide a 

respirator to each employee who needs 

respiratory protection and train each 

employee who must be informed of job 

hazards. The employer cannot comply 

by leaving some employees without 

respiratory protection or leaving some 

employees untrained. The agency is 

proposing the new language to achieve 

greater consistency in the regulatory text 

of the various respirator and training 

provisions in parts 1910 through 1926, 

provide clearer notice of the nature of 

the employer’s duty under existing 

respirator and training provisions, and 

address the Commission’s interpretation 

that the language of some respirator and 

training provisions does not support 

per-employee citations and penalties.1

B. General Principles Governing PerInstance Penalties 

Section 9(a) of the Act authorizes the 

Secretary to issue a citation when ‘‘an 

employer has violated a requirement of 

* * * any standard.’’ 29 U.S.C. 658(a). 

A separate penalty may be assessed for 

‘‘each violation.’’ Id. at 666(a), (b), (c). 

‘‘The plain language of the Act could 

hardly be clearer’’ in authorizing a 

separate penalty for each discrete 

instance of a violation of a duty 

imposed by a standard. Kaspar Wire 

Works, Inc. v. Secretary of Labor, 268 

F.3d 1123, 1130 (D.C. Cir. 2001). 

What constitutes an instance of a 

violation for which a separate penalty 

may be assessed depends upon the 

nature of the duty imposed by the 

standard or regulation at issue. If the 

standard ‘‘prohibits individual acts 

rather than a single course of action,’’

each prohibited act constitutes a 

violation for which a penalty may be 

assessed. Secretary of Labor v. General 

Motors Corp., CPCG Oklahoma City 

Plant, 2007 WL 4350896 ,35 (GM) (Rev. 

Comm’n 2007); Sanders Lead Co. 17 

O.S.H. Cas. (BNA) 1197, 1203 (Rev. 

Comm’n 1995). Applying this test, the 

Commission has held that the 

recordkeeping regulation’s requirement 

to record each injury or illness is 

violated each time the employer failed 

to record an injury or illness, Secretary 


ebenthall on PRODPC60 with PROPOSALS
48338 Federal Register / Vol. 73, No. 161 / Tuesday, August 19, 2008 / Proposed Rules 

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-ofoperation guards on machine parts that 

could injure employees is violated at 

each unguarded machine, Hoffman 

Constr. Co. v. Secretary of Labor, 6 

O.S.H. Cas. (BNA) 1274, 1275 (Rev. 

Comm’n 1975); the fall protection 

standard’s requirement to guard floor 

and wall openings is violated at each 

location on a construction site where 

appropriate fall protection is lacking, 

Secretary of Labor v. J.A. Jones Constr. 

Co., 15 O.S.H. Cas. (BNA) 2201, 2212 

(Rev. Comm’n 1993); the trenching 

standard’s shoring or shielding 

requirement is violated at each 

unprotected trench, Secretary of Labor 

v. Andrew Catapano Enters., Inc. 17 

O.S.H. Cas. (BNA) 1776, 1778 (Rev. 

Comm’n 1996) and the electrical safety 

standard is violated at each location 

where non-complying electrical 

equipment is installed. A.E. Staley Mfg. 

Co. v. Secretary of Labor, 295 F.3d 1341, 

1343 (D.C. Cir. 2002). 

The failure to protect an employee is 

a discrete act for which a separate 

penalty may be assessed when the 

standard imposes a specific duty on the 

employer to protect individual 

employees: 

Some standards implicate the protection, 

etc. of individual employees to such an 

extent that the failure to have the protection 

in place for each employee permits the 

Secretary to cite on a per-instance basis. 

However, where a single practice, method or 

condition affects multiple employees, there 

can be only one violation of the standard. 

Secretary of Labor v. Hartford Roofing 

Co., 17 O.S.H. Cas. (BNA) 1361, 1365 

(Rev. Comm’n 1995). In Hartford 

Roofing, the Commission held that 

abatement of an unguarded roof edge 

required the single action of installing a 

motion stopping system or line that 

would constitute compliance for all 

employees exposed to a fall. Id. at 1367. 

Accordingly, the failure to abate the 

hazard could be cited only once 

regardless of the number of exposed 

employees. Ibid. However, where the 

employer fails to protect employees 

from falls at several different locations 

in the same building, a violation exists 

at each such location. J.A. Jones, 15 

O.S.H. Cas. (BNA) at 2212. Thus, what 

constitutes an ‘‘instance’’ of a violation 

varies depending upon the standard. 

‘‘Per-instance’’ can mean per-machine, 

or per-injury, or per-location depending 

upon the nature of the employer’s 

compliance obligation. 

Per-employee violations are no 

different from other types of perinstance violations. Just as the employer 

must ensure that electrical equipment is 

safe in each location where it is 

installed, Staley, 295 F.3d at 1343, the 

employer must ensure that each 

employee who requires a respirator or 

training receives it. Hartford Roofing, 17 

O.S.H. Cas. (BNA) at 1366. The failure 

to provide an individual employee with 

an appropriate respirator is a discrete 

instance of a violation of the general 

respirator standard, 29 CFR 1910.134, 

because the standard requires an 

individual act for each employee: 

As long as employees are working in a 

contaminated environment, the failure to 

provide each of them with appropriate 

respirators could constitute a separate and 

discrete violation. * * * [T]he condition or 

practice to which the standard is directed 

* * * [is] the individual and discrete failure 

to provide an employee working within a 

contaminated environment with a proper 

respirator. 

17 O.S.H. Cas. (BNA) at 1366. Hartford 

Roofing reflects the guiding principle 

that provisions requiring the employer 

to ‘‘provide’’ respirators to employees 

because of environmental or other 

hazards to which they are exposed are 

intrinsically employee-specific because 

such provisions require protection for 

employees as individuals. The 

Commission reaffirmed this principle in 

subsequent cases. In Secretary of Labor 

v. Sanders Lead Co., 17 O.S.H. Cas. 

(BNA) 1197, 1203 (Rev. Comm’n 1995), 

the Commission held that the lead 

standard’s requirement for semiannual 

respirator fit-tests could be cited on a 

per-employee basis because it involved 

evaluation of individual employees’

respirators under certain conditions 

peculiar to each employee. Furthermore, 

in Catapano, 17 O.S.H. Cas. (BNA) at 

1780, the Commission indicated that the 

general construction training standard, 

§ 1926.21(b)(2), clearly supported peremployee citations for each individual 

employee not trained. However, the 

Commission in Catapano found that the 

Secretary had not cited training 

violations on a per-employee basis, but 

rather, had impermissibly cited the 

employer for each inspection in which 

employees were found not to have been 

trained. Thus, the Commission affirmed 

only a single violation of the standard. 

Ibid. 

In the Ho decision, the Commission 

veered from these principles and 

adopted an analysis focused on the 

presence or absence of certain specific 

words in the respirator or training 

provision at issue. 20 O.S.H. Cas. (BNA) 

at 1369–1380. Under this approach, the 

agency’s ability to enforce respirator and 

training violations by per-employee 

citations in appropriate cases turns on 

minor variations in the wording of the 

requirements. 

Erik Ho, a Texas businessman, was 

cited for multiple violations of the 

construction asbestos respirator and 

training provisions. Ho’s conduct was 

particularly flagrant. He hired eleven 

undocumented Mexican employees to 

remove asbestos from a vacant building 

without providing any of them with 

appropriate protective equipment, 

including respirators, and without 

training them on the hazards of 

asbestos. Ho persisted in exposing the 

unprotected, untrained employees to 

asbestos even after a city building 

inspector shut down the worksite, at 

which point Ho began operating secretly 

at night behind locked gates. The 

citations charged Ho with separate 

violations for each of the eleven 

employees not provided a respirator. 

The respirator provision then in effect 

stated, in relevant part, that ‘‘[t]he 

employer shall provide respirators and 

ensure that they are used * * * [d]uring 

all Class I asbestos jobs.’’

§ 1926.1101(h)(1)(i). Ho was also 

charged with separate violations for 

each of the eleven employees not 

trained in accordance with 

§ 1926.1101(k)(9)(i) and (k)(9)(viii). 

Paragraph (k)(9)(i) requires the employer 

to ‘‘institute a training program for all 

[exposed] employees and * * * ensure 

their participation in the program;’’

paragraph (k)(9)(viii) states that ‘‘[t]he 

training program shall be conducted in 

a manner that the employee is able to 

understand * * * [and] the employer 

shall ensure that each such employee is 

informed of [specific hazard 

information].’’

A divided Occupational Safety and 

Health Review Commission vacated all 

but one of the respirator and one of the 

training violations. According to the 

majority, the requirement to provide 

respirators and ensure their use involves 

the single act of providing respirators to 

the employees in the group performing 

the specified asbestos work. 17 O.S.H. 

Cas. (BNA) at 1372. Thus, the majority 

concluded, ‘‘the plain language of the 

standard addresses employees in the 

aggregate, not individually.’’ Ibid. The 

majority reached this conclusion despite 

acknowledging that various 

subparagraphs immediately following 

the cited provision required particularly 

employee-specific actions, such as fittesting individual employees. Ibid. n. 

12. 

The majority adopted an equally 

narrow interpretation of the requirement 

in § 1926.1101(k)(9)(i) to ‘‘institute a 

training program’’ for all [exposed] 

employees and ensure their 

participation in the program.’’


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2The current version of § 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.’’

According to the majority, this language 

requires the employer to have a single 

training program for all exposed 

employees and imposes a single duty to 

train employees generally. Id. at 1374. 

Although paragraph (k)(9)(viii) 

explicitly states that, ‘‘the employer 

shall ensure that each such employee is 

informed of [specific hazard 

information],’’ the majority found that 

‘‘the mere use of the terminology ‘each 

such employee’ under (k)(9)(viii) does 

not demonstrate that these [training] 

provisions define the relevant 

workplace exposure in terms of 

exposure of individual employees.’’

Ibid. One Commissioner dissented, 

arguing that the plain wording of the 

respirator and training provisions 

authorizes OSHA to treat as a discrete 

violation each employee not provided 

and required to use an appropriate 

respirator, and each employee not 

trained in asbestos hazards. Id. at 1380–

86 (Rodgers, Comm’r dissenting). 

A divided panel of the U.S. Court of 

Appeals for the Fifth Circuit affirmed 

the result reached by the Commission, 

in part on different grounds than those 

articulated by the Commission majority. 

401 F.3d at 368–376. The majority 

agreed with the Commission that the 

language of the respirator provision did 

not support per-employee penalties for 

Ho’s failure to provide a respirator to 

each employee who performed covered 

asbestos work. Id. at 373–74. 

Disagreeing with the Commission, the 

majority found that the language of the 

training provision permits per-employee 

citations. Id. at 372. However, the 

majority concluded that the agency’s 

decision to cite and penalize Ho for 

each untrained employee was 

unreasonable absent circumstances 

showing that different training actions 

would have been required because of 

uniquely employee-specific factors. Id. 

at 373. Judge Garza dissented. He read 

the respirator provision to require action 

on a per-employee basis. Id. at 379 

(Garza J. dissenting). He also found no 

support for the majority’s ‘‘employeespecific 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, 

§ 1926.62(f)(1), authorizes per-employee 

citations. That paragraph states, in 

relevant part, ‘‘[w]here the use of 

respirators is required under this section 

the employer shall provide * * * and 

assure the use of respirators which 

comply with the requirements of this 

paragraph.’’ The Commission 

distinguished Ho on the ground that the 

language in the cited provision 

requiring the employer to provide 

respirators ‘‘which comply with the 

requirements of this paragraph’’ means 

that compliance with paragraph (f)(1) is 

predicated upon compliance with all of 

the requirements in paragraph (f), 

including fit-testing requirements in 

another section of the paragraph that are 

uniquely employee-specific.2 Ibid. In 

contrast, in Ho the language requiring 

compliance with such provisions 

immediately followed the cited initial 

provision, and the Commission declined 

to read the initial provision in light of 

the subsequent requirements. However, 

the Commission’s interpretation in 

Manganas that the lead standard 

authorizes per-employee violations may 

not be part of the holding of the case. 

After stating that the standard could be 

cited on a per-employee basis, the 

Commission then stated that it declined 

to determine whether Manganas’s 

failure to provide respirators to multiple 

employees constituted a single violation 

or multiple violations on the ground 

that the amount of the total penalty 

would not be affected under the 

circumstances of that case. Id. at 1999. 

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, § 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, 

§ 1910.147(c)(7)(iii)(B), which requires 

retraining whenever the employer is 

aware of inadequacies in the employee’s 

knowledge or use of the energy control 

procedures. 

The Commission affirmed all of these 

per-employee violations. It held that the 

LOTO training paragraph, unlike the 

initial paragraph at issue in Ho, states 

that ‘‘each employee’’ is to be trained 

and therefore ‘‘imposes a specific duty 

on the employer to train each individual 

employee.’’ 2007 WL 4350896 at 36. The 

Commission also noted that other 

requirements in paragraph (c)(7) clarify 

the individualized nature of the training 

duty, such as the requirement to record 

the employees’ names and dates of 

training; that the preamble indicates 

that training involves consideration of 

employee-specific factors, and that ‘‘the 

core concept of lockout/tagout is 

personal protection.’’ Id. at 37 

(emphasis added). The Commission did 

not refer to the portion of its Ho 

decision that rejected reliance on ‘‘each 

employee’’ language in the training 

requirement at issue there or that 

refused to consider any requirements in 

the standard other than the cited initial 

provision in deciding the nature of the 

employer’s duty. 

For similar reasons, the Commission 

affirmed separate violations of the 

requirement to retrain whenever the 

employer becomes aware of deviations 

from or inadequacies in the employee’s 

knowledge or use of the energy control 

procedures. 29 CFR 1910.147 

(c)(7)(iii)(B). This provision, the 

Commission found, ‘‘specifically targets 

deviations from or inadequacies in the 

employee’s knowledge or use of the 

energy control procedures, an 

occurrence that would trigger an 

employer’s obligation to retrain only 

that particular employee.’’ Ibid. 

(internal quotations omitted). 

The Commission held that because 

the training provisions impose a specific 

duty on the employer to train each 

employee, it is irrelevant whether the 

employer may choose to provide the 

required training collectively, such as 

holding a single training session for all 

employees. Id. at 36. Under the wording 

of the standard, the Commission 

concluded, ‘‘any failure to train would 

be a separate abrogation of the 

employer’s duty to train each untrained 

employee.’’ Ibid. The Commission 

distinguished the Ho decision on the 

ground that the language at issue there, 

requiring ‘‘a training program for all 

employees,’’ pertained to a single group 

of employees collectively exposed to 

identical hazards. Ibid. 

C. The Agency’s Interpretation 

The Agency’s position is that despite 

minor differences in their wording, all 

respirator and training provisions in 


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safety and health standards authorize 

the assessment of a separate penalty for 

each employee not protected or trained. 

All of these provisions impose the same 

basic duty on the employer to protect 

employees individually—by providing 

personal protective equipment, such as 

a respirator, or by communicating 

hazard information through training. 

The individualized nature of the duty to 

comply does not change because of the 

presence or absence of the words ‘‘each 

employee,’’ or other words explicitly 

stating that the employer’s duty runs to 

each individual employee. 

The employee-specific nature of the 

employer’s duty to provide PPE and 

training may be demonstrated in several 

different ways. First, the employer must 

take a separate abatement action for 

each individual employee. Where 

respirators are required, the employer 

must give a separate respirator to each 

individual employee. Where training is 

required, the employer must impart 

specific hazard information to each 

individual employee. The employeespecific nature of the training 

requirements is not altered because the 

employer may choose to conduct 

training in a group session. As the 

Commission held in GM, the duty to 

provide training is specific to each 

individual employee subject to the 

requirement. 2007 WL 4350896. See 

also Ho, 401 F.3d at 380 (Garza, J. 

dissenting). Thus regardless of how the 

training is conducted, the employer 

must ensure that each individual 

employee receives the required 

information at the appropriate time. 

Second, unlike standards that do not 

permit per-employee citations, the PPE 

and training requirements logically 

permit the employer to comply for one 

employee and not another. In Hartford 

Roofing, the Commission found that 

installation of a motion stopping system 

at a roof edge was a single discrete 

action unaffected by the number of 

employees on the roof, and therefore 

could not be cited on a per-employee 

basis. 17 O.S.H. Cas. (BNA) at 1368–69. 

The employer could not have complied 

for one employee without also 

complying for all other employees 

exposed to the hazard. 

By contrast, the actions necessary to 

comply with PPE and training 

requirements for one employee do not 

constitute compliance for any other 

employee. To fully comply with these 

requirements the employer must take as 

many abatement actions as there are 

employees to be protected. The fact that 

the employer may comply for one or a 

few employees, while leaving many 

others unprotected, strongly supports 

the availability of per-employee 

citations. Ho, 401 F.3d at 379 (Garza, J. 

dissenting). 

Finally, compliance with the PPE and 

training provisions requires the 

employer to account for differences 

among individual employees. To 

comply with the respirator 

requirements, the employer must, 

among other things, select respirators 

based on the specific respiratory 

hazards to which the employee is 

exposed and perform individual face-fit 

tests. E.g., § 1910.134(d), (f). To comply 

with training requirements, the 

employer must ensure that each 

employee receives the required 

information. E.g., § 1910.1001(j)(7)(iii) 

(asbestos). The employer must therefore 

account for factors such as when 

individual employees commence work 

subject to the training requirement and 

when they are available for training. 

Individual language differences also 

play a role. For example, if one 

employee understands only English, 

and another employee understands only 

Spanish, training must account for this 

difference. The actions necessary to fit 

a respirator to an individual employee’s 

face and to ensure that hazard 

information is received by an employee 

entail consideration of individual 

factors. 

1. The Ho Decision 

The Secretary believes that the 

Commission majority’s analysis in Ho is 

fundamentally flawed for several 

reasons discussed below. We discuss 

this issue because it is important to an 

understanding of the Secretary’s 

interpretation of her standards and of 

the proposed clarifying amendments to 

the PPE and training provisions. This 

rulemaking is intended to confirm the 

interpretation the Secretary intends 

when she promulgates standards of this 

kind. 

a. The Ho majority’s analysis is 

inconsistent with the proper analytical 

framework outlined above. The 

requirement to provide respirators 

because of environmental hazards 

involves a separate discrete act for each 

employee exposed to the hazard. 

Hartford Roofing, 17 O.S.H. Cas. (BNA) 

at 1367. Eric Ho had eleven employees 

performing Class I asbestos work; 

therefore he had to provide eleven 

separate respirators and ensure that 

each of the eleven employees used the 

devices. Ho also had to ensure that each 

employee received training on asbestos 

hazards. The cited asbestos respirator 

and training provisions required 

analytically distinct acts for each 

employee, and therefore permitted peremployee citations. 

b. The majority’s analysis does not 

reflect Commission precedent preceding 

Ho, or more recent Commission 

caselaw. Hartford Roofing reflects the 

guiding principle distinguishing 

between requirements that apply 

individually to each employee, such as 

respirator provisions, and those that 

address hazardous conditions affecting 

employees as a group. 17 O.S.H. Cas. 

(BNA) at 1366–67. Manganas, 

recognizes the principle that a 

requirement to provide respirators 

should be read in light of the associated 

provisions requiring individualized 

actions such as individual fit-testing. 21 

O.S.H. Cas. (BNA) at 1998. And GM 

holds that a training requirement 

containing ‘‘each employee’’ language, 

which was also contained in the 

standard cited in Ho, imposes a specific 

duty to train each individual employee 

and may be cited on a per-employee 

basis. 2007 WL 4350896 at 24. Ibid. 

c. The majority’s analysis amounts to 

a ‘‘magic words’’ test for determining 

the nature of the duty to comply with 

PPE and training requirements that is at 

odds with the Secretary’s intention and 

does not make practical sense. There is 

only a minor difference between the 

respirator standard in Manganas and 

that in Ho. In Manganas the 

requirement to comply with the 

provisions of the standard as whole is 

stated explicitly in the standard’s first 

sentence, while in Ho the requirement 

was implicit in that sentence and was 

explicitly stated by the remaining 

provisions of the standard. Similarly, in 

GM the ‘‘each employee’’ language was 

in the first enumerated subsection of the 

training standard, while in Ho it was in 

a later subsection. As the preceding 

discussion makes clear, the agency did 

not intend that minor wording 

variations among various PPE and 

training provisions affect the agency’s 

ability to cite on a per-employee basis. 

Furthermore, there is no sound reason 

for distinguishing among the various 

PPE and training requirements based on 

minor differences in wording when all 

such requirements impose the same 

basic duty—provision of appropriate 

respirators and training to each 

employee covered by the requirements. 

The requirements at issue in Ho were 

not substantively different than those in 

Manganas and GM, and there should be 

no difference in the availability of peremployee 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, 


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while the employer who provides 

respirators, but fails to comply with the 

specific fit-test requirements is liable for 

per-employee violations. 

Although the Secretary does not 

acquiesce in the Ho majority’s 

interpretation of the asbestos respirator 

and training requirements at issue, the 

agency is proposing to modify the 

language of most of the initial respirator 

provisions adopted in the 1998 rule to 

expressly state that the employer must 

provide each employee an appropriate 

respirator. There are several reasons for 

this. First, although the Secretary 

believes that the respirator requirements 

clearly support per-employee citations, 

employers may have some uncertainty 

in light of the Ho decision. Second, 

although the Commission indicated in 

Manganas that language similar to that 

in the 1998 rule permits per-employee 

penalties, that aspect of the decision 

could be viewed as dicta. Finally, the 

1998 respirator language is virtually the 

same in all standards with respirator 

requirements, and the same wording can 

be used to amend all of the standards. 

The agency intends the proposed new 

language to clearly convey that the 

respirator provisions in all OSHA 

standards impose a duty to provide an 

appropriate respirator to each 

individual employee that requires 

respiratory protection. The failure to 

provide an appropriate respirator to 

each such employee may expose the 

employer to per-employee citations. 

OSHA also believes that the existing 

language of the training provisions in 

safety and health standards makes 

reasonably clear that the training 

obligation extends to each individual 

employee. Some of these provisions 

explicitly state that ‘‘each employee’’

must be trained. For example, the 

process safety management standard 

states that ‘‘each employee presently 

involved in operating a process * * * 

must be trained.’’ 29 CFR 1910.119(g)(i); 

29 CFR 1926.64(g) (construction); the 

logging standard states that ‘‘[t]he 

employer shall provide training for each 

employee,’’ § 1910.266(i); the vinyl 

chloride standard states that ‘‘[e]ach 

employee engaged in vinyl chloride or 

polyvinyl chloride operations shall be 

provided training,’’ § 1910.1017(j); and 

the chromium standard states that ‘‘[t]he 

employer shall ensure that each 

employee can demonstrate knowledge 

of [the § 1926.1126(j)(2) (construction). 

The Commission in GM held that 

provisions that explicitly require 

training for ‘‘each employee’’ may be 

cited separately for each employee not 

trained. GM, 2007 WL 4350896 at 36. 

Accordingly, these provisions require 

no amendatory action. 

Some standards contain provisions 

stating that the employer must train 

‘‘employees’’ exposed to the hazard 

addressed by the standard. For example, 

the hazardous waste operations 

standard states that ‘‘[a]ll employees 

[exposed to hazardous substances] shall 

receive training,’’ § 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.’’

§ 1910.1028(j)(3)(i). There is no 

substantive difference between the 

requirement to train ‘‘employees’’

exposed to a hazard and the 

requirement to train ‘‘each employee’’

exposed to the hazard. Under both 

formulations, the exposed employee is 

the subject of the training requirement, 

and compliance cannot be achieved 

unless and until each such employee 

receives the required training. Therefore 

provisions requiring the employer to 

provide training to employees exposed 

to a hazard, or ensure that employees 

receive training, or contain similar 

language, are plainly susceptible to peremployee 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., 

§ 1910.1001(j)(7)(i) (asbestos); 

§ 1910.1018(o)(1)(i) (inorganic arsenic); 

§ 1910.1025(l)(1)(ii) (lead); 

§ 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 

§ 1910.1001(j)(7)(iii) (asbestos); 

§ 1910.1018(o)(1)(ii) (inorganic arsenic); 

§ 1910.1025(l)(1)(v) (lead); 

§ 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 

§ 1926.1101(k)(9)(i) to impose a duty to 

have a training program for employees 

collectively. The failure to train each of 

a number of individual employees on 

asbestos hazards was therefore 

considered a single violation. Although 

the Secretary does not accept the Ho 

majority’s interpretation, the decision 

may be a significant impediment to the 

consistent and effective enforcement of 

the asbestos standard and other 

standards that contain similar wording. 

Accordingly, OSHA preliminarily 

believes it is appropriate to amend those 

standards that require the employer to 

‘‘institute a training program’’ to clarify 

that the employer’s duty is to train each 

employee in accordance with the 

training program. The revised language 

expressly identifies the subject of the 

training requirement as ‘‘each 

employee’’ and therefore imposes a 

‘‘specific duty on the employer to train 

each individual employee.’’ GM, 2007 

WL 430896 at 36. The agency intends 

the revision to clarify without question 

that the failure to train each individual 

employee covered by the training 

requirement may be considered a 

separate violation with a separate 

penalty. 

IV. Summary and Explanation of the 

Proposed Rule 

OSHA proposes to amend the 

standards in Parts 1910, 1915, 1917, 

1918 and 1926 to provide additional 

clarity and consistency as to the 

individualized nature of the employer’s 

duty to provide personal protective 

equipment, including respirators, and 

training under standards in these parts. 

The proposed amendments include 

revisions to existing language as well as 

new sections to be added to the 

introductory subparts to Parts 1910 

through 1926. The agency’s reasons for 

proposing to clarify the intent of the 

personal protective equipment and 

training requirements are discussed in 

the preceding sections. The following 

discussion addresses the actual 

proposed language and how it is to be 

interpreted. 

New Sections Added to Subpart A of 

Parts 1910 Through 1918, and Subpart 

C of Part 1926 

OSHA proposes to add a new section 

to subpart A of parts 1910, 1915, 1917 

and 1918, and to subpart C of part 1926. 

These subparts contain general 


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information about the scope and 

applicability of the standards in each 

part. The proposed new sections contain 

two paragraphs, which are identical for 

each new section. The first paragraph 

expressly states that standards in the 

part requiring employers to provide 

PPE, including respirators, impose a 

separate compliance duty to each 

employee required to use the PPE, and 

that each failure to provide PPE to an 

employee may be considered a separate 

violation. The new paragraph applies to 

all standards in the part that require 

provision of PPE, regardless of their 

wording. For example, § 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 § 1910.132 (h)(6). The 

underlying obligation is the employer’s, 

and each employee who lacks required 

PPE may be considered a separate 

violation. The second paragraph 

expressly states that standards in the 

part requiring training on hazards and 

related matters, such as standards 

requiring that employees receive 

training or that the employer train 

employees, provide training to 

employees or institute or implement a 

training program, impose a separate 

compliance duty to each employee 

covered by the requirement. Each failure 

to train an employee may be considered 

a separate violation. 

The new sections reflect the agency’s 

intent, as discussed in the preceding 

sections of this preamble, that standards 

requiring the employer to protect 

employees by providing personal 

protective equipment or imparting 

hazard information through training 

impose a specific duty to protect each 

individual employee covered by the 

requirement. The new sections are 

placed in the introductory subparts of 

each part because the principle 

expressed in each section applies 

generally to all PPE and training 

standards in the part. OSHA intends the 

new sections to apply regardless of 

differences in wording between the PPE 

and training provisions in the various 

parts. The new sections provide 

unmistakable notice to employers that 

they are responsible for protecting each 

employee covered by the PPE and 

training standards, and consequently, 

that they may be subject to peremployee penalties for violations. 

Revisions to Specific Respirator 

Paragraphs 

OSHA proposes to revise the initial 

respiratory protection paragraph in a 

number of standards in parts 1910, 1915 

and 1926 to add language explicitly 

stating that the employer must provide 

an appropriate respirator to each 

employee required to use a respirator 

and implement a respiratory protection 

program for each such employee. The 

affected standards include the general 

respirator standard, § 1910.134, most 

general industry toxic-substance health 

standards in Subpart Z of part 1910, the 

shipyard employment asbestos 

standard, § 1915.1101, and the 

construction industry 

methylenedianiline, lead, asbestos, and 

cadmium standards, § § 1926.60, 62, 

1101, and 1127. 

Section 1910.134 contains general 

respiratory protection requirements for 

General Industry (part 1910), Shipyards 

(part 1915), Marine Terminals (part 

1917), Longshoring (part 1918), and 

Construction (part 1926). The existing 

section 1910.134(a)(2) states: 

[r]espirators shall be provided by the 

employer when such equipment is necessary 

to protect the health of the employee. The 

employer shall provide the respirators which 

are applicable and suitable for the purposes 

intended. The employer shall be responsible 

for the establishment and maintenance of a 

respiratory protection program which shall 

include the requirements outlined in 

paragraph (c) of this section. 

OSHA proposes to revise the first and 

last sentences of paragraph (a)(2) of 

section § 1910.134. As proposed, the 

first sentence will read, ‘‘[r]espirators 

shall be provided by the employer to 

each employee when such equipment is 

necessary to protect the health of such 

employee’’ (emphasis added). As 

proposed, the last sentence will read, 

‘‘[t]he employer shall be responsible for 

the establishment and maintenance of a 

respiratory protection program, which 

shall include the requirements outlined 

in paragraph (c) of this section, for each 

employee required by this section to use 

a respirator’’ (emphasis added). Section 

1910.134, as revised in this rulemaking, 

will apply to construction under section 

1926.103. 

OSHA proposes similar revisions to 

the initial respirator paragraphs of toxic 

substance standards in parts 1910, 1915 

and 1926. The initial respiratory 

protection paragraph of the construction 

asbestos standard, which is virtually 

identical to all respirator sections 

proposed for revision in this rule, states, 

in relevant part: 

Section 1926.1101 Asbestos 

* * * * * 

(h) Respiratory protection. (1) 

General. For employees who use 

respirators required by this section, the 

employer must provide respirators that 

comply with the requirements of this 

paragraph. Respirators must be used 

during: 

* * * 

(2) Respirator program. (i) The 

employer must implement a respiratory 

protection program in accordance with 

§ 1910.134 (b) through (d) (except 

(d)(1)(iii)), and (f) through (m). 

OSHA proposes to revise the first 

sentence of paragraph (h)(1) of section 

1926.1101 to state, ‘‘[f]or employees 

who use respirators required by this 

section, the employer must provide 

each employee an appropriate 

respirator that complies with the 

requirements of this paragraph’’

(emphasis added). The Agency proposes 

to revise paragraph (h)(2)(i) to state, 

‘‘[t]he employer must implement a 

respiratory protection program in 

accordance with § 1910.134 (b) though 

(d) (except (d)(1)(iii)), and (f) through 

(m) for each employee required by this 

section to use a respirator’’ (emphasis 

added). Identical language revisions are 

proposed for the initial respirator 

paragraphs in other toxic-substance 

health standards; only the section and 

paragraph numbers are different. 

OSHA preliminarily believes that 

these revisions are appropriate in light 

of the Ho majority’s narrow 

interpretation of the asbestos respirator 

provision. OSHA is adding explicit 

‘‘each employee’’ language to section 

1910.134 and to the initial respirator 

paragraphs of toxic-substance health 

standards to address the Commission’s 

concern that this language is necessary 

to inform employers of their specific 

duty to provide a respirator to each 

individual employee required to use a 

respirator. The revisions will improve 

these standards by conforming them to 

each other and to the revised 

§ 1910.134, and contribute to a greater 

awareness of the importance of full 

compliance with these important 

requirements. 

Revisions to Specific Training 

Paragraphs 

OSHA proposes to revise those 

training provisions in safety and health 

standards that require the employer to 

institute or provide a training program 

for employees exposed to hazards. The 

Commission has indicated that the 

requirement in section 

1926.1101(k)(9)(i) to ‘‘institute a training 

program for all employees who are 

likely to be exposed in excess of a PEL 

and for all employees who perform 

Class I through IV asbestos operations, 

and shall ensure their participation in 

the program’’ is not sufficiently explicit 

as to the employer’s duty to train each 

employee. A number of other standards 


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Federal Register / Vol. 73, No. 161 / Tuesday, August 19, 2008 / Proposed Rules 48343 

include similarly worded training 

provisions. Accordingly, this proposed 

rule would revise section 

1926.1101(k)(9)(i) to state, in relevant 

part, ‘‘[t]he employer shall train each 

employee who is likely to be exposed in 

excess of a PEL, and each employee who 

performs Class I through IV asbestos 

operations, in accordance with the 

requirements of this section’’ (emphasis 

added). Similar revised language is 

proposed for training sections in other 

standards that contain similar wording 

to section 1926.1101(k)(9)(i). The 

amended training provisions will 

conform to the training provision that 

the Commission in GM interpreted to 

permit per-employee citations. 

V. Advisory Committee on Construction 

Safety and Health 

The Advisory Committee on 

Construction Safety and Health 

(ACCSH) assists OSHA by providing 

comments and recommendations on 

proposed construction standards. 

Accordingly, OSHA provided ACCSH 

with a copy of the draft proposed 

construction amendments. ACCSH 

considered the proposed amendments 

on May 15, 2008 and made the 

following recommendation: ‘‘ACCSH 

recommends that OSHA adopt the 

proposed standard on Clarification of 

Remedy for Violation of Requirements 

To Provide Personal Protective 

Equipment and Training.’’

VI. Preliminary Economic Analysis 

OSHA has determined that the 

proposed standard is not an 

economically significant regulatory 

action under Executive Order (E.O.) 

12866. E.O. 12866 requires regulatory 

agencies to conduct an economic 

analysis for rules that meet certain 

criteria. The most frequently used 

criterion under E.O. 12866 is that the 

rule will impose annual costs on the 

economy of $100 million or more. 

Neither the benefits nor the costs of this 

rule exceed $100 million. 

OSHA has also determined that the 

proposed standard is not a major rule 

under the Congressional Review 

provisions of the Small Business 

Regulatory Enforcement Fairness Act. 

The Regulatory Flexibility Act of 1980 

(RFA), as amended in 1996, requires 

OSHA to determine whether the 

Agency’s regulatory actions will have a 

significant impact on a substantial 

number of small entities. OSHA’s 

analysis, based on the analysis in this 

section of the Preamble as well as the 

later section ‘‘OMB Review Under the 

Paperwork Reduction Act’’ below, 

indicates that the proposed rule will not 

have significant impacts on a substantial 

number of small entities. 

The proposal inserts two new 

paragraphs in the general industry 

health and safety standards (Part 1910), 

the shipyard employment standards 

(Part 1915), the marine terminal 

standards (Part 1917), the longshoring 

standards (Part 1918), and the 

construction standards (Part 1926). The 

new provisions, identical in each part, 

are as follows: 

(a) Personal protective equipment. 

Standards in this part requiring the employer 

to provide personal protective equipment 

(PPE), including respirators, because of 

hazards to employees impose a separate 

compliance duty to each employee covered 

by the requirement. The employer must 

provide PPE to each employee required to 

use the PPE, and each failure to provide PPE 

to an employee may be considered a separate 

violation. 

(b) Training. Standards in this part 

requiring training on hazards and related 

matters, such as standards requiring that 

employees receive training or that the 

employer train employees, provide training 

to employees, or institute or implement a 

training program, impose a separate 

compliance duty to each employee covered 

by the requirement. The employer must train 

each affected employee in the manner 

required by the standard, and each failure to 

train an employee may be considered a 

separate violation. 

These provisions do not require 

employers to provide any new or 

additional PPE, respiratory equipment, 

or training that is not already required 

in existing standards. (When the 

existing standards were promulgated, 

OSHA estimated the costs to employers 

of the PPE and respiratory equipment 

that would be required.) The proposed 

provisions therefore impose no new cost 

burden. It has, however, been OSHA’s 

enforcement policy in appropriate cases 

to cite employers for each separate 

violation regarding PPE, respiratory 

protection, and training. These 

provisions will serve to make explicit 

the Agency’s policy and warn 

employers of the potential cost and 

penalties of violations. The Agency’s 

economic analyses of its occupational 

and health standards assume employers’

full compliance for estimating the cost, 

or employer burden, of the standards it 

promulgates. For this reason, although 

the revisions may change the frequency 

or number of violations and amount of 

fines assessed, these are not material for 

estimating new costs to comply with a 

standard. 

The Agency has also editorially 

revised provisions for respiratory 

protection, respiratory programs, and 

employee training across many existing 

standards. These editorial revisions 

emphasize the employer’s responsibility 

to provide protection to each employee. 

For example, the existing language of 

§ 1910.134(a)(2) ‘‘Respirators shall be 

provided by the employer when such 

equipment is necessary to protect the 

health of the employee’’ is replaced in 

the proposal by: ‘‘A respirator shall be 

provided to each employee when such 

equipment is necessary to protect the 

health of such employee.’’ These 

changes again do not impose any 

additional employer responsibility for 

providing respiratory protection, 

respiratory programs, or training for 

employees. And therefore there are no 

costs attributed to these proposed 

revisions. The existing standards and 

paragraphs that are affected by the new, 

substitute language are identified above 

in the Summary and Explanation part of 

this Preamble as well as the regulatory 

text following the Preamble. 

The proposed rule is technologically 

feasible because it does not require 

employers to provide any additional 

equipment, such as respirators, or 

training not already required in existing 

standards. The Agency considered 

regulatory and non-regulatory 

alternatives to the proposed rule. 

Because the newly proposed paragraphs 

and proposed revisions to existing 

paragraphs merely clarify employer 

responsibilities, especially in regard to 

the Agency’s policy of issuing 

violations, non-regulatory alternatives 

are not an appropriate or relevant way 

to affect those changes and better inform 

employers. Finally, because the 

proposed rule does not impose new 

costs on employers, it is economically 

feasible. 

VII. Regulatory Flexibility Certification 

In accordance with the Regulatory 

Flexibility Act, 5 U.S.C. 601 et seq. (as 

amended), OSHA examined the 

regulatory requirements of the proposed 

rule to determine if they would have a 

significant economic impact on a 

substantial number of small entities. As 

indicated in section VI (‘‘Preliminary 

Economic Analysis’’) of this preamble, 

the proposed rule is expected to have no 

effect on compliance costs and 

regulatory burden for all employers, 

large and small. Accordingly, the 

Agency certifies that the proposed rule 

would not have a significant economic 

impact on a substantial number of small 

entities. 

VIII. Environmental Impact Assessment 

OSHA has reviewed the proposed rule 

in accordance with the requirements of 

the National Environmental Policy Act 

(NEPA) of 1969 (42 U.S.C. 4321 et seq.), 

the regulations of the Council on 


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48344 Federal Register / Vol. 73, No. 161 / Tuesday, August 19, 2008 / Proposed Rules 

Environmental Quality (40 U.S.C. part 

1500), and the Department of Labor’s 

NEPA procedures (29 CFR part 11). The 

Agency finds that the revisions included 

in the proposal would have no major 

negative impact on air, water or soil 

quality, plant or animal life, the use of 

land or other aspects of the 

environment. 

IX. Federalism 

OSHA has reviewed this proposed 

rule in accordance with E.O. 13132 

regarding Federalism. E.O. 13132 

requires that agencies, to the extent 

possible, refrain from limiting State 

policy options, consult with States prior 

to taking any actions that would restrict 

State policy options, and take such 

actions only when there is clear 

constitutional authority and the 

presence of a problem of national scope. 

Additionally, E.O. 13132 provides for 

preemption of State law only if there is 

a clear Congressional intent for the 

Agency to do so. Any such preemption 

is to be limited to the extent possible. 

Section 18 of the OSH Act, 29 U.S.C. 

667, expresses Congress’ clear intent to 

preempt State laws relating to issues on 

which Federal OSHA has promulgated 

occupational safety and health 

standards. A state can avoid preemption 

by obtaining Federal approval of a State 

plan for the development of such 

standards and their enforcement. 

Occupational safety and health 

standards developed by such State Plan 

States must, among other things, be at 

least as effective in providing safe and 

healthful employment and places of 

employment as the Federal standards. 

The Agency concludes that this 

proposed rule complies with E.O. 

13132. In States without State Plans, 

Congress has expressly provided for 

Federal preemption on issues addressed 

by an occupational safety and health 

standard. The final rule would preempt 

State law in the same manner as any 

OSHA standard. States with State Plans 

are free to develop their own policy 

options on the issues addressed by this 

proposed rule, provided their standards 

are at least as effective as the final rule. 

State comments are invited on this 

proposal and will be fully considered 

prior to promulgation of a final rule. 

X. Unfunded Mandates 

For the purposes of the Unfunded 

Mandates Reform Act of 1995, 2 U.S.C. 

1501, et seq., as well as E.O. 12875, this 

proposed rule does not include any 

Federal mandate that may result in 

increased expenditures by State, local, 

and tribal governments, or increased 

expenditures by the private sector of 

more than $100 million. 

XI. OMB Review Under the Paperwork 

Reduction Act of 1995 

This proposed rule does not contain 

collection-of-information requirements 

subject to review by OMB under the 

Paperwork Reduction Act of 1995, 44 

U.S.C. 3501 et seq. and OMB regulations 

at 5 CFR part 1320. 

XII. State Plan States 

Those States and Territories with 

OSHA-approved State Plans must revise 

their existing standards within six 

months of the publication date of the 

final rule or show OSHA why there is 

no need for action, e.g., because an 

existing State standard covering this 

area is ‘‘at least as effective as’’ the 

revised Federal standard. 

XIII. Public Participation 

Submission of Comments and Access to 

Docket 

OSHA invites comment on all aspects 

of the proposed rule. The Agency will 

carefully review and evaluate these 

comments, information and data, as 

well as all other information in the 

rulemaking record, to determine how to 

proceed. You may submit comments in 

response to this document (1) 

electronically at http:// 

www.regulations.gov, which is the 

Federal eRulemaking Portal; (2) by 

facsimile (FAX); or (3) by hard copy. All 

comments, attachments and other 

material must identify the Agency name 

and the OSHA docket number [OSHA–

2008–0031] for this rulemaking. You 

may supplement electronic submissions 

by uploading document files 

electronically. If, instead, you wish to 

mail additional materials in reference to 

an electronic or fax submission, you 

must submit three copies to the OSHA 

Docket Office (see ADDRESSES section). 

The additional materials must clearly 

identify your electronic comments by 

name, date, and docket number [OSHA–

2008–0031], so OSHA can attach them 

to your comments. 

Because of security-related 

procedures, the use of regular mail may 

cause a significant delay in the receipt 

of comments. For information about 

security procedures concerning the 

delivery of materials by hand, express 

delivery, messenger or courier service, 

please contact the OSHA Docket Office 

at (202) 693–2350 (TTY (877) 889–

5627). 

Comments and submissions in 

response to this Federal Register notice 

are posted without change at http:// 

www.regulations.gov. Therefore, OSHA 

cautions commenters about submitting 

personal information such as social 

security numbers and date of birth. 

Exhibits referenced in this Federal 

Register document are posted at 

http://www.regulations.gov. Although 

all submissions in response to this 

Federal Register notice and exhibits 

referenced in this Federal Register 

notice are listed in the http:// 

www.regulations.gov indexes, some 

information (e.g., copyrighted material) 

is not publicly available to read or 

download through those Web pages. All 

submissions and exhibits, including 

copyrighted material, are available for 

inspection and copying at the OSHA 

Docket Office. Information on using 

http://www.regulations.gov to submit 

comments and access dockets is 

available at the Web page’s User Tips 

link. Contact the OSHA Docket Office 

for information about materials not 

available through the Web page and for 

assistance in using the Internet to locate 

docket submissions. 

Electronic copies of this Federal 

Register document are available at 

http://www.regulations.gov. This 

document, as well as news releases and 

other relevant information, also is 

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

www.osha.gov. 

Requests for Informal Public Hearings 

Under section 6(b)(3) of the OSH Act 

(29 U.S.C. 655) and § 1911.11, interested 

parties may request an informal public 

hearing. If a timely hearing request is 

made, OSHA tentatively intends to 

schedule the hearing to commence in 

Washington, DC on October 3, 2008. 

Hearing requests must be submitted to 

the OSHA Docket Office by September 

18, 2008, and must comply with the 

following: 

1. Hearing requests may only be 

submitted by one of the following 

methods: electronically, fax, express 

mail, hand delivery, messenger or 

courier service (see ADDRESSES section 

above). 

2. Hearing requests must include the 

name and address of the person 

submitting them; 

3. The hearing requests must specify 

with particularity the provision of the 

proposed rule to which each objection 

is taken and the basis for the objection; 

4. Each hearing request must be 

separately stated and numbered; and 

5. The hearing requests must be 

accompanied by a detailed summary of 

the evidence proposed to be presented 

at the requested hearing. 

If a hearing is held, OSHA will allow 

an additional 30-day period for 

submission of post-hearing comments 

before closing the public comment 

period. 


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List of Subjects 

29 CFR Part 1910 

Chemicals, Gases, Hazardous 

substances, Occupational safety and 

health, Protective equipment. 

29 CFR Part 1915 

Chemicals, Gases, Hazardous 

substances, Longshore and harbor 

workers, Occupational safety and 

health, Protective equipment. 

29 CFR Part 1917 

Chemicals, Gases, Hazardous 

substances, Longshore and harbor 

workers, Occupational safety and 

health, Protective equipment. 

29 CFR Part 1918 

Chemicals, Gases, Hazardous 

substances, Longshore and harbor 

workers, Occupational safety and 

health, Protective equipment. 

29 CFR Part 1926 

Chemicals, Construction industry, 

Gases, Hazardous substances, 

Occupational safety and health, 

Protective equipment. 

Authority and Signature 

This document was prepared under 

the direction of Edwin G. Foulke, Jr., 

Assistant Secretary of Labor for 

Occupational Safety and Health, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Washington, DC 20210. It 

is issued under sections 4, 6, and 8 of 

the Occupational Safety and Health Act 

of 1970 (29 U.S.C. 653, 655, 657), 

section 941 of the Longshore and Harbor 

Workers’ Compensation Act (33 U.S.C. 

901 et seq.), section 3704 of the Contract 

Work Hours and Safety Standards Act 

(40 U.S.C. 3701 et seq.), Secretary of 

Labor’s Order No. 5–2007, and 29 CFR 

part 1911. 

Signed at Washington, DC this 12th day of 

August, 2008. 

Edwin G. Foulke, Jr., 

Assistant Secretary of Labor for Occupational 

Safety and Health. 

The Proposed Standard 

Parts 1910, 1915, 1917, 1918 and 1926 

of Title 29 of the Code of Federal 

Regulations are hereby proposed to be 

amended as follows: 

PART 1910—[AMENDED] 

Subpart A—[Amended] 

1. The authority citation for subpart A 

of 29 CFR part 1910 is revised to read 

as follows: 

Authority: Sections 4, 6, and 8 of the 

Occupational Safety and Health Act of 1970 

(29 U.S.C. 653, 655, and 657); Secretary of 

Labor’s Order No. 12–71 (36 FR 8754), 8–76 

(41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 

FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR 

50017), 5–2002 (67 FR 65008), and 5–2007 

(72 FR 31159), as applicable. 

Sections 1910.7, 1910.8, and 1910.9 also 

issued under 29 CFR Part 1911. Section 

1910.7(f) also issued under 31 U.S.C. 9701, 

29 U.S.C. 9a, 5 U.S.C. 553; Pub. L. 106–113 

(113 Stat. 1501A–222); and OMB Circular A–

25 (dated July 8, 1993) (58 FR 38142, July 15, 

1993). 

2. A new section 1910.9 is added to 

read as follows: 

§ 1910.9 Compliance duties owed to each 

employee. 

(a) Personal protective equipment. 

Standards in this part requiring the 

employer to provide personal protective 

equipment (PPE), including respirators, 

because of hazards to employees impose 

a separate compliance duty to each 

employee covered by the requirement. 

The employer must provide PPE to each 

employee required to use the PPE, and 

each failure to provide PPE to an 

employee may be considered a separate 

violation. 

(b) Training. Standards in this part 

requiring training on hazards and 

related matters, such as standards 

requiring that employees receive 

training or that the employer train 

employees, provide training to 

employees, or institute or implement a 

training program, impose a separate 

compliance duty to each employee 

covered by the requirement. The 

employer must train each affected 

employee in the manner required by the 

standard, and each failure to train an 

employee may be considered a separate 

violation. 

Subpart G—[Amended] 

3. The authority citation for subpart G 

of 29 CFR part 1910 is revised to read 

as follows: 

Authority: Secs. 4, 6, and 8 of the 

Occupational Safety and Health Act of 1970 

(29 U.S.C. 653, 655, 657); Secretary of Labor’s 

Order No. 12–71 (36 FR 8754), 8–76 (41 FR 

25059), 9–83 (48 FR 35736), 1–90 (55 FR 

9033), 6–96 (62 FR 111), 3–2000 (65 FR 

50017), 5–2002 (67 FR 50017), or 5–2007 (72 

FR 31159) as applicable; and 29 CFR part 

1911. 

4. In section 1910.95, paragraph (k)(1) 

is revised to read as follows: 

§ 1910.95 Occupational noise exposure. 

* * * * * 

(k) * * * 

(1) The employer shall train each 

employee who is exposed to noise at or 

above an 8-hour time weighted average 

of 85 decibels in accordance with the 

requirements of this section. The 

employer shall institute a training 

program and ensure employee 

participation in the program. 

* * * * * 

Subpart I—[Amended] 

5. The authority citation for subpart I 

of 29 CFR part 1910 is revised to read 

as follows: 

Authority: Sections 4, 6, and 8 of the 

Occupational Safety and Health Act of 1970 

(29 U.S.C. 653, 655, and 657); Secretary of 

Labor’s Order No. 12–71 (36 FR 8754), 8–76 

(41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 

FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR 

50017), 5–2002 (67 FR 65008), or 5–2007 (72 

FR 31160), as applicable, and 29 CFR Part 

1911. 

6. In section 1910.134, paragraph 

(a)(2) is revised to read as follows: 

§ 1910.134 Respiratory protection. 

* * * * * 

(a) * * * 

(2) A respirator shall be provided to 

each employee when such equipment is 

necessary to protect the health of such 

employee. The employer shall provide 

the respirators which are applicable and 

suitable for the purpose intended. The 

employer shall be responsible for the 

establishment and maintenance of a 

respiratory protection program, which 

shall include the requirements outlined 

in paragraph (c) of this section, for each 

employee required by this section to use 

a respirator. 

* * * * * 

Subpart L—[Amended] 

7. The authority citation for subpart L 

of 29 CFR part 1910 is revised to read 

as follows: 

Authority: Sections 4, 6, and 8 of the 

Occupational Safety and Health Act of 1970 

(29 U.S.C. 653, 655, and 657); Secretary of 

Labor’s Order No. 12–71 (36 FR 8754), 8–76 

(41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 

FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR 

50017), 5–2002 (67 FR 65008), or 5–2007 (72 

FR 31160), as applicable, and 29 CFR Part 

1911. 

8. In section 1910.156, paragraph 

(f)(1)(i) is revised to read as follows: 

§ 1910.156 Fire brigades. 

* * * * * 

(f)* * * 

(1)* * * 

(i) The employer must ensure that 

respirators are provided to, and used by, 

each fire brigade member, and that the 

respirators meet the requirements of 29 

CFR 1910.134 for each employee 

required by this section to use a 

respirator. 

* * * * * 


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48346 Federal Register / Vol. 73, No. 161 / Tuesday, August 19, 2008 / Proposed Rules 

Subpart Z—[Amended] 

9. The authority citation for subpart Z 

of 29 CFR part 1910 is revised to read 

as follows: 

Authority: Sections 4, 6, and 8 of the 

Occupational Safety and Health Act of 1970 

(29 U.S.C. 653, 655, and 657); Secretary of 

Labor’s Order No. 12–71 (36 FR 8754), 8–76 

(41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 

FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR 

50017), 5–2002 (67 FR 65008), or 5–2007 (72 

FR 31160), as applicable. 

All of subpart Z issued under section 6(b) 

of the Occupational Safety and Health Act, 

except those substances that have exposure 

limits listed in Tables Z–1, Z–2, and Z–3 of 

29 CFR 1910.1000. The latter were issued 

under section 6(a) (29 U.S.C. 655(a)). 

Section 1910.1000, Tables Z–1, Z–2, and 

Z–3 also issued under 5 U.S.C. 553, Section 

1910.1000 Tables Z–1, Z–2, and Z–3 but not 

under 29 CFR part 1911 except for the 

arsenic (organic compounds), benzene, 

cotton dust, and chromium (VI) listings. 

Section 1910.1001 also issued under 

section 107 of the Contract Work Hours and 

Safety Standards Act (40 U.S.C. 3704) and 5 

U.S.C. 553. 

Section 1910.1002 also issued under 5 

U.S.C. 553 but not under 29 U.S.C. 655 or 29 

CFR part 1911. 

Sections 1910.1018, 1910.1029 and 

1910.1200 also issued under 29 U.S.C. 653. 

Section 1910.1030 also issued under Pub. 

L. 106–430, 114 Stat. 1901. 

10. In section 1910.1001, paragraphs 

(g)(1), and (g)(2)(i), and (j)(7)(i) are 

revised to read as follows: 

§ 1910.1001 Asbestos. 

* * * * * 

(g) Respiratory protection. 

* * * 

(1) General. For employees who use 

respirators required by this section, the 

employer must provide each employee 

an appropriate respirator that complies 

with the requirements of this paragraph. 

Respirators must be used during: 

* * * * * 

(2) * * * 

(i) The employer must implement a 

respiratory protection program in 

accordance with 29 CFR 134(b) through 

(d) (except (d)(1)(iii)), and (f) through 

(m) for each employee required by this 

section to use a respirator. 

* * * * * 

(j) * * * 

(7) * * * 

(i) The employer shall train each 

employee who is exposed to airborne 

concentrations of asbestos at or above 

the PEL and/or excursion limit in 

accordance with the requirements of 

this section. The employer shall 

institute a training program and ensure 

employee participation in the program. 

* * * * * 

11. In section 1910.1003, paragraphs 

(c)(4)(iv) and (d)(1) are revised to read 

as follows: 

§ 1910.1003 13 Carcinogens (4- 

Nitrobiphenyl, etc.). 

* * * * * 

(c) * * * 

(4) * * * 

(iv) Each employee engaged in 

handling operations involving the 

carcinogens addressed by this section 

must be provided with, and required to 

wear and use, a half-face filter type 

respirator for dusts, mists, and fumes. A 

respirator affording higher levels of 

protection than this respirator may be 

substituted. 

* * * * * 

(d) * * * 

(1) Respiratory program. The 

employer must implement a respiratory 

protection program in accordance with 

§ 1910.134(b), (c), (d) (except (d)(1)(iii) 

and (iv), and (d)(3)), and (e) through (m) 

for each employee required by this 

section to use a respirator. 

* * * * * 

12. In section 1910.1017, paragraphs 

(g)(1) and (g)(2) are revised to read as 

follows: 

§ 1910.1017 Vinyl chloride. 

* * * * * 

(g) Respiratory protection. (1) General. 

For employees who use respirators 

required by this section, the employer 

must provide each employee an 

appropriate respirator that complies 

with the requirements of this paragraph. 

Respirators must be used during: 

* * * * * 

(2) Respirator program. The employer 

must implement a respiratory protection 

program in accordance § 1910.134(b) 

through (d) (except (d)(1)(iii), and 

(d)(3)(iii)(B)(1) and (2)), and (f) through 

(m) for each employee required by this 

section to use a respirator. 

* * * * * 

13. In section 1910.1018, paragraphs 

(h)(1) introductory text, (h)(2)(i), and 

(o)(1)(i) are revised to read as follows: 

§ 1910.1018 Inorganic arsenic. 

* * * * * 

(h) * * * 

(1) General. For employees who use 

respirators required by this section, the 

employer must provide each employee 

an appropriate respirator that complies 

with the requirements of this paragraph. 

Respirators must be used during: 

* * * * * 

(2) * * * 

(i) The employer must implement a 

respiratory protection program in 

accordance with § 1910.134(b) through 

(d) (except (d)(1)(iii)), and (f) through 

(m) for each employee required by this 

section to use a respirator. 

* * * * * 

(o) * * * 

(1) * * * 

(i) The employer shall train each 

employee who is subject to exposure to 

inorganic arsenic above the action level 

without regard to respirator use, or for 

whom there is the possibility of skin or 

eye irritation from inorganic arsenic, in 

accordance with the requirements of 

this section. The employer shall 

institute a training program and ensure 

employee participation in the program. 

* * * * * 

14. In section 1910.1025, paragraphs 

(f)(1) introductory text, (f)(2)(i), and 

(l)(1)(ii) are revised to read as follows: 

§ 1910.1025 Lead. 

* * * * * 

(f) * * * 

(1) General. For employees who use 

respirators required by this section, the 

employer must provide each employee 

an appropriate respirator that complies 

with the requirements of this paragraph. 

Respirators must be used during: 

* * * * * 

(2) * * * 

(i) The employer must implement a 

respiratory protection program in 

accordance with § 1910.134(b) through 

(d) (except (d)(1)(iii)), and (f) through 

(m) for each employee required by this 

section to use a respirator. 

* * * * * 

(l) * * * 

(1) * * * 

(ii) The employer shall train each 

employee who is subject to exposure to 

lead at or above the action level, or for 

whom the possibility of skin or eye 

irritation exists, in accordance with the 

requirements of this section. The 

employer shall institute a training 

program and ensure employee 

participation in the program. 

* * * * * 

15. In section 1910.1026, paragraphs 

(g)(1) introductory text and (g)(2) are 

revised to read as follows: 

§ 1910.1026 Chromium (VI). 

* * * * * 

(g) * * * 

(1) General. Where respiratory 

protection is required by this section, 

the employer must provide each 

employee an appropriate respirator that 

complies with the requirements of this 

paragraph. Respiratory protection is 

required during: 

* * * * * 

(2) Respiratory protection program. 

Where respirator use is required by this 


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section, the employer shall institute a 

respiratory protection program in 

accordance with § 1910.134 for each 

employee required to use a respirator. 

* * * * * 

16. In section 1910.1027, paragraphs 

(g)(1) introductory text, (g)(2)(i), and 

(m)(4)(i) are revised to read as follows: 

§ 1910.1027 Cadmium. 

* * * * * 

(g) * * * 

(1) General. For employees who use 

respirators required by this section, the 

employer must provide each employee 

an appropriate respirator that complies 

with the requirements of this paragraph. 

Respirators must be used during: 

* * * * * 

(2) * * * 

(i) The employer must implement a 

respiratory protection program in 

accordance with § 1910.134(b) through 

(d) (except (d)(1)(iii)), and (f) through 

(m) for each employee required by this 

section to use a respirator. 

* * * * * 

(m) * * * 

(4) * * * 

(i) The employer shall train each 

employee who is potentially exposed to 

cadmium in accordance with the 

requirements of this section. The 

employer shall institute a training 

program, ensure employee participation 

in the program, and maintain a record 

of the contents of such program. 

* * * * * 

17. In section 1910.1028, paragraph 

(g)(1) introductory text and (g)(2)(i) are 

revised to read as follows: 

§ 1910.1028 Benzene. 

* * * * * 

(g) * * * 

(1) General. For employees who use 

respirators required by this section, the 

employer must provide each employee 

an appropriate respirator that complies 

with the requirements of this paragraph. 

Respirators must be used during: 

* * * * * 

(2) * * * 

(i) The employer must implement a 

respiratory protection program in 

accordance with § 1910.134(b) through 

(d) (except (d)(1)(iii), (d)(3)(iii)(b)(1) and 

(2)), and (f) through (m) for each 

employee required by this section to use 

a respirator. 

* * * * * 

18. In section 1910.1029, paragraphs 

(g)(1) introductory text, (g)(2)(i), and 

(k)(1)(i) are revised to read as follows: 

§ 1910.1029 Coke oven emissions. 

* * * * * 

(g) * * * 

(1) General. For employees who use 

respirators required by this section, the 

employer must provide each employee 

an appropriate respirator that complies 

with the requirements of this paragraph. 

Respirators must be used during: 

* * * * * 

(2) Respirator program. The employer 

must implement a respiratory protection 

program in accordance with § 1910.134 

(b) through (d) (except (d)(1)(iii)), and (f) 

through (m) for each employee required 

by this section to use a respirator. 

* * * * * 

(k) * * * 

(1) * * * 

(i) The employer shall train each 

employee who is employed in a 

regulated area in accordance with the 

requirements of this section. The 

employer shall institute a training 

program and ensure employee 

participation in the program. 

* * * * * 

19. In section 1910.1030, paragraph 

(g)(2)(i) is revised to read as follows: 

§ 1910.1030 Bloodborne pathogens. 

* * * * * 

(g) * * * 

(2) * * * 

(i) The employer shall train each 

employee with occupational exposure 

in accordance with the requirements of 

this section. Such training must be 

provided at no cost to the employee and 

during working hours. The employer 

shall institute a training program and 

ensure employee participation in the 

program. 

* * * * * 

20. In section 1910.1043, paragraphs 

(f)(1) introductory text, (f)(2)(i), and 

(i)(1)(i) are revised to read as follows: 

§ 1910.1043 Cotton dust. 

* * * * * 

(f) * * * 

(1) General. For employees who are 

required to use respirators by this 

section, the employer must provide each 

employee an appropriate respirator that 

complies with the requirements of this 

paragraph. Respirators must be used 

during: 

* * * * * 

(2) * * * 

(i) The employer must implement a 

respiratory protection program in 

accordance with § 1910.134 (b) through 

(d) (except (d)(1)(iii)), and (f) through 

(m) for each employee required by this 

section to use a respirator 

* * * * * 

(i) * * * 

(1) * * * 

(i) The employer shall train each 

employee exposed to cotton dust in 

accordance with the requirements of 

this section. The employer shall 

institute a training program and ensure 

employee participation in the program. 

* * * * * 

21. In section 1910.1044, paragraphs 

(h)(1) introductory text, (h)(2), and 

(n)(1)(i) are revised to read as follows: 

§ 1910.1044 1,2-Dibromo-3-chloropropane. 

* * * * * 

(h) * * * 

(1) General. For employees who are 

required to use respirators by this 

section, the employer must provide each 

employee an appropriate respirator that 

complies with the requirements of this 

paragraph. Respirators must be used 

during: 

* * * * * 

(2) Respirator Program. The employer 

must implement a respiratory protection 

program in accordance with 

§ 1910.134(b) through (d) (except 

(d)(1)(iii)), and (f) through (m) for each 

employee required by this section to use 

a respirator. 

* * * * * 

(n) * * * 

(1) * * * 

(i) The employer shall train each 

employee who may be exposed to DBCP 

in accordance with the requirements of 

this section. The employer shall 

institute a training program and ensure 

employee participation in the program. 

* * * * * 

22. In section 1910.1045, paragraphs 

(h)(1) introductory text, (h)(2)(i), and 

(o)(1)(i) are revised to read as follows: 

§ 1910.1045 Acrylonitrile. 

* * * * * 

(h) * * * 

(1) General. For employees who use 

respirators required by this section, the 

employer must provide each employee 

an appropriate respirator that complies 

with the requirements of this paragraph. 

Respirators must be used during: 

* * * * * 

(2) * * * 

(i) The employer must implement a 

respiratory protection program in 

accordance with § 1910.134(b) through 

(d) (except (d)(1)(iii), (d)(3)(iii)(b)(1), 

and (2)), and (f) through (m) for each 

employee required by this section to use 

a respirator. 

* * * * * 

(o) * * * 

(1) * * * 

(i) The employer shall train each 

employee exposed to AN above the 

action level, each employee whose 

exposures are maintained below the 

action level by engineering and work 

practice controls, and each employee 


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subject to potential skin or eye contact 

with liquid AN in accordance with the 

requirements of this section. The 

employer shall institute a training 

program and ensure employee 

participation in the program. 

* * * * * 

23. In section 1910.1047, paragraph 

(g)(1) introductory text and (g)(2) are 

revised to read as follows: 

§ 1910.1047 Ethylene oxide. 

* * * * * 

(g) * * * 

(1) General. For employees who use 

respirators required by this section, the 

employer must provide each employee 

an appropriate respirator that complies 

with the requirements of this paragraph. 

Respirators must be used during: 

* * * * * 

(2) Respirator program. The employer 

must implement a respiratory protection 

program in accordance with § 1910.134 

(b) through (d) (except (d)(i)(iii)), and (f) 

through (m) for each employee required 

by this section to use a respirator. 

* * * * * 

24. In section 1910.1048, paragraphs 

(g)(1) introductory text and (g)(2)(i) are 

revised to read as follows: 

§ 1910.1048 Formaldehyde. 

* * * * * 

(g) * * * 

(1) General. For employees who use 

respirators required by this section, the 

employer must provide each employee 

an appropriate respirator that complies 

with the requirements of this paragraph. 

Respirators must be used during: 

* * * * * 

(2) * * * 

(i) The employer must implement a 

respiratory protection program in 

accordance with § 1910.134 (b) through 

(d) (except (d)(1)(iii), (d)(3)(iii)(b)(1), 

and (2)), and (f) through (m) for each 

employee required by this section to use 

a respirator. 

* * * * * 

25. In section 1910.1050, paragraphs 

(h)(1) introductory text and (h)(2) are 

revised to read as follows: 

§ 1910.1050 Methylenedianiline. 

* * * * * 

(h) * * * 

(1) General. For employees who use 

respirators required by this section, the 

employer must provide each employee 

an appropriate respirator that complies 

with the requirements of this paragraph. 

Respirators must be used during: 

* * * * * 

(2) Respirator program. The employer 

must implement a respiratory protection 

program in accordance with § 1910.134 

(b) through (d) (except (d)(1)(iii)), and (f) 

through (m) for each employee required 

by this section to use a respirator. 

* * * * * 

26. In section 1910.1051, paragraphs 

(h)(1) introductory text, (h)(2)(i), and 

(l)(2)(ii) are revised to read as follows: 

§ 1910.1051 Butadiene. 

* * * * * 

(h) * * * 

(1) General. For employees who use 

respirators required by this section, the 

employer must provide each employee 

an appropriate respirator that complies 

with the requirements of this paragraph. 

Respirators must be used during: 

* * * * * 

(2) * * * 

(i) The employer must implement a 

respiratory protection program in 

accordance with § 1910.134 (b) through 

(d) (except (d)(1)(iii), (d)(3)(iii), (B)(1), 

and (2)), and (f) through (m) for each 

employee required by this section to use 

a respirator. 

* * * * * 

(l) * * * 

(2) * * * 

(ii) The employer shall train each 

employee who is potentially exposed to 

BD at or above the action level or the 

STEL in accordance with the 

requirements of this section. The 

employer shall institute a training 

program, ensure employee participation 

in the program, and maintain a record 

of the contents such program. 

* * * * * 

27. In section 1910.1052, paragraphs 

(g)(1) introductory text and (g)(2)(i) are 

revised to read as follows: 

§ 1910.1052 Methylene chloride. 

* * * * * 

(g) * * * 

(1) General. For employees who use 

respirators required by this section, the 

employer must provide each employee 

an appropriate respirator that complies 

with the requirements of this paragraph. 

Respirators must be used during: 

* * * * * 

(2) * * * 

(i) The employer must implement a 

respiratory protection program in 

accordance with § 1910.134 (b) through 

(m) (except (d)(1)(iii)), for each 

employee required by this section to use 

a respirator. 

* * * * * 

PART 1915—[AMENDED] 

28. The authority citation for part 

1915 is revised to read as follows: 

Authority: Section 41, Longshore and 

Harbor Workers’ Compensation Act (33 

U.S.C. 941); Sections 4, 6, and 8 of the 

Occupational Safety and Health Act of 1970 

(29 U.S.C. 653, 655, 657); Secretary of Labor’s 

Order No. 12–71 (36 FR 8754), 8–76 (41 FR 

25059), 9–83 (48 FR 35736), 1–90 (55 FR 

9033), 6–96 (62 FR 111), 3–2000 (65 FR 

50017), 5–2002 (67 FR 65008), or 5–2007 (72 

FR 31160) as applicable; 29 CFR Part 1911. 

Subpart A—[Amended] 

29. A new section 1915.9 is added, to 

read as follows: 

§ 1915.9 Compliance duties owed to each 

employee. 

(a) Personal protective equipment. 

Standards in this part requiring the 

employer to provide personal protective 

equipment (PPE), including respirators, 

because of hazards to employees impose 

a separate compliance duty to each 

employee covered by the requirement. 

The employer must provide PPE to each 

employee required to use the PPE, and 

each failure to provide PPE to an 

employee may be considered a separate 

violation. 

(b) Training. Standards in this part 

requiring training on hazards and 

related matters, such as standards 

requiring that employees receive 

training or that the employer train 

employees, provide training to 

employees, or institute or implement a 

training program, impose a separate 

compliance duty to each employee 

covered by the requirement. The 

employer must train each affected 

employee in the manner required by the 

standard, and each failure to train an 

employee may be considered a separate 

violation. 

Subpart Z—[Amended] 

30. In section 1915.1001, paragraphs 

(h)(1) introductory text, (h)(3)(i), and 

(k)(9)(i), are revised to read as follows: 

§ 1915.1001 Asbestos. 

* * * * * 

(h) * * * 

(1) General. For employees who use 

respirators required by this section, the 

employer must provide each employee 

an appropriate respirator that complies 

with the requirements of this paragraph. 

Respirators must be used in the 

following circumstances: 

* * * * * 

(3) * * * 

(i) Where respirator use is required by 

this section, the employer shall institute 

a respiratory protection program in 

accordance with § 1910.134(b), (d), (e), 

and (f) for each employee required by 

this section to use a respirator. 

* * * * * 

(k) * * * 

(9) * * * 


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(i) The employer shall train each 

employee who is likely to be exposed in 

excess of a PEL and each employee who 

performs Class I through IV asbestos 

operations in accordance with the 

requirements of this section. Training 

shall be provided at no cost to the 

employee. The employer shall institute 

a training program and ensure employee 

participation in the program. 

* * * * * 

31. In section 1915.1026, paragraphs 

(f)(1) introductory text and (f)(2) are 

revised to read as follows: 

§ 1915.1026 Chromium (IV). 

* * * * * 

(f) * * * 

(1) General. Where respiratory 

protection is required by this section, 

the employer must provide each 

employee an appropriate respirator that 

complies with the requirements of this 

paragraph. Respiratory protection is 

required during: 

* * * * * 

(2) Respiratory Protection Program. 

Where respirator use is required by this 

section, the employer shall institute a 

respiratory protection program in 

accordance with § 1910.134 for each 

employee required to use a respirator. 

* * * * * 

PART 1917—[AMENDED] 

32. The authority citation for part 

1917 is revised to read as follows: 

Authority: Section 41, Longshore and 

Harbor Workers’ Compensation Act (33 

U.S.C. 941); Sections 4, 6, and 8 of the 

Occupational Safety and Health Act of 1970 

(29 U.S.C. 653, 655, 657); Secretary of Labor’s 

Order No. 12–71 (36 FR 8754), 8–76 (41 FR 

25059), 9–83 (48 FR 35736), 1–90 (55 FR 

9033), 6–96 (62 FR 111), 3–2000 (65 FR 

50017), 5–2002 (67 FR 65008), or 5–2007 (72 

FR 31160) as applicable; 29 CFR Part 1911. 

Subpart A—[Amended] 

33. A new section 1917.5 is added, to 

read as follows: 

§ 1917.5 Compliance duties owed to each 

employee. 

(a) Personal protective equipment. 

Standards in this part requiring the 

employer to provide personal protective 

equipment (PPE), including respirators, 

because of hazards to employees impose 

a separate compliance duty to each 

employee covered by the requirement. 

The employer must provide PPE to each 

employee required to use the PPE, and 

each failure to provide PPE to an 

employee may be considered a separate 

violation. 

(b) Training. Standards in this part 

requiring training on hazards and 

related matters, such as standards 

requiring that employees receive 

training or that the employer train 

employees, provide training to 

employees, or institute or implement a 

training program, impose a separate 

compliance duty to each employee 

covered by the requirement. The 

employer must train each affected 

employee in the manner required by the 

standard, and each failure to train an 

employee may be considered a separate 

violation. 

PART 1918—[AMENDED] 

34. The authority citation for part 

1918 is revised to read as follows: 

Authority: Section 41, Longshore and 

Harbor Workers’ Compensation Act (33 

U.S.C. 941); Sections 4, 6, and 8 of the 

Occupational Safety and Health Act of 1970 

(29 U.S.C. 653, 655, 657); Secretary of Labor’s 

Order No. 12–71 (36 FR 8754), 8–76 (41 FR 

25059), 9–83 (48 FR 35736), 1–90 (55 FR 

9033), 6–96 (62 FR 111), 3–2000 (65 FR 

50017), 5–2002 (67 FR 65008), or 5–2007 (72 

FR 31160) as applicable; 29 CFR Part 1911. 

Subpart A—[Amended] 

35. A new section 1918.5 is added, to 

read as follows: 

§ 1918.5 Compliance duties owed to each 

employee. 

(a) Personal protective equipment. 

Standards in this part requiring the 

employer to provide personal protective 

equipment (PPE), including respirators, 

because of hazards to employees impose 

a separate compliance duty to each 

employee covered by the requirement. 

The employer must provide PPE to each 

employee required to use the PPE, and 

each failure to provide PPE to an 

employee may be considered a separate 

violation. 

(b) Training. Standards in this part 

requiring training on hazards and 

related matters, such as standards 

requiring that employees receive 

training or that the employer train 

employees, provide training to 

employees, or institute or implement a 

training program, impose a separate 

compliance duty to each employee 

covered by the requirement. The 

employer must train each affected 

employee in the manner required by the 

standard, and each failure to train an 

employee may be considered a separate 

violation. 

PART 1926—[AMENDED] 

Subpart C—[Amended] 

36. The authority citation for subpart 

C of 29 CFR part 1926 is revised to read 

as follows: 

Authority: Sec. 3704, Contract Work Hours 

and Safety Standards Act (40 U.S.C. 333); 

secs. 4, 6, and 8, Occupational Safety and 

Health Act of 1970 (29 U.S.C. 653, 655, 657); 

Secretary of Labor’s Order No. 12–71 (36 FR 

8754), 8–76 (41 FR 25059), 9–83 (48 FR 

35736), 6–96 (62 FR 111), or 5–2007 (72 FR 

31160) as applicable; and 29 CFR part 1911. 

37. In section 1926.20, a new 

paragraph (f) is added to read as follows: 

§ 1926.20 General safety and health 

provisions. 

* * * * * 

(f) Compliance duties owed to each 

employee. (1) Personal protective 

equipment. Standards in this part 

requiring the employer to provide 

personal protective equipment (PPE), 

including respirators, because of 

hazards to employees impose a separate 

compliance duty to each employee 

covered by the requirement. The 

employer must provide PPE to each 

employee required to use the PPE, and 

each failure to provide PPE to an 

employee may be considered a separate 

violation. 

(2) Training. Standards in this part 

requiring training on hazards and 

related matters, such as standards 

requiring that employees receive 

training or that the employer train 

employees, provide training to 

employees, or institute or implement a 

training program, impose a separate 

compliance duty to each employee 

covered by the requirement. The 

employer must train each affected 

employee in the manner required by the 

standard, and each failure to train an 

employee may be considered a separate 

violation. 

Subpart D—[Amended] 

38. The authority citation for subpart 

D of 29 CFR part 1926 is revised to read 

as follows: 

Authority: Section 3704 of the Contract 

Work Hours and Safety Standards Act (40 

U.S.C. 3701 et seq.); Sections 4, 6, and 8 of 

the Occupational Safety and Health Act of 

1970 (29 U.S.C. 653, 655, and 657); Secretary 

of Labor’s Orders 12–71 (36 FR 8754), 8–76 

(41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 

FR 9033), 6–96 (62 FR 111), 3–2000 (62 FR 

50017), 5–2002 (67 FR 650008); or 5–2007 

(72 FR 31160) as applicable; and 29 CFR part 

11. 

Sections 1926.58, 1926.59, 1926.60, and 

1926.65 also issued under 5 U.S.C. 553 and 

29 CFR part 1911. 

Section 1926.62 of 29 CFR also issued 

under section 1031 of the Housing and 

Community Development Act of 1992 (42 

U.S.C. 4853). 

Section 1926.65 of 29 CFR also issued 

under section 126 of the Superfund 

Amendments and Reauthorization Act of 

1986, as amended (29 U.S.C. 655 note), and 

5 U.S.C. 553. 


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39. In section 1926.60, paragraph 

(i)(1) introductory text and (i)(2) are 

revised to read as follows: 

§ 1926.60 Methylenedianiline. 

* * * * * 

(i) * * * 

(1) General. For employees who use 

respirators required by this section, the 

employer must provide each employee 

an appropriate respirator that complies 

with the requirements of this paragraph. 

Respirators must be used during: 

* * * * * 

(2) Respirator program. The employer 

must implement a respiratory protection 

program in accordance with 

§ 1910.134(b) through (d) (except 

(d)(1)(iii)), and (f) through (m) for each 

employee required by this section to use 

a respirator. 

* * * * * 

40. In section 1926.62, paragraphs 

(f)(1) introductory text, (f)(2)(i), and 

(l)(1)(ii) are revised to read as follows: 

§ 1926.62 Lead. 

* * * * * 

(f) * * * 

(1) General. For employees who use 

respirators required by this section, the 

employer must provide each employee 

an appropriate respirator that complies 

with the requirements of this paragraph. 

Respirators must be used during: 

* * * * * 

(2) * * * 

(i) The employer must implement a 

respiratory protection program in 

accordance with § 1910.134(b) through 

(d) (except (d)(1)(iii)), and (f) through 

(m) for each employee required by this 

section to use a respirator. 

* * * * * 

(l) * * * 

(ii) The employer shall train each 

employee who is subject to exposure to 

lead at or above the action level on any 

day, or who is subject to exposure to 

lead compounds which may cause skin 

or eye irritation (e.g., lead arsenate, lead 

azide), in accordance with the 

requirements of this section. The 

employer shall institute a training 

program and ensure employee 

participation in the program. 

* * * * * 

Subpart R—[Amended] 

41. The authority citation for subpart 

R of 29 CFR part 1926 is revised to read 

as follows: 

Authority: Sec. 3704, Contract Work Hours 

and Safety Standards Act (Construction 

Safety Act) (40 U.S.C. 333); Sec. 4, 6, and 8, 

Occupational Safety and Health Act of 1970 

(29 U.S.C. 653, 655, 657); Secretary of Labor’s 

Order No. 3–2000 (65 FR 50017), No. 5–2002 

(67 FR 65008), or No. 5–2007 (72 FR 31160) 

as applicable; and 29 CFR part 1911. 

42. In section 1926.761, paragraph (b) 

is revised to read as follows: 

§ 1926.761 Training. 

* * * * * 

(b) Fall hazard training. The employer 

shall train each employee exposed to a 

fall hazard in accordance with the 

requirements of this section. The 

employer shall institute a training 

program and ensure employee 

participation in the program. 

* * * * * 

Subpart Z—[Amended] 

43. The authority citation for subpart 

Z of 29 CFR part 1926 is revised to read 

as follows: 

Authority: Section 3704 of the Contract 

Work Hours and Safety Standards Act (40 

U.S.C. 3701 et seq.); Sections 4, 6, and 8 of 

the Occupational Safety and Health Act of 

1970 (29 U.S.C. 653, 655, 657); Secretary of 

Labor’s Orders 12–71 (36 FR 8754), 8–76 (41 

FR 25059), 9–83 (48 FR 35736), 1–90 (55 FR 

9033), 6–96 (62 FR 111), 3–2000 (62 FR 

50017), 5–2002 (67 FR 65008), or 5–2007 (71 

FR 31160), as applicable; and 29 CFR part 11. 

Section 1926.1102 of 29 CFR not issued 

under 29 U.S.C. 655 or 29 CFR part 1911; 

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

44. In section 1926.1101, paragraphs 

(h)(1) introductory text, (h)(2), and 

(k)(9)(i) are revised to read as follows: 

§ 1926.1101 Asbestos. 

* * * * * 

(h) * * * 

(1) General. For employees who use 

respirators required by this section, the 

employer must provide each employee 

an appropriate respirator that complies 

with the requirements of this paragraph. 

Respirators must be used during: 

* * * * * 

(2) * * * 

(i) The employer must implement a 

respiratory protection program in 

accordance with § 1910.134(b) through 

(d) (except (d)(1)(iii)), and (f) through 

(m) for each employee required by this 

section to use a respirator. 

* * * * * 

(k) * * * 

(9) * * * 

(i) The employer shall train each 

employee who is likely to be exposed in 

excess of a PEL, and each employee who 

performs Class I through IV asbestos 

operations, in accordance with the 

requirements of this section. Such 

training shall be conducted at no cost to 

the employee. The employer shall 

institute a training program and ensure 

employee participation in the program. 

* * * * * 

45. In section 1926.1126, paragraphs 

(f)(1) introductory text and (f)(2) are 

revised to read as follows: 

§ 1926.1126 Chromium (IV). 

* * * * * 

(f) * * * 

(1) General. Where respiratory 

protection is required by this section, 

the employer must provide each 

employee an appropriate respirator that 

complies with the requirements of this 

paragraph. Respiratory protection is 

required during: 

* * * * * 

(2) Respiratory protection program. 

Where respirator use is required by this 

section, the employer shall institute a 

respiratory protection program in 

accordance with § 1910.134 for each 

employee required to use a respirator. 

* * * * * 

46. In section 1926.1127, paragraphs 

(g)(1) introductory text, (g)(2)(i), and 

(m)(4)(i) are revised to read as follows: 

§ 1926.1127 Cadmium. 

* * * * * 

(g) * * * 

(1) General. For employees who use 

respirators required by this section, the 

employer must provide each employee 

an appropriate respirator that complies 

with the requirements of this paragraph. 

Respirators must be used during: 

* * * * * 

(2) * * * 

(i) The employer must implement a 

respiratory protection program in 

accordance with § 1910.134(b) through 

(d) (except (d)(1)(iii)), and (f) through 

(m) for each employee required by this 

section to use a respirator. 

* * * * * 

(m) * * * 

* * * * * 

(4) * * * 

(i) The employer shall train each 

employee who is potentially exposed to 

cadmium in accordance with the 

requirements of this section. The 

employer shall institute a training 

program, ensure employee participation 

in the program, and maintain a record 

of the contents of the training program. 

* * * * * 

[FR Doc. E8–18991 Filed 8–18–08; 8:45 am] 

BILLING CODE 4510–26–P 


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