B-174629, JAN 31, 1972, 51 COMP GEN 446

B-174629: Jan 31, 1972

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

CLOTHING AND PERSONAL FURNISHINGS - SPECIAL CLOTHING AND EQUIPMENT - HAZARDOUS OCCUPATIONS - SAFETY NECESSITY FOR EXPENDITURES BY GOVERNMENT THE PURCHASE OF PROTECTIVE CLOTHING AND EQUIPMENT FOR PERSONNEL PERFORMING HAZARDOUS DUTY IS NOT ONLY AUTHORIZED UNDER 5 U.S.C. 7903. IT IS PRESCRIBED BY SECTION 19(A) OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970. PROTECTIVE CLOTHING AND EQUIPMENT FOR PERSONNEL OPERATING SNOWMOBILES UNDER VARYING PHYSICAL CONDITIONS OVER ROUGH AND REMOTE FOREST TERRAIN MAY BE FURNISHED BY THE GOVERNMENT IF THE PURCHASE IS DETERMINED TO BE NECESSARY BECAUSE OF A PRIORITY SAFETY NEED ESTABLISHED BY THE OPERATION OF THE SAFETY MANAGEMENT PROGRAM. ARE 1 SNOWMOBILE SUIT ($45).

B-174629, JAN 31, 1972, 51 COMP GEN 446

CLOTHING AND PERSONAL FURNISHINGS - SPECIAL CLOTHING AND EQUIPMENT - HAZARDOUS OCCUPATIONS - SAFETY NECESSITY FOR EXPENDITURES BY GOVERNMENT THE PURCHASE OF PROTECTIVE CLOTHING AND EQUIPMENT FOR PERSONNEL PERFORMING HAZARDOUS DUTY IS NOT ONLY AUTHORIZED UNDER 5 U.S.C. 7903, IT IS PRESCRIBED BY SECTION 19(A) OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970, WHICH ESTABLISHES A FEDERAL SAFETY PROGRAM AND PROVIDES THAT THE HEAD OF EACH FEDERAL AGENCY HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING THE PROTECTIVE CLOTHING AND EQUIPMENT TO BE ACQUIRED AT GOVERNMENT EXPENSE FOR THE USE OF EMPLOYEES. THEREFORE, PROTECTIVE CLOTHING AND EQUIPMENT FOR PERSONNEL OPERATING SNOWMOBILES UNDER VARYING PHYSICAL CONDITIONS OVER ROUGH AND REMOTE FOREST TERRAIN MAY BE FURNISHED BY THE GOVERNMENT IF THE PURCHASE IS DETERMINED TO BE NECESSARY BECAUSE OF A PRIORITY SAFETY NEED ESTABLISHED BY THE OPERATION OF THE SAFETY MANAGEMENT PROGRAM, REGARDLESS OF WHETHER OR NOT THE PROCUREMENT SATISFIES THE REQUIREMENTS OF 5 U.S.C. 7903.

TO C. E. TIPTON, UNITED STATES DEPARTMENT OF AGRICULTURE, JANUARY 31, 1972:

BY LETTER OF NOVEMBER 4, 1971, YOU REQUESTED OUR OPINION AS TO WHETHER YOU MAY CERTIFY A VOUCHER FOR PAYMENT, INCLUDING PARCEL POST CHARGES OF $2.15, IN THE AMOUNT OF $83 COVERING THE PURCHASE OF PROTECTIVE CLOTHING AND EQUIPMENT TO BE USED BY PERSONNEL OPERATING SNOWMOBILES UNDER VARYING PHYSICAL CONDITIONS OVER ROUGH AND REMOTE FOREST TERRAIN.

THE CLOTHING AND EQUIPMENT, STATED TO BE NECESSARY BECAUSE OF THE SURVIVAL RISKS WHEN OPERATING SNOWMOBILES, ARE 1 SNOWMOBILE SUIT ($45), 1 PAIR OF SNOWMOBILE MITTENS ($3.95), 1 PAIR OF SNOWMOBILE BOOTS ($9.95), AND 1 CRASH HELMET ($16.95). THE DESIGN AND MATERIAL FEATURES OF THIS APPAREL WERE EVIDENTLY SPECIALLY SELECTED FOR PROTECTION AGAINST DAMPNESS AND LOSS OF BODY HEAT IN FREEZING WEATHER AND IN THE CASE OF THE CRASH HELMET FOR PROTECTION AGAINST HEAD INJURY, SHOULD THE OPERATOR BE THROWN FROM THE SNOWMOBILE. THESE ITEMS ARE INTENDED TO REDUCE THE RISK OF KNOWN AND IDENTIFIED HAZARDS: HEAD INJURIES, TEMPERATURES OF 32 DEGS THROUGH -35 DEGS AND WIND OF 30 M.P.H. PRODUCING A CHILL FACTOR OF -35 DEGS F. THROUGH -90 DEGS F. WHEN TRAVELING IN THE SNOWMOBILE WITHOUT A CAB OR HEATER, AND FREQUENT MECHANICAL BREAKDOWNS OF SNOWMOBILES IN ISOLATED FOREST AREAS IN SOME CASES REQUIRING THE OPERATOR TO SPEND THE NIGHT WITHOUT SHELTER AT FREEZING TEMPERATURES BEFORE RESCUE.

YOUR LETTER STATES IN PART AS FOLLOWS:

IT IS OUR FEELING THAT THE GOVERNMENT SHOULD NOT REQUIRE ITS EMPLOYEES, PARTICULARLY THOSE WHO PERFORM SNOWMOBILE TRAVEL INFREQUENTLY, TO PROVIDE THIS TYPE OF SURVIVAL CLOTHING AND EQUIPMENT FOR WHICH THE EMPLOYEE MAY HAVE NO NEED FOR OTHERWISE. THIS APPEARS TO BE THE TYPE OF PROTECTION AGAINST SPECIAL HAZARDS INHERENT IN THE NATURE AND KIND OF TRAVEL REQUIRED BY THE GOVERNMENT, THE COST OF WHICH IS AUTHORIZED BY 5 U.S.C. 7903. THE OFFICIAL PURCHASE OF SUCH SPECIAL CLOTHING AND EQUIPMENT WOULD NOT BE FOR ANY SPECIFIC EMPLOYEE OR EMPLOYEES, BUT WOULD BE FOR THE USE OF EMPLOYEES GENERALLY AS THE OFFICIAL NEEDS ARISE.

APPROPRIATIONS AVAILABLE FOR THE PROCUREMENT OF SUPPLIES AND MATERIAL OR EQUIPMENT ARE AVAILABLE FOR THE PURCHASE AND MAINTENANCE OF SPECIAL CLOTHING AND EQUIPMENT FOR THE PROTECTION OF PERSONNEL IN THE PERFORMANCE OF THEIR ASSIGNED TASKS. FOR THE PURPOSE OF THIS SECTION, "APPROPRIATIONS" INCLUDES FUNDS MADE AVAILABLE BY STATUTE UNDER SECTION 849 OF TITLE 31.

WE HAVE HELD IN NUMEROUS DECISIONS CONSTRUING THE FOREGOING PROVISION OF LAW THAT (1) THE CLOTHING AND EQUIPMENT MUST BE "SPECIAL" AS OPPOSED TO AN ITEM THE EMPLOYEE ORDINARILY IS EXPECTED TO PROVIDE FOR HIMSELF AS A PERSONAL ITEM RATHER THAN FOR THE BENEFIT OF THE GOVERNMENT AND (2) THAT THE CLOTHING AND EQUIPMENT ARE FOR THE PROTECTION OF AN EMPLOYEE WHO IS ENGAGED IN HAZARDOUS WORK. SEE 32 COMP. GEN. 229 (1952); B-122484, FEBRUARY 15, 1955; B-123223, JUNE 22, 1955.

IN ADDITION TO 5 U.S.C. 7903, SUBSECTION 19(A) OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970, APPROVED DECEMBER 29, 1970, PUBLIC LAW 91-596, 84 STAT. 1590, 1609, 29 U.S.C. 668(A), PROVIDES IN PART AS FOLLOWS:

IT SHALL BE THE RESPONSIBILITY OF THE HEAD OF EACH FEDERAL AGENCY TO ESTABLISH AND MAINTAIN AN EFFECTIVE AND COMPREHENSIVE OCCUPATIONAL SAFETY AND HEALTH PROGRAM WHICH IS CONSISTENT WITH THE STANDARDS PROMULGATED UNDER SECTION 6. THE HEAD OF EACH AGENCY SHALL (AFTER CONSULTATION WITH REPRESENTATIVES OF THE EMPLOYEES THEREOF) -

(1) PROVIDE SAFE AND HEALTHFUL PLACES AND CONDITIONS OF EMPLOYMENT, CONSISTENT WITH THE STANDARDS SET UNDER SECTION 6;

(2) ACQUIRE, MAINTAIN, AND REQUIRE THE USE OF SAFETY EQUIPMENT, PERSONAL PROTECTIVE EQUIPMENT, AND DEVICES REASONABLY NECESSARY TO PROTECT EMPLOYEES;

(3) KEEP ADEQUATE RECORDS OF ALL OCCUPATIONAL ACCIDENTS AND ILLNESSES FOR PROPER EVALUATION AND NECESSARY CORRECTIVE ACTION; ***

ADDITIONAL PROVISIONS OF SECTION 19 OUTLINE THE ROLE OF THE SECRETARY OF LABOR IN THE FEDERAL SAFETY PROGRAM. IT IS CLEAR THAT PURSUANT TO SUBSECTION 19(A) THE HEAD OF EACH FEDERAL AGENCY HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING THE PROTECTIVE CLOTHING AND EQUIPMENT TO BE ACQUIRED AT GOVERNMENT EXPENSE FOR THE USE OF EMPLOYEES.

UNDER CLAUSE (1) OF SUBSECTION (A), THE AGENCY SAFETY PROGRAM MUST BE CONSISTENT WITH THE HEALTH AND SAFETY STANDARDS PROMULGATED BY THE SECRETARY OF LABOR IN ACCORDANCE WITH SECTION 6 OF THE ACT. THE SECRETARY OF LABOR'S GENERAL STANDARD FOR PERSONAL PROTECTIVE EQUIPMENT WAS PUBLISHED MAY 29, 1971, AT 36 FEDERAL REGISTER (F.R.) 10590, ADDING SECTION 1910.132 TO TITLE 29 OF THE CODE OF FEDERAL REGULATIONS (CFR) AS ONE ITEM IN A COMPREHENSIVE SET OF OCCUPATIONAL SAFETY AND HEALTH STANDARDS BEGINNING AT 36 F.R. 10466, ADDING PART 1910 TO 29 CFR. SUBSECTION 1910.132(A) PROVIDES AMONG OTHER THINGS THAT PROTECTIVE EQUIPMENT, INCLUDING PERSONAL PROTECTIVE EQUIPMENT FOR EYES, FACE, HEAD AND EXTREMITIES, AND PROTECTIVE CLOTHING, SHALL BE PROVIDED, USED AND MAINTAINED WHEREVER IT IS NECESSARY BY REASON OF HAZARDS OF PROCESSES OR ENVIRONMENT ENCOUNTERED IN A MANNER CAPABLE OF CAUSING INJURY OR PHYSICAL IMPAIRMENT. SECTIONS 1910.133-1910.136 CONTAIN STANDARDS FOR, RESPECTIVELY, EYE AND FACE PROTECTION, RESPIRATORY PROTECTION, OCCUPATIONAL HEAD PROTECTION, OCCUPATIONAL FOOT PROTECTION AND ELECTRICAL PROTECTIVE DEVICES.

NOTWITHSTANDING ANY DOUBT, AND WE HAVE NONE, AS TO WHETHER THE INSTANT PROCUREMENT OF CLOTHING MEETS THE STANDARDS SET FORTH IN OUR DECISIONS UNDER 5 U.S.C. 7903, SUCH CLOTHING COULD BE ADMINISTRATIVELY DETERMINED TO BE NECESSARY BECAUSE OF A PRIORITY SAFETY NEED ESTABLISHED BY THE OPERATION OF THE SAFETY MANAGEMENT PROGRAM PRESCRIBED UNDER SECTION 19 OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970, AND EXECUTIVE ORDER NO. 11612.

ACCORDINGLY, IF THE CLOTHING AND EQUIPMENT IN QUESTION HAS BEEN OR IS ADMINISTRATIVELY DETERMINED TO BE NECESSARY AS DESCRIBED IN THE PRECEDING PARAGRAPH, THE VOUCHER MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT. THE VOUCHER AND THE SUPPORTING DOCUMENTS ARE RETURNED HEREWITH.