46706 Federal Register / Vol. 88, No. 138 / Thursday, July 20, 2023 / Proposed Rules 

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privacy-policy. 

By direction of the Commission. 

April J. Tabor, 

Secretary. 

[FR Doc. 2023–15415 Filed 7–19–23; 8:45 am] 

BILLING CODE 6750–01–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1926 

[Docket No. OSHA–2019–0003] 

RIN 1218–AD25 

Personal Protective Equipment in 

Construction 

AGENCY: Occupational Safety and Health 

Administration (OSHA); Labor. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: OSHA is proposing to revise 

its personal protective equipment 

standard in construction to explicitly 

require that the equipment must fit 

properly. The agency requests 

comments regarding the proposed 

revision. 

DATES: Submit comments and 

attachments, as well as hearing requests 

and other information, by September 18, 

2023. All submissions must provide 

evidence of the submission date. (See 

the following section titled ADDRESSES

for instructions on making 

submissions.) 

ADDRESSES: Comments may be 

submitted as follows: 

Written comments: You may submit 

comments and attachments, as well as 

hearing requests and other information, 

identified by OSHA Docket No. OSHA– 

2019–0003, electronically at http:// 

www.regulations.gov, which is the 

Federal eRulemaking Portal. Follow the 

online instructions for submitting 

comments. 

Instructions: All submissions must 

include the agency’s name and docket 

number for this rulemaking (Docket No. 

OSHA–2019–0003). All comments, 

including any personal information you 

provide, are placed in the public docket 

without change and may be made 

available online at http://

www.regulations.gov. Therefore, OSHA 

cautions interested parties about 

submitting personal information such as 

Social Security numbers and birthdates. 

Docket: To read or download 

comments or other information in the 

docket, go to http:// 

www.regulations.gov. All comments and 

submissions are listed in the http:// 

www.regulations.gov index; however, 

some information (e.g., copyrighted 

material) is not publicly available to 

read or download through that website. 

All comments and submissions, 

including copyrighted material, are 

available for inspection through the 

OSHA Docket Office. Contact the OSHA 

Docket Office at (202) 693–2500 (TDY 

number 877–889–5627) for assistance in 

locating docket submissions. 

FOR FURTHER INFORMATION CONTACT: 

Press inquiries: Frank Meilinger, 

Director, OSHA Office of 

Communications, telephone: (202) 693– 

1999; email: meilinger.francis2@dol.gov. 

General and technical inquiries: 

Vernon Preston, OSHA Directorate of 

Construction, telephone: (202) 693– 

2020; email: preston.vernon@dol.gov. 

Copies of this Federal Register 

notice and news releases: Electronic 

copies of these documents are available 

at OSHA’s web page at http://

www.osha.gov. 

Citation Method 

In the docket for the personal 

protective equipment in construction 

rulemaking, found at http://

www.regulations.gov, every submission 

was assigned a document identification 

(ID) number that consists of the docket 

number (OSHA–2019–0003) followed 

by an additional four-digit number (e.g., 

OSHA–2019–0003–0002). In this notice 

of proposed rulemaking, citations to 

items in the docket are referenced by 

author or title and date, where 

appropriate. This information can be 

used to search for a supporting 

document in the docket at http://

www.regulations.gov. For example, the 

citation for the OSHA Publication 

Personal Protective Equipment is 

(Personal Protective Equipment, OSHA 

3151–12R, 2004). Some citations 

include one or more attachments (see, 

e.g., NABTU, January 5, 2017, 

Attachment 1). When citing exhibits in 

the docket, OSHA references the author 

or title of the document, the date, the 

attachment number or other attachment 

identifier, if necessary for clarity, and 

page numbers (designated ‘‘p.’’). In a 

citation that contains two or more 

documents, the citations are separated 

by semicolons. OSHA may also cite 

items that appear in another docket. 

When that is the case, OSHA includes 

the full document ID number for the 

corresponding docket (e.g., OSHA– 

2010–0034–4247). 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Executive Summary 

II. Background 

A. OSHA’s PPE Requirements 

B. Rulemaking History 

C. Comments Received During the SIP–IV 

Rulemaking 

D. Consideration of National Consensus 

Standards 

III. Discussion of Proposed Changes 

A. Section 1926.95(c) 


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B. The Existing Standard 

C. Properly Fitting PPE 

D. OSHA Enforcement of PPE Fit 

Requirements 

E. Issues for Comment 

IV. Agency Determinations 

A. Legal Authority 

B. Significant Risk 

C. Preliminary Economic Analysis and 

Regulatory Flexibility Act Certification 

D. Office of Management and Budget 

(OMB) Review Under the Paperwork 

Reduction Act 

E. Federalism 

F. State Plans 

G. Unfunded Mandates Reform Act 

H. Consultation and Coordination With 

Indian Tribal Governments 

I. Executive Summary 

OSHA is proposing to revise its 

Personal Protective Equipment (PPE) 

standard for construction, at 29 CFR 

1926.95(c), to explicitly state that PPE 

must fit properly to protect workers 

from workplace hazards. This revision 

would align the language in the PPE 

standard for construction with the 

corresponding language in OSHA’s PPE 

standards for general industry and 

maritime and affirm OSHA’s 

interpretation of its PPE standard for 

construction as requiring properly 

fitting PPE. Properly fitting PPE is a 

critical element of an effective 

occupational safety and health program. 

PPE must fit properly in order to 

provide adequate protection to 

employees. Improperly fitting PPE may 

fail to provide any protection to an 

employee, may present additional 

hazards, or may discourage employees 

from using such equipment in the 

workplace. 

The Preliminary Economic Analysis 

to this rulemaking demonstrates that 

this rule is not economically significant 

or a major rule. Because this proposal 

clarifies an existing requirement, the 

agency preliminarily concludes that the 

rule is not expected to impose new costs 

on employers as a result of a new 

regulatory requirement. OSHA normally 

assumes full compliance with existing 

requirements when performing its 

analysis of costs related to a new or 

amended standard. However, in this 

case, the purpose of the proposed rule 

is to clarify an existing requirement 

about which there may be confusion in 

the regulated community. OSHA 

therefore seeks public comment on the 

impact of this clarification, if any, on 

current employer behavior. 

To the extent the clarification in this 

rule could result in changes in behavior 

among some employers, OSHA has 

provided an estimate of the costs for a 

specified proportion of employers to 

come into compliance with the alreadyexisting requirement to provide 

properly fitting PPE. This analysis is 

being provided as a starting point for 

public comments and to demonstrate 

that, even if there were costs to this rule 

as a result of changed employer 

behavior, the rule would be feasible to 

implement. OSHA’s cost analysis 

indicates that the one-time cost of this 

rulemaking to the construction industry, 

attributable to potential changes in 

employer behavior, could be 

approximately $545,000. To the extent 

that the rulemaking record indicates 

there will be changes in employer 

behavior, and associated costs, as a 

result of the proposed clarification, 

OSHA expects that worker safety and 

health will benefit. 

II. Background 

A. OSHA’s PPE Requirements 

Section 6(b)(7) of the OSH Act, 29 

U.S.C. 655(b)(7), authorizes OSHA to 

include requirements for protective 

equipment within its safety and health 

standards. PPE is worn by employees to 

minimize exposure to hazards that can 

cause severe injuries and illnesses in the 

workplace. These injuries and illnesses 

may result from contact with chemical, 

radiological, physical, electrical, 

mechanical, or other hazards. PPE 

includes many different types of 

protective equipment, such as hard hats, 

gloves, goggles, safety shoes, safety 

glasses, welding helmets and goggles, 

hearing protection devices, respirators, 

coveralls, vests, and full body suits. 

OSHA has specific standards that 

address PPE in general industry, 

shipyard employment, maritime 

terminals, longshoring, and 

construction. These standards require 

employers to provide PPE when it is 

necessary to protect employees from 

job-related injuries, illnesses, and 

fatalities. With few exceptions, OSHA 

requires employers to pay for PPE when 

it is used to comply with an OSHA 

standard. In addition, the PPE standards 

for general industry (29 CFR 

1910.132(d)(1)(iii)) and maritime (29 

CFR 1915.152(b)(3)) include a specific 

requirement that employers select PPE 

that properly fits each affected 

employee. 

OSHA’s standard at 29 CFR 1926.95 

sets out the requirements for PPE in 

construction. Section 1926.95(a) 

provides that all types of PPE ‘‘shall be 

provided, used, and maintained in a 

sanitary and reliable condition 

whenever it is necessary by reason of 

hazards.’’ Section 1926.95(b) goes on to 

provide that, even when employees 

provide their own PPE, ‘‘the employer 

shall be responsible to assure its 

adequacy, including proper 

maintenance, and sanitation of such 

equipment.’’ Section 1926.95(c) 

provides that all PPE ‘‘shall be of safe 

design and construction for the work to 

be performed.’’ Unlike the general 

industry and maritime PPE standards, 

the current PPE construction standard at 

section 1926.95 does not include an 

explicit requirement that PPE properly 

fit each affected employee. 

PPE must fit properly in order to 

provide adequate protection to 

employees. If PPE does not fit properly, 

it can make the difference between an 

employee being safely protected or 

dangerously exposed. In some cases, illfitting PPE may not protect an employee 

at all, and in other cases it may present 

additional hazards to that employee, 

and to employees who work around 

them. For example, sleeves of protective 

clothing that are too long or gloves that 

do not fit properly may make it difficult 

to use tools or control equipment, 

putting other workers at risk of exposure 

to hazards. The legs of protective 

garments that are too long could cause 

tripping hazards and impact others 

working near the worker with 

improperly fitting PPE. The issue of 

improperly fitting PPE is particularly 

important for smaller construction 

workers, including some women, who 

may not be able to use standard size 

PPE. Fit problems can also affect larger 

workers, especially with regard to the 

size of certain harnesses. 

B. Rulemaking History 

The Advisory Committee on 

Construction Safety and Health 

(ACCSH) is a continuing advisory body 

established by statute (40 U.S.C. 3701 et 

seq.) that provides advice and assistance 

to the OSHA Assistant Secretary on 

construction standards and policy 

matters. The issue of proper PPE fit in 

construction was discussed at the 

ACCSH meeting held on July 28, 2011. 

At that meeting, the committee 

unanimously passed a motion 

recommending that OSHA use the 

Standards Improvement Project-Phase 

IV (SIP–IV) rulemaking ‘‘to update the 

Construction PPE Standards to mirror 

the General Industry PPE requirements, 

specifically that PPE fit the employee 

who will use it . . . .’’ (ACCSH Meeting 

Minutes, July 28, 2011). On December 

16, 2011, ACCSH unanimously passed 

another motion recommending that 

OSHA consider using the SIP–IV 

rulemaking to revise the construction 

standards to include the requirement 

that PPE properly fit construction 

workers. (ACCSH Meeting Transcript, 

December 16, 2011, pp. 144–148). 

On December 6, 2013, OSHA issued a 

SIP–IV Request for Information (RFI) 


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asking the public ‘‘to identify provisions 

in OSHA standards that are confusing or 

outdated, or that duplicate, or are 

inconsistent with, the provisions of 

other standards, either OSHA standards 

or the standards of other agencies.’’ 

(SIP–IV RFI, December 6, 2013). In 

response, several commenters, 

including the AFL–CIO and the 

International Safety Equipment 

Association (ISEA), recommended that 

OSHA use the SIP–IV rulemaking to 

revise its construction PPE standard to 

ensure that PPE properly fits all 

construction employees. (AFL–CIO, 

February 13, 2013; ISEA, February 4, 

2013). 

Based on stakeholder suggestions, on 

October 4, 2016, OSHA published the 

SIP–IV Notice of Proposed Rulemaking 

(NPRM) in the Federal Register. (SIP–IV 

NPRM, October 4, 2016). Among other 

things, OSHA proposed revising 29 CFR 

1926.95(c) to include an explicit 

requirement that PPE must properly fit 

each affected employee. In the preamble 

to the SIP–IV NPRM, OSHA stated that 

the proposed revision would ‘‘clarify 

the construction PPE requirements on 

this point and make them consistent 

with general industry PPE 

requirements.’’ (SIP–IV NPRM, October 

4, 2016). Additionally, OSHA stated that 

clarifying the requirement would ‘‘help 

ensure employers provide employees 

with properly fitting PPE, thereby 

adequately protecting employees 

exposed to hazards requiring PPE.’’ 

(SIP–IV NPRM, October 4, 2016). 

OSHA received several comments 

specifically addressing the proposed 

revision to section 1926.95(c) in the 

SIP–IV NPRM. Some commenters fully 

supported the proposed revision while 

a coalition of construction industry 

stakeholders opposed it. OSHA 

discusses the specific comments 

received during the SIP–IV rulemaking 

in the next section of this preamble. 

Based on the comments received, and 

the rulemaking record, on May 13, 2019, 

OSHA published the SIP–IV final rule 

in the Federal Register. (SIP–IV Final 

Rule, May 13, 2019). The final rule did 

not include the proposed revision to the 

construction standard at section 

1926.95(c). Instead, OSHA determined 

that such a revision to the construction 

PPE standard should occur in a separate 

rulemaking outside the SIP process. In 

the preamble to the final rule, OSHA 

explained that proposing to revise the 

PPE requirements separate from the 

SIP–IV rulemaking ‘‘would provide the 

public with broader notice of the 

proposal, encourage robust commentary, 

and better inform OSHA’s approach to 

employer obligations and worker safety 

in relation to PPE used in construction.’’ 

(SIP–IV Final Rule, May 13, 2019). 

On July 17, 2019, OSHA presented a 

draft proposed rule to ACCSH for its 

recommendation, as required by the 

advisory committee for construction 

regulation at 29 CFR 1912.3(a). The 

committee asked OSHA to review 

enforcement statistics on PPE fit and 

consider including guidelines for what 

constitutes ‘‘proper fit.’’ (ACCSH 

Meeting Transcript, July 17, 2019). One 

member of ACCSH expressed concern 

that OSHA would require employers to 

present a ‘‘fit verification’’ to an OSHA 

compliance officer during a workplace 

inspection. In response, OSHA 

explained that the proposed rule would 

not change how employers currently 

assess the PPE needs of their workers. 

OSHA also explained that the proposed 

revision had been included in the SIP– 

IV rulemaking in an effort to make the 

construction standard consistent with 

the general industry and maritime PPE 

standards. In addition, while some 

ACCSH members did not believe there 

would be a cost associated with the 

proposed rule, one member asked 

OSHA to consider cost closely given the 

transient nature of the construction 

industry. After the period for comments 

and questions ended, ACCSH 

unanimously passed a motion 

recommending that OSHA move 

forward with the proposed rule. 

C. Comments Received During the SIP– 

IV Rulemaking 

OSHA received four comments on the 

proposed revision of § 1926.95(c) in 

response to the SIP–IV NPRM. The 

Laborers’ Health & Safety Fund of North 

America (LHSFNA) and North 

America’s Building Trades Union 

(NABTU) both supported the proposed 

revision to clarify that PPE must 

properly fit each affected employee. 

(LHSFNA, January 5, 2017; NABTU, 

January 5, 2017, Attachment 1). Both 

commenters also stated that improperly 

fitting PPE can limit or negate the ability 

of the PPE to protect employees. 

According to NABTU, ‘‘[t]his is 

particularly important for women in the 

construction industry, who often have 

difficulty obtaining properly fitting 

PPE.’’ (NABTU, January 5, 2017, 

Attachment 1, p. 6). LHSFNA 

commented that the fit problem can also 

affect men, including with respect to 

harness sizes for men who are over 

certain weight limits. (LHSFNA, January 

5, 2017, p. 3). NABTU stated that the 

proposed revision would not only make 

the construction standard consistent 

with the general industry standard, but 

was also supported by worker 

organizations, safety associations, and 

ACCSH. (NABTU, January 5, 2017, 

Attachment 1, p. 6). 

OSHA also received a comment in 

support of the proposed revision from 

Emmanuel Omeike (Omeike, December 

4, 2016), a safety professional, which 

included two studies addressing PPE 

and women in construction. (Omeike, 

December 4, 2016, Attachments 3, 4). 

The comment noted examples of several 

employees who were wearing PPE, but 

nonetheless sustained injuries due to 

improper fit. (Omeike, December 4, 

2016, p. 10). Mr. Omeike stated that 

employees are more likely to remove 

improperly fitting PPE, thus negating 

whatever protection the PPE might 

otherwise provide. (Omeike, December 

4, 2016, pp. 11–12). Lastly, the 

commenter stated that prevention 

through design can eliminate many 

costs associated with PPE because PPE 

designed to be adjustable and 

customizable can prevent employee 

exposure to hazards created by 

improperly fitting PPE. 

Additionally, OSHA received 

comments from the Construction 

Industry Safety Coalition (CISC) (CISC, 

January 4, 2017) opposing the proposed 

revision to section 1926.95(c). This 

commenter raised concerns about the 

possible impact the proposed revision 

would have on the construction 

industry, the definition of ‘‘properly 

fits,’’ employer confusion regarding 

compliance, and whether the SIP–IV 

rulemaking was the appropriate means 

to revise the standard. ‘‘CISC does not 

believe that OSHA seriously considered 

the full impact this revision will have 

on employers and the construction 

industry in general. While the proposed 

revision only adds a few new words, its 

broad scope covers a wide variety of 

PPE and situations that are not fully 

appreciated in the SIP–IV . . . Placing 

an explicit requirement that employers 

must ensure that all types of 

construction PPE ‘properly fits’ all 

different sized employees in all different 

situations would be a monumental task 

which in many cases is not necessary 

and will not improve safety. Moreover, 

the proposed revision fails to provide 

adequate notice to employers as to what 

‘properly fit’ would mean. Does this 

mean that an employee who complains 

that a hard hat is uncomfortable does 

not ‘properly fit’ or what about arc-flash 

clothing that may be too long in the legs 

for one employee, does this not properly 

fit?’’ (CISC, January 4, 2017, p. 7). CISC 

also commented that revising 

§ 1926.95(c) to include an explicit 

requirement that all PPE fit properly 

‘‘greatly changes the dynamic of th[e] 

standard and places enormous new 

responsibilities on construction 


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employers.’’ The comment went on to 

state that the proposed revision does not 

simply clarify the standard, but ‘‘opens 

up construction employers to subjective 

standards of whether particular PPE fits 

properly and what steps employers 

must take to ensure that such PPE fits 

properly, particularly when most PPE 

does not come in exact sizing for 

employees.’’ (CISC, January 4, 2017, p. 

8). CISC added that, in many cases, 

whether PPE properly fits is subjective 

and that it would be difficult for 

employers in construction to assess PPE 

for many employees of varying sizes in 

every situation. ‘‘[T]he subjective nature 

of this standard would greatly increase 

the potential for enforcement actions 

without giving employers fair notice of 

what is required.’’ (CISC, January 4, 

2017, p. 8). 

CISC also stated that it disagreed with 

OSHA’s statement in the preamble to 

the SIP–IV proposed rule that applying 

the same standard to construction 

employers will have the same effect or 

benefit as in general industry. The 

comment emphasized that the types and 

need for PPE vary greatly in 

construction, therefore adding a new fit 

requirement will create more of a 

burden for construction employers. 

(CISC, January 4, 2017, p. 8). CISC also 

argued that SIP–IV was not the 

appropriate avenue for making the 

proposed change, and urged OSHA to 

embark on ‘‘a more thorough and 

complete rulemaking process which 

gives fair notice to the regulated 

community and will allow the agency to 

receive comments from the regulated 

community as to the impact and 

implications that this change would 

have on employers.’’ (CISC, January 4, 

2017, p. 8). 

In response to the comments provided 

by CISC, OSHA acknowledges that there 

is a wide variety of PPE and hazards in 

the construction industry. To protect 

workers from these varied hazards in 

the construction industry, it is critical 

that workers’ PPE fit them properly. 

OSHA used the phrase ‘‘proper fit’’ in 

the SIP–IV rulemaking because that is 

the phrase used in OSHA’s general 

industry and maritime PPE standards. 

The agency’s intention throughout the 

SIP–IV rulemaking was to apply the 

proposed ‘‘properly fits’’ provision in 

the same manner as in general industry 

and maritime. OSHA further notes that 

the addition of the ‘‘properly fits’’ 

provision to the general industry 

standard was made for the same reason 

it was proposed during the SIP–IV 

rulemaking— that standard-sized PPE 

does not fit all employees, particularly 

women. (See 59 FR 16334 (April 6, 

1994)). OSHA’s experience is that 

employers in general industry have had 

no issue understanding the phrase 

‘‘properly fits’’ with regard to PPE. 

Finally, as stated in the preamble to 

the SIP–IV final rule, ‘‘the purpose of 

SIP–IV is to remove or revise outdated, 

duplicative, unnecessary, and 

inconsistent requirements in OSHA’s 

safety and health standards.’’ (SIP–IV 

Final Rule, May 13, 2019). Given the 

limited purposes of SIP–IV, and the 

comments on the PPE revision 

described above, OSHA determined not 

to finalize the revision to § 1926.95(c) in 

the SIP–IV rulemaking. Instead, OSHA 

concluded that such a change to the PPE 

construction standard should take place 

outside the SIP process. OSHA believes 

that by proposing this change 

independently of the SIP rulemaking 

process, the agency in this case is 

encouraging robust public comment. As 

a result, OSHA expects that its approach 

to employer obligations and worker 

safety in relation to properly fitting PPE 

in construction will be better informed. 

In addition, many of the specific issues 

raised by commenters during the SIP–IV 

rulemaking have been considered by 

OSHA and are addressed elsewhere in 

this preamble. 

D. Consideration of National Consensus 

Standards 

In adopting a standard, section 6(b)(8) 

of the OSH Act (29 U.S.C. 655(b)(8)) 

requires OSHA to consider national 

consensus standards; where the agency 

decides to depart from the requirements 

of a national consensus standard, it 

must explain why the OSHA standard 

better effectuates the purposes of the 

OSH Act. OSHA has reviewed national 

consensus standards on PPE and 

determined that it would better 

effectuate the purposes of the OSH Act 

to revise OSHA’s existing construction 

standard as described in this proposed 

rule. 

There are many consensus standards 

that address PPE, with each standard 

focusing on a different type of 

equipment. For example, OSHA 

incorporates by reference American 

National Standards Institute (ANSI) 

Z87.1, Occupational and Educational 

Personal Eye and Face Protection 

Devices, and ANSI Z89.1, Head 

Protection, into its construction 

standards. However, there are several 

other PPE consensus standards that 

address not only different types of PPE, 

but also different uses for that PPE, such 

as NFPA 2113, Standard on Selection, 

Care, Use, and Maintenance of FlameResistant Garments for Protection of 

Industrial Personnel Against Flash Fire. 

Rather than adopting each PPE 

consensus standard, and whatever 

language it may include on proper fit, 

OSHA proposes to revise its existing 

construction standard to make it clear 

that all types of PPE used in the 

workplace must fit properly. OSHA 

believes that centralizing the 

requirement in the OSHA construction 

standard will make employers more 

aware of their responsibility to ensure 

that PPE used to protect workers from 

hazards must fit properly. 

Additionally, many consensus 

standards do not include mandatory 

language. For example, both of the ANSI 

standards discussed above include 

specific language concerning properly 

fitting PPE. However, while ANSI Z87.1 

discusses the importance of properly 

fitting eye and face protection, the 

standard does not include mandatory 

language regarding its use. Similarly, 

rather than including mandatory 

language, ANSI Z89.1 merely refers 

users of head protection equipment to 

the manufacturer for advice on proper 

fit. The revision to section 1926.95(c) 

outlined in this proposed rule would 

make properly fitting PPE an 

enforceable requirement rather than the 

non-mandatory suggestions contained in 

these consensus standards. The agency 

believes that a clear and explicit 

enforceable requirement will help 

ensure that employers provide 

employees with properly fitting PPE. 

OSHA requests comment on whether 

this proposal will better effectuate the 

purposes of the OSH Act than the 

applicable national consensus 

standards. 

III. Discussion of Proposed Changes 

A. Section 1926.95(c) 

Based on the information collected 

from stakeholders, the 

recommendations from ACCSH, 

comments received during the SIP–IV 

rulemaking, and the important role 

properly fitting PPE plays in protecting 

workers, OSHA proposes to amend 29 

CFR 1926.95(c) to explicitly require 

employers to ensure that all PPE that is 

selected properly fits each affected 

employee. Current § 1926.95(c) states 

‘‘All personal protective equipment 

shall be of safe design and construction 

for the work to be performed.’’ However, 

unlike OSHA’s general industry and 

maritime standards, the current 

standard for construction does not 

contain an explicit requirement that PPE 

must properly fit each affected 

employee. 

OSHA proposes to amend section 

1926.95(c) to include the requirement, 

in subparagraph (c)(2), that employers 

select PPE that properly fits each 

affected employee. OSHA also proposes 


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to move the current language in section 

1926.95(c) regarding safe design and 

construction to subparagraph (c)(1). As 

proposed, paragraph (c) would include 

language requiring employers to ensure 

that both requirements in subparagraphs 

(c)(1) and (c)(2) are met. OSHA believes 

that adding the language explicitly 

requiring properly fitting PPE in 

proposed subparagraph (c)(2) will help 

to ensure that employees are provided 

with PPE that protects them from 

workplace hazards. 

OSHA requests comment on the 

proposed language in § 1926.95(c). 

Specifically, is the proposed language, 

which is consistent with OSHA’s 

general industry and maritime 

standards, appropriate? Why or why 

not? Should subparagraph (c) include 

different language regarding the proper 

fit of PPE? If yes, what should the 

different language be, and why? 

B. The Existing Standard 

Although OSHA is proposing to add 

clarifying language to the current PPE 

construction standard to improve 

awareness of the requirement for 

properly fitting PPE, OSHA has 

historically interpreted the language in 

the current PPE construction standard to 

require all PPE to properly fit each 

affected employee. Specifically, 29 CFR 

1926.95(a) provides that PPE ‘‘shall be 

provided [and] used . . . [in a] reliable 

condition wherever it is necessary by 

reason of hazards.’’ PPE is thus 

‘‘necessary’’ when hazards exist in the 

workplace, but ill-fitting PPE is not ‘‘in 

a reliable condition’’ because it risks 

failing to mitigate the hazards that make 

the PPE necessary. For instance, if 

hazardous chemicals make PPE in the 

form of reliable protective clothing or a 

face shield necessary, ill-fitting PPE may 

fail to reliably protect the worker from 

exposure to those hazardous chemicals. 

Similarly, under subsection (b), 

employers must assure the ‘‘adequacy’’ 

of employees’ own PPE. PPE is 

manifestly inadequate if the fit is so 

poor it cannot perform its protective 

function. Also, it would make little 

sense to require employee-provided PPE 

to be adequate, but not to require the 

same of employer-provided PPE. Lastly, 

subsection (c) requires that PPE must be 

‘‘of safe design . . . for the work to be 

performed.’’ This provision requires that 

the specific design of the PPE, which 

would include its measurements and 

size, be safe for the work to be 

performed by each individual worker. 

OSHA’s PPE standard for construction 

requires action from the employer to 

protect each individual worker. 

Subsection (a) of section 1926.95 

requires employers to assess the actual 

hazards to employees in their 

workplaces and provide PPE whenever 

it is necessary to protect against those 

hazards, and subsection (b) requires 

employers to assess the adequacy, 

including the maintenance and 

sanitation, of employee-provided PPE— 

which an employer can only do by 

reviewing each piece of PPE 

individually. Finally, it is not logical to 

read subsection (c) as only requiring 

that the PPE be safely designed in the 

abstract. For example, gloves may be 

safely designed to protect against a 

particular hazard, but they may not be 

safely designed for a worker whose 

hands are so small that the gloves fall 

off throughout the workday or get 

caught in the machinery the worker is 

required to use. 

An examination of OSHA’s guidance 

addressing PPE use in the construction 

industry reinforces OSHA’s 

longstanding position that PPE used in 

construction must fit properly to protect 

workers from hazards. These guidance 

documents expressly state that PPE 

should fit properly and explain the 

hazards of ill-fitting PPE. The OSHA 

publication Personal Protective 

Equipment, which explains that ‘‘the 

information methods, and procedures 

. . . are based on the OSHA 

requirements for PPE,’’ including 

§ 1926.95, states ‘‘Employers should 

take the fit and comfort of PPE into 

consideration when selecting 

appropriate items for their workplace. 

PPE that fits well and is comfortable to 

wear will encourage employee use of 

PPE. Most protective devices are 

available in multiple sizes and care 

should be taken to select the proper size 

for each employee. If several different 

types of PPE are worn together, make 

sure they are compatible. If PPE does 

not fit properly, it can make the 

difference between being safely covered 

or dangerously exposed. It may not 

provide the level of protection desired 

and may discourage employee use.’’ 

(Personal Protective Equipment, OSHA 

3151–12R, 2004, p. 8). OSHA’s Fact 

Sheet on Personal Protective Equipment, 

which refers to § 1926.95, explains that 

after determining hazards are present 

that require the use of PPE, an employer 

must ‘‘select personal protective 

equipment that properly fits your 

workers.’’ (Fact Sheet on Personal 

Protective Equipment, April 2006)). 

Also, Assessing the Need for Personal 

Protective Equipment, a document 

created by OSHA’s Directorate of 

Training and Education, includes a 

checklist for various types of PPE. For 

each type of PPE listed, there is an entry 

for ensuring ‘‘effective fit’’ of the PPE. 

(Assessing the Need for Personal 

Protective Equipment). 

Additionally, OSHA has developed 

guidance for specific types of PPE. For 

example, OSHA’s Eye and Face 

Protection eTool is a comprehensive 

resource for assessing workplace 

hazards necessitating the use of eye and 

face protection and how to choose the 

appropriate protection. (Eye and Face 

Protection eTool, accessed July 23, 

2020). The eTool lists the construction 

standards under ‘‘OSHA Requirements,’’ 

and discusses proper fit of eye 

protection. Also, in the eTool’s ‘‘FAQs,’’ 

the document explains that training 

should include why improper fit of the 

eye and face protection can compromise 

protection. 

OSHA requests comment on whether 

the inclusion of an explicit requirement 

in § 1926.95(c) would help clarify 

construction employers’ obligations to 

provide properly fitting PPE to their 

employees. 

C. Properly Fitting PPE 

PPE is an essential element of an 

effective safety and health program. 

While many OSHA standards require 

employers to control or eliminate safety 

and health hazards before relying on 

PPE to protect employees, PPE often 

provides a critical last line of defense to 

protect individual employees. PPE that 

fits improperly not only fails to protect 

workers from the hazards it is designed 

to protect against, but it may also create 

additional hazards for those workers. 

In many cases, ill-fitting PPE may not 

provide any protection at all to an 

individual employee. For example, illfitting gloves may slip and expose an 

employee’s skin to hazardous 

chemicals. Improperly fitting goggles 

may have gaps at the temples, and 

expose the employee to flying debris 

entering their eyes. Further, there are 

some cases in which ill-fitting PPE may 

create additional hazards for employees. 

For example, improperly fitting 

protective clothing that is too long in 

the legs may present a tripping hazard 

for an employee, or an improperly 

fitting glove may become caught in 

machinery being operated by the 

employee. In Personal Protective 

Equipment for Women: Addressing the 

Need, a report prepared by the Ontario 

Women’s Directorate (OWD) and 

Industrial Accident Prevention 

Association (IAPA), a women stated she 

suffered a broken finger using a grinder 

while wearing gloves that were too big 

for her hands. (OWD & IAPA, 2006, p. 

13). A comment described above, from 

safety professional Emmanuel Omeike, 

noted several instances of employees 

who were wearing PPE, but nonetheless 


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1See the Preliminary Economic Analysis, below, 

for a description of how this figure was derived. 

2Records for inspections referenced in this 

document can be found at https://www.osha.gov/ 

pls/imis/InspectionNr.html. 

sustained injuries due to improper fit. 

(Omeike, December 4, 2016, p. 10). 

The construction industry includes 

many high-risk occupations, with 

various safety and health hazards. It is 

also comprised of a diverse workforce, 

including many employees who are not 

of a certain ‘‘standard’’ size or body 

type. For these workers, improperly 

fitting PPE may pose safety or health 

risks. For example, improperly fitting 

PPE can be an issue for small-stature 

construction workers, including some 

women, who may not be able to use PPE 

that is only available in a standard size. 

In the 1999 report Women in the 

Construction Workplace: Providing 

Equitable Safety and Health Protection, 

by ACCSH’s Health and Safety of 

Women in Construction (HASWIC) 

workgroup, women shared that standard 

sized PPE was difficult or impossible to 

use. One woman explained how she was 

issued a welding jacket with sleeves ‘‘a 

foot longer than her hand,’’ that she had 

to roll up, potentially exposing her to 

burn hazards. (HASWIC, 1999). 

Additionally, some standard-sized PPE 

may be too small for larger workers and 

expose them to hazards as a result. 

Access to properly fitting PPE has 

always been an important safety and 

health issue for women working in 

construction. In the past, because 

women made up a relatively small 

percentage of the construction 

workforce, many manufacturers of 

protective equipment were reluctant to 

invest in research and development to 

produce correctly sized and 

proportioned products for women. 

Historically, manufacturers and 

suppliers have produced and sold 

protective equipment designed to fit 

average-sized men. As a result, ill-fitting 

PPE could jeopardize the safety and 

health of female construction workers. 

Based on Bureau of Labor Statistics 

(BLS) Current Employment Statistics 

and the Census Bureau’s County 

Business Patterns (CBP) data, there were 

approximately 974,000 women working 

in the construction industry in 2018. 

(OSHA PEA Spreadsheet, 2023).1 As a 

result of more women working in the 

construction industry, the availability of 

PPE for women has increased. The ISEA 

reports that many employers now 

provide a full range of sizes for PPE. 

(ISEA, February 4, 2013). Also, ISEA 

and the Center to Protect Workers’ 

Rights (CPWR) have developed lists of 

manufacturers who offer safety and 

health equipment that is appropriate for 

women working in construction. (ISEA 

List of Female PPE Manufacturers, 

accessed October 27, 2020; CPWR— 

Construction Personal Protective 

Equipment for the Female Workforce, 

accessed October 27, 2020). OSHA 

requests comment on the availability of 

PPE for persons who may be smaller or 

larger than the average worker in the 

construction industry or for persons 

with other physical characteristics that 

differ from the average worker. 

In addition to adversely impacting 

safety and health, ill-fitting PPE can also 

reduce an employee’s job efficiency. For 

example, an ill-fitting glove may cause 

an employee to use more energy to grip 

a piece of equipment, resulting in 

fatigue. In the HASWIC report, a woman 

shared her experience of using welding 

gloves that were so large she was unable 

to pick up anything. (HASWIC, 1999). 

Also, employees are more likely to 

remove or not use ill-fitting PPE, 

negating whatever protection the PPE 

might otherwise provide. (See Omeike, 

December 4, 2016, pp. 11–12). In 

Personal Protective Equipment for 

Women: Addressing the Need, survey 

participants cited poorly fitting gloves 

as a major problem, with one woman 

saying she tended not to use them 

because they were awkward. (OWD & 

IAPA, 2006, p. 13). 

It is OSHA’s position that ‘‘properly 

fits’’ means the PPE is the appropriate 

size to provide an employee with the 

necessary protection from hazards, and 

does not create additional safety and 

health hazards arising from being either 

too small or too large. When PPE fits 

properly, employees are unlikely to 

discard or modify it because of 

discomfort or interference with their 

work activities. OSHA is not concerned 

with the cosmetic appearance, or ‘‘exact 

fit’’ of PPE. The proposed standard does 

not include the phrase ‘‘exact fit’’ in the 

regulatory text. Instead, the proposed 

rule uses the phrase ‘‘properly fits,’’ 

consistent with the OSHA general 

industry and maritime PPE standards. 

The agency believes that providing clear 

and explicit language in the 

construction standard on PPE fit will 

help ensure employers provide 

employees with properly fitting PPE, 

thereby ensuring protection for 

employees exposed to workplace 

hazards. 

D. OSHA Enforcement of PPE Fit 

Requirements 

OSHA anticipates that application of 

the proposed language requiring 

properly fitting PPE in the construction 

standard would be the same as for 

general industry and maritime. Sections 

1910.132(d)(1)(iii) and 1915.152(b)(3) 

each explicitly provide that the 

employer must select PPE that properly 

fits each affected employee. Appendix B 

of 29 CFR 1910, Subpart I (PPE), which 

provides assistance for employers in 

selecting PPE, provides: ‘‘5. Fitting the 

device. Careful consideration must be 

given to comfort and fit. PPE that fits 

poorly will not afford the necessary 

protection. Continued wearing of the 

device is more likely if it fits the wearer 

comfortably. Protective devices are 

generally available in a variety of sizes. 

Care should be taken to ensure that the 

right size is selected.’’ This same type of 

guidance would apply to the proposed 

new requirement for proper fit in 

section 1926.95(c)(2). 

OSHA has reviewed its enforcement 

data for the general industry and 

maritime standards that require PPE to 

properly fit and for the PPE 

requirements in 29 CFR 1926.95(a)–(c). 

The enforcement data spans from April 

6, 1994, when OSHA promulgated 

revisions to the PPE requirements in 

general industry requiring PPE to fit 

properly (see 59 FR 16334), to July 30, 

2021. 

During that period of time, OSHA 

cited employers 51 times for violations 

of 1910.132(d)(1)(iii) and one time for a 

violation of 1915.152(b)(3). In many 

cases, employers were cited for not 

providing gloves that properly fit 

employees, exposing them to chemical 

and physical hazards. In one case, an 

amputation occurred when a worker’s 

improperly fitting latex glove was 

caught between a power steering belt 

and a pulley. (Inspection No. 908699).2

An employer was also cited for failing 

to provide small and medium gloves to 

workers exposed to numerous chemical 

hazards. (Inspection No. 896842). 

Another inspection resulted in a 

violation of the standard because gloves 

that were too large for some employees 

reduced their dexterity. (Inspection No. 

1418803). There were also several 

instances where employers provided 

workers with personal fall arrest 

systems that did not fit the employee 

properly, exposing them to fall hazards. 

(Inspection Nos. 638178, 1006483, 

1346323, 1417821). In one instance, an 

employer provided workers with 

improperly fitting conductive booties, 

leading not only to electrical shock 

hazards, but also tripping hazards. 

(Inspection No. 525479). OSHA cited 

one employer under the general 

industry standard for inadequate PPE 

where duct tape was used to secure PPE 

to spats in an effort to provide 

protection from burns caused by molten 

aluminum. (Inspection No. 514938). In 


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maritime, the one violation resulted 

from a rigger working on a mast without 

a properly fitting fall protection harness, 

exposing the rigger to fall hazards. 

(Inspection No. 894520). 

In construction, from April 6, 1994 to 

July 30, 2021, OSHA issued 1,722 

citations for violations of 29 CFR 

1926.95(a)–(c); most of the citations 

were for violations of section 1926.95(a). 

OSHA cited the inappropriate fit of PPE 

nine times, all under 29 CFR 1926.95(a). 

The majority of these instances were for 

improperly fitting gloves that exposed 

employees to hazards. (Inspection Nos. 

1074915, 1103257, 1255622, 1291644, 

1062401, 1062798). In one instance, an 

employer was cited because their 

employee did not wear protective 

eyewear because it did not fit over the 

employee’s prescription eyewear. 

(Inspection No. 1074380). 

These citations help to demonstrate 

that fit has always been an important 

part of meeting the PPE requirements in 

OSHA’s construction standards. 

Without its consideration, workers can 

be exposed to multiple types of 

workplace hazards, including physical, 

chemical, and environmental hazards. 

The language of this proposed rule will 

make the requirement for properly 

fitting PPE clear and increase awareness 

of employers’ obligations when 

choosing and evaluating PPE for their 

workers. 

E. Issues for Comment 

In addition to the questions 

throughout the preamble, OSHA seeks 

comment on the following issues related 

to this proposed rulemaking: 

• Will this proposal effectuate the 

purposes of the OSH Act better than the 

applicable national consensus 

standards? 

• ACCSH recommended that OSHA 

consider developing additional 

guidance to explain what ‘‘proper fits’’ 

means for PPE used in construction. 

(ACCSH Meeting Transcript, July 17, 

2019). Is existing OSHA guidance 

regarding PPE ‘‘proper fit’’ in 

construction adequate? If not, what type 

of additional guidance should OSHA 

provide? 

• Is there confusion about what 

‘‘properly fits’’ means for PPE used in 

the construction industry? 

• How would the proposed revision 

impact the construction industry? 

Specifically, would revising the 

construction standard to mirror the 

language in the current general industry 

and maritime standards change how 

employers choose PPE for their 

employees? How? 

• Are there differences between 

general industry and maritime, and the 

construction industry, that impact 

whether OSHA should include the 

phrase ‘‘properly fits’’ in the 

construction standard? 

• Are there types of PPE that are not 

available in varying sizes? If yes, please 

give specific examples of the PPE and 

how you address this in the workplace. 

• Finally, what, if any, burden will 

the proposed change to section 

1926.95(c) impose on employers in the 

construction industry? 

In addition, see the issues for 

comment in section IV.C of this 

preamble. 

IV. Agency Determinations 

A. Legal Authority 

The purpose of the Occupational 

Safety and Health Act of 1970) (‘‘OSH 

Act,’’ 29 U.S.C. 651 et seq.) is ‘‘to assure 

so far as possible every working man 

and woman in the Nation safe and 

healthful working conditions and to 

preserve our human resources.’’ (29 

U.S.C. 651(b)). To achieve this goal, 

Congress authorized the Secretary of 

Labor to promulgate and enforce 

occupational safety and health 

standards. (29 U.S.C. 654, 655(b), and 

658). A safety or health standard 

‘‘requires conditions, or the adoption or 

use of one or more practices, means, 

methods, operations, or processes, 

reasonably necessary or appropriate to 

provide safe or healthful employment 

and places of employment.’’ (29 U.S.C. 

652(8)). A safety standard is reasonably 

necessary or appropriate within the 

meaning of 29 U.S.C. 652(8) if: 

• It substantially reduces a significant 

risk of material harm in the workplace; 

• It is technologically and 

economically feasible; 

• It uses the most cost-effective 

protective measures; 

• It is consistent with, or is a justified 

departure from, prior agency action; 

• It is supported by substantial 

evidence; and 

• It is better able to effectuate the 

purposes of the OSH Act than any 

relevant national consensus standard. 

(See United Auto Workers v. OSHA, 

37 F.3d 665, 668 (D.C. Cir. 1994) 

(Lockout/Tagout)). In addition, safety 

standards must be highly protective. 

(See id. at 669). 

A standard is technologically feasible 

if the protective measure it requires 

already exist, available technology can 

bring these measures into existence, or 

there is a reasonable expectation for 

developing the technology that can 

produce these measures. (See, e.g., 

American Iron and Steel Inst. v. OSHA, 

939 F.2d 975, 980 (D.C. Cir. 1991) (per 

curiam) (Lead II)). A standard is 

economically feasible when industry 

can absorb or pass on the cost of 

compliance without threatening an 

industry’s long-term productivity or 

competitive structure. (See American 

Textile Mfrs. Inst. v. Donovan, 452 U.S. 

490, 530 n.55 (1981); Lead II, 939 F.2d 

at 980). A standard is cost effective if 

the protective measures it requires are 

the least costly of the available 

alternatives that achieve the same level 

of protection. (See, e.g., Lockout/Tagout, 

37 F.3d at 668). 

Section 6(b)(7) of the OSH Act (29 

U.S.C. 655(b)(7)) authorizes OSHA to 

include requirements for protective 

equipment within a standard. It 

provides that, where appropriate, 

standards must prescribe suitable 

protective equipment and control or 

technological procedures to be used in 

connection with workplace hazards and 

must provide for monitoring or 

measuring employee exposure as 

necessary to protect employees. (29 

U.S.C. 655(b)(7)). 

B. Significant Risk 

Section 3(8) of the OSH Act requires 

that OSHA standards be ‘‘reasonably 

necessary or appropriate to provide safe 

or healthful employment’’ (29 U.S.C. 

652(8)), which the Supreme Court has 

interpreted as requiring OSHA to show 

that ‘‘significant risks are present and 

can be eliminated or lessened by a 

change in practices.’’ (Indus. Union 

Dep’t, AFL–CIO v. Am. Petroleum Inst., 

448 U.S. 607, 642 (1980) (plurality 

opinion) (Benzene)). The Court clarified 

that OSHA has considerable latitude in 

defining significant risk and in 

determining the significance of any 

particular risk, noting that ‘‘[i]t is the 

agency’s responsibility to determine, in 

the first instance, what it considers to be 

a ‘significant’ risk.’’ (Id. at 655). 

Although OSHA makes significant 

risk findings for both health and safety 

standards, the methodology used to 

evaluate risk in rulemakings involving 

safety standards is normally more 

straightforward. Unlike the risks related 

to health hazards, which ‘‘may not be 

evident until a worker has been exposed 

for long periods of time to particular 

substances,’’ the risks associated with 

safety hazards ‘‘are generally immediate 

and obvious.’’ (Benzene, 448 U.S. at 

649, n.54). 

OSHA need not make findings on risk 

for the proposed change to 29 CFR 

1926.95(c). This proposed rule involves 

a clarification of an existing OSHA 

standard and would not create any new 

requirements for employers. 

Accordingly, OSHA is not required to 

conduct a significant risk analysis for 

the proposed changes to section 


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1926.95. (See Edison Elec. Inst. v. 

OSHA, 849 F.2d 611, 620 (D.C. Cir. 

1988)). 

C. Preliminary Economic Analysis and 

Regulatory Flexibility Act Certification 

Executive Orders 12866 and 13563 

require that OSHA estimate the benefits, 

costs, and net benefits of regulations. 

The Regulatory Flexibility Act (5 U.S.C. 

601–612) and the Unfunded Mandates 

Reform Act (UMRA) (2 U.S.C. 1532(a)) 

also require OSHA to estimate the costs, 

assess the benefits, and analyze the 

impacts of rules that the agency 

promulgates. In addition, the OSH Act 

requires that OSHA show the economic 

feasibility of standards. 

A standard is economically feasible 

when industries can absorb or pass on 

the costs of compliance without 

threatening industry’s long-term 

profitability or competitive structure 

(Cotton Dust, 452 U.S. at 530 n. 55), or 

‘‘threaten[ing] massive dislocation to, or 

imperil[ing] the existence of, the 

industry.’’ (United Steelworkers of Am. 

v. Marshall, 647 F.2d 1189, 1272 (D.C. 

Cir. 1981) (Lead I)). ‘‘[T]he Supreme 

Court has conclusively ruled that 

economic feasibility [under the OSH 

Act] does not involve a cost-benefit 

analysis.’’ (Pub. Citizen Health Research 

Grp. v. U.S. Dept. of Labor, 557 F.3d 

165, 177 (3d Cir. 2009)). The OSH Act 

‘‘place[s] the ‘benefit’ of worker health 

above all other considerations save 

those making attainment of this ‘benefit’ 

unachievable.’’ (Cotton Dust, 452 U.S. at 

509). Therefore, ‘‘[a]ny standard based 

on a balancing of costs and benefits by 

the Secretary that strikes a different 

balance than that struck by Congress 

would be inconsistent with the 

command set forth in’’ the statute. (Id.). 

This case law arose with respect to 

health standards issued under section 

6(b)(5) of the Act, which specifically 

require a showing of feasibility; OSHA 

has also rejected the use of formal cost 

benefit analysis for safety standards, 

which are not governed by section 

6(b)(5). (See 58 FR 16,612, 16,622–23 

(Mar. 30, 1993) (‘‘in OSHA’s judgment, 

its statutory mandate to achieve safe and 

healthful workplaces for the nation’s 

employees limits the role monetization 

of benefits and analysis of extraworkplace effects can play in setting 

safety standards.’’)). 

The purpose of this rule is to revise 

the language of the PPE requirements in 

the construction standard to make it 

consistent with the requirement in 

OSHA’s general industry and maritime 

standards. This rule is not an 

‘‘economically significant regulatory 

action’’ under Executive Order 12866 or 

UMRA, and it is not a ‘‘major rule’’ 

under the Congressional Review Act (5 

U.S.C. 801 et seq.) or § 804 of the Small 

Business Regulatory Enforcement 

Fairness Act (SBREFA). In addition, it 

does not meet any of the other criteria 

specified by UMRA or the Congressional 

Review Act for a significant regulatory 

action or major rule. Finally, this rule 

complies with Executive Order 13563. 

Preliminary Economic Analysis 

OSHA is amending the construction 

standard at 29 CFR 1926.95—Criteria for 

Personal Protective Equipment (PPE), 

paragraph (c), to clarify that PPE must 

properly fit each employee. The existing 

standard states that PPE shall be of safe 

design and construction for the work to 

be performed and current paragraph (a) 

states that PPE shall be provided, used, 

and maintained in a sanitary and 

reliable condition wherever it is 

necessary. As discussed in more detail 

elsewhere in this preamble, for PPE to 

provide protection against the hazards 

for which it is designed, it must fit 

properly. 

OSHA views the proposed revision to 

section 1926.95(c) as a clarification of 

existing requirements and therefore 

preliminarily concludes that the rule is 

not expected to impose new costs on 

employers as a result of a new 

regulatory requirement. OSHA normally 

assumes full compliance with existing 

requirements when performing its 

analysis of costs related to a new or 

amended standard. However, in this 

case, the purpose of the proposed rule 

is to clarify an existing requirement 

about which there may be confusion in 

the regulated community. To the extent 

the clarification in this rule could result 

in new changes in behavior among some 

employers, OSHA has estimated the 

costs for a specified proportion of 

employers to come into compliance 

with the already-existing requirement to 

provide properly fitting PPE. This 

analysis is being provided as a starting 

point for public comments and to 

demonstrate that, even if there were 

costs associated with this rule as a result 

of changed employer behavior, the rule 

would be feasible to implement. 

As discussed above in Section II.C, 

Comments Received During the SIP–IV 

Rulemaking, OSHA previously 

proposed revising the language in 

section 1926.95(c) to clarify that PPE 

must properly fit each employee. During 

that rulemaking, while several 

commenters supported the revision to 

section 1910.95(c), the CISC commented 

that the proposed revision would 

increase the costs to employers for 

providing PPE (CISC, January 4, 2017). 

Specifically, CISC commented that 

amending paragraph (c) would result in 

employers maintaining inventory of PPE 

that would not otherwise be necessary 

without the revised language. However, 

the proposed revision to paragraph (c) 

contains no such requirement, and 

employers would only be required to 

have PPE that properly fits their 

employees. As OSHA explained above, 

this is a requirement that already exists 

under the construction standard; the 

new language merely clarifies that 

requirement. In the long run, the cost of 

inventory should be largely unaffected 

by this rulemaking as employers will 

need to use one size or another for each 

affected employee. In other words, the 

employer will only need to provide each 

employee with one set of PPE under the 

revised regulatory language, which is 

the case whether the PPE fits properly 

or not. In addition to safety issues, 

equipment that is ill fitting may wear 

out faster or reduce worker productivity 

on the job. Moreover, it is inherently 

cost-ineffective to pay for PPE that does 

not perform its essential function 

properly or that the worker will not 

wear consistently. 

On November 15, 2007, OSHA 

published a final rule addressing 

Employer Payment for Personal 

Protective Equipment (PPE Payment) 

(72 FR 64341). In that rulemaking, 

OSHA identified the various types of 

PPE that are worn by employees, and 

the numbers of employees that would 

typically use each type of PPE, in the 

construction industries: NAICS 236 

(Construction of Buildings), NAICS 237 

(Heavy and Civil Engineering 

Construction), and NAICS 238 

(Specialty Trade Contractors). As part of 

its analysis, OSHA also calculated the 

cost, and estimated the useful life, of 

each item of PPE (see 72 FR 64406– 

64408). 

As shown in Table 1, below, OSHA 

has preliminarily determined that the 

types of PPE used in construction fall 

into the following three categories: PPE 

provided by the employer and not of 

universal fit, PPE items purchased by 

the employee and reimbursed by the 

employer, and PPE of universal fit. 


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3 In the final rule on PPE Payment, OSHA 

estimated the number of employees in non-State 

Plan states using any type of PPE (72 FR 64391). 

OSHA estimates that the proportion of employees 

who use PPE in the construction industries in all 

50 states and territories is the same as the 

proportion of employees who use PPE in non-State 

Plan states. 

TABLE 1—PPE USED IN THE CONSTRUCTION INDUSTRIES * 

Provided by the employer, not universal fit Provided by employee and reimbursed Universal fit 

Chemical Protective Clothing, Chemical Protective Footwear, 

Chemical Splash Goggles, Earmuffs, Face Shields, Gloves 

for Abrasion Protection, Gloves for Chemical Protection, 

Non-Prescription Safety Glasses, Safety Goggles, Safety 

Vests, Splash Aprons.

Prescription Safety Glasses, Protective Electrical 

PPE, Protective Welding Clothing, Safety Shoes 

with Metatarsal Guards, Safety Shoes Without 

Metatarsal Guards, Welding Goggles, Welding 

Helmets.

Body Harnesses, Body 

Belts, Ear Inserts, 

Hardhats, Welding Helmets. 

* Respirators are not included in the table, as fit testing is already required in paragraph 1910.134(f) of the respiratory protection standard (29 

CFR 1910.134(f)), which covers the construction industry. (See 29 CFR 1926.103). 

Source: OSHA, Office of Regulatory Analysis (OSHA PEA Spreadsheet, 2023). 

PPE items of universal fit are those 

that are completely adjustable and 

capable of fitting any person. For those 

items, the employer will be able to 

continue providing the same items they 

are already providing to employees and 

will not have to replace them as a result 

of this rule. PPE items purchased by the 

employee and then reimbursed by the 

employer should already fit properly 

since the employee should have 

selected the size that fits them best. 

Considering that these employeepurchased PPE items likely already fit, 

the employer will not have to replace 

them until they have reached the end of 

their useful life. As a result, employers 

would incur no cost for replacing those 

items under this proposed rule. The 

remaining PPE items are those provided 

by the employer that are not universal 

fit. For these items, the standard size 

may not fit all workers—primarily 

people who are much larger or much 

smaller than average. Therefore, in cases 

where employers have provided 

standard-sized PPE, some workers may 

not have been provided properly fitting 

PPE. OSHA has preliminarily 

determined the average useful life for 

the PPE items that are provided by the 

employer and are not universal fit, as 

presented in Table 2. 

TABLE 2—USEFUL LIFE OF SELECTED PPE 

Provided by the employer, not universal fit Useful life 

(yr.) 

Chemical Protective Clothing .............................................................................................................................................................. 0.50 

Chemical Protective Footwear ............................................................................................................................................................. 0.50 

Chemical Splash Goggles ................................................................................................................................................................... 0.50 

Earmuffs ............................................................................................................................................................................................... 0.50 

Face Shields ........................................................................................................................................................................................ 1.00 

Gloves for Abrasion Protection ............................................................................................................................................................ 0.25 

Gloves for Chemical Protection ........................................................................................................................................................... 0.05 

Non-Prescription Safety Glasses ......................................................................................................................................................... 1.00 

Safety Goggles .................................................................................................................................................................................... 0.50 

Safety Vests ......................................................................................................................................................................................... 0.50 

Splash Aprons ..................................................................................................................................................................................... 0.50 

Source: OSHA, Office of Regulatory Analysis (OSHA PEA Spreadsheet, 2023). 

In order to estimate the potential costs 

and impacts of this proposed standard, 

OSHA has taken the PPE items in Table 

2 and updated the information that was 

in the Final Economic Analysis 

supporting the PPE Payment rulemaking 

to estimate the current number of 

employees that might use each type of 

PPE 3 and the unit cost of each type of 

PPE. The PPE Payment analysis was 

published in 2007 as part of the final 

rule on PPE Payment. Information on 

PPE use by employees for the 2007 

analysis was derived from a statistically 

representative nationwide telephone 

survey of 3,722 employers conducted 

for OSHA. The survey was 

benchmarked to the whole working 

population based on employment data 

available at that time. (See 72 FR 

64391). When the economic analysis for 

the PPE Payment rule was performed, 

the most recent data available on 

numbers of employees was from the 

U.S. Census’ 2004 County Business 

Patterns. OSHA utilized this 2004 data 

to estimate the number of employees 

using PPE and the industries they 

worked in. The most current 

information on prices for the PPE 

Payment analysis was from 2007 and 

was based on the GDP deflator from the 

Federal Reserve’s St. Louis FRED 

(Federal Reserve Economic Data). In the 

PPE Payment rulemaking, therefore, the 

employee numbers were from 2004, 

based on the CBP’s most recent data at 

that time, and the prices for PPE were 

from 2007, based on FRED’s most recent 

GDP deflator at the time. These 

numbers, along with the more recent 

estimates for the current proposed rule, 

are presented in Table 3, below. 

Similar to the data presented in the 

PPE Payment rulemaking, OSHA will be 

relying on data from two different time 

periods for estimates related to this 

proposed rule. The most recent data 

available to estimate the number of 

employees in the affected industries is 

from the CBP for 2020; the most recent 

FRED GDP report, used to make an 

updated estimate of PPE prices, is from 

the third quarter of 2022. The total 

number of PPE items used by employees 

in 2020 is derived by multiplying the 

number of employees (based on 2020 

CBP data) by the number of PPE items 

used, per employee, from the Final 

Economic Analysis supporting the PPE 

Payment final rule. The agency then 

uses the unit costs of PPE items (in 

2007) from the PPE Payment rule and 

applies the GDP deflator from the FRED 

to estimate the unit cost of those PPE 

items in 2022 dollars. Finally, to get the 

total potential one-time costs of this 

proposed standard, OSHA applies those 


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4OSHA uses the term ‘‘non-standard’’ to refer to 

sizes of PPE which are available on the market, but 

which some construction employers may not 

routinely order or keep in stock. 

5OSHA’s analysis assumes that only construction 

workers who meet the specified height or weight 

criteria may require non-standard sizes of PPE. 

OSHA then draws from this universe of workers 

when calculating how many workers may actually 

be using PPE that does not properly fit. OSHA’s 

analysis does not attempt to account for workers 

who wear standard-sized PPE but may nevertheless 

have been provided with improperly fitting PPE by 

their employers. 

2022 unit costs to the estimated number 

of PPE items used in 2020 

(benchmarked to the updated Census 

data), based on the proportion of 

employees that might need replacement 

PPE. 

Using data from the gross domestic 

product data series (GDP deflator from 

FRED, https://fred.stlouisfed.org/series/ 

GDPDEF, accessed January 20, 2023), 

OSHA estimates that the average price 

for PPE in 2022 is 37.4 percent higher 

than in 2007, the base year for data the 

agency used when promulgating the 

PPE Payment rule. Using the most 

recent data (2020) available from the 

CBP report (https://www.census.gov/ 

programs-surveys/cbp/data/ 

tables.html), OSHA estimates that 

employment in the construction 

industries has increased by 8.04 percent 

since 2004. As part of the PPE Payment 

rulemaking, OSHA previously estimated 

that the total number of PPE items worn 

by construction employees in 2004 was 

about 13 million. However, in the PPE 

payment rulemaking analysis, OSHA 

did not include safety vests in the list 

of necessary PPE. For this rulemaking, 

the agency has estimated the cost and 

use of safety vests and has included 

them in the number of PPE items worn 

by construction workers in 2020, the 

unit cost in 2022, and the total cost in 

2022. Using the estimated construction 

workforce increase of 8.04 percent, the 

agency estimates that the total number 

of PPE items worn by construction 

employees was about 14.9 million in 

2020. Dividing the total number of PPE 

items in use (14,892,806) by the total 

number of construction workers in 2020 

wearing PPE (5,734,977) yields an 

estimate that each construction 

employee wearing PPE provided by the 

employer, and not universal fit, wears 

an average of 2.6 items of PPE. 

In summary, OSHA is preliminarily 

estimating that the total cost of PPE that 

is provided by construction employers, 

and is not universal fit, has increased 

since 2007. Driven primarily by the 

aforementioned 37.4 percent price 

increase between 2007 and 2022, that 

cost is now estimated to be just over 

$170 million, including an additional 

estimated $3.9 million for safety vests. 

Based on this information, the agency 

calculates an average per unit PPE cost 

of $11.45 and an average cost of $29.74 

to outfit a construction employee in 

their needed PPE. 

TABLE 3—USE AND COST OF SELECTED PPE USED IN THE CONSTRUCTION INDUSTRIES

PPE provided by the employer, not universal fit 

Total PPE 

items used by 

employees 

(2004) U.S. 

Total PPE 

items used by 

employees 

(2020) U.S. 

PPE unit 

cost 2007$ 

PPE unit 

cost 2022$ 

Total cost 

2022$ 

Chemical Protective Clothing ..................................................... 358,089 386,877 $41.30 $56.76 $21,960,279 

Chemical Protective Footwear ................................................... 211,871 228,904 21.40 29.41 6,732,595 

Chemical Splash Goggles ......................................................... 584,797 631,811 6.20 8.52 5,383,851 

Earmuffs ..................................................................................... 642,362 694,004 13.60 18.69 12,972,241 

Face Shields .............................................................................. 1,194,399 1,290,422 14.90 20.48 26,426,058 

Gloves for Abrasion Protection .................................................. 2,940,764 3,177,183 8.30 11.41 36,243,886 

Gloves for Chemical Protection ................................................. 896,173 968,219 3.50 4.81 4,657,537 

Non-Prescription Safety Glasses ............................................... 3,485,009 3,765,183 6.20 8.52 32,084,272 

Safety Goggles .......................................................................... 2,506,959 2,708,504 4.65 6.39 17,309,989 

Safety Vests * ............................................................................. NA 828,178 NA 4.65 3,849,472 

Splash Aprons ............................................................................ 197,632 213,520 10.00 13.74 2,934,632 

Total of PPE items used by construction employees ........ 13,018,055 14,892,806 .................... .................... 170,554,811 

Average per Unit PPE Cost 2022 ...................................... .......................... .......................... .................... .................... 11.45 

* Safety Vests were not included in the 2004 analysis; OSHA Office of Regulatory Analysis has estimated their use in 2020 and their cost in 

2022 dollars to be consistent with the use and costs for the other types of PPE. (ERG Cost Analysis for Safety Vests, August 17, 2020). 

Source: OSHA, Office of Regulatory Analysis; based on PPE Payment rule (72 FR 64406). (See OSHA PEA Spreadsheet, 2023, tab ‘‘PPE 

Payment—Cost by PPE’’ for unit costs in 2007 and tab ‘‘PPE Payment—PPE Use’’ for PPE items used in 2004.) 

Given the current lack of data on how 

many employees might be wearing 

improperly fitting PPE, OSHA estimated 

this parameter using some general 

population height and weight 

distributions. Based on BLS Current 

Employment Statistics, OSHA estimates 

that in 2022, the construction industry 

was made up of 86 percent men and 14 

percent women. According to the CBP, 

there were 7,182,071 employees in the 

construction industry in 2020. Taken 

together, these data suggest that 

employment in the construction 

industry is comprised of about 

6,173,572 men and about 1,008,499 

women. Furthermore, OSHA’s 2007 PPE 

Payment Final Rule estimated that only 

79.85 percent of construction employees 

use PPE of any type. Based on this 

figure, the agency estimates that about 

4,929,677 men and about 805,299 

women in the construction industry use 

any type of PPE. 

To estimate what proportion of 

women and men might require nonstandard sizes of PPE,4 the agency 

referred to the Census Bureau’s 2011 

National Health and Nutrition 

Examination Survey (NHNES) (https://

www2.census.gov/library/publications/ 

2010/compendia/statab/130ed/tables/ 

11s0205.pdf). Using height and weight 

figures for the general population from 

NHNES, OSHA preliminarily 

determines, as shown in Table 4, below, 

that women and men weighing above 

300 pounds and women shorter than 

five feet tall might require non-standard 

sizes of PPE and thus could have 

improperly fitting PPE (the base figure 

was too small to meet statistical 

standards of reliability of a derived 

figure for men shorter than five feet 

tall).5 OSHA acknowledges that using 

the general population height and 

weight distributions may not align 

precisely with the profile of 

construction workers. For example, 

Hispanic males make up a greater 


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6OSHA assumes that larger and smaller sizes of 

PPE cost the same as the average size PPE of that 

type. 

proportion of the construction 

workforce than the population in 

general and are, on average, slightly 

shorter than, and weigh less than, nonHispanic white males. It is also possible 

that there are fewer people who are 

much smaller or larger than average in 

the construction industry. OSHA also 

acknowledges that this estimate is 

imprecise because it assumes that all 

workers who weigh more than 300 

pounds and all female workers who are 

shorter than five feet tall require PPE 

that is not standard sized; conversely, it 

assumes that standard-sized PPE is 

appropriate for all other workers. Given 

the necessity of estimating these 

parameters, OSHA seeks comment on 

what characteristics, and what data 

sources, should be considered when 

estimating the proportion of employees 

that might require non-standard sizes of 

PPE in the construction industries. 

Due to data limitations and as a 

simplifying assumption for this 

preliminary analysis, the agency also 

assumes that construction workers are 

distributed across age groups in the 

same proportions as the general 

population examined in the NHNES. 

The agency then multiplies those 

percentages by the total number of men, 

and the total number of women, in the 

construction industry that wear any 

type of PPE. Those results are presented 

here, in Table 4. 

TABLE 4—CONSTRUCTION EMPLOYEES WHO MAY REQUIRE NON-STANDARD SIZES OF PPE 

Construction employee characteristic 

Ages 

Average 

(%) 

Total 

employees 

(%) 20–29 

(%) 

30–39 

(%) 

40–49 

(%) 

50–59 

(%) 

60–69 

(%) 

Men Above 300 pounds ....................................................................... 2.50 3.10 1.90 1.90 2.20 2.32 114,369 

Women Above 300 pounds ................................................................. 2.30 1.60 1.70 0.60 0.70 1.38 11,113 

Women Under 5 foot tall ...................................................................... 5.70 8.00 5.00 8.00 9.00 7.14 57,498 

Total Employees Who May Require Non-Standard Sizes of PPE ............ ............ ............ ............ ............ ................ 182,980 

Source: OSHA, Office of Regulatory Analysis (OSHA PEA Spreadsheet, 2023). 

The agency estimates that 182,980 

construction employees might require 

non-standard sizes of PPE, but 

recognizes that not all of those 

employees are using improperly fitting 

PPE. OSHA assumes that up to 10 

percent of those workers—or 18,298 

workers—are currently being provided 

with incorrectly fitting PPE. At an 

average, per-person cost of $29.74 for 

PPE,6 OSHA preliminarily estimates 

that replacing the PPE for these 18,298 

employees would cost almost $545,000 

for the entire construction industry. 

TABLE 5—POTENTIAL PPE REPLACEMENT COST

Assumed percent of employees needing replacement PPE (2020) Total 

employees 

Total 

cost 

10% of Employees ............................................................................................................................................... 18,298 $544,172 

Average Per-Employee PPE Cost (2.6 items per employee) ...................................................................... .............................. 29.74 

Source: OSHA, Office of Regulatory Analysis (OSHA PEA Spreadsheet, 2023). 

As presented in Table 5, the agency 

preliminarily estimates that if 10 

percent of employees are provided with 

properly fitting PPE as a result of this 

clarifying rule, the rule might have a 

one-time total cost to the construction 

industry of $544,172. After initially 

replacing improperly fitting PPE, 

employers would be expected to 

continue to provide properly fitting PPE 

as those items reach the end of their 

useful life. Since employers need to 

provide replacement PPE, whether 

properly fitting or not, in the absence of 

this clarifying rule, OSHA estimates that 

there will be no additional on-going 

costs to provide properly fitting PPE as 

part of the normal process of 

replacement. 

OSHA seeks comment on all aspects 

of its preliminary economic analysis, 

including: 

• The types of PPE that construction 

employees use; 

• The types of PPE that are available 

in different sizes; 

• The types of PPE that are universal 

fit (i.e., they can be adjusted to fit any 

person); 

• Whether there are types of PPE that 

only come in one standard size that is 

not adjustable. If yes, give examples; 

• The extent of employer 

reimbursement for employee purchases 

for various types of PPE; 

• Whether the agency’s categorization 

of the various types of PPE into the 

three categories in Table 1 (provided by 

the employer, not universal fit; provided 

by the employee and reimbursed; and 

universal fit) is accurate, and why or 

why not; 

• The average useful life of various 

types of PPE; 

• The benefits of, and productivity 

increases from, wearing properly fitting 

PPE; 

• Workplace accidents related to 

improperly fitting PPE; 

• The average cost for each PPE item, 

including whether there are price 

differences for different sizes of PPE, as 

well as the average cost to outfit an 

employee in necessary PPE; 

• Whether employers will need to 

provide their workers with different 

sizes of PPE than they are currently 

providing them, and what specific 

changes employers will make to their 

current practices if this rule is finalized 

as proposed; 


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• Whether there are other significant 

cost elements that have not been 

accounted for in OSHA’s analysis that 

extend beyond simply acquiring 

properly fitting PPE; 

• Whether employers have incurred 

additional costs in fitting employees 

who need non-standard sizes of PPE 

with PPE that fits properly; 

• Whether there will be ongoing costs 

to employers to provide correctly sized 

PPE. In particular, OSHA is interested 

in what ongoing activities employers 

anticipate they would need to undertake 

in response to this rule clarification and 

how much time and expense those 

activities would require. 

Sensitivity Analysis 

OSHA believes that instances of 

employees with improperly fitting PPE 

are limited given the existing 

requirement for proper fit. The primary 

analysis above assumes that only 10 

percent of the employees who may 

require non-standard sizes of PPE would 

need to have their PPE replaced. For the 

first sensitivity analysis, the agency 

compared the assumed 10 percent of 

potentially affected employees with a 

lower rate of 5 percent and, 

alternatively, a higher rate at each 

quartile of the group (25, 50, and 100 

percent). Additionally, some employees 

may only need one item of replacement 

PPE while others might have to replace 

more items. As discussed above, OSHA 

has estimated that affected employees in 

construction wear an average of 2.6 

pieces of PPE of the type covered by 

OSHA’s analysis; the main analysis 

assumes they would all need to be 

replaced. In reality, for individual 

employees, some items might need to be 

replaced and not others. The second 

sensitivity analysis examines the cases 

where employees need replacements for 

1, 2, or 3 items of PPE, along with the 

2.6 items used in the primary analysis. 

In the first sensitivity analysis, OSHA 

multiplied the total number of 

employees who may require nonstandard sizes of PPE (182,980) by the 

various assumed non-compliance 

percentages. Table 6, below, presents a 

range of 5 percent to 100 percent noncompliance. OSHA believes most 

companies want to act in the best 

interest of their employees and are 

already in compliance with the existing 

requirement to provide properly fitting 

PPE. As such, OSHA believes the actual 

non-compliance rate is towards the 

lower end of the range presented in 

Table 6. At most, fewer than 200,000 

employees might be affected. 

TABLE 6—EMPLOYEES NEEDING REPLACEMENT PPE 

Assumed percent needing replacement PPE Total employees 

5 ..................................................................................................................................................................................................... 9,149 

10 ................................................................................................................................................................................................... 18,298 

25 ................................................................................................................................................................................................... 45,745 

50 ................................................................................................................................................................................................... 91,490 

75 ................................................................................................................................................................................................... 137,235 

100 ................................................................................................................................................................................................. 182,980 

For the second sensitivity analysis, 

OSHA examined the potential number 

of pieces of PPE that might need to be 

replaced for each affected employee. In 

Table 7, below, OSHA calculated the 

total number of PPE items, in the 

affected construction industries, that 

might need to be replaced based on 

employees needing 1, 2, 3, or the 

average 2.6 pieces of replacement PPE. 

TABLE 7—PPE ITEMS NEEDING REPLACEMENT

Percent of employees needing replacement PPE 

Total PPE items needing replacement 

1 2 2.6 3 

5 ....................................................................................................................................... 9,149 18,298 23,758 27,447 

10 ..................................................................................................................................... 18,298 36,596 47,517 54,894 

25 ..................................................................................................................................... 45,745 91,490 118,792 137,235 

50 ..................................................................................................................................... 91,490 182,980 237,585 274,470 

75 ..................................................................................................................................... 137,235 274,470 356,377 411,705 

100 ................................................................................................................................... 182,980 365,960 475,169 548,940 

To complete the sensitivity analysis, 

OSHA multiplied the cost of the average 

piece of affected PPE, calculated as 

$11.45 per piece, by the number of total 

items of PPE needing replacement 

(displayed in table 7, above). The results 

are presented in table 8, below. 

TABLE 8—TOTAL COST OF REPLACEMENT PPE 

Percent of employees needing replacement PPE 

Total PPE items needing replacement 

1 2 2.6 3 

5 ....................................................................................................................................... $104,776 $209,552 $272,086 $314,327 

10 ..................................................................................................................................... 209,552 419,103 544,172 628,655 

25 ..................................................................................................................................... 523,879 1,047,758 1,360,429 1,571,637 

50 ..................................................................................................................................... 1,047,758 2,095,517 2,720,859 3,143,275 

75 ..................................................................................................................................... 1,571,637 3,143,275 4,081,288 4,714,912 

100 ................................................................................................................................... 2,095,517 4,191,033 5,441,717 6,286,550 


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7The 2007 analysis estimated that the rule would 

prevent almost 5,000 injuries (see Table XV–3) in 

construction, for a total economic value of 

approximately $90 million (see Table XV–4), at a 

cost of approximately $30 million (NAICS 23) (see 

Table XV–5) (72 FR 64401–64408). 

8OSHA notes that it is not required to perform 

a technological feasibility analysis for this proposed 

rule because it is simply a clarification of an 

existing requirement. The technological feasibility 

analysis presented in this document is for 

informational purposes only. 

9For example, see p. VI–14 of the Final Economic 

Analysis supporting OSHA’s rule on Respirable 

Crystalline Silica. Final Economic Analysis and 

Final Regulatory Flexibility Analysis for OSHA’s 

Rule on Occupational Exposure to Respirable 

Crystalline Silica, Chapter VI (OSHA–2010–0034– 

4247). 

10For example, see OSHA’s Final Regulatory 

Flexibility Screening Analysis in support of the 

Hazard Communication rule (77 FR 17661). 

11U.S. 2017 Economic Census. Construction: 

Summary Statistics for the U.S., States, and 

Selected Geographies: 2017. Available at https://

data.census.gov. Table ID EC1700BASIC. (Accessed 

March 21, 2022.) (OSHA PEA Spreadsheet, 2023). 

12U.S. 2017 Economic Census. Construction: 

Summary Statistics for the U.S., States, and 

Selected Geographies: 2017 reports a total of 

715,364 establishments with 6,647,047 employees 

which averages to 9 employees per establishment. 

(OSHA PEA Spreadsheet, 2023). 

TABLE 8—TOTAL COST OF REPLACEMENT PPE—Continued 

Percent of employees needing replacement PPE 

Total PPE items needing replacement 

1 2 2.6 3 

Per Employee Cost .................................................................................................. 11.45 22.90 29.74 34.36 

Table 8 shows that, as a worst-case 

scenario, if no employers are providing 

properly fitting PPE to employees that 

need non-standard sizes, and if each 

employee needs 3 items of replacement 

PPE (more PPE than the average of 2.6 

PPE items), then the total one-time cost 

to industry to provide that properly 

fitting PPE would be less than $6.3 

million. Meanwhile, the cost to industry 

could be as low as only $105,000. 

Benefits 

As noted above, rather than impose a 

new requirement, this proposed rule 

would clarify an existing requirement in 

29 CFR 1926.95(c) for PPE to fit 

properly. The proposed change 

harmonizes the PPE fit requirements in 

construction with those in general 

industry and maritime and should 

alleviate any confusion that may exist 

among construction employers, 

potentially addressing safety and health 

hazards caused by improperly fitting 

PPE. 

In 2007, OSHA promulgated the PPE 

Payment rule, which clarified the 

responsibilities of employers to pay for 

PPE (72 FR 64342). In that rule, OSHA 

noted that PPE must fit properly in 

order to provide the protection it was 

designed to provide (e.g., 72 FR 64350– 

51, 64380). Accompanying the PPE 

Payment rule was a detailed analysis of 

the types and numbers of injuries that 

would likely be prevented by the rule, 

and the value of those benefits. One 

finding of the analysis, which implicitly 

assumed employees would be provided 

with properly fitting PPE, was that PPE 

is a particularly cost-effective form of 

injury prevention, particularly in the 

construction industry. The analysis 

found that the economic benefits of 

preventing an injury with PPE in the 

construction industry were 

approximately three times the cost of 

providing the PPE.7 While there is 

substantial uncertainty about whether 

any costs will be generated by this 

proposed rulemaking on PPE fit, the 

agency is confident that if the rule 

results in construction employers 

incurring costs for properly fitting PPE, 

the benefits of the properly fitting PPE 

will likely exceed the costs. In addition, 

as has been noted elsewhere, much of 

the benefit of this rulemaking derives 

from providing greater clarity in terms 

of employer obligations. 

While OSHA has preliminarily 

determined that the proposed change 

will not have quantifiable benefits, the 

agency requests comment on this 

preliminary determination. More 

specifically, if employers were to 

change the PPE they provide their 

workers as a result of this rule, what are 

the anticipated benefits to worker safety 

and health from these changes? How 

should OSHA quantify these benefits? 

Technological Feasibility 

The purpose of the proposed 

amendment to section 1926.95(c) is to 

improve clarity for the construction 

sector, as well as ensure consistency 

with existing OSHA standards for 

general industry and maritime. Because 

the requirement for properly fitting PPE 

already exists in the construction 

industry, OSHA believes that providing 

properly fitting PPE is already common 

practice among construction employers. 

OSHA does not believe that employers 

will encounter any significant obstacles 

acquiring PPE that will properly fit their 

workers. Therefore, OSHA preliminarily 

concludes that this proposed rule would 

be technologically feasible.8 The agency 

welcomes comments on the 

technological feasibility of the proposal. 

Economic Feasibility 

OSHA historically has applied two 

threshold tests to look at economic 

feasibility for establishments covered by 

the rule: whether the rule’s average per 

establishment costs as a percentage of 

average per establishment revenues, for 

each industry sector, are below 1 

percent, and whether those costs as a 

percentage of profits are below 10 

percent.9 To determine whether there is 

a significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act, 

there are also two threshold tests: 

whether the average costs for small 

entities are 1 percent of their average 

revenues or below, and whether those 

costs are 5 percent or less of the small 

entities’ profits.10 None of these 

threshold tests are hard ceilings or 

determinative; they are guidelines the 

agency uses to examine whether there 

are any potential economic impact 

issues that require additional study. 

Because this is a clarification of an 

existing requirement, OSHA does not 

expect the proposed revision to the 

construction PPE standard to impose 

new costs on employers as a result of a 

new regulatory requirement. As 

previously stated, the proposed 

provision is consistent with the PPE 

requirements in the agency’s general 

industry and maritime standards, and in 

agreement with OSHA’s longstanding 

interpretation of the current 

requirements for PPE in section 1926.95. 

As noted above, to the extent the 

clarification in this rule could result in 

changes in behavior among some 

employers, OSHA has provided an 

estimate of the costs for a specified 

proportion of employers to come into 

compliance with the already-existing 

requirement to provide properly fitting 

PPE. Even assuming these estimated 

costs will be incurred by employers as 

a result of the rule the rule easily passes 

OSHA’s threshold tests for feasibility. 

The average construction industry 

employer has revenues of $3.3 million 

annually 11 and 9 employees.12 As a 

worst case scenario, if such an employer 

had to replace all the PPE at issue in this 

rulemaking for all of their employees 


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Federal Register / Vol. 88, No. 138 / Thursday, July 20, 2023 / Proposed Rules 46719 

(i.e., 2.6 items per employee), it would 

cost under $300, which is less than 

.01% of an average employer’s revenues. 

Therefore, this proposed rule is clearly 

economically feasible. The agency 

welcomes comments on its preliminary 

economic feasibility analysis and 

determination. 

Regulatory Flexibility Screening 

Analysis and Certification of No 

Significant Impact on a Substantial 

Number of Small Entities 

In accordance with the Regulatory 

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

amended)), OSHA examined the 

regulatory requirements of this rule to 

determine whether the proposed 

requirement would have a significant 

economic impact on a substantial 

number of small entities. As discussed 

above, because this is a clarification of 

an existing requirement, OSHA 

preliminarily estimates that this rule 

would impose zero costs on employers. 

Even if OSHA assumes that this rule 

would lead to changes in employer 

behavior and associated costs, however, 

the costs are minimal and would not be 

imposed on an ongoing basis. OSHA 

estimates that, on average, there will be 

no more than one worker who might be 

wearing improperly fitting PPE at any 

given firm. Given that replacement PPE 

costs less than $30 per employee, this 

proposal would not impose significant 

costs on small employers. The agency 

therefore certifies that, if promulgated, 

this rule will not have a significant 

economic impact on a substantial 

number of small entities. 

D. OMB Review Under the Paperwork 

Reduction Act 

This proposal contains no information 

collection requirements subject to OMB 

approval under the Paperwork 

Reduction Act of 1995 (PRA) (44 U.S.C. 

3501 et seq.) and its implementing 

regulations at 5 CFR part 1320. The PRA 

defines a collection of information as 

‘‘the obtaining, causing to be obtained, 

soliciting, or requiring the disclosure to 

third parties or the public, of facts or 

opinions by or for an agency, regardless 

of form or format.’’ (44 U.S.C. 

3502(3)(A)). 

E. Federalism 

OSHA reviewed this proposed rule in 

accordance with the Executive Order on 

Federalism (E.O. 13132, 64 FR 43255, 

August 10, 1999), which requires that 

Federal 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 clear constitutional 

and statutory authority exists and the 

problem is national in scope. E.O. 13132 

provides for preemption of State law 

only with the expressed consent of 

Congress. Any such preemption is to be 

limited to the extent possible. 

Under Section 18 of the OSH Act (29 

U.S.C. 667), Congress expressly 

provides that States and U.S. territories 

may adopt, with Federal approval, a 

plan for the development and 

enforcement of occupational safety and 

health standards. States and territories 

that obtain Federal approval for such a 

plan are referred to as ‘‘State Plans’’ (29 

U.S.C. 667). Occupational safety and 

health standards developed by State 

Plans must be at least as effective in 

providing safe and healthful 

employment and places of employment 

as the Federal standards and, when 

applicable to products that are 

distributed or used in interstate 

commerce, must be required by 

compelling local conditions and not 

unduly burden interstate commerce. (29 

U.S.C. 667(c)(2)). Subject to these 

requirements, State Plans are free to 

develop and enforce under State law 

their own requirements for safety and 

health standards. 

In States without OSHA approved 

State Plans, Congress expressly provides 

for OSHA standards to preempt State 

occupational safety and health 

standards in areas addressed by the 

Federal standards. In these States, this 

proposal would limit State policy 

options in the same manner as every 

standard or amendment to a standard 

promulgated by OSHA. In States with 

OSHA approved State Plans, this 

rulemaking would not significantly 

limit State policy options. 

The proposed amendment to 29 CFR 

1926.95(c) complies with E.O. 13132. 

F. State Plans 

This proposed rule would revise the 

language in the construction standard, 

29 CFR 1926.95(c), to include an 

explicit requirement that PPE used in 

the construction industry must fit 

properly. This change would be 

consistent with requirements that exist 

in the general industry and maritime 

standards and with OSHA’s prior 

interpretation of the construction 

standard. When Federal OSHA 

promulgates a new standard or more 

stringent amendment to an existing 

standard, OSHA-approved State Plans 

must either amend their standards to be 

‘‘at least as effective as’’ the new 

standard or amendment, or show that an 

existing state standard covering this area 

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

new Federal standard or amendment. 

(29 CFR 1953.5(a)). State Plan adoption 

must be completed within six months of 

the promulgation date of the final 

Federal rule. OSHA concludes that this 

proposed rule, by including an explicit 

requirement that PPE used in the 

construction industry must fit properly, 

will maintain or increase the protection 

afforded to employees. Therefore, 

within six months of the final rule’s 

promulgation date, State Plans would be 

required to adopt amendments to their 

standards that are ‘‘at least as effective,’’ 

unless they demonstrate that such 

amendments are not necessary because 

their existing standards are already ‘‘at 

least as effective’’ in protecting workers 

as the final Federal rule. 

The 29 OSHA-approved State Plans 

are: Alaska, Arizona, California, 

Connecticut, Hawaii, Illinois, Indiana, 

Iowa, Kentucky, Maine, Maryland, 

Massachusetts, Michigan, Minnesota, 

Nevada, New Mexico, New Jersey, New 

York, North Carolina, Oregon, Puerto 

Rico, South Carolina, Tennessee, Utah, 

Vermont, Virginia, Virgin Islands, 

Washington, and Wyoming. The 

Connecticut, Illinois, New Jersey, New 

York, Maine, and the Virgin Islands 

State Plans cover state and local 

government employees only, while the 

rest cover the private sector and state 

and local government employees. 

G. Unfunded Mandates Reform Act 

OSHA reviewed this proposal 

according to the Unfunded Mandates 

Reform Act of 1995 (‘‘UMRA’’; 2 U.S.C. 

1501 et seq.). As discussed above in 

Section IV.C of this preamble, the 

agency preliminarily determined that 

this proposal would not impose costs on 

any private- or public-sector entity. 

Accordingly, this proposal would not 

require additional expenditures by 

either public or private employers. Even 

to the extent that changes in behavior 

resulting from the rule would lead to 

employers expending money for new, 

properly fitting PPE, these costs are 

minimal and will only be incurred one 

time. 

As noted above, the agency’s 

standards do not apply to State and 

local governments except in States that 

have elected voluntarily to adopt a State 

Plan approved by the agency. 

Consequently, this proposal does not 

meet the definition of a ‘‘Federal 

intergovernmental mandate.’’ (See 

Section 421(5) of the UMRA (2 U.S.C. 

658(5))). Therefore, for the purposes of 

the UMRA, the agency certifies that this 

proposal would not mandate that State, 

local, or Tribal governments adopt new, 

unfunded regulatory obligations. 

Further, OSHA concludes that the rule 

would not impose a Federal mandate on 

the private sector in excess of $100 


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46720 Federal Register / Vol. 88, No. 138 / Thursday, July 20, 2023 / Proposed Rules 

1See 38 CFR 36.4319. 

2See 38 CFR 36.4316(b). As background, VA 

amended its regulation pertaining to partial 

payments as part of an overhaul of existing VA loan 

guaranty program requirements. On February 18, 

2005 (70 FR 8472, 8475), VA proposed amendments 

to then-existing 38 CFR 36.4315. Thereafter, on June 

1, 2007 (72 FR 30505), VA published a 

supplemental proposed rule outlining VA’s plan to 

phase-in the new 38 CFR part 36 regulations. This 

plan included temporarily designating then-existing 

provisions found at 38 CFR 36.4300 through 

36.4393 (the ‘‘36.4300 series’’) as a new subpart B 

and establishing a new subpart F to include new 38 

million (adjusted annually for inflation) 

in expenditures in any one year. 

H. Consultation and Coordination With 

Indian Tribal Governments 

OSHA reviewed this proposed rule in 

accordance with Executive Order 13175 

(65 FR 67249) and determined that it 

would not have ‘‘tribal implications’’ as 

defined in that order. The amendment 

to the PPE standard for construction, if 

promulgated, would not have 

substantial direct effects on one or more 

Indian tribes, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes. 

List of Subjects in 29 CFR Part 1926 

Construction, Personal Protective 

Equipment, Occupational safety and 

health. 

Authority and Signature 

Douglas L. Parker, Assistant Secretary 

of Labor for Occupational Safety and 

Health, U.S. Department of Labor, 

authorized the preparation of this 

document pursuant to 29 U.S.C. 653, 

655, and 657; 40 U.S.C. 3701 et seq.; 5 

U.S.C. 553; Secretary of Labor’s Order 

8–2020, 85 FR 58393 (2020); and 29 CFR 

part 1911. 

Signed at Washington, DC, on July 14, 

2023. 

Douglas L. Parker, 

Assistant Secretary of Labor for Occupational 

Safety and Health. 

Amendments to Standards 

For the reasons stated in the 

preamble, OSHA proposes to amend 29 

CFR part 1926 to read as follows: 

PART 1926—SAFETY AND HEALTH 

REGULATIONS FOR CONSTRUCTION 

Subpart E—Personal Protective and 

Life Saving Equipment 

■ 1. The authority citation for subpart E 

is revised to read as follows: 

Authority: 40 U.S.C. 3701 et seq.; 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), 5–2002 (67 FR 

65008), 5–2007 (72 FR 31160), 4–2010 (75 FR 

55355), 1–2012 (77 FR 3912), or 8–2020 (85 

FR 58393), as applicable; and 29 CFR part 

1911. 

■ 2. Amend § 1926.95 by revising 

paragraph (c) to read as follows: 

§ 1926.95 Criteria for personal protective 

equipment. 

* * * * * 

(c) Design and selection. Employers 

must ensure that all personal protective 

equipment: 

(1) Is of safe design and construction 

for the work to be performed; and 

(2) Is selected to ensure that it 

properly fits each affected employee. 

* * * * * 

[FR Doc. 2023–15285 Filed 7–19–23; 8:45 am] 

BILLING CODE 4510–26–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 36 

RIN 2900–AR97 

Loan Guaranty: Servicer Regulation 

Changes 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) is proposing to rename and 

clarify certain loss-mitigation terms 

used in VA’s regulations. VA is 

proposing these changes to align the 

names and definitions with their general 

use in the housing finance industry. VA 

believes that these proposed revisions 

would help avoid confusion and enable 

servicers and veterans to address loan 

defaults more quickly and effectively. 

DATES: Comments must be received on 

or before September 18, 2023. 

ADDRESSES: Comments must be 

submitted through www.regulations.gov. 

Except as provided below, comments 

received before the close of the 

comment period will be available at 

www.regulations.gov for public viewing, 

inspection, or copying, including any 

personally identifiable or confidential 

business information that is included in 

a comment. We post the comments 

received before the close of the 

comment period on the following 

website as soon as possible after they 

have been received: http://

www.regulations.gov. VA will not post 

on Regulations.gov public comments 

that make threats to individuals or 

institutions or suggest that the 

commenter will take actions to harm an 

individual. VA encourages individuals 

not to submit duplicative comments. We 

will post acceptable comments from 

multiple unique commenters even if the 

content is identical or nearly identical 

to other comments. Any public 

comment received after the comment 

period’s closing date is considered late 

and will not be considered in the final 

rulemaking. 

FOR FURTHER INFORMATION CONTACT: 

Andrew Trevayne, Assistant Director for 

Loan and Property Management, and 

Stephanie Li, Assistant Director for 

Regulations, Legislation, Engagement, 

and Training, Loan Guaranty Service 

(26), Veterans Benefits Administration, 

Department of Veterans Affairs, 810 

Vermont Avenue NW, Washington, DC 

20420, (202) 632–8862. (This is not a 

toll-free telephone number.) 

SUPPLEMENTARY INFORMATION: 

I. Background 

VA’s Loan Guaranty Service offers 

home loan programs that assist eligible 

veterans, service members, and certain 

surviving spouses (hereinafter 

collectively referred to as ‘‘veteran’’) to 

buy, build, improve, or refinance a 

home. When a VA-guaranteed loan goes 

into default, the servicer may attempt to 

resolve the default using a lossmitigation option that enables the 

veteran to remain in their home (e.g., 

repayment plan, special forbearance, or 

loan modification) or avoid foreclosure 

through compromise sale or deed in lieu 

of foreclosure.1

While regulations in 38 CFR part 36 

are specific to VA-guaranteed loans, the 

loss-mitigation options outlined are 

typical across the housing finance 

industry. VA has received feedback that 

the names of certain servicing terms 

used in VA regulations are not aligned 

with how those terms are named in the 

housing finance industry, occasionally 

leading to confusion amongst 

stakeholders and veterans. 

Additionally, VA’s inconsistency in 

using the terms ‘‘written’’ and 

‘‘documented’’ to reference various 

agreements in servicing regulations may 

be confusing for servicers as to whether 

new technologies enabling certain lossmitigation agreements to be established 

and documented in non-written formats 

are acceptable to VA. For example, as 

part of the final rule implementing the 

VA Loan Electronic Reporting Interface 

(VALERI) and corresponding 

regulations, VA updated its regulation 

pertaining to acceptance of partial 

payments by removing the requirement 

for a repayment plan to be ‘‘written’’ 

and adding that it must be 

‘‘documented.’’ 2 However, other 


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