`[Federal Register Volume 89, Number 239 (Thursday, December 12, 2024)]
[Rules and Regulations]
[Pages 100321-100346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29220]


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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: Final rule.

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SUMMARY: OSHA is finalizing a revision to its personal protective 
equipment standard for construction to explicitly require that the 
equipment must fit properly.

DATES: This final rule is effective January 13, 2025.

ADDRESSES: Docket: To read or download comments or other information in 
the docket, go to https://www.regulations.gov. All comments and 
submissions are listed in the https://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: [email protected].
    General and technical inquiries: Vernon Preston, OSHA Directorate 
of Construction, telephone: (202) 693-2020; email: 
[email protected].
    Copies of this Federal Register notice and news releases: 
Electronic copies of these documents are available at OSHA's web page 
at https://www.osha.gov.

SUPPLEMENTARY INFORMATION: 

[[Page 100322]]

Citation Method

    In the docket for the personal protective equipment in construction 
rulemaking, found at https://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 final rule, citations to 
items in the docket are referenced by the last four digits of the 
Document ID Number. For example, Document ID number OSHA-2019-0003-0002 
would be referenced as ``Document ID 0002.'' In a citation that 
contains two or more documents, the citations are separated by commas. 
In cases where a commenter submitted multiple documents, the attachment 
number is included after the Document ID. 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).

Table of Contents

I. Executive Summary
II. Background
    A. OSHA's PPE Requirements
    B. Rulemaking History
    C. Comments Received During the SIP-IV Rulemaking
III. Summary and Explanation
    A. Impact of Improperly Fitting PPE and the Need for an Explicit 
Requirement
    B. Whether the Rule Would Effectuate the Purpose of the OSH Act 
Better Than Consensus Standards
    C. The Appropriateness of the New Regulatory Text
    D. Differences Between General Industry, Maritime, and the 
Construction Industry
    E. The Adequacy of Guidance on PPE ``Proper Fit'' in 
Construction
    F. OSHA Enforcement of PPE Fit Requirements
IV. Pertinent Legal Authority
V. Final Economic Analysis and Regulatory Flexibility Act 
Certification
    A. Profile of Affected Establishments and Employees
    B. Costs of Compliance
    C. Economic Feasibility
    D. Regulatory Flexibility Screening Analysis and Certification
    E. Benefits
VI. Technological Feasibility
VII. Paperwork Reduction Act
VIII. Federalism
IX. State Plans
X. Unfunded Mandates Reform Act
XI. Consultation and Coordination With Indian Tribal Governments
XII. Protecting Children From Environmental Health and Safety Risks
XIII. Environmental Impacts

I. Executive Summary

    OSHA is finalizing revisions to its personal protective equipment 
(PPE) standard for construction, at 29 CFR 1926.95(c), to explicitly 
state that PPE must fit properly. This revision will align the language 
in the PPE standard for construction with the corresponding language in 
OSHA's PPE standards for general industry and shipyards 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 
to provide appropriate protection to employees from workplace hazards. 
Improperly fitting PPE may fail to provide any protection to an 
employee, reduce the effectiveness of protection, present additional 
hazards, or discourage employees from using such equipment in the 
workplace.
    The Final Economic Analysis for this rulemaking demonstrates that 
this rule is economically feasible and will not have a significant 
economic impact on a substantial number of small entities.

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. Employees wear PPE 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, 
harnesses, and full body suits.
    OSHA has specific standards that address PPE in general industry, 
shipyard employment, marine 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 
shipyard employment (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) requires that all types of PPE must 
be provided, used, and maintained in a sanitary and reliable condition 
whenever the PPE is necessary due to workplace hazards. Section 
1926.95(b) further requires that, even when employees provide their own 
PPE, the employer must assure its adequacy, including proper 
maintenance, and sanitation. Section 1926.95(c) provides that all PPE 
must be of safe design and construction for the work to be performed. 
Unlike the general industry and shipyards PPE standards, the current 
PPE construction standard at Sec.  1926.95 does not include an explicit 
requirement that PPE properly fit each affected employee.
    PPE must fit properly to provide adequate protection to employees. 
If PPE does not fit properly, it can make the difference between an 
employee being safely protected, having inadequate protection, or being 
dangerously exposed. In some cases, ill-fitting 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 operate equipment, 
putting the wearer and other workers at risk of exposure to hazards, or 
may get caught in machinery, resulting in injuries to the wearer such 
as fractures or amputations. The legs of protective garments that are 
too long could cause tripping hazards for the worker with the 
improperly fitting PPE and could also impact others working near that 
worker. Protective clothing that is too small may increase a worker's 
exposure to hazards by, for example, providing insufficient coverage 
from dangerous machinery or hazardous substances. The issue of 
improperly fitting PPE is particularly important for smaller 
construction workers, including some women, who may not be able to use 
currently existing standard-size PPE. Fit problems can also affect 
larger workers, and standard-size PPE does not always accommodate 
varying body shapes.

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 related to 
construction. 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

[[Page 100323]]

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 . . . .'' (Document ID 0002).\1\ 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 (Document ID 0003).\2\
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    \1\ OSHA's Standards Improvement Project (SIP) is a series of 
regulatory reviews and rulemakings intended ``to improve and 
streamline OSHA standards by removing or revising requirements that 
are confusing or outdated, or that duplicate, or are inconsistent 
with, other standards'' (Document ID 0007).
    \2\ ACCSH had previously, in 1999, issued a report titled Women 
in the Construction Workplace: Providing Equitable Safety and Health 
Protection (Document ID 0020) in which the committee identified ill-
fitting PPE as a pressing issue for women in construction and 
recommended that OSHA revise the construction PPE standards in 29 
CFR part 1926 ``to conform with the General Industry Standard for 
PPE (29 CFR 1910.132) which specifies that the employer select PPE 
that properly fits each affected employee.''
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    On December 6, 2013, OSHA issued a SIP-IV Request for Information 
(RFI) 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'' (Document ID 0004). 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 (Document ID 0005, 0006).
    Based on stakeholder suggestions, on October 4, 2016, OSHA 
published the SIP-IV Notice of Proposed Rulemaking (NPRM) in the 
Federal Register (Document ID 0007). 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'' (Document ID 0007). 
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'' 
(Document ID 0007).
    OSHA received several comments specifically addressing the proposed 
revision to Sec.  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 
(Document ID 0008). The final rule did not include the proposed 
revision to the construction standard at Sec.  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 separately 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'' (Document 
ID 0008).
    On July 17, 2019, OSHA presented a draft proposed rule to ACCSH for 
its recommendation, as required by 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'' (Document ID 
0009). 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. OSHA responded that the proposed 
rule would not change how employers assessed 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 shipyards 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 Sec.  
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 Unions (NABTU) both supported the proposed revision to clarify 
that PPE must properly fit each affected employee (Document ID 0016, 
0017, 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'' (Document ID 0017, Attachment 1). LHSFNA 
commented that the fit problem can also affect men, including with 
respect to harness sizes for men who are over certain weight limits 
(Document ID 0016). NABTU stated that the proposed revision not only 
would make the construction standard consistent with the general 
industry standard but also was supported by worker organizations, 
safety associations, and ACCSH (Document ID 0017, Attachment 1).
    OSHA also received a comment in support of the proposed revision 
from Emmanuel Omeike (Document ID 0018), a safety professional, which 
included two studies addressing PPE and women in construction (Document 
ID 0018, Attachments 3, 4). The comment noted several examples of 
employees who were wearing PPE but nonetheless sustained injuries due 
to improper fit (Document ID 0018). Mr. Omeike stated that employees 
are more likely to remove improperly fitting PPE, thus negating 
whatever protection the PPE might otherwise provide (Document ID 0018). 
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) (Document ID 0019) opposing the proposed 
revision to Sec.  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 stated they ``[did] not 
believe that OSHA seriously considered the full impact this revision 
will have on employers and the construction industry in general.'' They 
argued that the proposed revision's ``broad scope covers a wide variety 
of PPE and situations that are not fully

[[Page 100324]]

appreciated in the SIP-IV'' and that ``[p]lacing 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.'' They further argued that the 
proposed revision ``fails to provide adequate notice to employers as to 
what `properly fit' would mean'' and questioned whether the standard 
would be violated if an employee complained that a hard hat is 
uncomfortable or if arc-flash clothing was ``too long in the legs for 
one employee'' (Document ID 0019).
    CISC also commented that revising Sec.  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 employers.'' According to CISC, 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'' (Document ID 0019). They added that, in many cases, whether 
PPE properly fits is subjective, and 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'' (Document ID 0019).
    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 of and need for 
PPE vary greatly in construction, therefore adding a new fit 
requirement would create more of a burden for construction employers 
(Document ID 0019). 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'' (Document ID 
0019).
    In response to CISC's comment on the SIP-IV proposal, OSHA 
acknowledged in the NPRM for this rule that there is a wide variety of 
PPE and hazards in the construction industry and stated that to protect 
workers from these varied hazards in the construction industry, it is 
critical that workers' PPE fit them properly. OSHA explained that it 
used the phrase ``proper fit'' in the SIP-IV rulemaking because that is 
the phrase used in OSHA's general industry and shipyards 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 shipyards. OSHA further noted that the addition of 
the ``properly fits'' provision to the general industry standard was 
made for the same reason that 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.
    Given the limited purposes of SIP-IV (i.e. ``to remove or revise 
outdated, duplicative, unnecessary, and inconsistent requirements in 
OSHA's safety and health standards'' (Document ID 0008)) and the 
comments on the PPE revision described above, OSHA determined not to 
finalize the revision to Sec.  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, in order to 
encourage robust public comment and acquire relevant information from 
stakeholders.
    On July 20, 2023, OSHA published the Personal Protective Equipment 
in Construction Notice of Proposed Rulemaking (NPRM) (Document ID 
0001), proposing to revise 29 CFR 1926.95(c) to clarify that personal 
protective equipment used in the construction industry must properly 
fit workers to protect them from hazards they may encounter in the 
workplace. OSHA has considered the issues raised by commenters during 
the SIP-IV rulemaking along with the comments received on the NPRM and 
addresses them below in Section III, Summary and Explanation.

III. Summary and Explanation

    This final rule amends 29 CFR 1926.95, Criteria for personal 
protective equipment, to make explicit the existing requirement that 
employers in the construction industry must ensure PPE worn by 
employees properly fits. Specifically, OSHA is revising Sec.  
1926.95(c) to state that employers must ensure 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.\3\ After reviewing the comments received, OSHA is 
finalizing the provision as proposed because the agency has determined 
the proposed language appropriately clarifies employers' obligations 
under the standard. OSHA has also determined that additional clarifying 
language is not necessary for the reasons discussed in section III.C. 
below.
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    \3\ Existing 1926.95(c) states only that all personal protective 
equipment shall be of safe design and construction for the work to 
be performed.
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    As OSHA explained in the NPRM, the agency has historically 
interpreted Sec.  1926.95 as requiring that PPE properly fit each 
employee, has published guidance to that effect, and has issued 
citations to employers in the construction industry who failed to 
provide properly fitting PPE (88 FR 46710-46712). As such, the revision 
in this final rule does not represent a substantive change to the 
standard. Rather, the goal of the revision is to clarify employers' 
existing obligations while aligning the language in the construction 
PPE standard with similar requirements for properly fitting PPE in 
OSHA's general industry (29 CFR 1910.132(d)(1)(iii)) and shipyards (29 
CFR 1915.152(b)(3)) standards.
    In response to the proposed rule, OSHA received 85 public comments. 
The vast majority of commenters supported the change. These commenters 
generally agreed that the change would provide greater clarity about 
employers' responsibility to make sure employees wear properly fitting 
PPE and would improve the workplace safety and health of construction 
workers. Some commenters raised concerns about the revisions, stating, 
for example, that the specifics of the requirement were unclear or that 
the change would result in prohibitive costs for employers. The issues 
raised by these comments and others are discussed in more detail below.

A. Impact of Improperly Fitting PPE and the Need for an Explicit 
Requirement

    In the NPRM, OSHA discussed the importance of properly fitting PPE 
in the construction industry, explaining that improperly fitting PPE 
may not protect workers from hazards and could create additional 
hazards (81 FR 46710-46711). The agency noted several studies and 
reports that identified instances of improperly fitting PPE either 
failing to protect workers from the hazard for which the PPE was 
intended

[[Page 100325]]

(e.g., loose-fitting goggles exposing an employee's eyes to flying 
debris) or introducing additional hazards (e.g., loose-fitting gloves 
becoming caught in machinery). In addition, OSHA identified evidence 
that employees are more likely to remove or not use ill-fitting PPE.
    In response to the NPRM, many commenters agreed with OSHA that 
improperly fitting PPE poses a hazard to workers in the construction 
industry (see, e.g., Document ID 0040, 0052, 0057, 0073, 0076, 0079-
0081, 0115). For example, the American Industrial Hygiene Association 
(AIHA) commented that ``[a]ny worker's safety and health can be 
adversely impacted by PPE that does not fit properly,'' adding that 
workers who are smaller and larger than average size are most likely to 
be impacted by improperly fitting PPE (Document ID 0058). NABTU 
similarly stated that ``[p]roperly fitting PPE is essential in the 
construction industry because poorly fitting PPE does not provide the 
wearer with adequate protection'' (Document ID 0108). The National 
Institute for Occupational Safety and Health (NIOSH) identified several 
studies demonstrating that poorly fitting PPE can inadequately protect 
workers and can create additional hazards (Document ID 0073).
    Numerous commenters shared their personal experiences with the lack 
of properly fitting PPE. For example, one commenter (Document ID 0061) 
was the first woman hired on a jobsite and resorted to buying her own 
extra small and small gloves because her employer refused to provide 
her with anything other than gloves that were too large. After running 
out of gloves that properly fit her, she was forced to wear the 
improperly fitting larger gloves. While working on an air conditioning 
unit, the improperly fitting gloves became caught in a pulley, 
resulting in a wrist sprain, torn ligaments, fractured fingers, and 
nerve damage. If this commenter had been provided properly fitting PPE, 
these injuries might have been avoided. Another commenter, who stated 
that OSHA's proposal ``would directly improve my safety on the job,'' 
shared that, as a woman who has been provided improperly fitting PPE, 
she has suffered ``multiple injuries and near misses'' because properly 
sized PPE often is not available (Document ID 0065). Another commenter 
explained how they have had to purchase their own gloves because they 
have been told it's impossible to find gloves small enough to fit them 
(Document ID 0056). For fear of losing her job or not being paid, a 
commenter who has worked 18 years as a laborer described using tape and 
raingear to protect herself while working in water because the only 
waders provided by the employer were too large and presented a drowning 
risk (Document ID 0080).
    Many commenters raised concerns about being provided various items 
of improperly fitting PPE, with fall protection harnesses frequently 
cited as an item that often does not fit properly (Document ID 0031, 
0035-0037, 0039, 0044, 0048, 0053, 0056, 0063, 0064, 0066, 0068, 0073, 
0075-0077, 0080, 0081, 0084, 0087, 0090, 0093, 0098, 0108, 0112, 0113). 
Although harnesses come in various sizes and can be adjusted to some 
extent, many commenters describe receiving harnesses that were too 
large. There were commenters who mentioned receiving extra large 
harnesses that did not fit them appropriately because they were too 
long (Document ID 0076, 0081). When given larger harnesses, one 
commenter stated that the employer tells them to ``shrink it down to 
make it fit'' (Document ID 0068). A woman new to the construction 
industry commented that she has been dealing with ill-fitting PPE such 
as harnesses that are too loose on her and become a ``safety HAZARD and 
a hinderance'' (Document 0035). Several commenters noted that harnesses 
and other PPE designated as ``unisex'' are not truly appropriate for 
women (Document ID 0036, 0037, 0041, 0063, 0108).
    Some commenters noted that the lack of properly fitting PPE can 
lead to a less inclusive workplace. According to Chicago Women in 
Trades and Allied Organizations (CWIT), ``As a result, women struggle 
to secure consistent employment and find work on safe and respectful 
jobsites. In this sense, the disproportionate challenges tradeswomen 
face around accessing properly fitted PPE is a consequence of the way 
women are seen and valued in the construction industry'' (Document ID 
0098). Flatiron Construction added that the proposed rule is not only 
essential for preventing injuries in the workplace, but ``having proper 
fitting PPE is also crucial to promoting a sense of belonging within 
the industry'' and helping the construction industry attract and retain 
workers (Document ID 0106). Another commenter also argued that 
clarifying OSHA's PPE requirement could lead to greater recruitment and 
retention of workers, specifically women (Document ID 0047). The 
International Painters and Allied Trades and the Signatory Wall and 
Ceiling Contractors Alliance (Painters et al.) added that ``[i]f we are 
going to bring more women into the trades both the industry and the 
regulatory structure that surrounds it must evolve to ensure the safety 
of women on the job. Establishing that an employer's obligation to 
provide PPE in construction extends to providing properly fitting PPE 
is a critical part of this'' (Document ID 0078). One commenter simply 
stated that putting workers at risk because they do not fit standard-
size PPE is ``inequitable and immoral'' (Document ID 0059).
    A few commenters mentioned efforts to address improperly fitting 
harnesses. NIOSH commented that they have conducted studies on fall 
protection harnesses that have resulted in ``guidelines to develop 
improved sizing systems and strap lengths for whole body fall arrest 
harnesses'' and ``improved harness configuration to fit construction 
workers'' (Document ID 0073). The ISEA notes that modern fall arrest 
harnesses, especially those with adjustable hip belts, are 
ergonomically designed to fit women, and some harnesses that are 
designed for women will also fit men. They recommended that ``employers 
and their distributors should work with employees to identify a harness 
that fits properly and is designed to protect against the hazards at 
hand'' (Document ID 0112). NABTU cited examples of harnesses that are 
designed to fit women, explaining that ``harnesses designed to fit 
women aim to provide improved protection against fall hazards and 
increased comfort. They offer a range of features tailored for varied 
anthropometry, including hip and chest adjustability, increased hip and 
back support, vertical shoulder straps, comfort padding and more'' 
(Document ID 0108).
    In the NPRM, OSHA preliminarily determined that revising Sec.  
1926.95 to include clear and explicit language that PPE must fit 
properly would help ensure workers in the construction industry are 
protected from workplace hazards (81 FR 46711). OSHA requested comment 
on whether the inclusion of an explicit requirement in Sec.  1926.95(c) 
would help clarify construction employers' obligations to provide 
properly fitting PPE to their employees. Numerous commenters were 
supportive of OSHA's clarifying language (Document ID 0024, 0028, 0029, 
0031, 0034-0048, 0050-0068, 0071-0081, 0083-0088, 0091-0098, 0106-0108, 
0110, 0112, 0113, 0115, 0116). Of these comments, many expressed the 
need for an explicit requirement in the standard to ensure that workers 
receive properly fitting PPE. Kentucky's Department of Workplace 
Standards commended OSHA for proposing explicit language on properly 
fitting PPE, agreeing with OSHA that ``providing clear and explicit

[[Page 100326]]

language in the construction PPE standard clarifies employers' 
responsibility to provide employees with properly fitting PPE, thereby 
ensuring employee protection'' (Document ID 0095). CWIT commented that 
``[t]he rule clarification aids in reaffirming OSHA's existing 
interpretation of its current construction standard and clearly 
communicates to employers their obligations to provide properly fitting 
PPE'' (Document ID 0098). California's Occupational Safety and Health 
Standards Board (Cal/OSHSB) responded that clarification of the PPE 
requirements is necessary and supported OSHA's proposed revision 
(Document ID 0107). The National Safety Council (NSC) commented that 
the clarifying language ``will save lives and prevent injuries'' 
(Document ID 0096). The American Society of Safety Professionals (ASSP) 
Chesapeake Chapter also supported the proposed revision (Document ID 
0083).
    Some commenters who support the proposed changes believe including 
explicit language that PPE must properly fit construction workers could 
spur the manufacture, distribution, and availability of PPE in more 
wide-ranging sizes and fits. A commenter who has ``been too often 
confronted with the challenge of finding PPE scaled to fit smaller and 
female workers'' supports the clarification and hopes it will create 
more of a market for PPE that fits smaller workers and women (Document 
ID 0031). One commenter likewise expressed hope that this clarification 
would ``create the market demand for smaller PPE that merchants 
currently refuse to see'' (Document ID 0046). Another commenter said it 
was imperative for women to get safety equipment that fits them 
correctly (Document ID 0113). After mentioning how it is difficult to 
find options of smaller sizes for various PPE, a commenter said that 
the proposal would ``lead to more demand . . . and encourage 
manufacturers to make these products'' (Document ID 0039).
    To this point, OSHA mentioned in its proposed rule that The Center 
for Construction Research and Training (CPWR) and ISEA have a list of 
manufacturers of PPE specifically for women (81 FR 46711). In their 
comment to the proposed rule, ISEA also noted that ``PPE manufacturers 
provide safety equipment in size ranges and adjustability to fit a vast 
majority of the construction workforce. ISEA members are willing to 
work with occupational safety stakeholders to make sure all workers 
have PPE that is required. . . .'' (Document ID 0112).
    A number of commenters stated that an explicit requirement for 
properly fitting PPE will not only ensure they have PPE to protect them 
from hazards but would increase their productivity. CWIT highlighted in 
their comment that ``[w]hen PPE fits incorrectly, it can cause a 
disruption to a worker's . . . capacity to complete projects'' 
(Document ID 0098). A commenter expressed how being asked to ``make due 
[sic]'' with improperly fitting PPE put them at risk of going home 
without pay or losing their job because they couldn't complete the 
assigned tasks. Properly fitting PPE would not just protect them but 
allow them to do complete tasks that would benefit their employer 
(Document ID 0045). Another commenter stated how the proposal would 
drastically change their productivity at work (Document ID 0048) while 
another explained how it is difficult to do their job when safety 
equipment does not fit correctly (Document ID 0054). These comments 
demonstrate how improperly fitting PPE not only affords the wearer 
inadequate protection from hazards but also hurts employers' 
productivity and makes it difficult for workers who need non-standard 
sizes of PPE \4\ to remain employed in the construction industry.
---------------------------------------------------------------------------

    \4\ OSHA uses the term ``non-standard'' to refer to sizes of PPE 
that are available on the market but that some construction 
employers may not routinely order or keep in stock.
---------------------------------------------------------------------------

    OSHA received two comments that questioned the necessity of the 
proposed revision and suggested that existing standards are sufficient. 
One commenter stated that OSHA could cite 29 CFR 1926.28(a), the 
general requirement that PPE be worn in hazardous conditions on 
construction worksites (Document ID 0026); another appeared to say that 
29 CFR 1910.132(d), the general industry standard on which OSHA is 
modeling this revision to the construction standard, renders this 
revision unnecessary. That standard, however, applies only to general 
industry work, not construction work. And the general requirement for 
PPE in construction is inadequate because, as explained above, it is 
clear from the record that workers in the construction industry have 
either struggled to obtain properly fitting PPE or are still being 
provided PPE that does not fit. This often leaves these employees 
exposed to the hazards the PPE is meant to protect against and may be 
creating additional hazards. This is especially true for workers of 
larger and smaller stature, women in particular.
    Based on the comments received and the information in the record, 
OSHA reaffirms its finding that improperly fitting PPE is a hazard to 
workers in the construction industry and finds that an explicit 
requirement in Sec.  1925.95 is appropriate to clarify employers' 
existing obligation to ensure PPE properly fits each employee.

B. Whether the Rule Would Effectuate the Purpose of the OSH Act Better 
Than Consensus Standards

    Section 6(b)(8) of the OSH Act (29 U.S.C. 655(b)(8)) requires OSHA, 
in adopting a standard, 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 revising 29 CFR 1926.95 
as proposed will better effectuate the purposes of the OSH Act than 
relying on the language of existing national consensus standards.
    While there are many consensus standards that address PPE, there is 
no general consensus standard on PPE that incorporates a fit 
requirement. Instead, each standard focuses 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 Flame-Resistant 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 is revising 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. This revision also makes clear that all PPE must fit 
properly, regardless of whether there is an applicable consensus 
standard.
    Additionally, many consensus standards do not include mandatory 
language. For example, both ANSI standards discussed above include 
specific language concerning properly fitting PPE. However, while ANSI 
Z87.1 discusses the importance of properly

[[Page 100327]]

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 
Sec.  1926.95(c) in this final rule will clarify that properly fitting 
PPE is an enforceable requirement rather than the non-mandatory 
suggestions contained in those consensus standards. The agency believes 
that a clear and explicit requirement will help ensure that employers 
provide employees with properly fitting PPE.
    OSHA requested comments on whether the proposed revision would 
effectuate the purpose of the OSH Act better than existing consensus 
standards. Several commenters agreed that it would (Document ID 0073, 
0098, 0108, 0112). NABTU responded that the proposed revision would do 
so because ``[w]hile some national consensus standards address fit, 
there is no requirement that employers follow consensus standards'' 
(Document ID 0108). Similarly, CWIT stated that revisions to the OSHA 
standards would be better than ``adopting each consensus standard, with 
varying language around type, use, and fit'' and relying on ``a non-
mandatory suggestion as described in certain consensus standards'' 
(Document ID 0098). NIOSH also supported revisions to the standard over 
reliance on consensus standards because ``[p]roviding all the 
information in one place will ensure all PPE fitting guidelines are 
readily accessible and consistent'' (Document ID 0073). AIHA also 
commented that this rule would effectuate the purpose of the OSH Act 
better than consensus standards because ``[r]egulatory language is 
helpful for employers to have a better understanding of what is 
required and thresholds for compliance'' (Document ID 0058). One 
commenter even identified an instance of a consensus standard 
obstructing their company's efforts to develop a Class 3 safety vest 
for women (Document ID 0106).
    ISEA, an organization whose members design, test, manufacture, and 
supply PPE and which serves as secretariat for several consensus 
standards on PPE, supports the new regulatory language, noting that 
while consensus standards ANSI/ISEA Z87.1-2020, Current Safety 
Standards for Safety Glasses and Z89.1-2019, Industrial Head 
Protection, effectuate the purpose of the OSH Act, ``a requirement that 
PPE fit properly will help to make certain that workers get PPE that 
meets these standards and fits the wearer'' (Document ID 0112). Having 
evaluated the information relevant to this particular issue, OSHA 
concludes that revising the existing standard as proposed will better 
effectuate the purpose of the OSH Act than relying on the language of 
existing consensus standards.

C. The Appropriateness of the New Regulatory Text

    OSHA requested comment on the wording of the agency's proposed 
addition to 29 CFR 1926.95, which, as explained above, is substantially 
similar to the language in OSHA's general industry and shipyards 
standards that require properly fitting PPE.
    Some commenters suggested language for the regulatory text that 
would refer to manufacturers' instructions regarding fit. A 
representative from Cook's Excavating, LLC, commented that OSHA should 
adopt the language ``[a]ll personal protective equipment shall properly 
fit the affected employee in accordance with the manufacturer's 
recommendations'' (Document ID 0034). The World Floor Covering 
Association also recommended relying on ``manufacturer's 
recommendations or specifications to determine proper fit'' as well as 
suggesting that ``PPE that meets applicable national consensus 
standards should also be deemed to properly fit'' (Document ID 0114). 
Cal/OSHSB encouraged OSHA to adopt language similar to their standards, 
which provide that PPE be used according to the manufacturer's 
instructions (Document ID 0107). NIOSH also recommended a reference to 
manufacturers' recommendations for proper fit to provide additional 
guidance to stakeholders (Document ID 0073). One commenter, however, 
was skeptical of using manufacturers' recommendations because 
``manufacturer's instructions may not provide clear or accurate 
guidance on how to measure or adjust fit, especially for women's sizes 
or models'' (Document ID 0091).
    OSHA believes that the manufacturer's instructions and 
recommendations can be an important source of information concerning 
the proper fit of PPE. OSHA encourages employers to look to 
manufacturer's instructions and recommendations for guidance on how an 
item of PPE should properly fit the wearer. However, the agency is not 
including it as a requirement in its construction standard because 
doing so would limit employers' flexibility when finding and choosing 
PPE that meets the individual needs of their workers. In addition, the 
clarified requirement for employers to provide properly fitting PPE 
applies regardless of whether the manufacturer of the PPE provides 
instructions or recommendations on proper fit. Where the manufacturer's 
instructions or recommendations are silent on proper fit, the employer 
can often look to consensus standards for additional guidance on the 
appropriate fit of an item of PPE. Employers can also choose PPE 
products for which guidance on proper fit exists, either from the 
manufacturer or otherwise, over items where such information is 
lacking.
    OSHA also requested comment on whether there was any confusion 
about what ``properly fits'' means for PPE used in the construction 
industry. In the NPRM, OSHA explained 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. Most 
commenters expressed no confusion about what ``properly fits'' means, 
but some had additional suggestions for explaining the term. For 
example, the AIHA suggested an ``operational definition . . . so that 
employers know what is meant and for proper compliance documentation . 
. . . The standard should point employers to specific actions per PPE 
item that can be taken'' (Document ID 0058). NIOSH commented that they 
agree with OSHA's interpretation of ``properly fits'' but that based on 
responses to the SIP-IV rulemaking, it is clear it is not ``universally 
understood'' (Document ID 0073). They suggested that OSHA define the 
phrase. CWIT endorsed OSHA's interpretation of the term but noted that 
assessments of proper fit must take into account workers' body changes 
during pregnancy (Document ID 0098).
    Some comments requested additions to the proposed regulatory text. 
The ASSP Chesapeake Chapter asked for clarification of employer and 
employee responsibilities to ``emphasize the gravity of the issue and 
encourage proactive measures in ensuring properly fitting PPE is 
available'' (Document ID 0083). One commenter asked OSHA to ``expound[ 
] on `proper fit' in the standard . . .'' (Document ID 0032), while 
another asked for ``clarifications, specifications, or resources for 
the employers who are responsible to provide the properly fitting PPE 
in question'' (Document ID 0033). The latter commenter also suggested 
that OSHA include a requirement for a qualified or competent person to 
determine the proper fit of PPE (Document ID 0033). The United 
Brotherhood of Carpenters & Joiners of America (UBCJA) suggested 
expanding

[[Page 100328]]

the regulatory text to add, ``To properly fit personal protective 
equipment must be comfortable to wear, not pose a danger and provide 
effective protection'' (Document ID 0074).
    OSHA believes its explanation of ``properly fits'' provides 
employers with enough information that they can select PPE for their 
workers that will adequately protect them from the hazards of the 
worksite without creating additional hazards. Given the significant 
variety in types and models of PPE, the varied circumstances in which 
they are used, and the potential for new technology and new forms of 
PPE in the future, OSHA does not believe it is appropriate or necessary 
for the agency to prescribe specific fit criteria for all possible 
forms of PPE. Similarly, OSHA does not believe it is necessary for the 
agency to prescribe specific criteria for workers' changing bodies, as 
the requirement for properly fitting PPE applies every time the PPE is 
used. Rather, the agency believes a performance-based approach is 
appropriate, just as the underlying requirement to identify and provide 
necessary PPE is performance-based (see 29 CFR 1926.95).
    In the general industry and maritime sectors, OSHA has not needed 
to accompany the requirement for properly fitting PPE with specific 
directions regarding fit for each item of PPE or other details about 
what ``properly fits'' means; nor do those standards include a 
requirement that a designated competent person assess PPE fit. There is 
no indication that this has resulted in significant confusion among 
employers in those sectors. Indeed, as noted in the NPRM, OSHA issued 
only 51 citations for improperly fitting PPE in general industry and 
shipyards between the years 1994 and 2021, which suggests the vast 
majority of employers have been able to comply (88 FR 46712). Providing 
specific fit requirements for each individual type of PPE item also 
might undermine the manufacturer's recommendations for a particular PPE 
item. Accordingly, OSHA is not convinced that further details within 
the regulatory text are necessary for the construction industry. In any 
event, OSHA can issue additional guidance in the future if the agency 
determines it is needed.
    In the proposed rule, OSHA stated that ``properly fits'' means, in 
part, that the PPE ``does not create additional safety and health 
hazards arising from being either too small or too large'' (88 FR 
46711). OSHA listed examples of the additional hazards to which workers 
can be exposed because of improperly fitting PPE (81 FR 46710-46711). 
These examples demonstrate a few of the ways that improperly fitting 
PPE can create additional hazards, with a few examples coming directly 
from OSHA inspections. Commenters also submitted examples of how 
improperly fitting PPE can create additional hazards. The UBCJA agreed 
with OSHA's emphasis on additional hazards, adding that ``[e]ven a 
loose safety vest can pose a danger if it is unexpectedly caught in 
equipment'' (Document ID 0074). NIOSH explained that ``[s]afety glasses 
slipping off, loose gloves getting caught on machines or exposing skin, 
or blisters forming from ill-fitting safety boots make working more 
difficult and can adversely affect worker safety and job satisfaction'' 
(Document ID 0073. The State Building and Construction Trades Council 
of California noted that ``oversized protective clothing can lead to 
tripping hazards or get caught in machinery. . . . Poorly-fitted fall 
protection harnesses may lead to other injuries. . . . Gloves that are 
too big put a worker at risk of coming into contact with chemicals that 
can cause dermatitis or other skin diseases'' (Document ID 0028). 
Another commenter mentioned how ill-fitting PPE could snag on scissor 
lifts (Document ID 0097) while a member of IBEW Local 48 commented that 
``[i]tems that are too large run the risk of becoming entangled in 
machinery. . . .'' (Document ID 0040).
    CISC raised concerns about OSHA's discussion of additional hazards. 
They contend that ``[w]ithout additional clarification on what 
`additional hazards' employers must address in order to comply with the 
proposed rule, employers will be forced to re-evaluate every single 
piece of PPE they provide to their employees. Employers will be tasked 
with identifying additional hazards that could result from their PPE 
not `properly fitting' in every situation'' (Document ID 0109). CISC 
suggested OSHA ``provide notice of specific hazards that are associated 
with PPE that does not properly fit'' and ``clarify what `additional 
hazards' improperly fitting PPE may cause'' (Document ID 0109).
    It is neither necessary nor possible for OSHA to identify all 
hazards that might arise from improperly fitting PPE, just as the 
agency does not identify all hazards that might necessitate PPE in the 
first place (see 29 CFR 1926.95(a)). Given the many combinations of PPE 
that can be selected to protect workers from the multitude of 
workplace-specific hazards, employers are in the best position to 
identify what hazards exist at their particular worksite, the 
appropriate PPE to address those hazards, and the proper fit of PPE 
that will not result in additional hazards. This is both because 
employers have the most knowledge of the work tasks involved and the 
hazards faced by employees at their worksite and because they have 
access to the people with the most direct knowledge about proper fit: 
the employees who must wear the PPE. In most cases, the affected 
employee will be able to indicate whether the provided PPE fits 
properly or whether it poses a hazard from their work tasks. The 
employer also knows the specific PPE involved in a given case and can 
refer to the manufacturer's instructions for that specific item for 
additional guidance. Finally, to the extent that relevant national 
consensus standards address proper fit of particular PPE, employers may 
look to those standards for guidance as well.
    The ASSP Chesapeake Chapter asked for clarification of how the 
proposed change affects the employer/employee relationship, stating 
that ``[c]learly defined responsibilities for employers will emphasize 
the gravity of this issue and encourage proactive measures in ensuring 
properly fitting PPE is available'' (Document ID 0083). This revision 
has no impact on the employer/employee relationship; it simply 
clarifies that every employer is responsible for ensuring that their 
workers have properly fitting PPE. Additional responsibilities 
employers have regarding PPE of their workers in the construction 
industry can be found in Subpart E--Personal Protective and Life Saving 
Equipment, 29 CFR 1926.95 through 1926.107.

D. Differences Between General Industry, Maritime, and the Construction 
Industry

    OSHA requested comments on whether any differences between general 
industry and maritime and the construction industry impact whether OSHA 
should include ``properly fits'' in the construction standard as 
proposed in the NPRM. Commenters expressed support for language that 
reflects the requirements for properly fitting PPE in the general 
industry and maritime industries. NIOSH, for example, stated that 
``mirroring the language for general industry and maritime standards is 
appropriate because of the significant hazards and injury burden in the 
construction industry. The change will provide added emphasis on the 
documented need to ensure all PPE fits all workers well'' (Document ID 
0073). The AIHA noted that it knew of no differences between general 
industry, maritime, and construction that would impact OSHA's inclusion 
of ``properly

[[Page 100329]]

fits'' in the construction standards (Document ID 0058). Painters et 
al. commented that ``[t]here is nothing unique to the construction 
industry that would put an undue burden on employers to ensure that 
each worker has access to PPE that fits their size and shape properly 
and can be used for the purpose for which it was intended: to protect 
the worker from hazards of injury or illness'' (Document ID 0078).
    Some commenters suggested that it is inappropriate to align the 
language in the construction industry with the language of general 
industry and shipyards because the construction industry is different 
from general industry and shipyards. CISC argued that an important 
difference between the construction industry and other industries is 
the changing conditions of the worksite. ``The construction industry 
does not operate in static, permanent worksites'' with known hazards 
that ``have long since been identified and documented'' like in general 
industry and shipyards; rather, it is ``dynamic'' and ``[w]hat PPE is 
needed and when, can vary from day to day . . .'' (Document ID 0109). 
The National Demolition Association (NDA) made a similar argument, 
stating that construction worksites present different challenges and 
work conditions than other industries, but did not elaborate on what 
those differences are and how they would be impacted by OSHA's proposal 
(Document ID 0111).\5\
---------------------------------------------------------------------------

    \5\ NDA also commented that State and local governments, rather 
than OSHA, should develop any regulations on properly fitting PPE 
(Document ID 0111). However, the OSH Act grants OSHA the authority 
to promulgate safety and health standards, including the 
construction standard that this final rule revises. Furthermore, 
OSHA sees no reason why a general requirement for properly fitting 
PPE would differ among different geographic areas.
---------------------------------------------------------------------------

    OSHA does not find this argument persuasive. First, Sec.  
1926.95(a) requires construction employers to provide appropriate PPE 
to employees when necessitated by workplace hazards. This is true 
regardless of how dynamic the work activities are. Given that employers 
must already analyze the hazards on their worksites, no matter how 
dynamic, and provide necessary PPE, these commenters fail to explain 
why the dynamic nature of the activities warrants permitting employers 
to provide PPE that does not fit.
    Moreover, although there are differences between the construction 
industry and other industries, many of the hazards that necessitate 
properly fitting PPE to protect workers are the same. In the NPRM, OSHA 
referenced citations in general industry and maritime for violation of 
the requirement for properly fitting PPE. Many of those violations were 
for PPE that is also used in the construction industry, such as 
harnesses and gloves. As evidenced by the comments to the NPRM, several 
stakeholders' primary concerns about properly fitting PPE involve these 
types of items (see, e.g., OSHA's discussion of comments related to 
harnesses in B. Impact of Properly Fitting PPE). Neither CISC nor NDA 
identified examples of PPE that are unique to the construction 
industry.
    OSHA also emphasizes that the Advisory Committee on Construction 
Safety and Health (ACCSH), which is composed of an equal number of 
employee and employer representatives along with representatives from 
State and Federal agencies and subject-matter experts (see 29 CFR 
1912.3(b)), has on several occasions urged OSHA to align the language 
in the construction PPE standards with those in general industry and 
shipyards (Document ID 0002, 0003, 0020). Finally, as explained in 
Section VI, Technological Feasibility, OSHA finds that there are no 
technological barriers to providing construction employees with 
properly fitting PPE.
    In sum, OSHA is not convinced any differences that exist between 
the construction industry and other industries warrant depriving 
construction employees of protection against the hazards posed or not 
prevented by improperly fitting PPE. Indeed, as discussed above, 
properly fitting PPE is already an implicit requirement under the 
construction standard for PPE and this final rule makes that 
requirement explicit. Accordingly, OSHA concludes that the proposed 
language is appropriate for inclusion in the standard.

E. The Adequacy of Guidance on PPE ``Proper Fit'' in Construction

    Prior to the publication of the proposed rule, ACCSH recommended 
that OSHA provide additional guidance explaining what ``proper fit'' 
means for the construction industry. As described above, in the NPRM, 
OSHA explained 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'' (88 FR 46711). OSHA also 
requested comment on whether existing OSHA guidance regarding PPE 
``proper fit'' in construction is adequate and if it is not, what type 
of additional guidance OSHA should provide.
    OSHA received a variety of comments in response to this request. 
While NIOSH responded that existing guidance was not adequate, they 
commented that revising OSHA's construction standards to explicitly 
state that PPE must properly fit would help address this concern. NIOSH 
also suggested that OSHA should define ``properly fitting'' (Document 
ID 0073). The NSC noted they have a PPE training that teaches that PPE 
should fit comfortably and not be too large or too small (Document ID 
0096). CWIT suggested that OSHA develop an eTool to provide guidance on 
proper fit of PPE (Document ID 0098). Cal/OSHSB recommended that OSHA 
work with manufacturers and provide guidance on conformity assessments 
for all PPE (Document ID 0107). The ISEA, while agreeing with OSHA's 
interpretation of proper fit, suggested that OSHA work with 
stakeholders to develop additional guidance such as FAQs to minimize 
any confusion about the requirement to provide properly fitting PPE.
    OSHA is willing to work with construction industry stakeholders to 
develop specific guidance that will broadly address any confusion or 
concerns the industry has about providing PPE that properly fits 
workers. To do that, OSHA must first have clear and explicit language 
in its construction standards that communicates an employer's 
obligations. After a review of the comments received in response to 
this proposed rule, OSHA believes that the proposed language 
accomplishes this goal.

F. Osha Enforcement of PPE Fit Requirements

    In the NPRM, OSHA explained that enforcement of the requirement for 
properly fitting PPE in construction would be the same as it has been 
in general industry and maritime, relying on enforcement guidance the 
agency has already created for those industries and applying it to the 
construction industry. OSHA also provided citation data and examples of 
violations of the requirement to have properly fitting PPE to 
demonstrate how the agency has been enforcing this requirement in 
general industry and shipyards (88 FR 46711).
    Some commenters requested additional information on how OSHA will 
enforce this requirement. CISC argued that the proposed rule ``does not 
discuss how investigators will be evaluating PPE for compliance'' 
resulting in ``concern that employers will be held to subjective 
standards of whether PPE fits properly and what steps employers must 
take to ensure they are in compliance'' (Document ID 0109). Other 
commenters who

[[Page 100330]]

supported the proposed rule overall agreed with this concern that 
enforcement could be subjective (Document ID 0088, 0091). Painters et 
al., on the other hand, noted that the proposed changes do not 
introduce new concepts. ``[W]e think it is important to note that the 
uncertainty often associated with the revision of an OSHA standard does 
not pertain to this proposed rule. OSHA is adopting language it has 
long applied in the general industry and maritime standards'' (Document 
ID 0078).
    With regard to enforcement-related concerns, OSHA believes that 
this preamble adequately explains what OSHA expects from employers: to 
select PPE for their workers that is appropriately designed and sized 
to adequately protect them from hazards without creating additional 
hazards. OSHA believes this performance-based interpretation of 
``properly fits'' provides sufficient specificity while maintaining 
flexibility to allow employers to select the PPE necessary to protect 
their workers on the job. Additionally, there is existing guidance that 
can assist employers in selecting properly fitting PPE. Several 
commenters pointed out that the manufacturer's instructions are an 
important source of information on the proper fit of PPE (see Document 
ID 0034, 007, 0107, 0114). Although consensus standards do not carry 
mandatory obligations to meet their standards, they also can provide 
guidance on how various PPE items should fit.
    One important aspect of determining what PPE should be provided to 
workers is comfort. OSHA stated in the proposed rule that improperly 
fitting PPE can be uncomfortable for the wearer, which in turn can lead 
workers to modify or disregard the PPE and become vulnerable to a 
hazard (81 FR 46711). Several commenters echoed this concern. Some 
commenters mentioned that ill-fitting, uncomfortable PPE could be 
dangerous (Document ID 0076, 0081). NIOSH stated that comfort is an 
important factor that can positively impact PPE use (Document ID 0073). 
Cal/OSHSB commented that ``[m]aking sure that PPE not only fits but is 
comfortable is imperative to ensuring that employees wear the PPE 
throughout their shift'' (Document ID 0107). UBCJA requested that OSHA 
adopt language stating that for PPE to properly fit, it must be 
comfortable to wear (Document ID 0074).
    Some commenters expressed concern about whether comfort would be an 
indication of proper fit and, if so, how OSHA would address that from 
an enforcement standpoint. CISC asked, ``Is comfort important because 
it encourages employees to keep PPE on, or is it a citable offense even 
if `uncomfortable' PPE is being worn?'' (Document ID 0109). Similarly, 
the Wood Floor Covering Association asked, ``Is simply finding the PPE 
to be uncomfortable sufficient to claim it does not properly fit even 
[if] the equipment provides full protection?'' (Document ID 0114).
    OSHA reaffirms its position that comfort is an important 
consideration for properly fitting PPE, both because more comfortable 
PPE is more likely to be worn by workers rather than discarded and 
unused and because discomfort in many cases can indicate improper fit. 
An employee's expression of discomfort should be taken seriously by the 
employer, as it may signal that the PPE warrants further evaluation to 
ensure it will serve its protective purpose and will not create 
additional hazards.
    At the same time, OSHA also recognizes that discomfort during the 
use of PPE may not always be the result of improper fit. Some PPE may 
be inherently uncomfortable, despite fitting properly. OSHA has 
explained in other contexts that personal discomfort alone does not 
give rise to a violation of the OSH Act's General Duty Clause, absent a 
related recognized hazard that could cause death or serious physical 
harm (see Reiteration of Existing OSHA Policy on Indoor Air Quality: 
Office Temperature/Humidity and Environmental Tobacco Smoke, available 
at https://www.osha.gov/laws-regs/standardinterpretations/2003-02-24). 
The same is true with respect to PPE under 29 CFR 1926.95: OSHA cannot 
issue a citation simply because PPE that properly fits is 
uncomfortable.\6\ However, OSHA cautions that regardless of fit, 
employers have an independent duty to ensure that appropriate PPE is 
worn at all times when necessitated by a workplace hazard (29 CFR 
1926.28). Because the record clearly indicates uncomfortable PPE is 
more likely to go unused, employers would be wise to take seriously 
employees' concerns about discomfort.
---------------------------------------------------------------------------

    \6\ OSHA notes that while discomfort may not alone establish 
improper fit, the converse is also true; a lack of employee 
discomfort does not alone establish proper fit.
---------------------------------------------------------------------------

    Finally, a few commenters suggested that increased enforcement from 
OSHA and/or a ``culture change'' among employers would be more 
effective in achieving the goal of properly fitting PPE than changing 
the rule (Document ID 0026, 0027). While OSHA operates, as always, with 
limited resources, the agency believes that the amended standard, by 
making employers' responsibilities explicit, will encourage a more 
protective approach to PPE across the construction industry.

IV. Pertinent Legal Authority

    The purpose of the Occupational Safety and Health Act (29 U.S.C. 
651 et seq.) (``the Act'' or ``the OSH Act'') 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 (``the Secretary'') to promulgate standards to protect workers, 
including the authority ``to set mandatory occupational safety and 
health standards applicable to businesses affecting interstate 
commerce'' (29 U.S.C. 651(b)(3); see also 29 U.S.C. 654(a) (requiring 
employers to comply with OSHA standards), 655(a) (authorizing summary 
adoption of existing consensus and Federal standards within two years 
of the Act's enactment), 655(b) (authorizing promulgation, modification 
or revocation of standards pursuant to notice and comment)), and 
655(b)(7) (authorizing OSHA to include among a standard's requirements 
labeling, monitoring, medical testing, and other information-gathering 
and information-transmittal provisions)). An occupational safety or 
health standard is a standard which 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)).
    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)).
    The OSH Act imposes several requirements OSHA must satisfy before 
adopting a safety standard. Among other things, the standard must 
provide a high degree ofemployee protection, substantially reduce a 
significant risk to workers, be technologically feasible, and be 
economically feasible (see 58 FR 16612, 16614-16 (Mar. 30, 1993); UAW 
v. OSHA, 37 F.3d 665, 668-69 (D.C. Cir.

[[Page 100331]]

1994)). OSHA need not make additional findings on risk for this final 
rule because the rule involves a clarification of an existing OSHA 
standard and does not create any new requirements for employers. 
Accordingly, OSHA is not required to conduct a significant risk 
analysis for the change to Sec.  1926.95 (see Edison Elec. Inst. v. 
OSHA, 849 F.2d 611, 620 (D.C. Cir. 1988)).
    A standard is technologically feasible if the protective measures 
it requires already exist, can be brought into existence with available 
technology, or can be created with technology that is reasonably 
expected to be developed (see Am. Iron and Steel Inst. v. OSHA, 939 
F.2d 975, 980 (D.C. Cir. 1991)). Courts have also interpreted 
technological feasibility to mean that a typical firm in each affected 
industry or application group will reasonably be able to implement the 
requirements of the standard in most operations most of the time (see, 
e.g., Public Citizen v. OSHA, 557 F.3d 165, 170-71 (3d Cir. 2009); 
United Steelworkers of Am. v. Marshall, 647 F.2d 1189, 1272 (D.C. Cir. 
1981)).
    In determining economic feasibility, OSHA must consider the cost of 
compliance in an industry rather than for individual employers. In its 
economic analyses, OSHA ``must construct a reasonable estimate of 
compliance costs and demonstrate a reasonable likelihood that these 
costs will not threaten the existence or competitive structure of an 
industry, even if it does portend disaster for some marginal firms'' 
(Am. Iron and Steel Inst., 939 F.2d at 980, quoting United Steelworkers 
of Am., 647 F.2d at 1272).

V. Final Economic Analysis and Regulatory Flexibility Act Certification

Introduction

    OSHA has examined the impacts of this rule as required by Executive 
Order 12866, Regulatory Planning and Review (September 30, 1993); 
Executive Order 13563, Improving Regulation and Regulatory Review 
(January 18, 2011); Executive Order 14094, Modernizing Regulatory 
Review (April 6, 2023) (hereinafter, the Modernizing E.O.); the 
Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96354); 
section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 
1995; Pub. L. 104-4); and Executive Order 13132, Federalism (August 4, 
1999).
    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity).\7\ The 
Modernizing E.O. amends section 3(f) of Executive Order 12866. As 
amended, section 3(f) defines a ``significant regulatory action'' as an 
action that is likely to result in a rule that may: (1) have an annual 
effect on the economy of $200 million or more in any 1 year (adjusted 
every 3 years by the Administrator of the Office of Information and 
Regulatory Affairs (OIRA) for changes in gross domestic product), or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, territorial, or Tribal governments 
or communities; (2) create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency; (3) 
materially alter the budgetary impacts of entitlement grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) raise legal or policy issues for which centralized 
review would meaningfully further the President's priorities or the 
principles set forth in [the Modernizing E.O.], as specifically 
authorized in a timely manner by the Administrator of OIRA in each 
case.
---------------------------------------------------------------------------

    \7\ While OSHA presents the following analysis under the 
requirements of Executive Orders 12866 and 13563, the agency 
ultimately cannot base its regulatory decisions on a simple 
maximization of net benefits due to the overriding legal 
requirements in the OSH Act.
---------------------------------------------------------------------------

    OIRA has determined that this final rule is a significant 
regulatory action under E.O. 12866 (but not under section 3(f)(1)), and 
that it does not meet the criteria set forth in 5 U.S.C. 804(2) under 
the Congressional Review Act.
    OSHA has prepared this Final Economic Analysis (FEA) which presents 
the agency's estimates of the costs and benefits of the rulemaking.

Changes From the Proposal

    As discussed above, OSHA is finalizing this rule with the same 
changes to the regulatory text that the agency proposed. Public 
comments received in response to the proposal generally support the 
need for the rule. A number of commenters gave examples of employers 
not providing them with properly fitting PPE. One commenter said ``I 
buy my own PPE, i.e., glasses, gloves because no contractor ever has 
small of either. I've been in the trade 27 years and have never had a 
contractor have those for me'' (Document ID 0094). Another stated that 
``[a]s an electrician since 2015, there have been years I have not been 
provided correctly fitting PPE. Employers did not anticipate my 
pregnancy, so high-visibility coats were hard to find and expensive. . 
. . A coat for males had sleeves that were too long and got in the way 
of working'' (Document ID 0115). However, public comments also support 
several changes to the economic analysis. Those changes are as follows.
    For the proposal, OSHA estimated minimal costs to comply with the 
rule since it simply clarifies an existing requirement. OSHA did, 
however, request information from commenters about the impact of the 
rule on the provision of properly fitting PPE. Based on responsive 
comments in the record, OSHA has determined that it is appropriate to 
account for additional costs. In particular, OSHA has added costs for 
purchasing properly fitting harnesses and earplugs, which were not 
included in the proposal. In addition, OSHA has added ongoing annual 
costs for non-compliant employers to continue to provide properly 
fitting PPE to their employees after initially replacing it. OSHA has 
also added costs for rule familiarization time as well as the time for 
employers to assess, research, and identify properly fitting PPE for 
those workers who are not currently being provided with it. Where more 
recent economic data is available, OSHA has updated the data used for 
its analysis. Finally, OSHA is attributing (although not quantifying) 
health and safety benefits to this final standard based on evidence in 
the record that workers are being injured due to improperly fitting 
PPE. These updates are discussed in more detail later in this section.

A. Profile of Affected Establishments and Employees

1. Introduction
    This final rule amends the construction standard at 29 CFR 
1926.95--Criteria for Personal Protective Equipment, paragraph (c), to 
clarify that PPE must properly fit each employee. This revision 
clarifies an existing requirement and OSHA therefore concludes that the 
rule will impose only limited costs on employers that are not already 
providing their employees with properly fitting PPE. 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 final rule is to clarify an existing 
requirement about which there may have been confusion in the regulated 
community. Given the public comments indicating that some employees are 
not

[[Page 100332]]

being provided with PPE that properly fits, the record supports the 
need for changes in behavior among some employers. As a result, OSHA 
has estimated the costs for a portion of employers to come into 
compliance with the already-existing requirement to provide properly 
fitting PPE. This analysis demonstrates that the rule will be feasible 
to implement.
2. Background
    On November 15, 2007, OSHA published its final rule on Employer 
Payment for Personal Protective Equipment (PPE Payment) (72 FR 64342). 
A brief description of this rulemaking is provided here because certain 
estimates and parameters used in the economic analysis for this rule 
are taken from the analysis accompanying that final rule. In the PPE 
Payment rulemaking, OSHA identified the various types of PPE that are 
worn by employees, the percentage of employees who use PPE, 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). Information on employee PPE use 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). For this rulemaking, OSHA developed assumptions 
about the types of PPE that are universal fit versus those that are not 
universal fit and the types of PPE that are provided by the employer 
versus purchased by employees for reimbursement.
    When the economic analysis for the PPE Payment rule was performed, 
the most recent data available on number of employees were from the 
U.S. Census' 2004 County Business Patterns. Using that data, OSHA 
estimated the number of employees using PPE and the industries in which 
they worked. Total use of PPE in the construction industries as derived 
in the PPE Payment rule is presented in table 1. Note that only the 
types of PPE that are subject to replacement under this PPE Fit rule 
are presented. OSHA uses the values in table 1 as the basis for its 
updated 2022 \8\ figures for PPE items used (see table 7).
---------------------------------------------------------------------------

    \8\ As noted below, 2022 was the most recent year for which the 
County Business Patterns data were available at the time this 
analysis was performed.

  Table 1--Use of Selected PPE in the Construction Industries, From the
                            PPE Payment Rule
------------------------------------------------------------------------
                                                    Total PPE items used
           PPE provided by the employer              by employees (2004)
                                                            U.S.
------------------------------------------------------------------------
Chemical Protective Clothing......................               358,089
Chemical Protective Footwear......................               211,871
Chemical Splash Goggles...........................               584,797
Earmuffs..........................................               642,362
Face Shields......................................             1,194,399
Gloves for Abrasion Protection....................             2,940,764
Gloves for Chemical Protection....................               896,173
Non-Prescription Safety Glasses...................             3,485,009
Safety Goggles....................................             2,506,959
Splash Aprons.....................................               197,632
                                                   ---------------------
    Total of PPE items used by construction                   13,018,055
     employees....................................
------------------------------------------------------------------------
Source: OSHA, Office of Regulatory Analysis (ORA), based on PPE Payment
  rule (72 FR 64406). See Final Economic Analysis spreadsheet (Document
  ID 0118).

3. PPE Fit Rule--Affected Establishments and Employees
    OSHA determined the number of establishments that would need to 
comply with this rule using County Business Patterns (CBP) data for 
2022. All establishments within NAICS 236 (Construction of Buildings), 
NAICS 237 (Heavy and Civil Engineering Construction), and NAICS 238 
(Specialty Trade Contractors) are considered to be within the scope of 
this rule. As shown in table 2, there are a total of 800,651 
establishments in the affected Construction NAICS industry codes.

  Table 2--Affected Construction Establishments by NAICS Industry, 2022
------------------------------------------------------------------------
                       NAICS                           Establishments
------------------------------------------------------------------------
236 (Construction of Buildings)...................               251,634
237 (Heavy and Civil Engineering Construction)....                38,214
238 (Specialty Trade Contractors).................               510,803
                                                   ---------------------
    Total.........................................               800,651
------------------------------------------------------------------------
Source: OSHA, ORA, based on U.S. Census Bureau, County Business
  Patterns, 2024. See Final Economic Analysis spreadsheet (Document ID
  0118).

    Overall employment and the number of employees using PPE in these 
NAICS industries--both broken out by sex--are shown in table 3. Based 
on BLS Current Employment Statistics for 2022, the construction 
industry was made up of about 86 percent men and 14 percent women. 
According to the CBP, there were 7,361,847 employees in the

[[Page 100333]]

construction industry in 2022. Taken together, these data indicate that 
employment in the construction industry is comprised of 6,313,488 men 
and 1,048,359 women. OSHA estimated in the PPE Payment rule that 79.85 
percent of construction employees use PPE of any type. Using this 
percentage, the agency estimates that 5,041,402 men and 837,128 women 
in the construction industry use any type of PPE. OSHA used these 
parameters and this methodology to identify employees by sex and PPE 
usage in the proposed rule and received no comment on this approach; 
OSHA therefore has maintained the same methodology for the final rule.

                Table 3--Estimated Employees in Construction Industries by Sex and PPE Use, 2022
----------------------------------------------------------------------------------------------------------------
                                                                                                Total employees
                                        % of employees    Total employees      % Using PPE         using PPE
----------------------------------------------------------------------------------------------------------------
Men.................................               85.8          6,313,488              79.85          5,041,402
Women...............................               14.2          1,048,359              79.85            837,128
                                     ---------------------------------------------------------------------------
    Total...........................  .................          7,361,847  .................          5,878,530
----------------------------------------------------------------------------------------------------------------
Source: OSHA, ORA, based on U.S. Census Bureau, 2024, and OSHA PPE Payment rule, 2007. See Final Economic
  Analysis spreadsheet (Document ID 0118).

B. Costs of Compliance

    OSHA has determined that this rule could impose three main types of 
costs on establishments in the construction industry: (1) rule 
familiarization, (2) researching PPE, and (3) replacing PPE. The costs 
for researching properly fitting PPE for purchase and for replacing 
improperly fitting PPE will only be incurred by employers who are out 
of compliance with the already-existing requirement to provide workers 
with PPE that fits properly.
1. Rule Familiarization
    Employers in some affected establishments will spend time 
familiarizing themselves with the rule. OSHA estimates that rule 
familiarization will take ten minutes for a health and safety 
coordinator to complete \9\ and that 50 percent of the establishments 
in the three construction NAICS industries will take time to 
familiarize themselves with the rule. OSHA has assumed that only 50 
percent of establishments will need familiarization time not only 
because this final rule is simply a clarification of an existing 
requirement, but because the rule aligns the construction regulatory 
text on PPE fit with the general industry requirement, with which many 
construction employers are likely familiar. OSHA, therefore, believes 
that many employers already know that they must provide PPE that fits 
properly and will not need to spend time familiarizing themselves with 
this final rule. The loaded wages \10\ used to calculate the cost of 
rule familiarization time are taken from BLS' Occupational Employment 
and Wage Statistics (OEWS) dataset for 2023 (https://www.bls.gov/oes/tables.htm) for Occupational Health and Safety Specialists and 
Technicians.\11\ Table 4 shows the costs of rule familiarization.
---------------------------------------------------------------------------

    \9\ This is comparable to the five minutes estimated to be spent 
on familiarization in the FEA for OSHA's recent (and similarly 
brief) final rule on the Worker Walkaround Representative 
Designation Process (See 89 FR 22558, 22594 (April 1, 2024)).
    \10\ The loaded wages include an industry specific base wage 
(BLS, 2024, OEWS), a 31.23 percent markup from base wages to account 
for employer provided fringe benefits (BLS, 2024, Employer Costs for 
Employee Compensation), and OSHA's standard 17 percent markup from 
base wages to account for overhead costs to the employer.
    \11\ OSHA used the BLS OEWS Standard Occupation Classification 
code 19-5010 for NAICS 236, 237, and 238.

                                  Table 4--Total Costs of Rule Familiarization
                                                     [2023$]
----------------------------------------------------------------------------------------------------------------
                                                      50% of        Unit burden                     Total cost
             NAICS               Establishments   establishments      (hours)          Wage           (2023$)
----------------------------------------------------------------------------------------------------------------
236 (Construction of                    251,634          125,817            0.17          $65.45      $1,372,517
 Buildings)...................
237 (Heavy and Civil                     38,214           19,107            0.17           63.65         202,694
 Engineering Construction)....
238 (Specialty Trade                    510,803          255,402            0.17           58.32       2,482,631
 Contractors).................
                               ---------------------------------------------------------------------------------
    Total.....................          800,651          400,326              NA              NA       4,057,842
----------------------------------------------------------------------------------------------------------------
Source: OSHA, ORA, based on U.S. Census Bureau, 2024, and BLS OEWS, 2024. See Final Economic Analysis
  spreadsheet (Document ID 0118).

2. Researching PPE for Purchase
    For this final rule, OSHA is accounting for costs related to 
researching and finding non-standard-sized PPE. Some commenters said 
that it is difficult to locate PPE in certain non-standard sizes. For 
instance, one commenter said that it was challenging finding PPE, 
including protective footwear, to fit her smaller frame and that she 
hopes this final rule will eliminate the need for ``extensive searches 
for `small' gear'' (Document ID 0031). Another commenter said that 
``[h]igh-visibility coats that fit a pregnant belly are hard to find'' 
(Document ID 0115), while a third commenter said that small size high 
visibility vests and boots are difficult to come by and that even 
proactive employers can encounter limited supply in non-standard sizes 
(Document ID 0079). Other commenters, however, noted the availability 
of PPE to fit a wide range of worker body shapes and sizes (Document ID 
0108, 0112; see also Document ID 0014, 0117). Based on these comments, 
OSHA has estimated that it may take some additional time for employers 
to find appropriate PPE in non-standard sizes for workers not

[[Page 100334]]

currently wearing properly fitting PPE.\12\
---------------------------------------------------------------------------

    \12\ As noted in the Technological Feasibility discussion, 
extensive lists of providers of non-standard-sized PPE are available 
online from multiple sources.
---------------------------------------------------------------------------

    In order to provide properly fitting PPE for the employees who need 
it, OSHA estimates that affected establishments will spend 10 minutes 
assessing the needs of their employees related to PPE (assessment) and 
another 10 minutes researching and identifying specific replacement PPE 
for employees (identification). The agency estimates that 184,935 
construction employees might require non-standard sizes of PPE (see 
table 9) but recognizes that not all those employees are using 
improperly fitting PPE. This is especially true given that construction 
employers are already required to provide their employees with properly 
fitting PPE. OSHA assumes that up to 10 percent of those workers--or 
18,494 workers--were being provided with incorrectly fitting PPE prior 
to promulgation of this final rule. While it potentially overstates the 
number of employers who will need to assess PPE needs and spend time 
researching PPE in different sizes, OSHA assumes that each employee 
needing replacement PPE works at a different company, such that the 
number of employers that will need to research PPE equals the number of 
affected employees. A more detailed explanation of the estimated number 
of affected employees and thus employers is described in the next 
section and presented in tables 9 and 10.
    OSHA calculated one-time, initial costs for the PPE needs 
assessment and identification of non-standard size PPE. OSHA also 
estimated annually recurring costs to identify properly fitting PPE for 
newly-hired employees who may need non-standard sizes of PPE. To 
calculate the number of employers that would need to incur this cost 
annually, OSHA multiplies the estimated 18,494 workers mentioned above 
by the JOLTS annual hire rate within the construction sector for 2023, 
which is 55.7 percent (BLS JOLTS, 2024). For this analysis, OSHA uses 
the loaded wage rate for a purchasing manager \13\ based on BLS' OEWS 
dataset for 2023 to estimate the costs for identifying the correct PPE, 
and the loaded wage rate for Occupational Health and Safety Specialists 
and Technicians \14\ for PPE assessment costs.\15\ Table 5 shows the 
initial costs for the assessment and identification of properly fitting 
PPE. Table 6 presents the ongoing, annual costs of identifying non-
standard sizes of PPE for newly hired employees. The cost of the PPE 
itself is estimated in the next section.
---------------------------------------------------------------------------

    \13\ OSHA used the BLS OEWS Standard Occupation Classification 
code 11-3061 for NAICS 236, 237, and 238.
    \14\ OSHA used the BLS OEWS Standard Occupation Classification 
code 19-5010 for NAICS 236, 237, and 238.
    \15\ The loaded wages include an industry specific base wage 
(BLS, 2024, OEWS), a 31.23 percent markup from base wages to account 
for employer provided fringe benefits (BLS, 2024, Employer Costs for 
Employee Compensation), and OSHA's standard 17 percent markup from 
base wages to account for overhead costs to the employer. The wages 
presented are weighted averages from the three NAICS codes affected 
by this rule.

                                  Table 5--Total Costs of Initial PPE Research
----------------------------------------------------------------------------------------------------------------
                                                 Affected       Unit burden     Wage (weighted      Total cost
             PPE research item                establishments      (hours)          average)           (2023$)
----------------------------------------------------------------------------------------------------------------
Assessment.................................           18,494            0.17              $60.82        $187,457
Identification.............................           18,494            0.17               91.64         282,454
                                            --------------------------------------------------------------------
    Total Cost.............................  ...............  ..............  ..................         469,911
----------------------------------------------------------------------------------------------------------------
Note: Using the figures presented here to perform the calculations in the table may not result in the same
  totals due to rounding.
Source: OSHA, ORA, based on BLS OEWS, 2024. See Final Economic Analysis spreadsheet (Document ID 0118).


                                                       Table 6--Annual Cost of PPE Identification
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Affected                      Unit burden       Wage (weighted       Total cost
                            Cost item                               establishments     Hire rate       (hours)            average)           (2023$)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Identification...................................................           18,494         55.7%             0.17               $91.64         $157,327
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Using the figures presented here to perform the calculations in the table may not result in the same totals due to rounding.
Source: OSHA, ORA, based on BLS OEWS, 2024 and BLS JOLTS, 2024. See Final Economic Analysis spreadsheet (Document ID 0118).

3. Replacing PPE
    As shown in table 7, 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. PPE items 
identified as universal fit are those that are adjustable and capable 
of fitting most people.\16\ OSHA assumes that PPE items purchased by 
the employee and then reimbursed by the employer already fit properly, 
since the employee will select the size that fits them best. The 
remaining PPE items are those provided by the employer that are not 
universal fit.
---------------------------------------------------------------------------

    \16\ In their comment, AIHA objected to the term ``universal 
fit,'' saying that ``[n]o PPE is universal fit, even the most 
adjustable PPE may not fit workers on the extremes of anthropometric 
data'' (Document ID 0058). OSHA acknowledges that at the tail ends 
of the distribution of human variation, some adjustable PPE will not 
fit. For the purposes of this analysis, however, OSHA maintains that 
some items of PPE that come in standard, adjustable sizes will fit 
nearly all individuals working in the construction industry and so 
maintains this designation for a limited number of items in this 
analysis.

                               Table 7--PPE Used in the Construction Industries *
----------------------------------------------------------------------------------------------------------------
                                            PPE items purchased by
  PPE items provided by the employer,     employee and reimbursed by           PPE items of universal fit
           not universal fit                       employer
----------------------------------------------------------------------------------------------------------------
Body Harnesses........................  Prescription Safety Glasses...  Body Belts.
Chemical Protective Clothing..........  Protective Electrical PPE.....  Hardhats.
Chemical Protective Footwear..........  Protective Welding Clothing...  Welding Helmets.

[[Page 100335]]

 
Chemical Splash Goggles...............  Safety Shoes with Metatarsal
                                         Guards.
Earmuffs..............................  Safety Shoes Without
                                         Metatarsal Guards.
Earplugs..............................  Welding Goggles...............
Face Shields..........................  Welding Helmets...............
Gloves for Abrasion Protection........
Gloves for Chemical Protection........
Non-Prescription Safety Glasses.......
Safety Goggles........................
Safety Vests..........................
Splash Aprons.........................
----------------------------------------------------------------------------------------------------------------
* 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).
Note that Safety Vests were not included in the PPE Payment rule. Body harnesses and ear inserts have been moved
  from the Universal Fit column to the column for Provided by the Employer, not Universal Fit, as a result of
  comments indicating these items are not universal fit.
Source: OSHA, ORA.

    In this analysis, the only PPE that OSHA is estimating may need 
replacement as a result of this final rule are the items that are 
provided by the employer and not universal fit. For these items, the 
standard size may not fit all workers. Therefore, in cases where 
employers have provided only standard-sized PPE, some workers may not 
have been provided properly fitting PPE.
    OSHA derives the total number of PPE items currently used by 
employees by multiplying the number of PPE items used by employees in 
2004 as estimated in the PPE Payment rule analysis by the employment 
growth rate in the construction industry from 2004 to 2022 per County 
Business Patterns data. Using currently available supply catalogs, the 
agency identified up to three cost estimates for ``standard'' sizes of 
each PPE item potentially requiring replacement, taking the average of 
those estimates for use in this analysis.\17\ OSHA then calculates the 
total costs of replacing all employer-supplied, non-universal fit PPE 
by applying these unit costs to the total number of PPE items used by 
all employees who wear PPE. Finally, to get the total one-time 
replacement costs related to this rule, OSHA estimates the number of 
employees needing replacement PPE and the average per-employee cost for 
replacing their PPE with non-standard sized PPE and multiplies them. A 
detailed description of this approach is provided in the following 
paragraphs.
---------------------------------------------------------------------------

    \17\ Note that current prices are in 2024 dollars whereas this 
FEA uses 2023 dollars as its base year. As such, the prices may be 
somewhat overstated.
---------------------------------------------------------------------------

    In the PPE Payment rule, OSHA estimated that the total number of 
employer-provided, non-universal fit PPE items worn by construction 
employees in 2004 was about 13 million. However, that analysis did not 
include safety vests in the list of necessary PPE. For this rulemaking, 
as presented in the proposal, the agency estimated the cost and use of 
safety vests, including them in the number of PPE items worn by 
construction workers in 2022, the unit cost, and the total cost.
    In addition, in the proposed PPE Fit rule, OSHA treated body 
harnesses as universal fit, which was consistent with how body 
harnesses were treated in the PPE Payment rule. However, OSHA received 
a number of comments suggesting that standard body harnesses frequently 
do not fit women. One commenter stated, ``[o]ur research suggests that 
there are a very limited number of harnesses available on the market 
that are truly `universal fit' harnesses'' (Document ID 0108). Several 
commenters pointed out that women's bodies are shaped differently and 
that unisex harnesses are not properly adjustable to accommodate 
breasts, hips, leg length, and height; that use of improperly fitting 
harnesses could lead to bodily harm; and that use of unisex harnesses 
is uncomfortable for women (e.g., Document ID 0048, 0068, 0076, 0077, 
0080, 0084, 0093, 0098). One commenter noted that in a fall, a 
traditional unisex harness could damage a woman's pelvic region. That 
commenter pointed out that while there are harnesses that are designed 
specifically to accommodate women's bodies, some employers think unisex 
is ``good enough'' (Document ID 0063). Another commenter said ``Women 
have breasts so harnesses are not very comfortable when they are 
designed for men. There are, apparently, harnesses designed for women 
but I never to this day have even seen one'' (Document ID 0066). Yet 
another commenter noted that ``On more than one job I have had to use 
the generic one size fits all XL safety harness where leg straps on the 
tightest eyelet hang to my knees'' (Document ID 0090). Therefore, in 
the final rule, OSHA has added body harnesses to the list of PPE that 
are non-universal fit and might require replacement. As a result, they 
have been moved to the first column of table 7 above.
    In addition, a comment from the ISEA indicated that earplugs 
(referred to as ``ear inserts'' in the proposal) ``are designed and 
manufactured in multiple sizes and shapes to accommodate the wide range 
of sizes and shapes of ear canals'' (Document ID 0112). NIOSH agreed, 
stating that earplugs ``should be reclassified as `provided by the 
employer, not universal fit' because earplugs are not completely 
adjustable and may not be capable of fitting every person'' (Document 
ID 0073, attachment 2). Based on these comments, OSHA reclassified 
earplugs from universal fit to provided by the employer, not universal 
fit, and adjusted the cost model accordingly.
    Based on the most recent data (2022) available from CBP (https://www.census.gov/programs-surveys/cbp/data/tables.html), employment in 
the construction industries has increased by 10.74 percent since 2004. 
OSHA applied this 10.74 percent increase to the agency's estimates, in 
the PPE Payment rule, of the numbers of PPE items in 2004 that were 
employer-supplied and not universal fit. As described above, OSHA also 
added estimates for the use of several PPE items that were not included 
in that category in the PPE Payment rule (safety vests, body harnesses, 
and earplugs). Body harnesses and ear plugs were accounted for in the 
PPE Payment analysis as universal fit PPE, and their use was estimated 
there; thus, the estimates of current use of these items are derived 
from the PPE Payment analysis in the

[[Page 100336]]

same way as use of the other items accounted for in PPE Payment.
    Because safety vests were not included in the PPE Payment rule, 
OSHA estimated the number of safety vests used by construction workers 
using occupation-level employment data from BLS OEWS for 2023. A 
certain subset of the employees in the three affected NAICS industries 
is estimated to need safety vests based on general assumptions about 
the specific occupation. As an example, while all employees in 
occupations deemed in-scope for this rule in the Heavy and Civil 
Engineering Construction industry (NAICS 237) are assumed to need 
safety vests, Security Guards in the other two industries (Construction 
of Buildings, NAICS 236, and Specialty Trade Contractors, NAICS 238) 
are considered to be employees who are not near roads and thus OSHA 
assumed only 5 percent of these employees would need safety vests.\18\
---------------------------------------------------------------------------

    \18\ As a result of these calculations, OSHA determined that, 
among the roughly 1.4 million construction workers considered, 
837,448 of these workers would use safety vests.
---------------------------------------------------------------------------

    Based on the calculations described above, the agency estimates 
that the total number of non-universal fit PPE items worn by 
construction employees in 2022 was about 20.0 million. Dividing the 
total number of PPE items in use from table 8 (20,020,424) by the total 
number of construction workers in 2022 wearing PPE from table 3 
(5,878,530) yields an estimate that each construction employee wearing 
PPE provided by the employer, and not universal fit, wears an average 
of 3.41 items of PPE.
    Based on current pricing information, OSHA estimated a total cost 
of purchasing ``standard'' sizes of non-universal fit PPE of 
approximately $262.0 million, including an estimated $6.3 million for 
safety vests, $147.3 million for body harnesses, and $442,000 for 
earplugs. OSHA divided the total cost of PPE by the total number of 
items of PPE for an average per unit PPE cost of $13.08. The agency 
then multiplied the per unit PPE cost by the average number of items of 
PPE per employee to calculate an average cost of $44.56 ($13.08 x 3.41) 
to outfit a construction employee in their needed PPE, assuming that 
employee can use standard sizes.

                      Table 8--Use and Cost of Selected PPE in the Construction Industries
----------------------------------------------------------------------------------------------------------------
                                                          Total PPE items     PPE unit cost,
    PPE provided by the employer, not universal fit      used by employees    standard size        Total cost
                                                              (2022)             (2024$)            (2024$)
----------------------------------------------------------------------------------------------------------------
Body Harnesses \a\....................................           2,004,783             $73.48       $147,311,472
Chemical Protective Clothing..........................             396,561               7.71          3,059,075
Chemical Protective Footwear..........................             234,634              12.86          3,018,178
Chemical Splash Goggles...............................             647,626              10.07          6,521,590
Earmuffs..............................................             711,375              12.49          8,887,449
Earplugs \a\..........................................           2,761,510               0.16            441,658
Face Shields..........................................           1,322,723              15.79         20,890,200
Gloves for Abrasion Protection........................           3,256,712              10.63         34,607,992
Gloves for Chemical Protection........................             992,455               1.82          1,809,577
Non-Prescription Safety Glasses.......................           3,859,430               3.87         14,923,130
Safety Goggles........................................           2,776,301               4.60         12,761,729
Safety Vests \b\......................................             837,448               7.49          6,275,277
Splash Aprons.........................................             218,865               6.60          1,443,772
                                                       ---------------------------------------------------------
    Total PPE items used by construction employees....          20,020,424  .................        261,951,099
                                                       ---------------------------------------------------------
    Average per Unit PPE Cost (2024)..................  ..................  .................              13.08
----------------------------------------------------------------------------------------------------------------
\a\ The PPE Payment analysis estimated the use of body harnesses and earplugs but considered them to be
  universal fit PPE items.
\b\ afety vests were not included in the PPE Payment analysis. OSHA, ORA, estimated their use in 2022 and their
  cost in 2024 dollars to be consistent how the agency derived the values for other types of PPE.
Source: OSHA, ORA, based on PPE Payment rule, ERG Cost Estimates, 2024. See Final Economic Analysis spreadsheet
  (Document ID 0118).

    Finally, OSHA estimated the costs of purchasing replacement PPE for 
employees with improperly fitting PPE. Given the current lack of data 
on how many employees might be wearing improperly fitting PPE, OSHA 
estimated this parameter by combining sex specific construction 
employment data with general population height and weight 
distributions. The numbers of women and men in the construction 
industry who wear PPE is presented above in table 3.
    To estimate the numbers of women and men who might require non-
standard sizes of PPE, the agency relied on height and weight data for 
the general population in the Census Bureau's 2010 National Health and 
Nutrition Examination Survey (NHANES) (https://www2.census.gov/library/publications/2010/compendia/statab/130ed/tables/11s0205.pdf).\19\ OSHA 
assumed, as shown in table 9, 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 currently be using improperly fitting 
PPE.20 21 OSHA acknowledges that this assumption results in 
only a rough estimate of workers who might be using PPE that fits 
improperly, for several reasons. First, using the general population 
height and weight distributions may not align precisely with the height 
and weight distributions for construction workers. For example, 
Hispanic males make up a greater proportion of the

[[Page 100337]]

construction workforce than the population in general and are, on 
average, slightly shorter than, and weigh less than, non-Hispanic white 
males. Second, it is possible that there are fewer people who are much 
smaller or larger than average in the construction industry. Finally, 
OSHA 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, both male and female.\22\ Note that OSHA used an 
identical approach to this issue in its preliminary analysis and did 
not receive any comments on it. Therefore, the agency decided to retain 
this approach for the final analysis.
---------------------------------------------------------------------------

    \19\ This data source reflects the most recent publicly 
available data that can be used to estimate the percentage of 
construction employees who are above a certain weight threshold or 
below a certain height threshold.
    \20\ The base figure for men shorter than five feet tall was too 
small to meet statistical standards of reliability of a derived 
figure.
    \21\ OSHA's analysis assumes that only construction workers who 
meet the specified height or weight criteria may require non-
standard sizes of PPE. OSHA then uses this universe of workers when 
calculating the number of workers 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.
    \22\ OSHA recognizes that the assumption that standard-sized PPE 
properly fits all workers who are above five feet tall and weigh 
less than 300 pounds is not accurate in some cases, especially given 
the comments noting that ``unisex'' fall protection harnesses do not 
fit many women properly. As the rulemaking record reflects, 
standard-sized PPE may not properly fit some workers who are above 
five feet tall and weigh less than 300 pounds; at the same time, 
some workers who are shorter than five feet tall and/or weigh more 
than 300 pounds may be able to safely use standard sizes of PPE. 
Further, some individuals who are under five feet tall may also be 
over 300 pounds, meaning the data may potentially double count some 
individuals. Given this, it is important to note that OSHA views the 
categories of women shorter than five feet tall and men and women 
weighing above 300 pounds as a proxy for all workers who might 
require non-standard sizes of PPE and therefore are more likely than 
others to be receiving PPE that does not fit them properly.
---------------------------------------------------------------------------

    Due to data limitations and as a simplifying assumption for this 
analysis, the agency also assumes that construction workers are 
distributed across age groups in the same proportions as the general 
population examined in the NHANES. The agency then multiplies the 
average percentages for each weight and height category by the total 
number of men, and the total number of women, in the construction 
industry that wear any type of PPE, as shown in table 9.

                                       Table 9--Construction Employees Who Might Require Non-Standard Sizes of PPE
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                               Ages
               Construction employee characteristic                ------------------------------------------------------------   Average       Total
                                                                       20-29       30-39       40-49       50-59       60-69                  employees
--------------------------------------------------------------------------------------------------------------------------------------------------------
Men Above 300 pounds..............................................        2.5%        3.1%        1.9%        1.9%        2.2%        2.32%      116,961
Women Above 300 pounds............................................        2.3%        1.6%        1.7%        0.6%        0.7%        1.38%       11,552
Women Under 5 foot tall...........................................        5.7%        6.0%        5.0%        8.0%        9.0%        6.74%       56,422
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Total Employees Who Might Require Non-Standard Sizes of PPE............................................................................      184,935
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: OSHA, ORA, based on NHANES, 2010. See Final Economic Analysis spreadsheet (Document ID 0118).

    The agency estimates that 184,935 construction employees might 
require non-standard sizes of PPE but recognizes that not all of those 
employees are using improperly fitting PPE. This is especially true 
given that construction employers are already required to provide their 
employees with properly fitting PPE. OSHA assumes that up to 10 percent 
of those workers--or 18,494 workers--were being provided with 
incorrectly fitting PPE prior to promulgation of this final rule. OSHA 
used the same assumption in the preamble to the proposed rule and 
received no comments on the estimate nor suggestions on a different 
estimate the agency should use; therefore, OSHA has maintained this 
methodology and simply updated the underlying data used for this final 
analysis.
    OSHA received a number of comments on the issue of whether non-
standard sizes of PPE are more expensive than standard sizes. For 
example, some commenters expressed that ``outlier sizes'' tend to cost 
more and that because of this, employers are less likely to purchase 
them (Document ID 0038, 0047). Similarly, others said that employers' 
``costs or compliance burdens'' would increase because employers will 
have to purchase multiple sizes of PPE, purchase smaller quantities, or 
purchase from manufacturers with which they do not typically do 
business (Document ID 0082, 0107, 0112). Some commenters who asserted 
that the rule would increase costs for businesses cited very high PPE 
unit costs that OSHA could not corroborate or suggested employers would 
be required to amass inventories of PPE that the rule does not require 
(Document ID 0082, 0114).
    Other commenters argued that the costs associated with purchasing 
properly fitting PPE will be minimal. For example, CWIT stated that 
this final rule should result in ``[l]ittle economic burden'' (Document 
ID 0098). NABTU commented, ``. . . over 90 percent of construction 
establishments employ less than 20 workers. As such, to the extent some 
construction employers are not already in compliance, the cost of doing 
so will not be substantial'' (Document ID 0108). ISEA noted that while 
there may be costs for special orders of PPE in extremely small or 
large sizes, ``the size ranges of current PPE are likely to be able to 
provide a proper fit to the vast majority of the nation's construction 
workforce'' (Document ID 0112).
    To address these comments, OSHA estimates that larger and smaller 
sizes of PPE cost 15 percent more than the average size PPE of that 
type. OSHA thus calculated the average, per-person cost to issue 
replacement PPE in non-standard sizes by increasing the base price of 
$44.56 by 15 percent, for an estimate of $51.24. As indicated in table 
10, OSHA estimates that replacing the PPE for 18,494 employees would 
cost roughly $948,000 for the entire construction industry.

[[Page 100338]]



                                    Table 10--Potential PPE Replacement Cost
                                                     [2023$]
----------------------------------------------------------------------------------------------------------------
                                                                             Average per-
Assumed percent of employees needing replacement PPE    Total affected    employee PPE cost,  Total cost (2023$)
                       (2022)                              employees       non-standard size
----------------------------------------------------------------------------------------------------------------
10% Employees.......................................             18,494              $51.24            $947,696
----------------------------------------------------------------------------------------------------------------
Note: Using the figures presented here to perform the calculations in the table may not result in the same
  totals due to rounding.
Source: OSHA, ORA. See Final Economic Analysis spreadsheet (Document ID 0118).

    In addition to the cost of initially replacing improperly fitting 
PPE for some employees, employers will need to continue providing these 
non-standard sizes of PPE to those employees on an ongoing basis. OSHA 
calculates the recurring annual costs of providing these non-standard 
sizes of PPE using the marginal cost of non-standard sizes of PPE 
compared to the cost of standard sizes of PPE. As noted above, OSHA 
estimates this marginal cost increase is 15 percent. As shown in table 
12, OSHA multiplies this marginal unit cost by the number of PPE items 
per employee for each PPE type, the total number of employees needing 
non-standard sizes of PPE, and the number of units of each PPE type 
needed in a year. OSHA determined the average useful life for the PPE 
items being considered here, as presented in table 11, based on 
estimates the agency developed for the PPE Payment rule and adjusted 
according to comments in the record for this rulemaking.\23\
---------------------------------------------------------------------------

    \23\ One commenter stated ``The useful life in regards to the 
economic analysis for ``Gloves for Abrasion Protection,'' 
``Earmuffs,'' and ``Safety Goggles'' all seem too high. In my 
experience as a worker, I would imagine the earmuffs to be closer to 
0.40, gloves to be 0.15, and safety goggles to be 0.20 or less on 
average'' (Document ID 0069). OSHA has adjusted the useful life of 
these types of PPE accordingly.

                  Table 11--Useful Life of Selected PPE
------------------------------------------------------------------------
   PPE provided by the employer, not universal fit     Useful life (yr.)
------------------------------------------------------------------------
Body Harnesses.......................................               2.00
Chemical Protective Clothing.........................               0.50
Chemical Protective Footwear.........................               0.50
Chemical Splash Goggles..............................               0.50
Earmuffs.............................................               0.40
Earplugs.............................................              0.005
Face Shields.........................................               1.00
Gloves for Abrasion Protection.......................               0.15
Gloves for Chemical Protection.......................               0.05
Non-Prescription Safety Glasses......................               1.00
Safety Goggles.......................................               0.20
Safety Vests.........................................               0.50
Splash Aprons........................................               0.50
------------------------------------------------------------------------
Source: OSHA based on PPE Payment FEA (72 FR 64342 (Nov. 15, 2007)).

    The number of PPE items per employee presented in table 12 are 
calculated using the average number of items needed per employee (3.41) 
and proportionally distributing that estimate based on the overall 
numbers of each PPE item compared to the total number of all PPE items 
(see table 8). The number of units of each PPE type needed in a year is 
based on the useful life estimates presented in table 11.

                             Table 12--Annual Marginal Cost of Non-Standard Size PPE
                                                     [2023$]
----------------------------------------------------------------------------------------------------------------
                                                                      Non-standard
           PPE type              Items per   Employees   Items per    size marginal  Total items  Total marginal
                                 employee                   year        unit cost      per year    cost (2023$)
----------------------------------------------------------------------------------------------------------------
Body Harnesses................        0.34      18,494          0.5          $11.02        3,153         $34,758
Chemical Protective Clothing..        0.07      18,494          2.0            1.16        2,495           2,887
Chemical Protective Footwear..        0.04      18,494          2.0            1.93        1,476           2,849
Chemical Splash Goggles.......        0.11      18,494          2.0            1.51        4,075           6,155
Earmuffs......................        0.12      18,494          2.5            1.87        5,595          10,485
Earplugs......................        0.47      18,494        200.0            0.02    1,737,512          41,683
Face Shields..................        0.23      18,494          1.0            2.37        4,161           9,858
Gloves for Abrasion Protection        0.55      18,494          6.7            1.59       68,303         108,875
Gloves for Chemical Protection        0.17      18,494         20.0            0.27       62,444          17,078
Non-Prescription Safety               0.66      18,494          1.0            0.58       12,142           7,042
 Glasses......................
Safety Goggles................        0.47      18,494          5.0            0.69       43,670          30,111
Safety Vests..................        0.14      18,494          2.0            1.12        5,269           5,923

[[Page 100339]]

 
Splash Aprons.................        0.04      18,494          2.0            0.99        1,377           1,363
                               ---------------------------------------------------------------------------------
    Total.....................        3.41  ..........          N/A             N/A    1,951,673         279,065
----------------------------------------------------------------------------------------------------------------
Note: Using the figures presented here to perform the calculations in the table may not result in the same
  totals due to rounding.
Source: OSHA, ORA, based on PPE Payment rule, ERG Cost Estimates, 2024. See Final Economic Analysis spreadsheet
  (Document ID 0118).

    As presented in table 13, the agency estimates that if 10 percent 
of employees who might require non-standard sizes of PPE are provided 
with properly fitting PPE as a result of this clarifying rule, 50 
percent of employers in the construction industry take time to 
familiarize themselves with the rule, and one establishment for each 
employee who requires new PPE spends time researching properly fitting 
PPE, the rule could have a one-time total cost to the construction 
industry of $5,475,450 plus $436,392 in annual recurring costs. These 
estimated costs translate to an annualized cost of $1,045,955 over 10 
years using a 2 percent discount rate.

                                      Table 13--Total Costs of the PPE Rule
                                                     [2023$]
----------------------------------------------------------------------------------------------------------------
                                                                                   Total annualized cost (2023$)
                  Requirement                     Total one-time   Total annual  -------------------------------
                                                   cost (2023$)    cost (2023$)         2%              0%
----------------------------------------------------------------------------------------------------------------
Rule Familiarization...........................       $4,057,842              $0        $451,746        $405,784
PPE Research...................................          469,911         157,327         209,640         204,318
PPE Replacement................................          947,696               0         105,504          94,770
Marginal Cost of Non-Standard Size PPE.........                0         279,065         279,065         279,065
                                                ----------------------------------------------------------------
    Total......................................        5,475,450         436,392       1,045,955         983,937
----------------------------------------------------------------------------------------------------------------
Note: Using the figures presented here to perform the calculations in the table may not result in the same
  totals due to rounding.
Source: OSHA, ORA. See Final Economic Analysis spreadsheet (Document ID 0118).

4. Sensitivity Analysis
    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 as a result of this rule. 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, as discussed above, OSHA has estimated that affected 
employees in construction wear an average of 3.41 pieces of PPE of the 
type (provided by the employer, not universal fit) covered by OSHA's 
analysis; the primary 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, 3, or 4 items of 
PPE, along with the 3.41 items used in the primary analysis.
    In the first sensitivity analysis, OSHA multiplied the total number 
of employees who may require non-standard sizes of PPE (184,935) by the 
various assumed non-compliance percentages. Table 14, below, presents a 
range of 5 percent to 100 percent non-compliance with the requirement 
to provide PPE for construction workers who may not be able to wear 
standard sizes of PPE. 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 14. At most, fewer than 200,000 employees 
might be affected.

                Table 14--Potentially Affected Employees
                                 [2022]
------------------------------------------------------------------------
     Percent of employees needing replacement PPE       Total employees
------------------------------------------------------------------------
5....................................................              9,247
10...................................................             18,494
25...................................................             46,234
50...................................................             92,468
75...................................................            138,701
100..................................................            184,935
------------------------------------------------------------------------


[[Page 100340]]

    For the second sensitivity analysis, OSHA combined the different 
percentages of employees who might need replacement PPE with different 
numbers of items of PPE that might need to be replaced for each 
affected employee. In table 15, 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, 4, or the average 3.41 
pieces of replacement PPE.

                              Table 15--PPE Items per Employee Needing Replacement
----------------------------------------------------------------------------------------------------------------
                                                        Total PPE items needing replacement
  Percent of employees needing   -------------------------------------------------------------------------------
         replacement PPE              1 Item          2 Items         3 Items       3.41 Items        4 Items
----------------------------------------------------------------------------------------------------------------
5...............................           9,247          18,494          27,740          31,492          36,987
10..............................          18,494          36,987          55,481          62,983          73,974
25..............................          46,234          92,468         138,701         157,458         184,935
50..............................          92,468         184,935         277,403         314,916         369,871
75..............................         138,701         277,403         416,104         472,374         554,806
100.............................         184,935         369,871         554,806         629,832         739,741
----------------------------------------------------------------------------------------------------------------

    To complete the sensitivity analysis, OSHA multiplied the cost of 
the average piece of non-standard sized PPE, calculated as $15.05 per 
piece ($51.24 cost per employee/3.41 items per employee), by the number 
of total items of PPE needing replacement (displayed in table 15, 
above). The results are presented in table 16.

                      Table 16--Total Cost of Replacement PPE, Sensitivity Analysis Results
                                                     [2023$]
----------------------------------------------------------------------------------------------------------------
                                                      Total cost for replacement PPE (2023$)
  Percent of employees needing   -------------------------------------------------------------------------------
         replacement PPE              1 Item          2 Items         3 Items       3.41 Items        4 Items
----------------------------------------------------------------------------------------------------------------
5...............................        $139,134        $278,269        $417,403        $473,848        $556,538
10..............................         278,269         556,538         834,807         947,696       1,113,076
25..............................         695,672       1,391,344       2,087,017       2,369,241       2,782,689
50..............................       1,391,344       2,782,689       4,174,033       4,738,481       5,565,378
75..............................       2,087,017       4,174,033       6,261,050       7,107,722       8,348,067
100.............................       2,782,689       5,565,378       8,348,067       9,476,963      11,130,756
                                 -------------------------------------------------------------------------------
    Per Employee Cost...........           15.05           30.09           45.14           51.24           60.19
----------------------------------------------------------------------------------------------------------------

    Table 16 shows that, as a worst-case scenario, if no employers are 
providing properly fitting PPE to employees who may require non-
standard sizes of PPE, and if each employee needs 4 items of 
replacement PPE (more PPE than the average of 3.41 PPE items), then the 
total one-time cost to industry to provide that properly fitting PPE 
would be approximately $11.1 million. Meanwhile, the cost to industry 
could be as low as about $140,000 to replace improperly fitting PPE, 
assuming only 5 percent of employees need one replacement PPE item.
    The percentage of employees needing replacement PPE and the number 
of PPE items each employee needs replaced also impact the estimated 
marginal cost of providing properly fitting PPE on an ongoing basis. 
Table 17 presents the annual marginal costs associated with continuing 
to supply employees with non-standard size PPE after initial 
replacement, assuming varying percentages of employees needing this PPE 
and varying numbers of PPE items per employee.

            Table 17--Annual Marginal Cost of Non-Standard Sizes of PPE, Sensitivity Analysis Results
                                                     [2023$]
----------------------------------------------------------------------------------------------------------------
                                               Annual marginal cost of non-standard size PPE (2023$)
  Percent of employees needing   -------------------------------------------------------------------------------
         replacement PPE              1 Item          2 Items         3 Items       3.41 Items        4 Items
----------------------------------------------------------------------------------------------------------------
5...............................         $40,970         $81,941        $122,911        $139,533        $163,882
10..............................          81,941         163,882         245,823         279,065         327,764
25..............................         204,852         409,705         614,557         697,663         819,409
50..............................         409,705         819,409       1,229,114       1,395,325       1,638,819
75..............................         614,557       1,229,114       1,843,671       2,092,988       2,458,228
100.............................         819,409       1,638,819       2,458,228       2,790,650       3,277,637
----------------------------------------------------------------------------------------------------------------

    Table 18 shows that the total annualized cost of the rule could 
range from approximately $718,000 to $5.2 million when factoring in 
rule familiarization, PPE research, and the various PPE replacement 
scenarios (assuming a 10-year time horizon and 2 percent discount 
rate).

[[Page 100341]]



                  Table 18--Total Annualized Cost of PPE Fit Rule, Sensitivity Analysis Results
                                                     [2023$]
----------------------------------------------------------------------------------------------------------------
                                                   Total annualized cost of PPE fit rule (2023$)
  Percent of employees needing   -------------------------------------------------------------------------------
         replacement PPE              1 Item          2 Items         3 Items       3.41 Items        4 Items
----------------------------------------------------------------------------------------------------------------
5...............................        $717,846        $774,305        $830,765        $853,670        $887,225
10..............................         774,305         887,225       1,000,145       1,045,955       1,113,064
25..............................         943,685       1,225,984       1,508,283       1,622,808       1,790,582
50..............................       1,225,984       1,790,582       2,355,180       2,584,230       2,919,779
75..............................       1,508,283       2,355,180       3,202,078       3,545,652       4,048,975
100.............................       1,790,582       2,919,779       4,048,975       4,507,073       5,178,171
----------------------------------------------------------------------------------------------------------------

    OSHA also considered a sensitivity analysis that assumes a 
Purchasing Manager would spend 30 minutes instead of 10 minutes 
researching and identifying non-standard sizes of PPE for employees who 
do not currently have properly fitting PPE. This revised assumption 
increases the total annualized costs of the rule from $1,045,955 to 
$1,423,497 using a 2 percent discount rate over a ten-year period.

C. Economic Feasibility

    The OSH Act requires that OSHA show the economic feasibility of 
standards. A standard is economically feasible when industry can absorb 
or pass on the costs of compliance without threatening the industry's 
long-term profitability or competitive structure (American Textile 
Mfrs. Inst. v. Donovan, 452 U.S. 490, 530 n.55 (1981) (Cotton Dust)), 
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)). ``[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 OSH Act (29 U.S.C. 655(b)(5)), 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 16612, 16622-23 (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 extra-workplace effects can 
play in setting safety standards.'')).
    OSHA historically has applied two threshold tests to examine 
economic feasibility for industries 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.\24\ However, as discussed in OSHA's recent proposed rule on 
Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings 
(89 FR 70698, 70943 (Aug. 30, 2024)), the agency is no longer using 
costs as a percent of profits as a measure of feasibility because OSHA 
determined that the profit test is not a useful measure of the economic 
feasibility of a standard for a given industry. To determine whether 
there is a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act, the threshold test 
examines whether the average costs for small entities are 1 percent of 
their average revenues or below.\25\ These threshold tests are not a 
hard ceiling or determinative; instead, they provide guidelines the 
agency uses to examine whether there are any potential economic impact 
issues that require additional study.
---------------------------------------------------------------------------

    \24\ For 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).
    \25\ For example, see OSHA's Final Regulatory Flexibility 
Screening Analysis in support of the Hazard Communication rule (77 
FR 17574, 17660 (March 26, 2012)).
---------------------------------------------------------------------------

    Although this rule simply clarifies an existing requirement, OSHA 
has provided an estimate of the costs for a proportion of employers to 
come into compliance with the already-existing requirement to provide 
properly fitting PPE. As one commenter pointed out, the rule ``should 
not cause any financial stress on any company unless they are providing 
ill-fitting PPE to employees currently'' (Document ID 0034). 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. As shown in table 19, the average construction industry 
employer has revenues of $3.35 million annually and 9 employees. As a 
worst-case scenario, if such an employer had to conduct rule 
familiarization, research PPE, and replace all the PPE at issue in this 
rulemaking for all of their employees (i.e., 3.41 items per employee 
for 9 employees), including new hires, and then continue to provide 
properly fitting PPE, it would cost an annualized $258, which is much 
less than 0.1 percent of an average employer's revenues. More 
realistically, an employer might have to replace the PPE for one of its 
employees and the per-establishment costs would be substantially lower. 
Therefore, this rule is clearly economically feasible.

[[Page 100342]]



                  Table 19--Average Employment and Revenues (2023$) per Establishment by NAICS
----------------------------------------------------------------------------------------------------------------
                                                                                 Average        Average revenue
                         NAICS                             Establishments     employment per      (2023$) per
                                                                              establishment      establishment
----------------------------------------------------------------------------------------------------------------
236 (Construction of Buildings)........................            251,634                  6         $3,825,160
237 (Heavy and Civil Engineering Construction).........             38,214                 26          9,892,428
238 (Specialty Trade Contractors)......................            510,803                  9          2,078,011
                                                        --------------------------------------------------------
    Total Construction.................................            800,651                  9          3,347,121
----------------------------------------------------------------------------------------------------------------
Source: 2022 County Business Patterns (CBP). Available at https://www.census.gov/data/datasets/2022/econ/cbp/2022-cbp.html.

D. Regulatory Flexibility Screening Analysis and Certification

    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 requirement would have a significant 
economic impact on a substantial number of small entities.\26\ While 
the rule simply clarifies an existing requirement, even when OSHA 
assumes that this rule leads to changes in employer behavior and 
associated costs, the costs are minimal. Given the number of workers 
OSHA estimates might be wearing improperly fitting PPE compared to the 
number of construction establishments covered by this rule, it is 
statistically unlikely that there will be more than one worker who 
might be wearing improperly fitting PPE at any given firm. For the 
following reasons, this rule will not impose significant costs (i.e., 
costs that amount to more than one percent of revenues) on small 
employers:
---------------------------------------------------------------------------

    \26\ Small entity status is determined by the Small Business 
Administration's size standards. Construction entities are 
considered small based on their revenue, with the threshold ranging 
from less than $19 million to less than $45 million in annual 
revenue depending on which 6-digit NAICS industry the employer falls 
under (See https://www.sba.gov/document/support-table-size-standards).
---------------------------------------------------------------------------

     Replacement PPE costs are less than $52 per employee;
     Establishments will incur less than $36 to complete rule 
familiarization and PPE research upfront (plus another $15 annually if 
they have a new hire requiring non-standard PPE); and
     The ongoing marginal cost of non-standard sized PPE is 
about $7 per employee, on average.
    To further illustrate this point, in order for a firm to experience 
impacts greater than 1 percent of revenues, firm-level revenues would 
need to be $3,162 or lower.\27\ According to the 2017 Statistics of 
U.S. Businesses (SUSB) dataset (https://www.census.gov/data/datasets/2017/econ/susb/2017-susb.html), Specialty Trade Contractors (NAICS code 
238) has the lowest revenues per firm for the smallest size category 
(<5 employees) at $365,018 (inflated to 2023$), which is well above the 
$3,162 needed for impacts to equal 1 percent of revenues. The agency 
therefore certifies that this final rule will not have a significant 
economic impact on a substantial number of small entities.
---------------------------------------------------------------------------

    \27\ Rule familiarization cost per establishment of $10.14, one 
time PPE needs assessment and research cost of $25.41, annual 
research cost for new hires of $15.27, and one time PPE replacement 
cost of $51.24 for one employee, plus ongoing marginal cost of 
nonstandard sized PPE of $6.68 for one employee annualized at a 2 
percent discount rate over 10 years yields a per employer cost of 
$31.62. For a cost of $31.62 to exceed one percent of revenues, the 
employer's revenues would need to be less than $3,162 annually 
($3,162 * 0.01 = $31.62).
---------------------------------------------------------------------------

E. Benefits

    Although this rule is a clarification of employers' existing 
obligations, comments in the record suggest that not all employers are 
currently meeting their obligation to provide their employees with 
properly fitting PPE. The agency expects this clarification will 
improve compliance and thereby produce benefits to workers who were 
previously not receiving properly fitting PPE. However, due to lack of 
information about how many injuries, illnesses, and fatalities are 
caused by improperly fitting PPE, the agency is unable to estimate 
number of injuries, illnesses, and fatalities that may be averted by 
this final rule. While OSHA received a number of comments providing 
anecdotal evidence from individuals' personal experience, no commenter 
provided studies or data that would allow the agency to estimate the 
number of fatalities and non-fatal injuries and illnesses caused by 
improperly fitting PPE across the construction industry. This section 
discusses the evidence in the record regarding potential benefits, the 
difficulties in identifying PPE-related injuries in the available data, 
and potential benefits other than direct health and safety benefits 
that may result from this final rule. Finally, for informational 
purposes, OSHA calculates how many fatalities or non-fatal injuries and 
illnesses would need to be prevented by this rule in order for it to 
have positive net benefits.\28\
---------------------------------------------------------------------------

    \28\ By showing this break-even point, OSHA is not suggesting 
the agency is required to engage in formal cost-benefit analysis 
requiring that benefits exceed costs but instead presents it for 
informational purposes only.
---------------------------------------------------------------------------

    The comments OSHA received revealed two types of benefits likely to 
result from requiring properly fitting PPE. The first type comes from 
avoidance of injuries, illnesses, and fatalities. Several commenters 
reported that they were required to wear incorrectly fitting PPE on the 
job and that this made accidents more likely for them (Document ID 
0079, 0081, 0097). Some reported having been injured due to improperly 
fitting PPE while others reported near misses. For example, one 
individual reported that a safety vest that was too big had gotten 
``caught on equipment and nearly caused falls'' and that ``[i]mproperly 
fitting gloves have been caught in equipment'' (Document ID 0079). 
Another said that oversized gloves caused her hand to be caught in 
machinery, resulting in a serious and permanently debilitating injury 
(Document ID 0061). A comment from the United Brotherhood of Carpenters 
and Joiners of America (UBC) reported stories shared by their members, 
including two who suffered eye injuries due to improperly fitting 
safety glasses, one whose oversized fall protection harness got caught 
on equipment and caused a back injury, and two who suffered injuries to 
fingers when their oversized gloves were caught in machinery (Document 
ID 0074). These comments indicate that employees are being injured due 
to improperly fitting PPE.
    However, specific numbers of injuries or fatalities directly 
attributable to improperly fitting PPE are difficult to identify in the 
available data. As shown above, improperly fitting PPE can cause a 
variety of types of injuries (i.e., fractures, abrasions, sprains, cuts 
and punctures) in a number of ways (i.e., by causing falls, getting 
caught in

[[Page 100343]]

machinery) and to a number of parts of the body. Data available from 
BLS are parsed by type of injury, cause of injury, or part of the body 
injured, and injuries that are reported in these categories may include 
injuries caused by improperly fitting PPE along with injuries resulting 
from other factors. The data collected do not specify whether PPE was 
being worn or whether it contributed to an accident or injury. Data 
from BLS reported that, in 2021, there were more than 37,000 sprains, 
strains, and tears, more than 18,000 cuts and lacerations, and 1,700 
amputations that resulted in days away from work in the construction 
industry (BLS, 2023). The injuries reported by commenters and discussed 
above would fall within these categories (if they were reported 
appropriately). Based on this, it is entirely plausible that there are 
some injuries in these categories (as well as other categories of 
injuries not presented here) that are due to improperly fitting PPE and 
that could be avoided if employees wore properly fitting PPE.
    In addition to the specific accounts of injuries detailed above, 
multiple commenters expressed doubt that the improperly fitting PPE 
they wear or had worn would keep them safe in the event an accident 
occurred; some worried that the poor fit of their PPE (e.g., fall 
protection harness) could lead to a fatal accident (Document ID 0085, 
0081, 0084, 0090, 0108). Others reported that they felt they were 
putting themselves in danger by working while wearing improperly 
fitting PPE (Document ID 0080). Feeling unsafe at work has negative 
consequences for workers' mental health. The NSC conducted a survey to 
evaluate the correlation between workplace safety and negative mental 
health impacts. NSC reported that:

    Respondents who felt unsafe at work were nearly three times more 
likely to report also experiencing depressive symptoms within the 
past two weeks compared to those who felt safe at work. In addition, 
respondents who felt unsafe at work were more than twice as likely 
to also report feeling symptoms of anxiety compared to those who 
felt safe at work.
    Individuals with the highest level of concern for their safety 
at work were the most likely to report feeling depressed or anxious 
frequently enough to meet one of the criteria for clinical diagnosis 
of mental illness (NSC, 2022).

    Consistent with the findings of the NSC survey, commenters reported 
feelings of anxiety and stress, loss of sleep, mental fatigue, and 
concern about discrimination or retaliation; they also worried about 
loss of income because of, for example, being sent home due to a lack 
of properly fitting PPE or being laid off because they work slower due 
to PPE that is too big and makes tasks more difficult (Document ID 
0045, 0074, 0087). Accordingly, the fit requirement of this final rule 
may yield benefits from reduced stress and other negative mental health 
effects.
    The third type of benefit likely to result from this final rule is 
avoidance of work or production delays that occur when workers are 
wearing PPE that does not fit. The UBC noted that, among other 
benefits, ``properly fitting PPE will result in less lost production'' 
(Document ID 0074) and the ISEA likewise commented that the rule would 
yield a financial benefit by preventing injuries and fatalities 
(Document ID 0112). In its comment, NIOSH cited studies finding that 
workers had difficulty performing job tasks while wearing poorly 
fitting PPE, including one where study participants ``reported that 
poorly fitting PPE interfered with work tasks and potentially affected 
their productivity'' and another where participants reported that 
``[b]eing unable to perform some technical tasks while wearing standard 
issue gloves had a direct negative effect on productivity'' (Document 
ID 0054). Commenters also reported that improperly fitting PPE made it 
difficult to do their jobs efficiently (Document ID 0073, 0079). 
Accordingly, workers who are provided with properly fitting PPE as a 
result of this final rule may experience increased productivity, which 
in turn benefits employers because employees can work faster and more 
efficiently.
    Additional benefits that could accrue to employees as a result of 
this rule include not being denied work (e.g., Document ID 0061, 0114); 
not being sent home without pay (e.g., Document ID 0087); and not 
having to pay for their own PPE (e.g., Document ID 0056, 0060, 0067, 
0094, 0115). Another commenter suggested that improved safety would 
help the construction industry ``alleviate [. . .] risk and make 
working in the industry a good choice for women and other under-
represented groups'' which the commenter believed was necessary in 
order for the industry to meet the need for workers (Document ID 0074).
    Based on the above, OSHA believes that this rule will result in 
health and safety benefits to workers, as well as benefits to employers 
due to increased worker efficiency and productivity. Although the 
agency is unable to quantify those benefits due to data limitations, 
the agency has calculated, for informational purposes, how many 
injuries and/or fatalities this final rule would have to prevent to 
yield a net benefit. To do so, OSHA begins with the estimate that this 
final rule will impose annualized costs of about $889,000 per year 
using a two percent discount rate and a ten year time frame. Next, OSHA 
monetizes the potential safety and health benefits of the rule. 
Monetization allows comparison of the benefits and costs of a rule in 
the same terms. When OSHA is able to estimate the number of injuries or 
fatalities prevented by a given rule, the agency monetizes these 
benefits.
    If OSHA were to monetize fatalities potentially avoided by this 
final rule, the analysis would use the Department of Transportation 
(DOT) 2023 value-of-a-statistical-life (VSL) estimate of $13.2 million 
per avoided fatality (DOT, 2024).\29\ DOT relied on a selected set of 
nine recent economic studies that provided usable estimates of VSL for 
a broad cross-section of the population. Because economic theory and 
empirical evidence indicate that the value of reducing life-threatening 
and health-threatening risks (and the corresponding willingness of 
individuals to pay to reduce these risks) will increase as real per 
capita income increases, DOT adjusted its VSL estimate to reflect 
changes in real income over time, using an income elasticity of VSL of 
1.0 (the percentage change in VSL in response to a 1% increase in real 
income). For its estimate of real gross domestic product (GDP) growth 
over the ten-year period for which OSHA estimates benefits, the agency 
uses a recent Congressional Budget Office (CBO) forecast of 1.7 percent 
per year (CBO, 2022).\30\ Accounting for real GDP growth over a ten-
year period, on an annualized basis using a 2 percent discount rate, 
OSHA's adjusted VSL is $14.2 million.\31\ Although OSHA is unable to 
estimate the number of fatalities that will be prevented by this final 
rule, the agency can demonstrate based on this adjusted VSL, that this 
final rule will have positive net benefits if it prevents one

[[Page 100344]]

fatality about every 14 years ($14,200,000/$1,045,955 = 13.6) based on 
avoided fatalities alone regardless of avoided non-fatal injuries.
---------------------------------------------------------------------------

    \29\ The analysis is using 2023 as its reference dollar year for 
comparing costs and benefits, although given that the unit costs for 
PPE are using the latest available information from 2024, the costs 
might be slightly overstated for 2023.
    \30\ See Table 2-1 in https://www.cbo.gov/publication/58147 
(CBO, 2022).
    \31\ Beginning with a baseline ($2023) VSL of $13.2 million, 
OSHA applied an annual income growth rate of 1.7% (Year 0 = 100.0%, 
Year 1 = 101.7%, Year 2 = 103.4%, Year 3 = 105.2%, Year 4 = 107.0%, 
Year 5 = 108.8%, Year 6 = 110.6%, Year 7 = 112.5%, Year 8 = 114.4%, 
Year 9 = 116.4%) and a discount rate of 2% to derive a present value 
income growth rate of 107.7%. Multiplying the baseline VSL times the 
present value income growth rate ($13.2 x 107.7%) yields an adjusted 
VSL value of $14,217,770, or after rounding, $14.2 million.
---------------------------------------------------------------------------

    Similarly, OSHA typically monetizes the benefits of avoided 
nonfatal injuries and illnesses based on the value of a statistical 
injury (VSI) and, if monetizing benefits for this final rule, would use 
the midpoint of the range of the values cited in Viscusi and Gentry 
(2015) converted to 2023 dollars using the GDP deflator, or $116,588 
per injury. Based on this VSI, if this rule prevented about 9 
($1,045,955/$116,588 = 8.97) nonfatal injuries or illnesses a year, it 
would have positive net benefits regardless of avoided fatalities.

References

Bureau of Labor Statistics (BLS). (2024). Job Openings and Labor 
Turnover Survey (JOLTS). Available at http://www.bls.gov/jlt/data.htm (Accessed March 18, 2024). (BLS JOLTS, 2024)
Bureau of Labor Statistics (BLS). (2023). Survey of Occupational 
Injuries and Illnesses, Number of nonfatal occupational injuries and 
illnesses involving days away from work, restricted activity, or job 
transfer (DART), days away from work (DAFW), and days of restricted 
work activity, or job transfer (DJTR) by industry and selected 
natures of injury or illness, private industry, 2021-2022. Available 
at https://www.bls.gov/iif/nonfatal-injuries-and-illnesses-tables/case-and-demographic-characteristics-table-r1-2021-2022.xlsx. (BLS, 
2023)
Bureau of Labor Statistics (BLS). (2023, May). Occupational 
Employment and Wage Statistics. May 2023 National Industry-Specific 
Occupational Employment and Wage Estimates. NAICS Sectors. Available 
at: https://www.bls.gov/oes/current/oessrci.htm. (BLS, May 2023)
Congressional Budget Office (CBO). (2022). The Budget and Economic 
Outlook: 2022 to 2032. Available at: https://www.cbo.gov/publication/58147. (CBO, 2022)
Department of Transportation (DOT). (2024). Department Guidance on 
Valuation of a Statistical Life in Economic Analysis. Available at: 
https://www.transportation.gov/office-policy/transportation-policy/revised-departmental-guidance-on-valuation-of-a-statistical-life-in-economic-analysis. (DOT, 2024)
Leigh JP. (Leigh) (2011, Dec). Economic Burden of Occupational 
Injury and Illness in the United States. The Milbank Quarterly. 2011 
Dec; 89(4):728-72. Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3250639/. (Leigh, Dec. 2011)
National Safety Council (NSC). (2022). ``NSC Survey Finds Workplace 
Safety Issues Correlate with Depression, Anxiety.'' Available at: 
https://www.nsc.org/newsroom/nsc-survey-finds-workplace-safety-issues-correlate (NSC, 2022)
Office of Management and Budget (OMB). (2023). Circular No. A-4. 
Executive Office of the President. Available at: https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf. (OMB, 
2023)
Park, Jisung, Nora Pankratz, and Arnold Behrer. (2021, July) 
``Temperature, workplace safety, and labor market inequality.'' IZA 
Discussion Paper 14560 (2021): 1-94. Available at: https://www.iza.org/publications/dp/14560/temperature-workplace-safety-and-labor-market-inequality. (Park, et al., July, 2021)
Viscusi, W. K., & Gentry, E. P. (2015). The value of a statistical 
life for transportation regulations: A test of the benefits transfer 
methodology. Journal of Risk and Uncertainty, 51, 53-77. https://doi.org/10.1007/s11166-015-9219-2. (Viscusi and Gentry, 2015)

VI. Technological Feasibility

    This final rule amends Sec.  1926.95(c) to make explicit 
construction employers' existing obligation to ensure PPE worn by 
employees properly fits each employee. In the NPRM, OSHA explained that 
this revision would improve clarity for the construction sector and 
would ensure consistency between the construction PPE standards and 
existing OSHA standards for general industry and shipyards. OSHA 
further stated that because the requirement for properly fitting PPE 
already exists in the construction industry, the agency believed that 
providing properly fitting PPE is already common practice among 
construction employers. Therefore, OSHA preliminarily concluded that 
the proposed rule would be technologically feasible.\32\
---------------------------------------------------------------------------

    \32\ As explained in the NPRM, because the revision in this 
final rule is simply a clarification of an existing requirement, the 
agency is not required to perform a new technological feasibility 
analysis for this rulemaking. Nonetheless, OSHA is including a 
discussion of technological feasibility for informational purposes.
---------------------------------------------------------------------------

    In response to the NPRM, no commenter identified any technological 
barriers to providing construction employees with properly fitting PPE. 
Instead, as one commenter stated, ``PPE is readily available for the 
wide range of worker anthropometrics'' (Document ID 0108). According to 
another, ``PPE is available in different sizes. In addition, most PPE 
is adjustable, and available in a range of sizes, meaning the wearer 
can achieve a proper fit'' (Document ID 0112). General industry and 
shipyard employers have been able to comply with the comparable 
requirements in 29 CFR 1910.132(d)(1)(iii) and 1915.152(b)(3), 
providing further evidence of technological feasibility, especially 
given that no commenter identified any PPE that is unique to 
construction work (see Document ID 0078). OSHA has also identified 
industry resources that demonstrate the availability of PPE designed 
for many different body types, such as the list of PPE for all genders 
and sizes compiled by CPWR (see Document ID 0117) and ISEA's List of 
Female PPE Manufacturers (Document ID 0014).
    Although some commenters did indicate they had difficulty obtaining 
properly fitting PPE in the past (Document ID 0031, 0046), these 
comments do not demonstrate a technological feasibility issue, but 
rather a market supply issue. As one commenter noted, ``[s]maller sizes 
exist for many types of PPE, but only larger sizes are stocked by 
sellers'' (Document ID 0046). These same commenters also expressed hope 
that this final rule would increase availability by spurring demand 
(Document ID 0031, 0046). As one commenter stated, ``[t]here could be 
experiences of longer lead times for certain PPE items; however, as 
employers increase the demand for manufacturers to produce more size 
variations, this problem should be alleviated'' (Document ID 0098). 
After reviewing the comments received and the evidence in the record, 
OSHA finds that this final rule is technologically feasible.

VII. Paperwork Reduction Act

    This final rule 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)).

VIII. Federalism

    OSHA reviewed this final rule in accordance with Executive Order 
13132 (64 FR 43255 (Aug. 10, 1999)), which, among other things, is 
intended to ``ensure that the principles of federalism established by 
the Framers guide the executive departments and agencies in the 
formulation and implementation of policies.'' The E.O. provides for 
preemption of State law where there is clear evidence that Congress 
intended preemption of State law, or where the exercise of State 
authority conflicts with the exercise of Federal authority under the 
Federal statute. The E.O. directs agencies to limit any such preemption 
to the extent possible. The E.O. also

[[Page 100345]]

requires that agencies consult with states on rules that have 
``federalism implications,'' which are those that have ``substantial 
direct effects on the States, on the relationship between the National 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule complies with E.O. 13132. The hazards addressed by 
this final rule and its goal of protecting construction workers are 
national in scope and the final rule does not include ``federalism 
implications'' as defined in the E.O. Under section 18 of the OSH Act, 
29 U.S.C. 651 et seq., Congress expressly provides that States may 
adopt, with Federal approval, a plan for the development and 
enforcement of occupational safety and health standards (29 U.S.C. 
667); OSHA refers to these OSHA-approved, State-administered 
occupational safety and health programs as ``State Plans.'' 
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 (29 U.S.C. 667). Subject 
to these requirements, State Plans are free to develop and enforce 
under State law their own requirements for occupational safety and 
health standards. The choice to become a State Plan is part of the 
statutory scheme and is not mandatory, so there are no federalism 
implications for States that choose to adopt a State Plan. The effect 
of this final rule on States and territories with OSHA-approved 
occupational safety and health State Plans is discussed in Section IX, 
State Plans.
    In States without OSHA-approved State Plans, the States are not 
employers under the OSH Act and the final rule would therefore not have 
a substantial direct effect on them (29 U.S.C. 652(5)).

IX. State Plans

    When Federal OSHA promulgates a new standard or a more stringent 
amendment to an existing standard, States with their own OSHA-approved 
occupational safety and health plans (``State Plans'') must either 
amend their standards to be identical to, or ``at least as effective 
as,'' the new standard or amendment, or show that an existing State 
Plan standard covering this issue is ``at least as effective'' as the 
new Federal standard or amendment (29 CFR 1953.5(a)). State Plans' 
adoption must be completed within six months of the promulgation date 
of the final Federal rule.
    OSHA has determined that by including in 29 CFR 1926.95 an explicit 
requirement that PPE must fit properly, this final rule will increase 
protection afforded to employees in the construction industry by 
clarifying employers' obligations under the standard. Accordingly, 
within six months of the rule's final promulgation date, State Plans 
are required to review their standards and adopt amendments to those 
standards that are identical to, or ``at least as effective'' as, this 
rule, unless they demonstrate that such amendments are not necessary 
because their existing standards are already ``at least as effective'' 
in protecting workers. To avoid delays in worker protection, the 
effective date of the State standard and any of its delayed provisions 
must be the date of State promulgation or the Federal effective date, 
whichever is later. The Assistant Secretary may permit a longer time 
period if the State timely demonstrates that good cause exists for 
extending the time limitation (29 CFR 1953.5(a)).
    Of the 29 States and Territories with OSHA-approved State Plans, 22 
cover public and private-sector employees: Alaska, Arizona, California, 
Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, 
New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, 
Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. The 
remaining seven States and Territories cover only State and local 
government employees: Connecticut, Illinois, Maine, Massachusetts, New 
Jersey, New York, and the Virgin Islands.

X. Unfunded Mandates Reform Act

    OSHA reviewed this final rule according to the Unfunded Mandates 
Reform Act of 1995 (``UMRA''; 2 U.S.C. 1501 et seq.) and Executive 
Order 12875 (58 FR 58093 (Oct. 28, 1993)). Section 202 of the UMRA, 2 
U.S.C. 1532, requires agencies to assess the anticipated costs and 
benefits of a rule that includes a Federal mandate ``that may result in 
expenditures in any one year by state, local, and tribal governments, 
in the aggregate, or by the private sector,'' of at least $100 million, 
adjusted annually for inflation. This provision does not generally 
apply to a duty arising from participation in a voluntary Federal 
program (2 U.S.C. 658(5)).
    As discussed above in Section V. Final Economic Analysis and 
Regulatory Flexibility Act Certification, the agency has preliminarily 
determined that compliance with this final rule will require 
expenditures of less than $100 million (adjusted annually for 
inflation, which would now amount to more than $180 million) per year 
by all affected entities. Accordingly, this proposal is not a 
significant regulatory action within the meaning of the UMRA.
    This rule does not place a mandate on State or local government for 
purposes of the UMRA. As explained above in Section IX. State Plans, 
those States with OSHA-approved State Plans voluntarily choose to 
adopt, with Federal approval, a plan for the development and 
enforcement of occupational safety and health standards. Thus, to the 
extent they are required to comply with OSHA standards, it is the 
result of their voluntary decision, not a Federal mandate. In States 
without OSHA-approved State Plans, the States and their political 
subdivisions are not employers under the OSH Act (29 U.S.C. 652(5)). 
Thus, the final rule does not impose costs on them.
    The OSH Act does not cover Tribal governments in the performance of 
traditional governmental functions, but it does cover Tribal 
governments when they engage in activities of a commercial or service 
character (see Menominee Tribal Enterprises v. Solis, 601 F.3d 669 (7th 
Cir. 2010); Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2d Cir. 
1996)). However, the cost of the revisions in this final rule for these 
covered activities by a Tribal government would not meet the threshold 
established in UMRA. OSHA certifies that this rule would not mandate 
that State, local, or Tribal governments adopt new, unfunded regulatory 
obligations of, or increase expenditures by the private sector by, more 
than $100 million in any year, as documented in the Final Economic 
Analysis.

XI. Consultation and Coordination With Indian Tribal Governments

    OSHA reviewed this final rule in accordance with Executive Order 
13175 (65 FR 67249 (Nov. 9, 2000)) and determined that it would not 
have ``tribal implications'' as defined in that order. The 
clarification to 29 CFR 1926.95 does 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.

XII. Protecting Children From Environmental Health and Safety Risks

    Executive Order 13045, Protecting Children from Environmental 
Health and Safety Risks (62 FR 19885 (April 23, 1997)), as amended by 
Executive Orders 13229 and 13296, requires that Federal agencies 
provide additional evaluation

[[Page 100346]]

of economically significant regulatory actions that concern an 
environmental health risk or safety risk that an agency has reason to 
believe may disproportionately affect children. As explained elsewhere 
in this preamble, OSHA has determined that this final rule is not an 
economically significant regulatory action. In addition, this rule is 
intended to protect workers of all ages, and OSHA has no information 
that children comprise a disproportion share of the affected workforce. 
To the extent older children are employed in the construction industry, 
this final rule will have a protective effect on these older children 
by ensuring that they are provided properly fitting PPE. OSHA has 
therefore determined that this rule will not disproportionately affect 
children or have any adverse impact on children. Accordingly, Executive 
Order 13045, Protection of Children from Environmental Health Risks and 
Safety Risks, requires no further agency action or analysis.

XIII. Environmental Impacts

    OSHA has reviewed the final rule according to the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), the 
regulations of the Council on Environmental Quality (40 CFR part 1500 
et seq.), and the Department of Labor's NEPA procedures (29 CFR part 
11).
    Pursuant to 29 CFR 11.10 and consistent with CEQ regulations, the 
promulgation, modification, or revocation of any safety standard is 
categorically excluded from the requirement to prepare an environmental 
assessment under NEPA absent extraordinary circumstances indicating the 
need for such an assessment. OSHA finds that this final rule presents 
no such extraordinary circumstances.

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, authorized the preparation of this document under 
the authority granted by sections 4, 6, and 8 of the Occupational 
Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), 5 U.S.C. 553, 
Secretary of Labor's Order No. 8-2020 (85 FR 58393), and 29 CFR part 
1911.

    Signed at Washington, DC.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.

Final Regulatory Text

Amendments to Standards

    For the reasons stated in the preamble, OSHA amends 29 CFR part 
1926 to read as follows:

PART 1926--OCCUPATIONAL SAFETY AND HEALTH STANDARDS

Subpart E--Personal Protective and Life Saving Equipment

0
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.

0
2. Amend Sec.  1926.95 by revising paragraph (c) to read as follows:


Sec.  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. 2024-29220 Filed 12-11-24; 8:45 am]
BILLING CODE 4510-26-P`