Federal Register / Vol. 89, No. 239 / Thursday, December 12, 2024 / Rules and Regulations 100321 

insurer must permit OWCP or its duly 

authorized representative to make such 

an inspection or examination as OWCP 

may require. In lieu of this requirement 

OWCP may in its discretion accept an 

adequate report of a certified public 

accountant. 

(c) Failure to submit or make available 

any report or information requested by 

OWCP from an authorized self-insurer 

pursuant to this section may, in 

appropriate circumstances, result in a 

revocation of the authorization to selfinsure. 

§ 726.113 Disclosure of confidential 

information. 

Any financial information or records, 

or other information relating to the 

business of an authorized self-insurer or 

applicant for the authorization of selfinsurance obtained by OWCP is exempt 

from public disclosure to the extent 

provided in 5 U.S.C. 552(b) and the 

applicable regulations of the 

Department of Labor in 29 CFR part 70. 

§ 726.114 Authorization and 

reauthorization timeframes. 

(a) No initial or renewed 

authorization to self-insure may be 

granted for a period in excess of 12 

months unless OWCP determines that 

extenuating circumstances exist to allow 

an extension. 

(b) If an applicant is seeking to renew 

its authority to self-insure, the applicant 

must file its application no later than 90 

days before its existing authorization 

period ends. 

(c) Each operator authorized to selfinsure under this part must apply for 

reauthorization for any period during 

which it engages in the operation of a 

coal mine and for additional periods 

after it ceases operating a coal mine. 

Upon application by the operator, 

accompanied by proof that the security 

it has posted is sufficient to secure all 

benefits potentially payable to miners 

formerly employed by the operator, 

OWCP will issue a certification that the 

operator is exempt from the coal mine 

operator insurance requirements of this 

part based on its prior operation of a 

coal mine. The civil money penalty 

provisions of subpart D of this part will 

be applicable to any operator that fails 

to apply for reauthorization in 

accordance with the provisions of this 

section. 

§ 726.115 Revocation of authorization to 

self-insure. 

OWCP may suspend or revoke the 

authorization of any self-insurer for 

good cause, including but not limited to: 

(a) Failure by a self-insurer to comply 

with any provision or requirement of 

law or of the regulations in this part, or 

with any lawful order or request made 

by OWCP; 

(b) The failure or insolvency of the 

surety on its indemnity bond, if such 

bond is used as security, or any other 

financial institution holding any form of 

security provided by an operator; or 

(c) Impairment of financial 

responsibility of such self-insurer. 

§ 726.116 Appeal process. 

(a) How to appeal. Any applicant that 

wishes to appeal DCMWC’s 

determination on an application must 

submit a written appeal to the Director 

of OWCP in the form and manner 

prescribed by OWCP within 30 days of 

DCMWC issuing such determination. 

This deadline may not be extended. 

(b) What to submit. Within 30 days 

after filing a written appeal, the 

applicant must submit any briefing on 

which it intends to rely, including any 

arguments that DCMWC’s initial 

determination was erroneous. The 

applicant is not entitled to submit any 

further evidence at this time; all 

evidence must be submitted to DCMWC 

with the initial application. OWCP may, 

at its discretion, extend this deadline at 

the applicant’s request for up to 30 days 

upon a showing of good cause. No more 

than two extensions will be granted. 

(c) Conferences. (1) The applicant 

may request an informal conference to 

present its position. Such request must 

be made in writing when the applicant 

submits briefing in support of its appeal. 

(2) If the applicant requests a 

conference, the Director of OWCP will 

hold one with the applicant’s 

representatives and the Department’s 

Office of the Solicitor. 

(3) If the applicant does not request a 

conference, OWCP may either decide 

the appeal on the record or, at its 

discretion, schedule a conference on its 

own initiative. 

(4) The conference will be limited to 

the issues identified in the applicant’s 

written materials. 

(d) OWCP’s review. OWCP will review 

the previous determination and issue a 

final agency decision. 

(1) The Director of OWCP will review 

the initial decision, evidence of record, 

and arguments submitted on appeal. 

The applicant may not submit new 

evidence to the Director of OWCP. 

(2) The Director of OWCP will have 

60 days from receipt of the appeal to 

take up the appeal and issue a final 

agency decision. 

(3) If the Director of OWCP issues a 

final agency decision denying selfinsurance, any existing self-insurance 

authorization of the applicant will end. 

The applicant will have 30 days from 

the issuance of the final agency decision 

to obtain and submit proof of 

commercial insurance or begin facing 

civil penalties for failure to secure 

benefits. 

Signed at Washington, DC, this 3rd day of 

December 2024. 

Christopher J. Godfrey, 

Director, Office of Workers’ Compensation 

Programs. 

[FR Doc. 2024–28848 Filed 12–11–24; 8:45 am] 

BILLING CODE 4510–CK–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1926 

[Docket No. OSHA–2019–0003] 

RIN 1218–AD25 

Personal Protective Equipment in 

Construction 

AGENCY: Occupational Safety and Health 

Administration (OSHA), Labor. 

ACTION: Final rule. 

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: meilinger.francis2@dol.gov. 

General and technical inquiries: 

Vernon Preston, OSHA Directorate of 

Construction, telephone: (202) 693– 

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

Copies of this Federal Register notice 

and news releases: Electronic copies of 

these documents are available at 

OSHA’s web page at https://

www.osha.gov. 

SUPPLEMENTARY INFORMATION: 


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100322 Federal Register / Vol. 89, No. 239 / Thursday, December 12, 2024 / Rules and Regulations 

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 

§ 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, illfitting PPE may not protect an employee 

at all, and in other cases it may present 

additional hazards to that employee and 

to employees who work around them. 

For example, sleeves of protective 

clothing that are too long or gloves that 

do not fit properly may make it difficult 

to use tools or 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 


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1OSHA’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). 

2ACCSH 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.’’ 

motion recommending that OSHA use 

the Standards Improvement ProjectPhase 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

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 § 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 § 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 § 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 § 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 


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3Existing 1926.95(c) states only that all personal 

protective equipment shall be of safe design and 

construction for the work to be performed. 

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 

§ 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 § 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 

§ 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. 

As OSHA explained in the NPRM, the 

agency has historically interpreted 

§ 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 


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Federal Register / Vol. 89, No. 239 / Thursday, December 12, 2024 / Rules and Regulations 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 illfitting 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 § 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 § 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 


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4OSHA 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. 

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 nonstandard sizes of PPE 4 to remain 

employed in the construction industry. 

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 § 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 FlameResistant Garments for Protection of 

Industrial Personnel Against Flash Fire. 

Rather than adopting each PPE 

consensus standard and whatever 

language it may include on proper fit, 

OSHA 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 


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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 § 1926.95(c) in this 

final rule will clarify that properly 

fitting PPE is an enforceable 

requirement rather than the nonmandatory 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 


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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 


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5NDA 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. 

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

OSHA does not find this argument 

persuasive. First, § 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 


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6OSHA 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. 

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/lawsregs/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. 

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 informationtransmittal 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. 


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7While 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. 

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 § 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. 

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 


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8As noted below, 2022 was the most recent year 

for which the County Business Patterns data were 

available at the time this analysis was performed. 

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). 

TABLE 1—USE OF SELECTED PPE IN THE CONSTRUCTION INDUSTRIES, FROM THE PPE PAYMENT RULE

PPE provided by the employer 

Total PPE items 

used 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 employees ...................................................................................................... 13,018,055 

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 


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9This 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)). 

10The 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. 

11OSHA used the BLS OEWS Standard 

Occupation Classification code 19–5010 for NAICS 

236, 237, and 238. 

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 

% of employees Total employees % Using PPE Total employees 

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 alreadyexisting 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. 

TABLE 4—TOTAL COSTS OF RULE FAMILIARIZATION

[2023$] 

NAICS Establishments 50% of 

establishments 

Unit burden 

(hours) Wage Total cost (2023$) 

236 (Construction of Buildings) ....................................... 251,634 125,817 0.17 $65.45 $1,372,517 

237 (Heavy and Civil Engineering Construction) ............ 38,214 19,107 0.17 63.65 202,694 

238 (Specialty Trade Contractors) ................................... 510,803 255,402 0.17 58.32 2,482,631 

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-standardsized 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 


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12As noted in the Technological Feasibility 

discussion, extensive lists of providers of nonstandard-sized PPE are available online from 

multiple sources. 

13OSHA used the BLS OEWS Standard 

Occupation Classification code 11–3061 for NAICS 

236, 237, and 238. 

14OSHA used the BLS OEWS Standard 

Occupation Classification code 19–5010 for NAICS 

236, 237, and 238. 

15The 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. 

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. 

currently wearing properly fitting 

PPE.12

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. 

TABLE 5—TOTAL COSTS OF INITIAL PPE RESEARCH

PPE research item Affected 

establishments 

Unit burden 

(hours) 

Wage 

(weighted average) 

Total cost 

(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

Cost item Affected 

establishments Hire rate Unit burden (hours) 

Wage 

(weighted average) 

Total cost 

(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. 

TABLE 7—PPE USED IN THE CONSTRUCTION INDUSTRIES * 

PPE items provided by the employer, not universal fit PPE items purchased by employee and reimbursed by 

employer 

PPE items of 

universal fit 

Body Harnesses ................................................................. Prescription Safety Glasses ............................................... Body Belts. 

Chemical Protective Clothing ............................................. Protective Electrical PPE ................................................... Hardhats. 

Chemical Protective Footwear ........................................... Protective Welding Clothing ............................................... Welding Helmets. 


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17Note 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. 

TABLE 7—PPE USED IN THE CONSTRUCTION INDUSTRIES *—Continued 

PPE items provided by the employer, not universal fit PPE items purchased by employee and reimbursed by 

employer 

PPE items of 

universal fit 

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 standardsized 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, nonuniversal 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. 

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 nonuniversal 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 


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18As 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. 

19This 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. 

20The base figure for men shorter than five feet 

tall was too small to meet statistical standards of 

reliability of a derived figure. 

21OSHA’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 standardsized PPE but may nevertheless have been provided 

with improperly fitting PPE by their employers. 

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 inscope 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

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 nonuniversal 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 × 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

PPE provided by the employer, not universal fit 

Total PPE items 

used by employees 

(2022) 

PPE unit cost, 

standard size 

(2024$) 

Total cost 

(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 

aThe 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 nonstandard 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 


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22OSHA 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. 

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. 

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 

Construction employee characteristic 

Ages 

Average Total 

employees 20–29 30–39 40–49 50–59 60–69 

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 nonstandard 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 nonstandard 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. 


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23One 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 10—POTENTIAL PPE REPLACEMENT COST

[2023$] 

Assumed percent of employees needing replacement PPE 

(2022) 

Total affected 

employees 

Average 

per-employee 

PPE cost, nonstandard size 

Total cost 

(2023$) 

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

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$] 

PPE type Items per 

employee Employees Items per year 

Non-standard 

size marginal 

unit cost 

Total items 

per year 

Total 

marginal 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 Glasses ................................. 0.66 18,494 1.0 0.58 12,142 7,042 

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 


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TABLE 12—ANNUAL MARGINAL COST OF NON-STANDARD SIZE PPE—Continued 

[2023$] 

PPE type Items per 

employee Employees Items per year 

Non-standard 

size marginal 

unit cost 

Total items 

per year 

Total 

marginal cost 

(2023$) 

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 nonstandard 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$] 

Requirement 

Total one-time 

cost 

(2023$) 

Total annual 

cost 

(2023$) 

Total annualized 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 nonstandard sizes of PPE (184,935) by the 

various assumed non-compliance 

percentages. Table 14, below, presents a 

range of 5 percent to 100 percent noncompliance 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 


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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

Percent of employees needing replacement PPE 

Total PPE items needing replacement 

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$] 

Percent of employees needing replacement PPE 

Total cost for replacement PPE 

(2023$) 

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$] 

Percent of employees needing replacement PPE 

Annual marginal cost of non-standard size PPE 

(2023$) 

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). 


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24For 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). 

25For example, see OSHA’s Final Regulatory 

Flexibility Screening Analysis in support of the 

Hazard Communication rule (77 FR 17574, 17660 

(March 26, 2012)). 

TABLE 18—TOTAL ANNUALIZED COST OF PPE FIT RULE, SENSITIVITY ANALYSIS RESULTS

[2023$] 

Percent of employees needing replacement PPE 

Total annualized cost of PPE fit rule 

(2023$) 

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. 

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 perestablishment costs would be 

substantially lower. Therefore, this rule 

is clearly economically feasible. 


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26Small 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-sizestandards). 

27Rule 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). 

28By 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. 

TABLE 19—AVERAGE EMPLOYMENT AND REVENUES (2023$) PER ESTABLISHMENT BY NAICS 

NAICS Establishments 

Average 

employment per 

establishment 

Average revenue 

(2023$) per 

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: 

• 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 nonstandard 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, firmlevel 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. 

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 nonfatal injuries and illnesses would need 

to be prevented by this rule in order for 

it to have positive net benefits.28

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 


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29The 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. 

30See Table 2–1 in https://www.cbo.gov/ 

publication/58147 (CBO, 2022). 

31Beginning 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 × 107.7%) yields an adjusted 

VSL value of $14,217,770, or after rounding, $14.2 

million. 

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-ofa-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 healththreatening 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 


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100344 Federal Register / Vol. 89, No. 239 / Thursday, December 12, 2024 / Rules and Regulations 

32As 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. 

fatality about every 14 years 

($14,200,000/$1,045,955 = 13.6) based 

on avoided fatalities alone regardless of 

avoided non-fatal injuries. 

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-injuriesand-illnesses-tables/case-anddemographic-characteristics-table-r1- 

2021-2022.xlsx. (BLS, 2023) 

Bureau of Labor Statistics (BLS). (2023, May). 

Occupational Employment and Wage 

Statistics. May 2023 National IndustrySpecific 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/reviseddepartmental-guidance-on-valuation-ofa-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-workplacesafety-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-labormarket-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 § 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

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 


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Federal Register / Vol. 89, No. 239 / Thursday, December 12, 2024 / Rules and Regulations 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, Stateadministered 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 OSHAapproved 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 OSHAapproved 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 


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100346 Federal Register / Vol. 89, No. 239 / Thursday, December 12, 2024 / Rules and Regulations 

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 

■ 1. The authority citation for subpart E 

is revised to read as follows: 

Authority: 40 U.S.C. 3701 et seq.; 29 

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

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

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

9033), 6–96 (62 FR 111), 5–2002 (67 FR 

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

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

FR 58393), as applicable; and 29 CFR part 

1911. 

■ 2. Amend § 1926.95 by revising 

paragraph (c) to read as follows: 

§ 1926.95 Criteria for personal protective 

equipment. 

* * * * * 

(c) Design and selection. Employers 

must ensure that all personal protective 

equipment: 

(1) Is of safe design and construction 

for the work to be performed; and 

(2) Is selected to ensure that it 

properly fits each affected employee. 

* * * * * 

[FR Doc. 2024–29220 Filed 12–11–24; 8:45 am] 

BILLING CODE 4510–26–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number USCG–2024–1055] 

RIN 1625–AA00 

Safety Zone, Lower Mississippi River, 

Natchez, MS 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a temporary safety zone for 

navigable waters on the Lower 

Mississippi River from mile marker 

364.4 to mile marker 365.5. The safety 

zone is needed to protect personnel, 

vessels, and the marine environment 

from potential hazards created by 

waterborne fireworks display with a 

fallout zone of approximately 350 feet 

around the barge. Entry of vessels or 

persons into this zone is prohibited 

unless specifically authorized by the 

Captain of the Port, Sector Lower 

Mississippi River. 

DATES: This rule is effective December 

31, 2024, from 6 p.m. through 7 p.m. 

ADDRESSES: To view documents 

mentioned in this preamble as being 

available in the docket, go to https://

www.regulations.gov, type USCG–2024– 

1055 in the search box and click 

‘‘Search.’’ Next, in the Document Type 

column, select ‘‘Supporting & Related 

Material.’’ 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this rule, call 

or email MST1 Peter Buczakowski, U.S. 

Coast Guard; telephone 901–208–0311, 

email Peter.L.Buczakowski@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

DHS Department of Homeland Security 

FR Federal Register 

NPRM Notice of proposed rulemaking 

§ Section 

U.S.C. United States Code 

II. Background Information and 

Regulatory History 

The Coast Guard is issuing this 

temporary rule under the authority in 5 

U.S.C. 553(b)(B). This statutory 

provision authorizes an agency to issue 

a rule without prior notice and 

opportunity to comment when the 

agency for good cause finds that those 

procedures are ‘‘impracticable, 

unnecessary, or contrary to the public 

interest.’’ The Coast Guard finds that 

good cause exists for not publishing a 

notice of proposed rulemaking (NPRM) 

with respect to this rule because it is 

impracticable. The NPRM process 

would delay the establishment of the 

safety zone until after the date of the 

event and compromise public safety. We 

must establish this temporary safety 

zone by December 31, 2024, and lack 

sufficient time to provide a reasonable 

comment period and then consider 

those comments before issuing the rule. 

Also, under 5 U.S.C. 553(d)(3), the 

Coast Guard finds that good cause exists 

for making this rule effective less than 

30 days after publication in the Federal 

Register. Delaying the effective date of 

this rule would be contrary to the public 

interest because action is needed to 

respond to the potential safety hazards 

associated with the waterborne 

fireworks displays on December 31, 

2024. 


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