[Federal Register Volume 88, Number 138 (Thursday, July 20, 2023)]
[Proposed Rules]
[Pages 46706-46720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15285]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket No. OSHA-2019-0003]
RIN 1218-AD25


Personal Protective Equipment in Construction

AGENCY: Occupational Safety and Health Administration (OSHA); Labor.

ACTION: Proposed rule; request for comments.

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SUMMARY: OSHA is proposing to revise its personal protective equipment 
standard in construction to explicitly require that the equipment must 
fit properly. The agency requests comments regarding the proposed 
revision.

DATES: Submit comments and attachments, as well as hearing requests and 
other information, by September 18, 2023. All submissions must provide 
evidence of the submission date. (See the following section titled 
ADDRESSES for instructions on making submissions.)

ADDRESSES: Comments may be submitted as follows:
    Written comments: You may submit comments and attachments, as well 
as hearing requests and other information, identified by OSHA Docket 
No. OSHA-2019-0003, electronically at http://www.regulations.gov, which 
is the Federal eRulemaking Portal. Follow the online instructions for 
submitting comments.
    Instructions: All submissions must include the agency's name and 
docket number for this rulemaking (Docket No. OSHA-2019-0003). All 
comments, including any personal information you provide, are placed in 
the public docket without change and may be made available online at 
http://www.regulations.gov. Therefore, OSHA cautions interested parties 
about submitting personal information such as Social Security numbers 
and birthdates.
    Docket: To read or download comments or other information in the 
docket, go to http://www.regulations.gov. All comments and submissions 
are listed in the http://www.regulations.gov index; however, some 
information (e.g., copyrighted material) is not publicly available to 
read or download through that website. All comments and submissions, 
including copyrighted material, are available for inspection through 
the OSHA Docket Office. Contact the OSHA Docket Office at (202) 693-
2500 (TDY number 877-889-5627) for assistance in locating docket 
submissions.

FOR FURTHER INFORMATION CONTACT: 
    Press inquiries: Frank Meilinger, Director, OSHA Office of 
Communications, telephone: (202) 693-1999; email: 
[email protected].
    General and technical inquiries: Vernon Preston, OSHA Directorate 
of Construction, telephone: (202) 693-2020; email: 
[email protected].
    Copies of this Federal Register notice and news releases: 
Electronic copies of these documents are available at OSHA's web page 
at http://www.osha.gov.

Citation Method

    In the docket for the personal protective equipment in construction 
rulemaking, found at http://www.regulations.gov, every submission was 
assigned a document identification (ID) number that consists of the 
docket number (OSHA-2019-0003) followed by an additional four-digit 
number (e.g., OSHA-2019-0003-0002). In this notice of proposed 
rulemaking, citations to items in the docket are referenced by author 
or title and date, where appropriate. This information can be used to 
search for a supporting document in the docket at http://www.regulations.gov. For example, the citation for the OSHA Publication 
Personal Protective Equipment is (Personal Protective Equipment, OSHA 
3151-12R, 2004). Some citations include one or more attachments (see, 
e.g., NABTU, January 5, 2017, Attachment 1). When citing exhibits in 
the docket, OSHA references the author or title of the document, the 
date, the attachment number or other attachment identifier, if 
necessary for clarity, and page numbers (designated ``p.''). In a 
citation that contains two or more documents, the citations are 
separated by semicolons. OSHA may also cite items that appear in 
another docket. When that is the case, OSHA includes the full document 
ID number for the corresponding docket (e.g., OSHA-2010-0034-4247).

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
II. Background
    A. OSHA's PPE Requirements
    B. Rulemaking History
    C. Comments Received During the SIP-IV Rulemaking
    D. Consideration of National Consensus Standards
III. Discussion of Proposed Changes
    A. Section 1926.95(c)

[[Page 46707]]

    B. The Existing Standard
    C. Properly Fitting PPE
    D. OSHA Enforcement of PPE Fit Requirements
    E. Issues for Comment
IV. Agency Determinations
    A. Legal Authority
    B. Significant Risk
    C. Preliminary Economic Analysis and Regulatory Flexibility Act 
Certification
    D. Office of Management and Budget (OMB) Review Under the 
Paperwork Reduction Act
    E. Federalism
    F. State Plans
    G. Unfunded Mandates Reform Act
    H. Consultation and Coordination With Indian Tribal Governments

I. Executive Summary

    OSHA is proposing to revise its Personal Protective Equipment (PPE) 
standard for construction, at 29 CFR 1926.95(c), to explicitly state 
that PPE must fit properly to protect workers from workplace hazards. 
This revision would align the language in the PPE standard for 
construction with the corresponding language in OSHA's PPE standards 
for general industry and maritime and affirm OSHA's interpretation of 
its PPE standard for construction as requiring properly fitting PPE. 
Properly fitting PPE is a critical element of an effective occupational 
safety and health program. PPE must fit properly in order to provide 
adequate protection to employees. Improperly fitting PPE may fail to 
provide any protection to an employee, may present additional hazards, 
or may discourage employees from using such equipment in the workplace.
    The Preliminary Economic Analysis to this rulemaking demonstrates 
that this rule is not economically significant or a major rule. Because 
this proposal clarifies an existing requirement, the agency 
preliminarily concludes that the rule is not expected to impose new 
costs on employers as a result of a new regulatory requirement. OSHA 
normally assumes full compliance with existing requirements when 
performing its analysis of costs related to a new or amended standard. 
However, in this case, the purpose of the proposed rule is to clarify 
an existing requirement about which there may be confusion in the 
regulated community. OSHA therefore seeks public comment on the impact 
of this clarification, if any, on current employer behavior.
    To the extent the clarification in this rule could result in 
changes in behavior among some employers, OSHA has provided an estimate 
of the costs for a specified proportion of employers to come into 
compliance with the already-existing requirement to provide properly 
fitting PPE. This analysis is being provided as a starting point for 
public comments and to demonstrate that, even if there were costs to 
this rule as a result of changed employer behavior, the rule would be 
feasible to implement. OSHA's cost analysis indicates that the one-time 
cost of this rulemaking to the construction industry, attributable to 
potential changes in employer behavior, could be approximately 
$545,000. To the extent that the rulemaking record indicates there will 
be changes in employer behavior, and associated costs, as a result of 
the proposed clarification, OSHA expects that worker safety and health 
will benefit.

II. Background

A. OSHA's PPE Requirements

    Section 6(b)(7) of the OSH Act, 29 U.S.C. 655(b)(7), authorizes 
OSHA to include requirements for protective equipment within its safety 
and health standards. PPE is worn by employees to minimize exposure to 
hazards that can cause severe injuries and illnesses in the workplace. 
These injuries and illnesses may result from contact with chemical, 
radiological, physical, electrical, mechanical, or other hazards. PPE 
includes many different types of protective equipment, such as hard 
hats, gloves, goggles, safety shoes, safety glasses, welding helmets 
and goggles, hearing protection devices, respirators, coveralls, vests, 
and full body suits.
    OSHA has specific standards that address PPE in general industry, 
shipyard employment, maritime terminals, longshoring, and construction. 
These standards require employers to provide PPE when it is necessary 
to protect employees from job-related injuries, illnesses, and 
fatalities. With few exceptions, OSHA requires employers to pay for PPE 
when it is used to comply with an OSHA standard. In addition, the PPE 
standards for general industry (29 CFR 1910.132(d)(1)(iii)) and 
maritime (29 CFR 1915.152(b)(3)) include a specific requirement that 
employers select PPE that properly fits each affected employee.
    OSHA's standard at 29 CFR 1926.95 sets out the requirements for PPE 
in construction. Section 1926.95(a) provides that all types of PPE 
``shall be provided, used, and maintained in a sanitary and reliable 
condition whenever it is necessary by reason of hazards.'' Section 
1926.95(b) goes on to provide that, even when employees provide their 
own PPE, ``the employer shall be responsible to assure its adequacy, 
including proper maintenance, and sanitation of such equipment.'' 
Section 1926.95(c) provides that all PPE ``shall be of safe design and 
construction for the work to be performed.'' Unlike the general 
industry and maritime PPE standards, the current PPE construction 
standard at section 1926.95 does not include an explicit requirement 
that PPE properly fit each affected employee.
    PPE must fit properly in order to provide adequate protection to 
employees. If PPE does not fit properly, it can make the difference 
between an employee being safely protected or dangerously exposed. In 
some cases, ill-fitting PPE may not protect an employee at all, and in 
other cases it may present additional hazards to that employee, and to 
employees who work around them. For example, sleeves of protective 
clothing that are too long or gloves that do not fit properly may make 
it difficult to use tools or control equipment, putting other workers 
at risk of exposure to hazards. The legs of protective garments that 
are too long could cause tripping hazards and impact others working 
near the worker with improperly fitting PPE. The issue of improperly 
fitting PPE is particularly important for smaller construction workers, 
including some women, who may not be able to use standard size PPE. Fit 
problems can also affect larger workers, especially with regard to the 
size of certain harnesses.

B. Rulemaking History

    The Advisory Committee on Construction Safety and Health (ACCSH) is 
a continuing advisory body established by statute (40 U.S.C. 3701 et 
seq.) that provides advice and assistance to the OSHA Assistant 
Secretary on construction standards and policy matters. The issue of 
proper PPE fit in construction was discussed at the ACCSH meeting held 
on July 28, 2011. At that meeting, the committee unanimously passed a 
motion recommending that OSHA use the Standards Improvement Project-
Phase IV (SIP-IV) rulemaking ``to update the Construction PPE Standards 
to mirror the General Industry PPE requirements, specifically that PPE 
fit the employee who will use it . . . .'' (ACCSH Meeting Minutes, July 
28, 2011). On December 16, 2011, ACCSH unanimously passed another 
motion recommending that OSHA consider using the SIP-IV rulemaking to 
revise the construction standards to include the requirement that PPE 
properly fit construction workers. (ACCSH Meeting Transcript, December 
16, 2011, pp. 144-148).
    On December 6, 2013, OSHA issued a SIP-IV Request for Information 
(RFI)

[[Page 46708]]

asking the public ``to identify provisions in OSHA standards that are 
confusing or outdated, or that duplicate, or are inconsistent with, the 
provisions of other standards, either OSHA standards or the standards 
of other agencies.'' (SIP-IV RFI, December 6, 2013). In response, 
several commenters, including the AFL-CIO and the International Safety 
Equipment Association (ISEA), recommended that OSHA use the SIP-IV 
rulemaking to revise its construction PPE standard to ensure that PPE 
properly fits all construction employees. (AFL-CIO, February 13, 2013; 
ISEA, February 4, 2013).
    Based on stakeholder suggestions, on October 4, 2016, OSHA 
published the SIP-IV Notice of Proposed Rulemaking (NPRM) in the 
Federal Register. (SIP-IV NPRM, October 4, 2016). Among other things, 
OSHA proposed revising 29 CFR 1926.95(c) to include an explicit 
requirement that PPE must properly fit each affected employee. In the 
preamble to the SIP-IV NPRM, OSHA stated that the proposed revision 
would ``clarify the construction PPE requirements on this point and 
make them consistent with general industry PPE requirements.'' (SIP-IV 
NPRM, October 4, 2016). Additionally, OSHA stated that clarifying the 
requirement would ``help ensure employers provide employees with 
properly fitting PPE, thereby adequately protecting employees exposed 
to hazards requiring PPE.'' (SIP-IV NPRM, October 4, 2016).
    OSHA received several comments specifically addressing the proposed 
revision to section 1926.95(c) in the SIP-IV NPRM. Some commenters 
fully supported the proposed revision while a coalition of construction 
industry stakeholders opposed it. OSHA discusses the specific comments 
received during the SIP-IV rulemaking in the next section of this 
preamble.
    Based on the comments received, and the rulemaking record, on May 
13, 2019, OSHA published the SIP-IV final rule in the Federal Register. 
(SIP-IV Final Rule, May 13, 2019). The final rule did not include the 
proposed revision to the construction standard at section 1926.95(c). 
Instead, OSHA determined that such a revision to the construction PPE 
standard should occur in a separate rulemaking outside the SIP process. 
In the preamble to the final rule, OSHA explained that proposing to 
revise the PPE requirements separate from the SIP-IV rulemaking ``would 
provide the public with broader notice of the proposal, encourage 
robust commentary, and better inform OSHA's approach to employer 
obligations and worker safety in relation to PPE used in 
construction.'' (SIP-IV Final Rule, May 13, 2019).
    On July 17, 2019, OSHA presented a draft proposed rule to ACCSH for 
its recommendation, as required by the advisory committee for 
construction regulation at 29 CFR 1912.3(a). The committee asked OSHA 
to review enforcement statistics on PPE fit and consider including 
guidelines for what constitutes ``proper fit.'' (ACCSH Meeting 
Transcript, July 17, 2019). One member of ACCSH expressed concern that 
OSHA would require employers to present a ``fit verification'' to an 
OSHA compliance officer during a workplace inspection. In response, 
OSHA explained that the proposed rule would not change how employers 
currently assess the PPE needs of their workers. OSHA also explained 
that the proposed revision had been included in the SIP-IV rulemaking 
in an effort to make the construction standard consistent with the 
general industry and maritime PPE standards. In addition, while some 
ACCSH members did not believe there would be a cost associated with the 
proposed rule, one member asked OSHA to consider cost closely given the 
transient nature of the construction industry. After the period for 
comments and questions ended, ACCSH unanimously passed a motion 
recommending that OSHA move forward with the proposed rule.

C. Comments Received During the SIP-IV Rulemaking

    OSHA received four comments on the proposed revision of Sec.  
1926.95(c) in response to the SIP-IV NPRM. The Laborers' Health & 
Safety Fund of North America (LHSFNA) and North America's Building 
Trades Union (NABTU) both supported the proposed revision to clarify 
that PPE must properly fit each affected employee. (LHSFNA, January 5, 
2017; NABTU, January 5, 2017, Attachment 1). Both commenters also 
stated that improperly fitting PPE can limit or negate the ability of 
the PPE to protect employees. According to NABTU, ``[t]his is 
particularly important for women in the construction industry, who 
often have difficulty obtaining properly fitting PPE.'' (NABTU, January 
5, 2017, Attachment 1, p. 6). LHSFNA commented that the fit problem can 
also affect men, including with respect to harness sizes for men who 
are over certain weight limits. (LHSFNA, January 5, 2017, p. 3). NABTU 
stated that the proposed revision would not only make the construction 
standard consistent with the general industry standard, but was also 
supported by worker organizations, safety associations, and ACCSH. 
(NABTU, January 5, 2017, Attachment 1, p. 6).
    OSHA also received a comment in support of the proposed revision 
from Emmanuel Omeike (Omeike, December 4, 2016), a safety professional, 
which included two studies addressing PPE and women in construction. 
(Omeike, December 4, 2016, Attachments 3, 4). The comment noted 
examples of several employees who were wearing PPE, but nonetheless 
sustained injuries due to improper fit. (Omeike, December 4, 2016, p. 
10). Mr. Omeike stated that employees are more likely to remove 
improperly fitting PPE, thus negating whatever protection the PPE might 
otherwise provide. (Omeike, December 4, 2016, pp. 11-12). Lastly, the 
commenter stated that prevention through design can eliminate many 
costs associated with PPE because PPE designed to be adjustable and 
customizable can prevent employee exposure to hazards created by 
improperly fitting PPE.
    Additionally, OSHA received comments from the Construction Industry 
Safety Coalition (CISC) (CISC, January 4, 2017) opposing the proposed 
revision to section 1926.95(c). This commenter raised concerns about 
the possible impact the proposed revision would have on the 
construction industry, the definition of ``properly fits,'' employer 
confusion regarding compliance, and whether the SIP-IV rulemaking was 
the appropriate means to revise the standard. ``CISC does not believe 
that OSHA seriously considered the full impact this revision will have 
on employers and the construction industry in general. While the 
proposed revision only adds a few new words, its broad scope covers a 
wide variety of PPE and situations that are not fully appreciated in 
the SIP-IV . . . Placing an explicit requirement that employers must 
ensure that all types of construction PPE `properly fits' all different 
sized employees in all different situations would be a monumental task 
which in many cases is not necessary and will not improve safety. 
Moreover, the proposed revision fails to provide adequate notice to 
employers as to what `properly fit' would mean. Does this mean that an 
employee who complains that a hard hat is uncomfortable does not 
`properly fit' or what about arc-flash clothing that may be too long in 
the legs for one employee, does this not properly fit?'' (CISC, January 
4, 2017, p. 7). CISC also commented that revising Sec.  1926.95(c) to 
include an explicit requirement that all PPE fit properly ``greatly 
changes the dynamic of th[e] standard and places enormous new 
responsibilities on construction

[[Page 46709]]

employers.'' The comment went on to state that the proposed revision 
does not simply clarify the standard, but ``opens up construction 
employers to subjective standards of whether particular PPE fits 
properly and what steps employers must take to ensure that such PPE 
fits properly, particularly when most PPE does not come in exact sizing 
for employees.'' (CISC, January 4, 2017, p. 8). CISC added that, in 
many cases, whether PPE properly fits is subjective and that it would 
be difficult for employers in construction to assess PPE for many 
employees of varying sizes in every situation. ``[T]he subjective 
nature of this standard would greatly increase the potential for 
enforcement actions without giving employers fair notice of what is 
required.'' (CISC, January 4, 2017, p. 8).
    CISC also stated that it disagreed with OSHA's statement in the 
preamble to the SIP-IV proposed rule that applying the same standard to 
construction employers will have the same effect or benefit as in 
general industry. The comment emphasized that the types and need for 
PPE vary greatly in construction, therefore adding a new fit 
requirement will create more of a burden for construction employers. 
(CISC, January 4, 2017, p. 8). CISC also argued that SIP-IV was not the 
appropriate avenue for making the proposed change, and urged OSHA to 
embark on ``a more thorough and complete rulemaking process which gives 
fair notice to the regulated community and will allow the agency to 
receive comments from the regulated community as to the impact and 
implications that this change would have on employers.'' (CISC, January 
4, 2017, p. 8).
    In response to the comments provided by CISC, OSHA acknowledges 
that there is a wide variety of PPE and hazards in the construction 
industry. To protect workers from these varied hazards in the 
construction industry, it is critical that workers' PPE fit them 
properly. OSHA used the phrase ``proper fit'' in the SIP-IV rulemaking 
because that is the phrase used in OSHA's general industry and maritime 
PPE standards. The agency's intention throughout the SIP-IV rulemaking 
was to apply the proposed ``properly fits'' provision in the same 
manner as in general industry and maritime. OSHA further notes that the 
addition of the ``properly fits'' provision to the general industry 
standard was made for the same reason it was proposed during the SIP-IV 
rulemaking-- that standard-sized PPE does not fit all employees, 
particularly women. (See 59 FR 16334 (April 6, 1994)). OSHA's 
experience is that employers in general industry have had no issue 
understanding the phrase ``properly fits'' with regard to PPE.
    Finally, as stated in the preamble to the SIP-IV final rule, ``the 
purpose of SIP-IV is to remove or revise outdated, duplicative, 
unnecessary, and inconsistent requirements in OSHA's safety and health 
standards.'' (SIP-IV Final Rule, May 13, 2019). Given the limited 
purposes of SIP-IV, and the comments on the PPE revision described 
above, OSHA determined not to finalize the revision to Sec.  1926.95(c) 
in the SIP-IV rulemaking. Instead, OSHA concluded that such a change to 
the PPE construction standard should take place outside the SIP 
process. OSHA believes that by proposing this change independently of 
the SIP rulemaking process, the agency in this case is encouraging 
robust public comment. As a result, OSHA expects that its approach to 
employer obligations and worker safety in relation to properly fitting 
PPE in construction will be better informed. In addition, many of the 
specific issues raised by commenters during the SIP-IV rulemaking have 
been considered by OSHA and are addressed elsewhere in this preamble.

D. Consideration of National Consensus Standards

    In adopting a standard, section 6(b)(8) of the OSH Act (29 U.S.C. 
655(b)(8)) requires OSHA to consider national consensus standards; 
where the agency decides to depart from the requirements of a national 
consensus standard, it must explain why the OSHA standard better 
effectuates the purposes of the OSH Act. OSHA has reviewed national 
consensus standards on PPE and determined that it would better 
effectuate the purposes of the OSH Act to revise OSHA's existing 
construction standard as described in this proposed rule.
    There are many consensus standards that address PPE, with each 
standard focusing on a different type of equipment. For example, OSHA 
incorporates by reference American National Standards Institute (ANSI) 
Z87.1, Occupational and Educational Personal Eye and Face Protection 
Devices, and ANSI Z89.1, Head Protection, into its construction 
standards. However, there are several other PPE consensus standards 
that address not only different types of PPE, but also different uses 
for that PPE, such as NFPA 2113, Standard on Selection, Care, Use, and 
Maintenance of Flame-Resistant Garments for Protection of Industrial 
Personnel Against Flash Fire. Rather than adopting each PPE consensus 
standard, and whatever language it may include on proper fit, OSHA 
proposes to revise its existing construction standard to make it clear 
that all types of PPE used in the workplace must fit properly. OSHA 
believes that centralizing the requirement in the OSHA construction 
standard will make employers more aware of their responsibility to 
ensure that PPE used to protect workers from hazards must fit properly.
    Additionally, many consensus standards do not include mandatory 
language. For example, both of the ANSI standards discussed above 
include specific language concerning properly fitting PPE. However, 
while ANSI Z87.1 discusses the importance of properly fitting eye and 
face protection, the standard does not include mandatory language 
regarding its use. Similarly, rather than including mandatory language, 
ANSI Z89.1 merely refers users of head protection equipment to the 
manufacturer for advice on proper fit. The revision to section 
1926.95(c) outlined in this proposed rule would make properly fitting 
PPE an enforceable requirement rather than the non-mandatory 
suggestions contained in these consensus standards. The agency believes 
that a clear and explicit enforceable requirement will help ensure that 
employers provide employees with properly fitting PPE. OSHA requests 
comment on whether this proposal will better effectuate the purposes of 
the OSH Act than the applicable national consensus standards.

III. Discussion of Proposed Changes

A. Section 1926.95(c)

    Based on the information collected from stakeholders, the 
recommendations from ACCSH, comments received during the SIP-IV 
rulemaking, and the important role properly fitting PPE plays in 
protecting workers, OSHA proposes to amend 29 CFR 1926.95(c) to 
explicitly require employers to ensure that all PPE that is selected 
properly fits each affected employee. Current Sec.  1926.95(c) states 
``All personal protective equipment shall be of safe design and 
construction for the work to be performed.'' However, unlike OSHA's 
general industry and maritime standards, the current standard for 
construction does not contain an explicit requirement that PPE must 
properly fit each affected employee.
    OSHA proposes to amend section 1926.95(c) to include the 
requirement, in subparagraph (c)(2), that employers select PPE that 
properly fits each affected employee. OSHA also proposes

[[Page 46710]]

to move the current language in section 1926.95(c) regarding safe 
design and construction to subparagraph (c)(1). As proposed, paragraph 
(c) would include language requiring employers to ensure that both 
requirements in subparagraphs (c)(1) and (c)(2) are met. OSHA believes 
that adding the language explicitly requiring properly fitting PPE in 
proposed subparagraph (c)(2) will help to ensure that employees are 
provided with PPE that protects them from workplace hazards.
    OSHA requests comment on the proposed language in Sec.  1926.95(c). 
Specifically, is the proposed language, which is consistent with OSHA's 
general industry and maritime standards, appropriate? Why or why not? 
Should subparagraph (c) include different language regarding the proper 
fit of PPE? If yes, what should the different language be, and why?

B. The Existing Standard

    Although OSHA is proposing to add clarifying language to the 
current PPE construction standard to improve awareness of the 
requirement for properly fitting PPE, OSHA has historically interpreted 
the language in the current PPE construction standard to require all 
PPE to properly fit each affected employee. Specifically, 29 CFR 
1926.95(a) provides that PPE ``shall be provided [and] used . . . [in 
a] reliable condition wherever it is necessary by reason of hazards.'' 
PPE is thus ``necessary'' when hazards exist in the workplace, but ill-
fitting PPE is not ``in a reliable condition'' because it risks failing 
to mitigate the hazards that make the PPE necessary. For instance, if 
hazardous chemicals make PPE in the form of reliable protective 
clothing or a face shield necessary, ill-fitting PPE may fail to 
reliably protect the worker from exposure to those hazardous chemicals.
    Similarly, under subsection (b), employers must assure the 
``adequacy'' of employees' own PPE. PPE is manifestly inadequate if the 
fit is so poor it cannot perform its protective function. Also, it 
would make little sense to require employee-provided PPE to be 
adequate, but not to require the same of employer-provided PPE. Lastly, 
subsection (c) requires that PPE must be ``of safe design . . . for the 
work to be performed.'' This provision requires that the specific 
design of the PPE, which would include its measurements and size, be 
safe for the work to be performed by each individual worker.
    OSHA's PPE standard for construction requires action from the 
employer to protect each individual worker. Subsection (a) of section 
1926.95 requires employers to assess the actual hazards to employees in 
their workplaces and provide PPE whenever it is necessary to protect 
against those hazards, and subsection (b) requires employers to assess 
the adequacy, including the maintenance and sanitation, of employee-
provided PPE--which an employer can only do by reviewing each piece of 
PPE individually. Finally, it is not logical to read subsection (c) as 
only requiring that the PPE be safely designed in the abstract. For 
example, gloves may be safely designed to protect against a particular 
hazard, but they may not be safely designed for a worker whose hands 
are so small that the gloves fall off throughout the workday or get 
caught in the machinery the worker is required to use.
    An examination of OSHA's guidance addressing PPE use in the 
construction industry reinforces OSHA's longstanding position that PPE 
used in construction must fit properly to protect workers from hazards. 
These guidance documents expressly state that PPE should fit properly 
and explain the hazards of ill-fitting PPE. The OSHA publication 
Personal Protective Equipment, which explains that ``the information 
methods, and procedures . . . are based on the OSHA requirements for 
PPE,'' including Sec.  1926.95, states ``Employers should take the fit 
and comfort of PPE into consideration when selecting appropriate items 
for their workplace. PPE that fits well and is comfortable to wear will 
encourage employee use of PPE. Most protective devices are available in 
multiple sizes and care should be taken to select the proper size for 
each employee. If several different types of PPE are worn together, 
make sure they are compatible. If PPE does not fit properly, it can 
make the difference between being safely covered or dangerously 
exposed. It may not provide the level of protection desired and may 
discourage employee use.'' (Personal Protective Equipment, OSHA 3151-
12R, 2004, p. 8). OSHA's Fact Sheet on Personal Protective Equipment, 
which refers to Sec.  1926.95, explains that after determining hazards 
are present that require the use of PPE, an employer must ``select 
personal protective equipment that properly fits your workers.'' (Fact 
Sheet on Personal Protective Equipment, April 2006)). Also, Assessing 
the Need for Personal Protective Equipment, a document created by 
OSHA's Directorate of Training and Education, includes a checklist for 
various types of PPE. For each type of PPE listed, there is an entry 
for ensuring ``effective fit'' of the PPE. (Assessing the Need for 
Personal Protective Equipment).
    Additionally, OSHA has developed guidance for specific types of 
PPE. For example, OSHA's Eye and Face Protection eTool is a 
comprehensive resource for assessing workplace hazards necessitating 
the use of eye and face protection and how to choose the appropriate 
protection. (Eye and Face Protection eTool, accessed July 23, 2020). 
The eTool lists the construction standards under ``OSHA Requirements,'' 
and discusses proper fit of eye protection. Also, in the eTool's 
``FAQs,'' the document explains that training should include why 
improper fit of the eye and face protection can compromise protection.
    OSHA requests comment on whether the inclusion of an explicit 
requirement in Sec.  1926.95(c) would help clarify construction 
employers' obligations to provide properly fitting PPE to their 
employees.

C. Properly Fitting PPE

    PPE is an essential element of an effective safety and health 
program. While many OSHA standards require employers to control or 
eliminate safety and health hazards before relying on PPE to protect 
employees, PPE often provides a critical last line of defense to 
protect individual employees. PPE that fits improperly not only fails 
to protect workers from the hazards it is designed to protect against, 
but it may also create additional hazards for those workers.
    In many cases, ill-fitting PPE may not provide any protection at 
all to an individual employee. For example, ill-fitting gloves may slip 
and expose an employee's skin to hazardous chemicals. Improperly 
fitting goggles may have gaps at the temples, and expose the employee 
to flying debris entering their eyes. Further, there are some cases in 
which ill-fitting PPE may create additional hazards for employees. For 
example, improperly fitting protective clothing that is too long in the 
legs may present a tripping hazard for an employee, or an improperly 
fitting glove may become caught in machinery being operated by the 
employee. In Personal Protective Equipment for Women: Addressing the 
Need, a report prepared by the Ontario Women's Directorate (OWD) and 
Industrial Accident Prevention Association (IAPA), a women stated she 
suffered a broken finger using a grinder while wearing gloves that were 
too big for her hands. (OWD & IAPA, 2006, p. 13). A comment described 
above, from safety professional Emmanuel Omeike, noted several 
instances of employees who were wearing PPE, but nonetheless

[[Page 46711]]

sustained injuries due to improper fit. (Omeike, December 4, 2016, p. 
10).
    The construction industry includes many high-risk occupations, with 
various safety and health hazards. It is also comprised of a diverse 
workforce, including many employees who are not of a certain 
``standard'' size or body type. For these workers, improperly fitting 
PPE may pose safety or health risks. For example, improperly fitting 
PPE can be an issue for small-stature construction workers, including 
some women, who may not be able to use PPE that is only available in a 
standard size. In the 1999 report Women in the Construction Workplace: 
Providing Equitable Safety and Health Protection, by ACCSH's Health and 
Safety of Women in Construction (HASWIC) workgroup, women shared that 
standard sized PPE was difficult or impossible to use. One woman 
explained how she was issued a welding jacket with sleeves ``a foot 
longer than her hand,'' that she had to roll up, potentially exposing 
her to burn hazards. (HASWIC, 1999). Additionally, some standard-sized 
PPE may be too small for larger workers and expose them to hazards as a 
result.
    Access to properly fitting PPE has always been an important safety 
and health issue for women working in construction. In the past, 
because women made up a relatively small percentage of the construction 
workforce, many manufacturers of protective equipment were reluctant to 
invest in research and development to produce correctly sized and 
proportioned products for women. Historically, manufacturers and 
suppliers have produced and sold protective equipment designed to fit 
average-sized men. As a result, ill-fitting PPE could jeopardize the 
safety and health of female construction workers.
    Based on Bureau of Labor Statistics (BLS) Current Employment 
Statistics and the Census Bureau's County Business Patterns (CBP) data, 
there were approximately 974,000 women working in the construction 
industry in 2018. (OSHA PEA Spreadsheet, 2023).\1\ As a result of more 
women working in the construction industry, the availability of PPE for 
women has increased. The ISEA reports that many employers now provide a 
full range of sizes for PPE. (ISEA, February 4, 2013). Also, ISEA and 
the Center to Protect Workers' Rights (CPWR) have developed lists of 
manufacturers who offer safety and health equipment that is appropriate 
for women working in construction. (ISEA List of Female PPE 
Manufacturers, accessed October 27, 2020; CPWR--Construction Personal 
Protective Equipment for the Female Workforce, accessed October 27, 
2020). OSHA requests comment on the availability of PPE for persons who 
may be smaller or larger than the average worker in the construction 
industry or for persons with other physical characteristics that differ 
from the average worker.
---------------------------------------------------------------------------

    \1\ See the Preliminary Economic Analysis, below, for a 
description of how this figure was derived.
---------------------------------------------------------------------------

    In addition to adversely impacting safety and health, ill-fitting 
PPE can also reduce an employee's job efficiency. For example, an ill-
fitting glove may cause an employee to use more energy to grip a piece 
of equipment, resulting in fatigue. In the HASWIC report, a woman 
shared her experience of using welding gloves that were so large she 
was unable to pick up anything. (HASWIC, 1999). Also, employees are 
more likely to remove or not use ill-fitting PPE, negating whatever 
protection the PPE might otherwise provide. (See Omeike, December 4, 
2016, pp. 11-12). In Personal Protective Equipment for Women: 
Addressing the Need, survey participants cited poorly fitting gloves as 
a major problem, with one woman saying she tended not to use them 
because they were awkward. (OWD & IAPA, 2006, p. 13).
    It is OSHA's position that ``properly fits'' means the PPE is the 
appropriate size to provide an employee with the necessary protection 
from hazards, and does not create additional safety and health hazards 
arising from being either too small or too large. When PPE fits 
properly, employees are unlikely to discard or modify it because of 
discomfort or interference with their work activities. OSHA is not 
concerned with the cosmetic appearance, or ``exact fit'' of PPE. The 
proposed standard does not include the phrase ``exact fit'' in the 
regulatory text. Instead, the proposed rule uses the phrase ``properly 
fits,'' consistent with the OSHA general industry and maritime PPE 
standards. The agency believes that providing clear and explicit 
language in the construction standard on PPE fit will help ensure 
employers provide employees with properly fitting PPE, thereby ensuring 
protection for employees exposed to workplace hazards.

D. OSHA Enforcement of PPE Fit Requirements

    OSHA anticipates that application of the proposed language 
requiring properly fitting PPE in the construction standard would be 
the same as for general industry and maritime. Sections 
1910.132(d)(1)(iii) and 1915.152(b)(3) each explicitly provide that the 
employer must select PPE that properly fits each affected employee. 
Appendix B of 29 CFR 1910, Subpart I (PPE), which provides assistance 
for employers in selecting PPE, provides: ``5. Fitting the device. 
Careful consideration must be given to comfort and fit. PPE that fits 
poorly will not afford the necessary protection. Continued wearing of 
the device is more likely if it fits the wearer comfortably. Protective 
devices are generally available in a variety of sizes. Care should be 
taken to ensure that the right size is selected.'' This same type of 
guidance would apply to the proposed new requirement for proper fit in 
section 1926.95(c)(2).
    OSHA has reviewed its enforcement data for the general industry and 
maritime standards that require PPE to properly fit and for the PPE 
requirements in 29 CFR 1926.95(a)-(c). The enforcement data spans from 
April 6, 1994, when OSHA promulgated revisions to the PPE requirements 
in general industry requiring PPE to fit properly (see 59 FR 16334), to 
July 30, 2021.
    During that period of time, OSHA cited employers 51 times for 
violations of 1910.132(d)(1)(iii) and one time for a violation of 
1915.152(b)(3). In many cases, employers were cited for not providing 
gloves that properly fit employees, exposing them to chemical and 
physical hazards. In one case, an amputation occurred when a worker's 
improperly fitting latex glove was caught between a power steering belt 
and a pulley. (Inspection No. 908699).\2\ An employer was also cited 
for failing to provide small and medium gloves to workers exposed to 
numerous chemical hazards. (Inspection No. 896842). Another inspection 
resulted in a violation of the standard because gloves that were too 
large for some employees reduced their dexterity. (Inspection No. 
1418803). There were also several instances where employers provided 
workers with personal fall arrest systems that did not fit the employee 
properly, exposing them to fall hazards. (Inspection Nos. 638178, 
1006483, 1346323, 1417821). In one instance, an employer provided 
workers with improperly fitting conductive booties, leading not only to 
electrical shock hazards, but also tripping hazards. (Inspection No. 
525479). OSHA cited one employer under the general industry standard 
for inadequate PPE where duct tape was used to secure PPE to spats in 
an effort to provide protection from burns caused by molten aluminum. 
(Inspection No. 514938). In

[[Page 46712]]

maritime, the one violation resulted from a rigger working on a mast 
without a properly fitting fall protection harness, exposing the rigger 
to fall hazards. (Inspection No. 894520).
---------------------------------------------------------------------------

    \2\ Records for inspections referenced in this document can be 
found at https://www.osha.gov/pls/imis/InspectionNr.html.
---------------------------------------------------------------------------

    In construction, from April 6, 1994 to July 30, 2021, OSHA issued 
1,722 citations for violations of 29 CFR 1926.95(a)-(c); most of the 
citations were for violations of section 1926.95(a). OSHA cited the 
inappropriate fit of PPE nine times, all under 29 CFR 1926.95(a). The 
majority of these instances were for improperly fitting gloves that 
exposed employees to hazards. (Inspection Nos. 1074915, 1103257, 
1255622, 1291644, 1062401, 1062798). In one instance, an employer was 
cited because their employee did not wear protective eyewear because it 
did not fit over the employee's prescription eyewear. (Inspection No. 
1074380).
    These citations help to demonstrate that fit has always been an 
important part of meeting the PPE requirements in OSHA's construction 
standards. Without its consideration, workers can be exposed to 
multiple types of workplace hazards, including physical, chemical, and 
environmental hazards. The language of this proposed rule will make the 
requirement for properly fitting PPE clear and increase awareness of 
employers' obligations when choosing and evaluating PPE for their 
workers.

E. Issues for Comment

    In addition to the questions throughout the preamble, OSHA seeks 
comment on the following issues related to this proposed rulemaking:
     Will this proposal effectuate the purposes of the OSH Act 
better than the applicable national consensus standards?
     ACCSH recommended that OSHA consider developing additional 
guidance to explain what ``proper fits'' means for PPE used in 
construction. (ACCSH Meeting Transcript, July 17, 2019). Is existing 
OSHA guidance regarding PPE ``proper fit'' in construction adequate? If 
not, what type of additional guidance should OSHA provide?
     Is there confusion about what ``properly fits'' means for 
PPE used in the construction industry?
     How would the proposed revision impact the construction 
industry? Specifically, would revising the construction standard to 
mirror the language in the current general industry and maritime 
standards change how employers choose PPE for their employees? How?
     Are there differences between general industry and 
maritime, and the construction industry, that impact whether OSHA 
should include the phrase ``properly fits'' in the construction 
standard?
     Are there types of PPE that are not available in varying 
sizes? If yes, please give specific examples of the PPE and how you 
address this in the workplace.
     Finally, what, if any, burden will the proposed change to 
section 1926.95(c) impose on employers in the construction industry?
    In addition, see the issues for comment in section IV.C of this 
preamble.

IV. Agency Determinations

A. Legal Authority

    The purpose of the Occupational Safety and Health Act of 1970) 
(``OSH Act,'' 29 U.S.C. 651 et seq.) is ``to assure so far as possible 
every working man and woman in the Nation safe and healthful working 
conditions and to preserve our human resources.'' (29 U.S.C. 651(b)). 
To achieve this goal, Congress authorized the Secretary of Labor to 
promulgate and enforce occupational safety and health standards. (29 
U.S.C. 654, 655(b), and 658). A safety or health standard ``requires 
conditions, or the adoption or use of one or more practices, means, 
methods, operations, or processes, reasonably necessary or appropriate 
to provide safe or healthful employment and places of employment.'' (29 
U.S.C. 652(8)). A safety standard is reasonably necessary or 
appropriate within the meaning of 29 U.S.C. 652(8) if:
     It substantially reduces a significant risk of material 
harm in the workplace;
     It is technologically and economically feasible;
     It uses the most cost-effective protective measures;
     It is consistent with, or is a justified departure from, 
prior agency action;
     It is supported by substantial evidence; and
     It is better able to effectuate the purposes of the OSH 
Act than any relevant national consensus standard.
    (See United Auto Workers v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994) 
(Lockout/Tagout)). In addition, safety standards must be highly 
protective. (See id. at 669).
    A standard is technologically feasible if the protective measure it 
requires already exist, available technology can bring these measures 
into existence, or there is a reasonable expectation for developing the 
technology that can produce these measures. (See, e.g., American Iron 
and Steel Inst. v. OSHA, 939 F.2d 975, 980 (D.C. Cir. 1991) (per 
curiam) (Lead II)). A standard is economically feasible when industry 
can absorb or pass on the cost of compliance without threatening an 
industry's long-term productivity or competitive structure. (See 
American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 530 n.55 (1981); 
Lead II, 939 F.2d at 980). A standard is cost effective if the 
protective measures it requires are the least costly of the available 
alternatives that achieve the same level of protection. (See, e.g., 
Lockout/Tagout, 37 F.3d at 668).
    Section 6(b)(7) of the OSH Act (29 U.S.C. 655(b)(7)) authorizes 
OSHA to include requirements for protective equipment within a 
standard. It provides that, where appropriate, standards must prescribe 
suitable protective equipment and control or technological procedures 
to be used in connection with workplace hazards and must provide for 
monitoring or measuring employee exposure as necessary to protect 
employees. (29 U.S.C. 655(b)(7)).

B. Significant Risk

    Section 3(8) of the OSH Act requires that OSHA standards be 
``reasonably necessary or appropriate to provide safe or healthful 
employment'' (29 U.S.C. 652(8)), which the Supreme Court has 
interpreted as requiring OSHA to show that ``significant risks are 
present and can be eliminated or lessened by a change in practices.'' 
(Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 642 
(1980) (plurality opinion) (Benzene)). The Court clarified that OSHA 
has considerable latitude in defining significant risk and in 
determining the significance of any particular risk, noting that ``[i]t 
is the agency's responsibility to determine, in the first instance, 
what it considers to be a `significant' risk.'' (Id. at 655).
    Although OSHA makes significant risk findings for both health and 
safety standards, the methodology used to evaluate risk in rulemakings 
involving safety standards is normally more straightforward. Unlike the 
risks related to health hazards, which ``may not be evident until a 
worker has been exposed for long periods of time to particular 
substances,'' the risks associated with safety hazards ``are generally 
immediate and obvious.'' (Benzene, 448 U.S. at 649, n.54).
    OSHA need not make findings on risk for the proposed change to 29 
CFR 1926.95(c). This proposed rule involves a clarification of an 
existing OSHA standard and would not create any new requirements for 
employers. Accordingly, OSHA is not required to conduct a significant 
risk analysis for the proposed changes to section

[[Page 46713]]

1926.95. (See Edison Elec. Inst. v. OSHA, 849 F.2d 611, 620 (D.C. Cir. 
1988)).

C. Preliminary Economic Analysis and Regulatory Flexibility Act 
Certification

    Executive Orders 12866 and 13563 require that OSHA estimate the 
benefits, costs, and net benefits of regulations. The Regulatory 
Flexibility Act (5 U.S.C. 601-612) and the Unfunded Mandates Reform Act 
(UMRA) (2 U.S.C. 1532(a)) also require OSHA to estimate the costs, 
assess the benefits, and analyze the impacts of rules that the agency 
promulgates. In addition, the OSH Act requires that OSHA show the 
economic feasibility of standards.
    A standard is economically feasible when industries can absorb or 
pass on the costs of compliance without threatening industry's long-
term profitability or competitive structure (Cotton Dust, 452 U.S. at 
530 n. 55), or ``threaten[ing] massive dislocation to, or imperil[ing] 
the existence of, the industry.'' (United Steelworkers of Am. v. 
Marshall, 647 F.2d 1189, 1272 (D.C. Cir. 1981) (Lead I)). ``[T]he 
Supreme Court has conclusively ruled that economic feasibility [under 
the OSH Act] does not involve a cost-benefit analysis.'' (Pub. Citizen 
Health Research Grp. v. U.S. Dept. of Labor, 557 F.3d 165, 177 (3d Cir. 
2009)). The OSH Act ``place[s] the `benefit' of worker health above all 
other considerations save those making attainment of this `benefit' 
unachievable.'' (Cotton Dust, 452 U.S. at 509). Therefore, ``[a]ny 
standard based on a balancing of costs and benefits by the Secretary 
that strikes a different balance than that struck by Congress would be 
inconsistent with the command set forth in'' the statute. (Id.). This 
case law arose with respect to health standards issued under section 
6(b)(5) of the Act, which specifically require a showing of 
feasibility; OSHA has also rejected the use of formal cost benefit 
analysis for safety standards, which are not governed by section 
6(b)(5). (See 58 FR 16,612, 16,622-23 (Mar. 30, 1993) (``in OSHA's 
judgment, its statutory mandate to achieve safe and healthful 
workplaces for the nation's employees limits the role monetization of 
benefits and analysis of extra-workplace effects can play in setting 
safety standards.'')).
    The purpose of this rule is to revise the language of the PPE 
requirements in the construction standard to make it consistent with 
the requirement in OSHA's general industry and maritime standards. This 
rule is not an ``economically significant regulatory action'' under 
Executive Order 12866 or UMRA, and it is not a ``major rule'' under the 
Congressional Review Act (5 U.S.C. 801 et seq.) or Sec.  804 of the 
Small Business Regulatory Enforcement Fairness Act (SBREFA). In 
addition, it does not meet any of the other criteria specified by UMRA 
or the Congressional Review Act for a significant regulatory action or 
major rule. Finally, this rule complies with Executive Order 13563.
Preliminary Economic Analysis
    OSHA is amending the construction standard at 29 CFR 1926.95--
Criteria for Personal Protective Equipment (PPE), paragraph (c), to 
clarify that PPE must properly fit each employee. The existing standard 
states that PPE shall be of safe design and construction for the work 
to be performed and current paragraph (a) states that PPE shall be 
provided, used, and maintained in a sanitary and reliable condition 
wherever it is necessary. As discussed in more detail elsewhere in this 
preamble, for PPE to provide protection against the hazards for which 
it is designed, it must fit properly.
    OSHA views the proposed revision to section 1926.95(c) as a 
clarification of existing requirements and therefore preliminarily 
concludes that the rule is not expected to impose new costs on 
employers as a result of a new regulatory requirement. OSHA normally 
assumes full compliance with existing requirements when performing its 
analysis of costs related to a new or amended standard. However, in 
this case, the purpose of the proposed rule is to clarify an existing 
requirement about which there may be confusion in the regulated 
community. To the extent the clarification in this rule could result in 
new changes in behavior among some employers, OSHA has estimated the 
costs for a specified proportion of employers to come into compliance 
with the already-existing requirement to provide properly fitting PPE. 
This analysis is being provided as a starting point for public comments 
and to demonstrate that, even if there were costs associated with this 
rule as a result of changed employer behavior, the rule would be 
feasible to implement.
    As discussed above in Section II.C, Comments Received During the 
SIP-IV Rulemaking, OSHA previously proposed revising the language in 
section 1926.95(c) to clarify that PPE must properly fit each employee. 
During that rulemaking, while several commenters supported the revision 
to section 1910.95(c), the CISC commented that the proposed revision 
would increase the costs to employers for providing PPE (CISC, January 
4, 2017). Specifically, CISC commented that amending paragraph (c) 
would result in employers maintaining inventory of PPE that would not 
otherwise be necessary without the revised language. However, the 
proposed revision to paragraph (c) contains no such requirement, and 
employers would only be required to have PPE that properly fits their 
employees. As OSHA explained above, this is a requirement that already 
exists under the construction standard; the new language merely 
clarifies that requirement. In the long run, the cost of inventory 
should be largely unaffected by this rulemaking as employers will need 
to use one size or another for each affected employee. In other words, 
the employer will only need to provide each employee with one set of 
PPE under the revised regulatory language, which is the case whether 
the PPE fits properly or not. In addition to safety issues, equipment 
that is ill fitting may wear out faster or reduce worker productivity 
on the job. Moreover, it is inherently cost-ineffective to pay for PPE 
that does not perform its essential function properly or that the 
worker will not wear consistently.
    On November 15, 2007, OSHA published a final rule addressing 
Employer Payment for Personal Protective Equipment (PPE Payment) (72 FR 
64341). In that rulemaking, OSHA identified the various types of PPE 
that are worn by employees, and the numbers of employees that would 
typically use each type of PPE, in the construction industries: NAICS 
236 (Construction of Buildings), NAICS 237 (Heavy and Civil Engineering 
Construction), and NAICS 238 (Specialty Trade Contractors). As part of 
its analysis, OSHA also calculated the cost, and estimated the useful 
life, of each item of PPE (see 72 FR 64406-64408).
    As shown in Table 1, below, OSHA has preliminarily determined that 
the types of PPE used in construction fall into the following three 
categories: PPE provided by the employer and not of universal fit, PPE 
items purchased by the employee and reimbursed by the employer, and PPE 
of universal fit.

[[Page 46714]]



           Table 1--PPE Used in the Construction Industries *
------------------------------------------------------------------------
 Provided by the employer, not   Provided by employee
         universal fit              and reimbursed        Universal fit
------------------------------------------------------------------------
Chemical Protective Clothing,   Prescription Safety     Body Harnesses,
 Chemical Protective Footwear,   Glasses, Protective     Body Belts, Ear
 Chemical Splash Goggles,        Electrical PPE,         Inserts,
 Earmuffs, Face Shields,         Protective Welding      Hardhats,
 Gloves for Abrasion             Clothing, Safety        Welding
 Protection, Gloves for          Shoes with Metatarsal   Helmets.
 Chemical Protection, Non-       Guards, Safety Shoes
 Prescription Safety Glasses,    Without Metatarsal
 Safety Goggles, Safety Vests,   Guards, Welding
 Splash Aprons.                  Goggles, Welding
                                 Helmets.
------------------------------------------------------------------------
* Respirators are not included in the table, as fit testing is already
  required in paragraph 1910.134(f) of the respiratory protection
  standard (29 CFR 1910.134(f)), which covers the construction industry.
  (See 29 CFR 1926.103).
Source: OSHA, Office of Regulatory Analysis (OSHA PEA Spreadsheet,
  2023).

    PPE items of universal fit are those that are completely adjustable 
and capable of fitting any person. For those items, the employer will 
be able to continue providing the same items they are already providing 
to employees and will not have to replace them as a result of this 
rule. PPE items purchased by the employee and then reimbursed by the 
employer should already fit properly since the employee should have 
selected the size that fits them best. Considering that these employee-
purchased PPE items likely already fit, the employer will not have to 
replace them until they have reached the end of their useful life. As a 
result, employers would incur no cost for replacing those items under 
this proposed rule. The remaining PPE items are those provided by the 
employer that are not universal fit. For these items, the standard size 
may not fit all workers--primarily people who are much larger or much 
smaller than average. Therefore, in cases where employers have provided 
standard-sized PPE, some workers may not have been provided properly 
fitting PPE. OSHA has preliminarily determined the average useful life 
for the PPE items that are provided by the employer and are not 
universal fit, as presented in Table 2.

                  Table 2--Useful Life of Selected PPE
------------------------------------------------------------------------
                                                            Useful life
       Provided by the employer, not universal fit             (yr.)
------------------------------------------------------------------------
Chemical Protective Clothing............................            0.50
Chemical Protective Footwear............................            0.50
Chemical Splash Goggles.................................            0.50
Earmuffs................................................            0.50
Face Shields............................................            1.00
Gloves for Abrasion Protection..........................            0.25
Gloves for Chemical Protection..........................            0.05
Non-Prescription Safety Glasses.........................            1.00
Safety Goggles..........................................            0.50
Safety Vests............................................            0.50
Splash Aprons...........................................            0.50
------------------------------------------------------------------------
Source: OSHA, Office of Regulatory Analysis (OSHA PEA Spreadsheet,
  2023).

    In order to estimate the potential costs and impacts of this 
proposed standard, OSHA has taken the PPE items in Table 2 and updated 
the information that was in the Final Economic Analysis supporting the 
PPE Payment rulemaking to estimate the current number of employees that 
might use each type of PPE \3\ and the unit cost of each type of PPE. 
The PPE Payment analysis was published in 2007 as part of the final 
rule on PPE Payment. Information on PPE use by employees for the 2007 
analysis was derived from a statistically representative nationwide 
telephone survey of 3,722 employers conducted for OSHA. The survey was 
benchmarked to the whole working population based on employment data 
available at that time. (See 72 FR 64391). When the economic analysis 
for the PPE Payment rule was performed, the most recent data available 
on numbers of employees was from the U.S. Census' 2004 County Business 
Patterns. OSHA utilized this 2004 data to estimate the number of 
employees using PPE and the industries they worked in. The most current 
information on prices for the PPE Payment analysis was from 2007 and 
was based on the GDP deflator from the Federal Reserve's St. Louis FRED 
(Federal Reserve Economic Data). In the PPE Payment rulemaking, 
therefore, the employee numbers were from 2004, based on the CBP's most 
recent data at that time, and the prices for PPE were from 2007, based 
on FRED's most recent GDP deflator at the time. These numbers, along 
with the more recent estimates for the current proposed rule, are 
presented in Table 3, below.
---------------------------------------------------------------------------

    \3\ In the final rule on PPE Payment, OSHA estimated the number 
of employees in non-State Plan states using any type of PPE (72 FR 
64391). OSHA estimates that the proportion of employees who use PPE 
in the construction industries in all 50 states and territories is 
the same as the proportion of employees who use PPE in non-State 
Plan states.
---------------------------------------------------------------------------

    Similar to the data presented in the PPE Payment rulemaking, OSHA 
will be relying on data from two different time periods for estimates 
related to this proposed rule. The most recent data available to 
estimate the number of employees in the affected industries is from the 
CBP for 2020; the most recent FRED GDP report, used to make an updated 
estimate of PPE prices, is from the third quarter of 2022. The total 
number of PPE items used by employees in 2020 is derived by multiplying 
the number of employees (based on 2020 CBP data) by the number of PPE 
items used, per employee, from the Final Economic Analysis supporting 
the PPE Payment final rule. The agency then uses the unit costs of PPE 
items (in 2007) from the PPE Payment rule and applies the GDP deflator 
from the FRED to estimate the unit cost of those PPE items in 2022 
dollars. Finally, to get the total potential one-time costs of this 
proposed standard, OSHA applies those

[[Page 46715]]

2022 unit costs to the estimated number of PPE items used in 2020 
(benchmarked to the updated Census data), based on the proportion of 
employees that might need replacement PPE.
    Using data from the gross domestic product data series (GDP 
deflator from FRED, https://fred.stlouisfed.org/series/GDPDEF, accessed 
January 20, 2023), OSHA estimates that the average price for PPE in 
2022 is 37.4 percent higher than in 2007, the base year for data the 
agency used when promulgating the PPE Payment rule. Using the most 
recent data (2020) available from the CBP report (https://www.census.gov/programs-surveys/cbp/data/tables.html), OSHA estimates 
that employment in the construction industries has increased by 8.04 
percent since 2004. As part of the PPE Payment rulemaking, OSHA 
previously estimated that the total number of PPE items worn by 
construction employees in 2004 was about 13 million. However, in the 
PPE payment rulemaking analysis, OSHA did not include safety vests in 
the list of necessary PPE. For this rulemaking, the agency has 
estimated the cost and use of safety vests and has included them in the 
number of PPE items worn by construction workers in 2020, the unit cost 
in 2022, and the total cost in 2022. Using the estimated construction 
workforce increase of 8.04 percent, the agency estimates that the total 
number of PPE items worn by construction employees was about 14.9 
million in 2020. Dividing the total number of PPE items in use 
(14,892,806) by the total number of construction workers in 2020 
wearing PPE (5,734,977) yields an estimate that each construction 
employee wearing PPE provided by the employer, and not universal fit, 
wears an average of 2.6 items of PPE.
    In summary, OSHA is preliminarily estimating that the total cost of 
PPE that is provided by construction employers, and is not universal 
fit, has increased since 2007. Driven primarily by the aforementioned 
37.4 percent price increase between 2007 and 2022, that cost is now 
estimated to be just over $170 million, including an additional 
estimated $3.9 million for safety vests. Based on this information, the 
agency calculates an average per unit PPE cost of $11.45 and an average 
cost of $29.74 to outfit a construction employee in their needed PPE.

                    Table 3--Use and Cost of Selected PPE Used in the Construction Industries
----------------------------------------------------------------------------------------------------------------
                                        Total PPE items  Total PPE items
   PPE provided by the employer, not        used by          used by        PPE unit     PPE unit    Total cost
             universal fit                 employees        employees      cost 2007$   cost 2022$      2022$
                                          (2004) U.S.      (2020) U.S.
----------------------------------------------------------------------------------------------------------------
Chemical Protective Clothing..........          358,089          386,877       $41.30       $56.76   $21,960,279
Chemical Protective Footwear..........          211,871          228,904        21.40        29.41     6,732,595
Chemical Splash Goggles...............          584,797          631,811         6.20         8.52     5,383,851
Earmuffs..............................          642,362          694,004        13.60        18.69    12,972,241
Face Shields..........................        1,194,399        1,290,422        14.90        20.48    26,426,058
Gloves for Abrasion Protection........        2,940,764        3,177,183         8.30        11.41    36,243,886
Gloves for Chemical Protection........          896,173          968,219         3.50         4.81     4,657,537
Non-Prescription Safety Glasses.......        3,485,009        3,765,183         6.20         8.52    32,084,272
Safety Goggles........................        2,506,959        2,708,504         4.65         6.39    17,309,989
Safety Vests *........................               NA          828,178           NA         4.65     3,849,472
Splash Aprons.........................          197,632          213,520        10.00        13.74     2,934,632
                                       -------------------------------------------------------------------------
    Total of PPE items used by               13,018,055       14,892,806  ...........  ...........   170,554,811
     construction employees...........
                                       -------------------------------------------------------------------------
    Average per Unit PPE Cost 2022....  ...............  ...............  ...........  ...........         11.45
----------------------------------------------------------------------------------------------------------------
* Safety Vests were not included in the 2004 analysis; OSHA Office of Regulatory Analysis has estimated their
  use in 2020 and their cost in 2022 dollars to be consistent with the use and costs for the other types of PPE.
  (ERG Cost Analysis for Safety Vests, August 17, 2020).
Source: OSHA, Office of Regulatory Analysis; based on PPE Payment rule (72 FR 64406). (See OSHA PEA Spreadsheet,
  2023, tab ``PPE Payment--Cost by PPE'' for unit costs in 2007 and tab ``PPE Payment--PPE Use'' for PPE items
  used in 2004.)

    Given the current lack of data on how many employees might be 
wearing improperly fitting PPE, OSHA estimated this parameter using 
some general population height and weight distributions. Based on BLS 
Current Employment Statistics, OSHA estimates that in 2022, the 
construction industry was made up of 86 percent men and 14 percent 
women. According to the CBP, there were 7,182,071 employees in the 
construction industry in 2020. Taken together, these data suggest that 
employment in the construction industry is comprised of about 6,173,572 
men and about 1,008,499 women. Furthermore, OSHA's 2007 PPE Payment 
Final Rule estimated that only 79.85 percent of construction employees 
use PPE of any type. Based on this figure, the agency estimates that 
about 4,929,677 men and about 805,299 women in the construction 
industry use any type of PPE.
    To estimate what proportion of women and men might require non-
standard sizes of PPE,\4\ the agency referred to the Census Bureau's 
2011 National Health and Nutrition Examination Survey (NHNES) (https://www2.census.gov/library/publications/2010/compendia/statab/130ed/tables/11s0205.pdf). Using height and weight figures for the general 
population from NHNES, OSHA preliminarily determines, as shown in Table 
4, below, that women and men weighing above 300 pounds and women 
shorter than five feet tall might require non-standard sizes of PPE and 
thus could have improperly fitting PPE (the base figure was too small 
to meet statistical standards of reliability of a derived figure for 
men shorter than five feet tall).\5\ OSHA acknowledges that using the 
general population height and weight distributions may not align 
precisely with the profile of construction workers. For example, 
Hispanic males make up a greater

[[Page 46716]]

proportion of the construction workforce than the population in general 
and are, on average, slightly shorter than, and weigh less than, non-
Hispanic white males. It is also possible that there are fewer people 
who are much smaller or larger than average in the construction 
industry. OSHA also acknowledges that this estimate is imprecise 
because it assumes that all workers who weigh more than 300 pounds and 
all female workers who are shorter than five feet tall require PPE that 
is not standard sized; conversely, it assumes that standard-sized PPE 
is appropriate for all other workers. Given the necessity of estimating 
these parameters, OSHA seeks comment on what characteristics, and what 
data sources, should be considered when estimating the proportion of 
employees that might require non-standard sizes of PPE in the 
construction industries.
---------------------------------------------------------------------------

    \4\ OSHA uses the term ``non-standard'' to refer to sizes of PPE 
which are available on the market, but which some construction 
employers may not routinely order or keep in stock.
    \5\ OSHA's analysis assumes that only construction workers who 
meet the specified height or weight criteria may require non-
standard sizes of PPE. OSHA then draws from this universe of workers 
when calculating how many workers may actually be using PPE that 
does not properly fit. OSHA's analysis does not attempt to account 
for workers who wear standard-sized PPE but may nevertheless have 
been provided with improperly fitting PPE by their employers.
---------------------------------------------------------------------------

    Due to data limitations and as a simplifying assumption for this 
preliminary analysis, the agency also assumes that construction workers 
are distributed across age groups in the same proportions as the 
general population examined in the NHNES. The agency then multiplies 
those percentages by the total number of men, and the total number of 
women, in the construction industry that wear any type of PPE. Those 
results are presented here, in Table 4.

                    Table 4--Construction Employees Who May Require Non-Standard Sizes of PPE
----------------------------------------------------------------------------------------------------------------
                                                                 Ages
                                            ---------------------------------------------  Average      Total
    Construction employee characteristic      20-29    30-39    40-49    50-59    60-69      (%)      employees
                                               (%)      (%)      (%)      (%)      (%)                   (%)
----------------------------------------------------------------------------------------------------------------
Men Above 300 pounds.......................     2.50     3.10     1.90     1.90     2.20       2.32      114,369
Women Above 300 pounds.....................     2.30     1.60     1.70     0.60     0.70       1.38       11,113
Women Under 5 foot tall....................     5.70     8.00     5.00     8.00     9.00       7.14       57,498
                                            --------------------------------------------------------------------
    Total Employees Who May Require Non-     .......  .......  .......  .......  .......  .........      182,980
     Standard Sizes of PPE.................
----------------------------------------------------------------------------------------------------------------
Source: OSHA, Office of Regulatory Analysis (OSHA PEA Spreadsheet, 2023).

    The agency estimates that 182,980 construction employees might 
require non-standard sizes of PPE, but recognizes that not all of those 
employees are using improperly fitting PPE. OSHA assumes that up to 10 
percent of those workers--or 18,298 workers--are currently being 
provided with incorrectly fitting PPE. At an average, per-person cost 
of $29.74 for PPE,\6\ OSHA preliminarily estimates that replacing the 
PPE for these 18,298 employees would cost almost $545,000 for the 
entire construction industry.
---------------------------------------------------------------------------

    \6\ OSHA assumes that larger and smaller sizes of PPE cost the 
same as the average size PPE of that type.

                 Table 5--Potential PPE Replacement Cost
------------------------------------------------------------------------
  Assumed percent of employees needing
         replacement PPE (2020)           Total employees    Total cost
------------------------------------------------------------------------
10% of Employees.......................             18,298      $544,172
                                        --------------------------------
    Average Per-Employee PPE Cost (2.6   .................         29.74
     items per employee)...............
------------------------------------------------------------------------
Source: OSHA, Office of Regulatory Analysis (OSHA PEA Spreadsheet,
  2023).

    As presented in Table 5, the agency preliminarily estimates that if 
10 percent of employees are provided with properly fitting PPE as a 
result of this clarifying rule, the rule might have a one-time total 
cost to the construction industry of $544,172. After initially 
replacing improperly fitting PPE, employers would be expected to 
continue to provide properly fitting PPE as those items reach the end 
of their useful life. Since employers need to provide replacement PPE, 
whether properly fitting or not, in the absence of this clarifying 
rule, OSHA estimates that there will be no additional on-going costs to 
provide properly fitting PPE as part of the normal process of 
replacement.
    OSHA seeks comment on all aspects of its preliminary economic 
analysis, including:
     The types of PPE that construction employees use;
     The types of PPE that are available in different sizes;
     The types of PPE that are universal fit (i.e., they can be 
adjusted to fit any person);
     Whether there are types of PPE that only come in one 
standard size that is not adjustable. If yes, give examples;
     The extent of employer reimbursement for employee 
purchases for various types of PPE;
     Whether the agency's categorization of the various types 
of PPE into the three categories in Table 1 (provided by the employer, 
not universal fit; provided by the employee and reimbursed; and 
universal fit) is accurate, and why or why not;
     The average useful life of various types of PPE;
     The benefits of, and productivity increases from, wearing 
properly fitting PPE;
     Workplace accidents related to improperly fitting PPE;
     The average cost for each PPE item, including whether 
there are price differences for different sizes of PPE, as well as the 
average cost to outfit an employee in necessary PPE;
     Whether employers will need to provide their workers with 
different sizes of PPE than they are currently providing them, and what 
specific changes employers will make to their current practices if this 
rule is finalized as proposed;

[[Page 46717]]

     Whether there are other significant cost elements that 
have not been accounted for in OSHA's analysis that extend beyond 
simply acquiring properly fitting PPE;
     Whether employers have incurred additional costs in 
fitting employees who need non-standard sizes of PPE with PPE that fits 
properly;
     Whether there will be ongoing costs to employers to 
provide correctly sized PPE. In particular, OSHA is interested in what 
ongoing activities employers anticipate they would need to undertake in 
response to this rule clarification and how much time and expense those 
activities would require.
Sensitivity Analysis
    OSHA believes that instances of employees with improperly fitting 
PPE are limited given the existing requirement for proper fit. The 
primary analysis above assumes that only 10 percent of the employees 
who may require non-standard sizes of PPE would need to have their PPE 
replaced. For the first sensitivity analysis, the agency compared the 
assumed 10 percent of potentially affected employees with a lower rate 
of 5 percent and, alternatively, a higher rate at each quartile of the 
group (25, 50, and 100 percent). Additionally, some employees may only 
need one item of replacement PPE while others might have to replace 
more items. As discussed above, OSHA has estimated that affected 
employees in construction wear an average of 2.6 pieces of PPE of the 
type covered by OSHA's analysis; the main analysis assumes they would 
all need to be replaced. In reality, for individual employees, some 
items might need to be replaced and not others. The second sensitivity 
analysis examines the cases where employees need replacements for 1, 2, 
or 3 items of PPE, along with the 2.6 items used in the primary 
analysis.
    In the first sensitivity analysis, OSHA multiplied the total number 
of employees who may require non-standard sizes of PPE (182,980) by the 
various assumed non-compliance percentages. Table 6, below, presents a 
range of 5 percent to 100 percent non-compliance. OSHA believes most 
companies want to act in the best interest of their employees and are 
already in compliance with the existing requirement to provide properly 
fitting PPE. As such, OSHA believes the actual non-compliance rate is 
towards the lower end of the range presented in Table 6. At most, fewer 
than 200,000 employees might be affected.

               Table 6--Employees Needing Replacement PPE
------------------------------------------------------------------------
       Assumed percent needing replacement PPE          Total employees
------------------------------------------------------------------------
5....................................................              9,149
10...................................................             18,298
25...................................................             45,745
50...................................................             91,490
75...................................................            137,235
100..................................................            182,980
------------------------------------------------------------------------

    For the second sensitivity analysis, OSHA examined the potential 
number of pieces of PPE that might need to be replaced for each 
affected employee. In Table 7, below, OSHA calculated the total number 
of PPE items, in the affected construction industries, that might need 
to be replaced based on employees needing 1, 2, 3, or the average 2.6 
pieces of replacement PPE.

                                     Table 7--PPE Items Needing Replacement
----------------------------------------------------------------------------------------------------------------
                                                                      Total PPE items needing replacement
        Percent of employees needing replacement PPE         ---------------------------------------------------
                                                                   1            2           2.6           3
----------------------------------------------------------------------------------------------------------------
5...........................................................        9,149       18,298       23,758       27,447
10..........................................................       18,298       36,596       47,517       54,894
25..........................................................       45,745       91,490      118,792      137,235
50..........................................................       91,490      182,980      237,585      274,470
75..........................................................      137,235      274,470      356,377      411,705
100.........................................................      182,980      365,960      475,169      548,940
----------------------------------------------------------------------------------------------------------------

    To complete the sensitivity analysis, OSHA multiplied the cost of 
the average piece of affected PPE, calculated as $11.45 per piece, by 
the number of total items of PPE needing replacement (displayed in 
table 7, above). The results are presented in table 8, below.

                                     Table 8--Total Cost of Replacement PPE
----------------------------------------------------------------------------------------------------------------
                                                                      Total PPE items needing replacement
        Percent of employees needing replacement PPE         ---------------------------------------------------
                                                                   1            2           2.6           3
----------------------------------------------------------------------------------------------------------------
5...........................................................     $104,776     $209,552     $272,086     $314,327
10..........................................................      209,552      419,103      544,172      628,655
25..........................................................      523,879    1,047,758    1,360,429    1,571,637
50..........................................................    1,047,758    2,095,517    2,720,859    3,143,275
75..........................................................    1,571,637    3,143,275    4,081,288    4,714,912
100.........................................................    2,095,517    4,191,033    5,441,717    6,286,550
                                                             ---------------------------------------------------

[[Page 46718]]

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

    Table 8 shows that, as a worst-case scenario, if no employers are 
providing properly fitting PPE to employees that need non-standard 
sizes, and if each employee needs 3 items of replacement PPE (more PPE 
than the average of 2.6 PPE items), then the total one-time cost to 
industry to provide that properly fitting PPE would be less than $6.3 
million. Meanwhile, the cost to industry could be as low as only 
$105,000.
Benefits
    As noted above, rather than impose a new requirement, this proposed 
rule would clarify an existing requirement in 29 CFR 1926.95(c) for PPE 
to fit properly. The proposed change harmonizes the PPE fit 
requirements in construction with those in general industry and 
maritime and should alleviate any confusion that may exist among 
construction employers, potentially addressing safety and health 
hazards caused by improperly fitting PPE.
    In 2007, OSHA promulgated the PPE Payment rule, which clarified the 
responsibilities of employers to pay for PPE (72 FR 64342). In that 
rule, OSHA noted that PPE must fit properly in order to provide the 
protection it was designed to provide (e.g., 72 FR 64350-51, 64380). 
Accompanying the PPE Payment rule was a detailed analysis of the types 
and numbers of injuries that would likely be prevented by the rule, and 
the value of those benefits. One finding of the analysis, which 
implicitly assumed employees would be provided with properly fitting 
PPE, was that PPE is a particularly cost-effective form of injury 
prevention, particularly in the construction industry. The analysis 
found that the economic benefits of preventing an injury with PPE in 
the construction industry were approximately three times the cost of 
providing the PPE.\7\ While there is substantial uncertainty about 
whether any costs will be generated by this proposed rulemaking on PPE 
fit, the agency is confident that if the rule results in construction 
employers incurring costs for properly fitting PPE, the benefits of the 
properly fitting PPE will likely exceed the costs. In addition, as has 
been noted elsewhere, much of the benefit of this rulemaking derives 
from providing greater clarity in terms of employer obligations.
---------------------------------------------------------------------------

    \7\ The 2007 analysis estimated that the rule would prevent 
almost 5,000 injuries (see Table XV-3) in construction, for a total 
economic value of approximately $90 million (see Table XV-4), at a 
cost of approximately $30 million (NAICS 23) (see Table XV-5) (72 FR 
64401-64408).
---------------------------------------------------------------------------

    While OSHA has preliminarily determined that the proposed change 
will not have quantifiable benefits, the agency requests comment on 
this preliminary determination. More specifically, if employers were to 
change the PPE they provide their workers as a result of this rule, 
what are the anticipated benefits to worker safety and health from 
these changes? How should OSHA quantify these benefits?
Technological Feasibility
    The purpose of the proposed amendment to section 1926.95(c) is to 
improve clarity for the construction sector, as well as ensure 
consistency with existing OSHA standards for general industry and 
maritime. Because the requirement for properly fitting PPE already 
exists in the construction industry, OSHA believes that providing 
properly fitting PPE is already common practice among construction 
employers. OSHA does not believe that employers will encounter any 
significant obstacles acquiring PPE that will properly fit their 
workers. Therefore, OSHA preliminarily concludes that this proposed 
rule would be technologically feasible.\8\ The agency welcomes comments 
on the technological feasibility of the proposal.
---------------------------------------------------------------------------

    \8\ OSHA notes that it is not required to perform a 
technological feasibility analysis for this proposed rule because it 
is simply a clarification of an existing requirement. The 
technological feasibility analysis presented in this document is for 
informational purposes only.
---------------------------------------------------------------------------

Economic Feasibility
    OSHA historically has applied two threshold tests to look at 
economic feasibility for establishments covered by the rule: whether 
the rule's average per establishment costs as a percentage of average 
per establishment revenues, for each industry sector, are below 1 
percent, and whether those costs as a percentage of profits are below 
10 percent.\9\ To determine whether there is a significant economic 
impact on a substantial number of small entities under the Regulatory 
Flexibility Act, there are also two threshold tests: whether the 
average costs for small entities are 1 percent of their average 
revenues or below, and whether those costs are 5 percent or less of the 
small entities' profits.\10\ None of these threshold tests are hard 
ceilings or determinative; they are guidelines the agency uses to 
examine whether there are any potential economic impact issues that 
require additional study.
---------------------------------------------------------------------------

    \9\ For example, see p. VI-14 of the Final Economic Analysis 
supporting OSHA's rule on Respirable Crystalline Silica. Final 
Economic Analysis and Final Regulatory Flexibility Analysis for 
OSHA's Rule on Occupational Exposure to Respirable Crystalline 
Silica, Chapter VI (OSHA-2010-0034-4247).
    \10\ For example, see OSHA's Final Regulatory Flexibility 
Screening Analysis in support of the Hazard Communication rule (77 
FR 17661).
---------------------------------------------------------------------------

    Because this is a clarification of an existing requirement, OSHA 
does not expect the proposed revision to the construction PPE standard 
to impose new costs on employers as a result of a new regulatory 
requirement. As previously stated, the proposed provision is consistent 
with the PPE requirements in the agency's general industry and maritime 
standards, and in agreement with OSHA's longstanding interpretation of 
the current requirements for PPE in section 1926.95. As noted above, to 
the extent the clarification in this rule could result in changes in 
behavior among some employers, OSHA has provided an estimate of the 
costs for a specified proportion of employers to come into compliance 
with the already-existing requirement to provide properly fitting PPE. 
Even assuming these estimated costs will be incurred by employers as a 
result of the rule the rule easily passes OSHA's threshold tests for 
feasibility. The average construction industry employer has revenues of 
$3.3 million annually \11\ and 9 employees.\12\ As a worst case 
scenario, if such an employer had to replace all the PPE at issue in 
this rulemaking for all of their employees

[[Page 46719]]

(i.e., 2.6 items per employee), it would cost under $300, which is less 
than .01% of an average employer's revenues. Therefore, this proposed 
rule is clearly economically feasible. The agency welcomes comments on 
its preliminary economic feasibility analysis and determination.
---------------------------------------------------------------------------

    \11\ U.S. 2017 Economic Census. Construction: Summary Statistics 
for the U.S., States, and Selected Geographies: 2017. Available at 
https://data.census.gov. Table ID EC1700BASIC. (Accessed March 21, 
2022.) (OSHA PEA Spreadsheet, 2023).
    \12\ U.S. 2017 Economic Census. Construction: Summary Statistics 
for the U.S., States, and Selected Geographies: 2017 reports a total 
of 715,364 establishments with 6,647,047 employees which averages to 
9 employees per establishment. (OSHA PEA Spreadsheet, 2023).
---------------------------------------------------------------------------

Regulatory Flexibility Screening Analysis and Certification of No 
Significant Impact on a Substantial Number of Small Entities
    In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq. (as amended)), OSHA examined the regulatory requirements of this 
rule to determine whether the proposed requirement would have a 
significant economic impact on a substantial number of small entities. 
As discussed above, because this is a clarification of an existing 
requirement, OSHA preliminarily estimates that this rule would impose 
zero costs on employers. Even if OSHA assumes that this rule would lead 
to changes in employer behavior and associated costs, however, the 
costs are minimal and would not be imposed on an ongoing basis. OSHA 
estimates that, on average, there will be no more than one worker who 
might be wearing improperly fitting PPE at any given firm. Given that 
replacement PPE costs less than $30 per employee, this proposal would 
not impose significant costs on small employers. The agency therefore 
certifies that, if promulgated, this rule will not have a significant 
economic impact on a substantial number of small entities.

D. OMB Review Under the Paperwork Reduction Act

    This proposal contains no information collection requirements 
subject to OMB approval under the Paperwork Reduction Act of 1995 (PRA) 
(44 U.S.C. 3501 et seq.) and its implementing regulations at 5 CFR part 
1320. The PRA defines a collection of information as ``the obtaining, 
causing to be obtained, soliciting, or requiring the disclosure to 
third parties or the public, of facts or opinions by or for an agency, 
regardless of form or format.'' (44 U.S.C. 3502(3)(A)).

E. Federalism

    OSHA reviewed this proposed rule in accordance with the Executive 
Order on Federalism (E.O. 13132, 64 FR 43255, August 10, 1999), which 
requires that Federal agencies, to the extent possible, refrain from 
limiting State policy options, consult with States prior to taking any 
actions that would restrict State policy options, and take such actions 
only when clear constitutional and statutory authority exists and the 
problem is national in scope. E.O. 13132 provides for preemption of 
State law only with the expressed consent of Congress. Any such 
preemption is to be limited to the extent possible.
    Under Section 18 of the OSH Act (29 U.S.C. 667), Congress expressly 
provides that States and U.S. territories may adopt, with Federal 
approval, a plan for the development and enforcement of occupational 
safety and health standards. States and territories that obtain Federal 
approval for such a plan are referred to as ``State Plans'' (29 U.S.C. 
667). Occupational safety and health standards developed by State Plans 
must be at least as effective in providing safe and healthful 
employment and places of employment as the Federal standards and, when 
applicable to products that are distributed or used in interstate 
commerce, must be required by compelling local conditions and not 
unduly burden interstate commerce. (29 U.S.C. 667(c)(2)). Subject to 
these requirements, State Plans are free to develop and enforce under 
State law their own requirements for safety and health standards.
    In States without OSHA approved State Plans, Congress expressly 
provides for OSHA standards to preempt State occupational safety and 
health standards in areas addressed by the Federal standards. In these 
States, this proposal would limit State policy options in the same 
manner as every standard or amendment to a standard promulgated by 
OSHA. In States with OSHA approved State Plans, this rulemaking would 
not significantly limit State policy options.
    The proposed amendment to 29 CFR 1926.95(c) complies with E.O. 
13132.

F. State Plans

    This proposed rule would revise the language in the construction 
standard, 29 CFR 1926.95(c), to include an explicit requirement that 
PPE used in the construction industry must fit properly. This change 
would be consistent with requirements that exist in the general 
industry and maritime standards and with OSHA's prior interpretation of 
the construction standard. When Federal OSHA promulgates a new standard 
or more stringent amendment to an existing standard, OSHA-approved 
State Plans must either amend their standards to be ``at least as 
effective as'' the new standard or amendment, or show that an existing 
state standard covering this area is already ``at least as effective'' 
as the new Federal standard or amendment. (29 CFR 1953.5(a)). State 
Plan adoption must be completed within six months of the promulgation 
date of the final Federal rule. OSHA concludes that this proposed rule, 
by including an explicit requirement that PPE used in the construction 
industry must fit properly, will maintain or increase the protection 
afforded to employees. Therefore, within six months of the final rule's 
promulgation date, State Plans would be required to adopt amendments to 
their standards that are ``at least as effective,'' unless they 
demonstrate that such amendments are not necessary because their 
existing standards are already ``at least as effective'' in protecting 
workers as the final Federal rule.
    The 29 OSHA-approved State Plans are: Alaska, Arizona, California, 
Connecticut, Hawaii, Illinois, Indiana, Iowa, Kentucky, Maine, 
Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New 
Jersey, New York, North Carolina, Oregon, Puerto Rico, South Carolina, 
Tennessee, Utah, Vermont, Virginia, Virgin Islands, Washington, and 
Wyoming. The Connecticut, Illinois, New Jersey, New York, Maine, and 
the Virgin Islands State Plans cover state and local government 
employees only, while the rest cover the private sector and state and 
local government employees.

G. Unfunded Mandates Reform Act

    OSHA reviewed this proposal according to the Unfunded Mandates 
Reform Act of 1995 (``UMRA''; 2 U.S.C. 1501 et seq.). As discussed 
above in Section IV.C of this preamble, the agency preliminarily 
determined that this proposal would not impose costs on any private- or 
public-sector entity. Accordingly, this proposal would not require 
additional expenditures by either public or private employers. Even to 
the extent that changes in behavior resulting from the rule would lead 
to employers expending money for new, properly fitting PPE, these costs 
are minimal and will only be incurred one time.
    As noted above, the agency's standards do not apply to State and 
local governments except in States that have elected voluntarily to 
adopt a State Plan approved by the agency. Consequently, this proposal 
does not meet the definition of a ``Federal intergovernmental 
mandate.'' (See Section 421(5) of the UMRA (2 U.S.C. 658(5))). 
Therefore, for the purposes of the UMRA, the agency certifies that this 
proposal would not mandate that State, local, or Tribal governments 
adopt new, unfunded regulatory obligations. Further, OSHA concludes 
that the rule would not impose a Federal mandate on the private sector 
in excess of $100

[[Page 46720]]

million (adjusted annually for inflation) in expenditures in any one 
year.

H. Consultation and Coordination With Indian Tribal Governments

    OSHA reviewed this proposed rule in accordance with Executive Order 
13175 (65 FR 67249) and determined that it would not have ``tribal 
implications'' as defined in that order. The amendment to the PPE 
standard for construction, if promulgated, would not have substantial 
direct effects on one or more Indian tribes, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes.

List of Subjects in 29 CFR Part 1926

    Construction, Personal Protective Equipment, Occupational safety 
and health.

Authority and Signature

    Douglas L. Parker, Assistant Secretary of Labor for Occupational 
Safety and Health, U.S. Department of Labor, authorized the preparation 
of this document pursuant to 29 U.S.C. 653, 655, and 657; 40 U.S.C. 
3701 et seq.; 5 U.S.C. 553; Secretary of Labor's Order 8-2020, 85 FR 
58393 (2020); and 29 CFR part 1911.

    Signed at Washington, DC, on July 14, 2023.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.

Amendments to Standards

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

PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION

Subpart E--Personal Protective and Life Saving Equipment

0
1. The authority citation for subpart E is revised to read as follows:

    Authority:  40 U.S.C. 3701 et seq.; 29 U.S.C. 653, 655, 657; 
Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 5-
2002 (67 FR 65008), 5-2007 (72 FR 31160), 4-2010 (75 FR 55355), 1-
2012 (77 FR 3912), or 8-2020 (85 FR 58393), as applicable; and 29 
CFR part 1911.

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


Sec.  1926.95  Criteria for personal protective equipment.

* * * * *
    (c) Design and selection. Employers must ensure that all personal 
protective equipment:
    (1) Is of safe design and construction for the work to be 
performed; and
    (2) Is selected to ensure that it properly fits each affected 
employee.
* * * * *
[FR Doc. 2023-15285 Filed 7-19-23; 8:45 am]
BILLING CODE 4510-26-P