[Federal Register Volume 89, Number 239 (Thursday, December 12, 2024)]
[Rules and Regulations]
[Pages 100321-100346]
From the Federal Register Online via the Government Publishing Office [wwww.gpo.gov]
[FR Doc No: 2024-29220]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1926
[Docket No. OSHA-2019-0003]
RIN 1218-AD25
Personal Protective Equipment in Construction
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule.
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SUMMARY: OSHA is finalizing a revision to its personal protective
equipment standard for construction to explicitly require that the
equipment must fit properly.
DATES: This final rule is effective January 13, 2025.
ADDRESSES: Docket: To read or download comments or other information in
the docket, go to https://www.regulations.gov. All comments and
submissions are listed in the https://www.regulations.gov index;
however, some information (e.g., copyrighted material) is not publicly
available to read or download through that website. All comments and
submissions, including copyrighted material, are available for
inspection through the OSHA Docket Office. Contact the OSHA Docket
Office at (202) 693-2500 (TDY number 877-889-5627) for assistance in
locating docket submissions.
FOR FURTHER INFORMATION CONTACT: Press inquiries: Frank Meilinger,
Director, OSHA Office of Communications, telephone: (202) 693-1999;
email: meilinger.francis2@dol.gov.
General and technical inquiries: Vernon Preston, OSHA Directorate
of Construction, telephone: (202) 693-2020; email:
preston.vernon@dol.gov.
Copies of this Federal Register notice and news releases:
Electronic copies of these documents are available at OSHA's web page
at https://www.osha.gov.
SUPPLEMENTARY INFORMATION:
Citation Method
In the docket for the personal protective equipment in construction
rulemaking, found at https://www.regulations.gov, every submission was
assigned a document identification (ID) number that consists of the
docket number (OSHA-2019-0003) followed by an additional four-digit
number (e.g., OSHA-2019-0003-0002). In this final rule, citations to
items in the docket are referenced by the last four digits of the
Document ID Number. For example, Document ID number OSHA-2019-0003-0002
would be referenced as ``Document ID 0002.'' In a citation that
contains two or more documents, the citations are separated by commas.
In cases where a commenter submitted multiple documents, the attachment
number is included after the Document ID. OSHA may also cite items that
appear in another docket. When that is the case, OSHA includes the full
document ID number for the corresponding docket (e.g., OSHA-2010-0034-
4247).
Table of Contents
I. Executive Summary
II. Background
A. OSHA's PPE Requirements
B. Rulemaking History
C. Comments Received During the SIP-IV Rulemaking
III. Summary and Explanation
A. Impact of Improperly Fitting PPE and the Need for an Explicit
Requirement
B. Whether the Rule Would Effectuate the Purpose of the OSH Act
Better Than Consensus Standards
C. The Appropriateness of the New Regulatory Text
D. Differences Between General Industry, Maritime, and the
Construction Industry
E. The Adequacy of Guidance on PPE ``Proper Fit'' in
Construction
F. OSHA Enforcement of PPE Fit Requirements
IV. Pertinent Legal Authority
V. Final Economic Analysis and Regulatory Flexibility Act
Certification
A. Profile of Affected Establishments and Employees
B. Costs of Compliance
C. Economic Feasibility
D. Regulatory Flexibility Screening Analysis and Certification
E. Benefits
VI. Technological Feasibility
VII. Paperwork Reduction Act
VIII. Federalism
IX. State Plans
X. Unfunded Mandates Reform Act
XI. Consultation and Coordination With Indian Tribal Governments
XII. Protecting Children From Environmental Health and Safety Risks
XIII. Environmental Impacts
I. Executive Summary
OSHA is finalizing revisions to its personal protective equipment
(PPE) standard for construction, at 29 CFR 1926.95(c), to explicitly
state that PPE must fit properly. This revision will align the language
in the PPE standard for construction with the corresponding language in
OSHA's PPE standards for general industry and shipyards and affirm
OSHA's interpretation of its PPE standard for construction as requiring
properly fitting PPE. Properly fitting PPE is a critical element of an
effective occupational safety and health program. PPE must fit properly
to provide appropriate protection to employees from workplace hazards.
Improperly fitting PPE may fail to provide any protection to an
employee, reduce the effectiveness of protection, present additional
hazards, or discourage employees from using such equipment in the
workplace.
The Final Economic Analysis for this rulemaking demonstrates that
this rule is economically feasible and will not have a significant
economic impact on a substantial number of small entities.
II. Background
A. OSHA's PPE Requirements
Section 6(b)(7) of the OSH Act, 29 U.S.C. 655(b)(7), authorizes
OSHA to include requirements for protective equipment within its safety
and health standards. Employees wear PPE to minimize exposure to
hazards that can cause severe injuries and illnesses in the workplace.
These injuries and illnesses may result from contact with chemical,
radiological, physical, electrical, mechanical, or other hazards. PPE
includes many different types of protective equipment, such as hard
hats, gloves, goggles, safety shoes, safety glasses, welding helmets
and goggles, hearing protection devices, respirators, coveralls, vests,
harnesses, and full body suits.
OSHA has specific standards that address PPE in general industry,
shipyard employment, marine terminals, longshoring, and construction.
These standards require employers to provide PPE when it is necessary
to protect employees from job-related injuries, illnesses, and
fatalities. With few exceptions, OSHA requires employers to pay for PPE
when it is used to comply with an OSHA standard. In addition, the PPE
standards for general industry (29 CFR 1910.132(d)(1)(iii)) and
shipyard employment (29 CFR 1915.152(b)(3)) include a specific
requirement that employers select PPE that properly fits each affected
employee.
OSHA's standard at 29 CFR 1926.95 sets out the requirements for PPE
in construction. Section 1926.95(a) requires that all types of PPE must
be provided, used, and maintained in a sanitary and reliable condition
whenever the PPE is necessary due to workplace hazards. Section
1926.95(b) further requires that, even when employees provide their own
PPE, the employer must assure its adequacy, including proper
maintenance, and sanitation. Section 1926.95(c) provides that all PPE
must be of safe design and construction for the work to be performed.
Unlike the general industry and shipyards PPE standards, the current
PPE construction standard at Sec. 1926.95 does not include an explicit
requirement that PPE properly fit each affected employee.
PPE must fit properly to provide adequate protection to employees.
If PPE does not fit properly, it can make the difference between an
employee being safely protected, having inadequate protection, or being
dangerously exposed. In some cases, ill-fitting PPE may not protect an
employee at all, and in other cases it may present additional hazards
to that employee and to employees who work around them. For example,
sleeves of protective clothing that are too long or gloves that do not
fit properly may make it difficult to use tools or operate equipment,
putting the wearer and other workers at risk of exposure to hazards, or
may get caught in machinery, resulting in injuries to the wearer such
as fractures or amputations. The legs of protective garments that are
too long could cause tripping hazards for the worker with the
improperly fitting PPE and could also impact others working near that
worker. Protective clothing that is too small may increase a worker's
exposure to hazards by, for example, providing insufficient coverage
from dangerous machinery or hazardous substances. The issue of
improperly fitting PPE is particularly important for smaller
construction workers, including some women, who may not be able to use
currently existing standard-size PPE. Fit problems can also affect
larger workers, and standard-size PPE does not always accommodate
varying body shapes.
B. Rulemaking History
The Advisory Committee on Construction Safety and Health (ACCSH) is
a continuing advisory body established by statute (40 U.S.C. 3701 et
seq.) that provides advice and assistance to the OSHA Assistant
Secretary on construction standards and policy matters related to
construction. The issue of proper PPE fit in construction was discussed
at the ACCSH meeting held on July 28, 2011. At that meeting, the
committee unanimously passed a
motion recommending that OSHA use the Standards Improvement Project-
Phase IV (SIP-IV) rulemaking ``to update the Construction PPE Standards
to mirror the General Industry PPE requirements, specifically that PPE
fit the employee who will use it . . . .'' (Document ID 0002).\1\ On
December 16, 2011, ACCSH unanimously passed another motion recommending
that OSHA consider using the SIP-IV rulemaking to revise the
construction standards to include the requirement that PPE properly fit
construction workers (Document ID 0003).\2\
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\1\ OSHA's Standards Improvement Project (SIP) is a series of
regulatory reviews and rulemakings intended ``to improve and
streamline OSHA standards by removing or revising requirements that
are confusing or outdated, or that duplicate, or are inconsistent
with, other standards'' (Document ID 0007).
\2\ ACCSH had previously, in 1999, issued a report titled Women
in the Construction Workplace: Providing Equitable Safety and Health
Protection (Document ID 0020) in which the committee identified ill-
fitting PPE as a pressing issue for women in construction and
recommended that OSHA revise the construction PPE standards in 29
CFR part 1926 ``to conform with the General Industry Standard for
PPE (29 CFR 1910.132) which specifies that the employer select PPE
that properly fits each affected employee.''
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On December 6, 2013, OSHA issued a SIP-IV Request for Information
(RFI) asking the public ``to identify provisions in OSHA standards that
are confusing or outdated, or that duplicate, or are inconsistent with,
the provisions of other standards, either OSHA standards or the
standards of other agencies'' (Document ID 0004). In response, several
commenters, including the AFL-CIO and the International Safety
Equipment Association (ISEA), recommended that OSHA use the SIP-IV
rulemaking to revise its construction PPE standard to ensure that PPE
properly fits all construction employees (Document ID 0005, 0006).
Based on stakeholder suggestions, on October 4, 2016, OSHA
published the SIP-IV Notice of Proposed Rulemaking (NPRM) in the
Federal Register (Document ID 0007). Among other things, OSHA proposed
revising 29 CFR 1926.95(c) to include an explicit requirement that PPE
must properly fit each affected employee. In the preamble to the SIP-IV
NPRM, OSHA stated that the proposed revision would ``clarify the
construction PPE requirements on this point and make them consistent
with general industry PPE requirements'' (Document ID 0007).
Additionally, OSHA stated that clarifying the requirement would ``help
ensure employers provide employees with properly fitting PPE, thereby
adequately protecting employees exposed to hazards requiring PPE''
(Document ID 0007).
OSHA received several comments specifically addressing the proposed
revision to Sec. 1926.95(c) in the SIP-IV NPRM. Some commenters fully
supported the proposed revision while a coalition of construction
industry stakeholders opposed it. OSHA discusses the specific comments
received during the SIP-IV rulemaking in the next section of this
preamble.
Based on the comments received and the rulemaking record, on May
13, 2019, OSHA published the SIP-IV final rule in the Federal Register
(Document ID 0008). The final rule did not include the proposed
revision to the construction standard at Sec. 1926.95(c). Instead,
OSHA determined that such a revision to the construction PPE standard
should occur in a separate rulemaking outside the SIP process. In the
preamble to the final rule, OSHA explained that proposing to revise the
PPE requirements separately from the SIP-IV rulemaking ``would provide
the public with broader notice of the proposal, encourage robust
commentary, and better inform OSHA's approach to employer obligations
and worker safety in relation to PPE used in construction'' (Document
ID 0008).
On July 17, 2019, OSHA presented a draft proposed rule to ACCSH for
its recommendation, as required by 29 CFR 1912.3(a). The committee
asked OSHA to review enforcement statistics on PPE fit and consider
including guidelines for what constitutes ``proper fit'' (Document ID
0009). One member of ACCSH expressed concern that OSHA would require
employers to present a ``fit verification'' to an OSHA compliance
officer during a workplace inspection. OSHA responded that the proposed
rule would not change how employers assessed the PPE needs of their
workers. OSHA also explained that the proposed revision had been
included in the SIP-IV rulemaking in an effort to make the construction
standard consistent with the general industry and shipyards PPE
standards. In addition, while some ACCSH members did not believe there
would be a cost associated with the proposed rule, one member asked
OSHA to consider cost closely given the transient nature of the
construction industry. After the period for comments and questions
ended, ACCSH unanimously passed a motion recommending that OSHA move
forward with the proposed rule.
C. Comments Received During the SIP-IV Rulemaking
OSHA received four comments on the proposed revision of Sec.
1926.95(c) in response to the SIP-IV NPRM. The Laborers' Health &
Safety Fund of North America (LHSFNA) and North America's Building
Trades Unions (NABTU) both supported the proposed revision to clarify
that PPE must properly fit each affected employee (Document ID 0016,
0017, Attachment 1). Both commenters also stated that improperly
fitting PPE can limit or negate the ability of the PPE to protect
employees. According to NABTU, ``[t]his is particularly important for
women in the construction industry, who often have difficulty obtaining
properly fitting PPE'' (Document ID 0017, Attachment 1). LHSFNA
commented that the fit problem can also affect men, including with
respect to harness sizes for men who are over certain weight limits
(Document ID 0016). NABTU stated that the proposed revision not only
would make the construction standard consistent with the general
industry standard but also was supported by worker organizations,
safety associations, and ACCSH (Document ID 0017, Attachment 1).
OSHA also received a comment in support of the proposed revision
from Emmanuel Omeike (Document ID 0018), a safety professional, which
included two studies addressing PPE and women in construction (Document
ID 0018, Attachments 3, 4). The comment noted several examples of
employees who were wearing PPE but nonetheless sustained injuries due
to improper fit (Document ID 0018). Mr. Omeike stated that employees
are more likely to remove improperly fitting PPE, thus negating
whatever protection the PPE might otherwise provide (Document ID 0018).
Lastly, the commenter stated that prevention through design can
eliminate many costs associated with PPE because PPE designed to be
adjustable and customizable can prevent employee exposure to hazards
created by improperly fitting PPE.
Additionally, OSHA received comments from the Construction Industry
Safety Coalition (CISC) (Document ID 0019) opposing the proposed
revision to Sec. 1926.95(c). This commenter raised concerns about the
possible impact the proposed revision would have on the construction
industry, the definition of ``properly fits,'' employer confusion
regarding compliance, and whether the SIP-IV rulemaking was the
appropriate means to revise the standard. CISC stated they ``[did] not
believe that OSHA seriously considered the full impact this revision
will have on employers and the construction industry in general.'' They
argued that the proposed revision's ``broad scope covers a wide variety
of PPE and situations that are not fully
appreciated in the SIP-IV'' and that ``[p]lacing an explicit
requirement that employers must ensure that all types of construction
PPE `properly fits' all different sized employees in all different
situations would be a monumental task which in many cases is not
necessary and will not improve safety.'' They further argued that the
proposed revision ``fails to provide adequate notice to employers as to
what `properly fit' would mean'' and questioned whether the standard
would be violated if an employee complained that a hard hat is
uncomfortable or if arc-flash clothing was ``too long in the legs for
one employee'' (Document ID 0019).
CISC also commented that revising Sec. 1926.95(c) to include an
explicit requirement that all PPE fit properly ``greatly changes the
dynamic of th[e] standard and places enormous new responsibilities on
construction employers.'' According to CISC, the proposed revision does
not simply clarify the standard, but ``opens up construction employers
to subjective standards of whether particular PPE fits properly and
what steps employers must take to ensure that such PPE fits properly,
particularly when most PPE does not come in exact sizing for
employees'' (Document ID 0019). They added that, in many cases, whether
PPE properly fits is subjective, and it would be difficult for
employers in construction to assess PPE for many employees of varying
sizes in every situation. ``[T]he subjective nature of this standard
would greatly increase the potential for enforcement actions without
giving employers fair notice of what is required'' (Document ID 0019).
CISC also stated that it disagreed with OSHA's statement in the
preamble to the SIP-IV proposed rule that applying the same standard to
construction employers will have the same effect or benefit as in
general industry. The comment emphasized that the types of and need for
PPE vary greatly in construction, therefore adding a new fit
requirement would create more of a burden for construction employers
(Document ID 0019). CISC also argued that SIP-IV was not the
appropriate avenue for making the proposed change and urged OSHA to
embark on ``a more thorough and complete rulemaking process which gives
fair notice to the regulated community and will allow the agency to
receive comments from the regulated community as to the impact and
implications that this change would have on employers'' (Document ID
0019).
In response to CISC's comment on the SIP-IV proposal, OSHA
acknowledged in the NPRM for this rule that there is a wide variety of
PPE and hazards in the construction industry and stated that to protect
workers from these varied hazards in the construction industry, it is
critical that workers' PPE fit them properly. OSHA explained that it
used the phrase ``proper fit'' in the SIP-IV rulemaking because that is
the phrase used in OSHA's general industry and shipyards PPE standards.
The agency's intention throughout the SIP-IV rulemaking was to apply
the proposed ``properly fits'' provision in the same manner as in
general industry and shipyards. OSHA further noted that the addition of
the ``properly fits'' provision to the general industry standard was
made for the same reason that it was proposed during the SIP-IV
rulemaking--that standard-sized PPE does not fit all employees,
particularly women (see 59 FR 16334 (April 6, 1994)). OSHA's experience
is that employers in general industry have had no issue understanding
the phrase ``properly fits'' with regard to PPE.
Given the limited purposes of SIP-IV (i.e. ``to remove or revise
outdated, duplicative, unnecessary, and inconsistent requirements in
OSHA's safety and health standards'' (Document ID 0008)) and the
comments on the PPE revision described above, OSHA determined not to
finalize the revision to Sec. 1926.95(c) in the SIP-IV rulemaking.
Instead, OSHA concluded that such a change to the PPE construction
standard should take place outside the SIP process, in order to
encourage robust public comment and acquire relevant information from
stakeholders.
On July 20, 2023, OSHA published the Personal Protective Equipment
in Construction Notice of Proposed Rulemaking (NPRM) (Document ID
0001), proposing to revise 29 CFR 1926.95(c) to clarify that personal
protective equipment used in the construction industry must properly
fit workers to protect them from hazards they may encounter in the
workplace. OSHA has considered the issues raised by commenters during
the SIP-IV rulemaking along with the comments received on the NPRM and
addresses them below in Section III, Summary and Explanation.
III. Summary and Explanation
This final rule amends 29 CFR 1926.95, Criteria for personal
protective equipment, to make explicit the existing requirement that
employers in the construction industry must ensure PPE worn by
employees properly fits. Specifically, OSHA is revising Sec.
1926.95(c) to state that employers must ensure all personal protective
equipment: (1) is of safe design and construction for the work to be
performed; and (2) is selected to ensure that it properly fits each
affected employee.\3\ After reviewing the comments received, OSHA is
finalizing the provision as proposed because the agency has determined
the proposed language appropriately clarifies employers' obligations
under the standard. OSHA has also determined that additional clarifying
language is not necessary for the reasons discussed in section III.C.
below.
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\3\ Existing 1926.95(c) states only that all personal protective
equipment shall be of safe design and construction for the work to
be performed.
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As OSHA explained in the NPRM, the agency has historically
interpreted Sec. 1926.95 as requiring that PPE properly fit each
employee, has published guidance to that effect, and has issued
citations to employers in the construction industry who failed to
provide properly fitting PPE (88 FR 46710-46712). As such, the revision
in this final rule does not represent a substantive change to the
standard. Rather, the goal of the revision is to clarify employers'
existing obligations while aligning the language in the construction
PPE standard with similar requirements for properly fitting PPE in
OSHA's general industry (29 CFR 1910.132(d)(1)(iii)) and shipyards (29
CFR 1915.152(b)(3)) standards.
In response to the proposed rule, OSHA received 85 public comments.
The vast majority of commenters supported the change. These commenters
generally agreed that the change would provide greater clarity about
employers' responsibility to make sure employees wear properly fitting
PPE and would improve the workplace safety and health of construction
workers. Some commenters raised concerns about the revisions, stating,
for example, that the specifics of the requirement were unclear or that
the change would result in prohibitive costs for employers. The issues
raised by these comments and others are discussed in more detail below.
A. Impact of Improperly Fitting PPE and the Need for an Explicit
Requirement
In the NPRM, OSHA discussed the importance of properly fitting PPE
in the construction industry, explaining that improperly fitting PPE
may not protect workers from hazards and could create additional
hazards (81 FR 46710-46711). The agency noted several studies and
reports that identified instances of improperly fitting PPE either
failing to protect workers from the hazard for which the PPE was
intended
(e.g., loose-fitting goggles exposing an employee's eyes to flying
debris) or introducing additional hazards (e.g., loose-fitting gloves
becoming caught in machinery). In addition, OSHA identified evidence
that employees are more likely to remove or not use ill-fitting PPE.
In response to the NPRM, many commenters agreed with OSHA that
improperly fitting PPE poses a hazard to workers in the construction
industry (see, e.g., Document ID 0040, 0052, 0057, 0073, 0076, 0079-
0081, 0115). For example, the American Industrial Hygiene Association
(AIHA) commented that ``[a]ny worker's safety and health can be
adversely impacted by PPE that does not fit properly,'' adding that
workers who are smaller and larger than average size are most likely to
be impacted by improperly fitting PPE (Document ID 0058). NABTU
similarly stated that ``[p]roperly fitting PPE is essential in the
construction industry because poorly fitting PPE does not provide the
wearer with adequate protection'' (Document ID 0108). The National
Institute for Occupational Safety and Health (NIOSH) identified several
studies demonstrating that poorly fitting PPE can inadequately protect
workers and can create additional hazards (Document ID 0073).
Numerous commenters shared their personal experiences with the lack
of properly fitting PPE. For example, one commenter (Document ID 0061)
was the first woman hired on a jobsite and resorted to buying her own
extra small and small gloves because her employer refused to provide
her with anything other than gloves that were too large. After running
out of gloves that properly fit her, she was forced to wear the
improperly fitting larger gloves. While working on an air conditioning
unit, the improperly fitting gloves became caught in a pulley,
resulting in a wrist sprain, torn ligaments, fractured fingers, and
nerve damage. If this commenter had been provided properly fitting PPE,
these injuries might have been avoided. Another commenter, who stated
that OSHA's proposal ``would directly improve my safety on the job,''
shared that, as a woman who has been provided improperly fitting PPE,
she has suffered ``multiple injuries and near misses'' because properly
sized PPE often is not available (Document ID 0065). Another commenter
explained how they have had to purchase their own gloves because they
have been told it's impossible to find gloves small enough to fit them
(Document ID 0056). For fear of losing her job or not being paid, a
commenter who has worked 18 years as a laborer described using tape and
raingear to protect herself while working in water because the only
waders provided by the employer were too large and presented a drowning
risk (Document ID 0080).
Many commenters raised concerns about being provided various items
of improperly fitting PPE, with fall protection harnesses frequently
cited as an item that often does not fit properly (Document ID 0031,
0035-0037, 0039, 0044, 0048, 0053, 0056, 0063, 0064, 0066, 0068, 0073,
0075-0077, 0080, 0081, 0084, 0087, 0090, 0093, 0098, 0108, 0112, 0113).
Although harnesses come in various sizes and can be adjusted to some
extent, many commenters describe receiving harnesses that were too
large. There were commenters who mentioned receiving extra large
harnesses that did not fit them appropriately because they were too
long (Document ID 0076, 0081). When given larger harnesses, one
commenter stated that the employer tells them to ``shrink it down to
make it fit'' (Document ID 0068). A woman new to the construction
industry commented that she has been dealing with ill-fitting PPE such
as harnesses that are too loose on her and become a ``safety HAZARD and
a hinderance'' (Document 0035). Several commenters noted that harnesses
and other PPE designated as ``unisex'' are not truly appropriate for
women (Document ID 0036, 0037, 0041, 0063, 0108).
Some commenters noted that the lack of properly fitting PPE can
lead to a less inclusive workplace. According to Chicago Women in
Trades and Allied Organizations (CWIT), ``As a result, women struggle
to secure consistent employment and find work on safe and respectful
jobsites. In this sense, the disproportionate challenges tradeswomen
face around accessing properly fitted PPE is a consequence of the way
women are seen and valued in the construction industry'' (Document ID
0098). Flatiron Construction added that the proposed rule is not only
essential for preventing injuries in the workplace, but ``having proper
fitting PPE is also crucial to promoting a sense of belonging within
the industry'' and helping the construction industry attract and retain
workers (Document ID 0106). Another commenter also argued that
clarifying OSHA's PPE requirement could lead to greater recruitment and
retention of workers, specifically women (Document ID 0047). The
International Painters and Allied Trades and the Signatory Wall and
Ceiling Contractors Alliance (Painters et al.) added that ``[i]f we are
going to bring more women into the trades both the industry and the
regulatory structure that surrounds it must evolve to ensure the safety
of women on the job. Establishing that an employer's obligation to
provide PPE in construction extends to providing properly fitting PPE
is a critical part of this'' (Document ID 0078). One commenter simply
stated that putting workers at risk because they do not fit standard-
size PPE is ``inequitable and immoral'' (Document ID 0059).
A few commenters mentioned efforts to address improperly fitting
harnesses. NIOSH commented that they have conducted studies on fall
protection harnesses that have resulted in ``guidelines to develop
improved sizing systems and strap lengths for whole body fall arrest
harnesses'' and ``improved harness configuration to fit construction
workers'' (Document ID 0073). The ISEA notes that modern fall arrest
harnesses, especially those with adjustable hip belts, are
ergonomically designed to fit women, and some harnesses that are
designed for women will also fit men. They recommended that ``employers
and their distributors should work with employees to identify a harness
that fits properly and is designed to protect against the hazards at
hand'' (Document ID 0112). NABTU cited examples of harnesses that are
designed to fit women, explaining that ``harnesses designed to fit
women aim to provide improved protection against fall hazards and
increased comfort. They offer a range of features tailored for varied
anthropometry, including hip and chest adjustability, increased hip and
back support, vertical shoulder straps, comfort padding and more''
(Document ID 0108).
In the NPRM, OSHA preliminarily determined that revising Sec.
1926.95 to include clear and explicit language that PPE must fit
properly would help ensure workers in the construction industry are
protected from workplace hazards (81 FR 46711). OSHA requested comment
on whether the inclusion of an explicit requirement in Sec. 1926.95(c)
would help clarify construction employers' obligations to provide
properly fitting PPE to their employees. Numerous commenters were
supportive of OSHA's clarifying language (Document ID 0024, 0028, 0029,
0031, 0034-0048, 0050-0068, 0071-0081, 0083-0088, 0091-0098, 0106-0108,
0110, 0112, 0113, 0115, 0116). Of these comments, many expressed the
need for an explicit requirement in the standard to ensure that workers
receive properly fitting PPE. Kentucky's Department of Workplace
Standards commended OSHA for proposing explicit language on properly
fitting PPE, agreeing with OSHA that ``providing clear and explicit
language in the construction PPE standard clarifies employers'
responsibility to provide employees with properly fitting PPE, thereby
ensuring employee protection'' (Document ID 0095). CWIT commented that
``[t]he rule clarification aids in reaffirming OSHA's existing
interpretation of its current construction standard and clearly
communicates to employers their obligations to provide properly fitting
PPE'' (Document ID 0098). California's Occupational Safety and Health
Standards Board (Cal/OSHSB) responded that clarification of the PPE
requirements is necessary and supported OSHA's proposed revision
(Document ID 0107). The National Safety Council (NSC) commented that
the clarifying language ``will save lives and prevent injuries''
(Document ID 0096). The American Society of Safety Professionals (ASSP)
Chesapeake Chapter also supported the proposed revision (Document ID
0083).
Some commenters who support the proposed changes believe including
explicit language that PPE must properly fit construction workers could
spur the manufacture, distribution, and availability of PPE in more
wide-ranging sizes and fits. A commenter who has ``been too often
confronted with the challenge of finding PPE scaled to fit smaller and
female workers'' supports the clarification and hopes it will create
more of a market for PPE that fits smaller workers and women (Document
ID 0031). One commenter likewise expressed hope that this clarification
would ``create the market demand for smaller PPE that merchants
currently refuse to see'' (Document ID 0046). Another commenter said it
was imperative for women to get safety equipment that fits them
correctly (Document ID 0113). After mentioning how it is difficult to
find options of smaller sizes for various PPE, a commenter said that
the proposal would ``lead to more demand . . . and encourage
manufacturers to make these products'' (Document ID 0039).
To this point, OSHA mentioned in its proposed rule that The Center
for Construction Research and Training (CPWR) and ISEA have a list of
manufacturers of PPE specifically for women (81 FR 46711). In their
comment to the proposed rule, ISEA also noted that ``PPE manufacturers
provide safety equipment in size ranges and adjustability to fit a vast
majority of the construction workforce. ISEA members are willing to
work with occupational safety stakeholders to make sure all workers
have PPE that is required. . . .'' (Document ID 0112).
A number of commenters stated that an explicit requirement for
properly fitting PPE will not only ensure they have PPE to protect them
from hazards but would increase their productivity. CWIT highlighted in
their comment that ``[w]hen PPE fits incorrectly, it can cause a
disruption to a worker's . . . capacity to complete projects''
(Document ID 0098). A commenter expressed how being asked to ``make due
[sic]'' with improperly fitting PPE put them at risk of going home
without pay or losing their job because they couldn't complete the
assigned tasks. Properly fitting PPE would not just protect them but
allow them to do complete tasks that would benefit their employer
(Document ID 0045). Another commenter stated how the proposal would
drastically change their productivity at work (Document ID 0048) while
another explained how it is difficult to do their job when safety
equipment does not fit correctly (Document ID 0054). These comments
demonstrate how improperly fitting PPE not only affords the wearer
inadequate protection from hazards but also hurts employers'
productivity and makes it difficult for workers who need non-standard
sizes of PPE \4\ to remain employed in the construction industry.
---------------------------------------------------------------------------
\4\ OSHA uses the term ``non-standard'' to refer to sizes of PPE
that are available on the market but that some construction
employers may not routinely order or keep in stock.
---------------------------------------------------------------------------
OSHA received two comments that questioned the necessity of the
proposed revision and suggested that existing standards are sufficient.
One commenter stated that OSHA could cite 29 CFR 1926.28(a), the
general requirement that PPE be worn in hazardous conditions on
construction worksites (Document ID 0026); another appeared to say that
29 CFR 1910.132(d), the general industry standard on which OSHA is
modeling this revision to the construction standard, renders this
revision unnecessary. That standard, however, applies only to general
industry work, not construction work. And the general requirement for
PPE in construction is inadequate because, as explained above, it is
clear from the record that workers in the construction industry have
either struggled to obtain properly fitting PPE or are still being
provided PPE that does not fit. This often leaves these employees
exposed to the hazards the PPE is meant to protect against and may be
creating additional hazards. This is especially true for workers of
larger and smaller stature, women in particular.
Based on the comments received and the information in the record,
OSHA reaffirms its finding that improperly fitting PPE is a hazard to
workers in the construction industry and finds that an explicit
requirement in Sec. 1925.95 is appropriate to clarify employers'
existing obligation to ensure PPE properly fits each employee.
B. Whether the Rule Would Effectuate the Purpose of the OSH Act Better
Than Consensus Standards
Section 6(b)(8) of the OSH Act (29 U.S.C. 655(b)(8)) requires OSHA,
in adopting a standard, to consider national consensus standards; where
the agency decides to depart from the requirements of a national
consensus standard, it must explain why the OSHA standard better
effectuates the purposes of the OSH Act. OSHA has reviewed national
consensus standards on PPE and determined that revising 29 CFR 1926.95
as proposed will better effectuate the purposes of the OSH Act than
relying on the language of existing national consensus standards.
While there are many consensus standards that address PPE, there is
no general consensus standard on PPE that incorporates a fit
requirement. Instead, each standard focuses on a different type of
equipment. For example, OSHA incorporates by reference American
National Standards Institute (ANSI) Z87.1, Occupational and Educational
Personal Eye and Face Protection Devices, and ANSI Z89.1, Head
Protection, into its construction standards. However, there are several
other PPE consensus standards that address not only different types of
PPE, but also different uses for that PPE, such as NFPA 2113, Standard
on Selection, Care, Use, and Maintenance of Flame-Resistant Garments
for Protection of Industrial Personnel Against Flash Fire. Rather than
adopting each PPE consensus standard and whatever language it may
include on proper fit, OSHA is revising its existing construction
standard to make it clear that all types of PPE used in the workplace
must fit properly. OSHA believes that centralizing the requirement in
the OSHA construction standard will make employers more aware of their
responsibility to ensure that PPE used to protect workers from hazards
must fit properly. This revision also makes clear that all PPE must fit
properly, regardless of whether there is an applicable consensus
standard.
Additionally, many consensus standards do not include mandatory
language. For example, both ANSI standards discussed above include
specific language concerning properly fitting PPE. However, while ANSI
Z87.1 discusses the importance of properly
fitting eye and face protection, the standard does not include
mandatory language regarding its use. Similarly, rather than including
mandatory language, ANSI Z89.1 merely refers users of head protection
equipment to the manufacturer for advice on proper fit. The revision to
Sec. 1926.95(c) in this final rule will clarify that properly fitting
PPE is an enforceable requirement rather than the non-mandatory
suggestions contained in those consensus standards. The agency believes
that a clear and explicit requirement will help ensure that employers
provide employees with properly fitting PPE.
OSHA requested comments on whether the proposed revision would
effectuate the purpose of the OSH Act better than existing consensus
standards. Several commenters agreed that it would (Document ID 0073,
0098, 0108, 0112). NABTU responded that the proposed revision would do
so because ``[w]hile some national consensus standards address fit,
there is no requirement that employers follow consensus standards''
(Document ID 0108). Similarly, CWIT stated that revisions to the OSHA
standards would be better than ``adopting each consensus standard, with
varying language around type, use, and fit'' and relying on ``a non-
mandatory suggestion as described in certain consensus standards''
(Document ID 0098). NIOSH also supported revisions to the standard over
reliance on consensus standards because ``[p]roviding all the
information in one place will ensure all PPE fitting guidelines are
readily accessible and consistent'' (Document ID 0073). AIHA also
commented that this rule would effectuate the purpose of the OSH Act
better than consensus standards because ``[r]egulatory language is
helpful for employers to have a better understanding of what is
required and thresholds for compliance'' (Document ID 0058). One
commenter even identified an instance of a consensus standard
obstructing their company's efforts to develop a Class 3 safety vest
for women (Document ID 0106).
ISEA, an organization whose members design, test, manufacture, and
supply PPE and which serves as secretariat for several consensus
standards on PPE, supports the new regulatory language, noting that
while consensus standards ANSI/ISEA Z87.1-2020, Current Safety
Standards for Safety Glasses and Z89.1-2019, Industrial Head
Protection, effectuate the purpose of the OSH Act, ``a requirement that
PPE fit properly will help to make certain that workers get PPE that
meets these standards and fits the wearer'' (Document ID 0112). Having
evaluated the information relevant to this particular issue, OSHA
concludes that revising the existing standard as proposed will better
effectuate the purpose of the OSH Act than relying on the language of
existing consensus standards.
C. The Appropriateness of the New Regulatory Text
OSHA requested comment on the wording of the agency's proposed
addition to 29 CFR 1926.95, which, as explained above, is substantially
similar to the language in OSHA's general industry and shipyards
standards that require properly fitting PPE.
Some commenters suggested language for the regulatory text that
would refer to manufacturers' instructions regarding fit. A
representative from Cook's Excavating, LLC, commented that OSHA should
adopt the language ``[a]ll personal protective equipment shall properly
fit the affected employee in accordance with the manufacturer's
recommendations'' (Document ID 0034). The World Floor Covering
Association also recommended relying on ``manufacturer's
recommendations or specifications to determine proper fit'' as well as
suggesting that ``PPE that meets applicable national consensus
standards should also be deemed to properly fit'' (Document ID 0114).
Cal/OSHSB encouraged OSHA to adopt language similar to their standards,
which provide that PPE be used according to the manufacturer's
instructions (Document ID 0107). NIOSH also recommended a reference to
manufacturers' recommendations for proper fit to provide additional
guidance to stakeholders (Document ID 0073). One commenter, however,
was skeptical of using manufacturers' recommendations because
``manufacturer's instructions may not provide clear or accurate
guidance on how to measure or adjust fit, especially for women's sizes
or models'' (Document ID 0091).
OSHA believes that the manufacturer's instructions and
recommendations can be an important source of information concerning
the proper fit of PPE. OSHA encourages employers to look to
manufacturer's instructions and recommendations for guidance on how an
item of PPE should properly fit the wearer. However, the agency is not
including it as a requirement in its construction standard because
doing so would limit employers' flexibility when finding and choosing
PPE that meets the individual needs of their workers. In addition, the
clarified requirement for employers to provide properly fitting PPE
applies regardless of whether the manufacturer of the PPE provides
instructions or recommendations on proper fit. Where the manufacturer's
instructions or recommendations are silent on proper fit, the employer
can often look to consensus standards for additional guidance on the
appropriate fit of an item of PPE. Employers can also choose PPE
products for which guidance on proper fit exists, either from the
manufacturer or otherwise, over items where such information is
lacking.
OSHA also requested comment on whether there was any confusion
about what ``properly fits'' means for PPE used in the construction
industry. In the NPRM, OSHA explained that ``properly fits'' means the
PPE is the appropriate size to provide an employee with the necessary
protection from hazards and does not create additional safety and
health hazards arising from being either too small or too large. Most
commenters expressed no confusion about what ``properly fits'' means,
but some had additional suggestions for explaining the term. For
example, the AIHA suggested an ``operational definition . . . so that
employers know what is meant and for proper compliance documentation .
. . . The standard should point employers to specific actions per PPE
item that can be taken'' (Document ID 0058). NIOSH commented that they
agree with OSHA's interpretation of ``properly fits'' but that based on
responses to the SIP-IV rulemaking, it is clear it is not ``universally
understood'' (Document ID 0073). They suggested that OSHA define the
phrase. CWIT endorsed OSHA's interpretation of the term but noted that
assessments of proper fit must take into account workers' body changes
during pregnancy (Document ID 0098).
Some comments requested additions to the proposed regulatory text.
The ASSP Chesapeake Chapter asked for clarification of employer and
employee responsibilities to ``emphasize the gravity of the issue and
encourage proactive measures in ensuring properly fitting PPE is
available'' (Document ID 0083). One commenter asked OSHA to ``expound[
] on `proper fit' in the standard . . .'' (Document ID 0032), while
another asked for ``clarifications, specifications, or resources for
the employers who are responsible to provide the properly fitting PPE
in question'' (Document ID 0033). The latter commenter also suggested
that OSHA include a requirement for a qualified or competent person to
determine the proper fit of PPE (Document ID 0033). The United
Brotherhood of Carpenters & Joiners of America (UBCJA) suggested
expanding
the regulatory text to add, ``To properly fit personal protective
equipment must be comfortable to wear, not pose a danger and provide
effective protection'' (Document ID 0074).
OSHA believes its explanation of ``properly fits'' provides
employers with enough information that they can select PPE for their
workers that will adequately protect them from the hazards of the
worksite without creating additional hazards. Given the significant
variety in types and models of PPE, the varied circumstances in which
they are used, and the potential for new technology and new forms of
PPE in the future, OSHA does not believe it is appropriate or necessary
for the agency to prescribe specific fit criteria for all possible
forms of PPE. Similarly, OSHA does not believe it is necessary for the
agency to prescribe specific criteria for workers' changing bodies, as
the requirement for properly fitting PPE applies every time the PPE is
used. Rather, the agency believes a performance-based approach is
appropriate, just as the underlying requirement to identify and provide
necessary PPE is performance-based (see 29 CFR 1926.95).
In the general industry and maritime sectors, OSHA has not needed
to accompany the requirement for properly fitting PPE with specific
directions regarding fit for each item of PPE or other details about
what ``properly fits'' means; nor do those standards include a
requirement that a designated competent person assess PPE fit. There is
no indication that this has resulted in significant confusion among
employers in those sectors. Indeed, as noted in the NPRM, OSHA issued
only 51 citations for improperly fitting PPE in general industry and
shipyards between the years 1994 and 2021, which suggests the vast
majority of employers have been able to comply (88 FR 46712). Providing
specific fit requirements for each individual type of PPE item also
might undermine the manufacturer's recommendations for a particular PPE
item. Accordingly, OSHA is not convinced that further details within
the regulatory text are necessary for the construction industry. In any
event, OSHA can issue additional guidance in the future if the agency
determines it is needed.
In the proposed rule, OSHA stated that ``properly fits'' means, in
part, that the PPE ``does not create additional safety and health
hazards arising from being either too small or too large'' (88 FR
46711). OSHA listed examples of the additional hazards to which workers
can be exposed because of improperly fitting PPE (81 FR 46710-46711).
These examples demonstrate a few of the ways that improperly fitting
PPE can create additional hazards, with a few examples coming directly
from OSHA inspections. Commenters also submitted examples of how
improperly fitting PPE can create additional hazards. The UBCJA agreed
with OSHA's emphasis on additional hazards, adding that ``[e]ven a
loose safety vest can pose a danger if it is unexpectedly caught in
equipment'' (Document ID 0074). NIOSH explained that ``[s]afety glasses
slipping off, loose gloves getting caught on machines or exposing skin,
or blisters forming from ill-fitting safety boots make working more
difficult and can adversely affect worker safety and job satisfaction''
(Document ID 0073. The State Building and Construction Trades Council
of California noted that ``oversized protective clothing can lead to
tripping hazards or get caught in machinery. . . . Poorly-fitted fall
protection harnesses may lead to other injuries. . . . Gloves that are
too big put a worker at risk of coming into contact with chemicals that
can cause dermatitis or other skin diseases'' (Document ID 0028).
Another commenter mentioned how ill-fitting PPE could snag on scissor
lifts (Document ID 0097) while a member of IBEW Local 48 commented that
``[i]tems that are too large run the risk of becoming entangled in
machinery. . . .'' (Document ID 0040).
CISC raised concerns about OSHA's discussion of additional hazards.
They contend that ``[w]ithout additional clarification on what
`additional hazards' employers must address in order to comply with the
proposed rule, employers will be forced to re-evaluate every single
piece of PPE they provide to their employees. Employers will be tasked
with identifying additional hazards that could result from their PPE
not `properly fitting' in every situation'' (Document ID 0109). CISC
suggested OSHA ``provide notice of specific hazards that are associated
with PPE that does not properly fit'' and ``clarify what `additional
hazards' improperly fitting PPE may cause'' (Document ID 0109).
It is neither necessary nor possible for OSHA to identify all
hazards that might arise from improperly fitting PPE, just as the
agency does not identify all hazards that might necessitate PPE in the
first place (see 29 CFR 1926.95(a)). Given the many combinations of PPE
that can be selected to protect workers from the multitude of
workplace-specific hazards, employers are in the best position to
identify what hazards exist at their particular worksite, the
appropriate PPE to address those hazards, and the proper fit of PPE
that will not result in additional hazards. This is both because
employers have the most knowledge of the work tasks involved and the
hazards faced by employees at their worksite and because they have
access to the people with the most direct knowledge about proper fit:
the employees who must wear the PPE. In most cases, the affected
employee will be able to indicate whether the provided PPE fits
properly or whether it poses a hazard from their work tasks. The
employer also knows the specific PPE involved in a given case and can
refer to the manufacturer's instructions for that specific item for
additional guidance. Finally, to the extent that relevant national
consensus standards address proper fit of particular PPE, employers may
look to those standards for guidance as well.
The ASSP Chesapeake Chapter asked for clarification of how the
proposed change affects the employer/employee relationship, stating
that ``[c]learly defined responsibilities for employers will emphasize
the gravity of this issue and encourage proactive measures in ensuring
properly fitting PPE is available'' (Document ID 0083). This revision
has no impact on the employer/employee relationship; it simply
clarifies that every employer is responsible for ensuring that their
workers have properly fitting PPE. Additional responsibilities
employers have regarding PPE of their workers in the construction
industry can be found in Subpart E--Personal Protective and Life Saving
Equipment, 29 CFR 1926.95 through 1926.107.
D. Differences Between General Industry, Maritime, and the Construction
Industry
OSHA requested comments on whether any differences between general
industry and maritime and the construction industry impact whether OSHA
should include ``properly fits'' in the construction standard as
proposed in the NPRM. Commenters expressed support for language that
reflects the requirements for properly fitting PPE in the general
industry and maritime industries. NIOSH, for example, stated that
``mirroring the language for general industry and maritime standards is
appropriate because of the significant hazards and injury burden in the
construction industry. The change will provide added emphasis on the
documented need to ensure all PPE fits all workers well'' (Document ID
0073). The AIHA noted that it knew of no differences between general
industry, maritime, and construction that would impact OSHA's inclusion
of ``properly
fits'' in the construction standards (Document ID 0058). Painters et
al. commented that ``[t]here is nothing unique to the construction
industry that would put an undue burden on employers to ensure that
each worker has access to PPE that fits their size and shape properly
and can be used for the purpose for which it was intended: to protect
the worker from hazards of injury or illness'' (Document ID 0078).
Some commenters suggested that it is inappropriate to align the
language in the construction industry with the language of general
industry and shipyards because the construction industry is different
from general industry and shipyards. CISC argued that an important
difference between the construction industry and other industries is
the changing conditions of the worksite. ``The construction industry
does not operate in static, permanent worksites'' with known hazards
that ``have long since been identified and documented'' like in general
industry and shipyards; rather, it is ``dynamic'' and ``[w]hat PPE is
needed and when, can vary from day to day . . .'' (Document ID 0109).
The National Demolition Association (NDA) made a similar argument,
stating that construction worksites present different challenges and
work conditions than other industries, but did not elaborate on what
those differences are and how they would be impacted by OSHA's proposal
(Document ID 0111).\5\
---------------------------------------------------------------------------
\5\ NDA also commented that State and local governments, rather
than OSHA, should develop any regulations on properly fitting PPE
(Document ID 0111). However, the OSH Act grants OSHA the authority
to promulgate safety and health standards, including the
construction standard that this final rule revises. Furthermore,
OSHA sees no reason why a general requirement for properly fitting
PPE would differ among different geographic areas.
---------------------------------------------------------------------------
OSHA does not find this argument persuasive. First, Sec.
1926.95(a) requires construction employers to provide appropriate PPE
to employees when necessitated by workplace hazards. This is true
regardless of how dynamic the work activities are. Given that employers
must already analyze the hazards on their worksites, no matter how
dynamic, and provide necessary PPE, these commenters fail to explain
why the dynamic nature of the activities warrants permitting employers
to provide PPE that does not fit.
Moreover, although there are differences between the construction
industry and other industries, many of the hazards that necessitate
properly fitting PPE to protect workers are the same. In the NPRM, OSHA
referenced citations in general industry and maritime for violation of
the requirement for properly fitting PPE. Many of those violations were
for PPE that is also used in the construction industry, such as
harnesses and gloves. As evidenced by the comments to the NPRM, several
stakeholders' primary concerns about properly fitting PPE involve these
types of items (see, e.g., OSHA's discussion of comments related to
harnesses in B. Impact of Properly Fitting PPE). Neither CISC nor NDA
identified examples of PPE that are unique to the construction
industry.
OSHA also emphasizes that the Advisory Committee on Construction
Safety and Health (ACCSH), which is composed of an equal number of
employee and employer representatives along with representatives from
State and Federal agencies and subject-matter experts (see 29 CFR
1912.3(b)), has on several occasions urged OSHA to align the language
in the construction PPE standards with those in general industry and
shipyards (Document ID 0002, 0003, 0020). Finally, as explained in
Section VI, Technological Feasibility, OSHA finds that there are no
technological barriers to providing construction employees with
properly fitting PPE.
In sum, OSHA is not convinced any differences that exist between
the construction industry and other industries warrant depriving
construction employees of protection against the hazards posed or not
prevented by improperly fitting PPE. Indeed, as discussed above,
properly fitting PPE is already an implicit requirement under the
construction standard for PPE and this final rule makes that
requirement explicit. Accordingly, OSHA concludes that the proposed
language is appropriate for inclusion in the standard.
E. The Adequacy of Guidance on PPE ``Proper Fit'' in Construction
Prior to the publication of the proposed rule, ACCSH recommended
that OSHA provide additional guidance explaining what ``proper fit''
means for the construction industry. As described above, in the NPRM,
OSHA explained that `` `properly fits' means the PPE is the appropriate
size to provide an employee with the necessary protection from hazards
and does not create additional safety and health hazards arising from
being either too small or too large'' (88 FR 46711). OSHA also
requested comment on whether existing OSHA guidance regarding PPE
``proper fit'' in construction is adequate and if it is not, what type
of additional guidance OSHA should provide.
OSHA received a variety of comments in response to this request.
While NIOSH responded that existing guidance was not adequate, they
commented that revising OSHA's construction standards to explicitly
state that PPE must properly fit would help address this concern. NIOSH
also suggested that OSHA should define ``properly fitting'' (Document
ID 0073). The NSC noted they have a PPE training that teaches that PPE
should fit comfortably and not be too large or too small (Document ID
0096). CWIT suggested that OSHA develop an eTool to provide guidance on
proper fit of PPE (Document ID 0098). Cal/OSHSB recommended that OSHA
work with manufacturers and provide guidance on conformity assessments
for all PPE (Document ID 0107). The ISEA, while agreeing with OSHA's
interpretation of proper fit, suggested that OSHA work with
stakeholders to develop additional guidance such as FAQs to minimize
any confusion about the requirement to provide properly fitting PPE.
OSHA is willing to work with construction industry stakeholders to
develop specific guidance that will broadly address any confusion or
concerns the industry has about providing PPE that properly fits
workers. To do that, OSHA must first have clear and explicit language
in its construction standards that communicates an employer's
obligations. After a review of the comments received in response to
this proposed rule, OSHA believes that the proposed language
accomplishes this goal.
F. Osha Enforcement of PPE Fit Requirements
In the NPRM, OSHA explained that enforcement of the requirement for
properly fitting PPE in construction would be the same as it has been
in general industry and maritime, relying on enforcement guidance the
agency has already created for those industries and applying it to the
construction industry. OSHA also provided citation data and examples of
violations of the requirement to have properly fitting PPE to
demonstrate how the agency has been enforcing this requirement in
general industry and shipyards (88 FR 46711).
Some commenters requested additional information on how OSHA will
enforce this requirement. CISC argued that the proposed rule ``does not
discuss how investigators will be evaluating PPE for compliance''
resulting in ``concern that employers will be held to subjective
standards of whether PPE fits properly and what steps employers must
take to ensure they are in compliance'' (Document ID 0109). Other
commenters who
supported the proposed rule overall agreed with this concern that
enforcement could be subjective (Document ID 0088, 0091). Painters et
al., on the other hand, noted that the proposed changes do not
introduce new concepts. ``[W]e think it is important to note that the
uncertainty often associated with the revision of an OSHA standard does
not pertain to this proposed rule. OSHA is adopting language it has
long applied in the general industry and maritime standards'' (Document
ID 0078).
With regard to enforcement-related concerns, OSHA believes that
this preamble adequately explains what OSHA expects from employers: to
select PPE for their workers that is appropriately designed and sized
to adequately protect them from hazards without creating additional
hazards. OSHA believes this performance-based interpretation of
``properly fits'' provides sufficient specificity while maintaining
flexibility to allow employers to select the PPE necessary to protect
their workers on the job. Additionally, there is existing guidance that
can assist employers in selecting properly fitting PPE. Several
commenters pointed out that the manufacturer's instructions are an
important source of information on the proper fit of PPE (see Document
ID 0034, 007, 0107, 0114). Although consensus standards do not carry
mandatory obligations to meet their standards, they also can provide
guidance on how various PPE items should fit.
One important aspect of determining what PPE should be provided to
workers is comfort. OSHA stated in the proposed rule that improperly
fitting PPE can be uncomfortable for the wearer, which in turn can lead
workers to modify or disregard the PPE and become vulnerable to a
hazard (81 FR 46711). Several commenters echoed this concern. Some
commenters mentioned that ill-fitting, uncomfortable PPE could be
dangerous (Document ID 0076, 0081). NIOSH stated that comfort is an
important factor that can positively impact PPE use (Document ID 0073).
Cal/OSHSB commented that ``[m]aking sure that PPE not only fits but is
comfortable is imperative to ensuring that employees wear the PPE
throughout their shift'' (Document ID 0107). UBCJA requested that OSHA
adopt language stating that for PPE to properly fit, it must be
comfortable to wear (Document ID 0074).
Some commenters expressed concern about whether comfort would be an
indication of proper fit and, if so, how OSHA would address that from
an enforcement standpoint. CISC asked, ``Is comfort important because
it encourages employees to keep PPE on, or is it a citable offense even
if `uncomfortable' PPE is being worn?'' (Document ID 0109). Similarly,
the Wood Floor Covering Association asked, ``Is simply finding the PPE
to be uncomfortable sufficient to claim it does not properly fit even
[if] the equipment provides full protection?'' (Document ID 0114).
OSHA reaffirms its position that comfort is an important
consideration for properly fitting PPE, both because more comfortable
PPE is more likely to be worn by workers rather than discarded and
unused and because discomfort in many cases can indicate improper fit.
An employee's expression of discomfort should be taken seriously by the
employer, as it may signal that the PPE warrants further evaluation to
ensure it will serve its protective purpose and will not create
additional hazards.
At the same time, OSHA also recognizes that discomfort during the
use of PPE may not always be the result of improper fit. Some PPE may
be inherently uncomfortable, despite fitting properly. OSHA has
explained in other contexts that personal discomfort alone does not
give rise to a violation of the OSH Act's General Duty Clause, absent a
related recognized hazard that could cause death or serious physical
harm (see Reiteration of Existing OSHA Policy on Indoor Air Quality:
Office Temperature/Humidity and Environmental Tobacco Smoke, available
at https://www.osha.gov/laws-regs/standardinterpretations/2003-02-24).
The same is true with respect to PPE under 29 CFR 1926.95: OSHA cannot
issue a citation simply because PPE that properly fits is
uncomfortable.\6\ However, OSHA cautions that regardless of fit,
employers have an independent duty to ensure that appropriate PPE is
worn at all times when necessitated by a workplace hazard (29 CFR
1926.28). Because the record clearly indicates uncomfortable PPE is
more likely to go unused, employers would be wise to take seriously
employees' concerns about discomfort.
---------------------------------------------------------------------------
\6\ OSHA notes that while discomfort may not alone establish
improper fit, the converse is also true; a lack of employee
discomfort does not alone establish proper fit.
---------------------------------------------------------------------------
Finally, a few commenters suggested that increased enforcement from
OSHA and/or a ``culture change'' among employers would be more
effective in achieving the goal of properly fitting PPE than changing
the rule (Document ID 0026, 0027). While OSHA operates, as always, with
limited resources, the agency believes that the amended standard, by
making employers' responsibilities explicit, will encourage a more
protective approach to PPE across the construction industry.
IV. Pertinent Legal Authority
The purpose of the Occupational Safety and Health Act (29 U.S.C.
651 et seq.) (``the Act'' or ``the OSH Act'') is ``to assure so far as
possible every working man and woman in the Nation safe and healthful
working conditions and to preserve our human resources'' (29 U.S.C.
651(b)). To achieve this goal Congress authorized the Secretary of
Labor (``the Secretary'') to promulgate standards to protect workers,
including the authority ``to set mandatory occupational safety and
health standards applicable to businesses affecting interstate
commerce'' (29 U.S.C. 651(b)(3); see also 29 U.S.C. 654(a) (requiring
employers to comply with OSHA standards), 655(a) (authorizing summary
adoption of existing consensus and Federal standards within two years
of the Act's enactment), 655(b) (authorizing promulgation, modification
or revocation of standards pursuant to notice and comment)), and
655(b)(7) (authorizing OSHA to include among a standard's requirements
labeling, monitoring, medical testing, and other information-gathering
and information-transmittal provisions)). An occupational safety or
health standard is a standard which requires conditions, or the
adoption or use of one or more practices, means, methods, operations,
or processes ``reasonably necessary or appropriate'' to provide safe or
healthful employment and places of employment (29 U.S.C. 652(8)).
Section 6(b)(7) of the OSH Act (29 U.S.C. 655(b)(7)) authorizes
OSHA to include requirements for protective equipment within a
standard. It provides that, where appropriate, standards must prescribe
suitable protective equipment and control or technological procedures
to be used in connection with workplace hazards and must provide for
monitoring or measuring employee exposure as necessary to protect
employees (29 U.S.C. 655(b)(7)).
The OSH Act imposes several requirements OSHA must satisfy before
adopting a safety standard. Among other things, the standard must
provide a high degree ofemployee protection, substantially reduce a
significant risk to workers, be technologically feasible, and be
economically feasible (see 58 FR 16612, 16614-16 (Mar. 30, 1993); UAW
v. OSHA, 37 F.3d 665, 668-69 (D.C. Cir.
1994)). OSHA need not make additional findings on risk for this final
rule because the rule involves a clarification of an existing OSHA
standard and does not create any new requirements for employers.
Accordingly, OSHA is not required to conduct a significant risk
analysis for the change to Sec. 1926.95 (see Edison Elec. Inst. v.
OSHA, 849 F.2d 611, 620 (D.C. Cir. 1988)).
A standard is technologically feasible if the protective measures
it requires already exist, can be brought into existence with available
technology, or can be created with technology that is reasonably
expected to be developed (see Am. Iron and Steel Inst. v. OSHA, 939
F.2d 975, 980 (D.C. Cir. 1991)). Courts have also interpreted
technological feasibility to mean that a typical firm in each affected
industry or application group will reasonably be able to implement the
requirements of the standard in most operations most of the time (see,
e.g., Public Citizen v. OSHA, 557 F.3d 165, 170-71 (3d Cir. 2009);
United Steelworkers of Am. v. Marshall, 647 F.2d 1189, 1272 (D.C. Cir.
1981)).
In determining economic feasibility, OSHA must consider the cost of
compliance in an industry rather than for individual employers. In its
economic analyses, OSHA ``must construct a reasonable estimate of
compliance costs and demonstrate a reasonable likelihood that these
costs will not threaten the existence or competitive structure of an
industry, even if it does portend disaster for some marginal firms''
(Am. Iron and Steel Inst., 939 F.2d at 980, quoting United Steelworkers
of Am., 647 F.2d at 1272).
V. Final Economic Analysis and Regulatory Flexibility Act Certification
Introduction
OSHA has examined the impacts of this rule as required by Executive
Order 12866, Regulatory Planning and Review (September 30, 1993);
Executive Order 13563, Improving Regulation and Regulatory Review
(January 18, 2011); Executive Order 14094, Modernizing Regulatory
Review (April 6, 2023) (hereinafter, the Modernizing E.O.); the
Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96354);
section 202 of the Unfunded Mandates Reform Act of 1995 (March 22,
1995; Pub. L. 104-4); and Executive Order 13132, Federalism (August 4,
1999).
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity).\7\ The
Modernizing E.O. amends section 3(f) of Executive Order 12866. As
amended, section 3(f) defines a ``significant regulatory action'' as an
action that is likely to result in a rule that may: (1) have an annual
effect on the economy of $200 million or more in any 1 year (adjusted
every 3 years by the Administrator of the Office of Information and
Regulatory Affairs (OIRA) for changes in gross domestic product), or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, territorial, or Tribal governments
or communities; (2) create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency; (3)
materially alter the budgetary impacts of entitlement grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise legal or policy issues for which centralized
review would meaningfully further the President's priorities or the
principles set forth in [the Modernizing E.O.], as specifically
authorized in a timely manner by the Administrator of OIRA in each
case.
---------------------------------------------------------------------------
\7\ While OSHA presents the following analysis under the
requirements of Executive Orders 12866 and 13563, the agency
ultimately cannot base its regulatory decisions on a simple
maximization of net benefits due to the overriding legal
requirements in the OSH Act.
---------------------------------------------------------------------------
OIRA has determined that this final rule is a significant
regulatory action under E.O. 12866 (but not under section 3(f)(1)), and
that it does not meet the criteria set forth in 5 U.S.C. 804(2) under
the Congressional Review Act.
OSHA has prepared this Final Economic Analysis (FEA) which presents
the agency's estimates of the costs and benefits of the rulemaking.
Changes From the Proposal
As discussed above, OSHA is finalizing this rule with the same
changes to the regulatory text that the agency proposed. Public
comments received in response to the proposal generally support the
need for the rule. A number of commenters gave examples of employers
not providing them with properly fitting PPE. One commenter said ``I
buy my own PPE, i.e., glasses, gloves because no contractor ever has
small of either. I've been in the trade 27 years and have never had a
contractor have those for me'' (Document ID 0094). Another stated that
``[a]s an electrician since 2015, there have been years I have not been
provided correctly fitting PPE. Employers did not anticipate my
pregnancy, so high-visibility coats were hard to find and expensive. .
. . A coat for males had sleeves that were too long and got in the way
of working'' (Document ID 0115). However, public comments also support
several changes to the economic analysis. Those changes are as follows.
For the proposal, OSHA estimated minimal costs to comply with the
rule since it simply clarifies an existing requirement. OSHA did,
however, request information from commenters about the impact of the
rule on the provision of properly fitting PPE. Based on responsive
comments in the record, OSHA has determined that it is appropriate to
account for additional costs. In particular, OSHA has added costs for
purchasing properly fitting harnesses and earplugs, which were not
included in the proposal. In addition, OSHA has added ongoing annual
costs for non-compliant employers to continue to provide properly
fitting PPE to their employees after initially replacing it. OSHA has
also added costs for rule familiarization time as well as the time for
employers to assess, research, and identify properly fitting PPE for
those workers who are not currently being provided with it. Where more
recent economic data is available, OSHA has updated the data used for
its analysis. Finally, OSHA is attributing (although not quantifying)
health and safety benefits to this final standard based on evidence in
the record that workers are being injured due to improperly fitting
PPE. These updates are discussed in more detail later in this section.
A. Profile of Affected Establishments and Employees
1. Introduction
This final rule amends the construction standard at 29 CFR
1926.95--Criteria for Personal Protective Equipment, paragraph (c), to
clarify that PPE must properly fit each employee. This revision
clarifies an existing requirement and OSHA therefore concludes that the
rule will impose only limited costs on employers that are not already
providing their employees with properly fitting PPE. OSHA normally
assumes full compliance with existing requirements when performing its
analysis of costs related to a new or amended standard. However, in
this case, the purpose of the final rule is to clarify an existing
requirement about which there may have been confusion in the regulated
community. Given the public comments indicating that some employees are
not
being provided with PPE that properly fits, the record supports the
need for changes in behavior among some employers. As a result, OSHA
has estimated the costs for a portion of employers to come into
compliance with the already-existing requirement to provide properly
fitting PPE. This analysis demonstrates that the rule will be feasible
to implement.
2. Background
On November 15, 2007, OSHA published its final rule on Employer
Payment for Personal Protective Equipment (PPE Payment) (72 FR 64342).
A brief description of this rulemaking is provided here because certain
estimates and parameters used in the economic analysis for this rule
are taken from the analysis accompanying that final rule. In the PPE
Payment rulemaking, OSHA identified the various types of PPE that are
worn by employees, the percentage of employees who use PPE, and the
numbers of employees that would typically use each type of PPE in the
construction industries: NAICS 236 (Construction of Buildings), NAICS
237 (Heavy and Civil Engineering Construction), and NAICS 238
(Specialty Trade Contractors). Information on employee PPE use was
derived from a statistically representative nationwide telephone survey
of 3,722 employers conducted for OSHA. The survey was benchmarked to
the whole working population based on employment data available at that
time (see 72 FR 64391). For this rulemaking, OSHA developed assumptions
about the types of PPE that are universal fit versus those that are not
universal fit and the types of PPE that are provided by the employer
versus purchased by employees for reimbursement.
When the economic analysis for the PPE Payment rule was performed,
the most recent data available on number of employees were from the
U.S. Census' 2004 County Business Patterns. Using that data, OSHA
estimated the number of employees using PPE and the industries in which
they worked. Total use of PPE in the construction industries as derived
in the PPE Payment rule is presented in table 1. Note that only the
types of PPE that are subject to replacement under this PPE Fit rule
are presented. OSHA uses the values in table 1 as the basis for its
updated 2022 \8\ figures for PPE items used (see table 7).
---------------------------------------------------------------------------
\8\ As noted below, 2022 was the most recent year for which the
County Business Patterns data were available at the time this
analysis was performed.
Table 1--Use of Selected PPE in the Construction Industries, From the
PPE Payment Rule
------------------------------------------------------------------------
Total PPE items used
PPE provided by the employer by employees (2004)
U.S.
------------------------------------------------------------------------
Chemical Protective Clothing...................... 358,089
Chemical Protective Footwear...................... 211,871
Chemical Splash Goggles........................... 584,797
Earmuffs.......................................... 642,362
Face Shields...................................... 1,194,399
Gloves for Abrasion Protection.................... 2,940,764
Gloves for Chemical Protection.................... 896,173
Non-Prescription Safety Glasses................... 3,485,009
Safety Goggles.................................... 2,506,959
Splash Aprons..................................... 197,632
---------------------
Total of PPE items used by construction 13,018,055
employees....................................
------------------------------------------------------------------------
Source: OSHA, Office of Regulatory Analysis (ORA), based on PPE Payment
rule (72 FR 64406). See Final Economic Analysis spreadsheet (Document
ID 0118).
3. PPE Fit Rule--Affected Establishments and Employees
OSHA determined the number of establishments that would need to
comply with this rule using County Business Patterns (CBP) data for
2022. All establishments within NAICS 236 (Construction of Buildings),
NAICS 237 (Heavy and Civil Engineering Construction), and NAICS 238
(Specialty Trade Contractors) are considered to be within the scope of
this rule. As shown in table 2, there are a total of 800,651
establishments in the affected Construction NAICS industry codes.
Table 2--Affected Construction Establishments by NAICS Industry, 2022
------------------------------------------------------------------------
NAICS Establishments
------------------------------------------------------------------------
236 (Construction of Buildings)................... 251,634
237 (Heavy and Civil Engineering Construction).... 38,214
238 (Specialty Trade Contractors)................. 510,803
---------------------
Total......................................... 800,651
------------------------------------------------------------------------
Source: OSHA, ORA, based on U.S. Census Bureau, County Business
Patterns, 2024. See Final Economic Analysis spreadsheet (Document ID
0118).
Overall employment and the number of employees using PPE in these
NAICS industries--both broken out by sex--are shown in table 3. Based
on BLS Current Employment Statistics for 2022, the construction
industry was made up of about 86 percent men and 14 percent women.
According to the CBP, there were 7,361,847 employees in the
construction industry in 2022. Taken together, these data indicate that
employment in the construction industry is comprised of 6,313,488 men
and 1,048,359 women. OSHA estimated in the PPE Payment rule that 79.85
percent of construction employees use PPE of any type. Using this
percentage, the agency estimates that 5,041,402 men and 837,128 women
in the construction industry use any type of PPE. OSHA used these
parameters and this methodology to identify employees by sex and PPE
usage in the proposed rule and received no comment on this approach;
OSHA therefore has maintained the same methodology for the final rule.
Table 3--Estimated Employees in Construction Industries by Sex and PPE Use, 2022
----------------------------------------------------------------------------------------------------------------
Total employees
% of employees Total employees % Using PPE using PPE
----------------------------------------------------------------------------------------------------------------
Men................................. 85.8 6,313,488 79.85 5,041,402
Women............................... 14.2 1,048,359 79.85 837,128
---------------------------------------------------------------------------
Total........................... ................. 7,361,847 ................. 5,878,530
----------------------------------------------------------------------------------------------------------------
Source: OSHA, ORA, based on U.S. Census Bureau, 2024, and OSHA PPE Payment rule, 2007. See Final Economic
Analysis spreadsheet (Document ID 0118).
B. Costs of Compliance
OSHA has determined that this rule could impose three main types of
costs on establishments in the construction industry: (1) rule
familiarization, (2) researching PPE, and (3) replacing PPE. The costs
for researching properly fitting PPE for purchase and for replacing
improperly fitting PPE will only be incurred by employers who are out
of compliance with the already-existing requirement to provide workers
with PPE that fits properly.
1. Rule Familiarization
Employers in some affected establishments will spend time
familiarizing themselves with the rule. OSHA estimates that rule
familiarization will take ten minutes for a health and safety
coordinator to complete \9\ and that 50 percent of the establishments
in the three construction NAICS industries will take time to
familiarize themselves with the rule. OSHA has assumed that only 50
percent of establishments will need familiarization time not only
because this final rule is simply a clarification of an existing
requirement, but because the rule aligns the construction regulatory
text on PPE fit with the general industry requirement, with which many
construction employers are likely familiar. OSHA, therefore, believes
that many employers already know that they must provide PPE that fits
properly and will not need to spend time familiarizing themselves with
this final rule. The loaded wages \10\ used to calculate the cost of
rule familiarization time are taken from BLS' Occupational Employment
and Wage Statistics (OEWS) dataset for 2023 (https://www.bls.gov/oes/tables.htm) for Occupational Health and Safety Specialists and
Technicians.\11\ Table 4 shows the costs of rule familiarization.
---------------------------------------------------------------------------
\9\ This is comparable to the five minutes estimated to be spent
on familiarization in the FEA for OSHA's recent (and similarly
brief) final rule on the Worker Walkaround Representative
Designation Process (See 89 FR 22558, 22594 (April 1, 2024)).
\10\ The loaded wages include an industry specific base wage
(BLS, 2024, OEWS), a 31.23 percent markup from base wages to account
for employer provided fringe benefits (BLS, 2024, Employer Costs for
Employee Compensation), and OSHA's standard 17 percent markup from
base wages to account for overhead costs to the employer.
\11\ OSHA used the BLS OEWS Standard Occupation Classification
code 19-5010 for NAICS 236, 237, and 238.
Table 4--Total Costs of Rule Familiarization
[2023$]
----------------------------------------------------------------------------------------------------------------
50% of Unit burden Total cost
NAICS Establishments establishments (hours) Wage (2023$)
----------------------------------------------------------------------------------------------------------------
236 (Construction of 251,634 125,817 0.17 $65.45 $1,372,517
Buildings)...................
237 (Heavy and Civil 38,214 19,107 0.17 63.65 202,694
Engineering Construction)....
238 (Specialty Trade 510,803 255,402 0.17 58.32 2,482,631
Contractors).................
---------------------------------------------------------------------------------
Total..................... 800,651 400,326 NA NA 4,057,842
----------------------------------------------------------------------------------------------------------------
Source: OSHA, ORA, based on U.S. Census Bureau, 2024, and BLS OEWS, 2024. See Final Economic Analysis
spreadsheet (Document ID 0118).
2. Researching PPE for Purchase
For this final rule, OSHA is accounting for costs related to
researching and finding non-standard-sized PPE. Some commenters said
that it is difficult to locate PPE in certain non-standard sizes. For
instance, one commenter said that it was challenging finding PPE,
including protective footwear, to fit her smaller frame and that she
hopes this final rule will eliminate the need for ``extensive searches
for `small' gear'' (Document ID 0031). Another commenter said that
``[h]igh-visibility coats that fit a pregnant belly are hard to find''
(Document ID 0115), while a third commenter said that small size high
visibility vests and boots are difficult to come by and that even
proactive employers can encounter limited supply in non-standard sizes
(Document ID 0079). Other commenters, however, noted the availability
of PPE to fit a wide range of worker body shapes and sizes (Document ID
0108, 0112; see also Document ID 0014, 0117). Based on these comments,
OSHA has estimated that it may take some additional time for employers
to find appropriate PPE in non-standard sizes for workers not
currently wearing properly fitting PPE.\12\
---------------------------------------------------------------------------
\12\ As noted in the Technological Feasibility discussion,
extensive lists of providers of non-standard-sized PPE are available
online from multiple sources.
---------------------------------------------------------------------------
In order to provide properly fitting PPE for the employees who need
it, OSHA estimates that affected establishments will spend 10 minutes
assessing the needs of their employees related to PPE (assessment) and
another 10 minutes researching and identifying specific replacement PPE
for employees (identification). The agency estimates that 184,935
construction employees might require non-standard sizes of PPE (see
table 9) but recognizes that not all those employees are using
improperly fitting PPE. This is especially true given that construction
employers are already required to provide their employees with properly
fitting PPE. OSHA assumes that up to 10 percent of those workers--or
18,494 workers--were being provided with incorrectly fitting PPE prior
to promulgation of this final rule. While it potentially overstates the
number of employers who will need to assess PPE needs and spend time
researching PPE in different sizes, OSHA assumes that each employee
needing replacement PPE works at a different company, such that the
number of employers that will need to research PPE equals the number of
affected employees. A more detailed explanation of the estimated number
of affected employees and thus employers is described in the next
section and presented in tables 9 and 10.
OSHA calculated one-time, initial costs for the PPE needs
assessment and identification of non-standard size PPE. OSHA also
estimated annually recurring costs to identify properly fitting PPE for
newly-hired employees who may need non-standard sizes of PPE. To
calculate the number of employers that would need to incur this cost
annually, OSHA multiplies the estimated 18,494 workers mentioned above
by the JOLTS annual hire rate within the construction sector for 2023,
which is 55.7 percent (BLS JOLTS, 2024). For this analysis, OSHA uses
the loaded wage rate for a purchasing manager \13\ based on BLS' OEWS
dataset for 2023 to estimate the costs for identifying the correct PPE,
and the loaded wage rate for Occupational Health and Safety Specialists
and Technicians \14\ for PPE assessment costs.\15\ Table 5 shows the
initial costs for the assessment and identification of properly fitting
PPE. Table 6 presents the ongoing, annual costs of identifying non-
standard sizes of PPE for newly hired employees. The cost of the PPE
itself is estimated in the next section.
---------------------------------------------------------------------------
\13\ OSHA used the BLS OEWS Standard Occupation Classification
code 11-3061 for NAICS 236, 237, and 238.
\14\ OSHA used the BLS OEWS Standard Occupation Classification
code 19-5010 for NAICS 236, 237, and 238.
\15\ The loaded wages include an industry specific base wage
(BLS, 2024, OEWS), a 31.23 percent markup from base wages to account
for employer provided fringe benefits (BLS, 2024, Employer Costs for
Employee Compensation), and OSHA's standard 17 percent markup from
base wages to account for overhead costs to the employer. The wages
presented are weighted averages from the three NAICS codes affected
by this rule.
Table 5--Total Costs of Initial PPE Research
----------------------------------------------------------------------------------------------------------------
Affected Unit burden Wage (weighted Total cost
PPE research item establishments (hours) average) (2023$)
----------------------------------------------------------------------------------------------------------------
Assessment................................. 18,494 0.17 $60.82 $187,457
Identification............................. 18,494 0.17 91.64 282,454
--------------------------------------------------------------------
Total Cost............................. ............... .............. .................. 469,911
----------------------------------------------------------------------------------------------------------------
Note: Using the figures presented here to perform the calculations in the table may not result in the same
totals due to rounding.
Source: OSHA, ORA, based on BLS OEWS, 2024. See Final Economic Analysis spreadsheet (Document ID 0118).
Table 6--Annual Cost of PPE Identification
--------------------------------------------------------------------------------------------------------------------------------------------------------
Affected Unit burden Wage (weighted Total cost
Cost item establishments Hire rate (hours) average) (2023$)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Identification................................................... 18,494 55.7% 0.17 $91.64 $157,327
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Using the figures presented here to perform the calculations in the table may not result in the same totals due to rounding.
Source: OSHA, ORA, based on BLS OEWS, 2024 and BLS JOLTS, 2024. See Final Economic Analysis spreadsheet (Document ID 0118).
3. Replacing PPE
As shown in table 7, the types of PPE used in construction fall
into the following three categories: PPE provided by the employer and
not of universal fit, PPE items purchased by the employee and
reimbursed by the employer, and PPE of universal fit. PPE items
identified as universal fit are those that are adjustable and capable
of fitting most people.\16\ OSHA assumes that PPE items purchased by
the employee and then reimbursed by the employer already fit properly,
since the employee will select the size that fits them best. The
remaining PPE items are those provided by the employer that are not
universal fit.
---------------------------------------------------------------------------
\16\ In their comment, AIHA objected to the term ``universal
fit,'' saying that ``[n]o PPE is universal fit, even the most
adjustable PPE may not fit workers on the extremes of anthropometric
data'' (Document ID 0058). OSHA acknowledges that at the tail ends
of the distribution of human variation, some adjustable PPE will not
fit. For the purposes of this analysis, however, OSHA maintains that
some items of PPE that come in standard, adjustable sizes will fit
nearly all individuals working in the construction industry and so
maintains this designation for a limited number of items in this
analysis.
Table 7--PPE Used in the Construction Industries *
----------------------------------------------------------------------------------------------------------------
PPE items purchased by
PPE items provided by the employer, employee and reimbursed by PPE items of universal fit
not universal fit employer
----------------------------------------------------------------------------------------------------------------
Body Harnesses........................ Prescription Safety Glasses... Body Belts.
Chemical Protective Clothing.......... Protective Electrical PPE..... Hardhats.
Chemical Protective Footwear.......... Protective Welding Clothing... Welding Helmets.
Chemical Splash Goggles............... Safety Shoes with Metatarsal
Guards.
Earmuffs.............................. Safety Shoes Without
Metatarsal Guards.
Earplugs.............................. Welding Goggles...............
Face Shields.......................... Welding Helmets...............
Gloves for Abrasion Protection........
Gloves for Chemical Protection........
Non-Prescription Safety Glasses.......
Safety Goggles........................
Safety Vests..........................
Splash Aprons.........................
----------------------------------------------------------------------------------------------------------------
* Respirators are not included in the table, as fit testing is already required in paragraph 1910.134(f) of the
respiratory protection standard (29 CFR 1910.134(f)), which covers the construction industry (see 29 CFR
1926.103).
Note that Safety Vests were not included in the PPE Payment rule. Body harnesses and ear inserts have been moved
from the Universal Fit column to the column for Provided by the Employer, not Universal Fit, as a result of
comments indicating these items are not universal fit.
Source: OSHA, ORA.
In this analysis, the only PPE that OSHA is estimating may need
replacement as a result of this final rule are the items that are
provided by the employer and not universal fit. For these items, the
standard size may not fit all workers. Therefore, in cases where
employers have provided only standard-sized PPE, some workers may not
have been provided properly fitting PPE.
OSHA derives the total number of PPE items currently used by
employees by multiplying the number of PPE items used by employees in
2004 as estimated in the PPE Payment rule analysis by the employment
growth rate in the construction industry from 2004 to 2022 per County
Business Patterns data. Using currently available supply catalogs, the
agency identified up to three cost estimates for ``standard'' sizes of
each PPE item potentially requiring replacement, taking the average of
those estimates for use in this analysis.\17\ OSHA then calculates the
total costs of replacing all employer-supplied, non-universal fit PPE
by applying these unit costs to the total number of PPE items used by
all employees who wear PPE. Finally, to get the total one-time
replacement costs related to this rule, OSHA estimates the number of
employees needing replacement PPE and the average per-employee cost for
replacing their PPE with non-standard sized PPE and multiplies them. A
detailed description of this approach is provided in the following
paragraphs.
---------------------------------------------------------------------------
\17\ Note that current prices are in 2024 dollars whereas this
FEA uses 2023 dollars as its base year. As such, the prices may be
somewhat overstated.
---------------------------------------------------------------------------
In the PPE Payment rule, OSHA estimated that the total number of
employer-provided, non-universal fit PPE items worn by construction
employees in 2004 was about 13 million. However, that analysis did not
include safety vests in the list of necessary PPE. For this rulemaking,
as presented in the proposal, the agency estimated the cost and use of
safety vests, including them in the number of PPE items worn by
construction workers in 2022, the unit cost, and the total cost.
In addition, in the proposed PPE Fit rule, OSHA treated body
harnesses as universal fit, which was consistent with how body
harnesses were treated in the PPE Payment rule. However, OSHA received
a number of comments suggesting that standard body harnesses frequently
do not fit women. One commenter stated, ``[o]ur research suggests that
there are a very limited number of harnesses available on the market
that are truly `universal fit' harnesses'' (Document ID 0108). Several
commenters pointed out that women's bodies are shaped differently and
that unisex harnesses are not properly adjustable to accommodate
breasts, hips, leg length, and height; that use of improperly fitting
harnesses could lead to bodily harm; and that use of unisex harnesses
is uncomfortable for women (e.g., Document ID 0048, 0068, 0076, 0077,
0080, 0084, 0093, 0098). One commenter noted that in a fall, a
traditional unisex harness could damage a woman's pelvic region. That
commenter pointed out that while there are harnesses that are designed
specifically to accommodate women's bodies, some employers think unisex
is ``good enough'' (Document ID 0063). Another commenter said ``Women
have breasts so harnesses are not very comfortable when they are
designed for men. There are, apparently, harnesses designed for women
but I never to this day have even seen one'' (Document ID 0066). Yet
another commenter noted that ``On more than one job I have had to use
the generic one size fits all XL safety harness where leg straps on the
tightest eyelet hang to my knees'' (Document ID 0090). Therefore, in
the final rule, OSHA has added body harnesses to the list of PPE that
are non-universal fit and might require replacement. As a result, they
have been moved to the first column of table 7 above.
In addition, a comment from the ISEA indicated that earplugs
(referred to as ``ear inserts'' in the proposal) ``are designed and
manufactured in multiple sizes and shapes to accommodate the wide range
of sizes and shapes of ear canals'' (Document ID 0112). NIOSH agreed,
stating that earplugs ``should be reclassified as `provided by the
employer, not universal fit' because earplugs are not completely
adjustable and may not be capable of fitting every person'' (Document
ID 0073, attachment 2). Based on these comments, OSHA reclassified
earplugs from universal fit to provided by the employer, not universal
fit, and adjusted the cost model accordingly.
Based on the most recent data (2022) available from CBP (https://www.census.gov/programs-surveys/cbp/data/tables.html), employment in
the construction industries has increased by 10.74 percent since 2004.
OSHA applied this 10.74 percent increase to the agency's estimates, in
the PPE Payment rule, of the numbers of PPE items in 2004 that were
employer-supplied and not universal fit. As described above, OSHA also
added estimates for the use of several PPE items that were not included
in that category in the PPE Payment rule (safety vests, body harnesses,
and earplugs). Body harnesses and ear plugs were accounted for in the
PPE Payment analysis as universal fit PPE, and their use was estimated
there; thus, the estimates of current use of these items are derived
from the PPE Payment analysis in the
same way as use of the other items accounted for in PPE Payment.
Because safety vests were not included in the PPE Payment rule,
OSHA estimated the number of safety vests used by construction workers
using occupation-level employment data from BLS OEWS for 2023. A
certain subset of the employees in the three affected NAICS industries
is estimated to need safety vests based on general assumptions about
the specific occupation. As an example, while all employees in
occupations deemed in-scope for this rule in the Heavy and Civil
Engineering Construction industry (NAICS 237) are assumed to need
safety vests, Security Guards in the other two industries (Construction
of Buildings, NAICS 236, and Specialty Trade Contractors, NAICS 238)
are considered to be employees who are not near roads and thus OSHA
assumed only 5 percent of these employees would need safety vests.\18\
---------------------------------------------------------------------------
\18\ As a result of these calculations, OSHA determined that,
among the roughly 1.4 million construction workers considered,
837,448 of these workers would use safety vests.
---------------------------------------------------------------------------
Based on the calculations described above, the agency estimates
that the total number of non-universal fit PPE items worn by
construction employees in 2022 was about 20.0 million. Dividing the
total number of PPE items in use from table 8 (20,020,424) by the total
number of construction workers in 2022 wearing PPE from table 3
(5,878,530) yields an estimate that each construction employee wearing
PPE provided by the employer, and not universal fit, wears an average
of 3.41 items of PPE.
Based on current pricing information, OSHA estimated a total cost
of purchasing ``standard'' sizes of non-universal fit PPE of
approximately $262.0 million, including an estimated $6.3 million for
safety vests, $147.3 million for body harnesses, and $442,000 for
earplugs. OSHA divided the total cost of PPE by the total number of
items of PPE for an average per unit PPE cost of $13.08. The agency
then multiplied the per unit PPE cost by the average number of items of
PPE per employee to calculate an average cost of $44.56 ($13.08 x 3.41)
to outfit a construction employee in their needed PPE, assuming that
employee can use standard sizes.
Table 8--Use and Cost of Selected PPE in the Construction Industries
----------------------------------------------------------------------------------------------------------------
Total PPE items PPE unit cost,
PPE provided by the employer, not universal fit used by employees standard size Total cost
(2022) (2024$) (2024$)
----------------------------------------------------------------------------------------------------------------
Body Harnesses \a\.................................... 2,004,783 $73.48 $147,311,472
Chemical Protective Clothing.......................... 396,561 7.71 3,059,075
Chemical Protective Footwear.......................... 234,634 12.86 3,018,178
Chemical Splash Goggles............................... 647,626 10.07 6,521,590
Earmuffs.............................................. 711,375 12.49 8,887,449
Earplugs \a\.......................................... 2,761,510 0.16 441,658
Face Shields.......................................... 1,322,723 15.79 20,890,200
Gloves for Abrasion Protection........................ 3,256,712 10.63 34,607,992
Gloves for Chemical Protection........................ 992,455 1.82 1,809,577
Non-Prescription Safety Glasses....................... 3,859,430 3.87 14,923,130
Safety Goggles........................................ 2,776,301 4.60 12,761,729
Safety Vests \b\...................................... 837,448 7.49 6,275,277
Splash Aprons......................................... 218,865 6.60 1,443,772
---------------------------------------------------------
Total PPE items used by construction employees.... 20,020,424 ................. 261,951,099
---------------------------------------------------------
Average per Unit PPE Cost (2024).................. .................. ................. 13.08
----------------------------------------------------------------------------------------------------------------
\a\ The PPE Payment analysis estimated the use of body harnesses and earplugs but considered them to be
universal fit PPE items.
\b\ afety vests were not included in the PPE Payment analysis. OSHA, ORA, estimated their use in 2022 and their
cost in 2024 dollars to be consistent how the agency derived the values for other types of PPE.
Source: OSHA, ORA, based on PPE Payment rule, ERG Cost Estimates, 2024. See Final Economic Analysis spreadsheet
(Document ID 0118).
Finally, OSHA estimated the costs of purchasing replacement PPE for
employees with improperly fitting PPE. Given the current lack of data
on how many employees might be wearing improperly fitting PPE, OSHA
estimated this parameter by combining sex specific construction
employment data with general population height and weight
distributions. The numbers of women and men in the construction
industry who wear PPE is presented above in table 3.
To estimate the numbers of women and men who might require non-
standard sizes of PPE, the agency relied on height and weight data for
the general population in the Census Bureau's 2010 National Health and
Nutrition Examination Survey (NHANES) (https://www2.census.gov/library/publications/2010/compendia/statab/130ed/tables/11s0205.pdf).\19\ OSHA
assumed, as shown in table 9, that women and men weighing above 300
pounds and women shorter than five feet tall might require non-standard
sizes of PPE and thus could currently be using improperly fitting
PPE.20 21 OSHA acknowledges that this assumption results in
only a rough estimate of workers who might be using PPE that fits
improperly, for several reasons. First, using the general population
height and weight distributions may not align precisely with the height
and weight distributions for construction workers. For example,
Hispanic males make up a greater proportion of the
construction workforce than the population in general and are, on
average, slightly shorter than, and weigh less than, non-Hispanic white
males. Second, it is possible that there are fewer people who are much
smaller or larger than average in the construction industry. Finally,
OSHA acknowledges that this estimate is imprecise because it assumes
that all workers who weigh more than 300 pounds and all female workers
who are shorter than five feet tall require PPE that is not standard
sized; conversely, it assumes that standard-sized PPE is appropriate
for all other workers, both male and female.\22\ Note that OSHA used an
identical approach to this issue in its preliminary analysis and did
not receive any comments on it. Therefore, the agency decided to retain
this approach for the final analysis.
---------------------------------------------------------------------------
\19\ This data source reflects the most recent publicly
available data that can be used to estimate the percentage of
construction employees who are above a certain weight threshold or
below a certain height threshold.
\20\ The base figure for men shorter than five feet tall was too
small to meet statistical standards of reliability of a derived
figure.
\21\ OSHA's analysis assumes that only construction workers who
meet the specified height or weight criteria may require non-
standard sizes of PPE. OSHA then uses this universe of workers when
calculating the number of workers using PPE that does not properly
fit. OSHA's analysis does not attempt to account for workers who
wear standard-sized PPE but may nevertheless have been provided with
improperly fitting PPE by their employers.
\22\ OSHA recognizes that the assumption that standard-sized PPE
properly fits all workers who are above five feet tall and weigh
less than 300 pounds is not accurate in some cases, especially given
the comments noting that ``unisex'' fall protection harnesses do not
fit many women properly. As the rulemaking record reflects,
standard-sized PPE may not properly fit some workers who are above
five feet tall and weigh less than 300 pounds; at the same time,
some workers who are shorter than five feet tall and/or weigh more
than 300 pounds may be able to safely use standard sizes of PPE.
Further, some individuals who are under five feet tall may also be
over 300 pounds, meaning the data may potentially double count some
individuals. Given this, it is important to note that OSHA views the
categories of women shorter than five feet tall and men and women
weighing above 300 pounds as a proxy for all workers who might
require non-standard sizes of PPE and therefore are more likely than
others to be receiving PPE that does not fit them properly.
---------------------------------------------------------------------------
Due to data limitations and as a simplifying assumption for this
analysis, the agency also assumes that construction workers are
distributed across age groups in the same proportions as the general
population examined in the NHANES. The agency then multiplies the
average percentages for each weight and height category by the total
number of men, and the total number of women, in the construction
industry that wear any type of PPE, as shown in table 9.
Table 9--Construction Employees Who Might Require Non-Standard Sizes of PPE
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ages
Construction employee characteristic ------------------------------------------------------------ Average Total
20-29 30-39 40-49 50-59 60-69 employees
--------------------------------------------------------------------------------------------------------------------------------------------------------
Men Above 300 pounds.............................................. 2.5% 3.1% 1.9% 1.9% 2.2% 2.32% 116,961
Women Above 300 pounds............................................ 2.3% 1.6% 1.7% 0.6% 0.7% 1.38% 11,552
Women Under 5 foot tall........................................... 5.7% 6.0% 5.0% 8.0% 9.0% 6.74% 56,422
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Employees Who Might Require Non-Standard Sizes of PPE............................................................................ 184,935
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: OSHA, ORA, based on NHANES, 2010. See Final Economic Analysis spreadsheet (Document ID 0118).
The agency estimates that 184,935 construction employees might
require non-standard sizes of PPE but recognizes that not all of those
employees are using improperly fitting PPE. This is especially true
given that construction employers are already required to provide their
employees with properly fitting PPE. OSHA assumes that up to 10 percent
of those workers--or 18,494 workers--were being provided with
incorrectly fitting PPE prior to promulgation of this final rule. OSHA
used the same assumption in the preamble to the proposed rule and
received no comments on the estimate nor suggestions on a different
estimate the agency should use; therefore, OSHA has maintained this
methodology and simply updated the underlying data used for this final
analysis.
OSHA received a number of comments on the issue of whether non-
standard sizes of PPE are more expensive than standard sizes. For
example, some commenters expressed that ``outlier sizes'' tend to cost
more and that because of this, employers are less likely to purchase
them (Document ID 0038, 0047). Similarly, others said that employers'
``costs or compliance burdens'' would increase because employers will
have to purchase multiple sizes of PPE, purchase smaller quantities, or
purchase from manufacturers with which they do not typically do
business (Document ID 0082, 0107, 0112). Some commenters who asserted
that the rule would increase costs for businesses cited very high PPE
unit costs that OSHA could not corroborate or suggested employers would
be required to amass inventories of PPE that the rule does not require
(Document ID 0082, 0114).
Other commenters argued that the costs associated with purchasing
properly fitting PPE will be minimal. For example, CWIT stated that
this final rule should result in ``[l]ittle economic burden'' (Document
ID 0098). NABTU commented, ``. . . over 90 percent of construction
establishments employ less than 20 workers. As such, to the extent some
construction employers are not already in compliance, the cost of doing
so will not be substantial'' (Document ID 0108). ISEA noted that while
there may be costs for special orders of PPE in extremely small or
large sizes, ``the size ranges of current PPE are likely to be able to
provide a proper fit to the vast majority of the nation's construction
workforce'' (Document ID 0112).
To address these comments, OSHA estimates that larger and smaller
sizes of PPE cost 15 percent more than the average size PPE of that
type. OSHA thus calculated the average, per-person cost to issue
replacement PPE in non-standard sizes by increasing the base price of
$44.56 by 15 percent, for an estimate of $51.24. As indicated in table
10, OSHA estimates that replacing the PPE for 18,494 employees would
cost roughly $948,000 for the entire construction industry.
Table 10--Potential PPE Replacement Cost
[2023$]
----------------------------------------------------------------------------------------------------------------
Average per-
Assumed percent of employees needing replacement PPE Total affected employee PPE cost, Total cost (2023$)
(2022) employees non-standard size
----------------------------------------------------------------------------------------------------------------
10% Employees....................................... 18,494 $51.24 $947,696
----------------------------------------------------------------------------------------------------------------
Note: Using the figures presented here to perform the calculations in the table may not result in the same
totals due to rounding.
Source: OSHA, ORA. See Final Economic Analysis spreadsheet (Document ID 0118).
In addition to the cost of initially replacing improperly fitting
PPE for some employees, employers will need to continue providing these
non-standard sizes of PPE to those employees on an ongoing basis. OSHA
calculates the recurring annual costs of providing these non-standard
sizes of PPE using the marginal cost of non-standard sizes of PPE
compared to the cost of standard sizes of PPE. As noted above, OSHA
estimates this marginal cost increase is 15 percent. As shown in table
12, OSHA multiplies this marginal unit cost by the number of PPE items
per employee for each PPE type, the total number of employees needing
non-standard sizes of PPE, and the number of units of each PPE type
needed in a year. OSHA determined the average useful life for the PPE
items being considered here, as presented in table 11, based on
estimates the agency developed for the PPE Payment rule and adjusted
according to comments in the record for this rulemaking.\23\
---------------------------------------------------------------------------
\23\ One commenter stated ``The useful life in regards to the
economic analysis for ``Gloves for Abrasion Protection,''
``Earmuffs,'' and ``Safety Goggles'' all seem too high. In my
experience as a worker, I would imagine the earmuffs to be closer to
0.40, gloves to be 0.15, and safety goggles to be 0.20 or less on
average'' (Document ID 0069). OSHA has adjusted the useful life of
these types of PPE accordingly.
Table 11--Useful Life of Selected PPE
------------------------------------------------------------------------
PPE provided by the employer, not universal fit Useful life (yr.)
------------------------------------------------------------------------
Body Harnesses....................................... 2.00
Chemical Protective Clothing......................... 0.50
Chemical Protective Footwear......................... 0.50
Chemical Splash Goggles.............................. 0.50
Earmuffs............................................. 0.40
Earplugs............................................. 0.005
Face Shields......................................... 1.00
Gloves for Abrasion Protection....................... 0.15
Gloves for Chemical Protection....................... 0.05
Non-Prescription Safety Glasses...................... 1.00
Safety Goggles....................................... 0.20
Safety Vests......................................... 0.50
Splash Aprons........................................ 0.50
------------------------------------------------------------------------
Source: OSHA based on PPE Payment FEA (72 FR 64342 (Nov. 15, 2007)).
The number of PPE items per employee presented in table 12 are
calculated using the average number of items needed per employee (3.41)
and proportionally distributing that estimate based on the overall
numbers of each PPE item compared to the total number of all PPE items
(see table 8). The number of units of each PPE type needed in a year is
based on the useful life estimates presented in table 11.
Table 12--Annual Marginal Cost of Non-Standard Size PPE
[2023$]
----------------------------------------------------------------------------------------------------------------
Non-standard
PPE type Items per Employees Items per size marginal Total items Total marginal
employee year unit cost per year cost (2023$)
----------------------------------------------------------------------------------------------------------------
Body Harnesses................ 0.34 18,494 0.5 $11.02 3,153 $34,758
Chemical Protective Clothing.. 0.07 18,494 2.0 1.16 2,495 2,887
Chemical Protective Footwear.. 0.04 18,494 2.0 1.93 1,476 2,849
Chemical Splash Goggles....... 0.11 18,494 2.0 1.51 4,075 6,155
Earmuffs...................... 0.12 18,494 2.5 1.87 5,595 10,485
Earplugs...................... 0.47 18,494 200.0 0.02 1,737,512 41,683
Face Shields.................. 0.23 18,494 1.0 2.37 4,161 9,858
Gloves for Abrasion Protection 0.55 18,494 6.7 1.59 68,303 108,875
Gloves for Chemical Protection 0.17 18,494 20.0 0.27 62,444 17,078
Non-Prescription Safety 0.66 18,494 1.0 0.58 12,142 7,042
Glasses......................
Safety Goggles................ 0.47 18,494 5.0 0.69 43,670 30,111
Safety Vests.................. 0.14 18,494 2.0 1.12 5,269 5,923
Splash Aprons................. 0.04 18,494 2.0 0.99 1,377 1,363
---------------------------------------------------------------------------------
Total..................... 3.41 .......... N/A N/A 1,951,673 279,065
----------------------------------------------------------------------------------------------------------------
Note: Using the figures presented here to perform the calculations in the table may not result in the same
totals due to rounding.
Source: OSHA, ORA, based on PPE Payment rule, ERG Cost Estimates, 2024. See Final Economic Analysis spreadsheet
(Document ID 0118).
As presented in table 13, the agency estimates that if 10 percent
of employees who might require non-standard sizes of PPE are provided
with properly fitting PPE as a result of this clarifying rule, 50
percent of employers in the construction industry take time to
familiarize themselves with the rule, and one establishment for each
employee who requires new PPE spends time researching properly fitting
PPE, the rule could have a one-time total cost to the construction
industry of $5,475,450 plus $436,392 in annual recurring costs. These
estimated costs translate to an annualized cost of $1,045,955 over 10
years using a 2 percent discount rate.
Table 13--Total Costs of the PPE Rule
[2023$]
----------------------------------------------------------------------------------------------------------------
Total annualized cost (2023$)
Requirement Total one-time Total annual -------------------------------
cost (2023$) cost (2023$) 2% 0%
----------------------------------------------------------------------------------------------------------------
Rule Familiarization........................... $4,057,842 $0 $451,746 $405,784
PPE Research................................... 469,911 157,327 209,640 204,318
PPE Replacement................................ 947,696 0 105,504 94,770
Marginal Cost of Non-Standard Size PPE......... 0 279,065 279,065 279,065
----------------------------------------------------------------
Total...................................... 5,475,450 436,392 1,045,955 983,937
----------------------------------------------------------------------------------------------------------------
Note: Using the figures presented here to perform the calculations in the table may not result in the same
totals due to rounding.
Source: OSHA, ORA. See Final Economic Analysis spreadsheet (Document ID 0118).
4. Sensitivity Analysis
The primary analysis above assumes that only 10 percent of the
employees who may require non-standard sizes of PPE would need to have
their PPE replaced as a result of this rule. For the first sensitivity
analysis, the agency compared the assumed 10 percent of potentially
affected employees with a lower rate of 5 percent and, alternatively, a
higher rate at each quartile of the group (25, 50, and 100 percent).
Additionally, as discussed above, OSHA has estimated that affected
employees in construction wear an average of 3.41 pieces of PPE of the
type (provided by the employer, not universal fit) covered by OSHA's
analysis; the primary analysis assumes they would all need to be
replaced. In reality, for individual employees, some items might need
to be replaced and not others. The second sensitivity analysis examines
the cases where employees need replacements for 1, 2, 3, or 4 items of
PPE, along with the 3.41 items used in the primary analysis.
In the first sensitivity analysis, OSHA multiplied the total number
of employees who may require non-standard sizes of PPE (184,935) by the
various assumed non-compliance percentages. Table 14, below, presents a
range of 5 percent to 100 percent non-compliance with the requirement
to provide PPE for construction workers who may not be able to wear
standard sizes of PPE. OSHA believes most companies want to act in the
best interest of their employees and are already in compliance with the
existing requirement to provide properly fitting PPE. As such, OSHA
believes the actual non-compliance rate is towards the lower end of the
range presented in table 14. At most, fewer than 200,000 employees
might be affected.
Table 14--Potentially Affected Employees
[2022]
------------------------------------------------------------------------
Percent of employees needing replacement PPE Total employees
------------------------------------------------------------------------
5.................................................... 9,247
10................................................... 18,494
25................................................... 46,234
50................................................... 92,468
75................................................... 138,701
100.................................................. 184,935
------------------------------------------------------------------------
For the second sensitivity analysis, OSHA combined the different
percentages of employees who might need replacement PPE with different
numbers of items of PPE that might need to be replaced for each
affected employee. In table 15, OSHA calculated the total number of PPE
items in the affected construction industries that might need to be
replaced based on employees needing 1, 2, 3, 4, or the average 3.41
pieces of replacement PPE.
Table 15--PPE Items per Employee Needing Replacement
----------------------------------------------------------------------------------------------------------------
Total PPE items needing replacement
Percent of employees needing -------------------------------------------------------------------------------
replacement PPE 1 Item 2 Items 3 Items 3.41 Items 4 Items
----------------------------------------------------------------------------------------------------------------
5............................... 9,247 18,494 27,740 31,492 36,987
10.............................. 18,494 36,987 55,481 62,983 73,974
25.............................. 46,234 92,468 138,701 157,458 184,935
50.............................. 92,468 184,935 277,403 314,916 369,871
75.............................. 138,701 277,403 416,104 472,374 554,806
100............................. 184,935 369,871 554,806 629,832 739,741
----------------------------------------------------------------------------------------------------------------
To complete the sensitivity analysis, OSHA multiplied the cost of
the average piece of non-standard sized PPE, calculated as $15.05 per
piece ($51.24 cost per employee/3.41 items per employee), by the number
of total items of PPE needing replacement (displayed in table 15,
above). The results are presented in table 16.
Table 16--Total Cost of Replacement PPE, Sensitivity Analysis Results
[2023$]
----------------------------------------------------------------------------------------------------------------
Total cost for replacement PPE (2023$)
Percent of employees needing -------------------------------------------------------------------------------
replacement PPE 1 Item 2 Items 3 Items 3.41 Items 4 Items
----------------------------------------------------------------------------------------------------------------
5............................... $139,134 $278,269 $417,403 $473,848 $556,538
10.............................. 278,269 556,538 834,807 947,696 1,113,076
25.............................. 695,672 1,391,344 2,087,017 2,369,241 2,782,689
50.............................. 1,391,344 2,782,689 4,174,033 4,738,481 5,565,378
75.............................. 2,087,017 4,174,033 6,261,050 7,107,722 8,348,067
100............................. 2,782,689 5,565,378 8,348,067 9,476,963 11,130,756
-------------------------------------------------------------------------------
Per Employee Cost........... 15.05 30.09 45.14 51.24 60.19
----------------------------------------------------------------------------------------------------------------
Table 16 shows that, as a worst-case scenario, if no employers are
providing properly fitting PPE to employees who may require non-
standard sizes of PPE, and if each employee needs 4 items of
replacement PPE (more PPE than the average of 3.41 PPE items), then the
total one-time cost to industry to provide that properly fitting PPE
would be approximately $11.1 million. Meanwhile, the cost to industry
could be as low as about $140,000 to replace improperly fitting PPE,
assuming only 5 percent of employees need one replacement PPE item.
The percentage of employees needing replacement PPE and the number
of PPE items each employee needs replaced also impact the estimated
marginal cost of providing properly fitting PPE on an ongoing basis.
Table 17 presents the annual marginal costs associated with continuing
to supply employees with non-standard size PPE after initial
replacement, assuming varying percentages of employees needing this PPE
and varying numbers of PPE items per employee.
Table 17--Annual Marginal Cost of Non-Standard Sizes of PPE, Sensitivity Analysis Results
[2023$]
----------------------------------------------------------------------------------------------------------------
Annual marginal cost of non-standard size PPE (2023$)
Percent of employees needing -------------------------------------------------------------------------------
replacement PPE 1 Item 2 Items 3 Items 3.41 Items 4 Items
----------------------------------------------------------------------------------------------------------------
5............................... $40,970 $81,941 $122,911 $139,533 $163,882
10.............................. 81,941 163,882 245,823 279,065 327,764
25.............................. 204,852 409,705 614,557 697,663 819,409
50.............................. 409,705 819,409 1,229,114 1,395,325 1,638,819
75.............................. 614,557 1,229,114 1,843,671 2,092,988 2,458,228
100............................. 819,409 1,638,819 2,458,228 2,790,650 3,277,637
----------------------------------------------------------------------------------------------------------------
Table 18 shows that the total annualized cost of the rule could
range from approximately $718,000 to $5.2 million when factoring in
rule familiarization, PPE research, and the various PPE replacement
scenarios (assuming a 10-year time horizon and 2 percent discount
rate).
Table 18--Total Annualized Cost of PPE Fit Rule, Sensitivity Analysis Results
[2023$]
----------------------------------------------------------------------------------------------------------------
Total annualized cost of PPE fit rule (2023$)
Percent of employees needing -------------------------------------------------------------------------------
replacement PPE 1 Item 2 Items 3 Items 3.41 Items 4 Items
----------------------------------------------------------------------------------------------------------------
5............................... $717,846 $774,305 $830,765 $853,670 $887,225
10.............................. 774,305 887,225 1,000,145 1,045,955 1,113,064
25.............................. 943,685 1,225,984 1,508,283 1,622,808 1,790,582
50.............................. 1,225,984 1,790,582 2,355,180 2,584,230 2,919,779
75.............................. 1,508,283 2,355,180 3,202,078 3,545,652 4,048,975
100............................. 1,790,582 2,919,779 4,048,975 4,507,073 5,178,171
----------------------------------------------------------------------------------------------------------------
OSHA also considered a sensitivity analysis that assumes a
Purchasing Manager would spend 30 minutes instead of 10 minutes
researching and identifying non-standard sizes of PPE for employees who
do not currently have properly fitting PPE. This revised assumption
increases the total annualized costs of the rule from $1,045,955 to
$1,423,497 using a 2 percent discount rate over a ten-year period.
C. Economic Feasibility
The OSH Act requires that OSHA show the economic feasibility of
standards. A standard is economically feasible when industry can absorb
or pass on the costs of compliance without threatening the industry's
long-term profitability or competitive structure (American Textile
Mfrs. Inst. v. Donovan, 452 U.S. 490, 530 n.55 (1981) (Cotton Dust)),
or ``threaten[ing] massive dislocation to, or imperil[ing] the
existence of, the industry'' (United Steelworkers of Am. v. Marshall,
647 F.2d 1189, 1272 (D.C. Cir. 1981)). ``[T]he Supreme Court has
conclusively ruled that economic feasibility [under the OSH Act] does
not involve a cost-benefit analysis'' (Pub. Citizen Health Research
Grp. v. U.S. Dept. of Labor, 557 F.3d 165, 177 (3d Cir. 2009)). The OSH
Act ``place[s] the `benefit' of worker health above all other
considerations save those making attainment of this `benefit'
unachievable'' (Cotton Dust, 452 U.S. at 509). Therefore, ``[a]ny
standard based on a balancing of costs and benefits by the Secretary
that strikes a different balance than that struck by Congress would be
inconsistent with the command set forth in'' the statute (Id.). This
case law arose with respect to health standards issued under section
6(b)(5) of the OSH Act (29 U.S.C. 655(b)(5)), which specifically
require a showing of feasibility; OSHA has also rejected the use of
formal cost benefit analysis for safety standards, which are not
governed by section 6(b)(5) (See 58 FR 16612, 16622-23 (Mar. 30, 1993)
(``in OSHA's judgment, its statutory mandate to achieve safe and
healthful workplaces for the nation's employees limits the role
monetization of benefits and analysis of extra-workplace effects can
play in setting safety standards.'')).
OSHA historically has applied two threshold tests to examine
economic feasibility for industries covered by the rule: whether the
rule's average per establishment costs as a percentage of average per
establishment revenues, for each industry sector, are below 1 percent,
and whether those costs as a percentage of profits are below 10
percent.\24\ However, as discussed in OSHA's recent proposed rule on
Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings
(89 FR 70698, 70943 (Aug. 30, 2024)), the agency is no longer using
costs as a percent of profits as a measure of feasibility because OSHA
determined that the profit test is not a useful measure of the economic
feasibility of a standard for a given industry. To determine whether
there is a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act, the threshold test
examines whether the average costs for small entities are 1 percent of
their average revenues or below.\25\ These threshold tests are not a
hard ceiling or determinative; instead, they provide guidelines the
agency uses to examine whether there are any potential economic impact
issues that require additional study.
---------------------------------------------------------------------------
\24\ For example, see p. VI-14 of the Final Economic Analysis
supporting OSHA's rule on Respirable Crystalline Silica. Final
Economic Analysis and Final Regulatory Flexibility Analysis for
OSHA's Rule on Occupational Exposure to Respirable Crystalline
Silica, Chapter VI (OSHA-2010-0034-4247).
\25\ For example, see OSHA's Final Regulatory Flexibility
Screening Analysis in support of the Hazard Communication rule (77
FR 17574, 17660 (March 26, 2012)).
---------------------------------------------------------------------------
Although this rule simply clarifies an existing requirement, OSHA
has provided an estimate of the costs for a proportion of employers to
come into compliance with the already-existing requirement to provide
properly fitting PPE. As one commenter pointed out, the rule ``should
not cause any financial stress on any company unless they are providing
ill-fitting PPE to employees currently'' (Document ID 0034). Even
assuming these estimated costs will be incurred by employers as a
result of the rule, the rule easily passes OSHA's threshold tests for
feasibility. As shown in table 19, the average construction industry
employer has revenues of $3.35 million annually and 9 employees. As a
worst-case scenario, if such an employer had to conduct rule
familiarization, research PPE, and replace all the PPE at issue in this
rulemaking for all of their employees (i.e., 3.41 items per employee
for 9 employees), including new hires, and then continue to provide
properly fitting PPE, it would cost an annualized $258, which is much
less than 0.1 percent of an average employer's revenues. More
realistically, an employer might have to replace the PPE for one of its
employees and the per-establishment costs would be substantially lower.
Therefore, this rule is clearly economically feasible.
Table 19--Average Employment and Revenues (2023$) per Establishment by NAICS
----------------------------------------------------------------------------------------------------------------
Average Average revenue
NAICS Establishments employment per (2023$) per
establishment establishment
----------------------------------------------------------------------------------------------------------------
236 (Construction of Buildings)........................ 251,634 6 $3,825,160
237 (Heavy and Civil Engineering Construction)......... 38,214 26 9,892,428
238 (Specialty Trade Contractors)...................... 510,803 9 2,078,011
--------------------------------------------------------
Total Construction................................. 800,651 9 3,347,121
----------------------------------------------------------------------------------------------------------------
Source: 2022 County Business Patterns (CBP). Available at https://www.census.gov/data/datasets/2022/econ/cbp/2022-cbp.html.
D. Regulatory Flexibility Screening Analysis and Certification
In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et
seq. (as amended)), OSHA examined the regulatory requirements of this
rule to determine whether the requirement would have a significant
economic impact on a substantial number of small entities.\26\ While
the rule simply clarifies an existing requirement, even when OSHA
assumes that this rule leads to changes in employer behavior and
associated costs, the costs are minimal. Given the number of workers
OSHA estimates might be wearing improperly fitting PPE compared to the
number of construction establishments covered by this rule, it is
statistically unlikely that there will be more than one worker who
might be wearing improperly fitting PPE at any given firm. For the
following reasons, this rule will not impose significant costs (i.e.,
costs that amount to more than one percent of revenues) on small
employers:
---------------------------------------------------------------------------
\26\ Small entity status is determined by the Small Business
Administration's size standards. Construction entities are
considered small based on their revenue, with the threshold ranging
from less than $19 million to less than $45 million in annual
revenue depending on which 6-digit NAICS industry the employer falls
under (See https://www.sba.gov/document/support-table-size-standards).
---------------------------------------------------------------------------
Replacement PPE costs are less than $52 per employee;
Establishments will incur less than $36 to complete rule
familiarization and PPE research upfront (plus another $15 annually if
they have a new hire requiring non-standard PPE); and
The ongoing marginal cost of non-standard sized PPE is
about $7 per employee, on average.
To further illustrate this point, in order for a firm to experience
impacts greater than 1 percent of revenues, firm-level revenues would
need to be $3,162 or lower.\27\ According to the 2017 Statistics of
U.S. Businesses (SUSB) dataset (https://www.census.gov/data/datasets/2017/econ/susb/2017-susb.html), Specialty Trade Contractors (NAICS code
238) has the lowest revenues per firm for the smallest size category
(<5 employees) at $365,018 (inflated to 2023$), which is well above the
$3,162 needed for impacts to equal 1 percent of revenues. The agency
therefore certifies that this final rule will not have a significant
economic impact on a substantial number of small entities.
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\27\ Rule familiarization cost per establishment of $10.14, one
time PPE needs assessment and research cost of $25.41, annual
research cost for new hires of $15.27, and one time PPE replacement
cost of $51.24 for one employee, plus ongoing marginal cost of
nonstandard sized PPE of $6.68 for one employee annualized at a 2
percent discount rate over 10 years yields a per employer cost of
$31.62. For a cost of $31.62 to exceed one percent of revenues, the
employer's revenues would need to be less than $3,162 annually
($3,162 * 0.01 = $31.62).
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E. Benefits
Although this rule is a clarification of employers' existing
obligations, comments in the record suggest that not all employers are
currently meeting their obligation to provide their employees with
properly fitting PPE. The agency expects this clarification will
improve compliance and thereby produce benefits to workers who were
previously not receiving properly fitting PPE. However, due to lack of
information about how many injuries, illnesses, and fatalities are
caused by improperly fitting PPE, the agency is unable to estimate
number of injuries, illnesses, and fatalities that may be averted by
this final rule. While OSHA received a number of comments providing
anecdotal evidence from individuals' personal experience, no commenter
provided studies or data that would allow the agency to estimate the
number of fatalities and non-fatal injuries and illnesses caused by
improperly fitting PPE across the construction industry. This section
discusses the evidence in the record regarding potential benefits, the
difficulties in identifying PPE-related injuries in the available data,
and potential benefits other than direct health and safety benefits
that may result from this final rule. Finally, for informational
purposes, OSHA calculates how many fatalities or non-fatal injuries and
illnesses would need to be prevented by this rule in order for it to
have positive net benefits.\28\
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\28\ By showing this break-even point, OSHA is not suggesting
the agency is required to engage in formal cost-benefit analysis
requiring that benefits exceed costs but instead presents it for
informational purposes only.
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The comments OSHA received revealed two types of benefits likely to
result from requiring properly fitting PPE. The first type comes from
avoidance of injuries, illnesses, and fatalities. Several commenters
reported that they were required to wear incorrectly fitting PPE on the
job and that this made accidents more likely for them (Document ID
0079, 0081, 0097). Some reported having been injured due to improperly
fitting PPE while others reported near misses. For example, one
individual reported that a safety vest that was too big had gotten
``caught on equipment and nearly caused falls'' and that ``[i]mproperly
fitting gloves have been caught in equipment'' (Document ID 0079).
Another said that oversized gloves caused her hand to be caught in
machinery, resulting in a serious and permanently debilitating injury
(Document ID 0061). A comment from the United Brotherhood of Carpenters
and Joiners of America (UBC) reported stories shared by their members,
including two who suffered eye injuries due to improperly fitting
safety glasses, one whose oversized fall protection harness got caught
on equipment and caused a back injury, and two who suffered injuries to
fingers when their oversized gloves were caught in machinery (Document
ID 0074). These comments indicate that employees are being injured due
to improperly fitting PPE.
However, specific numbers of injuries or fatalities directly
attributable to improperly fitting PPE are difficult to identify in the
available data. As shown above, improperly fitting PPE can cause a
variety of types of injuries (i.e., fractures, abrasions, sprains, cuts
and punctures) in a number of ways (i.e., by causing falls, getting
caught in
machinery) and to a number of parts of the body. Data available from
BLS are parsed by type of injury, cause of injury, or part of the body
injured, and injuries that are reported in these categories may include
injuries caused by improperly fitting PPE along with injuries resulting
from other factors. The data collected do not specify whether PPE was
being worn or whether it contributed to an accident or injury. Data
from BLS reported that, in 2021, there were more than 37,000 sprains,
strains, and tears, more than 18,000 cuts and lacerations, and 1,700
amputations that resulted in days away from work in the construction
industry (BLS, 2023). The injuries reported by commenters and discussed
above would fall within these categories (if they were reported
appropriately). Based on this, it is entirely plausible that there are
some injuries in these categories (as well as other categories of
injuries not presented here) that are due to improperly fitting PPE and
that could be avoided if employees wore properly fitting PPE.
In addition to the specific accounts of injuries detailed above,
multiple commenters expressed doubt that the improperly fitting PPE
they wear or had worn would keep them safe in the event an accident
occurred; some worried that the poor fit of their PPE (e.g., fall
protection harness) could lead to a fatal accident (Document ID 0085,
0081, 0084, 0090, 0108). Others reported that they felt they were
putting themselves in danger by working while wearing improperly
fitting PPE (Document ID 0080). Feeling unsafe at work has negative
consequences for workers' mental health. The NSC conducted a survey to
evaluate the correlation between workplace safety and negative mental
health impacts. NSC reported that:
Respondents who felt unsafe at work were nearly three times more
likely to report also experiencing depressive symptoms within the
past two weeks compared to those who felt safe at work. In addition,
respondents who felt unsafe at work were more than twice as likely
to also report feeling symptoms of anxiety compared to those who
felt safe at work.
Individuals with the highest level of concern for their safety
at work were the most likely to report feeling depressed or anxious
frequently enough to meet one of the criteria for clinical diagnosis
of mental illness (NSC, 2022).
Consistent with the findings of the NSC survey, commenters reported
feelings of anxiety and stress, loss of sleep, mental fatigue, and
concern about discrimination or retaliation; they also worried about
loss of income because of, for example, being sent home due to a lack
of properly fitting PPE or being laid off because they work slower due
to PPE that is too big and makes tasks more difficult (Document ID
0045, 0074, 0087). Accordingly, the fit requirement of this final rule
may yield benefits from reduced stress and other negative mental health
effects.
The third type of benefit likely to result from this final rule is
avoidance of work or production delays that occur when workers are
wearing PPE that does not fit. The UBC noted that, among other
benefits, ``properly fitting PPE will result in less lost production''
(Document ID 0074) and the ISEA likewise commented that the rule would
yield a financial benefit by preventing injuries and fatalities
(Document ID 0112). In its comment, NIOSH cited studies finding that
workers had difficulty performing job tasks while wearing poorly
fitting PPE, including one where study participants ``reported that
poorly fitting PPE interfered with work tasks and potentially affected
their productivity'' and another where participants reported that
``[b]eing unable to perform some technical tasks while wearing standard
issue gloves had a direct negative effect on productivity'' (Document
ID 0054). Commenters also reported that improperly fitting PPE made it
difficult to do their jobs efficiently (Document ID 0073, 0079).
Accordingly, workers who are provided with properly fitting PPE as a
result of this final rule may experience increased productivity, which
in turn benefits employers because employees can work faster and more
efficiently.
Additional benefits that could accrue to employees as a result of
this rule include not being denied work (e.g., Document ID 0061, 0114);
not being sent home without pay (e.g., Document ID 0087); and not
having to pay for their own PPE (e.g., Document ID 0056, 0060, 0067,
0094, 0115). Another commenter suggested that improved safety would
help the construction industry ``alleviate [. . .] risk and make
working in the industry a good choice for women and other under-
represented groups'' which the commenter believed was necessary in
order for the industry to meet the need for workers (Document ID 0074).
Based on the above, OSHA believes that this rule will result in
health and safety benefits to workers, as well as benefits to employers
due to increased worker efficiency and productivity. Although the
agency is unable to quantify those benefits due to data limitations,
the agency has calculated, for informational purposes, how many
injuries and/or fatalities this final rule would have to prevent to
yield a net benefit. To do so, OSHA begins with the estimate that this
final rule will impose annualized costs of about $889,000 per year
using a two percent discount rate and a ten year time frame. Next, OSHA
monetizes the potential safety and health benefits of the rule.
Monetization allows comparison of the benefits and costs of a rule in
the same terms. When OSHA is able to estimate the number of injuries or
fatalities prevented by a given rule, the agency monetizes these
benefits.
If OSHA were to monetize fatalities potentially avoided by this
final rule, the analysis would use the Department of Transportation
(DOT) 2023 value-of-a-statistical-life (VSL) estimate of $13.2 million
per avoided fatality (DOT, 2024).\29\ DOT relied on a selected set of
nine recent economic studies that provided usable estimates of VSL for
a broad cross-section of the population. Because economic theory and
empirical evidence indicate that the value of reducing life-threatening
and health-threatening risks (and the corresponding willingness of
individuals to pay to reduce these risks) will increase as real per
capita income increases, DOT adjusted its VSL estimate to reflect
changes in real income over time, using an income elasticity of VSL of
1.0 (the percentage change in VSL in response to a 1% increase in real
income). For its estimate of real gross domestic product (GDP) growth
over the ten-year period for which OSHA estimates benefits, the agency
uses a recent Congressional Budget Office (CBO) forecast of 1.7 percent
per year (CBO, 2022).\30\ Accounting for real GDP growth over a ten-
year period, on an annualized basis using a 2 percent discount rate,
OSHA's adjusted VSL is $14.2 million.\31\ Although OSHA is unable to
estimate the number of fatalities that will be prevented by this final
rule, the agency can demonstrate based on this adjusted VSL, that this
final rule will have positive net benefits if it prevents one
fatality about every 14 years ($14,200,000/$1,045,955 = 13.6) based on
avoided fatalities alone regardless of avoided non-fatal injuries.
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\29\ The analysis is using 2023 as its reference dollar year for
comparing costs and benefits, although given that the unit costs for
PPE are using the latest available information from 2024, the costs
might be slightly overstated for 2023.
\30\ See Table 2-1 in https://www.cbo.gov/publication/58147
(CBO, 2022).
\31\ Beginning with a baseline ($2023) VSL of $13.2 million,
OSHA applied an annual income growth rate of 1.7% (Year 0 = 100.0%,
Year 1 = 101.7%, Year 2 = 103.4%, Year 3 = 105.2%, Year 4 = 107.0%,
Year 5 = 108.8%, Year 6 = 110.6%, Year 7 = 112.5%, Year 8 = 114.4%,
Year 9 = 116.4%) and a discount rate of 2% to derive a present value
income growth rate of 107.7%. Multiplying the baseline VSL times the
present value income growth rate ($13.2 x 107.7%) yields an adjusted
VSL value of $14,217,770, or after rounding, $14.2 million.
---------------------------------------------------------------------------
Similarly, OSHA typically monetizes the benefits of avoided
nonfatal injuries and illnesses based on the value of a statistical
injury (VSI) and, if monetizing benefits for this final rule, would use
the midpoint of the range of the values cited in Viscusi and Gentry
(2015) converted to 2023 dollars using the GDP deflator, or $116,588
per injury. Based on this VSI, if this rule prevented about 9
($1,045,955/$116,588 = 8.97) nonfatal injuries or illnesses a year, it
would have positive net benefits regardless of avoided fatalities.
References
Bureau of Labor Statistics (BLS). (2024). Job Openings and Labor
Turnover Survey (JOLTS). Available at http://www.bls.gov/jlt/data.htm (Accessed March 18, 2024). (BLS JOLTS, 2024)
Bureau of Labor Statistics (BLS). (2023). Survey of Occupational
Injuries and Illnesses, Number of nonfatal occupational injuries and
illnesses involving days away from work, restricted activity, or job
transfer (DART), days away from work (DAFW), and days of restricted
work activity, or job transfer (DJTR) by industry and selected
natures of injury or illness, private industry, 2021-2022. Available
at https://www.bls.gov/iif/nonfatal-injuries-and-illnesses-tables/case-and-demographic-characteristics-table-r1-2021-2022.xlsx. (BLS,
2023)
Bureau of Labor Statistics (BLS). (2023, May). Occupational
Employment and Wage Statistics. May 2023 National Industry-Specific
Occupational Employment and Wage Estimates. NAICS Sectors. Available
at: https://www.bls.gov/oes/current/oessrci.htm. (BLS, May 2023)
Congressional Budget Office (CBO). (2022). The Budget and Economic
Outlook: 2022 to 2032. Available at: https://www.cbo.gov/publication/58147. (CBO, 2022)
Department of Transportation (DOT). (2024). Department Guidance on
Valuation of a Statistical Life in Economic Analysis. Available at:
https://www.transportation.gov/office-policy/transportation-policy/revised-departmental-guidance-on-valuation-of-a-statistical-life-in-economic-analysis. (DOT, 2024)
Leigh JP. (Leigh) (2011, Dec). Economic Burden of Occupational
Injury and Illness in the United States. The Milbank Quarterly. 2011
Dec; 89(4):728-72. Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3250639/. (Leigh, Dec. 2011)
National Safety Council (NSC). (2022). ``NSC Survey Finds Workplace
Safety Issues Correlate with Depression, Anxiety.'' Available at:
https://www.nsc.org/newsroom/nsc-survey-finds-workplace-safety-issues-correlate (NSC, 2022)
Office of Management and Budget (OMB). (2023). Circular No. A-4.
Executive Office of the President. Available at: https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf. (OMB,
2023)
Park, Jisung, Nora Pankratz, and Arnold Behrer. (2021, July)
``Temperature, workplace safety, and labor market inequality.'' IZA
Discussion Paper 14560 (2021): 1-94. Available at: https://www.iza.org/publications/dp/14560/temperature-workplace-safety-and-labor-market-inequality. (Park, et al., July, 2021)
Viscusi, W. K., & Gentry, E. P. (2015). The value of a statistical
life for transportation regulations: A test of the benefits transfer
methodology. Journal of Risk and Uncertainty, 51, 53-77. https://doi.org/10.1007/s11166-015-9219-2. (Viscusi and Gentry, 2015)
VI. Technological Feasibility
This final rule amends Sec. 1926.95(c) to make explicit
construction employers' existing obligation to ensure PPE worn by
employees properly fits each employee. In the NPRM, OSHA explained that
this revision would improve clarity for the construction sector and
would ensure consistency between the construction PPE standards and
existing OSHA standards for general industry and shipyards. OSHA
further stated that because the requirement for properly fitting PPE
already exists in the construction industry, the agency believed that
providing properly fitting PPE is already common practice among
construction employers. Therefore, OSHA preliminarily concluded that
the proposed rule would be technologically feasible.\32\
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\32\ As explained in the NPRM, because the revision in this
final rule is simply a clarification of an existing requirement, the
agency is not required to perform a new technological feasibility
analysis for this rulemaking. Nonetheless, OSHA is including a
discussion of technological feasibility for informational purposes.
---------------------------------------------------------------------------
In response to the NPRM, no commenter identified any technological
barriers to providing construction employees with properly fitting PPE.
Instead, as one commenter stated, ``PPE is readily available for the
wide range of worker anthropometrics'' (Document ID 0108). According to
another, ``PPE is available in different sizes. In addition, most PPE
is adjustable, and available in a range of sizes, meaning the wearer
can achieve a proper fit'' (Document ID 0112). General industry and
shipyard employers have been able to comply with the comparable
requirements in 29 CFR 1910.132(d)(1)(iii) and 1915.152(b)(3),
providing further evidence of technological feasibility, especially
given that no commenter identified any PPE that is unique to
construction work (see Document ID 0078). OSHA has also identified
industry resources that demonstrate the availability of PPE designed
for many different body types, such as the list of PPE for all genders
and sizes compiled by CPWR (see Document ID 0117) and ISEA's List of
Female PPE Manufacturers (Document ID 0014).
Although some commenters did indicate they had difficulty obtaining
properly fitting PPE in the past (Document ID 0031, 0046), these
comments do not demonstrate a technological feasibility issue, but
rather a market supply issue. As one commenter noted, ``[s]maller sizes
exist for many types of PPE, but only larger sizes are stocked by
sellers'' (Document ID 0046). These same commenters also expressed hope
that this final rule would increase availability by spurring demand
(Document ID 0031, 0046). As one commenter stated, ``[t]here could be
experiences of longer lead times for certain PPE items; however, as
employers increase the demand for manufacturers to produce more size
variations, this problem should be alleviated'' (Document ID 0098).
After reviewing the comments received and the evidence in the record,
OSHA finds that this final rule is technologically feasible.
VII. Paperwork Reduction Act
This final rule contains no information collection requirements
subject to OMB approval under the Paperwork Reduction Act of 1995 (PRA)
(44 U.S.C. 3501 et seq.) and its implementing regulations at 5 CFR part
1320. The PRA defines a collection of information as ``the obtaining,
causing to be obtained, soliciting, or requiring the disclosure to
third parties or the public, of facts or opinions by or for an agency,
regardless of form or format.'' (44 U.S.C. 3502(3)(A)).
VIII. Federalism
OSHA reviewed this final rule in accordance with Executive Order
13132 (64 FR 43255 (Aug. 10, 1999)), which, among other things, is
intended to ``ensure that the principles of federalism established by
the Framers guide the executive departments and agencies in the
formulation and implementation of policies.'' The E.O. provides for
preemption of State law where there is clear evidence that Congress
intended preemption of State law, or where the exercise of State
authority conflicts with the exercise of Federal authority under the
Federal statute. The E.O. directs agencies to limit any such preemption
to the extent possible. The E.O. also
requires that agencies consult with states on rules that have
``federalism implications,'' which are those that have ``substantial
direct effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This final rule complies with E.O. 13132. The hazards addressed by
this final rule and its goal of protecting construction workers are
national in scope and the final rule does not include ``federalism
implications'' as defined in the E.O. Under section 18 of the OSH Act,
29 U.S.C. 651 et seq., Congress expressly provides that States may
adopt, with Federal approval, a plan for the development and
enforcement of occupational safety and health standards (29 U.S.C.
667); OSHA refers to these OSHA-approved, State-administered
occupational safety and health programs as ``State Plans.''
Occupational safety and health standards developed by State Plans must
be at least as effective in providing safe and healthful employment and
places of employment as the Federal standards (29 U.S.C. 667). Subject
to these requirements, State Plans are free to develop and enforce
under State law their own requirements for occupational safety and
health standards. The choice to become a State Plan is part of the
statutory scheme and is not mandatory, so there are no federalism
implications for States that choose to adopt a State Plan. The effect
of this final rule on States and territories with OSHA-approved
occupational safety and health State Plans is discussed in Section IX,
State Plans.
In States without OSHA-approved State Plans, the States are not
employers under the OSH Act and the final rule would therefore not have
a substantial direct effect on them (29 U.S.C. 652(5)).
IX. State Plans
When Federal OSHA promulgates a new standard or a more stringent
amendment to an existing standard, States with their own OSHA-approved
occupational safety and health plans (``State Plans'') must either
amend their standards to be identical to, or ``at least as effective
as,'' the new standard or amendment, or show that an existing State
Plan standard covering this issue is ``at least as effective'' as the
new Federal standard or amendment (29 CFR 1953.5(a)). State Plans'
adoption must be completed within six months of the promulgation date
of the final Federal rule.
OSHA has determined that by including in 29 CFR 1926.95 an explicit
requirement that PPE must fit properly, this final rule will increase
protection afforded to employees in the construction industry by
clarifying employers' obligations under the standard. Accordingly,
within six months of the rule's final promulgation date, State Plans
are required to review their standards and adopt amendments to those
standards that are identical to, or ``at least as effective'' as, this
rule, unless they demonstrate that such amendments are not necessary
because their existing standards are already ``at least as effective''
in protecting workers. To avoid delays in worker protection, the
effective date of the State standard and any of its delayed provisions
must be the date of State promulgation or the Federal effective date,
whichever is later. The Assistant Secretary may permit a longer time
period if the State timely demonstrates that good cause exists for
extending the time limitation (29 CFR 1953.5(a)).
Of the 29 States and Territories with OSHA-approved State Plans, 22
cover public and private-sector employees: Alaska, Arizona, California,
Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada,
New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina,
Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. The
remaining seven States and Territories cover only State and local
government employees: Connecticut, Illinois, Maine, Massachusetts, New
Jersey, New York, and the Virgin Islands.
X. Unfunded Mandates Reform Act
OSHA reviewed this final rule according to the Unfunded Mandates
Reform Act of 1995 (``UMRA''; 2 U.S.C. 1501 et seq.) and Executive
Order 12875 (58 FR 58093 (Oct. 28, 1993)). Section 202 of the UMRA, 2
U.S.C. 1532, requires agencies to assess the anticipated costs and
benefits of a rule that includes a Federal mandate ``that may result in
expenditures in any one year by state, local, and tribal governments,
in the aggregate, or by the private sector,'' of at least $100 million,
adjusted annually for inflation. This provision does not generally
apply to a duty arising from participation in a voluntary Federal
program (2 U.S.C. 658(5)).
As discussed above in Section V. Final Economic Analysis and
Regulatory Flexibility Act Certification, the agency has preliminarily
determined that compliance with this final rule will require
expenditures of less than $100 million (adjusted annually for
inflation, which would now amount to more than $180 million) per year
by all affected entities. Accordingly, this proposal is not a
significant regulatory action within the meaning of the UMRA.
This rule does not place a mandate on State or local government for
purposes of the UMRA. As explained above in Section IX. State Plans,
those States with OSHA-approved State Plans voluntarily choose to
adopt, with Federal approval, a plan for the development and
enforcement of occupational safety and health standards. Thus, to the
extent they are required to comply with OSHA standards, it is the
result of their voluntary decision, not a Federal mandate. In States
without OSHA-approved State Plans, the States and their political
subdivisions are not employers under the OSH Act (29 U.S.C. 652(5)).
Thus, the final rule does not impose costs on them.
The OSH Act does not cover Tribal governments in the performance of
traditional governmental functions, but it does cover Tribal
governments when they engage in activities of a commercial or service
character (see Menominee Tribal Enterprises v. Solis, 601 F.3d 669 (7th
Cir. 2010); Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2d Cir.
1996)). However, the cost of the revisions in this final rule for these
covered activities by a Tribal government would not meet the threshold
established in UMRA. OSHA certifies that this rule would not mandate
that State, local, or Tribal governments adopt new, unfunded regulatory
obligations of, or increase expenditures by the private sector by, more
than $100 million in any year, as documented in the Final Economic
Analysis.
XI. Consultation and Coordination With Indian Tribal Governments
OSHA reviewed this final rule in accordance with Executive Order
13175 (65 FR 67249 (Nov. 9, 2000)) and determined that it would not
have ``tribal implications'' as defined in that order. The
clarification to 29 CFR 1926.95 does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
XII. Protecting Children From Environmental Health and Safety Risks
Executive Order 13045, Protecting Children from Environmental
Health and Safety Risks (62 FR 19885 (April 23, 1997)), as amended by
Executive Orders 13229 and 13296, requires that Federal agencies
provide additional evaluation
of economically significant regulatory actions that concern an
environmental health risk or safety risk that an agency has reason to
believe may disproportionately affect children. As explained elsewhere
in this preamble, OSHA has determined that this final rule is not an
economically significant regulatory action. In addition, this rule is
intended to protect workers of all ages, and OSHA has no information
that children comprise a disproportion share of the affected workforce.
To the extent older children are employed in the construction industry,
this final rule will have a protective effect on these older children
by ensuring that they are provided properly fitting PPE. OSHA has
therefore determined that this rule will not disproportionately affect
children or have any adverse impact on children. Accordingly, Executive
Order 13045, Protection of Children from Environmental Health Risks and
Safety Risks, requires no further agency action or analysis.
XIII. Environmental Impacts
OSHA has reviewed the final rule according to the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), the
regulations of the Council on Environmental Quality (40 CFR part 1500
et seq.), and the Department of Labor's NEPA procedures (29 CFR part
11).
Pursuant to 29 CFR 11.10 and consistent with CEQ regulations, the
promulgation, modification, or revocation of any safety standard is
categorically excluded from the requirement to prepare an environmental
assessment under NEPA absent extraordinary circumstances indicating the
need for such an assessment. OSHA finds that this final rule presents
no such extraordinary circumstances.
List of Subjects in 29 CFR Part 1926
Construction, Personal protective equipment, Occupational safety
and health.
Authority and Signature
Douglas L. Parker, Assistant Secretary of Labor for Occupational
Safety and Health, authorized the preparation of this document under
the authority granted by sections 4, 6, and 8 of the Occupational
Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), 5 U.S.C. 553,
Secretary of Labor's Order No. 8-2020 (85 FR 58393), and 29 CFR part
1911.
Signed at Washington, DC.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.
Final Regulatory Text
Amendments to Standards
For the reasons stated in the preamble, OSHA amends 29 CFR part
1926 to read as follows:
PART 1926--OCCUPATIONAL SAFETY AND HEALTH STANDARDS
Subpart E--Personal Protective and Life Saving Equipment
0
1. The authority citation for subpart E is revised to read as follows:
Authority: 40 U.S.C. 3701 et seq.; 29 U.S.C. 653, 655, 657;
Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 5-
2002 (67 FR 65008), 5-2007 (72 FR 31160), 4-2010 (75 FR 55355), 1-
2012 (77 FR 3912), or 8-2020 (85 FR 58393), as applicable; and 29
CFR part 1911.
0
2. Amend Sec. 1926.95 by revising paragraph (c) to read as follows:
Sec. 1926.95 Criteria for personal protective equipment.
* * * * *
(c) Design and selection. Employers must ensure that all personal
protective equipment:
(1) Is of safe design and construction for the work to be
performed; and
(2) Is selected to ensure that it properly fits each affected
employee.
* * * * *
[FR Doc. 2024-29220 Filed 12-11-24; 8:45 am]
BILLING CODE 4510-26-P
