[Federal Register Volume 80, Number 85 (Monday, May 4, 2015)][Rules and Regulations]
[Pages 25365-25526]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-08843]
Vol. 80
Monday,
No. 85
May 4, 2015
Part II
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Part 1926
Confined Spaces in Construction; Final Rule
Federal Register / Vol. 80 , No. 85 / Monday, May 4, 2015 / Rules and
Regulations
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1926
[Docket ID-OSHA-2007-0026]
RIN 1218-AB47
Confined Spaces in Construction
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule.
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SUMMARY: OSHA is adding a new subpart to provide protections to
employees working in confined spaces in construction. This new subpart
replaces OSHA's one training requirement for confined space work with a
comprehensive standard that includes a permit program designed to
protect employees from exposure to many hazards associated with work in
confined spaces, including atmospheric and physical hazards. The final
rule is similar in content and organization to the general industry
confined spaces standard, but also incorporates several provisions from
the proposed rule to address construction-specific hazards, accounts
for advancements in technology, and improves enforceability of the
requirements.
DATES: The final rule becomes effective on August 3, 2015.
ADDRESSES: In accordance with 28 U.S.C. 2112(a), the Agency designates
Ms. Ann Rosenthal, the Associate Solicitor of Labor for Occupational
Safety and Health, Office of the Solicitor of Labor, Room S4004, U.S.
Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210,
to receive petitions for review of the final rule.
FOR FURTHER INFORMATION CONTACT:
General information and press inquiries: Mr. Frank Meilinger,
Office of Communications, Room N3647, OSHA, U.S. Department of Labor,
200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1999; email meilinger.francis2@dol.gov.
Technical information: Ms. Jessica L. Douma, Directorate of
Construction, Room N-3468, OSHA, U.S. Department of Labor, 200
Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-2020
or fax (202) 693-1689; email douma.jessica@dol.gov.
For additional copies of this Federal Register document, contact:
OSHA, Office of Publications, U.S. Department of Labor, Room N3101, 200
Constitution Avenue NW, Washington, DC, 20210; telephone (202) 693-
1888. Electronic copies of this Federal Register document are available
at http://www.regulations.gov. Electronic copies of this Federal
Register document, as well as news releases and other relevant
documents, are available at OSHA's Web page at http://www.osha.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
A. Introduction
B. Need for Regulation
C. Affected Establishments
D. Benefits, Net Benefits, and Cost Effectiveness
E. Compliance Costs
F. Economic Impacts
G. Final Regulatory Flexibility Analysis
II. Background
A. Record Citations
B. History
C. Need for a Rule Regulating Confined Spaces in Construction
III. Summary and Explanation of the Final Standard
1926.1201--Scope
1926.1202--Definitions
1926.1203--General Requirements
1926.1204--Permit Required Confined Space Program
1926.1205--Permitting process
1926.1206--Entry permit
1926.1207--Training
1926.1208--Duties of Authorized Entrants
1926.1209--Duties of Attendants
1926.1210--Duties of Entry Supervisors
1926.1211--Rescue
1926.1212--Employee Participation
1926.1213--Provision of Documents to the Secretary
IV. Agency Determinations
A. Legal Authority
B. Final Economic Analysis and Regulatory Flexibility Analysis
1. Introduction
2. Need for Regulation
3. Profile of Affected Industries
4. Benefits and Net Benefits
5. Technological Feasibility
6. Costs of Compliance
7. Economic Feasibility and Regulatory Flexibility Determination
8. Final Regulatory Flexibility Analysis
9. Sensitivity Analysis
10. References
C. Office of Management and Budget Review Under the Paperwork
Reduction Act of 1995
D. Federalism
E. State-Plan States
F. Unfunded Mandates Reform Act
G. Consultation and Coordination With Indian Tribal Governments
H. Applicability of Existing Consensus Standards
V. Authority and Signature
VI. Amendments to Standards
I. Executive Summary
A. Introduction
OSHA last issued rules addressing work in confined spaces in 1993;
however, those provisions applied only to general industry work. A
single training provision, issued in 1979, applies to confined space
work in construction. Following the promulgation of the general
industry rule, OSHA agreed to propose a standard for confined spaces in
construction as part of a settlement of a legal challenge filed by the
United Steelworkers of America. After consulting with the Advisory
Committee for Construction Safety and Health (ACCSH) on a draft, and
holding several stakeholder meetings in locations across the country,
OSHA developed a draft and conducted a Small Business Advocacy Review
Panel (SBAR Panel) in 2003. The Agency published its proposed rule for
confined spaces in construction on November 28, 2007 (72 FR 67351). The
proposal incorporated feedback from ACCSH, the stakeholder meetings,
and the SBAR Panel, and addressed issues unique to the construction
industry, such as higher employee turnover rates, worksites that change
frequently, and the multi-employer business model that is common on
construction worksites.
During the SBAR Panel, some small entity representatives expressed
a preference for the general industry rule and requested that OSHA
consider adopting that rule for the construction industry. When the
proposed rule was published, OSHA requested comment on how the Agency
could adapt a standard similar to the general industry rule for the
construction sector. Commenters indicated that they had been following
the general industry rule for quite some time and suggested adopting
that standard with some modifications for the construction industry.
OSHA considered the unique challenges faced by the construction
industry as well as the requests by commenters for more consistency
between the general industry and construction standards. The final rule
reflects the organization, language, and most of the substantive
requirements of the general industry rule. Some of the aspects of the
construction industry that are not present in general industry work are
addressed by modifications such as information exchange requirements to
ensure that multiple employers have shared vital safety information.
OSHA also adjusted the construction rule to account for advances in
technology and equipment that allow for continuous monitoring of
hazards. Other differences between the regulatory text of the general
industry rule and this standard reflect improvements in clarity of
language and enforcement considerations that have been addressed
in interpretations of the general industry rule.
B. Need for Regulation
Prior to the promulgation of this rule, OSHA had one provision in
its construction standards for a general training requirement when
employees work in confined spaces. This provision at 29 CFR
1926.21(b)(6) provided limited guidance, instructing employers to train
employees as to the nature of the hazards involved, the necessary
precautions to be taken, and in the use of protective emergency
equipment required. OSHA has determined that this final rule, which
provides a higher level of guidance and safety information to employers
engaged in this kind of work, will reduce the average number of
fatalities and injuries in confined spaces covered by this standard by
96 percent.
C. Affected Establishments
The final rule affects establishments in several sectors of the
construction industry, including work involving buildings, highways,
bridges, tunnels, utility lines, and other types of projects. Also
potentially affected are general contractors, as well as specialty-
trade construction contractors and employers engaged in some types of
residential construction work.
D. Benefits, Net Benefits, and Cost Effectiveness
OSHA expects the final rule to improve the safety of workers who
encounter confined spaces in construction. The programmatic approach of
the final rule includes provisions for: Identifying confined spaces and
the hazards they may contain; allowing employers to organize the work
to avoid entry into a potentially hazardous space; removing hazards
prior to entry to avoid employee exposure; restricting entry through a
permit system where employers cannot remove the hazard; providing
appropriate testing and equipment when entry is required; and arranging
for rescue services to remove entrants from a confined space when
necessary.
An estimated 6 fatalities and 812 injuries occur annually among
employees involved in construction work in confined spaces addressed by
the provisions of this rulemaking. Based on a review and analysis of
the incident reports associated with the reported injuries and
fatalities, OSHA expects full compliance with the final rule to prevent
96 percent of the relevant injuries and fatalities. Thus, OSHA
estimates that the final rule will prevent approximately 5.2 fatalities
and 780 additional injuries annually. Applying an average monetary
value of $62,000 per prevented injury and a value of $8.7 million per
prevented fatality (value of statistical life) results in estimated
monetized benefits of $93.6 million annually.
OSHA estimated the net monetized benefits of the final rule to be
about $33 million annually when costs are annualized at 7 percent
($93.6 million in benefits minus $60.3 million in costs). Table IV-1
summarizes the costs, benefits, net benefits, and cost effectiveness of
the final rule.
Table IV-1--Net Benefits
[Millions of 2009 dollars]
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7% discount 3% discount
rate rate
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Annualized Costs
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Evaluation, Classification, Information $12.4 $12.2
Exchange and Notification..............
Written Program, Issue Permits, Verify 4.2 4.2
Safety, Review Procedures..............
Provide Ventilation and Isolate Hazards. 2.8 2.7
Atmospheric Monitoring.................. 11.4 11.3
Attendant............................... 3.6 3.6
Rescue Capability....................... 8.2 7.6
Training................................ 11.3 11.3
Other Requirements...................... 6.4 6.3
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Total Annual Costs.................. 60.3 59.2
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Annual Benefits
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Number of Injuries Prevented............................ 780
Number of Fatalities Prevented.......................... 5.2
Monetized Benefits...................................... 93.6
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Net Annual Monetized Benefits (Benefits Less Costs)
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33.3 34.4
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Totals may not equal the sum of the components due to rounding.
Source: Office of Regulatory Analysis, OSHA. Details provided in text.
E. Compliance Costs
The estimated costs of compliance with this rule represent the
additional costs necessary for employers to achieve full compliance.
They do not include costs for employers that are already in compliance
with the new requirements imposed by the final rule; nor do they
include costs employers must incur to achieve full compliance with
existing applicable requirements.
OSHA based the Preliminary Economic Analysis and Initial Regulatory
Flexibility Analysis for the proposed rule, in part, on a report
prepared by CONSAD Corp. [2] \1\ under contract to OSHA. For the final
economic analysis (FEA), OSHA updated data on establishments,
employment, wages, and revenues, and updated the analyses in the final
rule with these new cost inputs. OSHA estimated the total annualized
cost of compliance with the present rulemaking to be between about
$59.2 million (when costs are annualized at 3 percent)
and $60.3 million (when costs are annualized at 7 percent). The final
rule's requirements for employers to evaluate, classify, and exchange
information account for the largest component of the total compliance
costs, at approximately $12.2 million to $12.4 million (when costs are
annualized at 3 and 7 percent, respectively). Other compliance costs
associated with the final rule include costs related to atmospheric
monitoring--($11.3 million to $11.4 million), training ($11.3 million),
rescue capability ($7.6 million to $8.2 million), written programs,
permits, and review procedures ($4.2 million), attendants ($3.6
million),--and ventilation and hazard isolation ($2.7 million to $2.8
million).
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\1\ References are available at the end of this section of the
preamble.
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F. Economic Impacts
To assess the economic impacts associated with compliance with the
final rule, OSHA developed quantitative estimates of the potential
economic impact of the requirements in this rule on entities in each
affected industry. OSHA compared the estimated costs of compliance with
industry revenues and profits to provide an assessment of potential
economic impacts.
The costs of compliance for the final rule are not large in
relation to the corresponding annual financial flows associated with
the regulated activities. The estimated costs of compliance (when
annualized at 7 percent) represent about 0.08 percent (less than 1
percent) of revenues and 1.6 percent of profits, on average, across all
entities. One industry, NACIS 23621 Industrial Building Construction,
showed the potential for compliance costs to exceed 10 percent of
annual profits (10.5 percent), but the Agency concludes that the final
standard is still feasible for this industry because it affects less
than 2 percent of all firms in that industry sector each year, and OSHA
believes that firms engaged in confined spaces work are larger and more
profitable than average. Moreover, OSHA does not believe that
industries will absorb all or most of the final standard costs in lost
profits, as the price elasticity of demand in construction is
sufficiently inelastic for minor price increases to offset costs--here,
a price increase of less than 0.5 percent (or one-half of 1 percent).
OSHA concludes that compliance with the requirements of the final
rule is economically feasible in every affected industry sector.
In addition, based on an analysis of the costs and economic impacts
associated with this rulemaking, OSHA concludes that the effects of the
final rule on international trade, employment, wages, and economic
growth for the United States are negligible.
G. Final Regulatory Flexibility Analysis
The Regulatory Flexibility Act, as amended in 1996 by the Small
Business Regulatory Enforcement Fairness Act, requires the preparation
of a Final Regulatory Flexibility Analysis for certain rules
promulgated by agencies (5 U.S.C. 601-612). Under the provisions of the
law, each such analysis must contain: (1) A statement of the need for,
and objectives of, the rule; (2) a statement of the significant issues
raised by the public comments in response to the initial regulatory
flexibility analysis, a statement of the assessment of the agency of
such issues, and a statement of any changes made in the final rule as a
result of such comments; (3) a response to any comments filed by the
Chief Counsel for Advocacy of the Small Business Administration, and a
detailed statement of any change made to the proposed rule in the final
rule as a result of those comments; (4) a description and an estimate
of the number of small entities to which the rule will apply or an
explanation of why no such estimate is available; (5) a description of
the projected reporting, recordkeeping, and other compliance
requirements of the rule, including an estimate of the classes of small
entities that will be subject to the requirement, and the type of
professional skills necessary for preparation of the report or record;
and (6) a description of the steps the agency took to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule, and why the agency rejected each one of the
other significant alternatives to the rule considered by the agency
which affect the impact on small entities.
OSHA analyzed the potential impact of the final rule on small and
very small entities, as described further under the heading "Final
Regulatory Flexibility Analysis," later in this preamble (see Section
IV). OSHA concludes that the compliance costs are equivalent to
approximately 1.64 percent of profits for affected small entities
generally, and less than approximately 0.10 percent (less than 1
percent) of annual revenues for very small industries, though the
inelasticity of demand in construction would allow the costs to be
offset by price increases in most industries.
II. Background
A. Record Citations
References in parentheses are to exhibits or transcripts in the
docket for this rulemaking. Documents from the subpart AA rulemaking
record are available under Docket OSHA-2007-0026 on the Federal
eRulemaking Portal at http://www.regulations.gov or in the OSHA Docket
Office. The term "ID" refers to the column labeled "ID" under
Docket No. OSHA-2007-0026 on http://www.regulations.gov. This column
lists individual records in the docket. This document will identify
each of these records only by the last three digits of the record, such
as "ID-032" for OSHA-2007-0026-0032. Identification of records from
dockets other than records in OSHA-2007-0026 will be by their full ID
number. In addition, the transcripts for the public hearings OSHA held
on July 22-23, 2008 are identified by the docket number in the record
under Docket No. OSHA-2007-0026-0210 and -0211. To aid readers in
locating citations to the transcripts, this document refers to these
citations using the abbreviation "Tr." and the corresponding page
numbers, such as ID-201, Tr. pp. 10-15.
B. History
On March 25, 1980, OSHA published an Advanced Notice of Proposed
Rulemaking (ANPR) on confined spaces for the construction industry (45
FR 19266). The ANPR posed 31 questions concerning confined-space
hazards in the construction industry, and the Agency received 75
comments in response to these questions. However, OSHA took no further
action on this regulatory initiative at the time.
The Agency subsequently published a Notice of Proposed Rulemaking
(NPRM) for a general industry confined spaces rule on June 5, 1989 (54
FR 24080). OSHA issued the general industry confined spaces rule (29
CFR 1910.146) on January 14, 1993 (58 FR 4462).
The general industry standard requires employers to classify
hazardous confined spaces as "permit-required confined spaces" and to
implement specific procedures to ensure the safety of employees who
enter them. It contains detailed procedures for developing a written
confined-space program, monitoring atmospheric hazards, isolating
physical hazards through lock out tag out procedures, training
employees, preventing unauthorized employees from entering these
spaces, providing rescue (both non entry and entry rescue), and
maintaining records. The general industry standard specifies a limited
exception from some of the permit-required confined-space requirements
when the only hazard in a confined space is an atmospheric hazard and
ventilation equipment will control the atmospheric hazard at safe
levels. It also provides protection to employees from non-atmospheric
hazards (for example, physical hazards) in confined spaces. However,
the general industry standard does not apply to construction employers,
and, as such, does not specify the appropriate level of employee
protection based on the hazards created by construction activities
performed in confined spaces.
In 1993, as part of the litigation activity associated with the
newly promulgated general industry standard, OSHA agreed in a
settlement with the United Steel Workers of America to issue a proposed
rule to extend confined-space protection to construction employees. On
February 18, 1994, OSHA submitted a draft proposed standard for
confined spaces in construction to the Advisory Committee for
Construction Safety and Health (ACCSH) for comment. ACCSH established a
work group on March 22, 1994, to address the OSHA draft proposed
standard and report its findings to the full committee. ACCSH adopted
the work group report on May 17, 1994 and recommended that OSHA
incorporate it into a rulemaking docket. In this report, ACCSH noted
that the general industry standard did not meet the needs of the
construction industry. ACCSH found that employers often do not identify
or classify confined spaces encountered or generated at construction
worksites prior to the beginning of a construction project, and noted
the difficulties faced by employers generally on construction
worksites, where conditions often change rapidly and many different
subcontractors may perform work simultaneously.
Consequently, ACCSH established a work group to draft a proposed
standard that would meet the unique needs of the construction industry.
The draft proposed standard emphasized identifying different types of
confined spaces encountered in construction (for example, spaces in
which the employer isolates all hazards or controls atmospheric hazards
at safe levels, and spaces that are permit-required spaces), as well as
inter-contractor information exchange and the detailed protections
necessary to eliminate or control specific hazards.
As the result of the ACCSH work group review, ACCSH submitted a
draft proposed standard for confined spaces in construction to OSHA in
1996. ACCSH recommended that OSHA use the draft as a proposed confined
spaces standard. OSHA determined that the ACCSH draft proposed standard
needed revision to make it easier to understand, especially for small
employers that do not employ a separate safety staff. The Agency also
determined that the draft proposed standard did not address adequately
certain hazards, such as hazards encountered in sewer-construction
work. Consequently, OSHA determined that it was necessary to develop a
new draft proposed standard.
In 1998, OSHA completed a new draft proposed standard, but
discovered that there were several issues that the Agency needed to
resolve before it could finalize the draft proposed standard. To get
feedback from the construction community, OSHA held three stakeholders
meetings in October of 2000 across the country. The topics discussed at
the stakeholder meetings were: (1) Typical confined spaces encountered
in construction; (2) whether the proposed standard should require an
early-warning system for spaces in which the employer could not isolate
an engulfment hazard (such as in some sewer situations); (3) the need
for, and cost of, continuous monitoring for atmospheric hazards; (4)
how a confined spaces standard for construction could accommodate the
needs of small businesses; and (5) whether the proposed standard should
permit an attendant to perform his or her duties for more than one
confined space at a time.
In late 2003, OSHA completed drafting the proposed standard and
convened a panel under the Small Business Regulatory Enforcement
Fairness Act (SBREFA) to solicit comments on the proposal from small
business entities. The SBREFA panel conducted two conference-call
discussions, which were open to the public, in which small entity
representatives expressed their concerns about the draft proposed
standard; these representatives also submitted written comments to the
record that covered the issues. The SBREFA panel then submitted its
recommendations to the Agency in November 2003.
The Agency published a proposed rule for confined spaces in
construction on November 28, 2007 (72 FR 67351). The proposed confined
spaces standard for construction reflected input from stakeholder
meetings, ACCSH, and the SBREFA review process. For example, OSHA
removed a provision that addressed working in hazardous enclosed spaces
(i.e., spaces designed for human occupancy but subject to a hazardous
atmosphere), which small business entities participating in the SBREFA
review process considered burdensome and unnecessary; OSHA removed this
provision because it believes that existing construction standards (for
example, 29 CFR 1926.55) adequately address these hazards. The proposed
standard used a confined-space classification approach consistent with
the ACCSH recommendations. OSHA organized the proposed standard
chronologically to guide the employer from its initial encounter with a
potential confined space through the steps necessary to ensure adequate
protection for employees. In addition, it addressed the need for
coordination and information exchange at construction sites, which
typically have multiple employers.
The Agency recognized that a number of requirements in the proposed
standard for confined spaces in construction duplicated, or were
similar to, the provisions of the general industry standard for permit-
required confined spaces. Nevertheless, OSHA had concerns about whether
the general industry standard adequately addressed the unique
characteristics of confined spaces in construction. The feedback that
OSHA received from ACCSH, stakeholders, and the SBREFA process
indicated that, compared to general industry, the construction industry
experiences higher employee turnover rates because construction
employees often work at multiple worksites performing short-term tasks.
Unlike most general industry worksites, construction worksites are
continually evolving, with the number and characteristics of confined
spaces changing as work progresses. Also, multiple contractors and
controlling contractors are more common on construction worksites than
general industry worksites. Therefore, a construction standard for
confined spaces, even more so than the general industry standard for
confined spaces, must emphasize training, continuous worksite
evaluation, and communication requirements
Decision to abandon the proposed new classification system and
adapt an alternative that is more similar to the general industry
standard.
During the SBREFA review process, some small entity representatives
urged OSHA to consider adopting the general industry standard for
construction, and to solicit comment on how the Agency could adapt an
alternative standard similar to the general industry standard to the
construction sector. When the Agency published the proposed
construction standard, it requested
public comments on how to adapt an alternative standard similar to the
general industry standard for the construction industry (72 FR 67352,
67401 (Nov. 28, 2007)). During the comment period and the public
hearings OSHA held on July 22-23, 2008, OSHA received many comments and
much testimony regarding the issue of using an adapted version of the
general industry standard as the basis for the final rule rather than
the new classification systems proposed in the NPRM. A clear majority
of comments were in favor of finalizing a confined spaces in
construction standard that more closely resembles the general industry
standard for confined spaces. (See, e.g., ID-032; -047; -075; -088; -
092; -095; -105; -106; -115; -117; -118; -119; -120; -121; -125; 150; -
152; -153; 185; -189; -210, Tr. pp. 54-60, 74-76, 174-175, 282-284; -
211, Tr. pp. 73, 172, and 238-239.) Several commenters proposed
adopting the general industry standard with some adaptations for the
construction context, though not all of these commenters specified, or
agreed on, what specific adaptations were appropriate (see, e.g., ID-
092; -117; -125). The Agency received a number of comments suggesting
that many construction employers were currently following the general
industry confined spaces standard (see, e.g., ID-075; -085; -088; -092;
-095; -112; -117; -118; -120; -121; -125; -147).
For the reasons discussed in the preamble to the proposed rule, and
in light of the comments and testimony the Agency received, OSHA
remains convinced that the general industry standard does not
adequately address confined-space hazards as these hazards arise in the
construction industry. Moreover, the 19 years of experience that
employers have working with the general industry rule, and that OSHA
has enforcing the general industry rule, highlight several areas in
which additional clarification in the language of the general industry
standard could improve the effectiveness of a new construction
standard. Therefore, OSHA is not simply incorporating the general
standard by reference into the construction standards.
OSHA believes that the particular duties and obligations in the
general industry standard and the proposed construction standard are
similar, and that the public's confusion over the re-organized
structure in the proposed rule is the result of the degree of detail in
the proposed rule, as well as its organization. Most notably, compared
to the general industry rule, the proposed rule added specificity to
the general industry standard's broad, performance-based requirements,
and defined a larger number of confined-space classifications.
Nevertheless, in recognition of the commenter requests for more
consistency between the two standards, OSHA is using the organization,
language, and most of the substantive requirements in the general
industry confined spaces standard as the basis for the final confined
spaces in construction rule. However, differences in employee and
worksite characteristics between the construction industry and general
industry, as well as the comments and testimony of the regulated
community indicating the need for consistency and continuity in OSHA
requirements, prompted OSHA to develop a final rule for confined spaces
in the construction industry that contains important requirements from
the proposed rule and some additional changes. Many of these changes,
such as the information exchange requirements, are designed to address
the heightened need, on constantly evolving construction worksites for
communication, worksite evaluation, and training for confined spaces in
construction. In addition, several regulatory provisions in the general
industry rule differ from the regulatory provisions of this final rule
because the provisions of this final rule: (1) Address construction-
specific issues; (2) account for advancements in technology; (3)
address concerns raised by the regulated community through comment and
at the hearing; or (4) reflect improvements in language for modern
regulatory drafting ("must" in place of "shall"), clarity and
enforcement considerations. In most cases, the preamble that follows
this introductory section explains the differences between the
provisions of the final rule and the general industry rule.
The Agency believes that it provided adequate notice of the
substantive terms of the final rule, as well as an extensive
description of the subjects and issues involved. Accordingly, the
Agency fairly apprised interested persons of the content of the
rulemaking, and the comments and hearing testimony provide ample
evidence that interested parties to the rulemaking understood the
issues and potential outcomes of the rulemaking. See, e.g., Nat'l
Mining Ass'n v. Mine Safety & Health Admin., 512 F.3d 696, 699 (D.C.
Cir. 2008); Miami-Dade County v. U.S. E.P.A., 529 F.3d 1049, 1059 (11th
Cir. 2008); United Steelworkers of America, AFL-CIO-CLC v. Marshall,
647 F.2d 1189, 1221 (D.C. Cir. 1980) ("a final rule may properly
differ from a proposed rule and indeed must so differ when the record
evidence warrants the change. . . . Where the change between proposed
and final rule is important, the question for the court is whether the
final rule is a 'logical outgrowth' of the rulemaking proceeding").
The resulting final standard is a logical outgrowth of the proposal,
and the number of comments urging an adapted version of the general
industry standard provides a clear indication that the affected members
of the public are not only familiar with the general industry standard,
but also viewed the inclusion of part or all of the general industry
standard's structure and language as a potential outcome of this
rulemaking. The confined-space issues the Agency addresses in the final
rule are the same as in the proposed rule, and the Agency addressed the
criticisms and suggestions made by interested parties in response to
the proposed rule. In short, the combination of OSHA's request for
comment on the approach that it ultimately adopted in the final rule,
the explanation of the hazards it sought to address in proposal, and
the comments and testimony received in response to the proposal
provided the regulated community with adequate notice regarding the
outcome of the rulemaking. Therefore, the Agency concludes that there
is no basis for further delaying promulgation of the standard to obtain
comment on the approach adopted in this final rule.
Many of the comments OSHA received on the proposal related to
specific requirements included in the detailed procedures of the
proposed standard. As a result of finalizing a confined spaces in
construction standard that closely resembles the general industry
standard, much of this detailed language does not appear in this final
rule. In some cases, OSHA addressed the substance of the comment in the
discussion of the most relevant preamble section in this final rule. In
other instances, the issue raised in the comment became moot as a
result of OSHA's decision not to include the proposed text in the final
rule. Therefore, OSHA is not directly responding to each of these
particular comments in the summary and explanation of the final rule.
OSHA considered, but ultimately rejected, several other regulatory
alternatives based on the comments submitted to the Agency. For
example, some commenters suggested that employers should have the
option of following either 29 CFR 1910.146 or this final rule (ID-089,
p. 2; -147, p. 4). This suggestion relates to some commenters' concern
that having separate rules for confined spaces in construction and
general industry makes it confusing for employers that perform both
construction and maintenance inside a confined space to comply with the
different requirements of each rule based on the type of the work they
are performing (see, e.g., ID-119, p. 3). OSHA developed this standard
because of the unique hazards of confined-space work in construction
and, although this final rule is similar to Sec. 1910.146, there are
differences when certain procedures are necessary to protect employees
from the unique hazards of construction confined-space work. Therefore,
an employer does not have the option of bypassing the procedures that
are unique to this final rule by complying instead with Sec. 1910.146.
Such a policy would severely undermine OSHA's effort to protect
employees from the unique hazards present during confined-space
operations in construction.
OSHA recognizes that the differences between Sec. 1910.146 and
this final rule can make it more complicated for employers to comply
with two different sets of procedures if they perform maintenance and
construction work at the same time in the same confined space. In order
to ease the compliance burden on these employers, OSHA will consider
compliance with this final rule as compliance with Sec. 1910.146. This
enforcement policy was suggested by at least one commenter (ID-211, Tr.
p. 303).
Another commenter suggested that OSHA issue a directive on
confined-space work in construction instead of a final rule (ID-100, p.
5). OSHA generally issues a directive on a particular work practice
after the Agency issues a rule, not in lieu of a rule; accordingly, the
directive provides guidance as to how the Agency will enforce a
standard. The rulemaking process, on the other hand, provides the
public with notice and an opportunity to comment on the Agency's
proposed action, and the Agency may use the information gathered during
this process to impose substantive duties on employers, such as
employers engaged in confined-space construction work. The information
gathered by the Agency during the rulemaking process for this final
rule supports issuing a final rule for confined-space work in
construction. Therefore, OSHA rejects the alternative approach
suggested by the commenter.
A different set of commenters focused on individual states'
confined spaces standards. One commenter asserted that several State-
Plan States have effective confined space standards and that this rule
will unnecessarily force those states to change these standards (ID-
135, p. 3). A similar comment discussed Virginia's confined spaces
rule, but did not suggest OSHA adopt that rule (ID-047, p. 1). Another
commenter suggested OSHA adopt the majority of California's confined
spaces rule (ID-077, p. 1). OSHA notes that the Occupational Safety and
Health Act of 1970 (OSH Act) allows for different regulatory schemes to
address the hazards of confined-space work provided those standards are
at least as effective as the Federal OSHA standard. The record
indicates that, by issuing a final rule that is similar to Sec.
1910.146, OSHA is not drastically changing industry practice for
addressing confined-space hazards. (See, e.g., ID-047; -075; -085; -
088; -092; -095; -112; -117; -118; -120; -121; -125; -147; -189.)
Therefore, OSHA believes that State-Plan States that have standards
applicable to construction work in confined spaces that are similar to
Sec. 1910.146 will not have to make major changes to their existing
rules to ensure that these rules are at least as effective as this
final rule. When a State-Plan State's confined spaces rule is not as
effective as this final rule, OSHA believes that the record warrants a
change in the State-Plan State's rule so that it will provide
construction employees with the same level of protection afforded to
them by this final rule. For a full discussion of State-Plan States,
see Section IV.E ("State-Plan States") later in this preamble.
C. Need for a Rule Regulating Confined Spaces in Construction
Before promulgating this final rule, OSHA had one existing
provision in its construction standards that included a general
training requirement for employers working in confined spaces. A broad
"safety and training" requirement in 29 CFR 1926.21(b)(6), adopted by
the Agency in 1979, provided limited guidance: Under this provision,
employers were only required to instruct employees required to enter
into confined or enclosed spaces as to the nature of the hazards
involved, the necessary precautions to be taken, and in the use of
protective and emergency equipment required. Fatality and injury data,
OSHA enforcement experience, and advice from ACCSH indicate that Sec.
1926.21(b)(6) did not adequately protect construction employees in
confined spaces from atmospheric, physical, and other hazards. Even
when Sec. 1926.21(b)(6) applied, it required employers only to train
employees who work in confined spaces--it did not address how to
protect trained employees while they are working in such spaces, nor
did it address the actions of employers outside the spaces engaged in
activities that might harm employees inside the spaces. For situations
in which none of the construction standards apply, the employer was
still required to comply with the general-duty requirement of the OSH
Act to "furnish to each of [its] employees employment and a place of
employment which are free from recognized hazards that are causing or
are likely to cause death or serious physical harm to [its] employees"
(29 U.S.C. 654), but this "general duty" is often more difficult for
OSHA to enforce and does not provide the same level of guidance and
safety information provided in a standard.
As noted in the economic analysis section of the preamble to this
final rule, OSHA determined that employees in the construction industry
who perform work in confined spaces face a significant risk of death or
serious injury, and that this final rule would substantially reduce
that risk. At present, OSHA estimates that 20,479 establishments
annually have employees entering at least one confined space as defined
by this final rule. OSHA estimates that, each year, 6 fatalities and
900 injuries occur among employees working in confined spaces covered
by this final rule. OSHA determined that the final rule, when
implemented properly by employers, will reduce the average number of
fatalities and injuries in confined spaces covered by this standard by
96 percent (5.2 fatalities prevented annually, and 780 injuries
prevented annually). (For further explanation of the significant-risk
calculations, see section V.B. ("Final Economic Analysis and
Regulatory Flexibility Analysis") of this document.)
III. Summary and Explanation of the Final Standard
Explanation of Changes to Subpart V--Power Transmission and
Distribution
Subpart V of part 1926 governs construction work involving power
transmission, generation, and distribution. OSHA recently updated
subpart V (79 FR 20316 (April 11, 2014). When it did so, OSHA required
compliance with the general industry confined-spaces standard at Sec.
1910.146 in several provisions of subpart V. OSHA did so because at
that time there was no comprehensive confined-spaces standard for
construction, but the Agency explained in the subpart V preamble that
"the references to the general industry standard in final Sec.
1926.953 are included as a placeholder
pending the promulgation of the confined spaces in construction
standard. OSHA intends to change these references to refer to the
construction standard when it promulgates that standard." (79 FR
20376) OSHA is, therefore, amending subpart V in this rulemaking to
replace references to the general industry confined spaces standard
with references to this final construction rule, because OSHA
specifically tailored this final rule to construction work, making the
confined spaces in construction rule more appropriate than the general
industry standard for construction work addressed by subpart V.
Amendments to Definition of "Enclosed Space" in Sec. 1926.968
An "enclosed space" is a term of art under subpart V and the
corresponding general industry standard for electric power generation,
transmission, and distribution (Sec. 1910.269) describing a workspace
such as a manhole or vault that is designed for periodic employee entry
under normal operating conditions, and that, under normal conditions,
does not contain a hazardous atmosphere, but may contain a hazardous
atmosphere under abnormal conditions (Sec. 1910.269(x) and Sec.
1926.968). There is overlap between an enclosed space and a "permit-
required confined space" (permit space) as defined in the confined
spaces standards for general industry (Sec. 1910.146) and construction
(new subpart AA): An enclosed space meets the definition of a permit
space--while it is not expected to contain a hazardous atmosphere, it
has the potential to contain one--but the definition of permit-space is
broader than the definition of enclosed space. For instance, if a space
contains a hazardous atmosphere under normal conditions, that space is
a permit space under Sec. 1910.146 or new subpart AA, but it is not an
enclosed space under final Sec. 1910.269 or subpart V.
The note to the definition of "enclosed space" in Sec.
1910.269(x) states that enclosed spaces expected to contain a hazardous
atmosphere meet the definition of permit spaces in Sec. 1910.146, and
entry into them must conform to that standard. Subpart V, however, did
not have any definition of "enclosed space" until OSHA amended it in
2014 by adding a definition that matched the general industry
definition in Sec. 1910.269(x) except that it did not include the
note. OSHA explained in the preamble to the subpart V amendments that
it did not include the note at that time because there was no
comprehensive corresponding confined spaces construction standard to
reference in place of Sec. 1910.146, but OSHA intended to add a
corresponding note to Sec. 1926.268 when it promulgated the new
construction confined spaces standard (see 79 FR 20376-20377). As part
of this rulemaking, OSHA is therefore adding a note to the definition
of "enclosed space" in Sec. 1926.968 that corresponds to the note in
Sec. 1910.269(x), replacing the reference to Sec. 1910.146 with a
reference to subpart AA.
Amendments to Sec. 1926.953
Prior to this rulemaking, Sec. 1926.953(a) in subpart V, as
amended in 2014, required that entry into an enclosed space to perform
construction work meet the permit-space entry requirements of
paragraphs (d) through (k) of Sec. 1910.146 when the precautions taken
under Sec. Sec. 1926.953 and 1926.965 were insufficient to eliminate
hazards in the enclosed space that could endanger the life of an
entrant or interfere with escape from the space. Similarly, Sec.
1926.953(g) stated that employees may not enter any enclosed space
while it contains a hazardous atmosphere, unless the entry conforms to
the permit-required confined spaces standard in Sec. 1910.146. OSHA is
amending Sec. Sec. 1926.953(a) and 1926.953(g) by replacing each
reference to Sec. 1910.146 with a reference to subpart AA so that the
appropriate construction standard, rather than a general industry
standard, will apply.
OSHA is also adding a sentence to Sec. 1926.953(a) to clarify that
employers may comply with the requirements of Sec. 1926.953 "in lieu
of" most of the requirements in new subpart AA when the entry into the
enclosed space is a routine entry for subpart V work and there is no
hazardous atmosphere in the space. Without this clarifying sentence,
employers could have been confused about which standard applied. OSHA
determined that Sec. 1926.953 provides adequate protection to
employees in that situation and announced in the subpart V preamble
that it intended to add the sentence when it issued this final rule
(see 79 FR 20376).
The new "in lieu of" sentence in Sec. 1926.953(a) corresponds to
a similar sentence in Sec. 1910.269(e) specifying that employers are
not required to comply with Sec. 1910.146(d) through (k) for the same
type of routine entries into enclosed spaces. OSHA has used slightly
different wording from the language in Sec. 1910.269 to emphasize that
"in lieu of" language is only applicable where the entry is routine
and the space does not contain hazards that could cause death or impede
exit. As with the general industry standard, the new sentence in Sec.
1926.1953(a) only exempts employers from compliance with some, but not
all, of subpart AA's requirements. In the "in lieu of" sentence in
Sec. 1910.269, OSHA only excuses employers from compliance with Sec.
1910.146(d) through (k) for these routine entries, but employers must
still comply with the requirements in Sec. 1910.146(c) and (l),
including the requirements to assess the space, prevent unauthorized
entry, communicate with and coordinate with the host employer when
applicable, and to involve entrants and their representatives in the
process. Likewise, in Sec. 1926.953(a), the enclosed spaces
requirements apply in lieu of the permit requirements in Sec.
1926.1204 through Sec. 1211, but employers still need to comply with
subpart AA's corresponding requirements in Sec. 1926.1203 to assess
the space, prevent unauthorized entry, and coordinate with and
communicate with the controlling contractor, in addition to the
requirements in Sec. 1211 to involve entrants and their
representatives in the process.
Finally, in addition to some minor, non-substantive grammatical
changes to improve the paragraph, OSHA is also revising the note to
paragraph Sec. 1926.953, which appears at the end of the section, by
replacing its reference to Sec. 1910.146 with a reference to new
subpart AA. The note clarifies that OSHA considers employers who comply
with new subpart AA when entering an enclosed space as in compliance
with Sec. 1926.353(a). Some employers may prefer to comply with new
subpart AA rather than Sec. 1926.353(a), and subpart AA protects
employees entering enclosed spaces at least as effectively as the
provisions in Sec. 1926.353.
Section 1926.1201--Scope
The scope of new 29 CFR part 1926, subpart AA--Confined Spaces in
Construction is set forth in 29 CFR 1926.1201. This subpart provides
minimum safety and health requirements and procedures to protect
employees who work in confined spaces. It addresses how to protect
employees from confined-space hazards. The final rule includes
requirements for training, identification and assessment of confined
spaces, hazard analysis, entering, working, exiting, and rescue for
confined spaces containing a variety of different hazards.
The proposed rule contained an "Introduction" section that
provided a general overview of the standard and stated that the
proposed standard would cover "working within or near a confined space
that is subject to a
hazard" (see proposed Sec. 1926.1201(a)). OSHA removed the
"Introduction" section to make this final rule similar to Sec.
1910.146, and to avoid confusion caused by potential overlap with the
"Scope" provisions. Section 1926.1201 in the final rule is the scope
section.
Paragraph (a). Although many commenters urged OSHA to conform this
final rule to the general industry standard as much as possible, the
scope section for confined spaces in general industry at Sec.
1910.146(a) expressly excludes construction work. Therefore, it is
impractical for OSHA to change the language in final rule Sec.
1926.1201 to mirror Sec. 1910.146(a). Instead, OSHA structured the
scope section in final rule Sec. 1926.1201 in a manner that draws from
the language in the scope sections of the general industry standard and
the proposed rule. As with the scope of the general industry standard,
which states that it protects employees from the hazards of entry in
permit-required confined spaces (Sec. 1910.146(a)), OSHA phrased final
Sec. 1926.1201(a) in terms of the employees protected by the final
standard. In contrast, the scope of the proposed rule focused on
employers (see proposed Sec. 1926.1202(a)). While the final standard
necessarily imposes the duties exclusively on employers, OSHA concluded
that phrasing the scope in terms of employers "who have confined
spaces at their job site" was potentially more problematic than the
general industry approach because the regulated community could
misinterpret the proposed language as requiring some analysis of the
extent to which the employer exercised control over a particular part
of a construction site.
A number of commenters expressed confusion about the description of
the standard included in the proposed introduction, which appeared to
function as an additional statement about the scope of the rule (see,
e.g., ID-032.0; -100.1; -105.1; -114.1; -119.1; -120.1; -125.1; -
135.0.) In particular, many commenters asserted that the reference to
work "within or near a confined space," as used in the proposed
description of the standard, was too vague, and requested that OSHA
clarify its meaning. (See, e.g., ID-031, p. 4; -061, p. 7; -095, p. 1;
-101, p. 2; p. 1; -106, p. 1; -117, p. 7; -120, p. 2; -121, p. 8; -124,
p. 4; p.-125, p. 5.) In response, OSHA did not include the phrase
"within or near a confined space" in the scope section in this final
rule. Instead, in final Sec. 1926.1201(a), OSHA describes the scope in
more definite terms by stating that the new standard protects employees
engaged in construction activities at a worksite with one or more
confined spaces, which is similar to the language of the proposed rule
except that it avoids the reference to "their job site." The language
in final Sec. 1926.1201(a) incorporates a bright-line test (whether or
not the worksite has a confined space) to underscore two important
points in the final rule that also are true for the general industry
standard and the proposed rule: First, all employers engaged in
construction have a duty under the final standard to ensure that their
employees do not enter a confined space except in accordance with the
requirements of the standard, and the presence of a confined space on
the worksite triggers this duty rather than the type of work the
employer is performing. Second, there are critical components of this
standard, such as information sharing and coordination of work, that
apply to certain employers that, regardless of whether their employees
are authorized to enter a confined space, have information necessary
for the protection of employees working inside confined spaces, or are
engaged in activities that could, either alone or in conjunction with
activities inside the confined space, endanger the employees working
inside a confined space. Final Sec. 1926.1201(a) makes it clear that
the focus of the final standard is on the type of work performed, and
whether that work could produce, and expose employees to, confined
space hazards. Although final Sec. 1926.1201(a) differs slightly from
proposed Sec. 1926.1202(a), this difference does not affect the scope
of the final rule; it merely makes the scope more precise than the
scope of the proposed rule. This change also is consistent with the
proposed "Introduction" section in proposed Sec. 1926.1201(a).
Final Sec. 1926.1201(a) includes a note with a non-exhaustive list
of potential confined spaces that commonly occur on a construction
worksite. This list provides examples for employers who may be
unfamiliar with confined spaces in construction. The note to final
Sec. 1926.1201(a) is identical to the note to proposed Sec.
1926.1202(a).
One commenter asserted that OSHA should exclude steel tanks, which
OSHA included in the list of examples of confined spaces in
construction in the proposed rule, from the new standard when the tanks
are under construction because this activity does not produce an
atmospheric hazard (ID-138, p. 2; -214.1, p. 4; -210, Tr. p. 217). In
particular, the commenter asserted that contractors typically do not
close entirely steel tanks under construction until the final phase of
construction and that, prior to the final phase, the tanks typically
have sufficient natural ventilation to prevent a hazardous atmosphere
from forming. The final phase is typically conducted without any
employees inside the tank (ID-210, Tr. p. 5).
Whether a confined space exists is a separate analysis from whether
a hazard exists, unless the hazard prevents unrestricted egress from
the space. A steel tank is a confined space at any stage of
construction when it has limited or restricted means for entry and exit
(see the definition of a confined space in Sec. 1926.1202, which is
discussed later in this preamble). However, OSHA recognizes that a
significant portion of steel-tank construction activity may not result
in work inside a confined space if contractors generally do not
assemble the tank sections in a manner that would place an employee
inside a space with limited egress. Even when construction of the tank
results in such a space, the space may not contain a hazard that would
render it a permit-required confined space. If the space is not a
permit-required confined space, then the employer's duties are very
limited. In such spaces, the employer's responsibility under this
standard would be limited to verifying what the commenter asserts is
true: There is no atmospheric hazard or other hazard. Nevertheless, the
commenter acknowledged that welding activities in some steel tank
construction, particularly for relatively small tanks, could produce
the types of hazardous atmospheres this standard is intended to address
(ID-210, Tr. pp. 228-229). Thus, OSHA is not categorically excluding
steel tanks from coverage under this standard and continues to include
steel tanks in the list of potential confined spaces to alert employers
that the process of steel-tank construction could place employees in a
space that meets the definition of a permit-required confined space.
Another commenter asserted that the note did not include wind
turbines (ID-210, Tr. p. 154). This commenter misunderstood the
reference to "turbines" in the note in the proposed and final rules.
The reference to "turbines" is general, and applies to all turbines
that meet the definition of a confined space.
It is important to note that only the presence of a hazard inside a
confined space will trigger the majority of procedures required by this
final rule. One commenter asserted that limited egress is a continual
hazard to every employee in a confined space, regardless of whether any
other hazards exist (ID-060, p. 3). Therefore, the
commenter argued that the permit requirements of this final rule,
including the requirement to have a rescue service available, should
apply to all confined spaces, even those spaces in which another hazard
does not exist. This approach would apparently treat all confined
spaces as permit spaces, which would be a radical departure from OSHA's
longstanding treatment of confined spaces in the general industry. OSHA
does not agree that such a departure, or the additional costs that
employers would incur because of such departure, are warranted in the
absence of employee exposure to some hazard inside the confined space.
Limited egress in a confined space is a safety concern only when an
employee cannot readily exit a confined space to avoid being exposed to
a hazard within the space. Limited egress, by itself, is unlikely to
injure or kill an employee. If limited egress is the only safety
concern, then OSHA concludes that it is not reasonable to require
employers to comply with the provisions of this final rule that pertain
to permit spaces. In such a circumstance, employers already must follow
existing construction standards that apply to work in an enclosed space
(for example, Sec. 1926.353--Ventilation and protection in welding,
cutting, and heating at, and Sec. 1926.55--Gases, vapors, fumes,
dusts, and mists).
Another commenter noted that the shipyard employment standard at 29
CFR part 1915 includes confined spaces requirements and was unsure
whether this new construction standard will apply to confined space
construction work performed in a shipyard (ID-028, p. 1). It will. OSHA
focuses on the type of work activity, not necessarily the location of
the work activity, in determining whether this confined spaces in
construction standard or the shipyard employment standard, part 1915,
applies. See, e.g., Feb. 9, 2004, letter to Jack Swarthout.\2\ The
shipyard employment standards apply to ship repairing, shipbuilding,
ship breaking, and related employment. This confined spaces in
construction standard covers confined space work in shipyards to the
extent that it is construction work and is not ship repairing,
shipbuilding, ship breaking, or related employment. An example in which
this confined spaces in construction standard applies is the
construction of a building on the grounds of a shipyard. Non-
construction work performed in a shipyard is not subject to this final
rule; either Sec. 1910.146 or the shipyard employment standard at 29
CFR part 1915, subpart B--Confined and Enclosed Spaces and Other
Dangerous Atmospheres in Shipyard Employment would cover such work.
---------------------------------------------------------------------------
\2\ All of the letters and memoranda included in this preamble
are available at www.osha.gov.
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Paragraph (b) Exceptions. This paragraph explicitly excludes
construction work regulated by 29 CFR part 1926, subpart Y--Diving,
construction work regulated by 29 CFR part 1926, subpart P--Excavation,
and construction work regulated by 29 CFR part 1926, subpart S--
Underground Construction, Caissons, Cofferdams and Compressed Air from
the scope of this final rule. Accordingly, this provision exempts
employers operating under one of the three listed exemptions from
complying with this final rule for work within a confined space, so
long as that work falls within the scope of one of the listed subparts.
The Agency exempted each type of work covered by the listed
subparts from the requirements of this standard because OSHA
specifically tailored the existing requirements in these subparts to
protect employees from the hazards associated with confined spaces. In
addition, OSHA believes that overlapping standards covering these
activities could be unnecessarily burdensome to employers, or cause
some confusion about the appropriate procedures to use.
Under Sec. 1926.1201(b)(3), this confined spaces standard does not
apply to construction activities covered by 29 CFR part 1926, subpart
Y, which encompasses diving and related support operations conducted in
connection with all types of work and employments, including
construction (29 CFR 1926.701, referencing 29 CFR 1910.401). As defined
in subpart Y, a "diver" is an employee working in water using
underwater apparatus which supplies compressed breathing gas at the
ambient pressure (Sec. 1926.701, referencing Sec. 1910.402). The
Agency notes that, if a diver engages in construction activity in an
area that meets the definition of a confined space under this final
rule, and is not working in water or removes his/her underwater
breathing apparatus, then, in most cases, the activity is outside the
scope of subpart Y because the employee is no longer a "diver"; in
such a case, the requirements of this confined spaces standard apply
instead.
The other exemptions set forth in final Sec. 1926.1201(b) are
identical to the proposed exemptions except that OSHA removed the
"non-sewer" limitation for the exemption that applies to 29 CFR part
1926, subpart P--Excavations and 29 CFR part 1926, subpart S--
Underground Construction. Under Sec. 1926.1201(b)(1) and (b)(2), OSHA
exempted construction activities covered by subparts P and S. In its
explanation in the proposed rule, the Agency noted that subparts P and
S generally provide adequate protections against hazards in excavations
and underground work (72 FR 67356 (Nov. 28, 2007)). In light of the
additional hazards associated with sewers as continuous systems that
often have hazardous atmospheres and engulfment hazards, the Agency
proposed limiting the Excavations, and Underground Construction
exemptions to "non-sewer" work, which would have the effect of
applying this final standard, in addition to subpart P or subpart S,
whenever an employer performed excavation or trenching construction
work related to a sewer system. One commenter urged OSHA to limit the
exemption further, characterizing subpart P as "insufficient for
addressing potential worker exposures to hazardous atmospheres," and
asserting that this final rule should apply to excavations where a
hazardous atmosphere exists because the confined spaces standard would
provide more comprehensive protection for employees than the excavation
standard (ID-105, p. 5). The commenter did not, however, provide any
basis for this assessment. Two commenters emphasized the significance
of the hazards posed by excavation, and urged OSHA to protect employees
from those hazards; however, they did not discuss subpart P--
Excavations and did not provide a clear rationale for why those
standards do not provide adequate protection for employees working in
excavations (ID-032, p. 4; -034, p. 1).
A different commenter asserted that OSHA should apply the confined
spaces standard to hazards in excavation work not covered by the
excavation requirements (ID-025, p. 2). In other words, OSHA should
exempt excavation work unless there is a hazard present not addressed
by subpart P--Excavations, but addressed by this confined spaces
standard, in which case the confined-space requirements applicable to
addressing that specific hazard would apply. The commenter did not
provide an example of a hazard that could be present in excavations but
not addressed by subpart P. Also, OSHA believes that the approach
advocated by the commenter would lead to confusion, and may not promote
safety. OSHA designed the confined spaces standard to work as a
comprehensive system, not through piecemeal application. Therefore,
OSHA concludes that it is
not appropriate to limit the exemption as requested by the commenter.
Another commenter asserted that the excavation standards in subpart
P do not provide protection against hazards associated with applying
waterproofing products on building foundations below grade level (ID-
106). OSHA disagrees with this commenter. Even assuming that the
particular waterproofing product used would constitute an atmospheric
hazard, 29 CFR 1926.651(g) requires an employer to test for atmospheric
hazards and to take adequate precautions to protect employees
accordingly.
Most of the commenters who addressed the issue of the potential
overlap between this final standard and the excavation and underground
construction requirements in subparts P and S, respectively, requested
that OSHA expand the exemption to exclude all work subject to those
standards from the scope of the final rule, regardless of whether the
excavation or underground work connects to a sewer, because other OSHA
standards, primarily subpart P, adequately cover such work (ID-060, p.
1; -108, p. 2; -117, p. 6; -124, p. 3; -140, p. 6; -143, p. 1). One of
these commenters noted that subpart P's requirements "include testing
the trench/excavation(s) before workers enter them when a hazardous
atmosphere exists or could reasonably be expected to exist (e.g.
excavations near landfills or in areas where hazardous substances may
be stored) and providing proper respiratory protection or ventilation
to prevent exposure to harmful levels of atmospheric contaminants and
to assure acceptable atmospheric conditions," and also include
appropriate rescue provisions (ID-117, pp. 6 and 7). Furthermore,
several of the commenters asserted that applying both this final rule
and the excavation standards to work inside all excavations would
result in a confusing and disjointed regulatory scheme that could
reduce employee safety (ID-060, p. 1; -108, p. 2; -117, p. 6; -140, p.
6). OSHA agrees with these comments and, therefore, the Agency excluded
all excavation work from the scope of the final rule (see Sec.
1926.1201(b)(1)).
Although the exemption in the final rule may be broader than the
proposed exemption because the final rule does not cover underground
sewer work and sewer excavation work, the expanded exemption is still
consistent with OSHA's intent in the proposed rule. In proposing to
apply the confined spaces standard to all sewer work, the Agency
emphasized the extraordinary dangers associated with sewer systems,
including the difficulties in isolating hazards in a contiguous system,
and the extremely hazardous atmospheres that can develop in sewers and
quickly cause fatalities. These dangers, however, primarily involve
existing sewer structures, rather than construction of new sewer
systems; new systems would not necessarily present such hazards until
connected to an existing sewer system. Under this final rule, the
limitations on the scope of subparts P and S will ensure that the
confined-space requirements apply to most construction work within
existing sewer structures, as explained in the following discussion of
the interaction between this confined spaces standard and subparts P
and S. In the context of sewer work, the principal hazards associated
with the excavation work around the sewer lines are likely to be
atmospheric hazards that arise from the soil surrounding an existing
sewer pipe (from leaching or other sources), as well as potential
hazards associated with the release of hazardous substances from the
sewer pipe. These hazards are similar to the hazards encountered during
excavation and underground work near landfills and water mains that
OSHA exempted from coverage in the proposed rule because OSHA regarded
the protections of subparts P and S as sufficient (see 72 FR 67356).
OSHA considered the common scenario in which an employer digs down
to an existing sewer line, then excavates a new trench in which it lays
new sewer pipe and connects it to an existing sewer line. During the
"tie in" process of connecting the new sewer pipe to the existing
sewer line, employees could potentially be exposed to atmospheric
hazards and physical hazards emanating from the existing sewer line.
While any entry into the existing sewer line, including placing any
part of the body inside existing line (see definition of "entry" in
Sec. 1926.1202), would be governed by the confined spaces standard,
OSHA does not believe that hazards from the existing sewer line should
subject the entire excavation project to the confined spaces standard.
Employers already have a duty under subpart P to address the
atmospheric and physical hazards in the excavation, and employers must
anticipate and address the hazards that might come from the existing
sewer line. Employers must use extreme caution in unsealing the
existing sewer line. Before opening the existing line, employers must,
whenever possible, isolate the existing line to be opened from the rest
of the sewer and ensure that employees are removed from the excavation.
Based on the record, OSHA concludes that subparts P and S are also
sufficient to address the hazards associated with excavation work
around sewers and the construction of new sewers, while the confined
spaces standard will address the work inside the sewer pipes where the
atmospheric and physical hazards are greatest.
Clarification of the Scope of Subparts P and S
OSHA does not intend for this final standard to overlap with 29 CFR
part 1926, subpart P or 29 CFR part 1926, subpart S. Each of these
standards contains specific provisions addressing many of the same
hazards that could arise in the same space. The Agency is, therefore,
taking this opportunity to clarify the scope of subparts P and S
relative to the scope of this final confined spaces standard, thereby
simplifying the regulatory scheme for employers working in these
spaces.
Subpart P applies to "all open excavations made in the earth's
surface," including trenches (Sec. 1926.650(a)). For example, the
work of digging trenches, shoring up the trenches, and placing a sewer
pipe or other materials into the trenches are subject to subpart P.
When an employer is excavating a trench to install a new storm drain,
subpart P applies to all excavation and trenching activities. The final
confined spaces standard applies, however, to non-excavation work
within a confined space located in an excavation, as this work would
expose employees to additional hazards besides excavation-related
hazards. For example, this final standard covers entry into a
prefabricated storm drain, other pipe, or manhole even if located at
the bottom of an open excavation.
Subpart S applies to the construction of underground tunnels,
shafts, chambers, and passageways and cut-and-cover excavations which
are both physically connected to ongoing underground construction
operations within the scope of the subpart, and covered in such a
manner as to create conditions characteristic of underground
construction (Sec. 1926.800(a)(1)). For subpart S to apply, "the
tunnel or other underground structure must be under 'construction."'
See October 1, 2010, letter #20061017-7300. For example, the
construction of an underground structure by boring a tunnel through
soil and providing the concrete or metal supports necessary to preserve
the opening is subject to subpart S, as are structural modifications
such as upgrading a
tunnel wall to construct a new structure following a collapse.\3\ OSHA
developed subpart S to protect employees from the hazards associated
with the construction of underground structures, and OSHA concludes
that the subpart S standard provides more appropriate protections in
these situations than this final confined spaces standard.
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\3\ OSHA previously determined that the underground construction
requirements in subpart S also apply to tunnels placed underwater.
See August 8, 2002, memorandum to K. Frank Gravitt. This new
confined spaces standard does not affect that previous
determination. However, this confined spaces standard does cover
construction work that occurs inside an underwater tunnel following
the initial construction of that tunnel.
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In the context of underground work, this final standard applies
mainly to construction activities inside an existing underground
confined space, as opposed to the initial construction of that
underground space.\4\ Examples of activities covered by this confined
spaces standard include: installing a structure within an existing
tunnel, working inside a large pipe or vault located within an existing
sewer tunnel, laying a new cable inside an existing sewer tunnel,
upgrading a grate in an existing sewer system, installing a new lining
in a sewer pipe, adding tile or grout or other sealant to an existing
concrete tunnel, or attaching equipment to the walls of an existing
tunnel.\5\ OSHA recognizes that, in large underground construction
projects, the distinction between an existing portion of a tunnel and
the construction of a new tunnel might not be clear when the same
employees are working to construct a tunnel, or employees add equipment
or structures to tunnel walls at the same time they are digging the
tunnel. To avoid requirements that could potentially cause confusion
and extra burdens by forcing employers to switch back and forth between
different standards during the same general tunnel-construction
project, OSHA will treat non-structural work performed in conjunction
with initial construction of an underground space as covered by subpart
S. For example, if employees install a cable as part of the initial
sewer tunnel-construction project, subpart S would cover both the
employees engaged in tunnel construction and those engaged in cable
installation. Otherwise, the result would be different employees
working on the same construction project in the same space, but under
different standards with significantly different requirements.
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\4\ Note that the distinctions discussed here are solely for the
purposes of determining which construction standard applies. This
discussion does not impact OSHA's analysis of whether an activity
constitutes construction work as opposed to maintenance work.
\5\ OSHA notes that in a 1991 memorandum the Agency applied
subpart S to the "rehabilitation" of a sewer tunnel originally
completed in 1932. January 21, 1991, memorandum to Michael Connors.
OSHA issued the memorandum before it issued either this standard or
the general industry standard for confined spaces, and, thus, before
it had reason to consider potential overlap between a confined
spaces standard and other construction standards, or could point to
any other employee protections. Depending on the extent of the
"rehabilitation" and the activities involved, the new confined
spaces standard may apply instead to such projects in the future.
For example, subpart S would cover the "rehabilitation" of an
existing tunnel that involves expansion of the existing sewer or an
improvement of a collapsed wall. However, this final confined spaces
standard would cover "rehabilitation" that consists of adding
sealant to the existing tunnel structure, or attaching equipment or
new materials to the tunnel walls. To the extent that the 1991
memorandum requires a different result, this final standard
supersedes it.
---------------------------------------------------------------------------
One commenter representing homebuilders asserted that house
foundations and basement excavations become "trenches" when
contractors construct formwork, foundations, or walls, and, therefore,
subpart P, rather than the final confined spaces standard, should cover
these work areas (ID-117, pp. 6 and 7). According to the commenter,
OSHA should not consider this type of work area a confined space
because it is subject to natural ventilation. Whether a work area is
subject to natural ventilation is not dispositive in determining
whether the area meets the definition of a confined space in final
Sec. 1926.1202. However, if the work is "excavation" work or
"trench" work under subpart P, then this final rule would not apply.
OSHA agrees that subpart P, and not this confined spaces standard,
would apply to the construction of most house foundations in an
excavated area until the contractor backfills the area adjacent to the
foundation or otherwise covers the foundation or the other areas.
However, depending on the particular circumstances at the worksite,
once the backfill or other covering occurs, the area inside the
foundation space could be a confined space subject to this final rule
if it meets all of the criteria in the definition of a confined space
in Sec. 1926.1201.
Other Requests for Exemptions
1. Home Construction
One commenter requested that OSHA exempt the following areas from
coverage under this standard: attics, crawl spaces, basements,
cabinets, and "similar areas in home building" (ID-117, pp. 6 and 7).
The commenter's rationale for these exemptions was that these spaces
"do not contain hazardous atmospheres or engulfment hazards" (id).
The commenter did not provide any basis for the assertion that these
areas are inherently free of the identified hazards, and OSHA does not
agree that these spaces are always inherently free from such hazards.
Hazardous gases or other substances may occur in almost any confined
space. For example, one employee may store or apply an epoxy or other
chemical in a crawl space, which could expose that employee or a
subsequent entrant to a hazardous atmosphere. A different commenter
noted that surface coatings such as paints and epoxies are seemingly
stable, and, while generally undetectable through air monitoring once
applied and dried, could result in significant safety and health
hazards to employees who are welding or involved in other hot work in a
confined space (ID-213.1, pp. 6 and 7).
Moreover, hazardous atmospheres and engulfment hazards are only two
types of hazards that could cause death or serious injury to employees
in a confined space. The commenter requesting the exemption did not
provide any indication that the spaces would be free of physical
hazards that could trap, kill, or seriously injure the employees. In
fact, the final economic analysis for this rule cites several
fatalities that resulted from exposure to physical hazards (generally
electrical) in crawlspaces under homes. Therefore, a categorical
exemption for these types of spaces is inappropriate, and would be
inconsistent with the purpose of the standard.
However, while a categorical exemption is not appropriate, OSHA
anticipates that, in new construction, employers may be able to
organize work practices to avoid placing workers in areas that meet the
definition of a confined space (for example, complete work in what will
eventually become a crawl space before constructing the overhead
portion of the crawl space, apply insulation to an attic floor before
the underlying ceiling below it is installed, complete basement work
before the overhead structure is installed or after stairways are in
place). Furthermore, if the commenter is correct that the majority of
the spaces it identified do not contain a hazardous atmosphere or other
hazards, then the employer would have only a limited duty under this
standard because a permit program would not be necessary if the spaces
do not contain such hazards. Accordingly, employers would only need to
identify the spaces and ensure that the confined spaces remain free of
hazards.
2. 29 CFR Part 1926, Subpart V Work
Commenters representing the electric utilities asserted that OSHA
should not
require employers engaged in 29 CFR part 1926, subpart V work to follow
two different confined spaces standards (ID-112, pp. 3 and 4; -134, p.
2; -210, Tr. pp. 106-108, 142). These commenters stated that general
industry electric-utility work practices are similar to construction
electric-utility work practices. OSHA addresses the commenters'
preference to have identical confined-space provisions applicable to
both general industry and construction earlier in this preamble where
the Agency explains why it chose to adopt a modified version of the
general industry standard as the confined spaces in construction final
rule. As discussed there, OSHA will also treat compliance with this new
rule as compliance with the general industry confined spaces rule when
one or more employers are engaged in both general industry work and
construction work at the same time in the same space.
To the extent that the commenters were requesting that OSHA exempt
all subpart V work from all of the new confined-space requirements in
final subpart AA, OSHA declines to do so. First, the general industry
standard includes no such broad exemption, and the record does not
indicate why electric-utility industry work in confined spaces is less
hazardous or otherwise less suitable for coverage by a confined spaces
standard than the work of any other industry. The general industry
electric power generation, transmission, and distribution rule, Sec.
1910.269, does not exempt that industry from the general industry
confined-space requirements at Sec. 1910.146: to the contrary, the
"enclosed spaces" provision in Sec. 1910.269(e) expressly requires
employers to comply with the requirements in Sec. 1910.146 when the
enclosed-space entry will not be routine in nature or the space
contains a hazardous atmosphere that cannot be controlled through the
steps specified in Sec. 1910.269(e).
As explained earlier in this preamble, OSHA anticipated in its
recent amendments to the corresponding construction rule, 29 CFR part
1926, subpart V--Electric Power Generation, Transmission, and
Distribution; Electrical Protective Equipment, that the confined spaces
in construction standard would provide the parallel integral
protections to employers engaged in construction work that involves
conducting non-routine entries into enclosed spaces, or where the
enclosed spaces contain hazards that are not controlled by the enclosed
spaces requirement (see Sec. 1926.953(a) and its explanation at 79 FR
20375-20376).). OSHA explained that the enclosed spaces provisions in
Sec. 1926.953(a) are only intended to address routine entries with a
limited type of hazard, while the general industry confined spaces
standard (which the Agency noted it intended replace with the
construction version in this final rule) applies to all other entries
into enclosed spaces. The confined space standard "ensures that
employees working in enclosed spaces will be afforded protection in
circumstances in which the Subpart V provisions are insufficiently
protective" (79 FR 20376). If OSHA exempts employers engaged in
subpart V work from the confined spaces standard, it would be creating
a regulatory gap that is not present in the general industry context.
The commenter asserted that electric utility work in "power
generation facilities and other electric utility installations" is
sufficiently similar that OSHA has previously acknowledged it should be
regulated in the same manner, regardless of whether the employer is
engaged in construction or general industry activity (ID-112.1, p. 4-
5). To the extent that this commenter is requesting greater consistency
between the construction rule and the general industry rule, OSHA has
provided that in this final rule. To the extent that this commenter is
requesting an exemption from the construction standard so that it could
comply instead with the general industry standard, OSHA disagrees
because such an approach would result in a regulatory gap. Section
1910.146 is a general industry standard that, by its own terms, could
not apply to construction activities beyond the scope of the previous
Sec. 1926.953 incorporation, but that incorporation of Sec. 1910.146
was limited: it only applied to routine entries into enclosed spaces.
Not all enclosed spaces are permit-required confined spaces and not all
entries are routine. Further, while in general industry, "routine"
entries for maintenance work covers a relatively broad range of
activities, in the context of construction work a "routine" entry
would be much narrower. In practice, a complete exemption from the new
construction rule for confined spaces would leave many subpart V
workers completely unprotected from the hazards in many confined
spaces.
Paragraph (c)--Other Standards. This final rule replaces the
confined spaces training requirement previously specified in Sec.
1926.21(b), but does not replace any other construction standards.
Rather, OSHA developed this final rule to work in conjunction with
other construction standards to provide additional protections needed
to address hazards that may arise when employees are working in or near
a confined space. No requirement in this confined spaces final rule
supplants or diminishes employer duties imposed by any other OSHA
standard, and the Agency included Sec. 1926.1201(c) in this final
standard to emphasize that point. When both the scope of final Sec.
1926.1201 and the provisions in another OSHA construction standard
related to confined-space hazards cover an activity, OSHA requires
employers to comply with both provisions (Sec. 1926.1201(c)). For
example, while 29 CFR part 1926, subpart D--Occupational Health and
Environmental Controls contains requirements for ventilation when
working in potentially hazardous atmospheric conditions, it does not
address other equipment or workplace conditions covered by this final
rule. Therefore, where a potential hazardous atmosphere exists and this
final confined spaces rule requires ventilation to control that hazard,
the employer must ventilate in accordance with Sec. 1926.57. However,
the remaining provisions of this confined spaces rule will still apply:
for example, if the situation requires rescue, the employer must
provide rescue in accordance with this final rule.
In the preamble to the proposal, OSHA also discussed the overlap of
the confined-spaces standard with its construction welding standard in
subpart J of 29 CFR part 1926. The Agency explained that both standards
would apply, noting for example that subpart J sets criteria for the
use of a lifeline system in the confined space, but does not set
criteria for the use of rescue services or provide the same level of
procedures and controls for permit-required confined spaces (72 FR
67356 (Nov. 28, 2007)). OSHA designed the welding standard to protect
employees solely from the hazards of welding, which include metal fume,
gases, and smoke hazards associated with the welding process, physical
hazards from the welding device or contact with the hot welding
surface, potential explosion of the gas tanks, and hazards from working
with specific materials. The confined-spaces standard, however,
addresses a wider range of hazards than the welding standard, and OSHA
considers the confined-spaces standard more detailed and comprehensive
than the welding standard in its protection of employees from those
other hazards for purposes of 29 CFR 1910.5(c).\6\ Although the
welding standard has a section designed to address the hazards of
welding in a confined space, the Agency is applying the provisions of
the confined-spaces standard to all other hazards associated with
confined-spaces work to the extent these provisions of the confined-
spaces standard do not conflict with employee protections in subpart J.
Therefore, as OSHA explained in the proposal, the rescue service and
entry procedures must meet the requirements of this confined-spaces
standard, while the employer must use a lifeline system as required to
meet the criteria in subpart J. Specifically, employers must comply
with the requirements of Sec. 1926.1203(c) to prevent unauthorized
entry, and the subpart AA requirements to implement a permit program
(including posting a permit) to provide for entry in accordance with
Sec. Sec. 1926.1203(d), 1926.1204, 1926.1205, and 1926.1206. Employers
must comply with the ventilation requirements in Sec. 1926.353(a) of
subpart J to address atmospheric hazards produced by welding fumes, but
employers also must comply with Sec. 1926.1204(c), which requires
ventilation as necessary to control any atmospheric hazards beyond
those generated by welding because the welding standard does not
address those hazards. Employers also must comply with the
identification, assessment, and information-exchange and coordination
requirements in Sec. 1926.1203(a), (b), and (h), and the relevant
training required by Sec. 1926.1207. Employers must develop a rescue
plan in accordance with Sec. 1926.353(b)(3) of subpart J, but also
must assess and select a rescue service in accordance with Sec. Sec.
1926.1204(i) and 1926.1211(a) and (c), and equip and train its in-house
rescue services pursuant to Sec. 1926.1211(a) and (b). Finally,
employers must comply with additional confined-spaces requirements not
addressed in the welding standard, such as the requirement to make
Safety Data Sheets available to the medical facility treating any
entrant exposed to hazardous substance (Sec. 1926.1211(d)), and the
employee-participation requirements in Sec. 1926.1212.
---------------------------------------------------------------------------
\6\ The OSHA regulation addressing the overlap of different
standards is in 29 CFR 1910.5. Paragraph (c)(1) of that regulation
states that if a particular standard is specifically applicable to a
condition, practice, means, method, operation, or process, it shall
prevail over any different general standard which might otherwise be
applicable to the same condition, practice, means, method,
operation, or process. Paragraph (c)(2), however, provides that any
standard shall apply according to its terms even though particular
standards are also prescribed for the industry to the extent that
none of such particular standards applies. The Agency interprets
this regulation in this context to mean that the welding standard is
the more specific standard addressing welding hazards and,
therefore, applies to welding activities even when conducted in
confined spaces; however, several provisions of the confined-spaces
standard apply to confined-space hazards not addressed by the
welding standard (see examples later in this paragraph), and
employers must comply with these provisions when their employees are
exposed to these hazards during confined-space operations.
---------------------------------------------------------------------------
Subpart D--Occupational Health and Environmental Controls, at Sec.
1926.64(f)(4) and (j), discussed above, and in subpart V--Power
Distribution and Transmission, at Sec. 1926.950(a), provide other
examples of potential overlap with existing standards. In general, the
final confined-spaces standard applies to hazards not addressed by
subpart V. Subpart V generally protects employees from electrical
hazards but does not necessarily address a hazardous atmosphere or
other physical hazards in the confined space; the requirements of the
confined-spaces standard address those hazards, and employers must
comply with these requirements during confined-spaces operations. For
example, in Sec. 1926.953 of subpart V OSHA specifically addresses the
overlap between the "enclosed spaces" requirements of subpart V and
the confined spaces standard, mandating compliance with the confined-
spaces requirements when hazards remain even after an employer has
complied with all of the measures described in subpart V.
Language in proposed Sec. 1926.1202(d) not included--Statement on
other duties of controlling contractors. Proposed Sec. 1926.1202(d)
contained a statement that the information-sharing requirements in the
rule do not limit a controlling contractor's responsibilities under any
other provisions of the rule or the OSH Act, including those
responsibilities described in OSHA Directive CPL 02-00-124: Multi-
Employer Citation Policy (Dec. 10, 1999). The proposed rule text listed
several specific examples of controlling contractor duties.
OSHA is not including that statement or any equivalent statement in
the final rule for several reasons. First, such a statement is
unnecessary because it is only a reminder that OSHA has a wide variety
of health and safety standards that could apply to various activities
of controlling contractors and host employers, depending on their
activities and responsibilities. OSHA does not typically include such a
reminder in the regulatory text of its standards. For example, OSHA
does not include a similar statement in the general industry confined
spaces standard even though that standard includes specific duties for
host employers, and the host employers could also have additional
duties under other standards or if they qualify as controlling
employers or exposing employers under OSHA's multi-employer citation
policy.
Second, OSHA is concerned that the regulated community will view
the inclusion of such a statement in this standard as implying that
standards without the same statement preempt other potentially
applicable standards or policies. OSHA did not intend such an
implication, and it does not have the time or resources to revise all
of its standards to include this statement.
Third, several commenters found fault with the statement in the
proposed rule. One commenter noted the statement was incomplete because
it addressed controlling contractors, not host employers (ID-117, p.
19). Another commenter implied that the statement would not be helpful
unless it listed all of the other potential duties to which controlling
contractors could be subject (ID-211, Tr. p. 76).
1926.1202--Definitions
Final rule Sec. 1926.1202 provides definitions for key words used
to describe the requirements of this final rule. OSHA adopted most of
the definitions from its general industry confined spaces standard (29
CFR 1910.146); most definitions also are generally consistent with the
voluntary consensus standard on confined spaces, ANSI Z117.1-2003.
Unless otherwise noted, these definitions are applicable only to this
confined spaces in construction standard; OSHA added an introductory
statement to that effect in Sec. 1926.1202 of the final rule. OSHA
took many of the definitions of the terms used in final rule Sec.
1926.1202 from other OSHA construction standards; the Agency included
these definitions in this final rule to minimize the need to reference
those other standards.
Several commenters objected that some of the definitions of terms
used in the proposed confined spaces in construction standard were
different than the definitions for identical terms in the general
industry confined spaces standard at Sec. 1910.146(b) (ID-086, p. 3; -
112, p. 7; -147, pp. 2-3). For the reasons set forth in section II.B
(History) of this preamble, in the final rule OSHA revised many of
these definitions so that the terms are consistent with the general
industry terms defined at Sec. 1910.146(b): entry, entry supervisor,
hazardous atmosphere, immediately dangerous to life and health, permit-
required confined space, rescue service, retrieval system, and testing.
In addition, OSHA included some terms in the Definitions section of
this final rule not defined in the proposed rule, but defined in the
general industry confined spaces standard at
Sec. 1910.146(b), including: acceptable entry conditions, hot work,
inerting, line-breaking, non-permit confined space, and prohibited
condition. Again, for the reasons explained in preamble section II.B
(History), OSHA made definitions of these terms in this final rule
consistent with Sec. 1910.146(b). In general, OSHA defined the terms
identically to the general industry standard or revised the definition
slightly to make grammatical improvements or to clarify the meaning of
the term. When OSHA deviated substantively in the final definition from
the term as defined in Sec. 1910.146(b), the Agency explains its
reasons for doing so in the individual preamble paragraph addressing
that definition.
One commenter urged OSHA to define certain terms exactly as ANSI Z-
117.1-.2003 defines the terms (ID-086, p. 3). The Agency does not agree
that such an approach is appropriate. The commenter did not explain why
the definitions as proposed were inappropriate, how the change would
improve safety, or why the consensus standard was preferable to the
longstanding definitions in the general industry standard that most
commenters supported. OSHA selected the definitions in this final rule
specifically for the activities and equipment covered by this final
rule and, to the extent possible, to be consistent with the definitions
in Sec. 1910.146(b) so as to reduce confusion among the regulated
community and facilitate compliance. In many cases, the ANSI standards
were not as clear or comprehensive as the final language, and therefore
less preferable for a mandatory and legally enforceable standard.
Some commenters also noted that OSHA proposed definitions for many
terms not defined in Sec. 1910.146(b) (ID-112, p. 9; -147, pp. 2-3).
These commenters did not, however, specifically object to these
definitions, identify errors, suggest improvements, or otherwise give a
reason why OSHA should not include these definitions in the final rule.
In this regard, the final standard uses some terms, such as early
warning system and controlling contractor, not used in the general
industry confined spaces standard. The general industry confined spaces
standard uses other terms not defined in Sec. 1910.146(b). In general,
for definitions in either of these categories, OSHA made the definition
in this final rule identical to the definition in the proposed rule.
When the Agency includes in the final rule a definition that does not
have a parallel definition in the general industry standard, and when
the Agency revises a definition from the proposed definition, it
explains the reasons for its decision below in the discussion
accompanying that definition.
OSHA also decided not to include several of the proposed
definitions, such as definitions of contractor, controlled atmosphere
confined space, and isolated hazard confined space in this final rule
because OSHA did not use these terms in this final rule. In addition,
the final rule does not include a definition of "protect" or
"protection" because the Agency believes these terms, as used in this
final rule, are sufficiently clear from their ordinary use. The general
industry standard uses these terms without definition. In addition, the
general industry standard does not include a definition of "control,"
but OSHA is including a definition of this term in this final rule to
clarify that ventilation and other atmospheric controls provide some
level of worker protection, even if such measure are not fully
protective.
OSHA believes that the construction industry readily understands
most of the defined terms in the final rule because these terms are
self-explanatory or are consistent with the definitions used in Sec.
1910.146 and ANSI 117.1-2003. Nevertheless, OSHA includes an expanded
discussion for several of the defined terms, and, when necessary,
explains differences between the definition in the final rule and the
definitions contained in either the proposed rule or Sec. 1910.146(b).
The Agency also addresses comments on terminology received during the
SBREFA process and the public comment period, including comments made
through testimony during the public hearing.
1. Defined Terms
Acceptable entry conditions means the conditions that must exist in
a permit space, before an employee may enter that space, to ensure that
employees can safely enter into, and safely work within, the space. The
definition differs slightly from the definition of the term in Sec.
1910.146(b). OSHA added "before an employee may enter that space" to
clarify that employers are to measure and determine "acceptable entry
conditions" before entry. Once entry occurs, the employer must
continue to monitor the permit space and terminate the entry if a
prohibited condition (i.e., a condition that is not an "acceptable
entry condition") arises. (See the discussion of final Sec.
1926.1204(c)(1) for an explanation of how an employer must consider the
work it will perform inside a confined space when identifying
"acceptable entry conditions.") In the NPRM, OSHA defined "planned
condition" in a similar manner. In the final rule, OSHA uses and
defines the term in the same manner as the general industry standard to
provide consistency between the two standards.
Attendant means an individual stationed outside one or more permit
spaces who assesses the status of authorized entrants and who must
perform the duties specified in Sec. 1926.1209--Duties of Attendants.
The general industry definition of "attendant" refers to an attendant
who performs "all attendant duties assigned. . .." In the final
construction rule, the attendant's duties are specified in Sec.
1926.1209--Duties of Attendants. OSHA refers to an attendant's
responsibility to "assess," rather than "monitor" as in the general
industry standard, because "monitor" is a term of art in the new
standard (but not under the general industry standard). However, there
is no substantive difference from the definition in the general
industry standard.
Authorized entrant means an employee who is authorized by the entry
supervisor to enter a permit space. The general industry rule defines
"authorized entrant" based on who the employer authorizes to enter
the permit space. OSHA shifted the focus to who the entry supervisor
authorizes to enter the space to avoid confusion about who the
authorizing employer is on a multi-employer worksite. This revision
clarifies that an entry supervisor has the duty to identify the
authorized entrants on the entry permit, regardless of whether or not
they are employees of another employer.
Barrier means a physical obstruction that blocks or limits access.
One commenter suggested that OSHA place a note under the definition of
"barrier" explaining that a barrier does not block or limit egress
(ID-025, p. 2). This revision is unnecessary because there are
provisions in the final rule that require employers to provide
unobstructed egress when employees are inside a confined space. For
example, final rule Sec. 1926.1204(d)(7) requires an employer to
provide equipment needed for safe egress from a Permit-Required
Confined Space ("PRCS" or "permit space"), and final rule Sec.
1926.1208(e) requires the authorized entrant to exit a PRCS as quickly
as possible under certain circumstances. Therefore, an employer would
be in violation of this final rule when a barrier that prohibits or
limits persons from entering a PRCS from outside the space also
prohibits or limits
egress for authorized entrants seeking to exit the permit space, even
though the definition of "barrier" does not address egress
explicitly. Locking a bolt on a door that is the only means of egress
from a permit space, for example, could constitute a prohibited barrier
that would interfere with egress from the permit space.
Blanking or blinding means the absolute closure of a pipe, line, or
duct by fastening a solid plate (such as a spectacle blind or a skillet
blind) that completely covers the bore, and that is capable of
withstanding the maximum pressure of the pipe, line, or duct with no
leakage beyond the plate. OSHA took this definition directly from Sec.
1910.146, and uses this term the same way in this final rule as in the
general industry standard.
Competent person means a person capable of identifying existing and
predictable hazardous conditions, and who has the authority to address
them promptly. Section 1926.1203 of the proposed rule did not use or
define "competent person," but required the employer to identify and
assess confined spaces. Several commenters suggested that OSHA clarify
that a competent person make these determinations, and to include in
the final rule the same definition for "competent person" as the one
contained in other OSHA construction standards (ID-025, p. 2; -028, p.
4; -095, p. 2; -124, p. 7; -150, p. 3). OSHA agrees with these
commenters and, therefore, added its customary definition to the final
rule. OSHA uses this well-known definition in several of its
construction standards. See, e.g., Sec. Sec. 1926.32(f), 1926.450(b),
1926.650(b), 1926.751, and 1926.1401; see also the discussion of final
Sec. 1926.1203(a) for a further explanation of why OSHA included a
competent person requirement in this final rule.
Confined space means a space that: (1) Is large enough and so
configured that an employee can bodily enter it; (2) has limited or
restricted means for entry and exit; and (3) is not designed for
continuous employee occupancy. OSHA based the definition of "confined
space" on the definition of "confined space" in the general industry
confined spaces standard at Sec. 1910.146(b). It describes a space
where three elements exist. First, the configuration of the space is
such that a person can enter into it with his/her entire body (although
the "entry" occurs as soon as any part of the body crosses into the
confined space).\7\ Second, there is limited or restricted entry or
exit from the space. Third, the space is not designed for continuous
employee occupancy.
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\7\ See March 5, 2008, letter to Andrew Lewis (no confined space
where it is impossible for employee to fit his entire body into the
space); October 18, 1995, letter to Charles M. Bessey (entry occurs
when any part of the body breaks the plane of the opening of a space
large enough to allow full entry, regardless of intent to fully
enter).
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OSHA is not including in the definition of "confined space" in
the final rule the requirement that employees be able to "perform
assigned work," which it included in the general industry definition
in Sec. 1910.146(b). OSHA did not include this phrase in this final
standard because it was superfluous, and to avoid arguments that it
added ambiguity. Some in the regulated community might attempt to
interpret the phrase incorrectly to suggest that this final standard,
and the majority of the protections provided by the standard, would not
apply if the entrant did not have an assignment to perform on entering
the space, or if the employee was unable to perform work inside the
space. Therefore, this final rule addresses confined spaces in terms of
the hazards present, rather than the purpose for entering the space. By
removing the unnecessary language from the proposed definition of
"confined space," OSHA makes it clear that this final standard covers
any entry into a confined space. This does not imply that "performed
assigned work" has a substantive meaning in the general industry
standard; OSHA is simply taking the opportunity to improve the language
of the definition as it proposed. OSHA did not include the "perform
assigned work" language in the proposed definition of "confined
space" adopted in this final rule, and received no comment on the
absence of that language.
The final definition also includes an additional change from the
general industry standard. The definition of "confined space" in
Sec. 1910.146(b) contains examples of different types of confined
spaces in a parenthetical to the second part of the definition. OSHA
did not include this parenthetical in this final rule to avoid
confusing these examples with a note to Sec. 1926.1201(a) that
provides a more comprehensive, but not exclusive, list of examples of
confined spaces.
One commenter asserted that the proposed definition of a confined
space is too broad because it includes attics, crawlspaces, cabinets,
unfinished basements, swimming pools, window wells or utility closets
that contain water heaters in single-family residential homes, but
those spaces "do not present the kind of risk the standard is intended
to address." (ID-117, p. 5). Although some of these spaces could meet
the definition of a confined space, the Agency does not agree that this
definition is too broad. As noted earlier when OSHA rejected the same
commenter's request for a complete exemption from the standard, the
commenter provides no support for the assertion that these spaces do
not present the kind of risks this standard is addressed and the crawl-
space fatalities included in the final economic analysis clearly
demonstrate that these spaces are not inherently safe. OSHA defined the
term broadly to ensure that employers perform the requisite evaluation
to determine whether a known or potential hazard exists in those
spaces. The majority of the requirements of this final rule would apply
only if a known or potential hazard is found to exist in the confined
space, but the initial assessment required by this standard is crucial
to discovering whether such hazards are present. Therefore, an employer
performing construction work inside attics or any of the other spaces
noted by this commenter must comply with only the reevaluation
provisions in this final rule when no atmospheric or physical hazard
exists in a confined space. If an employer does not wish to conduct an
evaluation, then the employer can either prevent its employees from
entering the space or design the construction process to avoid the need
for entry into a confined space.
One commenter expressed confusion as to the meaning of the third
element of the confined space definition: "not designed for continuous
employee occupancy" (ID-119, p. 5). The third element captures all
spaces where conditions are such that employees would normally exit the
space relatively soon after entering, absent the construction activity.
When determining whether a space is designed for continuous occupancy,
it is appropriate to focus on the design of the space and whether that
space is still configured as designed. See October 22, 1993, letter to
Robert Bee; December 20, 1994, letter to Edward Donoghue; June 22,
1995, letter to Dan Freeman (noting difference between the "primary
function" and "design" of a confined space). For example, if a space
that meets the definition of a confined space has a powered ventilation
system that allows for continuous occupancy, but that system is not
functional or the construction activity would interfere with the proper
function of that system, then the space would be a confined space
subject to this final standard. See
October 27, 1995, letter to William Taylor.
The same commenter also asked for additional examples of confined
spaces (ID-119, p. 5). The note in final rule Sec. 1926.1201(a)
provides examples of locations where confined spaces may occur. In
addition, OSHA notes that numerous letters of interpretation are
available providing additional guidance as to the meaning of a
"confined space" in the context of the general industry standard.
OSHA is adopting into its construction rule the guidance regarding the
definition of a confined space provided by the letters of
interpretation referenced in the previous paragraph. In addition, the
following letters apply with respect to the definition of a confined
space in this final standard as they did to the general industry
standard: September 19, 1994, letter to Edward Donoghue Associates,
Inc. (elevator pit can be a confined space); June 15, 1992, letter to
George Kennedy (storm sewer manhole entrance can be a confined space);
July 11, 1995, letter to Alan Sefton (entry by a robot does not trigger
the standard); October 23, 1995, letter to Mark Arriens (roll off
container, dump truck bed, and truck trailer can be confined spaces);
October 27, 1995, letter to James Sharpe (entry limited if employee
must bend down to avoid striking the top of an opening or step over a
raised threshold); February 8, 1996, letter to Remi Morrissette
(personnel airlock can be a confined space when both sets of doors
cannot open at the same time); April 24, 1998, letter to Gregory Faeth
(30-inch deep chest-type freezer not a confined space when person can
simply stand up to get out); December 2, 2002, letter to Art Varga
(dock leveler pit can be a confined space); March 8, 2005, letter to
Ron Sands (box van of truck is not a confined space as normally used
and configured). The Agency notes, however, that any guidance
previously provided with respect to its previous confined spaces in
construction standard, 29 CFR 1926.21, is no longer applicable or in
effect. See, e.g., July 10, 2006, letter to John Williams II.
One commenter requested that OSHA clarify the distinction between
an "enclosed space" and a "confined space," and another commenter
suggested that OSHA provide additional discussion of the hazards of an
"enclosed space" in this final rule (ID-119, p. 6; -140, p. 4). As
OSHA stated in the preamble to the proposed rule, the Small Business
Advocacy Review Panel recommended that OSHA examine the benefits and
costs associated with provisions addressing hazardous-enclosed spaces
(72 FR 67398 (Nov. 28, 2007)). Consequently, the Agency decided not to
include any new or additional requirements for hazardous-enclosed
spaces in the final rule. Instead, OSHA relies on existing standards,
such as Sec. 1926.55--Gases, vapors, fumes, dusts, and mists, to
address the hazards of working inside enclosed spaces. OSHA Technical
Information Bulletin 02-05-30 is available to employers who are looking
for guidance on the particular hazards of working in enclosed spaces.
For example, this bulletin states that the OSHA respirator standard may
apply when employees are working in enclosures that do not meet the
definition of "confined space."
Another commenter questioned the inclusion of spaces equipped with
ladders or stairways for employee entry or exit in the proposed
definition of "confined space" (ID-013, p. 5). Both the proposed and
final definitions of "confined space" include "limited or
restricted" entry or exit. A space where an employee can enter or exit
only with the use of a stairway or a ladder, like an attic, generally
meets this definition of a confined space. See, e.g., October 27, 1995,
letter to James Sharpe. The following guidance provided earlier by OSHA
with respect to the general industry standard definition of this term
also is applicable to this construction standard:
Ladders, and temporary, movable, spiral, or articulated stairs
will usually be considered a limited or restricted means of egress.
Fixed industrial stairs that meet OSHA standards will be considered
a limited or restricted means of egress when the conditions or
physical characteristics of the space, in light of the hazards
present in it, would interfere with the entrant's ability to exit or
be rescued in a hazardous situation.
OSHA Directive CPL 02-00-100: Application of the Permit-Required
Confined Spaces (PRCS) Standards, 29 CFR 1910.146 (May 5, 1995),
Appendix E.
OSHA also clarified in the context of the general industry confined
spaces standard that, although the Agency does not generally consider
doorways and other portals through which a person can walk to be
limited means of entry or exit, it may deem a space containing such a
door or portal to be a confined space if the door or portal hinders an
entrant's ability to escape from the confined space in an emergency
(see 59 FR 55208 (Nov. 4, 1994)). The same interpretation applies in
the construction context. OSHA provided the following explanation in
its compliance directive on the general industry rule, which also
applies in the construction context:
A space has limited or restricted means of entry or exit if an
entrant's ability to escape in an emergency would be hindered. The
dimensions of a door and its location are factors in determining
whether an entrant can easily escape; however, the presence of a
door does not in and of itself mean that the space is not a confined
space. For example, a space such as a bag house or crawl space that
has a door leading into it, but also has pipes, conduits, ducts, or
equipment or materials that an employee would be required to crawl
over or under or squeeze around in order to escape, has limited or
restricted means of exit. A piece of equipment with an access door,
such as a conveyor feed, a drying oven, or a paint spray enclosure,
will also be considered to have restricted means of entry or exit if
an employee has to crawl to gain access to his or her intended work
location. Similarly, an access door or portal which is too small to
allow an employee to walk upright and unimpeded through it will be
considered to restrict an employee's ability to escape.
OSHA Directive CPL 02-00-100: Application of the Permit-Required
Confined Spaces (PRCS) Standards, 29 CFR 1910.146 (May 5, 1995),
Appendix E.
Another commenter asked OSHA to clarify whether a space that is
temporary can still meet the definition of a confined space in the
final rule (ID-136, p. 2). For example, the commenter asserted that a
space constructed for the sole purpose of allowing employees to
temporarily work over the end of a large open gas pipe could qualify as
a confined space. In this particular example, the commenter emphasized
the need for an employer to address the hazard of establishing an
oxygen-deficient atmosphere as a result of purging the pipe with
nitrogen.
OSHA agrees that a temporary space, including the temporary space
provided in the commenter's example, can be a "confined space." The
fact that the space described by the commenter is temporary does not
prevent the space from meeting the definition of a confined space in
this final rule. The temporary character of the space may be the most
readily apparent factor in determining whether a temporary space would
permit continuous employee occupancy.
OHSA did not define the term "contractor" in the final rule, as
it did in the proposed rule. One commenter recognized that OSHA's
proposed definition of "contractor" excluded controlling contractors
(ID-099, p. 1). To simplify the terminology used throughout the
standard, to address the inconsistency identified by the commenter, and
to avoid other confusion with the term "controlling contractor," OSHA
is using terms more precisely in the final rule. OSHA uses
the term "employer" to refer generically to employers, including
employers that meet the final rule's definitions of "controlling
contractor" or "host employers." OSHA also added the term "entry
employer" to refer to employers performing confined-space entry. As
discussed elsewhere in this preamble the Agency also is using
"controlling contractor" and "host employer" to refer to other
specific types of employers when necessary.
Control, as defined in this final standard, is an action taken,
through engineering methods, to reduce the hazard level inside a
confined space, including the maintenance of this reduced hazard level.
This definition is consistent with the use of the term in the general
industry confined spaces standard, although OSHA did not define the
term in Sec. 1910.146(b). The proposed rule's definition of
"control" provided isolation as an example of a control action.
However, controlling a hazard provides less protection to an employee
than isolating the hazard because it does not result in the elimination
or removal of the hazard. For example, ventilation is a control method
that merely reduces the hazard level below its Permissible Exposure
Limit (PEL) or Lower Explosive Limit (LEL) for the duration needed to
protect employees in or near a confined space. Therefore, OSHA deleted
the reference to isolation from the final standard to clarify the
distinction between control and isolation. Otherwise, the final
standard defines the term as proposed.
Controlling contractor is the employer that has overall
responsibility for construction at the worksite. In addition, the note
to this definition explains that, if a host employer has overall
responsibility for construction at the worksite, then the host employer
also is the controlling contractor under this final rule. The final
rule's definition of "controlling contractor" is identical to the
proposed rule's definition. The general industry confined spaces
standard does not use the term "controlling contractor" and,
therefore, Sec. 1910.146(b) does not define the term.
OSHA included a definition of "controlling contractor" in this
final rule because it is a common practice in construction work for a
number of employers to be working at a construction site at the same
time. Also, there often is one employer that has overall authority over
the construction site, including the authority to change worksite
conditions, set schedules, and alter work practices with regard to
safety. This definition is nearly identical to the definition of the
term as used in the OSHA's Steel Erection standard at 29 CFR part 1926,
subpart R. The definition reflects the core principle of general
supervisory control over the construction site. Under this final rule,
OSHA clarified the responsibilities of different employers on the site
and assigned specific duties to the controlling contractor, as
distinguished from the host employer and the other employers (see final
Sec. 1926.1203(h)). Consequently, there is a need to define the term
"controlling contractor."
Some commenters were unsure whether an employer with no contractual
authority for the overall safety of a project could qualify as a
"controlling contractor" (ID-106, p. 2; -129, p. 2). Another
commenter asserted that an employer will have extreme difficulty
exercising the control required by the standard without explicit
contractual authority to do so (ID-120, p. 2). The facts and
circumstances present at the job site determine whether an employer is
a controlling contractor under this final rule: explicit contractual
authority is sufficient to indicate a controlling contractor, but the
absence of contractual authority is not definitive. In this regard,
OSHA intends the controlling contractor's authority to be established
in the same manner that a controlling employer's authority is
established under OSHA's Multi-Employer Citation Policy. For more
information about the role of the controlling employer, see OSHA
Directive CPL 02-00-124: Multi-Employer Citation Policy.
Double block and bleed means the closure of a line, duct, or pipe
by closing and locking or tagging two in-line valves and by opening and
locking or tagging a drain or vent valve in the line between the two
closed valves. This can be done to eliminate the potential for
substances in the sections of the pipes to enter the space. OSHA took
this term directly from Sec. 1910.146. The proposed definition was
different grammatically, and also specified the exact position in which
the closures were to be locked or tagged, but there is no substantive
difference between the final language and the language in the proposed
rule.
Early-warning system is the method used to alert attendants, as
well as authorized entrants in a permit space, that an engulfment
hazard may be developing. Examples of early-warning systems include:
alarms activated by remote sensors and lookouts with equipment for
immediately communicating with the authorized entrants and attendants.
OSHA did not revise the definition from the proposed rule, other than
to use "assess" rather than "monitor" because the latter is now a
defined term under the standard. Although Sec. 1910.146 does not
explicitly include the "early warning system", the Agency included
the term in the final rule to ensure that the regulated community
understands that these systems must provide an effective means of
warning attendants and authorized entrants that a non-isolated
engulfment hazard may be developing in an area where it could flow into
the work area. A clear understanding of this term will help employers
ensure that authorized entrants have sufficient time to safely exit the
space (see explanation of Sec. 1926.1204(e)(1) below in this
preamble). As illustrated by the non-exhaustive list of examples of
early-warning systems in this definition, employers have flexibility
regarding the type of early-warning system to use for continuously
monitoring engulfment hazards. However, as stated in final rule Sec.
1926.1204(e)(1)(iii), whatever warning system an employer selects, it
must alert authorized entrants and attendants in sufficient time for
the authorized entrants to safely exit the space.
Emergency means any occurrence inside or outside a space that could
endanger an entrant. The definition is similar to the definition in the
general industry standard, and is not substantively different from the
definition provided in the proposed rule. The only distinction between
the general industry standard and the final rule is that the final rule
includes a loss of power in the non-exhaustive list of examples of
emergencies. OSHA is specifying power loss to make it clear that
unexpected loss of power can endanger entrants, particularly if the
permit plan relied on the use of ventilation, monitoring, controls,
communication with the attendant, or egress that would be affected by
the loss of power. The definition is important because 1204(d)(5)
requires employers to provide adequate lighting for egress in an
emergency.
One commenter urged OSHA to clarify that an occurrence constituting
the emergency must involve the work performed in the confined space
(ID-099, p. 1). For example, in this commenter's view a heart attack
that does not involve the working conditions in a confined space, but
occurs while an employee is working in or near a confined space, would
not qualify as an "emergency" under Sec. 1926.1202. OSHA disagrees
with this comment, and is not making this revision because the final
standard uses the term "emergency" with respect to the provision of
rescue services. (See, e.g., final Sec. 1926.1204(i), which requires
the employer to develop and implement procedures for
responding to emergencies.) The Agency believes that an emergency
occurs regardless of whether or not it is foreseeable based on the work
the employee is performing within or near the confined space. Under the
rescue provisions of this final standard, emergencies, regardless of
their cause, require employers to initiate rescue of the affected
employees working inside the confined space because of restricted
access to, and egress from, the confined space.
Engulfment refers to the surrounding and effective capture of a
person by a liquid or finely divided (flowable) solid substance, such
as water, dirt, sand, sawdust, or rocks. Any solid or liquid that can
flow into a confined space and that can drown, suffocate, or crush an
employee can be an engulfing medium. This definition is nearly
identical to the definition of the same term in Sec. 1910.146, except
that it also includes "or suffocation" at the end of the definition,
paraphrasing the following additional language from the proposed rule:
"or the substance suffocates the individual." This additional
language clarifies that the definition includes suffocation that does
not result from strangulation, constriction, or the blockage of any
respiratory mechanism. For example, the definition includes surrounding
an employee with a flowable material even if personal protective
equipment or some other barrier (for example. a person trapped in sand
while wearing respirator mask with an enclosed air source) delays
immediate drowning or suffocation. The final definition does not differ
substantively from the definition in the proposed rule, and OSHA
received no comments on the proposed definition.
Entry means the action by which any part of a person passes through
an opening into a permit-required confined space. Entry includes
ensuing work activities in that space, and occurs as soon as any part
of the entrant's body breaks the plane of an opening into the space,
whether or not such action is intentional or the person performs any
work activities in the space. This definition is similar to the
definition of "entry" in Sec. 1910.146(b), except OSHA added the
last clause to clarify that this is a bright-line definition: entry
occurs under all circumstances in which the entrant's body breaks the
physical threshold of the opening, regardless of the events or actions
that caused entry. For example, when an employer assigns an employee a
task that would not ordinarily involve entry into a confined space, and
the employee inadvertently falls into the confined space and does not
perform any work in that space, the employee entered the space at the
instant the first part of the employee's body crosses the plane of the
confined space. This clarification is consistent with OSHA's
longstanding interpretation of the general industry standard. See
October 18, 1995, letter to Charles Bessey. As a result, an entry
employer's duty to prevent unauthorized entry under Sec. 1926.1204(a)
means that the employer must take the necessary steps, such as
installing barriers when appropriate, to prevent both intentional and
unintentional entries.
As noted in the explanation for the definition of "confined
space," a space must be large enough to fit the entering employee's
entire body to constitute a confined space. However, if the space is
large enough to qualify as a confined space, any entry into that space
constitutes an entry, even if the employee's entire body does not enter
the space. This application is consistent with OSHA's design of this
final standard: to ensure that this construction rule is enforceable.
Therefore, OSHA declines to incorporate into this final rule its
previous guidance offered with respect to the general industry rule to
the extent that the guidance indicated that entry would not take place
if only part of the body, and not the whole body, crossed the plane of
the confined space. See July 13, 1993, letter to Dean Davenport (no
entry into water pipe when employee stuck in an arm, but not the whole
body). Absent some safeguard to ensure that the rest of the employee's
body could not cross the threshold into the confined space, the
likelihood of inadvertent entry into a space in the context of
construction warrants a strict approach that differs from the more
routine entries often associated with maintenance under the general
industry standard. For example, an employee who sticks his/her head
into a new space established during construction may be overcome by
fumes and fall into the space or be rendered unable to remove his or
her head from the space and avoid further exposure to the hazards.
The definition of "entry" in this final rule is slightly
different than the proposed definition, but the differences do not
change the substantive meaning of the term as proposed. OSHA made these
changes to the proposed definition to make the final definition of
"entry" similar to the definition of the term in Sec. 1910.146(b).
Entry employer means an employer who decides that an employee it
directs will enter a permit space. Paragraph (b) of Sec. 1910.146 does
not use the term "entry employer"; instead, the general industry
standard refers generally to "employer." In general the term "entry
employer" in this final rule and the term "employer" in Sec.
1910.146(b) are synonymous because both terms identify the employer who
must follow the accompanying confined-space procedures for employers
that plan to enter a permit space. However, OSHA uses this term in this
final rule to clarify that not all employers on a multi-employer
worksite have duties associated with entering a permit space.
On a multi-employer worksite, each employer has a duty under this
new standard to ensure that a competent person identifies all confined
spaces in which any employee it directs may work (Sec. 1926.1203(a)).
Each employer must then prevent the employees it directs from entering
permit spaces or limit access to those spaces in accordance with the
permit procedure (or alternatives) specified in this standard (see
Sec. 1926.1203(a) and (c)-(e)). Under the standard, an entry employer
has a number of important duties that must be performed prior to anyone
physically entering a permit space, such as the requirements for pre-
entry information exchanges in Sec. 1926.1203(h) and the duty to
develop and implement a permit program to restrict access under Sec.
1926.1204. Therefore, under the definition, an employer becomes an
entry employer when it "decides that" an employee it directs will
enter, rather than at the later point when the employee actually
enters. An employer can be an entry employer regardless of whether that
employer has completed any of the steps of instituting a permit program
or an employee has actually entered the space.
However, OSHA does not intend for the "decides that" language in
the definition to narrow the meaning of "employer" in any way or to
focus on any deliberative or procedural process. OSHA has added a note
to the definition of "entry employer" to emphasize that an employer
cannot avoid the duties of the standard merely by refusing to decide
whether its employees will enter a permit space, and OSHA will consider
the failure to so decide to be an implicit decision to allow employees
to enter those spaces if they are working in the proximity of the
space.
The "an employee it directs" language encompasses temporary
workers, permanent employees, and all other workers who are under the
direction of the employer at the worksite, whether they are contracted
directly or through a third party such as a staffing agency. For
example, when a general contractor
contracts with a third party to bring on a temporary worker and assigns
the worker to work in a permit space, the general contractor is an
entry employer. However, if the temporary employee is assigned to a
welding subcontractor, and the welding contractor makes the
determination of where the temporary employee will work without
direction from the general contractor, then the welding subcontractor
would be the entry employer. The general contractor would not be an
entry employer in the latter example.
Entry permit means the document, provided by the entry employer,
which allows and controls entry into a permit space. Section
1926.1206--Entry Permit of this final standard specifies the contents
of the permit. As part of its effort to specify the duties and
responsibilities of different employers on a multi-employer worksite,
OSHA specifies that the employer "who designated the space a permit
space," must prepare the permit, rather than just "the employer" as
in Sec. 1910.146. This definition is otherwise identical to the
definition in Sec. 1910.146(b). In a typical multi-employer worksite,
all employers would have the duty to identify confined spaces that
their employees might enter, but only some employers must establish a
permit program and complete permits.
Entry rescue means rescue that occurs when a rescue service enters
a PRCS to rescue one or more employees. This definition is identical to
the proposed definition of "entry rescue," except that the Agency
clarifies that the term includes a rescue of a single employee. Section
1910.146(b) does not define "entry rescue" because the general
industry standard does not use the term. The term is included in this
final rule to make the requirements for each type of rescue more clear.
Entry supervisor means the qualified person (such as the employer,
foreman, or crew chief) assigned by the employer to determine if
acceptable entry conditions are present at a permit space where entry
is planned, to authorize entry and oversee entry operations, and to
terminate entry as required by the final standard. This definition is
identical to the definition provided in Sec. 1910.146(b), except that
OSHA replaced "person" with "qualified person" as in the proposed
rule (the proposed rule used "qualified individual"), to clarify that
the individual must meet the requirements for "qualified person" as
defined later in this section. The note to this definition, which
clarifies that the entry supervisor may enter the permit space or serve
as an attendant if the applicable requirements are met, is identical to
the note in the general industry definition.
Hazard means a "physical hazard" or "hazardous atmosphere" as
defined by this standard. The proposed rule defined this term, and OSHA
is including it here to clarify that references to a "hazard" or
"hazards" can mean either physical or atmospheric hazards, or both.
Hazardous atmosphere refers to the five enumerated atmospheres, any
one of which may expose employees to the risk of death, incapacitation,
impairment of ability to self-rescue (that is, unaided escape from a
permit space), injury, or acute illness. The proposed definition of
"hazardous atmosphere" varied slightly from the definition in Sec.
1910.146(b), and several commenters requested that OSHA make the
definition in this final rule more similar to the definition in Sec.
1910.146(b) (ID-017, p. 1; -132, p. 2; -138, p. 3; -153, p. 12). OSHA
did so, as explained below, and the final definition is substantively
identical to the definition in the general industry standard.
One commenter noted that the proposed definition included
"existing or potential" atmospheres, and argued that this language,
combined with OSHA's failure to include a note that is part of the
general industry definition of "hazardous atmosphere," constituted an
inappropriate expansion of the scope of this final standard compared to
the general industry standard (ID-219.2, p. 72). OSHA addressed this
commenter's concerns by adopting the general industry language, which
does not refer to "existing or potential" atmospheres, and also
included the note favored by the commenter. See the note after the
fourth enumerated paragraph in the definition, which is substantively
identical to the note in the general industry standard.
The five enumerated paragraphs or conditions in the definition
address four specific types of hazardous atmospheres and a broad
condition that encompasses any other atmosphere that is immediately
dangerous to life or health. The first enumerated condition addresses
an atmospheric condition that consists of a flammable gas, vapor, or
mist in excess of 10 percent of its lower flammable limit (LFL). OSHA
set this level to account for the difficulty employers have in
detecting each and every flammable gas vapor, or mist. The LFL, as it
is defined by the confined spaces in construction standard, refers to
the minimum concentration of a substance in air needed for an ignition
source to cause a flame or explosion. The LFL of the atmosphere is a
cumulative measure that represents the mixture of different flammable
elements, not just the presence of a single element that could lead to
an explosion. Therefore, for the reasons explained below, OSHA has
defined hazardous atmosphere as any atmosphere at or above 10 percent
of a detected substance's LFL (10 percent LFL) to provide an adequate
safety margin, and to ensure that an atmosphere does not exceed the LFL
if one of a combination of substances goes undetected.
OSHA specifically asked for public comment on the propriety of
defining a hazardous atmosphere for purposes of the confined spaces in
construction standard at 10 LFL when Sec. 1926.651(g)(1)(iii)
prohibits exposure to atmospheres in excavations exceeding 20 percent
of the LFL (20 percent LFL). Some commenters urged OSHA to permit 20
percent LFL in this final rule for the sake of uniformity, while
another commenter favored this change only if credible data justifies
this uniform LFL (ID-090, p. 1 and ID-108, p. 6; ID-060, p. 1,
respectively). Other commenters, however, indicated that 10 percent LFL
was more appropriate, and recommended that OSHA revise the subpart P
LFL to 10 percent LFL to provide adequate safety to employees working
in excavations (ID-132, p. 3; -140, p. 6). This last group of
commenters noted that using 10 percent LFL would align the definition
of "hazardous atmosphere" in this final rule with the general
industry confined spaces rule at Sec. 1910.146(b) and ANSI Z-117.1.
One commenter also noted that because the LFL of many common petroleum
based materials is approximately 1 percent of the total volume of the
atmosphere, which would convert to 10,000 parts per million (ppm), 10
percent of that LFL is 1,000 ppm, which approaches the immediately
dangerous to life or health (IDLH) (see below) level for many materials
(ID-132, p. 3).
OSHA selected the 10 percent LFL in the final rule to match the
general industry standard. As the Agency explained when selecting the
10 percent LFL in Sec. 1910.146(b), the 10 percent level is "widely
recognized as being the threshold value for a hazardous atmosphere"
(58 FR 4473). The record indicates that this lower level continues to
be more widely used and more appropriate than the 20 percent LFL
suggested by the commenter, particularly now that the general industry
standard is nearly 20 years old. (See also ANSI Z-117.1 (setting the
maximum level at 10 percent LFL); ANSI 6.3.1.12 (setting the maximum
level at less than 10 percent LFL.))
Moreover, the record does not include credible data to justify why the
20 percent LFL would be more appropriate for a confined space. OSHA may
consider amending subpart P to a similar level in the future, but that
decision is outside the scope of this rulemaking.
The second enumerated condition in the final definition addresses
"hazardous atmosphere" consisting of an airborne combustible dust at
a concentration that meets or exceeds its lower flammable limit (LFL).
One commenter asked why OSHA did not propose a 10 percent LFL for
combustible dust, similar to OSHA's approach for flammable gas, vapor,
or mist in the first condition under this definition (ID-112, p. 6).
OSHA did not propose a percentage of the LFL in defining a hazardous
airborne combustible-dust concentration level for several reasons.
Employers usually can visually judge the flammability hazard posed by
airborne dust. Moreover, as OSHA noted in the preamble to the general
industry standard, it is difficult at present to measure airborne
concentrations of combustible dust reliably at a site, so there likely
would be significant delays in determining whether the level of
combustible dust meets the LFL at a particular site. Therefore, LFL
determinations would appear to be unnecessarily burdensome with regard
to combustible dust. OSHA concludes that the final rule will protect
employees adequately so long as employers train their employees in the
recognition of combustible dust, and ensure that the concentration of
combustible dust remains below its LFL.
For this reason, OSHA has incorporated the note for this condition
from Sec. 1910.146(b), except that it has added the word
"combustible" before "dust" to clarify the meaning of the note, and
made a minor additional change from the proposed rule to make the final
definition identical to Sec. 1910.146(b). OSHA used LFL in this final
rule definition, rather than "lower explosive limit (LEL)," which
OSHA used in the proposed definition. OSHA notes, however, that the
Agency uses these terms interchangeably. (See, e.g., proposed
definition of "lower flammable limit or lower explosive limit" at 72
FR 67406.)
The third condition of a hazardous atmosphere in this definition
addresses the conditions of an atmospheric oxygen concentration below
19.5 percent ("oxygen deficient") or above 23.5 percent ("oxygen
enriched") in a confined space. Four commenters suggested that OSHA
change the oxygen-enriched level from 23.5 percent to 22 percent, which
they noted is the level set by the National Fire Protection Association
(NFPA) \8\ (ID-25, p. 2; -27, p. 6; -28, p. 4; 95, p. 1). Two
commenters suggested that increases in oxygen levels due to leaks of
compressed oxygen used in "hot work" would more easily be detected if
the maximum acceptable oxygen level was 22 percent instead of 23.5
percent (ID-95, p.1), as it is in the rules for maritime work. The
commenters did not, however, provide any data or other information
supporting the suggestion that the proposed level, which is identical
to the level in the general industry standard, is not sufficiently
protective. The absence of such information, the lack of incidents
caused by oxygen levels between 22 and 23.5 percent lead OSHA to
conclude that the difference is not significant. In addition, this
consistency benefits employers that engage in both general industry and
construction work. OSHA finalized the level at 23.5 percent so that it
is consistent with the general industry confined spaces standard at
Sec. 1910.146(b), as well as the definition of "enriched oxygen" in
OSHA's Respiratory Protection standard. This oxygen-enriched level also
is the same as the level in the proposed definition of "hazardous
atmosphere." OSHA continues to believe that the 23.5 percent level
provides a sufficient amount of time for employers to detect a
hazardous oxygen-enriched atmosphere, and to exit the space safely,
before the oxygen level gets so high that it begins to have adverse
effects on the exposed employees. Other standards, such as Subpart J--
Welding and Subpart V--Electronic Transmission and Distribution, set
forth protective requirements for employees engaged in "hot work"
that address the commenters' concerns.
---------------------------------------------------------------------------
\8\ NFPA 53 defines "oxygen-enriched atmosphere" as one in
which the concentration of oxygen exceeds 21 percent by volume or
its partial pressure exceeds 21.3 kPa. (See NFPA 53, Recommended
Practice on Materials, Equipment, and Systems Used in Oxygen-
Enriched Atmospheres, 2011 Edition at 3.3.25).
---------------------------------------------------------------------------
Additionally, OSHA recognizes that safe levels of oxygen vary with
altitude, and that concentrations of oxygen at or above the oxygen
deficient limit of 19.5 percent in this final rule may still pose
atmospheric hazards at very high altitudes. For example, ANSI/ASSE
Z88.2-1992 recognizes an IDLH circumstance at altitudes of 5,000 ft.
above sea level or higher, if the oxygen concentration is at 19.5
percent.\9\ The Agency believes that most confined-space work takes
place at altitudes lower than 5,000 ft. above sea level, and retains
the 19.5 percent oxygen deficient limit in this final rule. However,
the Agency notes that to the extent a high altitude causes an otherwise
permissible oxygen concentration to become IDLH, such circumstances may
also result in a "hazardous atmosphere" as set forth in the fifth
condition in OSHA's definition, which defines a "hazardous
atmosphere" to include any other atmospheric condition that is IDLH.
---------------------------------------------------------------------------
\9\ The Agency also notes that an updated revision of ANSI/ASSE
Z88.2-1992 was forthcoming at the time of its development of this
final rule. The draft of the updated standard appeared to be
consistent with the 1992 version on this issue.
---------------------------------------------------------------------------
The fourth condition in the definition of "hazardous atmosphere"
addresses an airborne concentration of a substance that exceeds the
permissible dose or exposure limit specified by OSHA. The final
definition includes cross-references to the applicable PELs in subparts
D--Occupational Health and Environmental Controls and Z--Toxic and
Hazardous Substances of 29 CFR part 1926, rather than the general
reference to PELs specified in "any OSHA requirement" contained in
the proposed rule. The form of the definition now duplicates the form
found in the general industry standard. In addition, removing the
reference to "any OSHA requirement" avoids the implication that PELs
in general industry standards would apply to construction work.
One commenter requested that OSHA insert a note under this fourth
condition explaining that the PELs in Sec. 1910.1000 also would apply
under this condition (ID-028, p. 5). OSHA did not include a reference
to Sec. 1910.1000 because those general industry PELs do not apply to
construction work. Section 1926.55 establishes the relevant PELs for
construction.
OSHA did, however, include a note to the fourth condition of the
definition that is substantively identical to the note to the fourth
subheading of the Sec. 1910.146(b) definition of "hazardous
atmosphere," except that OSHA changed the word "provision" to
"definition" to make it clear that the note applies to the types of
hazards covered by the definition of "hazardous atmosphere." OSHA
sets its construction PELs at different levels for different reasons;
some of these PELs prevent harm from substances that manifest quickly
in the human body, such as [hydrogen sulfide and carbon monoxide, among
others], while OSHA sets other PELs prevent harm from substances that
produce long-term health effects but do not produce any acute effect on
employees. The note
makes clear that, for the purposes of determining whether a hazardous
atmosphere exists under this final rule as the result of a
concentration of a substance in excess of its PEL, employers need to
address only the substances with PELs that could result in immediate
harm or impairment of the employee's ability to perform self-rescue.
See also the discussion in the general industry preamble at 58 FR 4474.
For example, a short-term exposure to silica is unlikely to cause
immediate injury. Likewise, nitrogen and carbon dioxide will not impair
self-rescue unless their levels are so high that they replace
significant oxygen, so that they act as an asphyxiant. The same is true
for any inert gases, for example argon, neon and helium. Most of the
substances with an OSHA PEL (in subparts D and Z of the construction
standards) are based on long-term, chronic risks to health. Presumably,
most of these substances do not pose a risk of an acute health effect
or of self-rescue at exposure levels near the PEL. However, if
extremely high levels of exposure far above a PEL occurred, one of
these substances could potentially pose a risk to self-rescue, which
would in turn trigger the fourth condition of hazardous atmosphere.
The note also addresses a comment that PELs regulating substances
with long-term effects, such as iron oxide emitted during welding or
xylene emitted when painting, should not automatically trigger the PRCS
requirements (ID-028). While OSHA agrees that iron oxide by itself
would not trigger permit restrictions because the symptoms of iron
oxide exposure would generally not prevent an entrant from exiting a
confined space, xylene is highly flammable and would therefore present
a hazard if the potential exists for the concentration of xylene to
exceed the LFL.
A different commenter suggested that OSHA avoid potential confusion
by rearranging the order in which the subparagraphs in the definition
of "hazardous atmosphere" are presented to reflect the order in which
OSHA requires atmospheric testing and monitoring (oxygen content,
flammability, then toxicity--see Sec. 1926.1204(e)(3) of the final
rule) (ID-132, p. 2). OSHA does not agree that the order of
presentation in this definition is likely to cause confusion,
particularly when the actual order of testing is spelled out in Sec.
1926.1203(e). OSHA did not make this change in the final rule so that
it could to keep the definition of "hazardous atmosphere" in this
final rule similar to the definition of that term in Sec. 1910.146(b),
including the order of the listed conditions.
Host employer means the employer that owns or manages the property
where the construction work is taking place. As explained in the
definition of "controlling contractor," OSHA added this definition to
clarify the distinction between a host employer, a controlling
contractor, and an employer performing confined space entry because
each of these entities has specific obligations under this final rule.
(See the discussion under "controlling contractor" above.) OSHA used
the term "host employer" in the general industry standard without
defining it, but the definition in this final rule is consistent with
the use of the term in that general industry standard. It is also
substantively the same as the proposed definition.
One commenter asserted that an employer should never meet the
definition of "host employer" if the employer "had no employees at
all (a home owner, for example, might fit this category) or had no
employees 'engaged in construction work' (an owner of an office
building might fit this category)" (ID-117, p. 5). OSHA notes that it
has already addressed the commenter's first concern because an entity
only meets the definition of a "host employer" under the final rule
if it is "an employer." OSHA disagrees with the commenter's second
assertion, and has addressed the propriety of placing duties on the
host employer, and OSHA's authority for doing so, in the discussion of
Sec. 1926.1203(h) later in this preamble.
OSHA also added a note to the definition of "host employer" to
address situations in which the owner of the property contracts with a
management company to manage the property. OSHA understands that this
type of arrangement is somewhat common with commercial properties, and
that in many cases the management company will be the principal
custodian of blueprints and other information about the property that
identifies confined spaces on the property or is otherwise relevant to
confined spaces work on that property. Because the host-employer
requirements in final Sec. 1926.1203(h)(1) are designed to ensure that
relevant information about the property and known hazards therein is
conveyed to employers who will be performing work in confined spaces,
OSHA clarifies in the note that the entity that possesses that
information, either the owner or the management company, will serve as
the host employer for the purposes of this standard for as long as the
company manages the property (if there is a change in management
companies, the initial management company would return the information
to the owner, and the host employer duties would revert to the property
owner until discharged to the new management company). The note also
clarifies that only one of these entities will serve as a host
employer. If a property owner contracts with a third party to manage
the property, turns over all relevant information about the property
that it has (the locations of permit space the hazards they contain,
and the previous precautions used to address them) to the management
company, then OSHA will treat the management company (not the property
owner) as the "host employer" under this standard. That management
company, rather than the owner, must then maintain the relevant
information about the property and fulfill the duties of the host
employer under this standard (e.g., share that information with the
controlling contractor). For example, if the owner transfers its
records to the management company, including a map of the property
showing a confined space marked for storage of containers of flammable
liquids, then the management company must relay to the controlling
contractor hired to oversee welding operations the location of that
space, its contents, and any previous measures used to address them
(e.g., "when the painters came, they tried to move the containers but
the containers began to leak and soaked into the floors so the painters
had to continuously ventilate the whole area during their entry.") The
property owners would not have a separate duty to relay that
information to the controlling contractor. In another example, the
owner of a commercial property hires a professional property management
company to manage a property. The property owner turns over all
relevant information to the management company. The management company
contracts with a general contractor to oversee renovations in a furnace
room and boilers on the property, and the general contractor hires a
subcontractor to perform the construction work inside the boilers,
which are activated through an electrical system. Under this standard,
the management company has a duty to notify the controlling contractor
that the boiler tanks are connected to the electrical system, the way
in which that electrical hazard is normally addressed (e.g., isolating
the electrical hazards by disconnecting, and locking out, the power
source).
Hot work means operations capable of providing a source of
ignition, such as riveting, welding, cutting, burning, and
heating. In Sec. 1910.146(b), OSHA defined "hot work permit" to
describe the same activity, but focused on the permit rather than the
work. OSHA did not include the word "permit" in the definition in
this final rule because the final regulatory text uses only the term
"hot work," and does not use the term "hot work permit."
Immediately dangerous to life or health (IDLH) means any condition
that could cause a threat to life, cause irreversible health effects,
or otherwise inhibit an employee's ability to escape from a permit
space. The proposed definition of "IDLH" also included separately any
condition that exposes an employee to "serious physical harm," which
some commenters opposed. (ID-0013, p. 2; ID-219.2, p. 74; ID-0147, p.
3.) In particular, one commenter noted that the definition of "IDLH"
in Sec. 1910.146(b) does not include every condition that could cause
"serious physical harm," and asserted that the use of this term makes
it less clear that an IDLH condition is one associated with urgent
danger. (ID-0013, p. 2) For example, the commenter asserted that, under
the proposed definition, an IDLH condition would be present when an
employee breaks his/her nose.
Another commenter asserted that "irreversible adverse health
effects" should not be an element of the IDLH definition unless OSHA
adds language tying those effects to an impairment of the ability for
self-rescue (ID-0219.2, p. 74.). OSHA notes that the revised definition
of IDLH is applied in this standard through the definition of hazardous
atmosphere, and excludes "an atmospheric concentration of any
substance that is not capable of causing death, incapacitation,
impairment of ability to self-rescue, injury, or acute illness" (see
Note to the definition of "hazardous atmosphere"). Thus, the standard
follows the general industry standard and is as appropriately focused
on conditions that would impair the ability to self-rescue as is the
definition in the general industry standard. In a comment submitted
after the hearing for this rulemaking, the same commenter did not
object to the inclusion of "irreversible adverse health effects" in
the general industry standard, asserting that the general industry
standard "does not regulate non-acute hazards" (ID-219.2, p. and 71.)
However, OSHA finds no evidence in the record, even after 20 years of
experience with the general industry standard, that this "irreversible
adverse health effects" component of the IDLH definition would be less
appropriate for the construction industry. OSHA has thus modified the
definition of IDLH to focus on conditions which would impair an
entrant's ability to self-rescue and either pose a threat to life or
have the capacity to cause irreversible adverse health effects, and
notes that all other OSHA standards regarding exposure to hazardous
substances continue to apply.
Inerting means displacing the atmosphere in a permit space by
adding a noncombustible gas (such as nitrogen) to such an extent that
the resulting atmosphere is noncombustible. The definition is identical
to the general industry definition, except for a minor grammatical
change. OSHA also included a note from the general industry standard to
remind employers that the inerting process results in an atmosphere
that is oxygen deficient; oxygen deficiency is a separate atmospheric
hazard identified in the third subparagraph of "hazardous
atmosphere." Accordingly, the final rule prohibits employees from
working in that space without a permit program which includes use of
necessary PPE.
Isolate or Isolation means the process--such as misaligning or
removing sections of lines, pipes or ducts; a double block and bleed
system; lockout or tagout of all sources of energy; or blocking or
disconnecting all mechanical linkages--that an employer uses to
completely protect entrants from the release of energy or other hazard
into a confined space. This definition is based on the definition in
Sec. 1910.146(b) and the proposed rule, but OSHA made two minor
adjustments to the definition in this final rule and added a
clarification regarding isolation of a portion of a contiguous space
such as a sewer system. First, OSHA clarified that the purpose of
isolation is to protect employees, rather than the space itself, from
the release of hazards into the space. In most cases this involves
isolating the entire space from a hazard, such as isolating a room from
a potential source of flooding. However, in some cases employers may be
able to isolate a hazard inside a confined space, and the final rule's
emphasis on protecting employees, rather than the space, allows for
that type of isolation. To that end, the second difference from the
general industry definition is that in the final rule OSHA defines
"isolate" to include employers' use of physical barriers to eliminate
the opportunity for contact between an employee and a physical hazard
inside a confined space, as requested by a commenter (ID-061, p. 6).
This addresses commenter concerns that a single physical hazard such as
low-hanging pipe or a sharp object would unnecessarily foreclose
alternative entries under Sec. 1926.1203(e) (discussed below) and
require an employer to treat the entire space as a permit space even
after the employer has taken steps to ensure that employees could not
come in contact with the physical hazard. OSHA has reached a similar
result in most circumstances by interpreting the general industry
standard to allow employers to "eliminate" hazards in a similar
manner without necessarily deeming it isolation. See, e.g., October 27,
1995, letter to William Taylor (temporary floor could be used to
eliminate fall hazard from inwardly converging walls). But in the
construction context the addition to the definition of isolation
addresses the issue directly and provides more flexibility for
employers to address physical hazards for the purpose of alternative
entries under Sec. 1926.1203(e) (see the discussion of Sec.
1926.1203(e) for additional explanation on the difference between the
general industry standard and this final rule regarding alternative
procedures for addressing permit spaces with hazardous atmospheres and
physical hazards).
A different commenter suggested that using the term "isolation"
to refer to the elimination of a physical or atmospheric hazard will be
confusing since industry generally uses the term "isolation" to refer
to the control of a hazard and not to the elimination of the hazard
(ID-098.1). OSHA agrees that the terms are not interchangeable, and has
tailored the definition of isolation accordingly. While eliminating a
hazard or removing it altogether from a confined space would constitute
means of isolating a hazard, isolating the hazard in the context of
this rule does not necessarily eliminate it from the space altogether
in the sense that the physical item may remain in the space and that it
might still pose a hazard absent the isolation measures. For example,
if exposed rebar is sticking out of a wall in a confined space, the
employer may eliminate the hazard by pounding the rebar into the wall
so that it does not protrude in any way; it may remove the hazard by
cutting out the rebar and carrying it out of the space; or it may
isolate the rebar by erecting a barrier in a manner that effectively
prevents the possibility of anyone coming into contact with the rebar.
Both of the definitions in the general industry rule and this final
rule permit "tagout" in addition to "lockout" as a means of
isolating a hazard, but in both cases the tagout process involves more
than the placement of a tag on equipment because tagging equipment does
not prevent the release of a hazard into the space. As discussed below,
OSHA has added definitions of "lockout" and "tagout" to ensure that
the regulatory text of this final rule reflects these critical elements
of the general industry standard.
Several commenters asserted that the definition of "isolation"
should not include misaligning or removing sections of lines, pipes, or
ducts, but did not provide a reason for this assertion (ID-025, p.2; -
027, p. 4; -095, p. 2). The general industry confined spaces standard
at Sec. 1910.146(b) includes misaligning or removing sections of
lines, pipes, or ducts in its definition of "isolation." Without a
clear reason to depart from this established understanding of the term
"isolation," OSHA continues to include the misalignment or removal of
sections of lines, pipes, or ducts as a form of "isolation" to match
the definition of the term in Sec. 1910.146(b). To the extent that the
commenters were concerned that removing a section of pipe within a
space would not isolate employees from a hazard entering the space,
such an action would not meet the definition of "isolation" if it
does not effectively and completely prevent employee exposure to the
hazard. The removal of a section of a water pipe that would effectively
divert water away from a confined space could be a form of isolating
the employees in that space from the water hazard; disconnecting a
sewer pipe in a location where fumes or physical hazards could still
enter a confined space and affect employers (such as disconnecting the
pipe at a location inside the confined space or immediately adjacent to
the space where the remainder of the pipe entering the confined space
is not sealed) does not meet the definition of "isolation."
Another commenter asserted that defining "isolation" differently
from "control" could cause confusion (ID-025, p. 2). This comment
highlights the need to have a separate definition: "Isolate or
isolation" is distinct from "control" in this final rule because the
former term requires the elimination or removal of the hazard. Control,
on the other hand, merely entails a reduction in the degree of a hazard
or a reduction in the risk that the hazard will cause an injury or
death. For example, an employer can control an atmosphere through
ventilation, but it cannot use ventilation to isolate a space from a
hazard.
Limited or restricted means for entry or exit means a condition
that may obstruct an employee's ability to exit or enter a confined
space, including trip hazards, poor illumination, slippery floors,
inclining surfaces and ladders (see the earlier discussion of the
definition of "confined space" for a discussion of ladders). The
proposed construction rule, but not the general industry standard,
defined this term. The proposed definition referred to "hazards"
rather than "trip hazards." OSHA did not include in this final
standard the reference to all "hazards" because the Agency believes
that term was potentially too broad, and that its inclusion in this
final standard would render all the other examples redundant. Instead,
the final definition refers to "trip hazards," which is a condition
that is similar to the other examples, and provides a greater degree of
guidance than the term "hazards."
One commenter objected to the inclusion of "poor illumination and
slippery floors" in the definition, arguing that the regulated
community does not generally understand these conditions as "limited
or restricted means for entry and exit" as used in the general
industry confined spaces standard at Sec. 1910.146(b) (ID-153, p. 14).
The commenter did not explain why poor illumination and slippery floors
would not limit or restrict means for entry or exit. The same commenter
acknowledged that Sec. 1910.146 does not define this term, but
nevertheless accused OSHA of "changing the meaning of the term." OSHA
disagrees, and is retaining the list of examples in the final rule. The
Agency previously explained in its compliance directive on general
industry confined spaces, OSHA Directive CPL 02-00-100: Application of
the Permit-Required Confined Spaces (PRCS) Standards, 29 CFR 1910.146
(May 5, 1995), that a "space has limited or restricted means of entry
or exit if an entrant's ability to escape in an emergency would be
hindered." Therefore, OSHA concludes that the meaning of "limited or
restricted means for entry and exit" as used in the general industry
standard already encompasses these conditions, and that the Agency is
simply providing the same guidance more explicitly in this final
standard.
Line breaking refers to the process of opening a pipe or duct when
the substance inside could injure an employee because of the
characteristics of the substance or the manner in which it is released
from the conductor. This definition is identical to the corresponding
definition in the general industry standard. Although the term is not
otherwise used in the text of this final standard (or in the text of
the general industry standard), OSHA included it for parallelism with
the general industry standard and to inform construction employers of
the hazards that may be associated with opening an existing pipe or
duct.
Lockout refers to a means of isolating a physical hazard (typically
an electric-powered device) by placing a lockout device on an energy
isolating device in accordance with established procedures to ensure
that the equipment which poses a hazard and the energy isolating device
cannot be operated or inadvertently energized until the lockout device
is removed. This definition is identical to the definition in the
general industry standard (see Sec. 1910.147(b)). OSHA has included it
to maintain consistency with the general industry approach to lockout
in confined spaces. As discussed in the explanation for "Isolate or
isolation", above, lockout is one method of isolating a physical
hazard in a confined space.
Lower flammable limit (LFL) or lower explosive limit (LEL) means
the minimum concentration of a substance in air needed for an ignition
source to cause a flame or explosion. The measurement is usually
expressed in terms of percentage by volume of gas or vapor in air. When
more than one type of flammable substance is present in the air, the
LFL is derived from the combined sum of all flammable substances as a
percentage of the total atmosphere. The definition is identical to the
proposed definition and is consistent with the use of the term in the
general industry standard. The Agency did not receive any comments on
this definition.
Monitor or monitoring means the process used to identify and
evaluate the hazards after an authorized entrant enters the space. This
is a process of checking for changes that the employer must perform in
a periodic or continuous manner after the completion of the initial
testing or evaluation of that space.\10\ The proposed rule included a
definition this term. OSHA included the definition in this final rule,
but revised it slightly to make it clear that monitoring does not apply
solely to atmospheric hazards.
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\10\ OSHA uses "periodic testing" and "periodic monitoring"
interchangeably in this standard.
---------------------------------------------------------------------------
Non-entry rescue means a rescue, usually by the attendant, that
retrieves employees in a permit space without the rescuer entering the
permit space. While the general industry standard does not include a
definition of this term, the proposed rule did include such a
definition. OSHA included the definition in this final rule, but
clarified the distinction between entry rescue, as defined above, and
rescue that does not involve entering the permit space.
Non-permit confined space means a confined space that meets the
definition
of a confined space, but does not meet the requirements for a permit-
required confined space, as defined in this subpart. This term, as
defined in the general industry standard at Sec. 1910.146(b), requires
a separate analysis of hazards or potential hazards. OSHA revised the
general industry definition in the final rule to make it clear that a
non-permit confined space is simply the inverse of a permit-required
space: It meets all of the requirements to be a confined space, but
does not meet the criteria to be a permit-required confined space (see
the discussion of the definition of "permit-required confined space"
below in this preamble). A confined space in which all physical hazards
are isolated or eliminated and in which there are no actual or
potential hazardous atmospheres is a non-permit confined space.
Oxygen deficient atmosphere means an atmosphere containing less
than 19.5 percent oxygen by volume. This final standard defines the
term exactly as it is in Sec. 1910.146(b).
Oxygen enriched atmosphere means an atmosphere containing more than
23.5 percent oxygen by volume. The final standard also defines this
term exactly as it is in Sec. 1910.146(b).
OSHA based the general industry definitions for "oxygen deficient
atmosphere" and "oxygen enriched atmosphere" on levels set by the
National Institute for Safety and Health (NIOSH) (see 58 FR 4474 and
4476). The proposed rule did not include separate definitions of these
terms, but did incorporate the same levels into the definition of
"hazardous atmosphere." As discussed in the explanation above of
"hazardous atmosphere," OSHA does not agree with several commenters'
suggestions for an alternative oxygen level. OSHA did not receive any
other comments disputing that the construction industry generally
accepts these definitions of the terms.
Permit-required confined space (permit space) means a confined
space that has at least one of the following characteristics: (1)
Contains or has the potential to contain a hazardous atmosphere; (2)
contains an engulfment hazard; (3) is configured so that it poses a
risk of entrapment or asphyxiation; or (4) any other recognized serious
hazards. OSHA revised this definition in final rule Sec. 1926.1202 to
make it identical to the definition in the general industry confined
spaces standard at Sec. 1910.146(b). Consequently, the final rule
diverges from the proposed rule in that OSHA revised the order of the
characteristics from the proposed rule, clarified that a potential
hazardous atmosphere can trigger a permit space, and separated the
third and fourth characteristics from the proposed definition ("an
engulfment hazard or other physical hazard") so that engulfment
hazards addressed in the second characteristic in the final definition
while some physical hazards are encompassed by "other recognized
serious safety or health hazard" in the fourth characteristic; there
was not a fourth characteristic in the proposed definition. Otherwise,
this definition is the same as the definition in the proposed rule.
Several commenters noted that the proposed definition of "permit-
required confined space" included any "physical hazard," and
asserted that the definition of "permit space" would, therefore,
include non-serious hazards in a confined space (ID-013, p. 3; -147,
pp. 2-4). In the proposed rule, OSHA addressed this concern in the
definition of "physical hazard," which limited the definition to
hazards that were capable of causing "death or serious physical
harm." In this final rule, OSHA defined the term to match the
definition in Sec. 1910.146(b), which specifies that the phrase
"contains any other recognized serious safety or health hazard"
applies only to serious hazards, and the definition of serious physical
harm (now "serious physical damage" in the final rule) excludes
injuries that could not impair the ability of an entrant to escape the
space without assistance. As noted in the explanation of the definition
of hazardous atmosphere, this standard is focused on hazards that could
impair the ability of an entrant to self-rescue.
The proposed definition of permit-required confined space referred
to a "hazardous atmosphere," which OSHA defined to include an
existing or "potential" atmosphere. One commenter urged OSHA to
clarify that a "potential hazardous atmosphere" is a hazardous
atmosphere that an employer could anticipate, as opposed to a hazardous
atmosphere that is "remotely possible under unforeseen conditions,"
such as a train carrying chlorine crashing and causing a toxic cloud of
chlorine that engulfs an entire worksite. (ID-0138, p. 4.) The phrase
"potential to contain a hazardous atmosphere" in the context of this
final rule refers to the existing conditions affecting the confined
space at the time of entry and any changes to those conditions over the
duration of the entry, and limits hazards to those hazards that a
qualified person should anticipate would affect that space. If an
employer becomes aware (or should be aware) of the release of a toxic
gas that could enter the confined space, or detects such a gas near a
ventilation source for that space, then the space would have the
potential to contain a hazardous atmosphere when the PEL or LEL are
below the "hazardous atmosphere" levels. The potential for a
hazardous atmosphere remains until the employer confirms that the space
is completely free of the toxic gas or the gas level rises to a
hazardous level.
As OSHA stated in a December 2, 2005, letter to Ms. Laura Johnson,
a potential hazard exists if the employer does not entirely remove the
source of the hazard. For example, a space will have the potential to
contain a flammable atmosphere if any piping, containers, materials
brought into the space, or residual contamination of the space brings
combustible dust or flammable gas, vapor, or mist into the space.
Employers can refer to a substance's Safety Data Sheet (SDS) as one
indicator of the hazards the employer should reasonably anticipate as a
result of using a particular substance. Testing and monitoring are some
other methods of identifying potentially flammable atmospheres. OSHA
also previously clarified that an appropriate lockout procedure that
blocks a potentially hazardous atmosphere does not eliminate the
potential for a hazardous atmosphere, so the space cannot be classified
as a non-permit-required space. See August 28, 1995 letter to William
K. Principe. Under this final rule, however, employers who can
effectively isolate a potential hazardous atmosphere by using one of
the other techniques described in the definition of the term
"isolation" in Sec. 1926.1202 (excluding lockout/tagout) may be able
to re-classify the space.
Permit-required confined space program (permit space program) means
the employer's overall program for regulating employee entry into
permit spaces and protecting employees from permit space hazards. This
definition of this term in the final standard duplicates the term's
definition in Sec. 1910.146(b). An employer need not tailor a confined
space program specifically to each space entered. If the permit
contains most of the relevant information required by this final rule,
the program may be general and designate the particular permit that the
employer developed earlier for such work, along with any other testing
procedures, PPE, or other information normally required in response to
the types of hazard present in the space. Accordingly, the employer is
still responsible for developing the appropriate plans and other
information
required by this standard to address the unique conditions of each
space.
In the general industry standard, OSHA uses the term "permit
system" as the heading for Sec. 1910.146(e), and defines it in Sec.
1910.146(b). In the final rule, OSHA uses the term "permitting
process" as the heading of the parallel requirement at Sec.
1926.1205, but does not employ the term anywhere else in the text of
the final rule. OSHA, therefore, chooses not to provide a separate
definition of "permitting system" in Sec. 1926.1205 because such a
definition is unnecessary; the "permitting system" is comprised of
the requirements of Sec. 1926.1205.
Physical hazard means an existing or potential hazard that can
cause death or serious physical damage. Examples include: Explosives
(see paragraph (n) of Sec. 1926.914 for the definition of
"explosive"); mechanical, electrical, hydraulic, and pneumatic
energy; radiation; temperature extremes; engulfment; noise; and
inwardly converging surfaces. The term "physical hazard" also
includes chemicals that can cause death or serious physical damage
through skin or eye contact (rather than through inhalation). The
general industry confined space standard does not define the term
"physical hazard." OSHA uses the term "physical hazard" throughout
this final rule, however, and defined this term in the proposed rule to
clarify its meaning.
The proposed definition of "physical hazard" referred to a hazard
that can cause harm "in or near a confined space," or a hazard that
might "occur" in or near the confined space. OSHA deleted the
language tying the location of where the harm could occur to the
meaning of "physical hazard" because a condition establishing a
physical hazard can exist wherever it is regardless of proximity to a
confined space (e.g., exploding dynamite is a physical hazard whether
or not it is in or near a confined space, and an engulfment hazard may
originate in a sewer far upstream from where employees are located).
OSHA provides appropriate guidance in the implementing requirements of
the final standard to ensure that the standard focuses on physical
hazards related to confined spaces. See discussion of final Sec. Sec.
1926.1203 and 1926.1204 in this preamble.
The proposed definition of "physical hazard" also referred to a
hazard that has a "reasonable probability" of occurring, and referred
to the same list of examples now incorporated into the text of the
final rule. OSHA has replaced that phrase with "potential hazard" to
keep the terminology consistent with the general industry standard.
Both Sec. 1910.146 and this final rule use the term "potential
hazard" throughout the standard, so OSHA is using the term with which
the industry is already familiar.
One commenter noted that, in the proposed rule, OSHA defined
"physical hazard" to encompass not only hazards that could cause
death or serious physical harm, but also "a hazard that has a
reasonable probability of occurring in or near a confined space" (ID-
219.2, p. 75). The latter part of the definition did not require the
hazard to result in death or serious physical harm, so the commenter
objected on the grounds that the definition of "hazard" would be
unnecessarily broad because it would cover minor hazards (i.e., "a
stubbed pinky finger or toe") that would, in turn, trigger the permit
restriction in the proposed standard (id). This final definition does
not encompass stubbed fingers or toes or other minor injuries;
therefore, the Agency did not include the extra component of the
proposed definition in the final rule. The definition duplicates the
general industry standard in this regard, and it also limits coverage
to hazards that can cause death or "serious physical damage," which
OSHA has defined to clarify the differences between "serious physical
damage" in this standard and "serious physical harm" as it is used
in other OSHA standards. For additional information, see the
explanation for the definition of "serious physical damage" below in
this preamble.
Another commenter asserted that the definition of "physical
hazard" should not encompass equipment or material inside a confined
space that could cause an "impact hazard" (e.g., "a low hanging pipe
or angle iron strut") simply because it is present inside a confined
space and could injure an employee who comes into contact with it (ID-
061, p. 7). The commenter expressed concern that if OSHA included these
types of equipment or materials, the alternate procedures set forth in
Sec. 1926.1203(e) of the final rule would almost never be available
because such spaces must be free of physical hazards. In response, OSHA
modified the definition of "isolation" and the ventilation
alternative procedure in Sec. 1926.1203(e) to make it clear that this
alternative procedure remains an option for employers if the employer
protects entrants sufficiently from the impact hazards by eliminating
them or isolating them through the use of engineering controls. For
example, if a low-hanging pipe does not obstruct the entrance or egress
of the space and is adequately padded to prevent potential employee
exposure to the hazard, or there is enough room in the confined space
to barricade the hazardous condition and prevent employee exposure to
the hazard posed by the pipe, OSHA would consider the physical hazard
isolated within the meaning of that term in this final standard. If
there are no other physical hazards in the space, and the employer can
demonstrate that it satisfied the other conditions of Sec.
1926.1203(e), then the employer may use the ventilation alternative
procedure in that space.
If, however, there is a piece of equipment or other physical object
inside a confined space that could cause serious physical damage to an
employee upon impact, and the employer does not eliminate or isolate
that hazard, then the employer must follow all of the PRCS procedures
set forth in Sec. 1926.1204. The commenter did not provide any
evidence of why an "impact hazard" is different than any other type
of physical hazard, nor did the commenter indicate any inherent
restrictions on physical movement that would necessarily limit the
force of the impact to a level not capable of causing serious physical
damage. In the absence of such evidence, OSHA believes that an object
such as a low hanging pipe or angle-iron strut has the same potential
to impair the ability of an entrant to exit the confined space unaided
as other physical hazards. For example, an entrant could walk into a
low-hanging pipe and receive a head injury that could render the
entrant unconscious, or the entrant could receive some other form of
serious injury to another part of the body that could render the
entrant immobile.
Two commenters suggested that the examples in the definition should
include both fire and crush hazards (ID-025, p. 2; -095, p. 2). Another
commenter suggested that the final rule definition should include falls
as an example (ID-211, Tr. p. 42.) OSHA agrees that each of these is an
example of a physical hazard, but notes that the list of examples
provided in the definition is not an exhaustive list. Therefore, OSHA
concludes that it is not necessary to add to this non-exhaustive list.
The Agency included "noise" in the proposed definition of
"physical hazard" as one example of such a hazard because sound waves
constitute a physical disturbance of the air that results in a physical
impact on the human ear. Several commenters asserted that excessive
noise should not trigger the application of PRCS procedures when no
other hazard exists (ID-112, p. 17; -114, p. 2; -138, p. 4). These
commenters indicated that the
final standard should not treat noise as a physical hazard if the noise
did not rise to the level of impairing the ability of an entrant to
exit the space without aid; however, these commenters did not assert,
or provide any evidence supporting the view, that noise alone is
incapable of such impairment or otherwise causing serious physical
damage, as OSHA defines it in this final rule. Therefore, OSHA is
retaining the term "noise" as an example of a physical hazard in this
final definition.
One of the commenters questioned whether noise levels exceeding the
decibel levels specified in Sec. 1926.52, OSHA's construction noise
standard, would trigger the permit-space requirements. The final
construction confined spaces standard does not specify this threshold,
and OSHA notes that noise will only trigger PRCS procedures if it
reaches a level at which it can cause death or serious physical damage.
For example, noise would constitute a physical hazard if it is loud
enough to substantially reduce the efficiency of the entrant's ears to
process communications from the attendant or entry supervisor regarding
exit instructions or other emergency information, thereby impairing the
ability of the employee in the permit space to exit the space safely
(see the definition of "serious physical damage," which includes "an
impairment . . . in which a body part is made functionally useless or
is substantially reduced in efficiency" and specifically mentions
disorientation). OSHA has previously recognized the capacity of noise
to create a hazardous situation by masking warning shouts or signals
(see, e.g., OSHA's preamble to Sec. 1910.95, the general industry
noise exposure standard, at 46 FR 4080 (Jan. 16, 1981). Employers
generally can address these types of noise hazards by implementing a
permit program that uses non-auditory cues, such as flashing lights, to
resolve communication issues.
In some cases, the sound waves from an explosion or other air
disturbance may be so intense that it might cause physical pain or
disorient an entrant to the extent that it could impair the ability of
the entrant to exit the space unaided. See, e.g., Stephen A. Fausti,
Ph.D., et al., Auditory and vestibular dysfunction associated with
blast-related traumatic brain injury, Journal of Rehabilitation
Research and Development, Vol. 46, No. 6 (2009) pp. 797-810 (discussing
the impacts of excessive noise exposure, such as the noise caused by a
blast or explosion, including immediate temporary hearing loss and
sensory damage).
Two of these commenters asserted that the use of personal
protective equipment can protect employees effectively from noise
hazards, but expressed concern that OSHA would prohibit employers from
working in a confined space with excessive noise because the definition
of "control" provides explicitly that "personal protective equipment
is not a control" (ID-114, p. 2.) As another commenter noted, OSHA
would treat earplugs as protection from a hazard, but not control of
the hazard, and, therefore, would prohibit work in an area with an
uncontrolled noise hazard (ID-112, p. 17).
The final rule will not prevent work in a noisy confined space if
employees are properly protected. In the final rule, OSHA requires
employers to protect their employees adequately from confined-space
hazards; in protecting employees, other construction standards also
would apply. Therefore, if the noise is above the decibel levels
specified in 29 CFR 1926.52, employers must protect their employers in
accordance with that section, regardless of whether the noise
conditions trigger the permit-space requirements of this final
standard. OSHA's Field Operations Manual provides that employers may
"rely on personal protective equipment and a hearing conservation
program, rather than engineering and/or administrative controls, when
hearing protectors will effectively attenuate the noise to which
employees are exposed to acceptable levels." (CPL 02-00-150 at Ch. 4,
XI.B). However, feasible administrative and/or engineering controls
must be used when personal protective equipment may not reliably reduce
noise levels received to the levels specified in the standard or when
those controls are less expensive than an effective hearing
conservation program. Employers choosing to rely on personal protective
equipment instead of administrative or engineering controls must ensure
that employees will be aware of continuous monitoring alarms and other
hazard alerts in a timely manner regardless of PPE use. Therefore, to
promote consistency with OSHA's treatment of noise hazards under Sec.
1926.52, OSHA permits employers to use these same methods to address
the noise hazards in a permit space so long as the administrative and
engineering controls, or the personal protective equipment, do not
interfere with the ability of the entrant to maintain effective
communication with the attendant and other workers. Notwithstanding the
general statement in the definition of "control" that personal
protective equipment does not constitute a control, OSHA is permitting
employers to use appropriate hearing-protection equipment as a means of
addressing a noise hazard in a permit space when the PPE attenuates the
noise to acceptable levels. However, if the employer is unable to
reduce an employee's exposure to noise to a level where it does not
constitute a threat of death or serious physical damage, then the
employer must not permit employees to enter any portion of the permit
space that would expose the employee to such a noise level.
Prohibited condition means any condition in a permit space not
allowed by the permit during the period of authorized entry. This
portion of the definition is identical to the definition in Sec.
1910.146(b), and is similar to the definition of "unplanned
condition" in the proposal. In addition, the Agency added a sentence
to the definition in the final standard to clarify that a hazardous
atmosphere is always a prohibited condition, unless the employer can
demonstrate that use of appropriate PPE will effectively protect
entrants; this added condition means that employees cannot work in a
hazardous atmosphere without the appropriate PPE. The definition of
hazardous atmosphere in the general industry standard implies this
condition, which the Agency made explicit in this final rule for
construction.
Qualified person means one who successfully demonstrates his/her
ability to solve or resolve problems relating to the subject matter,
the work, or the project. While the general industry does not include
this term in the definition of "entry supervisor," the proposed rule
did, and OSHA retained this term in the final standard. While the
proposal did not define "qualified person," the final rule's
definition is similar to definitions of the term found in Sec.
1926.32(m) and other subparts of OSHA's construction safety standards
(see, e.g., Sec. 1926.1401--Cranes and derricks in construction). In
this way the final rule clarifies that an "entry supervisor"
clarifies that the employer must ensure that the entry supervisor has
sufficient experience to properly conduct identification, testing, and
planning for the type of confined space involved.
Representative permit space means a confined space, or mock-up of a
confined space, that has entrance openings that are similar to, and is
of similar size, configuration, and accessibility to, the permit space
that authorized entrants enter. OSHA simplified this definition from
the definition included in the proposed rule, but the simplification is
a non-substantive change that clarifies the criteria for a representative
permit space. OSHA changed the term from "simulated permit-required
confined space" to "representative permit space" because the Agency
used the latter term in the general industry confined spaces standard
at Sec. 1910.146; however, changing the terminology has no effect on
the meaning of the term and the requirements relating to it. OSHA
changed this terminology to make this final rule more consistent with
Sec. 1910.146, for the reasons set forth above in the section,
"Decision to abandon the proposed new classification system."
Rescue means retrieving, and providing medical assistance to, one
or more employees who are in a permit space. OSHA defined this term in
the proposed rule, and included the term in the final rule unchanged
except for addition of the phrase "one or more" to clarify that a
rescue can involve the retrieval of a single employee.
Rescue service means the personnel designated to rescue employees
from permit spaces. This definition duplicates the definition of the
term in the general industry standard at Sec. 1910.146. In the
proposed rule, OSHA included specific statements that the term applied
to both onsite and offsite personnel, and to personnel designated by
the employer for either non-entry or entry rescue (or both). In the
final standard, OSHA elected to use the broader language of the general
industry standard for consistency; however, the Agency believes that
there is no substantive difference between the proposed and final
standards in the meaning of these statements.
Retrieval system means the equipment used for non-entry rescue of
persons from permit spaces. The purpose of the retrieval system is to
provide a means of removing an entrant from a space quickly without
exposing any additional employees to the hazards of permit-space entry.
This equipment typically includes a retrieval line attached around the
chest of the entrant or to a full-body harness worn by the entrant,
with the other end of the line attached to a lifting device or anchor.
Alternatively, the retrieval system may consist of a retrieval line
attached to wristlets or anklets when this method of pulling the
entrant from the confined space would be safer than using a body
harness.
The definition of this term in the final standard duplicates the
definition found in Sec. 1910.146 except that it allows for the use of
anklets. In proposed Sec. 1926.1213(a)(4), OSHA permitted the use of
"ankle straps" for retrieval in certain cases, and at least one
commenter supported this option in limited circumstances such as some
horizontal entries (ID-94, p. 1) (see also the discussion of the
requirements retrieval lines in Sec. 1926.1211(c)(1)).
Serious physical damage refers to an impairment or illness in which
a body part becomes functionally useless or substantially reduced in
efficiency.
One commenter noted that the proposed definition ("serious
physical harm" in the proposed rule) included impairments that are
"chronic," in addition to impairments that are "acute," and
asserted that this definition is, therefore, too broad because it would
apply on exposing an employee to a minor hazard that would not
interfere with the ability to self-rescue (ID-219.2, p. 76).
The term "serious physical harm" has a longstanding meaning
within the OSH Act that developed over many years through litigation
and many rulemakings. When developing the definition used in the final
rule, OSHA used the Agency's common understanding of "serious physical
harm," as provided in the Agency's Field Operations Manual (FOM),
which provides guidance to OSHA personnel conducting inspections and
other activities in the field.\11\ The Agency acknowledges that the
FOM, compared to the final rule, has a broader purpose of providing
guidance for the enforcement of the OSH Act as a whole, and that the
inclusion of the phrase "acute or chronic" from the FOM in the
definition may not provide meaningful guidance in the context of this
final rule. Therefore, OSHA changed the term to "serious physical
damage" to distinguish it from the broader term used in the FOM and
other contexts, and also did not include the phrase "or acute or
chronic" in this definition. By doing so, OSHA addressed the
commenter's concern that the reference to "chronic" impairments would
"cause the standard to apply to conditions that cannot pose a
significant risk of harm from the entry" and thereby "increase the
cost of the standard so drastically as to render it infeasible for all
construction industry sectors" (ID-219.2, p. 72). In addition, OSHA
recognizes that a similar issue exists with the reference to illness.
The proposed definition included "illnesses that could shorten life or
substantially reduce physical or mental efficiency by impairing a
normal functioning body part." This language could be read as
including chronic illnesses that do not limit the ability to self-
rescue. For the purposes of this standard only, OSHA intends the
reference to illness to encompass only those illnesses that could
interfere with the entrant's ability to exit the confined space.
Therefore, the final rule deleted this language, and inserted
"illness" after "impairment" to make clear that only illnesses that
could impede self-rescue are covered in the meaning of serious physical
damage.
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\11\ OSHA based the definition in the proposed rule on the Field
Inspection Reference Manual, chapter III, section C.2.b(2)(c). See
72 FR 67358. OSHA subsequently published the Field Operations Manual
and updated it in April, 2011, but the definition of "serious
physical harm" remains unchanged from the previous version:
"Impairment of the body in which part of the body is made
functionally useless or is substantially reduced in efficiency on or
off the job. Such impairment may be permanent or temporary, chronic
or acute. Injuries involving such impairment would usually require
treatment by a medical doctor or other licensed health care
professional." See CPL 02-00-150 II.C.3. at p. 4-11.
---------------------------------------------------------------------------
Nevertheless, the Agency does not believe that these distinctions
make a meaningful difference in employer duties because the majority of
hazards in a confined space that could cause a serious physical injury
are also likely to have the potential to impair the entrant's ability
to exit the space without aid. As OSHA stated in the FOM in a note
explaining the term "serious physical harm": "The key determination
is the likelihood that death or serious harm will result IF an accident
or exposure occurs" (Emphasis in the original).
Although one commenter belittled the proposed definition of
"serious physical harm" as encompaasing a "stubbed pinky finger or
toe" criticized the potentially broad scope of "serious physical
harm" by suggesting that it would include "a stubbed pinky finger or
toe" (ID-219.2, p. 75), such an argument improperly shifts the focus
of the standard away from the hazard requiring protection and to the
potential outcome of employee exposure to that hazard. If, for example,
there is a physical obstruction in a confined space that is only
capable of inflicting, as a maximum injury, a stubbed toe or finger,
then OSHA agrees with the commenter that such an obstruction would not
trigger any permit space requirements under this final standard.
However, if it is reasonably foreseeable that an obstruction could
cause the entrant to trip and either strike his/her head and lose
consciousness, or fall and break his/her arm or leg thereby impairing
the entrant's ability to exit the space, then the presence of this
hazard would trigger the permit-space requirements of this standard,
and the entry employer would need to address the hazard to protect
employees it directs.
Tagout, as used in this confined spaces standard, is a two-step
process that follows the general industry approach: First, a tagout
device must be placed on a circuit or equipment that has been
deenergized, in accordance with an established procedure, to indicate
that circuit or equipment being controlled may not be operated until
the tagout device is removed. Second, the employer must ensure that the
tagout provides equivalent protection to lockout, or that lockout is
infeasible. If lockout is infeasible, the employer must tag the
equipment and also provide protection from stored (residual) energy.
This ensures that the final rule is more closely aligned with the full
protections required for general industry work.
Both the general industry rule and this final rule permit
"tagout," in addition to "lockout," as a means of isolating some
hazards. The Agency added a definition of "tagout" to the
construction standard because OSHA intends the tagout process under
this construction rule to parallel the process under the general
industry rule, which requires compliance with Sec. 1910.147--The
control of hazardous energy (lockout/tagout) (see Sec. 1910.146(b);
Sec. 1910.147(a)(3)(ii)).\12\ That tagout process involves more than
the placement of a tag on equipment, and the final rule's definition of
"tagout" ensures that the regulatory text of this final rule reflects
the critical additional elements of the general industry standard.
---------------------------------------------------------------------------
\12\ OSHA did not include a definition of "tagout" in the
NPRM, though the preamble noted the Agency's intent that
"appropriate lockout/tagout procedures" were required for
isolation of physical hazards (72 FR 67386). As explained earlier in
this preamble, OSHA is tailoring the final rule to follow the
general industry rule more closely in response to numerous requests
by commenters. If OSHA had allowed the use of tags without more, it
would have been a key distinction from the general industry standard
and would have allowed employers to circumvent most of the permit-
space requirements involving physical hazards.
---------------------------------------------------------------------------
First, tagging equipment does not, by itself, prevent the release
of a hazard into the space. Therefore, under Sec. 1910.147(c)(2), an
employer may use tagout alone (i.e., not in conjunction with lockout)
only if an energy isolating device is not capable of being locked out
or the employer can demonstrate that the utilization of a tagout system
will provide full employee protection. The standard specifies that
"full employee protection" means that the employer shall demonstrate
that the tagout program will provide a level of safety equivalent to
that obtained by using a lockout program (Sec. 1910.147(c)(3)).
Paragraph (2) of the final rule's definition of tagout requires
employers to ensure the same level of safety if they use tagout when
lockout is feasible.
Second, the general industry standard provides examples safety
measures employers may use as a part of the tagout process to reduce
the likelihood of inadvertent energization: Removal of an isolating
circuit element, blocking of a controlling switch, opening of an extra
disconnecting device, or the removal of a valve handle (Sec.
1910.147(c)(3)(ii)). Under the final rule, employers may also use these
methods, when applicable to their work, as part of their process for
fulfilling their obligation to ensure that tagout provides equivalent
protection to lockout. Finally, even when tagout is used alone, the
general industry standard requires the employer to relieve, disconnect,
restrain and otherwise render safe stored (residual) energy (see Sec.
1910.147(d)(5)).
This same requirement applies in this final rule to the use of
tagout alone.
Test or testing means the process by which employers identify and
evaluate the hazards that may confront entrants of a permit space.
Testing includes specifying the identification and evaluation processes
the employer will perform in the permit space. This definition is
similar to the definition found in Sec. 1910.146, except that OSHA
added the word "test" to clarify that the definition applies to both
words. OSHA is also including a note identical to the note to this
definition on the general industry standard. The note emphasizes the
importance of testing as the basis for developing and implementing
adequate control measures.
Ventilate or ventilation means controlling a hazardous atmosphere
using continuous forced-air mechanical systems that meet the
requirements of 29 CFR 1926.57--Ventilation. This definition is
identical to the definition of these terms in the proposed rule. Some
commenters asserted that the final definition should allow for the use
of suction as a form of ventilation (ID-061.1, p. 1; -210, Tr. p. 289).
Although the final rule does not prohibit the use of suction, suction
is not an adequate means of providing the general ventilation required
by this final rule. The general industry standard does not include a
definition of "ventilation," but OSHA interpreted that standard as
precluding the use of "negative" suction ventilation to meet the
requirements of the standard. See April 24, 1996, letter to Verne
Brown. Suction may be appropriate to remove contaminants from a
specific operation close to the source of the contaminant, but not for
general ventilation of the entire confined space. OSHA is, therefore,
including the proposed definition of "ventilate" in the final rule.
Another commenter requested clarification regarding how an employer
can use forced air to "ventilate" while also complying with OSHA's
welding requirements at Sec. 1926.353(a) through (e) (ID-061.1, p. 2).
Section 1926.353(a)(3) requires local exhaust ventilation (LEV) when
general mechanical ventilation does not provide sufficient protection.
In addition, Sec. 1926.351(a)(1) authorizes the use of general
mechanical ventilation. The overlap of the welding standard and this
confined spaces standard is addressed earlier in the explanation of
Sec. 1926.1201(c). Both of these practices are consistent with the
requirement in this final rule that employers use ventilation that
consists of continuous forced-air. Accordingly, this confined spaces
standard requires that employers use continuous forced-air ventilation
to ventilate confined spaces. When an employee is welding inside a
confined space, Sec. 1926.353(a)(3) may require the employer to also
implement LEV. In conclusion, OSHA believes that LEV alone is not
sufficient for the purposes of providing general ventilation of a
confined space because LEV might not eliminate all of the toxic
material from the area, and any residual fumes would be more likely to
build up and create a potential or actual hazardous atmosphere in a
confined space.
Section 1926.1203--General Requirements
Final Sec. 1926.1203 sets forth general requirements for employers
that have operations within the scope of this standard. This section
establishes a comprehensive regulatory framework under which employers
must identify any permit spaces at their workplaces and take
appropriate measures for the protection of affected employees. It is
similar to the general industry rule at Sec. 1910.146(c). The
corresponding requirements in the proposed rule also were similar to
the requirements in this final rule, but this final rule organizes the
requirements differently.
Paragraph (a). Final Sec. 1926.1203(a) is similar to the
corresponding provision for general industry confined spaces at Sec.
1910.146(c)(1), with some minor modifications. Final Sec. 1926.1203(a)
requires an employer to have a competent person evaluate the spaces in
which employees it directs may work, and requires a two-step process
for the evaluation: (1) The competent person must evaluate whether a
space meets the definition of a confined space, and if so, (2) the
competent person must identify, in accordance with other
provisions of this final rule, any confined spaces that are PRCSs
through consideration and evaluation of the space, including testing of
the space as necessary. The final construction rule specifies both the
two-step approach and the competent-person requirement more explicitly
than in the general industry standard.
OSHA added the competent-person requirement in response to several
comments noting that the analysis required for these evaluations
necessitated some level of expertise. (See ID-025, p. 2; -028, p. 4; -
095, p. 2; -097, p. 3; -140, p. 3; -150, p. 2.) A "competent person,"
which Sec. 1926.1202 defines under this standard, must be capable of
identifying the hazards of permit spaces and have the authority to
eliminate them promptly. Because final Sec. 1926.1203(a) requires the
competent person to conduct initial testing as necessary, the competent
person also must be knowledgeable about appropriate testing. The
correct initial identification of permit spaces is an important part of
preventing unauthorized entry into those spaces and ensuring that
authorized entrants have adequate protection.
As discussed in the explanation of the definition of "entry
employer," each employer has a responsibility to protect all the
employees that it directs, including employees hired directly by that
employer as well as other employees, such as temporary workers, who are
under its the control at the worksite. Thus, each employer who directs
a temporary worker to a work area must ensure that a competent person
evaluates that area for confined spaces and permit spaces.
Final Sec. 1926.1203(a) also differs from the general industry
rule in that it explicitly specifies that the competent person must
identify confined and permit spaces through consideration and
evaluation of other elements of the confined space, and testing as
necessary. The atmospheric-testing requirement in this final rule is
less specific than the atmospheric-testing requirement in proposed
Sec. 1926.1204(b), which would have required employers to test for
atmospheric hazards using the procedures in proposed Sec.
1926.1204(b)(3). However, final Sec. 1926.1203(a) is more specific
than the corresponding provision in the general industry rule, which
states that employers must "evaluate the workplace" to determine if
any spaces are permit-required spaces. Accordingly, this final
provision explicitly requires testing if necessary to assess whether a
confined space is a permit-required confined space.
The testing required by final Sec. 1926.1203(a) is only initial
testing; final Sec. 1926.1204(b) addresses the detailed evaluation and
identification of hazards found within the space (see discussion later
in this preamble). The primary purpose of the assessment required by
Sec. 1926.1203(a) is to determine whether the space is a permit space
so that this information can be conveyed to employees, the controlling
contractor, and other employers at the site in order to prohibit
unauthorized entry. In some cases employers may discover that the space
is a permit space after only limited testing and decide not to allow
their employees to enter the space at that point rather than fully
assessing the space. Employers who intend to enter, however, may choose
to conduct more thorough testing that satisfies the requirements of
both Sec. 1926.1203(a) and Sec. 1926.1204(b) at the same time, so
long as it does not delay their notification of their employees and the
controlling contractor of the existence of the permit space.
Final Sec. 1926.1203(a) also requires the competent person to
consider and evaluate other elements of the confined space to determine
if it is a permit-required confined space. Such elements include the
configuration of the space and any physical hazards or obstacles to
egress from the space. Both the testing and consideration of the space
are essential in making an initial determination whether a confined
space is a permit-required space; the Agency believes that requiring
these basic steps will ensure that employers correctly identify PRCSs.
OSHA determined that employers must identify confined spaces that
meet the definition of a permit space at the time their work begins on
a worksite rather than when an employer decides that employees will
enter a confined space. The Agency believes that the initial workplace
survey is essential because it alerts employers to the need to take
measures to prevent unauthorized entry into these spaces. OSHA further
notes that while it may not always be feasible for employers to create
and follow a full permit program before assessing an previously
unexplored confined space, when it is feasible employers must treat any
entry into a confined space as if the space was a permit space and
eliminate or isolate the hazards before entry (see Sec. 1926.1203(d)
and (g)(2); Sec. 1926.1204(b)(2)). This applies to entries performed
to determine whether or not that space is a permit space.
Final Sec. 1926.1203(a) states that there are two steps to be
followed. The first step in the evaluation process is to determine
whether a space meets the definition of a confined space. If the
employer determines that there is a confined space on the worksite, the
second step requires the employer to evaluate, in accordance with other
provisions of this final rule, whether there are any actual or
potential hazards in the confined space. Actual or potential hazards
the employer must consider include atmospheric, engulfment, physical,
or any other type of hazard. Both stages of the initial evaluation are
crucial, as correctly identifying both confined spaces and the
conditions or potential conditions that would make a confined space a
permit-required confined space determines how the employer and
employees will perform in and around the space thereafter. Though the
general industry rule at Sec. 1910.146(c)(1) does not explicitly
identify the two steps, they are implicit in Sec. 1910.146(c)(1)
because an employer cannot evaluate the hazards of a confined space
without first evaluating whether there are confined spaces on the
worksite, as well as the location of these confined spaces. This
clarification that an employer must first consider whether there are
confined spaces at a worksite also was in proposed Sec. 1926.1204(b).
The Agency believes that making this requirement explicit is necessary
to ensure that employers correctly assess the spaces so that they can
adequately protect employees from the hazards present in the confined
spaces.
One commenter requested that OSHA clarify which employer has the
responsibility to evaluate hazards in confined spaces (ID-086, p. 4).
Final Sec. 1926.1203(a) clarifies the requirement by specifying that
each employer that directs employees who may work in a confined space
must perform the requisite evaluation. As in both the general industry
standard and the proposed rule, this evaluation provision applies to a
group of employers larger than just entry employers. The general
industry standard requires each employer to evaluate the workspace and
determine if any confined spaces are permit spaces (Sec.
1910.146(c)(1)). On a construction worksite, there typically are many
more employers than at general industry worksites. Therefore, under
final Sec. 1926.1203(a), each employer that directs employees who may
work in a confined space must identify all such spaces, and also
identify each space that is a permit space. The term "may work" means
that this requirement applies to any employer (not just entry
employers) at a construction worksite who should
reasonably anticipate employee exposure to confined spaces; the focus
is on whether the employee might enter the space, with the assumption
that entry would constitute "work." Accordingly, these employers must
determine whether employees they direct could foreseeably work in areas
at a worksite having confined spaces and whether any of these confined
spaces are permit spaces.
Employers may cooperate in identifying the confined spaces and
permit-required confined spaces on a worksite, but each employer
remains responsible for identifying spaces that could affect employees
it directs, including temporary workers. For example, several different
employers could work with a single competent person designated by one
of them, or by the controlling contractor, to identify the confined and
permit spaces on a site, but each employer must still ensure compliance
with the requirements of this standard.
The commenter who requested clarification about evaluating hazards
also asked why the controlling contractor or host employer did not have
the responsibility to evaluate the confined spaces, and asserted that
entry employers did not have the information necessary to classify a
space (ID-086, p. 4). The final rule follows the general industry
standard, which assigns employers the responsibility to evaluate the
spaces, and it is appropriate that the employers who direct employees
who may be exposed to the hazards of permit spaces are responsible for
classifying the space. Further, prior to entry into a permit space,
controlling contractors and entry employers have duties under final
Sec. Sec. 1926.1203(h) and (i) to exchange information about the
permit space.
Some commenters also suggested requiring a competent person to
perform additional duties specified by this standard, such as
monitoring or calibration of equipment (ID-025, p. 3; -028, pp. 3-4; -
150, p. 2). However, final Sec. 1926.1204(h) requires employers to
properly train employees who perform these duties during entry
operations. This final standard also includes training and knowledge
requirements for entry supervisors, attendants, and other specific
positions set forth in this standard to ensure that the employees
filling those positions have the knowledge and capabilities to perform
the specified duties once a permit space is identified (see final
Sec. Sec. 1926.1207-1210). The initial evaluation of spaces under
final Sec. 1926.1203(a) includes a competent-person requirement
because of the critical need to identify confined and permit spaces
early in the work at the site, and because the requirement to evaluate
spaces also applies to employers who are not entry employers and who
are, thus, not covered under the permit-space requirements of this
final rule.
One commenter suggested that OSHA add a note in the standard to
inform the regulated community that Material Safety Data sheets (now
called Safety Data sheets) may be helpful in evaluating confined space
hazards (ID-140, p. 4). OSHA agrees that this is useful information,
but observes that a note under the definition of "hazardous
atmosphere" in final Sec. 1926.1202 provides similar information and
achieves the commenter's stated result.
The same commenter also expressed concern that an employer, when
identifying confined space hazards, does not have to consider the work
it plans on performing inside the confined space, which may create a
hazard (e.g., welding or painting) (ID-140, p. 5). The commenter based
this assertion on proposed Sec. 1926.1204(b)(1), which provided that
an employer must identify confined space hazards without entering the
space and, thus, without first performing the work that could
potentially create a hazard. OSHA drafted final Sec. 1926.1203(a)
broadly, so it is not as specific as proposed Sec. 1926.1204(b)(1). An
employer who is planning to conduct entry operations must develop and
implement a written permit-space program under final rule Sec.
1926.1203(d). Furthermore, under final Sec. 1926.1205(c)(1), these
employers must specify acceptable entry conditions. Taken together,
these provisions require an employer that will conduct entry operations
to consider the work it is planning to perform and the hazards that may
result from this work when conducting the initial evaluation under
final Sec. 1926.1203(a).
One commenter asserted that the proposed prohibition on the use of
mechanical ventilation or changing the space's natural ventilation
during atmospheric testing would make some confined space work
dangerous (ID-077, p. 1). This commenter asserted that when an employer
is performing abrasive blasting on a tank interior, it is unsafe to
perform the abrasive blasting with the dust collector turned off just
to get a baseline reading. This commenter misunderstands the purpose of
this requirement. Under final Sec. 1926.1203(a), an employer's
evaluation is the first step for any confined space work. This
evaluation must occur before the employer performs either ventilation
or construction in the confined space (see Sec. 1203(a) and Sec.
1204(e)(1) (allows an exception for spaces where it is infeasible to
isolate the space). Only after the employer completes this initial
evaluation, and the other required steps of its permit-space program,
may it perform the construction work permitted under the rest of this
final rule (e.g., abrasive blasting with the dust collector turned on);
however, the employer must consider this work and the types of hazards
it might create when conducting the initial evaluation and when
developing its permit-space program.
Paragraph (b). Final Sec. 1926.1203(b) requires an employer that
identifies one or more permit spaces on a worksite to inform exposed
employees, employees' authorized representatives, and controlling
contractors of the existence and location of those permit spaces and
the known dangers inside. This duty applies to the employer that
identifies a permit space under final Sec. 1926.1203(a), as opposed to
the general industry language, which refers to "the employer." One of
the keys to protecting employees from PRCS hazards is for both
employers and employees to know the location of the PRCSs at the job
site, the characteristics of the hazards, and their associated dangers.
The provisions in this paragraph will achieve this goal.
The introductory language in paragraph (b) follows the general
industry standard except that the new rule specifies that the
employer's duty is triggered when the workplace has "one or more"
permit spaces, whereas the general industry standard just refers to
"spaces" in the plural. A single permit space triggers the employer's
duty under both the general industry standard and this final rule, and
OSHA is making this point explicit in the new rule.
Paragraph (b)(1). Final Sec. 1926.1203(b)(1) requires the employer
to inform exposed employees of the existence and location of, and the
danger posed by, the permit spaces by posting danger signs or by any
other equally effective means. Final Sec. 1926.1203(b)(1) is similar
to both the general industry rule at Sec. 1910.146(c)(2) and proposed
Sec. 1926.1209(a)(2). As OSHA noted in the preamble to the general
industry standard, many confined space accidents occur when an employee
fails to recognize the hazards present when entering a permit-required
confined space that the employer failed to mark as such. (58 FR 4462,
4483 (Dec. 17, 1993)). Therefore, OSHA determined that it is important
to identify permit spaces and to inform exposed employees of their
presence and the hazards involved. The Agency believes that employees
need this information to
understand the seriousness of potential hazards in PRCSs. To recognize
all methods of informing employees and to clarify the purpose of the
rule, OSHA is adopting a performance-oriented requirement in the final
rule. Accordingly, the employer must post a danger sign at or near PRCS
entrances, which the Agency believes is an effective way to ensure that
employees receive proper warning of the hazards in a PRCS, or
adequately inform exposed employees through another equally effective
means. Compliance with this requirement will ensure that exposed
employees who are not authorized entrants receive the information
necessary to prevent them from entering the spaces. Whatever method the
employer uses, the standard requires the employer to inform employees
exposed to the hazards posed by permit-required confined spaces of the
existence, location, and danger of those spaces. Everyone at the
construction site benefits from this information even if they do not
engage in construction activity (e.g., designers or architects).
However, OSHA notes that only employees who work in PRCSs need to
know the details about the potential hazards. Final Sec. 1926.1205(c)
provides that employers post the entry permit, which contains
information about the hazards of the PRCS and the measures used to
address those hazards, at the entry portal or make this information
available by any other equally effective means at the time of entry.
Final Sec. 1926.1212 provides that employers must make available to
each affected employee and his/her authorized representatives all
information required by this standard. Therefore, final Sec.
1926.1203(b) does not require employers to list specific PRCS hazards
on each sign.
In enforcing this provision, OSHA will make determinations about
whether methods other than warning signs used by employers to notify
employees about the spaces are truly as effective in imparting the
required information to employees. Such methods must go beyond just the
generic training required by this standard, for example, since generic
training would not identify the location of permit spaces at a specific
worksite. Therefore, an equally effective means would identify the PRCS
locations so that employees at the job site who may work near the PRCSs
would be aware of these locations and would understand the importance
of not entering them. The final rule places on employers, not
employees, the burden of using an effective means of identifying the
spaces and controlling the associated hazards.
If an employer uses a warning sign, the sign must convey that
entering the space is dangerous and that only authorized employees may
enter the space. In this final provision, OSHA included the note from
Sec. 1910.146(c)(2) that a sign reading "DANGER--PERMIT-REQUIRED
CONFINED SPACE, DO NOT ENTER" or similar language would satisfy the
requirement for a sign.\13\ This language is familiar to employers and
employees under the general industry standard, and is a clear warning
not to enter the space. The Agency believes that, when properly warned,
employees who are not authorized to enter the space would avoid
entering the PRCS, thereby preventing harm that could result from the
PRCS hazards.
---------------------------------------------------------------------------
\13\ OSHA's requirements for accident prevention signs in Sec.
1926.200 also apply.
---------------------------------------------------------------------------
Proposed Sec. 1926.1209(a) specified a two-step process that
involved notifying employees who would be in or near the permit space,
and then posting a sign. One commenter asserted that limiting
notification to employees who the entry employer anticipates will be in
or near the PRCS, as provided in proposed Sec. 1926.1209(a)(1), would
allow entry employers to avoid this requirement by claiming they did
not anticipate a particular employee was going to be in or near the
PRCS (ID-086, p. 5). Final Sec. 1926.1203(b)(1) requires notification
to exposed employees, which addresses this commenter's concern.
Other commenters argued that notifying employees near a PRCS, or
employees on the jobsite, was burdensome, and that posting a warning
sign would be sufficient to notify employees of the PRCSs and their
hazards (ID-124, pp. 6-7; ID-133, p. 2). At least one other commenter
argued that the barriers required by proposed Sec. 1926.1209(b) would
not always be feasible, and that posting warning signs would be
sufficient (ID-104, p. 3). OSHA agrees with these commenters, and
drafted final Sec. 1926.1203(b)(1) to specify that notification by
posting a warning sign would provide adequate notice to employees of
the existence, location, and hazards of the PRCSs.
Another commenter was unsure whether the posting requirement
applies when employers physically barricade the space (ID-099, p. 3).
It does. Final Sec. 1926.1203(b)(1) requires posting a warning sign or
using another equally effective means of informing exposed employer
about the hazards of the permit space, and final Sec. 1926.1203(c)
requires an employer to comply with final Sec. 1926.1203(b)(1) when
the employer prohibits entry into a confined space. Barricading the
confined space in a manner that prevents easy entry by unauthorized
employees (for example, by using a barricade that requires a key to
gain entry) would be an equally effective means of informing employees
under Sec. 1926.1203(b)(1), provided the employer ensures that all
affected employees receive information about such spaces and know that
they must not enter the spaces without authorization and without taking
proper precautions This means of compliance is consistent with the
general industry standard. See OSHA Directive CPL 02-00-100:
Application of the Permit-Required Confined Spaces (PRCS) Standard,
Appendix E, Section (c)(4), and July 22, 1998, letter to Mr. Black.
This commenter, as well as another, asked which employer has the
responsibility to post the warning sign if the space is a pre-existing
one or there are multiple entry employers (ID-099, p. 3; -133, p. 2).
Each employer that identifies that space, or receives notice of it, has
a duty to inform exposed employees about a permit space (see Sec.
1926.1203(b) and (c)). Each employer also has a responsibility to
identify permit spaces in which one or more of employees it directs may
work (see Sec. 1926.1203(a)). However, if there already is a warning
sign posted at the permit space, then the employer does not need to
post an additional sign. Rather, an employer that relies on a
preexisting sign to identify a space must ensure that the sign remains
posted for the duration of the potential exposure to the permit space
of employees it directs.
One of those commenters also asserted that the controlling
contractor or host employer should post the warning sign because of
their responsibility to ensure safe confined space entry operations.
Final Sec. 1926.1203(b)(1) requires the "employer who identifies a
permit space" to post the warning sign. For the purposes of this
standard, such employers include the controlling contractor, the host
employer, and the entry employer if these employers have employees who
could be exposed to permit-space hazards. The standard merely requires
that an employer post the sign, thereby retaining flexibility among
these entities to determine which employer is in the best position to
post the sign. When multiple employers will be working in the same
space, each employer has a separate duty to post the warning sign. If
an employer decides to enter the space, then this subject must be
resolved between the controlling contractor and the entry employers as
part of the coordination discussion required by final Sec.
1926.1203(h)(4).
Paragraph (b)(2). Final Sec. 1926.1203(b)(2) requires each
employer to notify its employees' representatives and the controlling
contractor, in a manner other than posting, of the hazards of permit
spaces and the location of those spaces. This requirement follows
proposed Sec. 1926.1209(a)(1). The primary purpose of this provision
is to ensure that the employer who identifies a permit space conveys
the location and general characteristics of the space to the designated
recipients as soon as possible. Later, in accordance with Sec.
1926.1203(h)(3), the entry employer must provide to the controlling
contractor a more thorough assessment of the space, the hazards it
expects to encounter, and the permit program measures it intends to use
to address those hazards. It is important for employers to provide the
controlling contractor with this information because the controlling
contractor is in the best position to convey the employer's information
to other employers at the site, and later share this information with
entry employers under final Sec. 1926.1203(h). Final Sec.
1926.1203(b)(2) is also important because it applies to employers who
identify a permit space, even if they choose not to allow their
employees to enter it, thereby ensuring that the location of all permit
spaces will be conveyed to the controlling contractor. Otherwise, the
information exchange in Sec. 1926.1203(h)(3) would only apply if the
employer chooses to enter the space and become an "entry employer."
One commenter questioned the necessity of notifying authorized
representatives, particularly if no such representatives are on the
project site (ID-099, p. 2). Both the general industry standard and
this final standard typically require information sharing between
employers and employees and the employees' authorized representatives
(see, e.g., Sec. 1910.146(l) and the discussion of Sec. 1926.1212
later in this document). OSHA believes that notifying employees and
their authorized representatives of the presence of confined spaces on
a worksite will contribute to the successful implementation of safe
entry operations, and the prevention of unauthorized entry, by ensuring
that they have knowledge of the hazards present in the confined space.
Sharing this information with employees' authorized representatives
provides an additional way to ensure that this information reaches the
employer's employees, and alerts the authorized representatives that
there is the potential for permit entry operations. Final Sec.
1926.1203(b)(2) also will facilitate the effective sharing of this
important information among other employers at the site whose
activities may impact the PRCS, as well as the employees of those other
employers.
In some cases, an authorized representative of employees may have
more extensive knowledge than the employee about particular hazards, or
may be in a better position than the employee to assess the safety of
the project site based on past experience at similar sites; therefore,
OSHA sees no reason to deviate from the accepted general industry
practice of information sharing with the employee's authorized
representatives. Final Sec. 1926.1203(b)(2) limits this notification
requirement to only the representatives of the employer's employees.
Also, while employers must notify these representatives in a timely
manner to ensure that the information is available to the employee
representatives and controlling contractor in sufficient time for it to
be useful, this notification may be by any means normally used for
communication with the employee representative or agreed upon in
advance, including telephonic or electronic communication. If there are
no authorized representatives of employees, the employer must still
notify employees under final Sec. 1926.1203(b)(1), and the controlling
contractor under final Sec. 1926.1203(b)(2).
Another commenter asserted that notifying the controlling
contractor of the existence of every PRCS was unnecessary because
posting would provide adequate notification (ID-090, p. 2). With
respect to employees exposed to confined space hazards, OSHA agrees
with this commenter that posting will provide these employees with
adequate notification because of the proximity of the danger sign to
the PRCS. Therefore, final Sec. 1926.1203(b)(1) requires only posting
to notify employees of confined space hazards, similar to the general
industry standard at Sec. 1910.146(c)(2). However, with respect to the
controlling contractor and the employees' authorized representatives, a
separate notification requirement is necessary to ensure a timely and
efficient information exchange, rather than relying on the controlling
contractor and employees' authorized representatives to explore the
worksite and discover each danger sign.
Paragraph (c). Final Sec. 1926.1203(c), which is similar to Sec.
1910.146(c)(3), requires an employer that identifies, or has
notification of, a permit space to take measures that are effective in
prohibiting entry when that employer decides employees it directs will
not enter permit spaces, and to comply with the rest of the standard as
applicable. This provision applies to all employers that: Identify
permit spaces under final Sec. 1926.1203(a); receive notification from
the controlling contractor of the presence of a permit space under
final Sec. 1926.1203(h)(2); receive notification of the permit space
from a danger sign posted at a permit space; or receive notification of
the permit space from any other means. While proposed Sec.
1926.1209(b) required employers not conducting confined space
operations to take specific steps to prohibit entry by employees, final
Sec. 1926.1203(c) follows the performance-oriented language of the
general industry rule.
The effective measures to prohibit entry could include permanently
closing the space and providing barriers, supplemented by training
employees and the posted danger signs required under Sec.
1926.1203(b). In any event, the steps taken by the employer must be
effective in preventing employee entry into permit spaces. In OSHA's
experience, posting signs without barriers is generally less effective
than with barriers, so employers who choose the former method must take
special care to ensure that employees they direct recognize and
understand permit-space warning signs, that they are knowledgeable
regarding the hazards associated with these spaces, and that they
understand that entry into the spaces is not authorized. This
reinforces the employer's existing obligation under Sec. 1926.21(b)(2)
to instruct each employee in the recognition and avoidance of unsafe
conditions. OSHA believes that these provisions in the final rule will
protect employees from unauthorized entry into permit spaces.
Final Sec. 1926.1203(c) also requires employers covered by this
provision to comply with the rest of the confined spaces in
construction standard, as applicable. The parallel provision in the
general industry standard requires employers to comply with specific
provisions of that standard, which correspond to the following
provisions in this final rule: Sec. 1926.1203(a), relating to
identification of permit spaces in the workplace; Sec.
1926.1203(b)(1), relating to informing employees of the presence of
permit spaces; Sec. 1926.1203(f), relating to changes in confined
spaces; and Sec. 1926.1203(h), relating to the controlling
contractor's information exchange with employers. Employers must comply
with those provisions that are applicable. For example, under final
Sec. 1926.1203(h)(2) and (h)(4), controlling contractors must inform
and coordinate
with employers that direct employees (including employees not involved
directly in the confined space operations) whose activities could,
either alone or in conjunction with the activities performed in the
confined space, foreseeably result in a hazard to employees in the
confined space. Additional provisions of this standard may apply as
well, depending on the activities of the employer in question. For
these reasons, in final Sec. 1926.1203(c), OSHA used the general
language "all other applicable requirements" rather than specifying
different sections of the final standard that may be applicable.
Paragraph (d). Final Sec. 1926.1203(d) requires any employer that
has employees who will enter a confined space to have and implement a
written permit-space program that meets the requirements of this final
standard, and to make the program available for inspection by employees
and their representatives. Final Sec. 1926.1203(d) is similar to the
corresponding provision for general industry confined spaces at Sec.
1910.146(c)(4), with slight modifications. OSHA modified the language
of this final provision slightly to clarify that entry employers do not
necessarily have to develop a separate written program for each
individual entry. Rather, an entry employer may reuse a program it
developed previously, or a program developed by another employer, an
industry association, or other entity, so long as the program is
appropriate for the specific entry operations and the type of work
involved, and that the program meets the requirements set forth in
final Sec. 1926.1204. OSHA anticipates that in most cases employers
will be able to use or modify an existing program and will not need to
develop an entirely new program.
Although the final rule requires the permit program to meet the
requirements of final Sec. 1926.1204, OSHA will allow employers to
fulfill this obligation through a combination of the permit program and
the entry permit itself. In a 2006 interpretation of the general
industry standard, the Agency noted that employers could use the same
permit program to cover multiple spaces:
If employees will enter a permit space, an employer must develop
and implement the means, procedures and practices necessary for safe
permit space entry operations in accordance with Sec.
1910.146(d)(3). Before a specific permit space is entered, the
employer must document the completion of the measures required by
Sec. 1910.146(d)(3) by preparing an entry permit. A specific permit
must be completed prior to each entry. However, if there are several
similar tanks, with the same conditions and hazards, the same means,
procedures and practices could be used for this similar group of
tanks.
September 21, 2006, letter to Fred Rubel. OSHA anticipates that, in
practice, some employers in construction may operate with a general
permit-space program that covers numerous types of permit spaces and
hazards, along with a specific permit that includes the unique hazards
and practices applicable to each of those spaces. The Agency has no
objection to this approach, provided the permit conveys all of the
applicable information to employees at the required times, this
information is readily available to the employees for reference during
entry operations, and employees receive the training necessary for them
to refer to the appropriate document for the required information.
Therefore, for this purpose, OSHA allows employers to treat the permit
as part of the written permit space program required by this section.
The proposed rule did not require an employer to have a written
confined space program. Instead, in proposed Sec. 1926.1219(a), the
proposed rule provided that the employer could keep either a copy of
the standard on the worksite or a copy of a program that incorporated
the requirements of the standard. At least one commenter recommended
that OSHA revise proposed Sec. 1926.1219(a) so that the provision
required employers to have a written copy of the final rule on site,
regardless of whether the employer had a written copy of its confined
spaces program (ID-108, p. 4). Several other commenters disagreed with
OSHA's approach in the proposal, and urged OSHA to require a written
confined space program as the general industry standard does. One
commenter stated, "For a confined space program to be effective, it
must be easy to understand and implement. . . . Providing employees
with the generic terms of the standard--even if they read it--would not
provide that kind of clarity. Instead, they need information specific
to working at the particular worksite [which a program provides]" (ID-
220, p. 28-29). Another commenter asserted, "Having a written program
gives everyone a clear idea of what is required and their roles and
responsibilities. It also is an important reference document.
Construction contractors commonly have written safety programs, and
many already have written confined space programs as well, so
compliance should not be difficult" (ID-150, p. 3). Another commenter
asserted that the written program in the general industry standard
contributed to employee safety, and that the lack of a written program
in the proposal diminished employee safety and also weakened training
because "the vision of what is expected can not be focused" (ID-129,
p. 3). A different commenter stated that requiring a written plan was
the most important provision of the standard because it ensures that
employers plan the permit space entry carefully and are familiar with
the hazard analysis; it also provides an important reference document
(ID-130, p. 1). The latter two commenters also noted that the lack of a
written program in the proposal was a step backwards from the general
industry rule.
OSHA wrote this final standard in performance-based language to be
consistent with the general industry rule; consequently, this final
standard does not provide the specific classification system and
detailed step-by-step procedures for employers to follow found in the
proposed rule. Therefore, this final rule is less suitable as a
replacement for a written permit program than was the proposed rule.
Accordingly, OSHA does not believe that maintaining a copy of this
final rule on site, in lieu of having a written permit-space program,
will ensure that an employer's confined space procedures will provide
adequate employee protection. OSHA agrees with the commenters who
supported a written program.
The Agency believes that final Sec. 1926.1203(d) will effectively
prevent unauthorized entry into PRCSs, and so protect employees from
encountering PRCS hazards. The Agency also believes that it is
necessary for employers to have a written confined space program at the
worksite as a reference for employees involved in implementing safe
entry procedures. A written program provides the basis for any permit-
space entry operation, as well as a reference for guiding and directing
supervisors and employees alike. A written program also will serve to
assign accountability for all functions related to permit-space entry,
and will aid in avoiding mistakes and misunderstandings. Additionally,
because of the compliance flexibility and discretion that the standard
provides to the employer, a written plan is essential to demonstrate
that the employer took all aspects of permit-space entry into
consideration. For these reasons, OSHA decided to specify in the final
rule that the permit-space program be in writing. The written plan
must, in combination with the permit itself, address the employer's
particular facts
and circumstances to ensure that the procedures will protect employees'
safety. For all of the reasons above, requiring an employer to have and
implement a written permit-space program, rather than simply relying on
a copy this final rule, will enhance the protection afforded to
employees from confined space hazards.
Final Sec. 1926.1203(d) explicitly requires employers to implement
their written permit-space program at the jobsite. A program that is
drafted but not implemented at the jobsite will not protect employees
from the hazards of permit-space entry. This requirement is implicit in
the general industry standard, but OSHA has made it explicit in this
final rule. Additionally, this final provision requires employers to
make the written program available for inspection by employees and
their authorized representatives. The Agency believes that such access
is essential for the successful implementation of a permit-space entry
program. Finally, final Sec. 1926.1203(d) clarifies that the employer
must make the program available to employees prior to, and during,
entry operations, which are the periods that the written program is
most important. During these periods, employees must understand the
program to ensure their safety. The general industry rule requires that
the program be available, and this final rule simply clarifies that it
must be available during these critical periods.
Paragraph (e). Final Sec. 1926.1203(e) authorizes an employer to
use alternate procedures for permit-space operations under limited
circumstances. The standard permits these alternative procedures when
an employer can demonstrate that it eliminated or isolated all physical
hazards through engineering controls and controls atmospheric hazards
through continuous forced-air ventilation. OSHA notes that continuous
ventilation is a control method, and not a method suitable for
eliminating or isolating an atmospheric hazard, so final Sec.
1926.1203(e) spaces remain permit-required spaces, but can be entered
without a permit program under the alternate procedures specified in
this final section. OSHA believes that in the context of construction
work, these alternative procedures provide adequate safety measures
while being more efficient, and less costly to implement, than
complying with the full permit-program requirements specified by final
rule Sec. 1926.1204. The requirements for the alternate procedures
allowed under the final construction rule are similar to the
corresponding provisions of the general industry confined spaces
standard at Sec. 1910.146(c)(5), but contain some substantive
modifications explained in the following paragraphs. OSHA also added
the word "only" to the introductory provision to clarify that an
employer cannot use these alternate procedures under any other
circumstances. In addition, final Sec. 1926.1203(e) is similar to
proposed Sec. 1926.1216.
Paragraph (e)(1). Final Sec. 1926.1203(e)(1), which is
substantively identical to Sec. 1910.146(c)(5)(i), sets forth the six
conditions that an employer must meet before employees can enter a
permit space under the alternative procedures specified in paragraph
(e)(2). OSHA modified final Sec. 1926.1203(e)(1) slightly from the
general industry rule to state explicitly that employers must meet all
of the conditions listed in final Sec. 1926.1203(e)(1) before using
the alternate procedures specified by final Sec. 1926.1203(e). If
employers meet all of these conditions, the employer need not comply
with final Sec. Sec. 1926.1204-1206 (addressing permits and permit
programs) or final Sec. Sec. 1926.1208-1211 (setting forth specific
duties for permit-required confined spaces). Employers in permit spaces
qualified to use the alternate procedures, however, still must comply
with final Sec. 1926.1207 (training requirements), final Sec. Sec.
1926.1212-1213 (Employee participation and provision of documents to
the Secretary), and the other provisions of final Sec. 1926.1203,
including the information exchange requirements in final Sec.
1926.1203(h).
One commenter asserted that any space that requires ventilation to
protect employees should have an attendant to monitor conditions in the
space (ID-060, p. 3). The general industry standard does not require an
attendant for entry under its parallel alternative entry procedures,
and OSHA disagrees with this commenter, who offered no explanation for
this assertion. Employers are only eligible to use the alternate
procedures in final Sec. 1926.1203(e) when the employer can
demonstrate that the only hazard posed by the permit space is an actual
or potential hazardous atmosphere, can demonstrate that continuous
forced-air ventilation alone provides adequate safety, and the employer
continuously monitors the space during entry. These requirements make
the eligible spaces safe for employee entry. The more extensive
requirements of final Sec. 1926.1204 apply to those permit spaces with
hazards that employers cannot isolate by engineering controls, or that
the employer cannot control by ventilation. The Agency notes that the
alternative entry procedures are only available for as long as the
physical hazards remain isolated and the atmospheric hazards
controlled. Employers must take care to ensure that physical hazards
remain isolated and must exit the space and implement a full permit
program if there is any indication that workers might be exposed.
Another commenter requested that the final rule clarify that
employers need not provide attendants and rescue services for final
Sec. 1926.1203(e) spaces (ID-099, p. 3). Final Sec. 1926.1203(e)(1)
clarifies that spaces qualifying for the alternate procedures under
Sec. 1926.1203(e) do not need to comply with final Sec. Sec.
1926.1204-1206 (addressing permits and permit programs) and Sec. Sec.
1926.1208-1211 (setting forth specific duties for permit-required
confined spaces).
Paragraph (e)(1)(i). Final Sec. 1926.1203(e)(1)(i), which is
similar to the general industry standard at Sec. 1910.146(c)(5)(i)(A),
sets out the first condition that employers must meet before using the
alternative procedures. It provides that an employer may use these
alternate procedures only when the employer can demonstrate that it
eliminated or isolated all physical hazards using engineering controls,
and that the only hazard posed by the space is an actual or potential
hazardous atmosphere. OSHA modified this provision from the general
industry rule by adding language that an employer can use the
alternative procedures when it can demonstrate that all physical
hazards are "eliminated or isolated" by engineering controls within a
confined space, rather than just "eliminated." OSHA adopted this
change from proposed Sec. 1926.1216(a), which provided that employers
could use the equivalent provisions when they could demonstrate the
isolation of physical hazards.
One commenter supported the proposed rule's provisions for entry
into "controlled-atmosphere confined spaces" in proposed Sec.
1926.1216, which the commenter described as requiring the elimination
of all physical hazards (ID-220, p. 6). Proposed Sec. 1926.1216 did
not, however, specify that physical hazards must be eliminated before
an employer could use the alternative ventilation-only procedures in
that section; it required the employer to "determine and implement an
isolation method" for each of the physical hazards identified (see
proposed Sec. 1926.1216(a)(1); see also proposed Sec.
1926.1216(a)(3), which required the documentation of the method for
"isolating" each physical hazard). The
final rule, which defines "isolate or isolation" in final Sec.
1926.1202 to allow employers to isolate physical hazards within a
confined space like the proposed rule, and provides for isolation using
the same methods specified in the proposed definition, which include
the elimination or removal of hazards. (See the discussion of this
definition earlier in this preamble.)
Another commenter expressed concern that, in construction work,
employers would almost never be able to use these alternate procedures
because the complete elimination of all physical hazards, such as an
iron angle at head level, from such a space would, in many cases, not
be feasible or necessary (ID-061, p. 6). OSHA believes that isolating
physical hazards using methods such as wrapping a low-hanging pipe with
foam or locking out pieces of equipment (see the definition of
"isolate or isolation" in final Sec. 1926.1202) can be sufficient to
prevent injury from those hazards. Thus, the Agency decided that
isolating or eliminating physical hazards is the most appropriate
approach in the construction context where potentially isolated
physical hazards are likely to be more prevalent because of the nature
of construction, and adopted the proposed requirement accordingly.\14\
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\14\ The general industry standard does not allow employers to
use the alternative entry procedures in Sec. 1910.146(c)(5)(ii) if
any physical hazard remains in the space, even if that hazard is
temporarily "removed" or "isolated" in accordance with the
standard. See October 12, 1995, memorandum to Linda Anku. OSHA does
not adopt that interpretation for this construction rule.
---------------------------------------------------------------------------
Paragraph (e)(1)(ii). Final Sec. 1926.1203(e)(1)(ii), which
corresponds to the general industry standard at Sec.
1910.146(c)(5)(i)(B), sets out the second condition required for
employees to use the alternative procedures: An employer must be able
to demonstrate that continuous forced-air ventilation alone provides
adequate safety from hazardous atmospheres and that entrants can safely
exit the space in the event the ventilation system stops working. For
the space to be safe under this final provision, the mechanical
ventilation must control the hazardous atmosphere at levels that are
below the levels at which they are harmful to entrants so that, if the
ventilation shuts down for any reason (such as loss of power), the
employees will have sufficient time to recognize the hazard and exit
the space. Employers have a responsibility to specify a hazard level
that is adequate for employees to escape the confined space before the
hazard reaches unsafe levels. As with the general industry standard,
employers must account for the introduction of additional hazards from
the work conducted in the permit space, such as additional gases
generated by painting or application of coating, and ensure that the
ventilation is adequate to account for the introduced hazards (see 58
FR 4462, 4488 (Jan. 14, 1993)). In addition, certain types of work are
inherently unsuitable for entries under Sec. 1926.1203(e). In the
preamble to Sec. 1910.146(c)(5) of the general industry standard, OSHA
explained that "work with hazardous quantities of flammable or toxic
substances and hot work are not permitted" because they would
"introduce hazards beyond those accounted for by the determination
that the permit space can be maintained safe for entry" through
mechanical ventilation alone (id). For the same reasons, OSHA does not
permit this work for entries under Sec. 1926.1203(e).
Final Sec. 1926.1203(e)(1)(ii) also requires that the employer be
able to demonstrate that in the event the ventilation system stops
working, entrants can exit the space safely. OSHA based this
requirement on proposed Sec. 1926.1216(a)(2)(ii) which would have
required employers to document their determination that monitoring
procedures would give sufficient warning to allow entrants to exit. In
the final rule, OSHA moved the monitoring requirement to
1926.1203(e)(2)(vi). However, the Agency retained the determination
requirement in (e)(1)(ii) to make clear that safe exit time must be
factored into the selection of monitoring procedures, intervals, and
detection levels, including the levels at which monitoring alarms are
triggered. Safe exit time is a precondition for reliance on alternative
procedures.
One commenter asserted that determining what is a sufficient time
to exit, as required by the proposed rule, would require an industrial
hygienist (ID-114, p. 2). OSHA does not believe an industrial hygienist
is the only person capable of making this determination because the
final rule bases the time required for a safe exit on the physical
attributes of the space. Any person trained in confined-space
operations under final Sec. 1926.1207 should be able to use these
attributes to determine the time needed by entrants to safely exit the
confined space as required by Sec. 1926.1203(e)(1)(ii). For example,
if the employer is unsure how quickly the atmosphere would return to a
hazardous atmosphere following a ventilation failure, the employer can
run a test by shutting off the ventilation when no one is in the space
to determine the amount of time before the continuous monitor alarm
sounds. The rest of the calculation would depend on the amount of time
necessary for employees to exit the space from their work locations
inside the permit space, which could also be tested, factoring in an
appropriate safety buffer of time.
Several commenters asserted that OSHA should allow an employer to
use natural ventilation alone, or suction, to control a hazard under
the alternate procedures specified by final Sec. 1926.1203(e). OSHA
addressed these comments in the earlier discussion of the definition of
"ventilate or ventilation" in this preamble.
There was a considerable amount of discussion in the record about
whether the alternative procedures should be available for isolated
spaces in sewers and other continuous spaces (see, e.g., ID-75.1, p. 4;
-210, Tr. pp. 176-177, 185-93, 206-208; -211, Tr. pp. 144-159). For an
employer to apply final Sec. 1926.1203(e) to a sewer, the employer
would have to demonstrate total isolation of the section of the sewer
from other potential sources of hazards (e.g., the sewer distribution
system) to guard against the introduction of new hazards into the
space; the employer then must demonstrate that the ventilation system
is maintaining the space sufficiently below the trigger limits for the
atmospheric hazard (e.g., below 10 percent LFL or an applicable PEL) so
that employees would have time to escape if the ventilation failed.
Total isolation of sewer manholes or selected sections of piping may
not be practical or feasible to prevent hazards (e.g., flammable gases)
from entering the space because employers normally perform entries with
the system in service. See Aug. 15, 1996, letter to Larry Brown. Final
Sec. 1926.1203(e)(1)(ii) includes a clear requirement that an employer
that relies on continuous forced-air ventilation to maintain spaces
safe for entry must be able to establish that other measures are not
necessary to protect entrants. For additional information about
isolating spaces within sewers and other continuous confined spaces,
see the discussion of Sec. 1926.1204(c)(3).
Paragraph (e)(1)(iii). Final Sec. 1926.1203(e)(1)(iii), which is
identical to the general industry standard at Sec.
1910.146(c)(5)(i)(C), is the third condition required before an
employer may use the alternative procedures. It also is substantively
similar to proposed Sec. 1926.1216(a)(2) and (a)(3), which provided
that employers must test the atmosphere and document the results; this
final provision, however, is less detailed than the proposed
provisions. This final provision requires the
employer to develop monitoring and inspection data that supports the
demonstrations required by paragraphs (e)(1)(i) and (e)(1)(ii), i.e.,
the elimination or isolation of physical hazards such that the only
hazard in the space is an actual or potential hazardous atmosphere, and
that continuous forced-air ventilation is sufficient to maintain the
space safe for entry. The atmospheric-monitoring data must show that
ventilation will keep the atmosphere inside the permit space safe for
entry. In this context, the final rule uses "monitoring" to match the
general industry language, but the term encompasses both the initial
testing of atmosphere and the subsequent measurements. The data
required by paragraph (e)(1)(iii) are essential for the employer and
employees, as well as OSHA, to determine whether the employer can
maintain the space safe for entry with the use of ventilation alone.
Paragraph (e)(1)(iv). Final Sec. 1926.1203(e)(1)(iv), which is
identical to the general industry standard at Sec.
1910.146(c)(5)(i)(D), is the fourth criterion employers must meet to
use the alternative procedures. This provision also is similar to
proposed Sec. 1926.1204(b)(2). This final provisions specifies that,
if an initial entry into the permit space is necessary to obtain the
data required by paragraph (e)(1)(iv), the employer must perform the
entry in compliance with final Sec. Sec. 1926.1204-1211 (i.e., the
full permit-space program).\15\ This entry requirement, which was in
the proposed rule, is necessary to protect employees from hazards that
the employer did not fully identify or assess. The rule requires
employers to obtain monitoring and inspection data without entry when
feasible, but acknowledges that in many instances it will be necessary
to perform an initial entry into the space to make the necessary
determinations. This requirement will ensure that the initial entry is
safe.
---------------------------------------------------------------------------
\15\ OSHA recognizes that compliance with final Sec.
1926.1204(e)(1) requires employers to test conditions in the permit
space to determine if acceptable entry conditions exist before entry
is authorized to begin. An employer will be in compliance if the
employer can demonstrate that initial entry is necessary to gather
the data to comply with Sec. 1926.1203(e)(1)(iii), and enters under
a permit program that complies with all other provisions except the
pre-entry testing in Sec. 1926.1204(e)(1). Note that the
alternative entry procedures are not available if the work space is
part of a continuous system and has not been effectively isolated.
---------------------------------------------------------------------------
Paragraph (e)(1)(v). Final Sec. 1926.1203(e)(1)(v), which is
identical to the general industry standard at Sec.
1910.146(c)(5)(i)(E), sets out the fifth criterion for using the
alternate procedures. It also is similar to proposed Sec.
1926.1216(a)(3), though less detailed. This final provision mandates
that employers document the determinations and supporting data required
by paragraphs (e)(1)(i) through (e)(1)(iii) of this final rule, and
make this documentation available to employees who enter the spaces
under the terms of final Sec. 1926.1203(e), or to their authorized
representatives. This documentation will enable the employer,
employees, their authorized representatives, and OSHA to evaluate the
validity of the determinations made under final Sec. 1926.1203(e) for
a particular permit space.
Paragraph (e)(1)(vi). Final Sec. 1926.1203(e)(1)(vi), which is
identical to the general industry standard at Sec.
1910.146(c)(5)(i)(F), is the final condition that employers must meet
to use the alternate procedures. The section does not correspond to any
section of the proposed rule due to the different organization of the
proposal. It requires that employers perform entry under the alternate
procedures specified by final Sec. 1926.1203(e) in accordance with the
specific procedures required by final Sec. 1926.1203(e)(2).
Paragraph (e)(2). Final Sec. 1926.1203(e)(2), which is similar to
Sec. 1910.146(c)(5)(ii), sets forth the procedures that employers must
follow for permit-space entries made under final Sec. 1926.1203(e)(1).
The introductory paragraph in Sec. 1926.1203(e)(2) is identical to the
introductory paragraph in the general industry standard. This
introductory paragraph does not correspond to any section of the
proposed rule due to the different organization of the proposal.
Paragraph (e)(2)(i). Final Sec. 1926.1203(e)(2)(i), which is
identical to the general industry standard at Sec.
1910.146(c)(5)(ii)(A), requires that employers must, before removing an
entrance cover, eliminate any conditions that make it unsafe to do so.
It also is similar to proposed Sec. 1926.1216(c)(1). Some conditions
in a permit space may make it hazardous to remove a cover from the
space. For example, if the atmospheric hazards within the space cause
high pressure in the space, the cover may blow off in the process of
removing it. To protect employees from such hazards, employers must
make a determination as to whether it is safe to remove the cover. Such
a determination requires the employer to examine the conditions
expected to be in the permit space. Under high-pressure conditions,
employers must check the cover to determine if it is hot; if so, the
employer must loosen a cover fastened in place gradually to release any
residual pressure. The employer also must determine whether conditions
at the site could cause a hazardous atmosphere to accumulate in the
space, which would make it unsafe for employees to remove the cover.
The employer must not remove the cover until it is safe to do so.
Paragraph (e)(2)(ii). Final Sec. 1926.1203(e)(2)(ii), which is
nearly identical to the general industry standard at Sec.
1910.146(c)(5)(ii)(B), requires employers to guard openings to permit
spaces after removing entrance covers to protect employees from falling
into the space and to protect employees in the permit space from
injuries caused by objects entering the space. It also is similar to
proposed Sec. 1926.1216(c)(2), though less specific than the proposed
provision. The guard could be in the form of a railing, a temporary
cover, or any other temporary barrier that provides the required
protection. If the opening to the space would not allow employees and
objects to fall into the space, then no additional guarding is
necessary. Final Sec. 1926.1203(e)(2)(ii) differs from Sec.
1910.146(c)(5)(ii)(B) in that it requires the opening to be
"immediately" guarded by a railing, temporary cover, or other
temporary barrier. The general industry rule requires employers to
provide the guarding promptly. The Agency made this change to clarify
that the guarding must happen as soon as possible.
Paragraph (e)(2)(iii). Final Sec. 1926.1203(e)(2)(iii), which is
substantively identical to the general industry standard at Sec.
1910.146(c)(5)(ii)(C), requires the employer to test the internal
atmosphere of the permit space with a calibrated, direct-reading
instrument before any employee enters the space. This provision also is
similar to proposed Sec. Sec. 1926.1216(d)(2) and 1926.1205(a)(1),
though not as detailed as the testing required by proposed Sec.
1926.1205(a). If the employer can demonstrate that testing prior to
entry is infeasible, then the employer must at a minimum comply with
permit program requirements during the testing process in accordance
with Sec. 1926.1203(e)(1)(iv).
The employer must test the atmosphere, in sequence, for oxygen
content, flammable gases and vapors, and potential toxic gases and
vapors. Employers must first perform a test for oxygen because most
combustible gas meters are oxygen dependent and will not provide
reliable readings in an oxygen-deficient atmosphere. Employers must
test for combustible
gases next because, in most cases, the threat of fire or explosion is
both more immediate and more life threatening than exposure to toxic
gases. The testing must be appropriate for the space; for example, if
there is a stratified atmosphere where gases of different densities
layer within a confined space, the employer must perform testing at
different depths.
This testing is necessary to determine whether ventilation alone
will maintain the space safe for entry. The results of this testing
must be within the expected range for the space, based on the
employer's determination under paragraph (e)(1)(ii), or the employer
may not enter under the alternative procedure.
Paragraph (e)(2)(iv). Final Sec. 1926.1203(e)(2)(iv), which is
identical to the general industry standard at Sec.
1910.146(c)(5)(ii)(D), prohibits employees from occupying the space
when a hazardous atmosphere is present in the space. This provision has
the same purpose as proposed Sec. 1926.1216(e)(2)--namely, to ensure
that there is no hazardous atmosphere in an alternate procedures space
during entry. However, due to the different organization of the
proposed and final rules, the language and organization of these two
provisions are different. To ensure that there is no hazardous
atmosphere in a permit space when an employer enters using the
alternate procedures, final Sec. 1926.1203(e)(2)(iv) requires
employers conducting any entry into a permit space containing a
hazardous atmosphere to comply with the full permit-space program
requirements in final Sec. Sec. 1926.1204-1211. See also the
discussion of final Sec. 1926.1203(e)(2)(vii)(A) below.
Paragraph (e)(2)(v). Final Sec. 1926.1203(e)(2)(v), which is
identical to the general industry standard at Sec.
1910.146(c)(5)(ii)(E), sets out requirements for using continuous
forced-air ventilation to maintain the permit space safe for entry.
Final Sec. 1926.1203(e)(2)(v)(A) also is identical to Sec.
1910.146(c)(5)(ii)(E)(1) and similar to proposed Sec. 1926.1216(d)(3).
It requires that no employee may enter the space until the forced-air
ventilation eliminates any hazardous atmosphere in the space. Final
Sec. 1926.1203(e)(2)(v)(B) is identical to Sec.
1910.146(c)(5)(ii)(E)(2), and shares the purpose of proposed Sec.
1926.1216(e)(2) to ensure that the ventilation will continue to control
the atmospheric hazards while the employer is conducting entry
operations. It requires the employer to direct the ventilation so as to
ventilate the immediate areas where an employee is, or will be, present
in the space, and requires the ventilation to continue until all
employees leave the space. Final Sec. 1926.1203(e)(2)(v)(C) is
identical to Sec. 1910.146(c)(5)(ii)(E)(3), and has no corresponding
section in the proposed rule. It requires that the air supply for the
ventilation must be from a clean source, and must not increase the
hazards in the space. These provisions ensure that the atmosphere in
the permit space will remain safe during the entire entry operation.
Paragraph (e)(2)(vi). Final Sec. 1926.1203(e)(2)(vi), which is
similar to the general industry standard at Sec.
1910.146(c)(5)(ii)(F), requires entry employers to continuously monitor
the atmosphere in the permit space. Employers may use periodic
monitoring, rather than continuous monitoring, only if the employer can
demonstrate that the equipment for continuous monitoring is not
commercially available or that periodic monitoring is sufficient to
ensure that the conditions in the PRCS remain within planned limits.
This final provision also clarifies that employers must use some form
of monitoring during confined space operations, and that they must use
periodic monitoring if continuous monitoring is not used to ensure that
there is always monitoring of the space occurring.
OSHA retained in this final rule the requirement in the proposal
that employers use continuous monitoring (see proposed Sec.
1926.1216(e)(2)). This requirement for continuous monitoring differs
from the general industry rule, which requires "periodic testing." In
the typical PRCS found at construction sites, it is often difficult for
the employer to predict with reasonable certainty the levels of
hazardous atmospheres in a PRCS. In many instances, the employer will
have little or no past experience with the particular PRCS, and will
lack reliable historical data on hazardous atmosphere levels. Also,
conditions in a PRCS may vary as construction work progresses, causing
unexpected increases in hazardous atmosphere levels. For example,
alterations to the wall of a PRCS may allow a hazardous gas to enter
the PRCS, thereby increasing the level of the hazardous gas in the PRCS
from the level measured before altering the wall. In addition,
construction equipment in the space may not operate as expected,
resulting in a discharge of hazardous gasses into the space at a higher
rate than anticipated. In short, construction work tends to follow a
somewhat unpredictable course and, thus, requires frequent atmospheric
monitoring. Because of this high level of unpredictability, OSHA
believes that continuous monitoring is necessary to ensure that
affected employees, especially entrants, receive adequate protection.
Continuous monitoring enables employers to quickly recognize
deteriorating conditions, including the introduction of new atmospheric
hazards into the confined space, and then to take timely actions to
protect employees. For additional discussion of the need for continuous
monitoring and its implementation, see the discussion of final Sec.
1926.1204(e)(2) (discussion of continuous monitoring of permit spaces
entered under a full permit program, rather than the alternative
procedures).
Final Sec. 1926.1203(e)(2)(vi) also requires the continuous-
monitoring equipment to have a functional alarm that will notify all
entrants when an atmospheric hazard reaches a specified threshold
designed to give entrants an opportunity to escape before a "hazardous
atmosphere" develops, or check the monitor with sufficient frequency
to alert other entrants when an atmospheric hazard reaches that
specified threshold. The purpose of continuous monitoring is to protect
entrants by ensuring that the atmospheric hazards remain at or below
levels specified by final Sec. 1926.1203(e)(1)(ii), and having an
alarm will immediately warn entrants when the atmospheric hazards reach
those levels. The monitoring equipment serves no purpose if the
employer does not convey the monitoring results to entrants in a timely
manner. Requiring employers to check the monitor "with sufficient
frequency" is a performance measure that means that the employer must
demonstrate that the permit space is monitored such that a change in
atmosphere or other potential hazard will be identified in time to
allow entrants to exit the permit space safely. Checking the monitor
regularly also will alert entrants if the monitor malfunctions.
Several commenters supported the requirement for continuous
monitoring (ID-106, p. 2; -220, p. 7; -211, Tr. pp. 44-45). However,
some of these commenters also urged the Agency to require continuous
monitoring without exception (ID-106, p. 3; -220, p. 7). The Agency
recognizes that in some PRCSs, especially when an employer conducts
numerous entry operations in the same PRCS and finds through repeated
monitoring that the atmosphere in the PRCS is stable, the employer may
be able to show that periodic monitoring is sufficient to ensure that
the conditions in the PRCS remain within planned limits. Nevertheless,
when the employer uses periodic monitoring, it must be of sufficient
frequency to ensure the
control of atmospheric hazards as planned and must be able to detect
new hazards in time to protect employees. In some cases, continuous
monitoring may not be possible; for example, continuous monitoring may
not be available when the atmospheric hazard is a particulate.
Therefore, when the employer shows that periodic monitoring is
adequate, or demonstrates that the technology for continuous monitoring
is not available, this final provision permits the employer to use
effective periodic monitoring instead of continuous monitoring. The
proposed rule contained the same exceptions.
The Agency also retained the language from the general industry
rule that the monitoring must ensure that the continuous forced-air
ventilation is preventing the accumulation of a hazardous atmosphere.
The monitoring required by final Sec. 1926.1203(e)(2)(vi), in
combination with the continuous forced-air ventilation required by
final Sec. 1926.1203(e)(2)(v), ensure that entrants remain protected
the entire time they are present within the permit space.
Finally, final Sec. 1926.1203(e)(2)(vi) specifies that the
employer must provide any entrant, or his or her authorized
representative, with the opportunity to observe the monitoring required
by this paragraph. This paragraph does not require employees and their
authorized representatives to observe the monitoring; however, it
provides employees and their authorized representatives with the option
of observing should they choose to do so. OSHA believes that allowing
employees and their authorized representatives to participate in this
manner will contribute to the successful implementation of safe entry
operations by enhancing their awareness of the status of the hazards in
the confined space.
Paragraph (e)(2)(vii). Final Sec. 1926.1203(e)(2)(vii), which is
similar to the general industry standard at Sec.
1910.146(c)(5)(ii)(G), specifies what an employer must do if it detects
a hazard in a space regulated by the Sec. 1926.1203(e) alternate
procedures during entry. Final Sec. 1926.1203(e)(2)(vii) differs from
the general industry rule in that it expressly applies to any hazard,
not just a hazardous atmosphere. This final provision is similar to
proposed Sec. 1926.1216(f), which also referred to physical, as well
as atmospheric, hazards. The Agency made this change to ensure that
this paragraph was consistent with final Sec. 1926.1203(e)(1)(i),
which allows employers to use the alternate procedures of final Sec.
1926.1203(e) after eliminating or isolating all physical hazards in the
space. Thus, the employer must implement the requirements of this final
paragraph when there is a new physical hazard, a previously recognized
physical hazard no longer remains isolated, or there is a hazardous
atmosphere present.
Paragraphs (e)(2)(vii)(A)-(C). Final Sec. Sec.
1926.1203(e)(2)(vii)(A)-(C), which are similar to general industry
Sec. Sec. 1910.146(c)(5)(ii)(G)(1)-(3), set the requirements for what
an employer must do after detecting a hazard in a space regulated by
Sec. 1926.1203(e) during entry. Final Sec. 1926.1203(e)(2)(vii)(A) is
identical to the general industry standard at Sec.
1910.146(c)(5)(ii)(G)(1), and requires employees to exit the permit
space immediately after detecting a hazard. Final Sec.
1926.1203(e)(2)(vii)(B) is similar to the general industry standard at
Sec. 1910.146(c)(5)(ii)(G)(2), except that it applies to all hazards,
not just atmospheric hazards as the general industry requirement does.
The final rule requires the employer to evaluate the permit space to
determine how the hazard developed. Final Sec. 1926.1203(e)(2)(vii)(C)
is similar to the general industry standard at Sec.
1910.146(c)(5)(ii)(G)(3), though it too refers to all hazards (physical
and atmospheric). It requires the employer to implement measures to
protect employees from the hazard before reentering the space under the
alternate procedures specified by final Sec. 1926.1203(e). Detecting a
hazardous atmosphere during entry indicates that the employer did not
maintain the permit space safe for entry, so before authorizing any
subsequent entries into the space under final Sec. 1926.1203(e), the
employer must determine what went wrong and take whatever measures are
necessary to prevent a recurrence.
Paragraph (e)(2)(viii). Final Sec. 1926.1203(e)(2)(viii) requires
an employer to provide a safe means of access and egress during
confined space entries under final Sec. 1926.1203(e). For example,
when employees are working in an underground vault, the employer must
provide, and ensure the use of, a safe means of entry into and exit
from the underground vault, and ensure that the method complies with
applicable OSHA requirements (e.g., 29 CFR part 1926, subpart X--
Stairways and Ladders). Providing proper entry and exit equipment such
as ladders is critical under emergency-egress conditions to ensure that
employees exit a PRCS in a timely and safe manner. Proposed Sec.
1926.1216(c)(3) required that employers provide a safe method of entry
and exit, and that this method comply with applicable OSHA
requirements. This final provision retains the proposed requirement for
a safe means of entry and exit, but did not retain the language
requiring compliance with other "applicable OSHA requirements"
because it is unnecessary: Such requirements apply regardless of
whether this statement is included in the final rule. If another OSHA
standard covers the means of entry and exit, the employer must comply
with that applicable standard.
One commenter supported the proposed rule's requirement for safe
entry and exit (ID-220, p. 8). Two others commenters agreed that
assuring safe entry and exit is necessary, but asserted that it is
often infeasible to use stairways that meet the requirements for
stairways or ladders that comply with 29 CFR part 1926, subpart X's 4:1
ratio because of the configuration of these spaces (ID-075, p. 10; ID-
124, p. 9). Subpart X contains many requirements for safe stairways and
ladders, including the spacing between steps and rungs, the condition
of the ladders, and the ratio of 4:1 for the vertical angle of portable
non-self-supporting ladders relative to the structures supporting the
ladders (see 29 CFR 1926.1050 et seq.). These comments seem to be
requesting a blanket exemption from these OSHA requirements, but this
request is overly broad. Even these commenters did not argue that all
requirements of subpart X would be infeasible, or that the requirements
in question are always infeasible. Employers may assert on a case-by-
case basis under this standard, as they could under any other OSHA
standard, that a requirement is infeasible in a particular situation.
In such a situation, the employer has the burden of proving
infeasibility. The employer also must make every effort to abate the
hazard caused by having the ladder at a steeper angle than permitted,
possibly by securing the top and bottom of the ladder while it is in
use so it will not slip, and by training employees on climbing at a
steeper angle.
Final Sec. 1926.1203(e)(2)(viii) also requires that an employer
use hoisting systems designed and manufactured specifically for
personnel hoisting. This provision includes an exception to this
requirement that allows for the use of job-made hoisting systems if a
registered professional engineer approves these systems for personnel
hoisting prior to use in entry operations regulated by Sec.
1926.1203(e). Unlike the proposed rule, the final rule requires
engineer's approval to be in writing to ensure that the specifications
and limitations of use are conveyed accurately to the employees
implementing the job-made
hoist, and that the approval can be verified. However, the final rule
prohibits the use of commercial hoisting systems not designed and
manufactured specifically for personnel hoisting because OSHA believes
that employers cannot use such hoisting systems safely for this
purpose. The requirements of final Sec. 1926.1203(e)(2)(viii) for
hoisting systems will eliminate further injuries and deaths of
employees that could occur from the use of a hoisting system not
designed specifically for personnel hoisting. This final rule provides
employers with flexibility in choosing personnel hoisting systems by
allowing a registered professional engineer to approve a job-made
system. OSHA believes that either option ensures that the personnel
hoisting system will meet the design specifications needed for
employees to safely access a space. This final provision ensures that
authorized entrants will always have a safe and effective means of
entering and exiting the space, including escaping during an emergency.
There is no corresponding general industry provision that has
requirements similar to final Sec. 1926.1203(e)(2)(viii) for the
alternative entries regulated under Sec. 1910.146(c)(5). Section
1910.146(d)(4)(vii) requires safe access and egress, but that provision
does not explicitly apply to the alternate procedures used under Sec.
1910.146(c)(5). However, hazardous conditions may still arise in these
spaces, particularly if the ventilation system stops functioning, thus
making safe exit of entrants necessary. None of the comments OSHA
received on proposed Sec. 1926.1216(c)(3) provided a reason to exclude
these requirements from the final standard. The same reasons provided
in this preamble for requiring safe access and egress during permit-
space operations governed by final Sec. 1926.1204 also apply to the
spaces regulated under final Sec. 1926.1203(e) and, therefore, OSHA
adopted the proposed requirement in this final rule.
Paragraph (e)(2)(ix). Final Sec. 1926.1203(e)(2)(ix), which is
identical to general industry Sec. 1910.146(c)(5)(ii)(H), requires the
employer to verify that the permit space is safe for entry and that the
employer took the measures required by final Sec. 1926.1203(e)(2).
This provision also is similar to proposed Sec. 1926.1216(d)(4),
though it is less detailed than that proposed provision. The
verification must be in the form of a certification that contains the
date, the location of the space, and the signature of the certifying
individual; the employer must make the certification available to
entrants. The certification, in combination with the documentation
required under final Sec. 1926.1203(e)(1)(v), will document the
employer's efforts to comply with final Sec. 1926.1203(e)(2), enable
OSHA and the employer to evaluate compliance with the standard, and, if
permit-space incidents occur, assist OSHA and the employer in
ascertaining the causes of those incidents.
One commenter supported the more detailed documentation
requirements specified by the proposed rule, and the requirement in
proposed Sec. 1926.1216(a)(3) and (d)(1) to verify prior to entry that
physical hazards remain isolated (ID-220, pp. 6-7). The commenter noted
that these requirements serve as an "important check that measures
that may have been taken in weeks, days, or . . . a previous work shift
are still in place and effective" (id.). This final rule preserves the
important check function because it also requires documentation of the
isolation or elimination of physical hazards, in final Sec.
1926.1203(e)(1)(v), and provides that entry under final Sec.
1926.1203(e)(2) can occur only under the conditions set forth in final
Sec. 1926.1203(e)(1). This final rule, however, does so with the
flexibility of the more performance-orientated language of the general
industry standard.
Final Sec. 1926.1203(e)(2)(ix) also requires that the employer
date the certification and make it available to entrants. This
requirement ensures that the certification provides information to the
entrants about the latest conditions in the space the entrants will
soon be entering. One commenter complained that requiring the name and
signature of the individual who completed the isolation work, as the
proposed rule did, could cause unspecified logistical problems (ID-114,
p. 2). OSHA believes that requiring the signature only of the
individual who provides the certification, as required by the general
industry standard, will resolve any logistical problems.
Another commenter noted that using the term "verification
document" in the proposed rule for spaces equivalent to the spaces
regulated by final Sec. 1926.1203(e), while using the term "entry
permits" for other permit spaces in the proposed rule, was confusing
(ID-099, p. 3). The documentation requirement in proposed Sec.
1926.1216 was more detailed than the documentation requirement in this
final rule and, thus, more similar to an entry permit. Final Sec.
1926.1203(e)(2)(ix) uses the term "certification," and this
certification contains much less information than the entry permits
required for other permit spaces and, therefore, is distinct (see final
Sec. 1926.1206). The general industry standard also uses this
terminology, and, given the differences in documentation for the two
types of spaces in the final rule, the Agency believes that the
terminology is clear.
Paragraph (f). Final Sec. 1926.1203(f), which is nearly identical
to the general industry standard at Sec. 1910.146(c)(6), addresses the
reevaluation of confined spaces. This final provision requires each
entry employer to reevaluate non-permit required confined spaces when
there is a change in use or configuration that may increase the hazards
to entrants, and to reclassify the space as a permit space if
necessary. The Agency believes this requirement is necessary because
conditions around and in confined spaces may change, especially when
multiple employers are performing various construction activities
around or in the space. Consequently, when indications of changes in
the previous conditions arise that may increase the likelihood for a
hazard to develop, the employer must reevaluate the confined space to
ensure adequate employee protection. Final Sec. 1926.1203(f) differs
from the general industry rule in that it refers to "each entry
employer" rather than "the employer" to emphasize that reevaluation
is the responsibility of each employer that conducts entry operations
in a confined space.
Several commenters were unsure what type of new information would
trigger reevaluation under final Sec. 1926.1203(f) (ID-098, p. 1; ID-
124, p. 8). These commenters asked, for example, whether working with
gasoline equipment near a confined space or driving a vehicle near a
confined space would trigger reevaluation. Whether these conditions
would trigger a reevaluation depends on whether it is foreseeable that
the operation of the equipment or vehicle could increase the hazards in
the space, such as by creating emissions that could enter the space or
sparks that could ignite a fire in the space. Indications of a need for
reevaluation may include, but are not limited to: (1) A change in the
configuration or use of, or in the type of work conducted or materials
used in, the confined space; (2) new information regarding a hazard in
or near a confined space; and (3) when an employee or authorized
employee representative provides a reasonable basis for believing that
a hazard determination is inadequate (see also Sec. 1926.1204(e)(5)).
OSHA does not expect employers to reevaluate spaces when trivial
changes occur that do not affect the
characteristics of the space or the work performed in the space.
One commenter suggested that OSHA include the time lapse since the
initial evaluation as an indication of the need for a reevaluation (ID-
013, p. 4). This commenter seems to be addressing situations in which
several days or weeks could elapse between entries into a confined
space, during which changes in environmental conditions and other
conditions could occur that may increase hazards in the confined space.
For example, a container of coating chemicals left slightly ajar in a
space, or a substance that is leaching slowly through the soil into a
new construction space, might release fumes at a slow rate so that they
would not become concentrated or hazardous over the course of a single
day if the space has some ventilation, but could create a hazardous
atmosphere if left in a closed and non-ventilated confined space for a
longer period of time. OSHA agrees that employers should consider
elapsed time since the last evaluation in determining when to
reevaluate a confined space because of the possibility that hazards may
increase during this period. Unlike proposed Sec. 1926.1207, which
listed conditions that would require reassessment, this final provision
uses the more performance-oriented language of the general industry
rule. Therefore, this final provision does not list all the conditions
that could trigger a reevaluation of the space because the
circumstances that could increase the hazards in a space and prompt a
reevaluation are too numerous to list.
One commenter was unsure how the entry employer would be able to
detect whether changing conditions would require reevaluation (ID-086,
p. 5). According to this commenter, the language of proposed Sec.
1926.1204(b) did not require the employer to obtain information
necessary to classify a space. The commenter's reading of the proposed
rule is incorrect, and would also be incorrect of the final rule. Final
Sec. 1926.1203(a) requires each employer that has employees who may
work in a confined space to ensure that a competent person identifies
all confined spaces on the site, and to determine, through initial
testing as necessary, which of these spaces are permit spaces, and to
consider and evaluate other elements of the confined space. Therefore,
under Sec. 1926.1203(f) of this final rule, the entry employer must
also ensure that a competent person compile the information necessary
to determine whether a reevaluation is necessary, and conduct the
reevaluation when necessary.
Paragraph (g). Final Sec. 1926.1203(g), which is similar to the
general industry standard at Sec. 1910.146(c)(7), allows an employer
to reclassify a permit space as a non-permit confined space only under
the limited circumstances set forth in final Sec. 1926.1203(g)(1)-(4).
Final Sec. 1926.1203(g) is substantively similar to proposed Sec.
1926.1217(a). When there is no actual or potential hazardous atmosphere
present in the space, and the employer eliminates all physical hazards
in a space, this section allows an employer to reclassify the space as
a non-permit confined space. The Agency believes that, in some
instances, the procedures specified by final Sec. 1926.1203(g) will be
more efficient and less costly to implement than permit-space
requirements. The Agency made three non-substantive changes from Sec.
1910.146(c)(7) in the introductory paragraph of final Sec.
1926.1203(g). First, OSHA added the word "only" to the provision.
Second, OSHA changed "under the following procedures" to "when all
of the applicable requirements in paragraphs (g)(1) through (g)(4) have
been met." OSHA made these non-substantive changes to clarify that an
employer may use only these procedures to reclassify a permit space
under this rule, and that the employer must comply with each of the
provisions under final Sec. 1926.1203(g) to reclassify a permit space.
Third, to provide consistency with the requirement that an employer use
a competent person to conduct the initial evaluation of the space, the
final rule specifies that a competent person must also conduct the
reevaluation and reclassification of the space.
One commenter requested that OSHA clarify whether employers must
provide attendants or retrieval systems for spaces when final Sec.
1926.1203(g) applies (ID-099, p. 4). Another commenter asserted that
OSHA should require attendants for spaces regulated by final Sec.
1926.1203(g) (ID-060, p. 3). Final Sec. 1926.1203(g) does not require
compliance with the attendant or rescue provisions of this final rule
once the space has been reclassified as a non-permit space. Prior to
the reclassification, however, the full permit program requirements
apply. In general, such requirements are unnecessary for a space that
has been reclassified as a non-permit space under Sec. 1926.1203(g)
because, to qualify as a non-permit space, there can be no actual or
potential hazards in the space. However, an employer may elect to
comply with the PRCS requirements, including the attendant and rescue
provisions, even if the employer reclassifies the space as a non-permit
space under final Sec. 1926.1203(g).
Paragraph (g)(1). Final Sec. 1926.1203(g)(1), which is identical
to general industry Sec. 1910.146(c)(7)(i), ensures that an employer
may only reclassify a PRCS as a non-permit space if no actual or
potential atmospheric hazards are present and the employer eliminates
all other hazards in the space. This final provision also is similar to
proposed Sec. 1926.1217(a)(1) and (d)(1). OSHA expects that this
provision will apply primarily to spaces where the employer eliminated
or isolated the physical hazards. While this final provision would
allow employers flexibility in the methods and procedures they use to
identify and eliminate physical hazards, it would not relieve them from
conducting a thorough assessment of the space and identifying hazards
that include: Existing or potential liquids, solid materials, and
electricity associated with processes; the use of equipment, ductwork,
and conduits with exposed valves or that terminate in the confined
space; exposed and energized electrical conduits; connected rooms and
reservoirs that present engulfment hazards; and any other recognized
hazards covered by OSHA construction standards or the general duty
clause, 29 U.S.C. 654(a)(1). OSHA believes that eliminating or
isolating all physical hazards in the space protects employees who
perform construction work in the space. For additional information
about isolating spaces within sewers and other continuous confined
spaces, see the discussion of Sec. 1926.1204(c)(3).
Paragraph (g)(2). Final Sec. 1926.1203(g)(2), which is similar to
the general industry standard at Sec. 1910.146(c)(7)(ii), requires an
entry employer considering reclassification to eliminate or isolate
confined space hazards, when possible, without entering the space. This
requirement parallels the requirement in final Sec.
1926.1203(e)(1)(iv), and OSHA is including the requirement here for the
same reasons, although it applies to different spaces. If it is not
possible for an entry employer to eliminate or isolate confined space
hazards without entering the space, then final Sec. 1926.1203(g)(2)
requires the entry employer to comply with all PRCS procedures in final
Sec. Sec. 1926.1204-1211 until elimination or isolation of the hazards
is complete.
Final Sec. 1926.1203(g)(2) differs slightly from the general
industry requirement in that it contains a new first sentence
clarifying that the entry employer must eliminate or isolate the
hazards without entering the space unless it is infeasible to do so.
This slight revision, which
OSHA based on proposed Sec. 1926.1217(a)(3), improves employee
protection by reducing unnecessary entry into permit spaces for
classification purposes. OSHA received no comments on the parallel
provision in the proposed rule.
In the final rule, OSHA also allows employers to isolate physical
hazards, rather than eliminate them entirely. The effect must be the
same--employees must be effectively protected from any potential
exposure to any hazard--and it is therefore substantively similar to
the general industry rule. OSHA included the isolation option, however,
in response to comments indicating that full permit program
requirements were not necessary when employers can use engineering
controls to prevent employee exposure to physical hazards, even if the
item causing the hazard is not totally removed from the space (see,
e.g., ID-210, Tr. pp. 56, 308-309, 327-328).
For the purpose of reclassifying a permit-required confined space
that has potential energy sources in it, the methods the employer must
use depend on the types of energies requiring elimination or isolation.
OSHA's lockout/tagout requirements address electro-mechanical hazards,
but lockout/tagout will not eliminate hazards associated with flowable
materials such as steam, natural gas, and other substances that can
cause hazardous atmospheres or engulfment hazards in a confined space.
See OSHA Directive CPL 02-00-147: The Control of Hazardous Energy--
Enforcement Policy and Inspection Procedures, at pp. 3-10 (Feb. 11,
2008). Employers can isolate these hazards by using the techniques
described in the definition of the terms "isolate" or "isolation":
blanking, blinding, misaligning or removing sections of lines or pipes,
and a double-block and bleed system. See also August 25, 1995, letter
to William K. Principe.
"Elimination" means no on-going measures are necessary to keep
the space free of a hazard; if continued operation of ventilation is
required to address a hazard, for example, then the hazard is
controlled, not eliminated. See, e.g., September 19, 1994, letter to
Edward Donoghue. If the employer uses ventilation to eliminate an
atmospheric hazard from a space (as opposed to controlling the hazard),
the employer must perform verification monitoring with the ventilation
system off to establish the elimination of any atmospheric hazards
before reclassifying the space. See November 11, 1993, letter to Trey
Mayfield. Employers usually may not reclassify some confined spaces,
such as tank containers, as non-permit spaces because residues may
persist, resulting in potential atmospheric hazards. For example, the
tank shell could oxidize, former contents could leach after absorption
into the tank coating or lining, and contents trapped between the
lining and the tank shell could leak. See September 20, 1994, letter to
J.B. Saunders.
OSHA notes that the elimination of a hazard as required by final
rule Sec. 1926.1203(g)(2) will not necessarily result in the re-
classification of the space as a non-permit space. The employer must
still ensure that a competent person performs a full reevaluation of
the permit space before reclassifying the space. For example, if an
employer completes an initial evaluation of a space and determines that
there is a single electrical hazard that can be locked out, but no
atmospheric hazards, the employer must lock out the electrical hazard,
entering the permit space under the full permit program requirements of
Sec. 1926.1204 if entry is necessary. Because the person who locks out
the energy hazard may or may not be focused on the evaluation of the
entire permit space, that employer's competent person must still verify
that that the hazard is properly isolated, and that no other hazards
are present, before the employer may re-classify the space as a non-
permit space.
Final Sec. 1926.1203(g)(2) also includes the note from the general
industry standard stating that control of atmospheric hazards through
forced-air ventilation does not constitute elimination of the hazards.
Final Sec. 1926.1203(e), not Sec. 1926.1203(g), covers permit-space
entry when the employer can demonstrate that the forced-air ventilation
alone will control any atmospheric hazards within in the space. Final
1926.1203(g) requires the complete elimination of such hazards.
OSHA revised "hazards" to "atmospheric hazards" in the second
sentence to reflect the change in final Sec. 1926.1203(e)(1)(i), which
will permit employers to use the alternative procedures if they isolate
or eliminate all physical hazards. Employers may reclassify the space
as a non-permit space under final Sec. 1926.1203(g) even if a physical
hazard remains, so long as the hazard is completely isolated such that
employees cannot be exposed to it. OSHA does not view this as a
substantive change from the general industry standard, which allowed
employers to treat isolation of physical hazards as elimination of
those hazards for purposes of reclassifying a permit space. See October
12, 1995, memorandum to Linda Anku.
OSHA refers to "atmospheric hazards" in the note to Sec.
1926.1203(g), rather than using the term "hazardous atmosphere" as in
Sec. 1926.1203(e), to emphasize the distinction between control and
elimination of airborne hazards. A "hazardous atmosphere" requires
certain levels of contaminants in the air (e.g., a flammable gas over
10 percent of its LFL or a concentration of a substance exceeding its
PEL). The alternative procedures in final Sec. 1926.1203(e) may be
used when the employer eliminates any "hazardous atmosphere" even if
the employer anticipates some presence in the air of a hazardous
substance that must be controlled through practices to keep the
substance at safe levels. Therefore a Sec. 1926.1203(e) space remains
a permit-required space that can be entered without a permit so long as
the controls remain effective. Final Sec. 1926.1203(g), in contrast,
requires the total elimination of "atmospheric hazards" prior to
entry, which means that the breathing atmosphere contains no
potentially hazardous substance that would make it a potentially
hazardous atmosphere; therefore, the employer has no need to maintain
practices to control it (hence, it is not a permit-required space). For
example, an employer can eliminate a "hazardous atmosphere" of
methane by reducing the concentration of methane in the space from 12
percent of its LFL to 9 percent. However, the methane is still an
"atmospheric hazard" at the lower 9 percent concentration because,
without the alternative procedures that include ventilation, the level
of methane could rise and injure or kill the workers inside the space.
To eliminate the "atmospheric hazard" caused by methane, the employer
must eliminate all of the methane from the space, and maintain this
condition without forced-air ventilation or other practices.
Paragraph (g)(3). Final Sec. 1926.1203(g)(3), which is nearly
identical to the general industry rule at Sec. 1910.146(c)(7)(iii),
requires an entry employer seeking to reclassify a permit space to
document the basis for determining that it eliminated all permit-space
hazards through a certification that contains the date, the location of
the space, and the signature of the certifying individual. In addition,
the employer must make the certification available to each employee
entering the space or his or her authorized representative. The
employer must substantiate all determinations so that employers,
employees, and the Agency have the means necessary to evaluate those
determinations and
ensure compliance with the conditions that would enable the employer to
conduct entry operations using the alternate procedures following
reclassification.
This final provision is necessary to protect employees from
physical or atmospheric hazards on initial entry into the space under
final Sec. 1926.1203(g), and to ensure that the space remains safe
during entry operations. The requirement to make the certification
available to employees or their authorized representatives ensures that
entrants have the information necessary to detect developing hazards
while they are working in the space.
Proposed Sec. 1926.1219(d) provided that the employer must
maintain an equivalent verification document until the work in the
confined space is complete. One commenter asserted that OSHA should
require employers to maintain records of these determinations for years
to aid OSHA and the National Institute for Occupational Safety and
Health (NIOSH), and to protect a company from potential litigation in
the future; the commenter, however, did not specify exactly how OSHA
and NIOSH would use these records (ID-060, p. 2). Another commenter
stated that employers only need to maintain the certification until the
completion of the project (i.e., as long as there are entrants, the
certification must be available to those entrants) (ID-108, p. 3).
Nevertheless, the Agency recognizes that confined spaces not classified
as PRCSs do not involve hazards as defined in this standard. Therefore,
unlike permit-space entry permits, the Agency believes that it is not
necessary for entry employers to maintain the certification required
under final Sec. 1926.1203(g)(3) for review and evaluation after
completion of the work. The Agency agrees with the latter commenter
that the purpose of certification is to allow employees and employers
to detect any changes from the original entry conditions during
confined space operations, and believes that the minimal useful
information gained from these records likely would not justify the
burden of maintaining them. Furthermore, no provision in this final
rule prohibits an entry employer from maintaining this information for
a period longer than the period required by the final rule.
Paragraph (g)(4). Final Sec. 1926.1203(g)(4), which is similar to
Sec. 1910.146(c)(7)(iv), requires that whenever a hazard arises in a
space reclassified under final Sec. 1926.1203(g), employees must
evacuate the space, and the entry employer must reevaluate the space.
This final provision also is similar to proposed Sec. 1926.1217(e)(2).
The Agency believes that this final provision is necessary to protect
entrants when conditions around and in confined spaces change,
especially when performing construction activities around or in the
space. Having a hazard arise in a reclassified space indicates that the
previous evaluation was insufficient or that there has been a
significant departure from the previous conditions; therefore, a
thorough reevaluation of the entire space is critical.
This provision indicates clearly that entry employers retain
responsibility for the safety of employees who enter spaces after they
reclassify the spaces as non-permit confined spaces. The employer must
determine if it is still appropriate, under the circumstances
identified through the reevaluation, to classify the space where the
hazard arose as a non-permit confined space. A reevaluation aimed at
reestablishing compliance with final Sec. 1926.1203(g) will involve
the demonstrations, testing, inspection, and documentation required in
paragraphs (g)(1) through (g)(3) of this final rule. OSHA anticipates
that some employers will seek to reestablish compliance with final
Sec. 1926.1203(g), while others will choose to conduct the remainder
of its entries in that space in accordance with the full permit-space
program requirements specified by final Sec. Sec. 1926.1204-1211. The
Agency's concern is that the approach chosen must adequately protect
employees who enter the spaces.
In some cases employers might need to require their employees to
exit the space temporarily during a limited event where the hazard is
already known and temporary, such as when an employer temporarily
removes workers from an underground confined space while other work is
conducted above the underground confined space. In this situation, the
employer can allow employees to re-enter without re-classifying the
space as a permit space after completing a reevaluation of the
structural integrity of the space to make sure that the work above the
underground confined space did not affect that space. In other cases,
however, a new unanticipated hazard in the space means that the status
of the space reverts to a permit-required confined space until the
employer can identify and address the hazard and reclassify the space
as a non-permit space under Sec. 1926.1203(g). As a result, all of the
provisions of this standard applying to a permit space apply, and entry
must be conducted in accordance with the permit program requirements of
Sec. 1926.1204 and permitting requirements of Sec. 1926.1205. The
fact that the spaces addressed in Sec. 1926.1203(g) were previously
permit spaces before reclassification as non-permit spaces means that
it is imperative for the entry employer to proceed with caution
whenever a new hazard emerges.
Section 1926.1203(h) and (i)--Information Sharing and Coordination
Duties at Multi-Employer Worksites
The discussion of paragraphs (h) and (i) has three parts:
(1) An overview of host employers and controlling contractor
responsibilities;
(2) OSHA's authority to require host employers and controlling
contractors to share information to protect the employees of others;
and
(3) A paragraph-by-paragraph explanation of Sec. 1203(h) and (i).
(1) Overview of Host Employers and Controlling Contractor
Responsibilities
Timely information exchanges and coordination of work activities
can be critical in safeguarding employees performing confined-space
work, particularly on multi-employer worksites where one employer's
actions can affect the health and safety of another employer's
employees. As OSHA noted in its explanation of the proposed rule, there
are a number of contractors and subcontractors performing jobs on most
construction worksites, and there may be employees of different
employers performing work within the same confined space. In many
instances, employees of one subcontractor will enter a confined space
after another subcontractor's employees complete their work within the
space.
OSHA recognizes that both the controlling contractor and the host
employer may have crucial information about confined spaces at a
construction worksite. Therefore, in the proposed standard, OSHA
adopted the information-sharing duties specified for the host employer
in the general industry standard (Sec. 1910.146(c)(8)) and proposed
applying them to both the host employer and the controlling contractor.
As one labor organization noted, based on the experience of its members
in both general industry and construction settings, worker safety is
affected by timely information sharing in both general industry work
and construction:
[T]he problem posed by contracting out work in both situations
is nonetheless the same--how to ensure that subcontractors that are
in a work location for a limited period of time have the best
possible information to
identify the location of confined spaces, assess their hazards, and
ensure that their employees can perform their assigned duties
safely.
(220.2, pg. 10.)
The same commenter also explained that information sharing may be
even more critical in the construction setting because different
workers may perform many different activities in the same space at
different times, which can result in hidden dangers:
Many chemical substances used in the construction industry, once
in place, are neither detectable nor hazardous until exposed to a
particular work process. For example, surface coatings such as
paints and epoxies are seemingly stable--and are generally
undetectable through air monitoring--once applied and dried.
However, these same substances may create significant safety and
health hazards to employees who perform welding and other processes
involving heat while working in a confined space. A contractor that
performs the routine assessment of physical and atmospheric hazards
required by the standard would not necessarily identify these
potential hazards.
(ID-213.1, pg. 1.) Similarly, polyurethane is often used for spray foam
insulation. When welding or heating in a confined space is performed
near spray foam insulation that contains polyurethanes, the heat could
cause the polyurethanes to break down and produce hazardous fumes. A
contractor may not recognize this hazard during a routine assessment of
the space, and would rely on information from a host employer or
controlling contract about the potential hazard.
Hidden dangers may also arise while working with equipment in
confined spaces. For example, operating internal combustion engines,
such as air compressors, pressure washers, and generators in a confined
space could lead to carbon monoxide exposure. Because carbon monoxide
is a colorless, odorless gas, it is difficult to detect without a
monitor or testing equipment. A host employer, controlling contractor,
or subsequent entry employer may not realize that carbon monoxide
levels in a confined space have changed without communicating with the
employer who operated the engine in the space. Similarly, when working
with live circuits, an entry employer may reenergize a once de-
energized circuit to perform work in a confined space. Communication
about reenergized circuits will give the host employer, controlling
contractor, and any subsequent entry employer's indication that
conditions within the confined space may have changed.
In this final rule, as in the proposed rule, OSHA requires
communication and coordination among controlling contractors and
subcontractors, and between host employers and controlling contractors.
The coordination and information-exchange duties in the final rule are
largely the same as the duties required by the proposed rule, although
the final rule makes communication with entry contractors the
responsibility of the controlling contractor rather than the host
employer, and does not contain the proposed rule's additional
requirements for identifying the separate classifications of spaces.
(See proposed Sec. 1926.1204.)
Based on the record as a whole, OSHA finds that the information-
sharing and coordination responsibilities of host employers and
controlling contractors required by this final standard are critical
means of identifying hidden or latent dangers in permit spaces and for
preventing the actions of one employer from exposing another's
employees to hazards in a permit space. These provisions will enhance
the safety of workers in confined spaces by ensuring that all employers
have the previously identified information at their disposal before
entry to avoid hidden hazards and to make adequate preparations to
protect employees entering permit spaces.
The rule places controlling contractors at the center of this
process. Before any employer enters a permit space, the final rule
requires controlling contractors to obtain relevant information about
confined spaces on the worksite from the host employer, and then to
relay that information, along with any other relevant information, to
each contractor that will enter the confined space or that will be
performing work that could foreseeably result in a hazard within that
confined space. (See Sec. 1926.1203(h)(1) and (h)(2).) The controlling
contractor is also responsible for coordinating work in and around
confined spaces so that no contractor working at the site will create a
hazard inside the confined space. (See Sec. 1926.1203(h)(4).) After
the entry employer performs entry operations, the controlling
contractor must debrief the entry employer to gather information that
the controlling contractor then must share with the host employer and
other contractors who enter the space later. (See Sec.
1926.1203(h)(5).) Section 1926.1203(i) assigns the role of the
controlling contractor to a particular employer in the event there is
no controlling contractor for the project. Please see the discussion of
Sec. 1926.1203(i), below.
Some commenters expressed concern that the final rule imposes a
duty on controlling contractors or host employers to verify the
accuracy of the information they receive from other employers (ID-117,
pg. 21; ID-078, pg. 1; ID-098, pg. 1). Consequently, one commenter
predicted that this duty would cause controlling contractors and host
employers to spend too much time and money overseeing their
subcontractors' work (ID-120, pg. 2). Two different commenters,
however, indicated that a controlling contractor should have even more
responsibility, particularly when multiple employers will be working in
the same area. The latter commenters argued that the controlling
contractor should "share in" the "responsibility" and costs of
permit space entries, including verifying the training of subcontractor
employees and communications among employers, particularly when
multiple employers enter and work in the permit spaces at the same time
(ID-108, pg. 4; ID-210, pg. 60). One of these latter commenters
expressed concern that, without controlling contractor verification,
"untrained or unqualified persons would be likely to enter the spaces
where a self-declaring system of monitoring is employed" (ID-108, pg.
4).
The final rule does not require the controlling contractor or host
employer to verify entry-employer information (testing, monitoring,
etc.) or to have its own employees enter any confined space or take
other direct actions to discover new information; requiring controlling
contractor employees to enter permit spaces might increase exposure of
unqualified persons to the hazards of permit spaces. Unless the
controlling or host employer allows its own employees into a permit
space, the final rule only requires the controlling contractor or host
employer to share information that is already in its possession or that
it receives from other employers. OSHA agrees that it is important to
prevent untrained or unqualified persons from entering the space. The
type of information that the controlling contractor must share with
subcontractors, and that the host employer must share with the
controlling contractor, is identical to the type of information that
the host employer must share with contractors under the general
industry standard. (See Sec. 1910.146(c)(8).) Separately, controlling
contractors still have the same duty they have always had to exercise
reasonable care to ensure compliance with the requirements of other
applicable standards (e.g., welding standard, respirator standard) in
accordance with OSHA's multi-
employer citation policy. The specific communication and coordination
requirements imposed by this rule are discussed in the paragraph-by-
paragraph explanation of Sec. 1926.1203(h) that follows the discussion
of OSHA's authority for these requirements.
(2) OSHA's Authority To Require Host Employers and Controlling
Contractors To Share Information To Protect the Employees of Others
Two commenters argued that OSHA lacks the authority to impose any
requirements on host employers or controlling contractors except with
respect to their own employees. (112.1, p. 14-15; and 117.1, pg. 7-12.)
One of these commenters stated that a "controlling contractor . . .
may not be cited if it did not create a cited hazard and it has no
employees exposed to the hazard," explaining that the "legal analysis
supporting this point is set forth well" in the Occupational Safety
and Health Review Commission (OSHRC) decision in Secretary of Labor v.
Summit Contractors, Inc., 21 BNA OSHC 2020 (No. 03-1622, 2007). (112.1,
p. 15.) OSHA notes that both the reviewing federal court and the
Commission itself subsequently rejected that view in Solis v. Summit
Contractors, Inc., 558 F.3d 815 (8th Cir. 2009) and Secretary of Labor
v. Summit Contractors, Inc., 23 BNA OSHC 1196, 1202-03 (No. 05-0839,
2010).
OSHA has clear authority to require host employers and controlling
contractors to comply with the information-sharing and coordination
provisions in the final rule. The preamble to the proposed rule
discussed in detail OSHA's authority to impose the duties in this
standard (see 72 FR 67358-67360, Nov. 28, 2007), and the Agency
reasserts the same basis with respect to this final rule, along with
the 2009 and 2010 Summit decisions. First, the plain language of the
OSH Act and its underlying purpose support OSHA's authority to place
requirements on employers that are necessary to protect the employees
of others. As explained later in this section of the preamble, the
overall sharing of information that will occur in accordance with the
final host-contractor provisions will help protect the employees of
both host employers and contract employers. Second, congressional
action subsequent to passage of the OSH Act recognizes this authority.
Third, OSHA consistently interprets its statutory authority as
permitting it to impose obligations on employers that extend beyond
their own employees, as evidenced by the numerous standards (including
several construction standards) that OSHA promulgated previously with
multiemployer provisions. OSHA provided several examples of these
standards in the preamble to the proposed rule, and OSHA subsequently
promulgated additional rules requiring controlling entities and
utilities to take steps to protect other employers' employees during
crane operations. (See 29 CFR 1926.1402(c), 1926.1402(e), 1926.1407(e),
1926.1408(c), and 1926.1424(b).) Finally, numerous courts of appeal and
the OSHRC have upheld OSHA's authority to place obligations on
employers that reach beyond their own employees. In addition to the
authorities listed in the preamble to the proposed rule, the Third
Circuit upheld the information-sharing requirements in the Asbestos
Standard for the construction industry, noting: "We are not convinced
that the Secretary is powerless to regulate in this [way], especially
given the findings she has made regarding the importance of building
owners in the discovery and communication of asbestos hazards."
Secretary of Labor v. Trinity Indus., Inc. (Trinity), 504 F.3d 397, 402
(3d Cir. 2007).
(3) Paragraph-by-Paragraph Explanation of Sec. 1926.1203(h) and (i)
Final Sec. 1926.1203(h) is substantively similar to the
corresponding provision for general industry confined spaces at Sec.
1910.146(c)(8), but modified to include requirements for controlling
contractors that were included in the proposed rule. The type of
information that the controlling contractor must share with entry
contractors, and that the host employer must share with the controlling
contractor, is identical to the type of information that the host
employer must share with contractors under the general industry
standard. The primary difference in this area between this rule and the
general industry standard is that this rule makes the controlling
contractor the central point of the information exchange, while the
host employer is the central point in the general industry standard.
The final rule also structures the requirements in chronological order
to make them easier to follow, setting out the information sharing and
coordination duties prior to entry, and then setting out the duties
during and after the entry. These requirements are an efficient and
necessary way to ensure that all employers have important information
about the confined-space hazards so each employer can provide adequate
protection to employees it directs.
OSHA is designating the controlling contractor, rather than the
host employer, as the information hub for confined-spaces information-
sharing and coordination because the controlling contractor's function
at a construction site makes it better situated than the host employer
(assuming the host employer is not also the controlling contractor) to
contribute to, and to facilitate, a timely and accurate information
exchange among all employers that have employees involved in confined-
space work. General industry worksites, such as a refinery or factory,
are likely to be stable, and owned and under the control of the host
employer for a substantial length of time. The host employer is well
suited in that scenario to facilitate information sharing because the
host employer is most likely to have control of the site and
information about it before another employer performs confined space
work there. On a construction worksite, the controlling contractor has
overall authority for the site and is best situated to receive and
disseminate information about the previous and current work performed
there. Evidence introduced at the hearing indicated that the
controlling contractor communicates with entry employers more
frequently than the host employer does (ID-210, pg. 315-320). In
contrast, the record shows that host employers are not always directly
involved in the construction process and, therefore, are often less
well situated than controlling contractors to facilitate information-
sharing (ID-220, pg. 14-15).
The final rule is substantively similar to the proposed rule,
except that the proposal would have required the host employers to
communicate directly with entry employers. For the reasons discussed in
the prior paragraph, OSHA assigned the controlling contractor that
function in this final rule, giving only limited information-exchange
requirements to the host employer. In the final rule, OSHA also
clarified the scope of the information exchanges by requiring the
controlling contractor to coordinate and share information with
entities whose activities could foreseeably result in a hazard in the
confined space, as opposed to all contractors "near" the permit
space. Most other differences between these requirements in the
proposed rule and the final rule are stylistic in nature and intended
to bring it closer to the text of general industry rule.
In the following, more detailed discussion, paragraph (h)(1)
contains the pre-entry duties of host employers, (h)(2) the pre-entry
duties of controlling employers, and (h)(3) the pre-entry duties of
entry employers. Paragraph
(h)(4) then describes the coordinating responsibilities of controlling
and entry employers, and (h)(5) explains their duties during and after
entry. Finally, paragraph (i) explains requirements when there is no
controlling employer.
Paragraph (h)(1)--Pre-entry duties of host employer. The host
employer serves an important role in providing information because the
host employer is likely to be the employer most familiar with the
property and the most likely to retain, between separate construction
projects, information about permit spaces on the property, particularly
in construction involving existing facilities. (ID-141, pg. 3.) As a
result, the host employer may have information about hidden dangers or
other information that can help reduce employee exposure to hazards in
permit spaces.
Final Sec. 1926.1203(h)(1) requires the host employer to share
information it has about the location of known permit spaces, and any
previous steps that it took, or that other employers took, to protect
workers from the hazards in those spaces. Telling other employers about
each known permit space on the worksite is essential to achieving the
purpose of the information-exchange requirements, which is to ensure
that contractors with employees entering confined-spaces are aware of
the type and degree of these hazards and can take necessary safety
precautions. Having information about the previously identified hazards
in a space, and the previous efforts to address them, will assist the
entry employer in ascertaining if those hazards still exist, and help
the entry employer avoid problems addressing the hazards that previous
entry employers encountered. Final paragraph (h)(1) is similar to the
corresponding provision for general industry confined spaces and to
proposed Sec. 1926.1204(a), although the host employer must share the
information with the controlling contractor instead of the entrants.
The controlling contractor then shares it with the entry employers.
OSHA did not receive any comments specifically opposing the inclusion
of this information in the information-exchange requirements.
The proposed rule provided that host employers had to share the
information about known hazards only "if they have it," and to
identify confined spaces when the host employer or controlling
contractor "actually knows" that they are confined spaces. (See 72 FR
67407.) The purpose of including these phrases in the proposed rule was
to clarify that the controlling contractor and host employer need not
engage in extensive and burdensome investigations of the history of the
worksite, and, most importantly, that these employers "are not
required to enter a confined space to collect the relevant
information." (See 72 FR 47933.) OSHA is retaining the same approach
in the final rule, but refers to "known" permit spaces instead of the
more awkward "space that the host actually knows is a confined
space." The final rule also narrows the requirement by focusing
specifically on known permit spaces, rather than to all confined
spaces, because these spaces pose the greatest hazards to employees.
Narrowing the requirement also reduces the number of information
exchanges and matches the type of information that the host employer
must share, which is linked to the nature of the space as a permit
space, i.e., information about the hazards that make the space a permit
space, and the previous efforts to address those hazards. This narrowed
approach will appropriately focus the exchanges on those spaces with
known hazards. In the event that an employer is both a host employer
and the controlling contractor, the employer has the information that
complies with the provisions of final Sec. 1926.1203(h)(1), (h)(2),
(h)(4), and (h)(5).
For example, a host employer hires a controlling contractor to
build an underground storage facility and discovers during that process
that there is an underground stream below the property. Years later the
host employer hires a different controlling contractor to expand the
underground storage facility in a manner that will include several
confined spaces. In this example, the host employer must share the
plans for the existing storage facility and identify the location of
the underground stream so that the controlling contractor and the
relevant subcontractors can develop a permit-space program appropriate
to address potential engulfment hazards. The host employer also would
be responsible for disclosing the storage of any potentially hazardous
chemicals or other substances in the existing storage facility.
However, the final rule would not require the host employer to drill
for additional undiscovered underground rivers, conduct soil tests, or
test the air in the existing storage facilities.
Paragraph (h)(2)--Pre-entry information-sharing duties of
controlling contractors. In paragraph (h)(2), OSHA requires controlling
contractors to obtain the information specified in paragraph (h)(1)
from the host employer (i.e., the location of permit spaces, the known
hazards in those spaces, measures employed previously to protect
employees in that space). Then, before permit space entry, it must
relay that information to any entity entering the permit space and to
any entity whose activities could foreseeably result in a hazard in the
confined space. (See Sec. 1926.1203(h)(2)(ii).) The controlling
contractor must also share any other information that it has gathered
about the permit space, such as information received from prior
entrants.
The final rule varies slightly from the proposal in requiring
controlling contractors to share the information with any "entity,"
rather than other contractors or employers, to ensure that the
controlling contractors also share this information with independent
contractors who are not "employers" under the OSH Act. These
contractors pose the same issues as do employers when working in or
around permit spaces, i.e., they may increase hazards for others
working in or around the space if they do not comply with the
provisions of this standard. OSHA concludes that it is equally
important for controlling contractors to pass along information about
permit space hazards to independent contractors, and to coordinate
their activities as required in this standard. Although OSHA is not
directly requiring independent contractors to share information in
accordance with the standard, OSHA expects that controlling contractors
will be able to obtain the necessary information as a result of their
control over the worksite.
OSHA requires the controlling contractor to obtain the information
from the host employer before entry operations begin so that the
controlling contractor can share the information with the entities
specified in Sec. 1926.1203(h)(2)(ii) in time to minimize potential
employee exposure to hazards in the confined spaces. This provision was
not in the proposal; the proposal required both the host employer and
controlling contractor to share information directly with the entry
employer. (See proposed Sec. 1926.1204(a).) OSHA added this provision
to the final rule to conform to the final rule requirement that the
host employer share information with the controlling contractor rather
than the entry employer. The final standard makes it explicit that the
controlling contractor and host employer have separate duties with
respect to the same information: the controlling contractor must obtain
it under final Sec. 1926.1203(h)(2)(i) and the host employer must
share it under final Sec. 1926.1203(h)(1).
These complementary duties also address the concerns of some
commenters that host employers are often state or local government
entities not subject to the OSH Act. (ID-78, p. 2; ID-141, pg. 3.) The
commenters expressed concern that it might be difficult for the
controlling contractor to obtain the information from a government
entity not subject to Sec. 1926.1203(h)(1), and that the host's
failure to provide the information could subject the controlling
contractor to heightened liability. In such cases, OSHA expects the
controlling contractor to exercise due diligence in attempting to
obtain the information from the host employer, and believes that most
hosts will provide it when the controlling contractor explains that it
needs the information in order to perform the job safely and in accord
with law.
Final Sec. 1926.1203(h)(2) is similar to the corresponding
provisions for general industry confined spaces with a few
distinctions. General industry Sec. 1910.146(c)(8)(i) requires the
host employer to share the specified information with "the
contractor." This final rule requires an exchange of the same
information, but Sec. 1926.1203(h)(2) requires the controlling
contractor to exchange that information with both the entity entering
the permit space and with other contractors working around the permit
space.
The general industry rule requires the host employer to inform
other employers that they can conduct permit-space entry only by
complying with a permit-space program meeting the requirements of the
standard (see Sec. 1910.146(c)(8)(i)). There was no specific parallel
in the proposed construction rule. This final rule also does not
contain a specific parallel requirement because the entry employer's
duty to use a valid permit program is explicit in Sec. 1926.1203(d).
OSHA has clarified the requirements for communication with entities
whose activities outside a confined space may affect workers inside the
space. Many commenters found the terminology of the general industry
rule (referring to work "in or near permit spaces" in Sec.
1910.146(c)(8)(iii)) and the proposed rule (referring to "employers"
in proposed Sec. 1926.1209(b)(3).) confusing in the context of a
construction worksite.\16\ Therefore in this final rule, OSHA refines
this requirement by requiring the controlling contractor to provide the
information to other entities on the worksite when the activities of
these other entities could foreseeably result in a hazard within the
confined space. This information-exchange requirement also is similar
to the information-exchange requirement in Sec. 1926.65(b)(1)(iv)
(Hazardous waste operations and emergency response). Both rules require
employers to inform contractors and subcontractors about hazards of the
work the contractor will be performing, including hazards of the
worksite.
---------------------------------------------------------------------------
\16\ For a discussion of the term "near" see the overview of
Sec. 1926.1205 in this preamble.
---------------------------------------------------------------------------
OSHA designed this requirement to protect authorized entrants and
others who are part of the permit-space entry process (e.g., the
attendant) from a wide variety of potential activities, including those
that may be beyond the scope of the permitting process. Therefore, the
information-exchange requirement applies to activities outside the
permit space that could foreseeably result in a hazard within the
permit space, either alone or in conjunction with the activities inside
the space. Examples include use of a heavy gas that could enter the
space and cause oxygen deficiency or sparks from a welding operation
outside the space that could ignite flammable gas inside a confined
space. To prevent the creation of confined-space hazards, final Sec.
1926.1203(h)(4) supplements this requirement by requiring the
controlling contractor to coordinate the activities of entities either
entering the permit space or engaged in actions that could foreseeably
result in a hazard within the space.
Paragraph (h)(2)(i). As noted above, final Sec. 1926.1203(h)(2)(i)
requires the controlling contractor to obtain from the host employer,
before permit-space entry, the host's information regarding permit-
space hazards and previous entry operations. OSHA included this
provision in the final rule as part of the change to limit the host
employer's involvement in the information-exchange process, and to
centralize the role of the controlling contractor. The controlling
contractor needs this information for dissemination to entities
entering permit spaces (final Sec. 1926.1203(h)(2)(ii)), and to
fulfill its duty to coordinate permit-entry activities with other work
occurring in and around the permit space (see final Sec.
1926.1203(h)(4)).
Paragraph (h)(2)(ii). The final rule requires the controlling
contractor to pass along the information it received from the host
employer about the permit spaces on the worksite. The controlling
contractor is at the hub of the information exchanges in the final
rule, so this step is critical to ensuring that the host employer's
information reaches the entities entering the permit space and others
whose work may create hazards inside the permit space. The parallel
provision of the proposed rule, Sec. 1926.1204(a)(1), was potentially
duplicative and ambiguous because it required the controlling
contractor and host employer to provide the same information to the
same entities.
Final Sec. 1926.1203(h)(2)(ii)(A) and (B) require the controlling
contractor to share with the entities entering the permit space, and
any other entity at the worksite whose activities could foreseeably
result in a hazard in the permit space, the information that the
controlling contractor received from the host employer, as well as any
additional information the controlling contractor has about the topics
listed in paragraphs (h)(1)(i) through (iii) (i.e., the location of
permit spaces, the hazards in those spaces, and any previous efforts to
address those hazards). These paragraphs are substantively similar to
the general industry requirements at Sec. 1910.146(c)(8)(ii) and
(iii). Having information about the previously identified hazards in a
space will help the entry employer ascertain whether those hazards
still exist.
For employers or other entities whose activities could foreseeably
result in a hazard in the confined space, this information will improve
their ability to assess whether those activities will create such a
hazard, to avoid creating the hazard or to minimize any hazard they
create, to prevent their employees' unauthorized entry into a permit
space, and to help them prepare for coordination of their activities
under final Sec. 1926.1203(h)(4).
Final Sec. 1926.1203(h)(2)(ii)(C) is similar to the general
industry standard at Sec. 1910.146(c)(8)(iii) in that it requires the
controlling contractor to share with each specified entity any
precautions or procedures that the host employer, controlling
contractor, or any entry employer implemented earlier for the
protection of employees working in permit spaces. This provision also
is similar to the proposed standard at Sec. 1926.1204(a)(2)(iii). This
final provision requires the controlling contractor to notify the
specified entity of the procedures currently used, or previously used,
at the permit space, thereby alerting each new entering entity to
information that it can use to improve its entry plans and permit
program. This provision does not require the controlling contractor to
develop entry programs for its contractors.
One commenter urged OSHA to alter the information-exchange
requirements in proposed Sec. 1926.1204(a) by requiring the
controlling contractor to share all information about precautions or
procedures implemented by any employer within a given permit space,
not merely the precautions and procedures the host employer or
controlling contractor implemented for that space (ID-220, pg. 16).
OSHA agrees, and the final rule requires controlling contractors to
share this information because it is likely to be helpful to subsequent
entry employers as they assess the spaces and develop their own
procedures. This information may also reduce the amount of time it
takes subsequent entry employers to develop their own entry procedures.
The controlling contractor's experience with a permit space includes
information gathered from other entry employers and other sources; the
controlling contractor will share this information with subsequent
entry employers. If the information about previous procedures came from
an entry employer who worked on projects before the controlling
contractor became involved, then the controlling contractor would
obtain that information from the host employer. If the previous
procedures came from an entry employer who worked under the controlling
contractor, then the controlling contractor would have obtained the
information pursuant to other provisions of this rule.
Examples of Pre-Entry Information-Exchange Duties of Host Employers and
Controlling Contractors
Example 1. A controlling contractor is walking the worksite and
notices a significant amount of water pooling so that it might enter
an underground permit space. The controlling contractor must alert
the subcontractor working in that space of the potential for water
entering the space or weakening the structure, and must also inform
other entities in the area whose activities could foreseeably result
in a hazard inside the confined space (e.g., entities whose
activities may be contributing to the pooling water, may convey an
electric charge through the water into the confined space, or may
weaken the structure around the confined space to allow the water to
enter the space).
Example 2. The controlling contractor hires a subcontractor to
apply a flammable epoxy coating to the walls of a confined space;
the subcontractor does so under a permit program, and then cancels
the permit in compliance with this final rule. The controlling
contractor must inform subsequent employers entering the space about
the application of that epoxy and the procedures used to address
hazards in the space.
Example 3. If a host employer stored hazardous chemicals in a
confined space during a period when leaching of the chemicals could
occur, the host employer must disclose that previous use of the
space.
Example 4. The controlling contractor hires a welder to weld a
new structure inside a fully-enclosed above-ground permit-required
confined space. The welder sets up a ventilation system that
complies with all applicable OSHA requirements. The controlling
contractor also hires a different subcontractor to perform unrelated
excavation work 75 yards away from the permit space. The controlling
contractor must alert the excavation contractor to the fact that a
welder is working in the confined space, that the space has been
designated a permit space and must not be entered by any of the
excavation contractor's employees, and that the welder is relying on
a ventilation system that must not be impacted by the excavation
contractor's activities, such as by blocking the ventilation system
or by operating heavy machinery, generators, etc. in such a way that
their fumes could enter the confined space. In this example it is
foreseeable that the excavator might otherwise place dirt from the
excavation (the "spoil pile") in a location that could interfere
with the welder's ventilation system, or add fumes into the confined
space. Either action would foreseeably result in a hazard in the
permit space. However, absent some other abnormal condition such as
an underground gas pipeline running between the excavation site and
the permit space, the controlling contractor would not need to
ensure any coordination between the excavating activities and the
welding activities because the excavation itself (aside from the
placement of the spoil pile) is 75 yards away and would not
foreseeably result in a hazard in the permit space.
In example 1, the entry employer might not be aware of the hazard
from the pooling water or of other hazards that could arise from the
activities of others outside the site in conjunction with the pooling
water. In examples 2 and 3, both types of information could be critical
to employers performing subsequent welding or other tasks that might
ignite remaining fumes or release vapors inadvertently.
These information exchanges, in combination with separate OSHA
requirements that entry employers share specific information about the
permit spaces with controlling contractors, will ensure that each
"downstream" employer (the employer performing the permit-space
entry) receives important information about the relevant permit space
in time to address hazards that could endanger employees it directs.
One commenter questioned whether the information duties would apply
to all information--both written and oral--the host employer or
controlling contractor may receive, rather than merely information that
is readily available (ID-153, pg. 18). The obligations in this final
rule apply to all information, including both written and oral
information the host employer or controlling contractor receives about
hazards or potential hazards in a permit space. It is the
responsibility of the host employer and controlling contractor to
retain this information, which protects employees who are performing
permit-space work, and to communicate this information to entry
employers and the others identified in the standard.
A different commenter asserted that employers will have difficulty
managing and recording the information they are required to communicate
(ID-078, pg. 2). However, the record indicates that many construction
employers already are following the general industry confined spaces
standard, which requires host employers to share similar information
(see Sec. 1910.146(c)(8)(ii) and (c)(8)(iii)). This final rule also
does not prescribe how employers are to gather, record, or maintain
this information. This commenter urged OSHA to provide a database of
relevant information that all employers could access; however, such an
action is beyond the scope of this rulemaking.
The National Association of Home Builders asserted that the
information-exchange requirements would not be beneficial in the
context of residential construction because conditions change too
rapidly (making it likely that the information will be inaccurate when
exchanged), and that the "small likelihood that the provision would
ever be of any use to employee safety" should not outweigh the
"burden of compliance" in residential construction (ID-117, pg. 20).
This comment misses the point: this is an important safety issue
because the information exchange protects workers from exposure to
harmful conditions. The rapidly changing confined-space conditions on
residential construction sites is a major reason OSHA is requiring
these information exchanges. Moreover, only the presence of a permit-
required confined space triggers the information-sharing requirements,
and every entry into a permit-required confined space, by definition,
exposes the entrants to a hazardous atmosphere or other serious hazard
absent the measures implemented through the permit program. The
commenter offers no support for the assertion that sharing information
to help entry employers identify these hazards as quickly as possible,
and before employee exposure occurs, would not be of "any use to
employee safety." In light of the record as a whole, OSHA believes
that there will be an important safety benefit, and, therefore, does
not find the commenter's argument persuasive.
The same commenter offers another reason for objecting to the
information-sharing requirement: On large commercial construction
projects, it is common to exchange information at the start of the
project, but this information
may be incomplete or partial (ID-117, pg. 20). In some cases, as
construction progresses, the controlling contractor obtains more
information as it becomes available. Consequently, this commenter
asserted that the controlling contractor or host employer will exchange
information with the entry contractor in a piecemeal fashion unless
OSHA requires the entry employer to request all of the information
available (See also ID-219.2, pg. 37 (marked as pg. 34)). The
commenter's suggested approach to avoiding piecemeal information
exchanges is to have the controlling contractor or host employer
withhold relevant information if the contractor does not request it.
This approach is contrary to the purpose of this paragraph: To ensure
that employers have as much information as possible, and in a timely
manner, when preparing to work safely in a confined space.
Subcontractors are not likely to be aware of hidden dangers, and are,
therefore, unlikely to request information about them. To protect their
employees working inside a confined space, subcontractors would likely
submit a pro forma request for information to the controlling
contractor and host when they initially begin work at any site, but it
is not clear that such a process would be substantively different from
the approach specified in this final rule, except that it would be
involve an extra step.
In any event, OSHA has specified when the controlling contractor
must share the information: "before entry operations begin." The
controlling contractor must share the information obtained from the
host employer, and any other information that the controlling
contractor gathered from other sources (e.g., previous entries into the
same space as part of the same construction project), with the entry
employer before entry. If such permit-space work is to occur near the
midpoint of a project, a single conversation shortly before the
evaluation and entry may fulfill the requirements of the final rule.
There is no reason the controlling contractor cannot send all of the
information at once rather than sending updated information in a
piecemeal fashion as the commenter noted, as long as the information is
shared with the entry employer prior to entry. The key parts of the
provision are that the controlling contractor remains informed, and
ensures that the information is conveyed to the entrants. Therefore,
employers involved in permit-space entry on construction worksites have
flexibility to decide the manner in which to exchange this information
(e.g., whether orally or in writing, whether the entry employer or
controlling contractor initiates the exchange); however, they all have
a duty to ensure that they share the information.
Paragraph (h)(3)--Pre-entry information-sharing duties of entry
employers.
This provision, which sets forth the information-exchange
requirements for entry employers, is similar to the proposed provision
and to the corresponding provision for general industry confined spaces
standard at Sec. 1910.146(c)(9), although it uses slightly different
terminology. Here, OSHA uses the term "entry employer" to clarify
that the paragraph applies to employers who perform permit-space entry
operations. And as in the rest of this section, the controlling
contractor, rather than the host employer, is the focal point of the
information exchange. OSHA believes that these requirements will
contribute significantly to the increased safety and health of the
employees of entry employers involved in permit-space entry operations.
Paragraph (h)(3)(i). This provision requires an entry employer to
obtain information about the permit-space entry operations from the
controlling contractor, and works with final Sec. 1926.1203(h)(2),
which requires the controlling contractor to share information about
permit-space entry operations with the entry employer. OSHA believes
that the reciprocal obligations in this final rule, which are
consistent with the general industry standard, will increase the
effectiveness of the information exchange by placing the duty to share
this information on both parties. Both employers will now have the duty
to exchange information, although they will likely accomplish their
duties in a single interaction. The information exchange will ensure
that the entry employer understands the type of space it will be
evaluating, and will allow it to anticipate the permit-space hazards
that may be present during entry.
Paragraph (h)(3)(ii). The final rule requires an entry employer to
inform the controlling contractor of the permit-space program that the
entry employer will follow, including information about any hazards
likely to be confronted or created in each permit space. This exchange
must take place prior to entry to ensure that the controlling
contractor is informed of all the hazards in a timely manner and can
take action, if needed, to prevent an accident or injury before entry
operations begin. OSHA expects this exchange to occur after the
employer has completed its assessment of the permit space, which is
generally necessary to identify the hazards in the space and ensure
that a proper permit-space program is selected. Consistent with the
approach in the proposed rule, separating this pre-entry exchange from
the subsequent entry report required by Sec. 1926.1203(h)(5)(ii)
clarifies that these two information exchanges must take place at two
distinct stages of permit-entry operations.
One commenter objected to the proposed requirement that the entry
employer inform both the controlling contractor and host employer of
the procedures the entry employer planned to use in the permit space.
The commenter asserted that the proposed provision was "an unnecessary
burden [that] in some cases may be infeasible" (ID-124, pg. 6). This
final rule eliminates the requirement that the entry employer share
this information with the host employer, eliminating any difficulties
an entry employer may have communicating with a host employer, and is
consistent with the rule's overall designation of the controlling
contractor as the focal point of the information-exchange process. As
explained elsewhere, the controlling contractor needs this information
to coordinate entry as necessary, and the exchange provides the
controlling contractor with another opportunity to inform the entry
employer about the hazards of the permit space as required by Sec.
1926.1203(h)(2).
Paragraph (h)(4)--Coordination duties of controlling contractors
and entry employers. Final Sec. 1926.1203(h)(4) requires controlling
contractors and entry employers to coordinate permit-space entry
operations in two circumstances: (1) When more than one entity performs
entry operations at the same time, or (2) when permit-space entry is
performed at the same time any activities that could foreseeably result
in a hazard in the permit space are performed. The controlling
contractor and each entry employer have separate duties under this
provision, and each can be cited for failing to perform its part of the
coordination. Similar obligations were included in the proposal, but
were not stated as clearly as they are here, and also are present in
the general industry standard. Minor differences between this final
rule and the general industry and proposed rules are matters of
terminology or reflect the key role of the controlling contractor in
this construction rule.
There is a need to coordinate entry operations whenever multiple
entities are performing work simultaneously in or around a permit-space
because of the
possibility that one entity's activity might create a hazard for
workers employed by a different entity (e.g., welding next to the
application of a flammable coating). The purpose of this provision is
to protect employees from foreseeable hazards that could result from a
lack of coordination between entry entities in the permit space, or
with entities outside the space whose activities could create hazards
inside the permit space. This paragraph works in concert with the
requirement that entry employers inform the controlling contractor of
the permit-space program that the employer will use and the hazards
they are likely to encounter in the space, including hazards created
after entry. The controlling contractor can use this information to
coordinate the entry operations to ensure safety for all workers in the
space.
It is important for the controlling contractor to participate in
each coordination effort because construction worksites are constantly
evolving, with multiple employers performing work. Consequently, the
controlling contractor, as the employer with overall responsibility on
the worksite, is in the best position to coordinate the entry
operations. This provision also requires the entry employer to
coordinate entry with the controlling contractor because it is the
entry employer who evaluates a confined space, who will have employees
it directs entering the space, and who may have the most current
information about the space.
For example, a properly informed controlling contractor will be
aware of excavation work on a site directly above an underground permit
space, and will coordinate work to ensure that no employees are in the
permit space when the excavation work could foreseeably cause part of
the underground space to collapse. Similarly, the controlling
contractor must ensure that, when an employer is using a crane in the
vicinity of a permit space, lifts are planned and implemented so that
the crane would not be carrying its load over an occupied permit space
or its entry/exit. In those scenarios, the entry employer would be
responsible for informing the controlling contractor when it plans to
have employees inside the permit space. Coordination would typically
involve the controlling contractor scheduling the activities
appropriately, working with all of the employers involved to ensure
that they adhere to the schedule, implementing a plan to remove the
employees from the permit space at the appropriate times, and
designating locations to keep the employees clear of the load during
the lifting operation.
This coordination requirement responds to a concern that proposed
Sec. 1926.1204(d) did not account for the fact that work taking place
near a permit space can create hazards that could harm other employers'
employees inside the space (ID-210, pg. 317-18). The commenter raising
this concern provided an example of an employer that uses gas that is
heavier than air near a confined space; such a gas could create an
atmospheric hazard in the space by displacing oxygen.
OSHA agrees with this comment and the final standard requires the
type of coordination that will address this concern. It specifically
requires the controlling contractor to coordinate entry operations of
any entities whose activities could foreseeably result in a hazard in
the confined space. This requirement is consistent with the
requirements of final Sec. Sec. 1926.1204(k) and 1926.1210(f). Final
Sec. 1926.1204(k) requires an entry employer to account for such
coordination as part of its permit program, while final Sec.
1926.1210(f) requires the entry supervisor to determine, on
transferring responsibility for permit operations, that entry
operations remain consistent with the terms of the entry permit and
that entry conditions are acceptable.
Other commenters objected that controlling contractors are not in
the best position to coordinate because they often are not on the site
to provide coordination, do not have the knowledge or experience to
correctly identify the hazards of a permit space, and may not know of
the planned entry (ID-117, pg. 21; ID-075, pg. 6). These commenters
also argued that if the final standard requires coordination, such
coordination should be between the involved host employer and entry
employer(s), as is the case under the general industry standard (ID-
117, pg. 22; ID-075, pg. 6).
OSHA disagrees with these comments. An employer that meets the
standard's definition of controlling contractor has "overall
responsibility for construction at the worksite." As noted earlier,
other commenters agreed that controlling contractors were better suited
than host employers to serve at the center of this process in
construction activities. (ID-210, pg. 315-20; ID-220.2, pg. 14-15). By
virtue of their responsibility for the entire worksite, controlling
contractors schedule and coordinate activities among different
subcontractors to ensure that they perform construction tasks in the
correct sequence, in the proper manner, and with minimal delay between
the steps on a project. The vague hypothetical scenarios presented by
the commenters do not persuade the Agency that the coordination
required by this final rule is a significant departure from the type of
coordination required on a regular basis under existing work practices.
Accordingly, OSHA concludes that controlling contractors, as the
entities actually managing construction activities at a worksite, are
better able than host employers to coordinate the activities of the
other employers whose employees work in or around a permit space.
Coordination of entry operations under final Sec. 1926.1203(h)(4) is a
critical component of this standard.
Nevertheless, OSHA has structured the coordination provision in the
final rule to minimize additional responsibilities and provide
appropriate flexibility for controlling contractors. If the controlling
contractor's employees will not enter the permit space, the controlling
contractor may fulfill its coordination duty by relying on information
provided by entry employers. The controlling contractor does not
necessarily have to be on the site at all times or have expertise on
permit space hazards to coordinate entry operations, just as the
controlling contractor does not need to be on site at all times to
coordinate material deliveries or subcontractor assignments. In
addition, the final rule does not specify how the controlling
contractor and entry employers must coordinate entry operations.
Controlling contractors and entry employers may coordinate entry
operations using any method that is effective, and this coordination
need not involve a lengthy process.
One commenter expressed a concern that the coordination
requirements would impose strict liability on controlling contractors
for safe permit-space entry operations, meaning that the controlling
contractor would be liable for another employer's breach of safety
policy (ID-141, pg. 2). The final rule does not impose strict liability
or any responsibility to ensure other contractors' compliance with the
standard. Controlling contractors who are not entry employers have
information sharing and coordination duties.
Another commenter asserted that, in an effort to comply with this
coordination duty, the controlling contractor may impose redundant and
unnecessary safety measures on other employers to protect the
controlling contractor from liability (ID-120, pg. 2). This comment is
speculative and unsupported by specific examples, so it is difficult
for the Agency to respond to it other than to note that the final rule
does not impose duplicative
requirements on employers, nor does the final rule require the
controlling contractor to do so. OSHA believes that the final rule
provides employers with sufficient flexibility in discharging their
coordination duties. This flexibility should reduce duplication of
effort and any associated costs.
Lastly, this commenter asserted that it would be difficult for a
controlling contractor to fulfill the coordination duties absent
explicit contractual authority to do so. Id. But under this final rule,
controlling contractors are the only employers at a worksite that
"have overall responsibility" for the site, so they are in the best
position to coordinate the work schedule. If controlling contractors
prefer to augment their authority through contractual provisions with
subcontractors or host employers, this final rule does not prevent them
from doing so.
Paragraph (h)(5)--Post-entry duties of controlling contractors and
entry employers. This paragraph, which imposes obligations similar to
those in the general industry standard, requires the controlling
contractor to debrief an entry employer at the end of entry operations
about the permit-space program followed and any hazards confronted or
created during entry operations, and then relay appropriate information
to the host employer. It also requires the entry employer to share the
same information with the controlling contractor. These requirements
serve three purposes. First, they ensure that the controlling
contractor requests the information. Second, they establish an
affirmative duty for the entry employer to provide this information.
Third, they ensure that the host employer will receive information
relevant to future permit-space entries. The intent is for entry
employers to identify and share information about additional hazards,
new procedures, or other new information not previously identified in
the required pre-entry information exchange.
OSHA believes it is appropriate to place the duty on the entry
employer to provide this information, as well as to require the
controlling contractor to request it. The entry employer, by virtue of
performing permit-space entry operations, will be the first employer to
have access to new information. If the entry employer fails to
communicate the information to the controlling contractor during the
course of entry operations, the information transfer will occur during
the entry employer debriefing.
There were no comments indicating the debriefing is unworkable or
overly burdensome. OSHA made this duty reciprocal in the final rule,
and removed the duty for the entry employer to provide information to
the host employer to keep the rule internally consistent and consistent
with the general industry standard, and to increase the effectiveness
of the information exchange by placing the duty to share this
information on both parties to the exchange, thereby ensuring that both
the controlling contractor and entry supervisor exchange the specified
information. Accordingly, Sec. 1926.1203(h)(5)(i) requires the
controlling contractor to retrieve the information, and Sec.
1926.1203(h)(5)(ii) requires the entry employer to provide the
information. OSHA does not view this as a significant change from the
proposed rule because the proposal also required the same debriefing to
occur, and it required the parties to share the same information (see
proposed rule Sec. 1926.1204(c)(2)). If no new hazards arose during
entry and the entry employer's program did not change, the information
exchange can be brief, just confirming that the original program was
followed.
The final rule contains a new requirement for the controlling
contractor to notify the host employer of any information it receives
from debriefing the entry employer. OSHA added this provision to close
a potential gap in the information-exchange process that could result
because the final rule makes the controlling employer the hub of the
information and exchange and does not require entry employers to
provide information directly to the host employers, as the proposed
rule did (see proposed rule Sec. 1926.1204(c)(2)). As discussed above,
OSHA has determined that the controlling contractor is in the best
position to coordinate the exchange of this information. Therefore, the
final rule shifts the duty to the controlling contractor. The host
employer will still receive the information, but from the controlling
contractor. OSHA expects that in many cases there will be no need for a
separate exchange because the controlling contractor can relay this
information as part of its regular communications with the host
employer.
One commenter objected to the debriefing requirement, stating that
it was unnecessary if other employers were not already scheduled to
enter the space. If another employer does eventually enter the space,
the commenter asserted, the subsequent employer's independent hazard
assessment should suffice (ID-124, pg. 6). OSHA disagrees. The
subsequent employer must make an independent hazard assessment, but the
rationale for requiring information exchanges in the final rule still
applies: that assessment may not reveal previously identified hidden or
latent dangers or conditions, and the new entry employer would be less
prepared to protect its employees than if it obtained the information
that the controlling contractor received from debriefing the previous
entrant.
A different commenter asserted that host employers have no need for
information about newly constructed confined spaces, and that the
requirement to provide information to the host employer is an
unnecessary paperwork burden (ID-017, pg. 2). OSHA disagrees. It is
important for the controlling contractor to notify the host employer of
information about the host's property, particularly any new hazards
identified during the entry. In many cases, the same controlling
contractor may not be present for future construction activities
involving the space, so the host employer's information will helpful
for future entries.
Note to Sec. 1926.1203(h)--host employer and controlling
contractor not required to enter a confined space. The final
standard also includes the note from proposed Sec. 1926.1204(a)
explaining that, unless a controlling contractor or host employer
has, or will have, employees in a confined space, neither of these
employers need to enter any confined space to collect the
information specified in paragraph (h) of this section. This note
applies to all of paragraph (h). This protects the employees of the
controlling contractor and the host employer because entering
confined spaces could expose those employees unnecessarily to the
hazards of that space. Controlling contractors and host employers
should not conduct such an entry unless there is a purpose to the
entry other than just gathering information.
Paragraph (i)--Absence of a controlling contractor. Final Sec.
1926.1203(i) provides that, in the event no employer meets the
definition of a controlling contractor on a particular worksite, the
host employer or other employer that arranges for permit-space entry
work must fulfill the information-exchange and coordination duties of a
controlling contractor. The general industry rule does not have any
requirements for a controlling contractor and, therefore, has no
corresponding provision dealing with the absence of a controlling
contractor. OSHA added this requirement in response to a comment noting
that some construction worksites do not have an employer that meets the
definition of a controlling contractor (ID-124, pg. 6). Because the
controlling contractor is at the hub of the information-exchange and
coordination requirements, failing to address this
issue would leave a serious gap in a critical provision of the
standard. When no employer on a worksite meets the definition of
controlling contractor, it is still necessary for one employer to be
responsible for information exchange and coordination, thereby ensuring
that entry employers are aware of the known hazards associated with the
space, and that different entities do not create new hazards to each
other.
The employer that has the duty specified under final Sec.
1926.1203(i) can be any employer that arranges for permit-space entry.
It could be the host employer, a different contractor, or an entry
employer that arranges for another entry employer to conduct entry
operations. It is possible that the employer that has this duty will
change based on the stage of construction. For example, if there is no
controlling contractor for the project, but a contractor on the site
arranges for entry employer A to enter a permit space, the final rule
requires the contractor to share the information identified in final
Sec. 1926.1203(h) with entry employer A and to fulfill the controlling
contractor's coordination and other information sharing duties in the
standard. If entry employer A, after completing its entry operations
and cancelling its permit, arranges for entry employer B to enter the
permit space, then entry employer A assumes the controlling contractor
duties with respect to entry employer B's confined space activities.
Requirements in Sec. 1926.1203(h) and (i) do not alter contractual
relationships between host employers or controlling contractors and
subcontractors. One commenter noted that subcontractors often perform
confined-space work because of their expertise in working in those
spaces, and asserted that OSHA should not "force general contractors
to interject themselves into the work tasks of their sub-contractors"
in a way that would "disregard . . . both specific contractual
responsibilities and the expertise of sub-contractors." (124.1, pg.
3.) OSHA agrees, and crafted this rule to ensure that subcontractors
have the information necessary to perform their work safely,
particularly information about hidden or latent hazards that the
subcontractor may not be able to discover quickly without endangering
its entrants. A subcontractor may have expertise in welding inside a
confined space, but that expertise will not help it avoid an invisible
hazard it has no reason to suspect. (See ID-213.1, pg. 1, supra, for
example of hidden dangers.) In this case, the host employer and
controlling contractor need not develop welding expertise; instead,
they must share information about hazards that they, or other employers
with the appropriate expertise, previously identified.
Several commenters asserted that "OSHA is attempting to force
certain employers to assume a sufficient degree of control over
confined space entry" to "substantially expand" the tort law
exposure of those employers (ID-078, pg. 2; ID-120, pg. 2-3; 153, pgs.
19-20). OSHA does not agree, and notes that comments urging OSHA to
reduce potential employer liability in private rights of action are not
relevant to OSHA's statutorily mandated obligations to promote worker
safety.
Congress enacted the OSH Act to "assure so far as possible every
working man and woman in the Nation safe and healthful working
conditions." 29 U.S.C. 651(b). Congress gave the Secretary of Labor
the authority to promulgate mandatory occupational safety and health
standards to achieve that goal.\17\ Id. section 655. As OSHA explained
in an October 23, 2006, letter to U.S. Congressman Cass Ballenger,
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\17\ The Secretary delegated those responsibilities to the
Assistant Secretary for Occupational Safety and Health, who heads
OSHA. See 77 FR 3912 (Jan. 25, 2012).
nothing in health or safety standards issued by OSHA . . .
determines the tort remedies available to injured workers. That
matter is determined by the laws of the individual states. It is not
our role at OSHA either to foster or to foil the efforts of
plaintiffs' lawyers in state court proceedings. It is our
responsibility, however, to undertake reasonable efforts " . . . to
assure so far as possible every working man and woman in the Nation
safe and healthful working conditions," and OSHA's standards are
therefore focused on addressing workplace hazards." In general,
tort law remedies present entirely separate bodies of law that are
available at common law, or as the result of state action, to anyone
in the general public (including workers) who might be harmed by a
wrongful act; they are not aimed specifically at correcting
---------------------------------------------------------------------------
workplace hazards.
The OSH Act does not contain any private right of action allowing
employees to recover for injuries or illnesses caused by hazardous work
conditions. Instead, Section 4(b)(4) of the OSH Act makes clear that
any effect of OSHA standards on state tort law is limited: "Nothing in
[the OSH] Act shall be construed to . . . enlarge or diminish or affect
in any other manner the common law or statutory rights, duties, or
liabilities of employers and employees under any law with respect to
injuries, diseases, or death of employees arising out of, or in the
course of, employment." (29 U.S.C. 653(b)(4).) The plain language of
section 4(b)(4) thus indicates that any standard OSHA promulgates
generally has no effect on, and certainly cannot "substantially
expand," employees' rights under the state tort system with respect to
workplace injuries and illnesses. See, for example, Crane v. Conoco,
Inc., 41 F.3d 547 (9th Cir. 1994) ("OSHA violations do not themselves
constitute a private cause of action"); Atlas Roofing Co., Inc. v.
OSHRC, 430 U.S. 442, 445 (1977) ("existing state statutory and common-
law remedies for actual injury and death remain unaffected" by the OSH
Act); Frohlick Crane Serv, Inc., v. OSHRC, 521 F.2d 628, 631 (10th Cir.
1975) ("It would appear that by this particular provision [section
4(b)(4)] Congress simply intended to preserve the existing private
rights of an injured employee, which rights were to be unaffected by
the various sections of the Act itself."); Jeter v. St. Regis Paper
Co., 507 F.2d 973, 977 (5th Cir. 1975) ("It seems clear that Congress
did not intend [the OSH Act] to create a new private cause of action,
but, on the contrary, intended private rights to be unaffected
thereby.") .
OSHA recognizes that state courts in some circumstances use OSHA
standards, including these final host-employer and controlling-
contractor provisions, as evidence in a negligence action. (See, for
example, Knight v. Burns, Kirkley & Williams Constr. Co., 331 So.2d 651
(Ala. 1976).) But when they do so, any effect on tort law is a function
of these state court decisions and is not in any way dictated by OSHA's
standard. See Summit Contractors, Inc. v. Sec'y of Labor, 442 Fed.Appx.
570, 572 (D.C. Cir. 2011) (rejecting arguments that OSHA's multi-
employer duties would increase common law liability for general
contractors because "such liability would arise only from a court's
(hypothetical) later action under state law--not from the OSH Act
itself").
Other commenters submitted a variety of objections about the
information-exchange provisions, including that the controlling
contractor and host employer information-sharing requirements "do not
reflect an appropriate application of responsibilities, and expand the
duties of general contractors in the residential construction
industry" (117.1, pg. 7), thereby requiring the host employer to
maintain extensive files about each confined space located on its
property, which "would be impractical and infeasible in today's
business context" (153, pgs. 18-19). Commenters also complained that
the coordination requirements were "unworkable" (219.2, pg. 40
(marked as pg. 37)). However, another commenter responded:
Throughout the hearings, participants argued, on the one hand,
that OSHA should simply extend the general industry standard to
construction and, on the other, that the proposed standard would
impose unprecedented and unwarranted burdens on controlling
contractors, which would expose them to substantial liability. . . .
[T]here is, in fact, little new in the proposed multi-employer
provisions. And, there is nothing in the record that . . . suggested
that the information-sharing requirements under Sec. 1910.146 have
proven to be either burdensome or unnecessary. . . . [Based on the
record,] the provisions requiring information sharing between the
entity that has the greatest familiarity with the worksite and
contractors coming into the worksite for brief, discrete periods of
times have proven to be effective means of assuring that employees
can work safely in confined spaces without imposing notable burdens
or liability on the host employers.
(220.2, pg. 13-14.) OSHA agrees with this comment. There are not many
substantive differences between the new standard and the general
industry standard, and employers have not raised significant obstacles
to compliance with the general industry standard during the two decades
following OSHA's promulgation of that standard. OSHA is confident that
the new construction standard will also be workable.
Section 1926.1204--Permit-Required Confined Space Program
The permit-required confined space program is a critical component
of new subpart AA. Except for ventilation-only entries conducted in
accordance with Sec. 1926.1203(e), the Agency requires each employer
with employees who will enter a permit space to implement a written
permit-space program that meets the requirements set out in this
section (see final Sec. 1926.1203(d)). Final Sec. 1926.1204 is,
therefore, specifically tailored to work activities conducted inside a
space that meets the definition of a "permit-required confined space"
("permit space") in final Sec. 1926.1202. Technically, final Sec.
1926.1204 sets out information and actions that must be included in the
permit program, and the requirement to implement these steps is in
final Sec. 1926.1203(d), but employers should view Sec. 1926.1204 as
the main set of requirements for protecting their employees when
entering a permit space.
In the preamble to the general industry confined spaces standard,
the Agency observed that "an employer who waits until the last minute
before entry operations begin to develop a permit space program is
unlikely to have properly trained and equipped personnel available"
(58 FR 4495 (Jan. 14, 1993)). Accordingly, OSHA designed final Sec.
1926.1204, which is similar to Sec. 1910.146(d), to require entry
employers to plan the entry, and to implement the entry in accordance
with that plan, to avoid endangering employees during the entry.
For the reasons identified in the Background section, above, OSHA
is conforming the language of the permit-required confined space
provisions in Sec. 1926.1204 of the final rule to the corresponding
provisions for general industry confined spaces at Sec. 1910.146(d).
The substance of this section generally is the same as the general
industry standard. OSHA explains below the differences between the
other paragraphs of the final rule and the general industry standard,
and the significant differences between the final rule and similar
provisions in the proposed rule. There is no discrete section of the
proposed rule that corresponds directly to this section of the final
rule, but OSHA also included most of the duties imposed by this final
rule in the proposed rule. See, e.g., proposed Sec. Sec. 1926.1205
(atmospheric monitoring and testing); 1926.1209(c) (limiting entry) and
(f) (safe termination procedures); 1926.1210(f) (attendant required);
1926.1210(j) (equipment); 1926.1212(a) (safe termination procedures);
and 1926.1218 (equipment).
One commenter noted that a particular provision in the proposed
rule (Sec. 1926.1218(a)(4)) referred to "confined space operations,"
and suggested OSHA change that reference to "confined space entry
operations" (ID-025, p. 4). The regulatory text in Sec. 1910.146
refers to both "permit space operations" (Sec. 1910.146(g)(2)(iii))
and "permit space entry operations" (Sec. 1910.146(d)(3)) [emphasis
added]. In this final rule, OSHA changed all references to confined
space operations and permit-space operations to confined space entry
operations or permit-space entry operations to maintain consistency.
The terms "confined space entry operations" or "permit-space entry
operations" refer to both actual entry into a space, and any planning
or preparation made for the entry (i.e., an employer can be engaged in
"entry operations" before actually entering a confined space).
The introductory language in final Sec. 1926.1204 provides that
the entry employer must perform the procedures set forth in that
section. OSHA simplified the introductory language from the language in
Sec. 1910.146(d), and edited the language to reflect this final
standard's use of the term "entry employer" when discussing an
employer who decides that employees it directs will enter a permit
space. OSHA made this change to clarify which employers must comply
with these procedures on a multi-employer worksite.
Paragraph (a). Final Sec. 1926.1204(a), which is identical to
Sec. 1910.146(d)(1), requires an employer to implement an effective
means of preventing all unauthorized entry into a permit space. These
measures are necessary to prevent unauthorized entry into PRCSs, and to
protect employees from encountering PRCS hazards. Under the final rule,
it is the entry employer's responsibility to ensure that all
unauthorized persons stay out of the established permit space,
regardless of who employs them. Any unauthorized employer who enters a
permit space could pose a danger not only to themselves, but also to
workers already inside the space. The entry employer's duty to prevent
unauthorized entry also extends to the prevention of unintentional
entry, such as a person falling into a space or accidently entering a
permit space because of confusion about where an entrance to a space
leads. The duty also extends to members of the public passing near the
construction site (e.g., a sewer manhole) in order to protect the
employees in the permit space.
This final provision makes no substantive change from the proposed
rule. Proposed Sec. 1926.1209(c)(1)(i) provided that employers use
barriers or high-visibility physical restrictions, such as a high-
visibility warning lines, to prevent unauthorized entry into a space.
One commenter asserted that circumstances arise that make it unsafe to
use the physical restrictions specified in proposed Sec.
1926.1209(c)(1)(i) (ID-104, p. 3). For example, when employees perform
work to rehabilitate or install a protective coating in a sewer, the
employer must use devices such as cables and hoses that run from a
compressor to the airless spray pump, and then into the manhole to the
spray gun, resulting in a tripping hazard that could cause someone to
fall into the manhole. In such situations, this commenter suggested
that OSHA require only that the employer post danger signs. OSHA
expects that signs by themselves will generally be inadequate to
prevent an inadvertent fall into a manhole. Even if the employer has
full control of the entrance to the permit space to and can guard
against members of the public who cannot see the signs or read them,
there are too many activities on a typical construction site for an
employer to ensure that workers would not be distracted and fail to see
the sign or the manhole. Manholes, like other fall hazards at a typical
worksite, must be
guarded in a manner that meets the requirements of this standard and
the applicable specifications of 29 CFR part 1926, subpart G--Signs,
Signals, and Barricades and subpart M--Fall Protection.
Because OSHA is duplicating the general industry standard in this
portion of the final rule, it does not specify the particular means of
compliance. This approach provides employers with flexibility in
complying with this provision by not limiting the measures required
under this provision to physical restrictions only. The employers'
means of preventing entry will be evaluated based on its effectiveness
at accomplishing that task. The same explanation that OSHA provided for
the general industry rule applies in the construction context as well:
[I]f the workplace is so configured as to prevent access of
unauthorized entrants into areas containing permit spaces, training,
alone or in combination with signs, may prevent the unauthorized
access to the spaces. Otherwise, covers, guardrails, fences, or
locks will be necessary. It is the employer[']s responsibility to
use whatever measures are necessary to prevent unauthorized entry.
58 FR 4495.
Paragraph (b). In final Sec. 1926.1203(a), OSHA requires employers
to identify and evaluate the hazards of permit spaces that employees
will enter. Final Sec. 1926.1204(b), which is identical to Sec.
1910.146(d)(2), requires an employer that authorizes employees to enter
a permit space to first conduct a thorough evaluation of that permit
space to identify the presence and location of all hazards within the
permit space. This hazard evaluation is necessary to ensure that the
spaces are correctly assessed to make the permit-space program as
effective in protecting employees as possible. This evaluation may be
combined with the initial evaluation required by final Sec.
1926.1203(a), or it may be conducted separately. OSHA anticipates that
most employers who intend to enter a space will conduct a single
evaluation that complies with the requirements of both Sec. Sec.
1926.1203(a) and 1926.1204(b).
Paragraph (c). Final Sec. 1926.1204(c), which is similar to Sec.
1910.146(d)(3), requires an employer to develop procedures needed to
facilitate safe entry operations into most permit spaces. The paragraph
lists eight measures that employers must take. However, this list is
not comprehensive: Some spaces may include unique hazards, locations,
or configurations that require additional steps to ensure the safety of
entrants. The subparagraphs in final Sec. 1926.1204(c) provide
specific elements of these required procedures.
Paragraph (c)(1). Final Sec. 1926.1204(c)(1), which is identical
to Sec. 1910.146(d)(3)(i), requires an employer to identify the entry
conditions that employers must meet to initiate and conduct the entry
safely. For example, when an atmospheric hazard exists in the space and
an employer must use personal protective equipment (PPE) to protect
employees from the hazard, the employer must include in the acceptable
entry conditions the type of PPE employees are to use (such as type of
respirator) and the exposure levels at which the PPE would protect the
employees from the atmospheric hazard. If the permit space contains
physical hazards, the entry employer must ensure that the acceptable
entry conditions include the methods used to protect employees from the
physical hazards. If the employer does not satisfy the conditions
specified in either example, or in any list of acceptable conditions,
then the result is a prohibited condition, meaning that employees must
not enter the space and must evacuate if they are already in the space.
When determining the acceptable entry conditions, the employer must
consider the work employees will perform and the hazards that may
result from that work. For example, an employer that plans to weld
inside a confined space must account for the hazard resulting from the
welding fumes and gases when identifying acceptable entry conditions.
As another example, an employer who plans to introduce gases into a
space to inert potentially flammable gases must take into consideration
the effect of the inerting gases on the atmosphere because that process
will generally result in an IDLH atmosphere.
Paragraph (c)(2). Final Sec. 1926.1204(c)(2), which is identical
to Sec. 1910.146(d)(3)(ii), requires an employer to provide each
authorized entrant or that employee's authorized representative an
opportunity to observe any monitoring or testing performed in a permit
space. Final Sec. 1926.1204(c)(2) does not require employees and their
authorized representatives to observe the specified activities;
however, it provides employees and their authorized representatives
with the option to observe should they choose to do so. OSHA added this
requirement to Sec. 1910.146 in 1998, along with several other
employee participation requirements. The Agency explained that those
requirements would "function to provide a 'check' on human error in
those cases where monitoring was improperly performed, and the Agency
pointed to data demonstrating that human error in monitoring of a
hazardous atmosphere was a critical element in many deaths in confined
spaces (63 FR 66032 (Dec. 1, 1998)). OSHA also noted that its record
indicated that many entrants would not choose to request to observe the
monitoring, but stated "it is reasonable to assume that allowing
authorized entrants or their designated representatives to observe the
testing of spaces will prevent a substantial portion of the accidents
attributed . . . to human error" (id). OSHA believes that this will
also be the case under the final rule.
OSHA also believes that allowing employees and their authorized
representatives to participate in this manner will contribute to the
successful implementation of safe entry operations by enhancing their
awareness of the hazards present in the confined space. Moreover, as
OSHA noted when it added these observation requirements to the general
industry standard, the employee participation requirements are
consistent congressional intent and with a number of OSHA health
standards that provide employees with the opportunity to participate
actively in protecting their own safety and health and that of their
co-workers (see discussion at 63 FR 66020-66021).
Paragraph (c)(3). Final Sec. 1926.1204(c)(3), which is similar to
Sec. 1910.146(d)(3)(iii), requires an employer to include measures in
the permit program to isolate a permit space or, where applicable, a
physical hazard within the permit space (such as isolating mechanical
hazards through lock out). The general industry standard refers only to
"isolating the permit space," while the new final rule also addresses
isolating physical hazards within the permit space, such as by placing
a physical barrier inside the permit space to eliminate the potential
for employee contact with a physical hazard inside that space, for the
reasons provided in the explanation of Sec. 1926.1203(e)(1)(i) and
(g)(1). It is important to isolate the entrants from the hazards that
may exist in the continuous space, or may enter into the continuous
space and eventually migrate to engulf the entrants. For example, if an
entry employer has not isolated a particular area of a continuous
system such as sewer system, then the entire continuous system is a
confined space. If any part of that system contains material that has
the potential for engulfing an entrant then the entire system is a
permit space.
If an employer is able to isolate all of the physical hazards, then
the employer might be able to reclassify the space as a non-permit
space or enter under the alternative procedures in Sec. 1926.1203(e).
However, employers may still choose to enter under a permit program or
may be required to do so if, for example, they isolate a physical
hazard but cannot control an atmospheric hazard and must enter using
respirators. The requirement to include the isolation measures in the
permit program is critical to employee safety in those situations, as
well when the employer is relying on isolation to prevent hazards from
entering a space. Requiring the listing of the isolation method as part
of the permit program is also useful to remind employers that if they
are relying on the isolation to enter a confined space under the
alternative procedures in Sec. 1926.1203(e) or the reclassification
under Sec. 1926.1203(g), they must maintain that isolation or the
permit program requirements will apply immediately.
If the employer is using isolation to protect the employees during
the entry, then paragraph (c)(3) requires that the program include a
method to ensure that the hazards remain isolated for the duration of
the entry. Isolation methods provide the highest degree of assurance
that the hazard will be kept away from the employees in the space,
because isolation does not generally depend on the continued, proper
operation of machinery (such as ventilation equipment) or PPE (such as
respirators). If the space is such that the employer can demonstrate
that it is infeasible to isolate the hazards, the employer need not
include isolation measures in the permit program, but must eliminate or
control the hazards in accordance with final Sec. 1926.1204(c)(4) and
Sec. 1926.1204(e) (see final Sec. 1926.1204(e)(1)). If the employer
cannot maintain isolation or control the hazards, then the employer
must terminate entry operations immediately.
Three commenters provided examples of how they believed it was
possible to isolate portions of a confined space from other portions of
the space. The first commenter addressed a scenario in which the
employer is applying a protective coating to a sewer (ID-104, pp. 2-3).
The commenter, an association representing members who apply protective
coatings in sewers, asserted that the employer can isolate the permit
space from the other sections of the sewer by running a bypass line
upstream with pneumatic pipe plugs installed that provide a tight seal
to prevent passage of air and liquids.
The second commenter, an association representing utility
contractors who work regularly in sewers, noted that employers can
sometimes block the flow of effluent into one part of a sewer system
from a larger confined space by using pipe plugs upstream from where
employers will conduct the work (ID-210, Tr. p. 187). In some cases,
employers also use plugs to block off a portion of the sewer downstream
from where an employer will conduct the work, and then purge and clean
the workspace in between the plugs (ID-210, Tr. p. 188). In either
scenario, the commenter stated that an employer can block the flow of
air and effluent through the line by properly fitting pipe plugs to a
pipe, pressurizing them with a few pounds of air, and either blocking
in the plugs so they cannot fall out or using a "double plug" system
(inserting two plugs into the same pipe "so if one slips you will have
a backup") (ID-210, Tr. pp. 187, 189, and 199). The commenter
acknowledged that there had been "failures" where the plugs exploded
or did not function correctly and "killed and injured workers," but
characterized such incidents as occurring "rarely" and only as a
result of incorrect installation or procedures (ID-210, Tr. p. 208).
The commenter agreed that the proper procedures would normally include
installing a bypass line upstream of the pipe plug to redirect any
effluent and ensure that pressure does not build behind the pipe plug
(ID-210, Tr. p. 208).
A third commenter, a different sewer-services association, also
agreed that, in many cases, employers can use pipe plugs along with
bypass lines and "gate valves" to prevent effluents from entering a
section of a sewer system, but indicated that employers rarely use pipe
plugs on pipes greater than 10 inches in diameter for significant
periods of time (ID-211, Tr. p. 156).\18\
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\18\ The same commenter also stated that most sewer manholes do
not present an engulfment hazard because "80 to 85 percent of all
of the sewer manholes have pipe diameters of eight and ten inches or
smaller entering them," and that it would take hours for engulfment
to occur under these conditions because the Environmental Protection
Agency engineering standards "require that those pipes be sized to
flow at 50 percent of maximum capacity during high flow periods"
(ID-211, Tr. p. 156). OSHA does not agree that limiting flow rate
and capacity will eliminate the engulfment hazard; the engulfment
would just take longer. These conditions do not isolate or eliminate
the hazard, and the effluent could engulf or drown an employee who
is unconscious or otherwise unable to leave the space before it
fills the manhole, particularly if the employee is not able to keep
his or her head above the floor. Therefore, the full permit-program
protections in Sec. 1926.1204 apply under these conditions unless
the employer isolates or eliminates the hazard. However, if an
employer can demonstrate that it can limit the rate and capacity of
the flow, the employer could factor the potential time for
engulfment or drowning resulting from this procedure into
determining the type and location of an early-warning system that
would provide adequate time for employees to exit a space.
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OSHA finds that the record is not conclusive as to whether pipe
plugs, with or without bypass systems, are a reliable and effective
means of isolating a sewer space to protect workers from engulfment and
atmospheric hazards moving through a continuous system. The record,
which also includes a number of fatalities and injuries associated with
the use of pipe plugs (see the Final Economic Analysis), indicates that
these plugs may fail as a result of improper installation and may not
be appropriate for extended use in larger pipes, and that bypass
systems are sometimes required to relieve the buildup of pressure that
could dislodge the plugs. There is no evidence that the pipe-plug
failures that occurred, even if the failures were purely the result of
improper installation, would not occur again in the future for the same
reason. Moreover, it is not clear from the record that a significant
force such as a storm surge could not dislodge the pipe plugs, or that
the failure of a bypass system could not lead to pressure building
behind a pipe plug and dislodging it. Isolation through a bypass
system, unlike the other examples of methods used to isolate hazards
listed in the general industry standard and this final rule, would
depend on the continuous operation of machinery. The pipe plugs and
bypass systems may, therefore, merely be a means of controlling the
hazards, rather than isolating them, because it is not clear that they
would completely protect workers from exposure to these hazards.\19\
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\19\ OSHA is leaving open the possibility that an employer could
demonstrate that using pipe plugs in conjunction with bypass systems
is an effective means of isolating a permit-required workspace from
a continuous system. To do so, the employer must ensure that the
procedure is appropriate for the conditions and use properly
installed pipe plugs in conjunction with a bypass system to
effectively isolate a workspace in a sewer system. Accordingly, the
employer must ensure that the procedure isolates the workspace in
fact from any engulfment hazard; OSHA would not view failure of the
pipe plug or bypass system as an unforeseeable outcome. One of the
commenters recommended using continuous air monitoring even if the
space appears to be isolated (ID-210; Tr. pg. 202 (Kennedy)). OSHA
agrees, and recommends that employers use continuous air monitoring
under these conditions to provide early detection of any problems
with the seal of the pipe plug.
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Paragraph (c)(4). Final Sec. 1926.1204(c)(4), which is identical
to Sec. 1910.146(d)(3)(iv), applies to permit spaces with hazardous
atmospheres and requires an employer to purge, inert, flush, or
ventilate the permit space to eliminate or control the hazardous
atmosphere before entry. The purpose of
this provision is to reduce employee exposure to atmosphere hazards in
the permit space. Reducing exposure to hazards in the permit space
through engineering practices, rather than relying on PPE as the
primary protection for employees, is the most direct and effective
means to reduce risk to the employee, whether the airborne substances
pose a health risk of inhalation or a safety risk of fire or
explosion.\20\
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\20\ This approach is consistent with longstanding industry
safety practice and OSHA policy. Under its "hierarchy of controls"
policy reflected in a number of standards, OSHA only allows
employers to rely on respirators or other PPE to the extent that
engineering controls to eliminate the hazard are not feasible. See,
e.g., Sec. Sec. 1910.134(a) (respiratory protection) and 1926.103
(respiratory protection); 1910.1000(e) (air contaminants);
1910.95(b) (occupational noise exposure) and 1926.101 (hearing
protection).
---------------------------------------------------------------------------
In Sec. 1926.1204(c), OSHA requires these means of reducing
exposure levels--purging, inerting, flushing, or ventilating--"as
necessary" to eliminate or control atmospheric hazards. With respect
to the actions in paragraph (c)(4), "as necessary" means that an
employer must take at least one of these actions if the permit space
has a hazardous atmosphere. The only permit spaces where these actions
are not necessary are those in which the space does not have a
hazardous atmosphere, as defined in Sec. 1926.1201, but is designated
as a permit space because it contains another hazard, such as an
engulfment hazard, inwardly converging walls, or other recognized
serious safety or health hazard.
The means used to reduce risk must be appropriate to the
characteristics of the hazardous atmosphere and it must also
"eliminate or control" the hazard to produce "safe permit space
entry operations (Sec. 1926.1204(c)). For example, inerting a space
that already has an oxygen-deficient atmosphere would be an
inappropriate action, whereas ventilating with additional outside air
would help to increase oxygen levels.
The Agency notes that it previously issued letters responding to
questions about the conditions under which the general industry
standard permitted employers to work in a space with flammable gas in
concentrations greater than 10 percent of the LFL. See August 15, 1996,
letter to Larry Brown, and September 4, 1996, letter to Macon Jones.
OSHA subsequently clarified its position on those issues in a 2011
response to the U.S. Chemical Safety and Hazard Investigation Board,
stating that the general industry standard "prohibits entry into
atmospheres greater than 10 percent of the [LFL], unless the flammable/
explosive hazard has been controlled through inerting of the space to
reduce the oxygen content below that needed to support combustion."
(ID-223, p.3).
OSHA takes the same approach with respect to this construction
standard. While employers may use a variety of means to reduce the LFL
to 10 percent or below, thus avoiding an LFL hazardous atmosphere as
defined in Sec. 1926.1202, OSHA reiterates that this new final rule
for confined spaces in construction prohibits employees from working in
any atmosphere above 10 percent LFL except when the employer
successfully inerts the space so as to effectively remove the hazard of
an explosion. See discussion of paragraph (1) of the definition of
"hazardous atmosphere" in Sec. 1926.1202 of this final rule. Even
when the space is successfully inerted, an oxygen-deficient atmosphere
generally results such that employers must prohibit entry unless they
provide appropriate PPE or other equipment that is capable of
protecting the employee from the oxygen-deficient atmosphere. See
definition of "prohibited condition" in final Sec. 1926.1202 and
Sec. 1926.1204(c)(7). As of the promulgation date of this final rule,
OSHA is unaware of PPE that could provide sufficient protection to an
employee from an explosion involving a flammable atmosphere. OSHA notes
that some practices such as the use of static electricity capture, non-
static footwear, non-sparking tools, explosion-proof lighting, a
nitrogen blanket, or misting may reduce the likelihood of igniting an
explosion, but none of these practices would eliminate the possibility
of ignition. Another example of a practice that would not provide
protection from a spark, fire, or explosion in an LFL atmosphere is
using fire watch personnel who have the responsibility of looking for a
spark, fire, or explosion and then responding under emergency
procedures. It is unlikely that fire watch personnel could react
quickly enough to ensure that employees would not be exposed to an
explosion. Therefore, the employer must not rely on these methods in a
permit program to protect employees working in a hazardous atmosphere
in excess of 10 percent LFL. A permit program must identify the means
of reducing the atmosphere to or below the 10 percent LFL or provide
for inerting and all necessary PPE. OSHA added a note to Sec.
1926.1204(c)(4) to make explicit the requirement for an employer to
inert a space and provide appropriate PPE if employees will work in a
space where less than 10 percent LFL cannot be achieved.
Paragraph (c)(5). Final Sec. 1926.1204(c)(5) requires an employer
to determine that monitoring devices will detect an increased
atmospheric hazard level in the event that the ventilation system
malfunctions, and to do so in adequate time for employees to safely
exit the space. This requirement is from proposed Sec. 1926.1208(b).
There is no corresponding provision specified in Sec. 1910.146 that
mirrors final Sec. 1926.1204(c)(5) with respect to the use of
ventilation to control atmospheric hazards as part of a permit program;
however, the preamble to the alternative "ventilation only"
procedures in Sec. 1910.146(c)(5)(i)(B) noted a similar requirement as
a condition of using the "ventilation only" approach instead of the
full permit program requirements:
In order for the space to be considered safe, the atmosphere
within the space after ventilation may not be expected to approach a
hazardous atmosphere. This is necessary so that, if the ventilation
shuts down for any reason (such as loss of power), the employees
will have enough time to recognize the hazard and either exit the
space or restore the ventilation.
58 FR 4488. OSHA is including that requirement in the final rule as a
condition of the "ventilation only" alternative procedures in final
Sec. 1926.1203(e), and OSHA is applying the same requirement to the
use of ventilation to control atmospheric hazards under a full permit
program because the atmospheric hazards that could be present in a PRCS
are the same as the atmospheric hazards present in a final Sec.
1926.1203(e) alternate-procedures space. Therefore, the need to plan
for ventilation failure is the same: employers must have a system in
place that quickly detects an increased atmospheric hazard in the event
that the ventilation system stops so that employees can escape safely
whether the entry is conducted under the permit program requirements of
Sec. 1926.1204 or the alternative "ventilation only" procedure
allowed by Sec. 1926.1203(e). As with the general industry standard
(see explanation of Sec. 1910.146(c)(5)(i)(B) above), compliance with
this requirement means that employers must ensure that the mechanical
ventilation will control the atmospheric hazards at levels that are
below the levels at which they are harmful to entrants so that if the
ventilation fails (for example, because of a loss of power) the
employees will have sufficient time to escape without exposure between
detection of an increase in atmospheric level and exit.
Proposed Sec. 1926.1208(b)(2) contained provisions similar to
those in final Sec. 1926.1204(c)(5). One commenter requested that OSHA
provide more detail as to how an employer can comply with this
requirement, suggesting that employers take into consideration "levels
of detection by the monitoring system" and "increases in atmospheric
hazards as workers are evacuating" (ID-140, p. 5 (labeled p. 4)). The
provision is performance-based, which allows each employer the
flexibility to determine how it will use monitoring to comply with the
requirement. As OSHA stated in the preamble to the proposed rule,
monitoring is the primary method for detecting an increase in
atmospheric hazard levels. OSHA therefore requires monitoring under
this final standard to detect ventilation system failure. In addition,
employers should be aware of other indicators of increasing atmospheric
hazard levels, in addition to monitoring, that may be useful in
supplementing monitoring to provide faster detection of ventilation
failures, including changes in noise levels, air flow, or pressure, as
well as signs, symptoms, and characteristic effects of exposure to the
atmospheric hazard (72 FR 67365 (Nov. 28, 2007)).
Paragraph (c)(6). Final Sec. 1926.1204(c)(6), which is identical
to Sec. 1910.146(d)(3)(v), requires an employer to provide entrants
protection against external hazards. This requirement is in addition to
the provision in paragraph (c)(2) of this section that an employer must
provide barriers as necessary to prevent unauthorized entry. This
requirement will protect employees in and around the PRCS, such as
attendants, or employees entering or exiting the permit space, from
being struck by individuals or objects outside the PRCS that may fall
into the space, or that could injure the employees when they are near
the PRCS. In some scenarios, employers must use guardrails, covers,
signs, barricades, or other protective measures to achieve this
purpose. Each of these measures must comply with the applicable
specifications of 29 CFR part 1926, subpart G--Signs, Signals, and
Barricades) and subpart M--Fall Protection.\21\ For example, as stated
in the preamble for the general industry rule, "If entrants face a
substantial risk of injury due to unauthorized entry, due to objects
falling into the space, or due to vehicular hazards during entry into
and exit from the space, then barriers would be required" (58 FR
4997).
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\21\ All additional requirements of subparts G and M remain in
effect.
---------------------------------------------------------------------------
Paragraph (c)(7). Final Sec. 1926.1204(c)(7), the first clause of
which is identical to Sec. 1910.146(d)(3)(vi), requires an employer to
ensure that conditions remain acceptable for entry for the full
duration of an authorized entry. The employer will often discharge this
duty by complying with the entry-supervisor provisions in Sec.
1926.1210(c) of this final rule. By requiring the employer to have an
individual on site with this authority, there is a greater likelihood
that the employer will conduct the required monitoring and adhere to
the acceptable entry conditions, which is critical to the successful
implementation of safe PRCS procedures.
OSHA also added a clarification in paragraph (c)(7) allowing
employees to work in a permit space that contains a hazardous
atmosphere, but only if: (1) ventilating or other measures prescribed
in Sec. 1926.1204(c)(4) will not reduce the hazardous atmosphere
sufficiently to allow employees to work safely within the permit-space;
(2) the employer can demonstrate that use of PPE will protect the
employees from that atmosphere; and (3) the employer ensures that the
entrants use the PPE correctly. Otherwise, the entry employer must
prohibit entry, or ensure that authorized entrants exit the space
immediately, whenever the atmosphere inside the space meets the
definition of a "hazardous atmosphere" specified in final Sec.
1926.1202. These provisions are implicit in the general industry
standard, but OSHA made them explicit here to avoid any suggestion that
an employer could specify an "acceptable" condition that would
include a hazardous atmosphere, absent adequate PPE.
For example, if the employer plans to have employees in a portion
of a storm sewer with an oxygen-deficient atmosphere, and it is not
feasible to address the oxygen deficiency through measures prescribed
in Sec. 1926.1204(c)(4), then the employer may allow employees to
enter with closed-circuit respirators that would protect the employees
from the oxygen-deficiency hazard. If, however, the employer is unable
to protect employees from these hazards using any of these methods,
then it must prevent the employees from entering the space. Likewise,
if a confined space contains a flammable atmosphere exceeding 10
percent, of the LFL, and the employer cannot feasibly reduce this level
to the non-hazardous level (10 percent or below), then the employer
must inert the atmosphere to address potential explosion hazards (and
use supplied-atmosphere respirators to protect the employees from the
oxygen-deficiency hazard), or terminate entry. See also the previous
discussion of final Sec. 1926.1204(c)(4).
Paragraph (c)(8). Final Sec. 1926.1204(c)(8) requires an employer,
before removing an entrance cover, to eliminate conditions that could
make it unsafe to remove the cover. Some examples of such conditions
are when the cover is under pressure or when the cover is preventing
exposure to an ignition source near a hazardous atmosphere. There is no
corresponding general industry provision that has requirements similar
to final Sec. 1926.1204(c)(8); it is drawn from the requirements in
proposed Sec. Sec. 1926.1210(b), 1926.1216(c) and 1926.1217(c).
As OSHA explained in the preamble to the proposed rule, conditions
such as heat and pressure within the PRCS may pose a danger to
employees removing an entrance cover. In such cases, the cover may be
blown off in the process of removal, or superheated steam may suddenly
escape and burn the employee. Another example involves removal of a
sealed cover that results in the release of toxic gases (72 FR 67368).
To protect employees from the hazards inside the PRCS as required
by this provision, the employer must make a hazard assessment before
removing any cover. Accordingly, the provision does not permit removal
of the cover to the PRCS until the employer identifies all hazardous
conditions related to the cover's removal, and then eliminates those
hazards.
One commenter recommended that OSHA refer to any "hazardous"
condition, rather than just a "condition," that could make it unsafe
to remove the cover, and include language in the text of the final rule
to address rescue personnel confronted with an entrance cover that is
unsafe to open (ID-086, pp. 5-6). OSHA disagrees that adding the word
"hazardous" to the provision would be helpful because the sentence
already is clear that the condition at issue is such that removing the
cover could be unsafe. The provisions of Sec. 1926.1204 do not require
entry employers to address in their permit programs the hazards that
rescue personnel may face during rescue, nor do these provisions
require the rescuers to develop separate written permit programs for
rescue. However, Sec. 1926.1211(b) requires that rescuers be informed
of, and trained to recognize, hazards such as entry covers that would
be unsafe to open and might affect the
ability of the rescuers to perform rescues safely.
Paragraph (d). Final Sec. 1926.1204(d), which is similar to Sec.
1910.146(d)(4), requires each employer to provide all equipment used
for confined-space operations at no cost to employees, maintain the
equipment, and ensure that employees use the equipment correctly. OSHA
believes that providing such equipment, and using it correctly, will
prevent injuries and fatalities in permit spaces. Accordingly, the
purpose of this paragraph is to ensure the availability and proper use
of whatever equipment is necessary to reduce the dangers to employees
posed by permit spaces.
In proposed Sec. 1926.1218, OSHA required employers to provide
several specific categories of equipment and included a catch-all "any
other equipment necessary for safe confined space operations." One
commenter suggested that OSHA clarify that the employer must provide
this equipment to employees at no cost (ID-211, Tr. p. 46). The Sec.
1910.146(d)(4) language OSHA is adopting for this final rule specifies
that employers must provide this equipment at no cost to employees.
Final Sec. 1926.1204(d) varies from the language of the general
industry standard only in that it specifies that the employer must
provide the listed equipment to "each employee," whereas Sec.
1910.146(d)(4) refers generally to "employees." Accordingly, in
appropriate cases, if an employer fails to provide the necessary
equipment as required, OSHA may issue separate citations with respect
to each individual employee not provided with the proper equipment.
Paragraph (d)(1). Final Sec. 1926.1204(d)(1), which is identical
to Sec. 1910.146(d)(4)(i), requires an employer to provide necessary
equipment for conducting adequate testing and monitoring. This
equipment is essential for protecting employees from atmospheric
hazards.
Section 1926.1204(a)(4) of the NPRM proposed requiring employers to
use a direct-reading instrument to perform required testing or
monitoring. One commenter asserted that direct-reading instruments are
not available for "airborne lead dust" or "paint that has a
multitude of solvents in the formula" (ID-077, p. 1). Another
commenter asserted that the final rule should permit alternatives to
direct-reading instruments when such instruments are not available (ID-
025, p. 3). Final Sec. 1926.1204(d)(1) requires an employer to test or
monitor for atmospheric hazards that exceed PELs set to protect against
immediate injury or illness, which is not the case with lead.\22\
Furthermore, OSHA disagrees with the other commenters' premise that
direct-reading instruments would be unavailable to detect solvents. It
is the employer's responsibility to ensure that such equipment is
available in spaces where the final rule requires such monitoring, and
the commenter did not indicate that is infeasible to do so. For
example, employers can use photoionization detectors for detecting
solvents.
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\22\ OSHA includes identification requirements in many of its
hazard-specific standards, and employers working in a confined space
must still comply with those requirements absent a specific
exception, but those requirements are separate from this confined-
space standard and are not subject to change as part of this
rulemaking.
---------------------------------------------------------------------------
Another commenter suggested that OSHA should require equipment
calibration daily to avoid equipment malfunction (ID-025, p. 4). OSHA
is not making this change because the provision as written in this
final standard provides employers with flexibility in complying with
the requirements to maintain testing and monitoring equipment, and to
use it properly. For example, the employer can follow the
manufacturer's instructions, or the recommendations of a qualified
person, regarding the frequency of equipment calibration. The
manufacturers' instructions are sufficient for this purpose because
equipment manufacturers are most familiar with the components,
configuration, and safe and healthful operation of their equipment;
this information places them in the best position to specify the proper
maintenance, calibration, and use of this equipment under these
circumstances. Alternatively, an individual who meets the definition of
a qualified person in final Sec. 1926.1202 would have, through a
recognized degree or professional standing or through extensive
knowledge, the demonstrated ability necessary to make decisions that
will ensure the proper maintenance, calibration, and use of equipment
used in confined spaces.
Another commenter suggested that OSHA should provide a specific
calibration standard because manufacturers are starting to distinguish
between various types of calibrations, such as "bump calibration" and
"field calibration" (ID-028, p. 6). OSHA is not adopting this
commenter's suggestion because developing a calibration standard is
beyond the scope of this rulemaking.
Paragraph (d)(2). Final Sec. 1926.1204(d)(2), which is identical
to Sec. 1910.146(d)(4)(ii), requires an employer to provide
ventilating equipment necessary to establish acceptable entry
conditions. For example, the employer must provide forced-air
mechanical-ventilation equipment when using such equipment to establish
acceptable entry conditions for entry operations under final Sec.
1926.1204. Use of the required equipment when appropriate is a
significant factor in protecting the employees from hazardous
atmospheres.
Paragraph (d)(3). Final Sec. 1926.1204(d)(3), which is
substantively identical to Sec. 1910.146(d)(4)(iii), requires an
employer to provide all communications equipment necessary to ensure
that an attendant can communicate effectively with entrants in
accordance with Sec. Sec. 1926.1208(c) and 1209(e). Not all spaces
require equipment for effective communication between the attendant and
entrants, but the employer must provide it when necessary. Such
equipment may be necessary, for example, if the entrants cannot hear an
attendant because the permit space is sealed off.
Another example where the employer must provide such equipment is
when an attendant needs audio-visual equipment to perform his or her
duties under the final confined spaces in construction rule for more
than one permit space at a time. Examples of such equipment include
electronic audio and video tools that enable the attendant to detect
what is occurring inside the multiple PRCSs without the attendant
having to, simultaneously, be physically present at each PRCS entrance.
If an employer chooses to require an attendant to assess entrants'
status in multiple PRCSs, the employer must provide all of the
equipment necessary for the attendant to fulfill the required duties.
OSHA believes that expecting an attendant to be able to adequately
perform these duties without the equipment necessary to accomplish the
attendant's duties under this final rule will jeopardize the health and
safety of the entrants.
There is no provision in Sec. 1910.146 or the proposed rule that
explicitly requires electronic communication while attending multiple
permit spaces, but that standard implies that such communication is
necessary for the attendant to fulfill the required duties. In the
proposed rule, OSHA requested comments on the means, other than
electronic equipment, for an attendant to adequately assess entrants'
status in multiple PRCSs. Both of the commenters who addressed this
issue agreed that electronic equipment, either wireless or hard-wire,
is the only means
of accomplishing this duty, and there is no contrary information
elsewhere in the record (ID-108, p. 2; -116, p. 3). The lone exception
could be when an attendant is assessing entrants' status in two
separate spaces that are immediately adjacent such that the employer
can ensure assessment of both spaces with a single attendant positioned
to fulfill the required duties without using observation equipment.
Based on the information in the record as a whole, final Sec.
1926.1204(d)(3) requires the employer to ensure each attendant uses
electronic equipment as necessary when attending to multiple PRCSs that
are not immediately adjacent to each other. This result also is
consistent with final Sec. 1926.1209--Attendant Duties.
Several commenters expressed concern that communications equipment
would unnecessarily occupy limited room in a confined space when either
spoken communication or line-of-sight communication would suffice (ID-
033, p. 3; -061, p. 4; -077, p. 1; -101, p. 2). These comments ignore
the premise of the requirement: final Sec. 1926.1204(d)(3) explicitly
states that the duty to provide communications equipment arises only
when such equipment is necessary, which means that the employer must
provide communications equipment only when verbal communication or
line-of-sight communication are ineffective.
Another commenter asserted that radio communication is not always
reliable (ID-094; p. 1). As OSHA stated in the preamble discussion of
proposed rule Sec. 1926.1210(j)(1), such equipment may consist of a
variety of types (for example, cell phones, two-way hand-held radios),
so long as it is effective (72 FR 67370 (Nov. 28, 2007)). If there is
weak or unpredictable signal strength when using the device, the device
would not comply with final Sec. 1926.1204(d)(3) and the employer must
remove the entrants until the attendant is situated to perform the
required duties effectively. Effective, reliable communication
equipment is essential in relaying information to attendants, entry
supervisors, and other authorities regarding potentially dangerous
changes in the PRCS conditions. Such information is critical to assess
the hazards within the space and to provide information regarding
methods appropriate for protecting or removing employees from those
hazards.
Paragraph (d)(4). Final Sec. 1926.1204(d)(4), which is identical
to the general industry standard at Sec. 1910.146(d)(4)(iv), requires
an employer to provide PPE when feasible engineering and work-practice
controls do not adequately protect employees. The employer must provide
this equipment at no cost to the employees. When the employer uses
equipment that is subject to an OSHA requirement, such as respirators
or ear plugs, the employer must ensure that the equipment and its use
comply with the applicable OSHA requirements. For example, failure to
use the appropriate filters in a respirator can render its use
ineffective, and would be a violation of the respiratory protection
standard (Sec. 1926.103). The Note to paragraph (d)(4), which is not
in the general industry standard, clarifies this point with respect to
respirators because they are commonly used in confined spaces. OSHA
believes that providing, using, and maintaining the appropriate PPE in
accordance with OSHA requirements that address the identified hazard
will protect employees from serious injury or death. However, as noted
in the discussions of Sec. 1926.1204(c)(4) and (c)(7) above, PPE
cannot provide protection against some hazards such as explosions.
Paragraph (d)(5). Final Sec. 1926.1204(d)(5), which is similar to
Sec. 1910.146(d)(4)(v), requires an employer to provide lighting
equipment that complies with the illumination standard (29 CFR 1926.56)
and is sufficient to allow employees to work safely and exit the space
quickly in an emergency. The corresponding provision in Sec.
1910.146(d)(4)(v) does not explicitly note that lighting equipment must
meet other applicable OSHA standards; however, proposed rule Sec.
1926.1210(j)(2) explicitly noted this requirement, and OSHA concludes
that it is appropriate to include this clarification in the rule text.
At least one commenter indicated that OSHA should explicitly cross-
reference the applicable illumination standard (ID-011, p. 1), and OSHA
did so here. OSHA also added language requiring approval of the
lighting equipment for the ignitable or combustible properties of the
specific, gases, vapors, dusts, or fibers present in the PRCS. OSHA
took this additional language from the hazardous location requirements
for the electrical equipment standard Sec. 1926.407(b)(2)(i); a note
to Sec. 1926.407(b)(2)(i) references NFPA 70, the National Electric
Code, which lists hazardous gases, vapors, and dusts by groups
characterized by their ignitable or combustible properties. The
additional language ensures that employees will use safe lighting
equipment and wiring methods under the particular hazardous conditions
present. This additional language does not increase employers'
responsibilities under this final rule because the language merely
reminds employers of an existing obligation they have under Sec.
1926.407 when using lighting equipment under the specified conditions.
As noted above, employers engaged in work covered by this standard must
also comply with all other OSHA requirements unless specifically
excluded.
OSHA believes that final paragraph (d)(5) will assist employees in
conducting safe PRCS operations, including safe escape from a PRCS if
necessary. OSHA notes that the provision would require an employer to
provide lighting equipment that allows an employee to quickly exit a
PRCS in the event of an emergency: For example, the loss of the primary
power source. In this example, there are at least two ways in which an
employer could fulfill this duty: (1) The employer can provide a
reliable back-up power supply, or (2) the employer can provide
employees with adequate flashlights, headlights, or similar hand-held
lighting equipment. Providing adequate illumination for employees to
exit quickly from a PRCS during such an emergency will enable employees
to safely escape from a hazardous condition.
Paragraph (d)(6). Final Sec. 1926.1204(d)(6), which is
substantively identical to Sec. 1910.146(d)(4)(vi), requires an
employer to provide barriers and shields when required by this standard
(see Sec. 1926.1204(c)(6)). OSHA believes that this proposed
requirement is necessary to keep unauthorized employees from entering
the PRCS and to help protect employees inside the PRCS from being
struck by objects and individuals falling into PRCSs. When providing
this equipment, employers must ensure that it complies with other
applicable OSHA requirements. For example, guardrails must meet the
requirements of 29 CFR 1926.502(b) (Guardrail systems), and covers must
conform to 29 CFR 1926.502(i) (Covers).
Paragraph (d)(7). Final Sec. 1926.1204(d)(7), which is identical
to Sec. 1910.146(d)(4)(vii), requires an employer to provide equipment
that facilitates safe entry to, and exit from, a PRCS. In doing so,
employers must ensure that this equipment, including its use by
employees, complies with the requirements of the applicable OSHA
requirements (for example, 29 CFR part 1926, subpart X, for ladders and
stairways, and 29 CFR part 1926, subpart L, for scaffolds). This
equipment is critical under emergency-exit conditions to ensure that
employees exit a PRCS in a timely and safe manner.
Paragraph (d)(8). Final Sec. 1926.1204(d)(8), which is identical
to Sec. 1910.146(d)(4)(viii), requires an employer to provide rescue
and emergency equipment as needed. Final Sec. 1926.1204(d)(8) ensures
that the proper equipment is available for rescuing authorized entrants
in the event of an emergency in a PRCS, whether it is the employer's
equipment or equipment belonging to a rescue service.
Paragraph (d)(9). Final Sec. 1926.1204(d)(9), which is similar to
Sec. 1910.146(d)(4)(ix), requires an employer to provide any other
equipment needed to safely enter or exit the permit space or to perform
permit-space rescue. OSHA recognizes that there is a wide variety of
permit spaces, and believes that the requirement to provide all
additional equipment necessary to perform permit-space entry and exit
ensures that the appropriate equipment is available at the job site so
employees receive adequate protection from hazards present during
permit-space operations. Similarly, OSHA believes the requirement to
provide additional rescue equipment as needed addresses hazards that
may be unique to a PRCS rescue, thereby ensuring that employees receive
adequate protection from these hazards under emergency conditions.
Accordingly, the employer must identify this additional equipment, if
any, after conducting an assessment of the PRCS as required by the
applicable sections of this final rule.
Proposed Sec. 1926.1218(a)(4) specified that an employer provide
any other equipment necessary for safe "confined space operations."
For consistency, a commenter suggested replacing the term "confined
space operations" with "confined space entry," which OSHA used
frequently in the proposed rule (ID-025, p. 4). In response to this
comment, OSHA adopted in final Sec. 1926.1204(d)(9) the corresponding
language in Sec. 1910.146(d)(4)(ix), which uses the term "entry."
OSHA added the phrase "safe exit from" to this final provision to
clarify that employers must provide equipment needed for employee
safety during the entire period they are involved in confined space
operations, which includes ensuring that employees can exit safely from
the space.
Paragraph (e). Final Sec. 1926.1204(e), is similar to Sec.
1910.146(d)(5), but includes language from proposed Sec. 1926.1215--
Continuous system permit spaces, as well as editorial revisions to the
introductory text.
Paragraph (e)(1). Final Sec. 1926.1204(e)(1) requires an employer
to test the permit space for acceptable entry conditions. Information
obtained from testing is vital to the identification of atmospheric
hazards in the space. In instances when the permit space is fixed or
isolated, the testing will be straightforward. Final Sec.
1926.1204(e)(1), however, also acknowledges that accurately testing the
full extent of a permit space, or even a workspace within a larger
permit space, may be infeasible because the PRCS is large or is part of
a continuous system. The size of the space could limit the value of the
initial testing of entry conditions because the conditions in the work
space could be affected by substances in the connected spaces and,
therefore, subject to change. In such cases, employers must comply with
the additional procedures in final Sec. 1926.1204(e)(1)(i)-(iii),
which include pre-entry testing to the extent feasible, continuous
monitoring if such monitoring is commercially available, and an early
warning system that monitors continuously for non-isolated engulfment
hazards.
Final Sec. 1926.1204(e)(1) is similar to the corresponding
provision for general industry confined spaces at Sec.
1910.146(d)(5)(i), with three exceptions. First, OSHA reorganized the
two requirements in Sec. 1910.146(d)(5)(i), pre-entry testing followed
by continuous monitoring, into separate paragraphs in final Sec.
1926.1204(e)(1)(i)-(ii). Second, OSHA also added the requirement for
employers to provide an early warning system in final Sec.
1926.1204(e)(1)(iii). OSHA separated the two paragraphs to emphasize
that an employer performing confined-space operations under final Sec.
1926.1204(e)(1) may be performing work under a special set of
conditions in a portion of a large space a continuous system. As such,
the employer must comply with the special procedures in Sec.
1926.1204(e)(1)(i) through (iii) (testing, continuous monitoring, and
an early warning system), as well as paragraphs (e)(2) through (6), to
account for migrating hazards. One example of this type of confined
space is a sewer in which a storm or other activity at another location
could send water or hazardous materials into the space in the sewer
where employees are working.
Third, OSHA added language clarifying that it is the employer's
responsibility to demonstrate that isolation of the space is
infeasible. This requirement is implicit in Sec. 1910.146(d)(5)(i), so
OSHA added this language to make the requirement explicit and clarify
that an employer who determines that isolation of a space is infeasible
is most able to provide information that supports this decision.
Paragraph (e)(1)(i). Final Sec. 1926.1204(e)(1)(i) requires an
employer to test to ensure that acceptable entry conditions exist
immediately before entry occurs. The testing must occur "to the extent
feasible," meaning that even if the employer makes a determination
that it is infeasible to isolate the space and the test results may not
accurately reflect all potential hazards in the space, that employer
still has a responsibility to perform normal testing in the workspace
prior to entry to ensure that a hazardous atmosphere does not already
exist in that workspace.
Paragraph (e)(1)(ii). Final Sec. 1926.1204(e)(1)(ii) requires an
employer to continuously monitor a non-isolated permit space unless the
employer can demonstrate that the equipment needed for continuous
monitoring is not available commercially. Note that this requirement is
different than the monitoring requirement for isolated spaces in Sec.
1926.1204(e)(2) because paragraph (e)(1)(ii) does not include an option
for periodic monitoring unless continuous monitoring is not
commercially available (paragraph (e)(2) allows for periodic monitoring
in certain other circumstances). Non-isolated permit spaces, relative
to other PRCSs, have an enhanced risk of unexpected changes in
hazardous atmosphere levels because atmospheric hazards could migrate
from other areas, so OSHA only permitted periodic monitoring in non-
isolated spaces in the absence of a viable alternative. By monitoring
the space continuously, employers should detect rising levels of a
hazardous atmosphere or the introduction of a new atmospheric hazard
before it is too late to warn the authorized entrants and evacuate them
from the space.
Final Sec. 1926.1204(e)(1)(ii) is similar to the corresponding
provision for general industry confined spaces at Sec.
1910.146(d)(5)(i), except that OSHA allows for the absence of
commercially available equipment that could make it infeasible to
conduct continuous monitoring. In such instances, OSHA still requires
periodic monitoring to increase the likelihood of identifying as
quickly as possible a hazardous atmosphere migrating from another part
of a continuous system. Several commenters were unsure what OSHA means
by "not commercially available" (ID-106, p. 3; -129, p. 3; -152, p.
3). Typically, equipment is "commercially available" if it is offered
for sale to the public or to the relevant employers. As OSHA stated in
the preamble to the proposed rule, one example of when
continuous monitoring may not be commercially available involves
particulate atmospheric hazards (72 FR 67381). In these cases, the
employer must be able to demonstrate that periodic monitoring is of
sufficient frequency to ensure that the atmospheric hazard remains at a
safe level, as planned (id). OSHA added a cross-reference to final
Sec. 1926.1204(e)(2) to inform employers of the frequency with which
to monitor periodically for hazards if continuous monitoring is not
commercially available.
Several commenters asserted that OSHA should require a competent
person to perform the testing and monitoring (ID-025, p. 3; -086, p.
5). OSHA agrees that the tester must be competent, but is not revising
the text of the regulation to refer to a competent person because OSHA
believes that the existing language, taken directly from the general
industry confined-spaces standard, adequately addresses the competency
of the tester. In this regard, the general industry confined-spaces
standard does not use the term "competent person," but does use terms
such as "attendant" and "entry supervisor" that require a level of
experience and training regarding testing or monitoring equivalent to
that of a "competent person," as defined in Sec. 1926.32(f). For
example, final Sec. 1926.1208(b) and Sec. 1910.146(h)(2) both require
an authorized entrant to possess the necessary knowledge to properly
test the atmosphere within a confined space (see also Sec.
1926.1204(d)). Under the training provisions of both Sec. 1910.146(g)
and final Sec. 1926.1207, an employer must provide specific training
to an employee designated as an "authorized entrant"; this training
must establish proficiency in the duties an authorized entrant must
fulfill under these standards. In this respect, the scheme of both
Sec. 1910.146 and this final rule accomplish the commenters'
objective, which is to design a procedure whereby the person performing
the atmospheric tests has sufficient knowledge and experience to
conduct the tests properly.
Different commenters asserted that OSHA should identify the
specific locations for monitoring equipment in the permit space (ID-
106, p. 2; -129, p. 2). For example, these commenters suggested that
OSHA require an employer to place monitoring equipment at the merger
point between the larger space and the non-isolated entry point. The
continuous-monitoring requirement is a performance-based standard, and
OSHA does not agree that it is necessary to specify particular
locations for the placement of monitoring equipment, especially when
technology and monitoring practices may evolve in the future.
Accordingly, employers have flexibility to choose their preferred
methods and equipment to monitor, so long as the monitoring equipment,
when used in accordance with manufacturer requirements, detects rising
levels of a hazardous atmosphere or the introduction of a new
atmospheric hazard before it is too late to warn the authorized
entrants and evacuate them from the space. For additional information
about atmospheric monitoring, see May 12, 2009, letter to Edwin Porter,
Jr.
Another commenter asserted that an employer must use more than one
piece of continuous-monitoring equipment to effectively detect hazards
(ID-031, p. 1). Final Sec. 1926.1204(e)(1)(ii) does not require the
use of more than one piece of continuous-monitoring equipment; however,
the provision also does not specify that employers can accomplish
monitoring using only one piece of equipment. The number of monitors an
employer would need to ensure the isolation or control of atmospheric
hazards depends on the PRCS's size, configuration, and conditions; the
requirement here is that employers use whatever number of monitors is
necessary to ensure the isolation or control of the atmospheric
hazards. OSHA also selected the performance-oriented approach so that
this standard will not become outdated through advances in monitoring
technology.
Paragraph (e)(1)(iii). Final Sec. 1926.1204(e)(1)(iii) requires an
employer to provide an early warning system that will detect non-
isolated engulfment hazards. OSHA included this requirement in proposed
Sec. 1926.1215(a)(2), but there is no corresponding Sec. 1910.146
provision. As OSHA stated in the preamble to the proposed rule, this
equipment addresses migrating engulfment hazards that are present in a
non-isolated PRCS. For example, these hazards can result when runoff
from a heavy storm upstream of a sewer flows downstream into the area
in which employees are working. OSHA noted in the preamble of the
proposed rule that migrating hazards, especially those hazards
migrating from distant areas, are common in non-isolated spaces (72 FR
67382). Accordingly, this requirement is necessary to protect
authorized entrants from the additional hazards associated with these
spaces, including engulfment hazards.
One commenter suggested that the requirement for an early warning
system will force employers to hire more employees for the purpose of
monitoring the space (ID-059). Neither the comment nor the rest of the
record provide support for this suggestion. To the contrary, employers
have flexibility in determining whether to hire additional employees to
comply with final Sec. 1926.1204(e)(1)(iii). An employer may position
detection and monitoring devices, without the need to hire additional
employees, to provide the early warning. A full discussion of the costs
of early warning systems is included in the Final Economic Analysis in
this document.
One commenter appeared to assume that this provision required using
equipment, not additional employees, to monitor engulfment hazards.
This commenter asserted that such equipment is too expensive to
maintain (ID-098, p. 1). This commenter did not provide any support for
the assertion, or any specific information about problems associated
with maintaining or operating such equipment. OSHA notes that the use
of properly calibrated equipment to detect non-isolated engulfment
hazards is a current practice by many in the industry and has been
since before OSHA issued the proposed rule (see transcripts of
stakeholder meetings, available at: https://www.osha.gov/doc/reference_documents.html).
Without a specific reason why an early warning system is infeasible,
OSHA retained this requirement in the final rule.
Another commenter asserted that an early warning system requirement
will require an employer to evaluate and calibrate such systems for
each potential hazard (ID-216). It is not clear from the comment,
however, that the commenter understood that the early warning system
described in the proposal (and this provision) must detect only non-
isolated engulfment hazards, not each potential atmospheric hazard.
Because engulfment hazards involve the movement of tangible substances
(e.g., water, mud, sand), systems may detect movement of different
substances using the same methods (e.g., a motion detector or other
sensor triggered by the movement of water, mud, sand, or another
substance through a particular area). The commenter did not provide any
specific examples of equipment that would require calibration in a way
that would be burdensome to the employer or diminish the effectiveness
of the equipment in providing an early warning.
The same commenter suggested as an alternative requiring employers
to disconnect, blind, lockout, or isolate all pumps and lines that may
cause contaminants to flow into a confined space, and then continuously
monitor that space. The alternative approaches
mentioned by the commenter appear to be directed at isolating the
hazards. If the employer effectively isolates or eliminates all
physical hazards within the entire permit space, then it might be
possible for the employer to avoid the permit program altogether if
employees can enter the space through the alternative procedures in
Sec. 1926.1203(e), or if there are no atmospheric hazards and the
permit space is reclassified in accordance with Sec. 1926.1203(g).
OSHA anticipates, however, that in most cases employers in non-isolated
spaces will need to comply with Sec. 1926.1204(e)(1)(iii) because it
may not be possible for employers to eliminate all physical hazards
from a continuous system.
Other commenters asserted that the requirement to use an early
warning system exposes the individuals installing the system to hazards
(ID-098, p. 1; -120, p. 4). OSHA disagrees with these commenters'
assertion. There are many types of early warning systems available,
including flow monitors that are suspended in an upstream manhole such
that no employee needs to climb down into the confined space to place
or retrieve the monitor. These devices are capable of detecting
engulfment hazards approaching from upstream without exposing the
individuals installing them to additional hazards. Employers may also
be able to lower cameras or other devices into the space, or conduct
visual inspections from above the space without entering at all.
One commenter was unsure when, where, and how an employer must
implement an early warning system (ID-124, p. 5). Another commenter
asserted that OSHA should explicitly recognize that the use of
electronic monitoring constitutes an acceptable early warning system
(ID-107, p. 3). In response to these comments, OSHA notes that, once
the employer determines that isolation of the space is infeasible, then
the employer must implement an early warning system in accordance with
final Sec. 1926.1204(e)(1)(iii). The employer has flexibility in
determining what type of system to use based on information it receives
about the space and its hazards, and based on the employer's experience
working in similar spaces. The system can be as simple as posting
observers with communication equipment in safe locations (e.g., outside
an open manhole) at distances far enough upstream from the work area to
timely communicate a warning to the entrants working downstream.
Another method would be to use detection or monitoring devices upstream
that will alert an attendant, or activate alarms at the entrants' work
area, in sufficient time for the entrants to safely avoid upstream
engulfment hazards moving in their direction. So long as the use of
electronic monitoring alerts authorized entrants and attendants of non-
isolated engulfment hazards in sufficient time to safely exit the PRCS,
the employer will be in compliance with final Sec.
1926.1204(e)(1)(iii).
Paragraph (e)(2). Final Sec. 1926.1204(e)(2) requires an employer
to continuously monitor the space unless the employer can demonstrate
that the equipment for continuously monitoring a hazard is not
commercially available or that periodic monitoring is sufficient to
ensure the control of atmospheric hazards at safe levels. Final rule
Sec. 1926.1204(e)(2) is similar to the corresponding provision for
general industry confined spaces at Sec. 1910.146(d)(5)(ii), except
that final Sec. 1926.1204(e)(2) generally requires continuous
monitoring as did the proposed rule (see proposed Sec.
1926.1215(a)(1)). Several commenters supported the requirement to
monitor permit spaces continuously (ID-105, p. 2; -106, p. 2). One of
these commenters asserted that "periodic monitoring could be difficult
to interpret, which could potentially lead to situations where an
employer's monitoring scheme fails to adequately monitor rapidly
changing atmospheric conditions that could pose risks to workers who
enter a confined space" (ID-105, p. 2).
In the typical PRCS in a construction setting, it is often
difficult for the employer to predict with reasonable certainty the
levels of hazardous atmospheres. In many instances, the employer will
have little or no past experience with the particular PRCS, and will
lack reliable historical data on hazard levels. Also, the PRCS may
change as construction work progresses in ways that may cause
unexpected increases in hazard levels. For example, changes to the wall
of a PRCS may increase the level of hazardous gasses in the PRCS (see
also ID-213.1, describing examples of how construction spaces can
include hidden dangers, such as paints or sealants that can release
toxic fumes if triggered by welding or other sources of heat.) In
addition, construction equipment in the PRCS may discharge hazardous
gasses into the space at a higher rate than anticipated.
In short, construction work follows a less predictable course than
work covered by the general industry standard and, thus, requires more
frequent atmospheric monitoring. Because of this high level of
unpredictability, OSHA believes, generally, that continuous monitoring
is necessary to protect affected employees, especially the entrants.
This provision enables the employer to recognize deteriorating
conditions quickly, and to identify new atmospheric hazards in time to
take the actions required to protect employees.
However, the Agency recognizes that, for some PRCSs, especially
those PRCSs entered and monitored repeatedly over a significant period
of time and found to have a stable atmosphere (such as a remote
location that is not near potential sources of atmospheric hazards),
the employer may be able to show that periodic monitoring will be
sufficient to ensure that the conditions in the PRCS remain within
acceptable entry conditions. However, when the employer uses periodic
monitoring, the monitoring must be of sufficient frequency to ensure
the control of atmospheric hazards at planned levels, and capable of
detecting new hazards in time to protect the employees. In some cases,
continuous monitoring may not be possible; for example, continuous
monitoring typically is not available when the atmospheric hazard is a
particulate. Therefore, when the employer can show that periodic
monitoring is adequate, or can demonstrate that the technology for
continuous monitoring of the atmospheric hazard is not available, OSHA
will permit the employer to use effective periodic monitoring instead
of continuous monitoring.
The preamble discussion of proposed Sec. 1926.1205(a)(3) provided
the following factors that OSHA will consider in determining whether an
employer has used an appropriate monitoring frequency: The results of
tests allowing entry; regularity of entry (e.g., daily, weekly,
monthly); effectiveness of previous monitoring activity; and knowledge
of the hazards (72 FR 67362). One commenter suggested adding the
following factors to this list: (1) The type of the work performed in
the space (i.e., hot versus cold work); (2) the time period the
confined space remains unmonitored (i.e., requiring monitoring every
20-30 minutes), and; (3) lunch breaks (ID-132, p. 3). Knowledge of the
hazards from the list in the proposed rule covers the first of these
suggested factors (type of work), while regularity of entry from the
proposal's list covers the third suggested factor (lunch breaks).
Effectiveness of previous monitoring activity from the proposal's list
addresses the second suggested factor (the time period the permit space
remains unmonitored). Accordingly, an employer must account for the
development of hazardous atmospheres during periods when no atmospheric
monitoring occurs in the space to
determine whether entry conditions remain at safe levels over these
periods. For example, if the space remains unmonitored for just a few
minutes prior to reentry, and previous monitoring regularly indicates
that acceptable entry conditions continued to exist over this period,
then an employer may conclude that it is not necessary to monitor again
prior to reentering the space. However, if the space remains
unmonitored for a longer time and previous monitoring indicates that
atmospheric hazard levels increase over this period, then an employer
must evaluate and monitor the space again before reentering it.
Some commenters asserted that OSHA must define the term "periodic
monitoring" to avoid confusion among the regulated community (ID-075,
p. 10; -129, p. 2;-152, p. 2). The frequency with which it is necessary
to monitor a confined space differs based on the particular facts and
circumstances. OSHA provided the factors listed in the previous
paragraph to assist employers in determining when periodic monitoring
is necessary; however, final Sec. 1926.1204(e)(2) maintains
performance-based language, which OSHA believes will provide employers
with flexibility in complying with this final rule. Moreover, there was
no indication in the record that the longstanding use of the term
"periodic testing" in Sec. 1910.146 is causing the level of
confusion suggested by the commenters.
Paragraph (e)(3). Final Sec. 1926.1204(e)(3), which is identical
to Sec. 1910.146(d)(5)(iii), requires an employer to test for
particular substances in a pre-determined order: oxygen, then
combustible gases and vapors, and finally toxic gases and vapors. The
preamble to the general industry confined-spaces standard noted that
this procedure represents generally accepted safe work practices, and
explained the specified order as follows:
A test for oxygen must be performed first because most
combustible gas meters are oxygen dependent and will not provide
reliable readings in an oxygen deficient atmosphere. In fact, the
Johnson Wax Company (Ex. 14-222) stated that 'there is [a] specific
(sensor dependent) oxygen level below which the combustible gas
sensor will not respond at all [emphasis was supplied in original].'
Combustible gases are tested for next because the threat of fire or
explosion is both more immediate and more life threatening, in most
cases, than exposure to toxic gases.
(58 FR 4499). OSHA also included this same requirement in the proposed
Sec. 1926.1205(a)(1), and received no comments challenging the
validity of this approach. OSHA remains convinced that the priority
assigned to testing or monitoring atmospheric hazards by final Sec.
1926.1204(e)(3) remains valid, and believes that this requirement is
critical to the health and safety of employees involved in confined-
space entry.
OSHA notes that final Sec. 1926.1204(e)(3), like the proposed
rule, does not require an employer to test for combustible dust. There
currently are technological limitations on testing for airborne
combustible dust in a timely manner; in addition, unlike flammable
vapors, in situations in which airborne combustible dust reaches a
minimum combustible concentration, the dust cloud generally is dense
enough to detect with the naked eye.
Paragraph (e)(4). Final Sec. 1926.1204(e)(4), which is identical
to Sec. 1910.146(d)(5)(iv), requires an employer to provide an
authorized entrant or employee authorized representative with the
opportunity to observe testing or monitoring. See the discussion of
final Sec. 1926.1204(c)(2) for an explanation of the importance of
providing an opportunity an opportunity for observation to entrants or
their representatives.
Paragraph (e)(5). Final Sec. 1926.1204(e)(5), which is similar to
Sec. 1910.146(d)(5)(v), requires an employer to reevaluate a PRCS if
there is "some indication" that the previous evaluation was
inadequate and an authorized entrant or that entrant's authorized
representative asks an employer to reevaluate the space. This
requirement ensures that entrants, or their representatives, can
provide a check on potential human error in the monitoring process
before they are potentially exposed to harm. This requirement is
consistent with other requirements to allow employee observation of
testing results, the reasons for which are set forth in the explanation
of Sec. 1926.1204(c)(2). In some cases employees who did not observe
the initial monitoring process may notice something about the equipment
or space that calls into doubt the initial evaluation, but in other
cases this requirement serves as a corollary to the general observation
requirements: an employee or employee representative who observes the
initial evaluation of the space pursuant to Sec. 1926.1204(c)(2) and
notes a problem with that testing may request a re-evaluation of the
space under Sec. 1926.1204(e)(5).
Section 1910.146(d)(5)(v) requires an employer to reevaluate when
an authorized entrant or the entrant's authorized representative "has
a reason to believe" the initial evaluation may have been inadequate.
Otherwise, this provision of the final rule is identical to Sec.
1910.146(d)(5)(v). Examples of indications that the evaluation of the
permit space was inadequate include: improper use of monitoring
equipment (e.g., monitoring devices have low battery life or noticeable
damage; monitoring devices improperly calibrated; measurements taken in
improper locations); employees noting physical hazards not identified
in the evaluation; and inconsistent monitor readings without adequate
explanation.
Addressing an example in proposed Sec. 1926.1207(a)(3), one
commenter was unsure who would make the final decision of whether there
is a reasonable basis for believing that a hazard determination is
inadequate (ID-120, p. 4). Specifically, the commenter presented a
situation in which an employee provides an alleged basis for believing
that a hazard determination is inadequate, but the employer finds that
the basis is not reasonable. Under final Sec. 1926.1204(e)(5), the
employer may repeat the test, alter the test to assess additional
aspects of the space, or assess whether a change occurred in the use or
configuration of the space after testing. If such a change occurred,
then the employer must reevaluate the space. Therefore, compared to the
more subjective language in the general industry standard (i.e., "has
reason to believe"), the reevaluation requirement in this final
provision (i.e., "some indication") is more objective and based on
the observable conditions, thereby reducing ambiguity.
Paragraph (e)(6). Final Sec. 1926.1204(e)(6), which is identical
to Sec. 1910.146(d)(5)(vi) except for non-substantive clarifications
and grammatical changes, requires an employer to immediately provide
the results of testing conducted in accordance with final Sec.
1926.1204 to each authorized entrant or that employee's authorized
representative. This requirement will ensure that employees and their
representatives have the information necessary to identify potential
inadequacies in the testing and take action under paragraph (e)(5) of
this section to avoid unsafe entries. In some cases the testing may
reveal specific conditions that fall within an employee's expertise or
may be relevant to an individual health condition of the employee. For
example, if an employee knows that he or she has a particular
sensitivity to even low levels of a substance that would not otherwise
result in a hazardous
atmosphere, the employee could review the test results and alert the
employer if that substance is detected so that the employer can provide
appropriate measures to protect the employee. See the discussion of
final Sec. 1926.1204(c)(2) for further explanation of this
requirement.
Paragraph (f). The introductory text of final Sec. 1926.1204(f),
which is identical to Sec. 1910.146(d)(6), requires an employer to
provide at least one attendant outside a PRCS while an authorized
entrant is performing confined-space operations. Although an attendant
does not have the overall responsibility for employee safety and health
assigned to the entry supervisor, the attendant is a crucial link
between authorized entrants and the entry supervisor, and is essential
for proper rescue operations. See the discussion in Sec. 1926.1209 of
this final standard for further explanation of the attendant's duties
and the importance of the attendant in confined-space operations.
Paragraphs (f)(1) and (f)(2). In final Sec. 1926.1204(f)(1), OSHA
authorizes the permit program to allow for an attendant to perform his
or her required duties, including assessing authorized entrants' status
and meeting the requirements of Sec. 1926.1209 for more than one
permit space, similar to the requirement specified in the proposed rule
at Sec. 1926.1210(f)(3). Under final Sec. 1926.1204(f)(2), the permit
program may allow an attendant to fulfill his or her assessment duties
for one or more spaces from a remote location provided the attendant is
capable of fulfilling all attendant duties under Sec. 1926.1209 for
all spaces to which the attendant is assigned from that remote
location. Final Sec. 1926.1204(f)(1) and (f)(2) are similar to the
note in the general industry confined-spaces standard at Sec.
1910.146(d)(6). OSHA acknowledges that, although it is best to have an
attendant outside each PRCS, there may be situations when one attendant
can effectively fulfill the attendant duties in multiple PRCSs. The
ability to assess entrants' status in multiple PRCS sites allows
employers maximum flexibility in providing for the safety of employees
when site-specific factors permit the attendant to do so. For instance,
in some circumstances a single attendant equipped with modern
technologies such as an automated monitor/alarm system and audio-video
equipment may be able to assess entrants' status in multiple sites and
react to emergency conditions as effectively as a single attendant at
each space.
While paragraph (f)(1) sets forth performance-based measures, OSHA
believes that an attendant's ability to assess entrants' status in
multiple permit spaces while adequately performing attendant duties is
dependent on several factors, that include: (1) the number of permit
spaces the attendant assesses simultaneously; (2) the degree and number
of the hazards; (3) how effective the assessment technology used is at
assessing entrants' status and the conditions in the permit space
(i.e., is there a system in place for the attendant to track, from a
remote location, who is coming in and out of a permit space); and (4)
the distance between the multiple permit spaces. This provision may
preclude a single attendant from serving as the attendant for multiple
spaces if the employer also designated the attendant to provide non-
entry rescue service. In most cases, an attendant with non-entry rescue
responsibility must be physically present to retrieve immediately the
entrant absent the availability of equipment that would enable the
attendant to perform the rescue task remotely and successfully. As
noted in the criteria above, the degree of the hazard may affect the
timing of entrant retrieval and, thus, the physical proximity required
for an attendant who has non-entry rescue responsibility (e.g., if the
permit space contains combustible gases that present a dangerous fire
hazard, the attendant must be capable of retrieving the entrant
immediately).
One commenter suggested that OSHA provide a maximum distance from
which one attendant can assess entrants' status in multiple PRCSs (ID-
059.1, p. 1). OSHA did not mandate a maximum distance because there are
a number of factors that could influence the proper distance from which
an attendant can assess entrants' status in multiple PRCSs while
remaining in compliance with the applicable attendant requirements
under this final rule. For example, some of the factors could be the
particular circumstances at the worksite (the location and
accessibility of the permit space), the visual acuity and observation
skills of the attendant, and the equipment provided to the attendant.
This approach provides the most flexibility to employers.
Paragraph (g). Final Sec. 1926.1204(g), which is identical to
Sec. 1910.146(d)(7), requires an employer to specify, in its permit
program, the means and procedures it will use to ensure that a single
attendant is capable of effectively fulfilling the attendant duties for
multiple confined spaces if an emergency occurs in one of the spaces.
As specified in the final preamble to Sec. 1910.146 and the note to
proposed Sec. 1926.1210(f)(3)(ii), effective assessment procedures
include procedures to ensure that the attendant can respond adequately
to emergencies. If the attendant needs to devote his or her entire
attention to one of the spaces or conduct non-entry retrieval, the
attendant must have a backup ready to assume the attendant duties for
the other space or order the evacuation of that space.
A commenter asserted that paragraph (g) also should include
requirements for: (1) testing and charging electronic equipment used to
assess entrants' status in multiple PRCSs; (2) the use of equipment
within acceptable limits in accordance with Federal Communications
Commission (FCC) guidelines; and, (3) attendant training (ID-108.1, p.
2). In response, OSHA notes, first, that final Sec. 1926.1204(d)
requires employers to maintain equipment provided for compliance with
this final rule, which includes properly testing and charging the
equipment. Second, this final rule works in conjunction with other
federal laws, and compliance with FCC guidelines is a matter best
addressed by the FCC. Third, final Sec. 1926.1207 requires the
employer to train all employees, including attendants assessing
multiple permit spaces, on the provisions of the standard so that the
employees can effectively perform their designated duties under this
standard. Thus, OSHA concludes that the final standard already includes
the duties requested by the commenter, and that this final standard
provides employers with appropriate flexibility in performing these
duties.
Paragraph (h). Final Sec. 1926.1204(h), which is identical to
Sec. 1910.146(d)(8) except for minor clarifications, requires each
employer to specify the names of each person who will have a particular
role in confined-space operations, characterize those roles, and train
the named people accordingly. In the final rule, OSHA clarified that
each employer must designate each and every employee assigned to a
specific role under this final rule. This provision will enable
employers, employees, and OSHA to identify which employees need to
receive what training under final Sec. 1926.1207.
One commenter was uncertain whether the attendant and the entry
supervisor must be different employees (ID-124, p. 8). The definition
of "entry supervisor" in final Sec. 1926.1202 includes a note
explaining that an entry supervisor also may serve as an attendant or
an authorized entrant. This note is identical to the note in the
general industry confined-spaces standard at Sec. 1910.146(b). OSHA
included this note to parallel the general industry standard and
because OSHA's enforcement experience demonstrates that, when the entry
supervisor has adequate training, he/she is capable of serving
simultaneous roles effectively. Moreover, proposed Sec. 1926.1210(h)
specifically stated that an entry supervisor could serve simultaneously
as an attendant or an authorized entrant, which is consistent with this
final rule, and OSHA did not receive any comments indicating that this
dual role was infeasible or inappropriate.
Paragraph (i). Final Sec. 1926.1204(i), which is nearly identical
to Sec. 1910.146(d)(9), requires an employer to have and implement
effective procedures for summoning rescue services (including
procedures for summoning emergency assistance in the event of a failed
non-entry rescue), performing rescue, and preventing unauthorized
personnel from attempting rescue. The only difference from the general
industry requirement is that OSHA added a parenthetical to note that
employers have a duty to summon emergency assistance in the event of a
failed non-entry rescue.
Several commenters were unsure which employer must summon rescue
(ID-025, p. 4; -150, p. 3). Another commenter asserted that the
attendant should summon rescue (ID-210, Tr. p. 357). Final Sec.
1926.1204(i) applies to any employer, including a controlling
contractor or host employer, that has its own employees performing
confined space operations. Each such employer must designate an
attendant, and final Sec. 1926.1209(g) requires the attendant to
summon a rescue service when needed. When multiple employers are
operating in the same space, the employers must coordinate the
procedures for summoning a rescue service as part of their general
coordination duties under Sec. Sec. 1926.1203(h)(4) and 1926.1204(k).
This provision will ensure that procedures are in place for the timely
and effective rescue of entrants when necessary.
Paragraph (j). Final Sec. 1926.1204(j), which corresponds to the
requirements in Sec. 1910.146(d)(10), requires an employer to develop
procedures for the development, issuance, use, and cancellation of an
entry permit; the final provision also is similar to proposed Sec.
1926.1212(a). The permit is one of the most crucial elements of a
permit program because it provides specific instructions for monitoring
and addressing hazards in a particular space. See the discussion to
final Sec. Sec. 1926.1205 and 1926.1206 for further explanation on the
importance of developing and using entry permits for confined-space
entry. In the final rule, OSHA added a clarification that these
procedures must cover the safe termination of entry operations, which
must include procedures for summoning emergency assistance in the event
that non-entry rescue fails (see discussion of backup emergency
assistance in final Sec. 1926.1211).
One commenter was unsure which employers must comply with final
Sec. 1926.1204(j) (ID-120, p. 4). Final Sec. 1926.1204(j) applies to
any employer, including a controlling contractor or host employer, that
has its own employees performing confined space operations.
Paragraph (k). Final Sec. 1926.1204(k) requires an employer to
develop and implement procedures for coordinating confined-space entry
when multiple employers are performing work simultaneously that could
affect conditions in a permit space, a requirement derived from
proposed Sec. 1926.1204(d). In the general industry confined-space
standard, Sec. 1910.146(d)(11) requires coordination procedures when
multiple employers are working simultaneously "as authorized
entrants." This final provision differs from Sec. 1910.146(d)(11) by
addressing the need to coordinate work activities through the
controlling contractor, as well with employers working outside the
permit space when their work could foreseeably affect conditions within
a confined space. The controlling contractor (or the employer specified
in Sec. 1926.1203(i)) and each entry employer are responsible for
coordinating work activities among different employers to protect
confined space entrants under final Sec. 1926.1203(h)(4), and entry
employers must ensure that their permit programs specify when and how
they will share information with the controlling contractor in a timely
manner in accordance with Sec. 1926.1203(h)(4) and (h)(5)(ii). The
permit program also must address how the entry employer's employees are
to receive and transfer information about a confined space from the
controlling contractor in accordance with Sec. 1926.1203(h)(2), and
how the entry employer will ensure that it implements coordination
instructions from the controlling contractor. In addition, the entry
employer still has the duty of including in its permit program steps to
ensure coordination, even absent action by the controlling contractor.
Such steps might include evaluation of work and practices being
performed by other employers that could affect conditions inside the
space, and coordinating with those employers to ensure safe conditions
inside the confined space. For example, if an entry employer sees
another employer setting up blasting equipment next to the permit
space, the entry employer must check with that employer to ensure that
the blasting activity will not take place when an entrant is in the
permit space. For additional explanation of the entry employer's
responsibilities for coordination, see the discussion of Sec.
1926.1203(h)(4).
Paragraph (l). Final Sec. 1926.1204(l), which is identical to
Sec. 1910.146(d)(12), requires an employer to develop and use
procedures for terminating an entry permit and entry operations; the
final provision also derived from proposed Sec. Sec. 1926.1212(a) and
1926.1214(d). See the discussion of final Sec. 1926.1205(e) for
further explanation of the need to develop and use procedures for
terminating an entry permit and entry operations, including closing the
entry portal. Also, OSHA responded to the relevant comments to proposed
Sec. 1926.1212(a) in its discussion of final Sec. 1926.1204(j).
Paragraph (m). Final Sec. 1926.1204(m), which is similar to Sec.
1910.146(d)(13), requires an employer to review its permit-space
program whenever the procedures prove inadequate, and to revise those
procedures when necessary. Section 1910.146(d)(13) requires the
employer to review its program when the employer has reason to believe
that the measures taken are inadequate. OSHA revised this language in
this final rule by clarifying that the objective circumstances, not the
employer's belief, must be the basis of the review. See the discussion
of final Sec. 1926.1205(f) for further explanation of the need to
review an entry permit and to make revisions as necessary.
In addition, OSHA modified the note under paragraph (m) from the
language used in the corresponding note to the general industry
standard at Sec. 1910.146(d)(13). OSHA added the phrase "including,
but not limited to" in this final provision to clarify that the
examples in the note are not an exhaustive list.
Paragraph (n). Final Sec. 1926.1204(n) is identical to Sec.
1910.146(d)(14) except for grammatical revisions, and requires an
employer to review its permit-space program at least every year and
make revisions to its procedures as necessary; this provision also
expands upon, and clarifies, the proposed rule at Sec. 1926.1214(b).
The Agency moved the comma that appears after "as necessary" in Sec.
1910.146(d)(14) to appear after "1926.1205(f)" in this final rule to
clarify that this provision requires an employer to review cancelled
permits within one year after each entry. The
Agency notes that, in interpreting the same language in the general
industry standard, OSHA permitted employers to rely on documentation of
quarterly reviews, rather than cancelled entry permits, in conducting
its annual review, so long as that documentation contains the same
information required to be in the cancelled entry permits, including
"any information regarding problems encountered during entry
operations that was recorded to comply with paragraph (e)(6)" and
"any revision of the program that resulted from such problems." See
October 21, 1993, letter to John Anderson. The Agency will also accept
the equivalent documentation under this construction final rule. Some
commenters asserted that requirements to review the program are
pointless because they do not ensure that employers will discover
hazards in a timely manner (i.e., they will discover any problems after
the fact) (ID-075, p. 10;-099, p. 2;-101, p. 2). OSHA did not design
final Sec. 1926.1204(n) to ensure that employers discover hazards
during a particular confined-space entry operation; the Agency designed
other sections of this final rule for that purpose, such as Sec.
1926.1203(h) and final Sec. 1926.1204(m). As OSHA explained in 72 FR
67381 of the preamble to the proposed rule, the purpose of this annual
review is to evaluate the effectiveness of the permit program and the
protection provided to employees involved in PRCS entries during this
period. OSHA understands that some employers will use the same
comprehensive permit program for many different spaces in conjunction
with more specific information provided on the permits for individual
spaces. This requirement will help ensure that employers complete
future PRCS entries in a similar manner if the entries were successful,
or make changes to the permit program to improve future entry
operations if any problems or concerns occurred (72 FR 67381).
One commenter was unsure whether OSHA based the 12-month review
period on a calendar year or cancellation of a permit (ID-075, p. 10).
This 12-month period is a calendar year because the purpose of final
Sec. 1926.1204(n) is to ensure that no more than 12 months separates
the date the employer cancels or terminates a confined-space entry and
the date the employer reviews its confined-space entry operations for
deficiencies. OSHA's experience with the general industry standard
indicates that a review, conducted once per calendar year, is
sufficient to achieve this purpose, and OSHA did not receive any
comments to the contrary. Therefore, if an employer conducted a review
of its permit-space program each calendar year, regardless of how many
entries it conducted in that calendar year, it will be in compliance
with this requirement. Employers may conduct reviews more frequently as
appropriate, but this final provision does not require this frequency
and, therefore, provides employers with the most flexibility in
determining when to conduct this annual review.
The note to paragraph (n), which is identical to the note following
Sec. 1910.146(d)(14), clarifies that employers need not conduct
separate reviews of each individual permit program implemented during
the calendar year; a single review of all entries during the calendar
year will suffice. Another commenter asserted that OSHA should require
a similar annual review for entry operations performed under the
alternate procedures specified by final Sec. 1926.1203(e) and
1926.1203(g)(1) (ID-060, p. 2). Employers who complete a confined space
entry entirely under the alternative procedures set forth in final
Sec. 1926.1203(e) do not have to comply with the requirements of final
Sec. 1926.1204 (see final Sec. 1926.1203(e)(1)). Employers need fewer
precautions to ensure the safety of employees working within or near
confined spaces when they can use the alternate procedures under final
Sec. 1926.1203(e) or reclassify the permit space under Sec.
1926.1203(g)(1). If there is any change to these spaces that would
result in a hazard not addressed by these alternative procedures, then
the full permit program and the requirements of final Sec. 1926.1204,
including the annual review, will apply.
Section 1926.1205--Permitting Process
Section 1205 sets forth the required process for establishing,
suspending and cancelling entry permits. This process is important
because it helps the employer determine if conditions in the permit
space are safe enough for entry, and it requires the involvement of the
entry supervisor, thereby ensuring that a person with the
qualifications needed to identify permit-space hazards, and the
authority to order corrective measures for their control, will oversee
entry operations. The provisions in final Sec. 1926.1205 are similar
to the provisions in the general industry confined spaces rule at Sec.
1910.146(e); however, OSHA changed the title of the section from
"permit system" in the general industry standard to "permitting
process" in the final rule to minimize the possibility for confusion
if a permit space was established that might be referred to as a
system, such as a sewer system.
Paragraph (a). Final Sec. 1926.1205(a), which is almost identical
to Sec. 1910.146(e)(1), requires each entry employer to prepare, prior
to entry into a PRCS, an entry permit containing all of the information
specified in Sec. 1926.1204(c) (practices and procedures for ensuring
safe entry). This provision differs slightly from Sec. 1910.146(e)(1)
because it refers to "each entry employer," whereas Sec.
1910.146(e)(1) refers to "the employer." OSHA made this change to
clarify which employer on a multi-employer worksite has duties under
final Sec. 1926.1205(a).
OSHA emphasizes that the process of preparing a permit is
considerably more than preparing a simple checklist; it requires
careful attention and planning. The permit must list all measures
necessary for making the particular permit space safe for entry; if the
permit omits some procedures, serious consequences could result. Entry
permits are a critical component of the safety process for preparing to
enter a confined space because they provide key information about
hazards in the PRCS, and the methods used to protect employees from
those hazards. The permits also specify who is authorized to perform
work within the PRCS, their duties, and the extent of their authority
with respect to safety in and around the PRCS. The Agency believes the
use of this administrative tool is essential to the employer with
employees entering a permit space to ensure that the employees will
complete the work within a PRCS safely. The process of preparing the
permit, as well as the permit itself, also can be useful to the
controlling contractor and other employers working near the confined
space because it provides a readily accessible means of identifying the
work performed and the provisions needed to ensure worker safety.
Making the information on the permit accessible to employers and
employees in and around the PRCS also allows them to maintain an
elevated awareness of the conditions within the PRCS, as well as the
equipment and procedures necessary for safe PRCS entry operations.
One commenter noted that multiple employers may have employees
working in the same space, and was unsure whether each employer must
prepare an entry permit under final Sec. 1926.1205(a) (ID-120, p. 4).
When more than one employer is performing confined space entry, one
permit will suffice, provided the controlling contractor and entry
employers properly coordinate the entry operations of the multiple
employers as required under Sec. Sec. 1926.1203(h)(4) and
1926.1204(k), and the permit identifies all of the hazards and safety
measures required for all of the work conducted in that space.
Paragraph (b). Final Sec. 1926.1205(b), which is identical to
Sec. 1910.146(e)(2), requires the entry supervisor to sign the permit
before entry begins. Although the employer remains ultimately liable
for compliance with this standard, the entry supervisor's signature
underscores to the employer and the entry supervisor the importance of
their determination that the PRCS entry operation meets the
prerequisites for safe entry listed in the permit. OSHA believes that
signing the form makes it more likely that the entry supervisor and his
or her employer will address the items listed on the form than if they
do not have no to sign the form. Moreover, the entry supervisors may
change during the course of the entry, so it is important to identify
who completed each evaluation in the event that questions arise.
Paragraph (c). Final Sec. 1926.1205(c), which is identical in
substance to Sec. 1910.146(e)(3), requires an employer to make the
completed entry permit available to all authorized entrants, or their
authorized representatives, at the time each employee enters the space.
One of the keys to protecting employees from PRCS hazards is for both
employers and employees to know the location of the PRCSs at the job
site, the characteristics of the hazards, and their associated dangers.
The provisions in this paragraph are designed to achieve this goal.
Once entrants are provided with this information, they will then be
able to make their own judgments as to the completeness of pre-entry
preparations and point out any deficiencies that they believe exist.
Employees will also be more likely to bring new hazards to the
attention of the supervisor if they are discovered while working in the
permit space if the employees are aware of which hazards have already
been identified and which have not. Posting the permit for employees to
see at the entry point can also be useful when multiple employers will
be working in the same permit space.
Sharing this information with employee authorized representatives
may help bring the representative's expertise to bear in identifying
additional hazards not accounted for in the permit process. One
commenter described a situation where he, as an authorized employee
representative, was able to alert employees to additional atmospheric
hazards that were generated by the adhesives used to join plastic pipe
tubes in a room with inadequate ventilation (ID-010). Final paragraph
(c) includes one variation from the language of the general industry
standard. Under the general industry standard a single posting can be
sufficient to inform multiple employees, but employers must still make
sure that the permit is available to each entrant, or the entrant's
representative, prior to entry into the permit space. For example, an
employer does not fully comply with the standard by posting the permit
after one of its employees has already entered the permit space. OSHA
is including the same requirement in this final rule, but is also
taking the opportunity to provide further clarification in this final
rule that the information must be made available to "each authorized
entrant"; the general industry standard is less specific, referring to
"all authorized entrants." In appropriate cases, if an employer fails
to make this information available as required, OSHA may issue separate
citations with respect to each individual employee who enters a
confined space without having access to this information.
Paragraph (d). Final Sec. 1926.1205(d), which is identical to
Sec. 1910.146(e)(4), prohibits employers from making the entry
permit's duration longer than the time needed to complete the related
work. Otherwise, the conditions inside the space are more likely to
change and entrants could be unnecessarily exposed to the residual
hazards of permit spaces.
One commenter suggested that OSHA limit the duration of the
permit's validity to one day or one shift to ensure that someone
inspects the confined spaces that employees are entering to discover
changed conditions (ID-060, p. 4). OSHA does not agree that such a
fixed limit is warranted. This process would be more burdensome because
it would require cancellation of entry permits even when there is no
change in conditions or hazards. Final Sec. 1926.1204(e)(2) requires
an employer to monitor the conditions inside a confined space to
determine if they become unacceptable. Furthermore, final Sec.
1926.1205(e)(2) requires an employer to cancel the entry permit if an
unacceptable condition arises. Taken together, these provisions provide
a less burdensome, more flexible, and even more direct method of
achieving the same safety mechanisms as the commenter's suggested
approach. Moreover, the less limited requirements are consistent with
the procedures required under the general industry confined spaces
standard at Sec. 1910.146. OSHA considered and rejected a similar
request for a per-shift permit limit when promulgating the general
industry final rule (see 58 FR 4505, 4506 (Jan. 14, 1993)).
Paragraph (e). Final Sec. 1926.1205(e), which corresponds to Sec.
1910.146(e)(5), requires an employer to terminate entry and cancel the
entry permit under two conditions: when the employer completes the
entry operations covered by the permit (final Sec. 1926.1205(e)(1),
which is identical to Sec. 1910.146(e)(5)(i)), or when there is a
condition inside or near the permit space that is not acceptable under
the permit program established for that space (final Sec.
1926.1205(e)(3), which is identical to Sec. 1910.146(e)(5)(ii)).
Requiring the entry supervisor to terminate the entry permit under
either of these conditions increases the likelihood that the employees
will exit the space before new hazards emerge, and that employees will
avoid hazards arising from prohibited conditions within the PRCS. When
an employer completes an entry without incident, the employer must
cancel the permit by removing it from the entry site. If the employer
cancels the permit in response to new hazards or changes in the
condition of the permit space, the employer must record the reasons for
the cancellation on the permit in accordance with Sec. 1926.1205(f).
In response to comments, OSHA also is adding an additional
provision in final Sec. 1926.1205(e)(2) that is not in the general
industry standard, but would provide employers additional flexibility
in certain situations identified by the commenters. Some commenters
asserted that it is unnecessary to require cancellation of the entry
permit in every instance in which reevaluation is necessary, and that
doing so was unnecessarily burdensome (ID-107, p. 4; -116, p. 3). A
commenter representing a client involved in sewer construction
suggested that, in the event an unacceptable condition arises that
necessitates temporary evacuation and reevaluation, but does not
present a new or increased hazard for employees working within the
confined space, OSHA should allow employers to track these events on
the existing permit rather than cancelling the entire permit and
filling out a new permit. For example, if there is a temporary loss of
power for five minutes such that the entrants must exit the permit
space because the lighting conditions are inadequate, the employer
would normally reenter once the power returns and the conditions inside
the permit space are the same as they were for initial entry.
OSHA agrees that cancelling the permit may be unnecessary when a
condition outside or inside the permit space requires an evacuation,
but the permit space returns soon after to the same acceptable
conditions specified under the permit. So long as the employer records
on the permit the event that required evacuation, the employer conducts
a full reassessment of the permit space that indicates restoration of
the acceptable permit conditions before the employer permits reentry,
there are no new gases or physical elements introduced into the space
that are not addressed in the permit for that space, and there are no
other significant changes to the space, OSHA believes that the employer
can satisfy the purposes of the permit program without the additional
burden of cancelling and replacing the entire permit. OSHA modified the
text of the final rule accordingly by adding final Sec.
1926.1205(e)(2) to allow for the "suspension" of the permit, as an
alternative cancellation of the permit, when these criteria are met.
During suspension, employers still must fulfill all applicable duties
of an entry employer under the standard, such as preventing
unauthorized entrance. An employer may temporarily suspend a permit in
one of two ways: by removing it (leaving just the "Do Not Enter" sign
or its equivalent that must be posted under Sec. 1926.1203(b)(1) and
remain there throughout the entry), or taking other steps, such as
covering the permit, to ensure that no one will mistakenly rely on the
permit to enter the space. Regardless of the method of suspension, the
employer must also record the reason for the suspension on the permit
(see Sec. 1926.1205(f)).
It would still be necessary, however, to cancel the permit and
complete a new one if there is any indication that the existing permit
may not be adequate to ensure the safety of the entrants. Cancellation
of the permit is also necessary if the employer is unable to identify
the cause of the change in conditions that led to the evacuation, or if
a new substance has entered the permit space or has increased in amount
or concentration. For example, if there is gas in a permit space in a
concentration held below safe levels by two ventilation fans located on
the exterior of the permit space and operated in accordance with the
employer's permit program, and one fan stops functioning, all employees
would need to exit the space and the employer must suspend the permit
until the space is returned to the allowable conditions specified in
the permit program. If the employer is able to identify the source of
the fan failure (e.g., a burned-out motor), replace the fan, and return
the gas in the space to a concentration below the applicable PEL, and
nothing else has changed in the space, then the employer may permit its
employees to re-enter after conducting a full reassessment of the space
and noting the reason for the fan failure on the permit. Similarly, if
the presence of a new gas is detected but the permit already
anticipates that level of gas and includes a means of controlling that
gas, the employer may control that gas in accordance with the existing
permit instead of cancelling that permit and creating an entirely new
permit. However, if the employer is unable to identify the reason for
the fan failure, or that failure appears likely to occur again (e.g.,
flickering power source), or there has been some additional change in
the permit space (e.g., monitoring detects the presence of a new gas
not accounted for in the permit program, or condensation has formed
within the space impeding entry or exit), then the employer must cancel
the permit and develop a new permit that addresses those new
conditions.
The final rule, similar to the general industry standard, requires
employers to terminate the entry if there is an unacceptable condition
"in or near" the permit space. Several commenters noted that the
proposed rule included references to "near" in several different
provisions and requested clarification. (See, e.g., ID-061.1; -095; -
101.1; -106.1; -120.1; -121.1; -124.1; -125.1; -131; -135; -136; -152;
-220.) Many of these commenters, however, also urged OSHA to promulgate
a construction standard that tracked the language of the general
industry standard. OSHA, therefore, did not use "near" in this final
rule except in Sec. 1926.1205(e), which tracks the identical use of
"near" in the general industry standard. The requests of numerous
commenters urging OSHA to follow the general industry standard, and the
absence of record evidence suggesting that employers have had
difficulty complying with this general industry requirement, indicate
that the use of this term in this context is sufficiently clear to
employers engaged in permit-space work. The purpose of this provision
remains the same in the construction context as in the general industry
context: protection of employees working in confined spaces from
exposure to additional hazards introduced into the permit space from
outside. The use of "near" indicates a physical proximity to the
permit space, but OSHA is not specifying a fixed distance because of
the variety of potential hazards and the disparate distances from which
the hazards could impact the confined space. For example, a small
welding job may have no impact on a properly controlled permit space 15
feet away, but a demolition blast could easily result in a significant
hazard for employees working in an underground permit space much
farther away.
One commenter suggested that existing OSHA standards were already
sufficient to protect employees from hazards near the confined space,
while another commenter asked whether operating gasoline-powered
equipment near the permit space would constitute a hazard, and whether
an employer must cancel the entry permit for sewer work every time an
automobile passed near the manhole to enter the sewer (see ID-131 and -
098.1). The examples provided by the latter commenter demonstrate the
need to address these external hazards in the confined spaces standard:
activities not necessarily prohibited by any other standard and that
usually do not pose a hazard to employees when used in open spaces,
such as operating gasoline-powered equipment, can result in hazards
when used in close proximity to a permit space. However, because
operating gasoline-powered equipment or automobiles near a permit space
is not inherently hazardous to the entrants working inside that space,
the employer would not necessarily need to cancel the permit at each
such occurrence. Instead, the employer must assess the hazards posed in
each scenario. If the fumes from the gasoline-powered equipment are
spewing into the confined space, then the employer likely would need to
remove the entrants and reassess the acceptable conditions for work
inside the space. Likewise, if the employer did not anticipate that
automobiles would be driving near the entry to a permit space, and did
not guard the entrance and establish barriers to adequately protect
employees working in the permit space, then the employer would need to
require the entrants to leave the space in a safe manner and then
reassess the permit program if automobile traffic develops. If,
however, the gasoline-powered equipment was operating at such a
distance or in such a manner that it would not foreseeably result in a
potential hazard to the permit-entrants, or if the employer planned for
automobile traffic near the space and provided barriers and other
appropriate protection, then the entry could
continue and the permit program would remain in effect. Activities
outside the permit space will only require entrants to leave if they
could foreseeably result in a hazard not accounted for when the
employer developed the permit program.
Paragraph (f). Final Sec. 1926.1205(f), which is almost identical
to Sec. 1910.146(e)(6), requires the entry employer to ensure that the
cancelled entry permits are saved on file for at least a year after
cancellation. In addition, Sec. 1926.1205(f) requires employers to
note any problems encountered during an entry operation, particularly
those that trigger cancellation or suspension of a permit under Sec.
1926.1205(e), on the pertinent permit.
This provision differs slightly from Sec. 1910.146(e)(6) because
it clarifies that "every entry employer" must comply with these
duties, whereas Sec. 1910.146(e)(6) refers generally to the duties of
"the employer." OSHA made this change in recognition that there may
be many different employers on a construction worksite, and that each
entry employer has a responsibility to ensure that the records are
saved. In some cases, this may involve coordination between different
employers.
The purpose of this document retention requirement, and of the
requirement to note problems directly on the permit, is to facilitate
the evaluation of the effectiveness of protection provided to employees
involved in PRCS entries during the annual review required under Sec.
1926.1204(n). The requirements of Sec. 1926.1205(f) help to ensure
that employees complete future PRCS entries in a similar way if the
previous entries were successful, or that employers improve future PRCS
entries by resolving any problems or concerns discovered.
One commenter asserted that the retention period should end upon
completion of the project (ID-099, p. 4). OSHA disagrees with this
commenter because the lack of document retention would significantly
affect the employer's ability to complete its required annual review.
OSHA set this minimum retention period at one year to ensure that the
documents still would be available when employers conduct the required
12-month review specified by final Sec. 1926.1204(n).
As the Agency noted in the proposed rule, these document-retention
requirements are in addition to the document-retention requirements
required by other OSHA standards, such as the 30-year retention period
for employee-exposure records required by 29 CFR 1910.1020(d)
(Preservation of records) \23\ (see note to proposed Sec.
1926.1219(b)). In some cases, entry permits may constitute employee-
exposure records. (See definition of "employee exposure record" at 29
CFR 1910.1020(c)(5).)
---------------------------------------------------------------------------
\23\ The note in 29 CFR 1926.33 makes the provisions of 29 CFR
1910.1020 (Access to employee exposure and medical records)
applicable to construction operations.
---------------------------------------------------------------------------
One commenter suggested that OSHA incorporate the language in the
general industry confined spaces directive, CPL 02-00-100: Application
of the Permit-Required Confined Spaces (PRCS) Standard, 29 CFR 1910.146
(May 5, 1995), to provide additional explanation of what constitutes an
"employee exposure record." OSHA agrees that the term has the same
meaning in this final rule as in the general industry standard, and
that the guidance from CPL 02-00-100 is equally applicable: "[R]esults
which show the composition of an atmosphere to which an employee is
actually exposed (even if the employee is using a respirator) are
exposure records under 29 CFR 1910.1020(c)(5)."
This requirement to maintain exposure records gives healthcare
providers, in the event of an emergency, access to information about
the substances and exposure levels the employee may have experienced
while working within a confined space. This information will enable
healthcare providers to administer medical care effectively to injured
employees.
Section 1926.1206--Entry Permit
An employer conducting a permit-space entry must post an entry
permit outside the permit space to document the employer's efforts to
identify and control conditions in that permit space (see Sec.
1926.1205(c)). The purpose of the permit is to provide a concise
summary of the permit-space entry requirements for a particular entry
that will be useful to the personnel who are conducting the entry
operations, to rescue personnel, to the controlling contractor, to
other employers working near the confined space, and to any personnel
who need to review the conduct of entry operations after the employer
terminates the operations. Making the information on this document
accessible to employers and employees affected by the hazards in and
around the permit space also allows them to maintain an elevated
awareness of the conditions within the permit space, as well as
knowledge of the equipment and procedures necessary for safe permit-
space entry operations.
The introductory language in final Sec. 1926.1206 requires the
employer to include, on the entry permit, all of the information
specified in Sec. 1926.1206(a) through (p). Most of the information
required on the permit is substantively identical to the general
industry confined spaces requirements at Sec. 1910.146(f). The
exception is paragraph (e), which requires the employer to record the
means of detecting an increase in atmospheric hazard levels if a
required ventilation system stops working. OSHA included that
requirement in the proposed rule and, for the reasons explained below,
OSHA concludes that it is important to retain it in the final rule.
Proposed Sec. 1926.1210(k) provided that the employer must
document, on the entry permit, all "determinations made" and
"actions taken" during PRCS procedures, as required by proposed rule
Sec. 1926.1214(a). Commenters appeared to interpret this proposed
provision as a broad and overly burdensome requirement, which was not
OSHA's purpose (see, e.g., ID-095, p. 4). In light of the concerns
about the proposed language, the Agency notes that the final rule is
not requiring employers to include on the entry permit each
determination or action taken with respect to the permit entry.
However, employers still must make certain demonstrations about
hazards, ventilation, monitoring, or equipment, and document other
determinations, as required by the final standard, and make that
information available to employees (see, e.g., Sec. 1926.1203(e)(1),
(g)(2), (g)(3)). Final Sec. 1926.1206 is otherwise generally
consistent with proposed Sec. 1926.1214(a).
Paragraph (a). Final Sec. 1926.1206(a), which is identical to
Sec. 1910.146(f)(1), requires the employer to identify the permit
space that workers are planning to enter. This information will ensure
that employees use the correct permit for the permit space.
Paragraph (b). Final Sec. 1926.1206(b), which is identical to
Sec. 1910.146(f)(2), requires the employer to record the purpose of
the entry. As the Agency noted in the proposed rule, this information
must be sufficiently specific, such as identifying specific tasks or
jobs employees are to perform within the space, to confirm that the
employer considered performance of each specific construction activity
in the hazard assessment of the PRCS. (See proposed Sec.
1926.1214(a)(1)(ii).) An entry employer's failure to evaluate
construction activities performed within the PRCS for their effect on
the conditions within the space could result in serious injury or death
to employees.
It would be sufficient, for example, to state the purpose of entry as
"replacement of communications cable in sewer line," or "welding
upgraded component inside steel tank," but it would not be sufficient
to state only "communications work in sewer line" or "upgrade to
tank."
Paragraph (c). Final Sec. 1926.1206(c), which is identical to
Sec. 1910.146(f)(3), requires the employer to record the date and
authorized duration of the planned entry. The "date" refers to the
day on which authorized entrants are permitted to enter the PRCS. The
duration of the permit may not exceed the time required to complete the
specified tasks or jobs, including the time necessary to set up and
dismantle any tools or equipment required to perform the tasks or jobs
(see Sec. 1926.1205(d)). The employer need not list duration in terms
of time, but instead may describe it in terms of the completion of
tasks identified in the permit. For instance, the employer could
describe the duration as "welding and repair of water main" or
"upgrading equipment in an electrical vault." One purpose of this
provision is to ensure that employees engaged in PRCS operations are
informed of the period during which conditions in the PRCS must meet
acceptable entry conditions as specified in the entry permit. A second
purpose is to place some reasonable limit on the duration of the
permit, because a permit of unlimited duration is not likely to account
for changed PRCS conditions.
Paragraph (d). Final Sec. 1926.1206(d), which is identical to
Sec. 1910.146(f)(4), requires the employer to record the identity of
the authorized entrants so that the attendant is capable of safely
overseeing the entry operations. Employers can meet this requirement by
referring in the entry permit to a system such as a roster or tracking
system used to keep track of who is currently in the PRCS. The
availability of this information would enable the attendant, entry
supervisor, or rescue service to quickly and accurately account for
entrants who might still be in the PRCS when an emergency occurs. A
second purpose is to provide assurance that all authorized entrants
have exited the PRCS at the end of entry operations. A third purpose
would be to assist the attendant and entry supervisor in preventing
unauthorized personnel from entering the space.
It is extremely important for the employer to confirm that all
authorized entrants have exited the PRCS during an evacuation.
Therefore, a tracking system that lists the names of the employees who
the employer designates as authorized entrants, but does not accurately
account for the number of employees inside the PRCS at all times, would
not meet the requirements of this paragraph. Merely maintaining a list
of authorized entrants, who may or may not be at the job site or inside
the PRCS, would not help the employer determine how many authorized
entrants are left inside the PRCS should an evacuation be necessary.
Likewise, a tracking system that only accounts for the number of
authorized entrants inside the PRCS, without providing their names or
other identifiers, also is not acceptable; knowing the name or other
identifier of each entrant makes it easier for the rescuers to
determine where the entrant is assigned to work in the PRCS, and
thereby determine the entrant's probable location.
Paragraph (e). When a permit program requires ventilation, OSHA
requires employers to ensure that they have a monitoring system in
place that will alert employees of increased atmospheric hazards in the
event the ventilation system fails (see Sec. 1926.1204(c)(5)). Final
Sec. 1926.1206(e) requires the employer to record the means of
detecting an increase in atmospheric-hazard levels if the ventilation
system stops working. It is important for employers to provide this
information on the entry permit so that any new employees can easily
access this information and respond appropriately and as quickly as
possible to ensure the continued safety of entrants. For example, if
the original entry supervisor is replaced by a new entry supervisor
halfway through entry operations, the new entry supervisor can refer to
the entry permit for this information.
Paragraph (f). Final Sec. 1926.1206(f), which is substantively the
same as Sec. 1910.146(f)(5), requires the employer to record the names
of each attendant. Final Sec. 1926.1206(f) differs from Sec.
1910.146(f)(5) only in that it clarifies that the name of "each
person," rather than "the person," must be recorded on the entry
permit. There is often more than one attendant during the course of
entry operations, so this requirement would facilitate identifying
attendants quickly and easily, thereby expediting communications with
them, which is necessary for the performance of safe PRCS entry
operations, and for the performance of specified duties during
emergency situations. When a new attendant replaces the previous one,
the employer must make it clear on the permit which attendant is on
duty, such as by crossing out the previous attendant's name, so that
there is no confusion about the identity of the current attendant
Without this requirement, the employer could waste valuable time
finding the attendant responsible for protecting authorized entrants
during an emergency.
Paragraph (g). Final Sec. 1926.1206(g), which is nearly identical
to Sec. 1910.146(f)(6), requires the employer to record the name of
each employee currently serving as entry supervisor. The same reasons
for requiring the names of the attendants apply for requiring the name
of the entry supervisor here: it provides an assured means of
distinguishing these important individuals quickly and easily so that
employees may alert them of a developing hazard, and it provides the
opportunity for these individuals to review the permit and entry
conditions to ensure that entry conditions remain safe. The general
industry standard requires a space for each entry supervisor's name,
which implies that the entry supervisor names will be filled in, but in
this final rule OSHA is modifying paragraph (g) to make that
requirement explicit: The employer must ensure that the name of each
entry supervisor is entered into that space. As with the changes to the
attendants, the employer must ensure that the current supervisor is
identified as such when one supervisor replaces another.
Paragraph (h). Final Sec. 1926.1206(h), which is identical to
Sec. 1910.146(f)(7) and corresponds to proposed Sec.
1926.1214(a)(2)(i)(A), requires the employer to record the hazards
associated with the planned confined space entry operations. This list
must include all hazards, regardless of whether the employer protects
the authorized entrants from the hazards by isolation, control, or
personal protective equipment. Providing this list will make it clear
which hazards the employer already identified so that the entrants can
confirm that they received training to work around such hazards, and
will know to bring any other developing hazard to the attention of the
entrance supervisor immediately.
Paragraph (i). Final Sec. 1926.1206(i), which is identical to
Sec. 1910.146(f)(8) and corresponds to proposed Sec.
1926.1214(a)(2)(i)(B), requires the employer to record the procedures
used to isolate or control the hazards prior to entry. This information
must be consistent with the requirements specified in final Sec.
1926.1204(c), and must include the methods used to isolate or control
the hazards, the type of personal protective equipment provided, the
methods used to monitor each hazard (including the use of early-warning
systems, if required by final Sec. 1926.1204(e), and how frequently
each hazard is to be monitored). Note that
under final Sec. 1926.1204(e), employers must use continuous
monitoring of atmospheric hazards unless the employer demonstrates that
periodic monitoring is sufficient. The permit need only refer to the
procedures used to meet the requirements of this paragraph in
sufficient detail to enable employees to determine what measures they
must take, and how to perform those measures.
One commenter urged OSHA to require employers to identify the
name(s) of the person(s) who performed all of the hazard-isolation or
control procedures listed on the permit pursuant to Sec. 1926.1206(i),
such as the person(s) who operated a ventilation machine to control an
atmosphere (ID-0625, p. 4). OSHA notes that employers must already
include the names or initials of the person performing monitoring under
final Sec. 1926.1206(k). To the extent that the commenter intended to
ensure the accuracy of the tests and measurements associated with the
isolation or control procedures, OSHA notes that the entry supervisor
must already verify the accuracy of this information (Sec.
1926.1210(b)). Therefore, OSHA concludes that, in the absence of
additional evidence to indicate that these records would provide a
discernible safety benefit, the additional records suggested by the
commenter are not necessary.
Paragraph (j). Final Sec. 1926.1206(j), which is identical to
Sec. 1910.146(f)(9), requires the employer to specify the acceptable
entry conditions. The list of acceptable entry conditions includes
energy control considerations and conditions such as the permissible
levels allowed for oxygen, flammable gases and vapors, other hazardous
substances during PRCS entry. Additional information regarding PRCS
conditions includes, for example, the methods used to maintain a water
hazard at safe levels. Another example included in the NPRM is when an
employer decides to use PPE to protect employees from an atmospheric
hazard, the acceptable conditions must include, at a minimum, the type
of PPE the employees will use (such as type of respirator), and the
levels at which the PPE would protect the employees from the
atmospheric hazard. OSHA requires the employer to list the acceptable
conditions on the permit so that the authorized entrants, attendants,
and entry supervisors have this information on hand at the worksite,
thereby ensuring safe entry operations.
This provision also requires employers, when applicable, to provide
the ventilation-malfunction determinations made in paragraph (c)(5) of
final Sec. 1926.1204. As explained in the proposed rule, and above in
the discussion of final Sec. 1926.1204(c)(5), some permit spaces may
require ventilation to control the atmospheric hazards at levels that
are below the levels at which they are harmful to entrants so that
entrants will have time to exit the PRCS safely (72 FR 67365). In these
spaces, the employer will be responsible for identifying that level and
monitoring the permit-space atmosphere to detect any increase of the
potentially hazardous substance. The Agency's requirement that the
employer include these determinations on the permit informs employees
(for example, entry supervisors, attendants, and authorized entrants)
about the time required for the entrants to evacuate the PRCS should
the ventilation system fail, and allows authorized entrants,
attendants, and entry supervisors to respond quickly to any deviations
in these conditions, including ventilation-system failure.
OSHA notes, as it did in the explanation of this provision in the
general industry standard, that there is likely to be overlap between
this requirement to list the acceptable entry conditions and the
separate requirement in Sec. 1926.1206(i) to identify the hazard-
control or elimination measures that the employer must also list on the
permit (58 FR 4509 (Jan. 14, 1993)). The Agency anticipates that
employers may elect to combine these two elements when filling out the
permit, and such an approach is permissible so long as the employer
includes all of the relevant information in some form that the
authorized entrant, attendant, or entry supervisor can identify
quickly.
Paragraph (k). Final Sec. 1926.1206(k), which is nearly identical
to Sec. 1910.146(f)(10), requires the employer to record the dates,
times, and results of the tests and monitoring performed, and the names
or initials of the individuals who performed each test. Entering the
testing and monitoring results in the permit enables the entry
supervisor, attendants, and authorized entrants to determine readily
whether acceptable entry conditions exist with regard to atmospheric
hazards in the PRCS. The employer also could use this information to
identify atmospheric conditions within the PRCS that need to be
monitored frequently because atmospheric conditions tend to rise
rapidly to hazardous levels. For example, if the oxygen concentration
is 19.6 percent, the attendant and entrants should be alert for signs
of oxygen deficiency, such as increased breathing rate, dizziness,
rapid heartbeat, and headache. Furthermore, documentation of test
results on the permit also facilitates the review of canceled permits
required under paragraph (d)(14). If testing indicates that levels of
hazardous substances are increasing, the increased hazard will be easy
to recognize through a review of the recorded test results on the
canceled permit.
Listing the names of those who performed the testing identifies a
point of contact to which entry supervisors and attendants can direct
questions they may have regarding the results and procedures. The date
and time (or, for continuous monitoring, a time period) would provide a
basis for detecting dangerous trends in atmospheric conditions that may
indicate that more frequent observation of the atmospheric data is
necessary.
The single difference between the final rule and Sec.
1910.146(f)(10) is that the general industry provision requires
documentation of "initial and periodic testing," whereas final
paragraph (k) of this final standard requires documentation of the
results of all "tests" and "monitoring." OSHA made these changes to
address a significant difference between this final rule and Sec.
1910.146: This final rule generally requires continuous monitoring,
whereas Sec. 1910.146 only requires periodic testing. For further
explanation of this change, see the discussion to final Sec.
1926.1204(e).
Consistent with data collection from continuous monitoring under
Sec. 1910.146, the continuous monitoring values recorded on the entry
permit are "real time" concentrations. See December 10, 1996, letter
to Michael Coleman, available at www.osha.gov. Although the final
standard does not specify the frequency with which the employer must
record continuous monitoring measurements, from a compliance
perspective, the quantity of data entered on the permit must indicate
the number of times the entry supervisor or other entrant examined the
monitoring data. These measurements must be recorded with sufficient
frequency to demonstrate that the permit space was monitored such that
the employee could identify a change in atmosphere or other potential
hazard in time to allow entrants to exit the permit space safely (See
also discussion of Sec. 1926.1203(e)(2) and 1926.1204(e)(2).) For
continuous monitors with alarms, employers must record each time the
alarm is triggered. Employers also must include the initial entry-
monitoring results on the entry permit for the reasons explained above;
these results also would serve as a baseline for subsequent
measurements.
See December 10, 1996, letter to Michael Coleman, available at
www.osha.gov.
Paragraph (l). Final Sec. 1926.1206(l), which is identical to
Sec. 1910.146(f)(11), requires the employer to identify the rescue and
emergency services required by this final rule, and the means by which
these services will be summoned when needed. Identification of these
services and the means for summoning them enables attendants to summon
the appropriate service immediately in case of emergency. In some
cases, an employer must include pertinent information, such as
communication equipment and emergency telephone numbers, on the permit
to sufficiently identify the means by which the rescue or emergency
services will be summoned. The inclusion of this specific information
would allow attendants to avoid errors and delays in contacting the
rescue service.
Paragraph (m). Final Sec. 1926.1206(m), which is identical to
Sec. 1910.146(f)(12), requires the employer to record all of the
methods of communication used between authorized entrants and
attendants during entry operations. OSHA notes that establishing a
routine for maintaining contact between attendants and authorized
entrants would help attendants detect problems within the PRCS. OSHA
anticipates that the method of communication chosen may vary according
to the circumstances of the particular workplace; however, the methods
chosen must enable the attendants and the entrants to maintain
effective and continuous contact. OSHA notes that, while such
communication will normally be achieved through speech, other methods,
such as tapping on a wall, may be acceptable as long as it achieves
effective and continuous contact. See July 30, 1993, letter to Julie
Emmerich, available at www.osha.gov.
Paragraph (n). Final Sec. 1926.1206(n), which is identical to
Sec. 1910.146(f)(13), requires the employer to record the equipment it
provides in accordance with the requirements of this final rule. This
equipment would typically include, for example, personal protective
equipment, testing equipment, communications equipment (including
equipment needed to assess entrants' status in the space), alarm
systems, rescue equipment, and other equipment that the employer would
provide to ensure compliance with paragraph (d)(4) of final Sec.
1926.1204 (personal protective equipment) or any other part of the
standard. This requirement provides employees with a ready reference to
the equipment required for safe entry operations.
Paragraph (o). Final Sec. 1926.1206(o), which is substantively
identical to Sec. 1910.146(f)(14), requires the employer to record any
additional information needed to ensure safe confined space entry
operations. OSHA amended the language in Sec. 1910.146(f)(14) slightly
for clarity and conciseness. As OSHA explained in the preamble to the
general industry standard, this provision is necessary for employee
protection due to "the wide-ranging types of hazards found in permit-
required confined spaces, there are many hazards that cannot be
adequately addressed with any precision in a generic permit space
standard" (58 FR 4510 (Jan. 14, 1993)). Examples of the information
required by paragraph (o) may include: Problems encountered in the
PRCS; problems that an attendant, entry supervisor, or authorized
entrant believes may be relevant to the safety of the entrants working
in the space; or any other information that may be relevant to employee
safety under these conditions.
Paragraph (p). Final Sec. 1926.1206(p), which is identical to
Sec. 1910.146(f)(15), requires the employer to record information
about any other permits, such as for hot work, issued for work inside
the confined space. If the employer identifies additional permits,
these additional permits may be, but are not required to be, attached
to the entry permit to provide information about the activity covered
by the permit to employees involved in the entry operations so they can
take appropriate precautions.
Section 1926.1207--Training
Final Sec. 1926.1207 requires employers to train each employee who
performs work regulated by this standard, and specifies the
requirements of that training. The provisions in final Sec. 1926.1207
are substantively similar to the provisions in the general industry
confined spaces rule at Sec. 1910.146(g). The substance of the
training provisions in the proposed rule was similar to, but organized
differently than, the training provisions in the general industry rule.
The final rule includes a few provisions from the proposed rule to
provide clarity and to ease documentation, as explained below, but
follows the language and organization of the general industry standard.
Proposed Sec. Sec. 1926.1208, 1926.1213, 1926.1216, and 1926.1217
separated the training requirements based on the type of confined space
involved. One commenter asserted that, in general, the training
requirements were too scattered throughout the proposed rule (ID-099,
p. 4). By organizing the training provisions according to the training
provisions of the general industry confined spaces standard at Sec.
1910.146(g), OSHA placed the training requirements together in one
section.
Paragraph (a). Final Sec. 1926.1207(a) sets forth the requirement,
also found in Sec. 1910.146(g)(1), that employers must train each
employee who performs work regulated by this standard. OSHA modified
this provision from Sec. 1910.146(g)(1) to include some language from
the proposed rule and to clarify two aspects of this requirement: (1)
The employer must train each employee; and (2) the employer must
provide training at no cost to the employee. Final Sec.
1926.1207(a)(1) refers to "each employee" rather than "all
employees" to emphasize that an employer's responsibility in this area
flows separately to each employee. The provision of training at no cost
is implicit in the general industry standard, and is consistent with
OSHA's longstanding policy regarding employer responsibility for
training. See, e.g., 29 CFR 1926.1430(g)(3) (training under the Cranes
& Derricks in Construction standard), Sec. 1910.1001(j)(7)(iv)
(asbestos awareness training for employees who perform housekeeping
operation in an area that contains asbestos), and June 25, 1991,
Memorandum to Regional Administrators, # 20315 (training under the
HAZWOPER standard, 1910.120), available at www.osha.gov.
Paragraph (a) of the final rule also requires employers to provide
training so that employees who perform work regulated by part 1926,
subpart AA, acquire the understanding, knowledge, and skills necessary
for the safe performance of the duties assigned under that section,
including the safe operation of equipment and the proper use of PPE.
Sections 1926.1208, 1926.1209, 1926.1210, and 1926.1211 of this final
rule specify in detail the duties of authorized entrants, attendants,
entry supervisors, and rescue service personnel. Paragraph (a) requires
the training to impart the understanding, knowledge, and skills
necessary for the safe performance of the duties assigned under those
sections. OSHA believes that the training employers provide employees
under this provision will enable the employees to understand their
duties under this standard, as well as the hazards posed by permit
spaces, and to properly use equipment and PPE in a PRCS. Therefore,
this training will enable employees to safely perform their requisite
PRCS duties.
In this paragraph, the Agency is requiring the employer to provide
whatever training is necessary to achieve the goal of safe performance
of an employee's duties. The performance language used in paragraph (a)
will allow the employer to develop and implement the most effective
confined space training program to meet the needs of the specific
workplace. By requiring training of employees in Sec. 1926.1207, and
by specifying what those duties are in the relevant sections, the final
rule sets forth requirements regarding whom employers train, as well as
the content of the training.
This paragraph also incorporates a requirement found in proposed
Sec. 1926.1209(d)(1), which specifies that the training must result in
an understanding of the hazards in the permit space(s), and the
method(s) used to isolate, control, or in other ways protect employees
from the hazards. For example, if an authorized entrant enters the
space to isolate an identified hazard or to set up ventilation to
control an atmospheric hazard, the employer must train the employee not
only in accordance with the PRCS entry requirements, but also to
perform the tasks necessary to isolate and control the specific hazards
in accordance with other appropriate OSHA requirements applicable to
construction. The employer also must train each employee who enters the
space thereafter to understand how the employer isolated or controlled
any hazards in the space. OSHA believes that the training employees
receive under this provision will enable them to associate the signs,
symptoms, and characteristic effects (discussed elsewhere in this
preamble) to the failure of methods to control or isolate the hazards,
and to alert them so that do not inadvertently disturb the isolation or
control mechanisms. Therefore, this training will enable employees to
safely perform their duties while working in the PRCS, and to respond
appropriately if the hazard-protection methods fail.
Additionally, final Sec. 1926.1207(a) includes the requirement,
found in proposed Sec. 1926.1209(d)(2), that, for employees not
specifically authorized to perform entry rescue, their training must
result in an understanding of the dangers of attempting entry rescue.
This aspect of the training need not be extensive, as its purpose is to
prevent exposure to permit-space hazards by simply keeping all
employees who are not authorized to perform entry rescue out of such
spaces. OSHA prohibits such entry precisely because it is likely to
increase the risks of further injury to both the would-be rescuer and
the employee requiring rescue. In final Sec. 1926.1204(a) and (i), the
Agency also requires entry employers to take action to prevent all
unauthorized entry, but the training required by final paragraph (a)
remains crucial to overcome the inclination of many employees to
attempt to rescue a trapped colleague. If employees do not fully
appreciate the dangers involved, their actions might also pose a danger
to those employees designated to provide rescue.
Finally, some commenters asserted that the training requirements in
this final rule should require employers to train entrants on the use
of gas, propane, and diesel-powered equipment and chemical-cartridge
respirators (ID-025, p. 3; ID-095, p. 3). Final Sec. 1926.1207(a)
requires employers to ensure that employees acquire the knowledge and
skill to safely perform their duties, which includes training employees
on how to use all equipment used in the PRCS.
Paragraph (b). Final Sec. 1926.1207(b), which is substantively
similar to Sec. 1910.146(g)(2), requires the employer to provide
training to each employee covered by this standard, as specified by
paragraphs (b)(1)-(b)(5). One commenter requested that OSHA clarify
that the employer must provide this training in a language understood
by the employee (ID-140, p. 5). OSHA designed the training requirements
in final Sec. 1926.1207 to ensure that employees performing work
regulated by this final rule understand the hazards so that they can
take necessary precautions to perform their work safely. Therefore, the
employer must provide this training in a language the employee
understands, and ensure that the employee comprehends the training, to
achieve the purpose of the training requirements. Final Sec.
1926.1207(b)(1) incorporates the requirement that training be in both a
language and vocabulary that the employee understands, which is
consistent with OSHA's policy for all OSHA training requirements. See
April 28, 2010, OSHA Training Standards Policy Statement, available at
www.osha.gov. OSHA views this policy as applicable to all training
requirements in all OSHA standards, but is adding the language in this
standard for clarity.
Final Sec. 1926.1207(b)(2)-(b)(4) require that the employer
provide training before assigning the employee duties covered by this
final standard, when there is any change in duties, and whenever there
is a change in permit conditions that present a hazard for which the
employee did not previously receive training. These requirements are
substantively identical to Sec. 1910.146(g)(2)(i)-(g)(2)(iii). OSHA
believes the requirements in final Sec. 1926.1207(b)(2)-(b)(3) are
necessary to ensure that employers provide the training required by
final Sec. 1926.1207(a) at the appropriate times, that is, prior to
exposure to confined space hazards.
Final Sec. 1926.1207(b)(2), which is identical to Sec.
1910.146(g)(2)(i), requires employers to initially train their
employees before assigning them to perform duties under this standard.
Accordingly, the employer must ensure that specified employees (that
is, entry supervisors, attendants, authorized entrants, and rescue-
service employees) receive the training required by final Sec.
1926.1207(a) prior to performing assigned PRCS duties. This requirement
ensures that employers train these specified employees regarding PRCS
hazards before the employer exposes authorized entrants to these
hazards.
Final Sec. 1926.1207(b)(3) and (b)(4) are substantively identical
to the general industry standard at Sec. 1910.146(g)(2)(ii) and
(g)(2)(iii). They address the issue of refresher training. Final
paragraph (b)(3) requires training before there is a change in assigned
duties. Such changes could be the result of new equipment or techniques
introduced into the entry operations, promotions, or simple
reassignments. If an employee previously received training in the new
duties and the employer ensures that the employee is still familiar
with the previous training, then the employer need not conduct
additional training under this paragraph, provided the employer has no
evidence that there are inadequacies in the employee's knowledge or use
of the relevant permit-space procedures. If there is evidence that such
inadequacies exist, the employer must retrain the employee under final
paragraph (b)(5).
Paragraph (b)(4) similarly requires retraining if there is a change
in permit-space entry operations that presents a hazard for which an
employee did not previously receive training. This paragraph changes
the phrase "permit space operations," from the general industry
standard at Sec. 1910.146(g)(2)(iii), to "permit space entry
operations" for the reasons explained in the introduction to the
discussion of final Sec. 1926.1204. One commenter was unsure whether
minor revisions of procedures, such as an increase in the use of
mechanical ventilation, would trigger the training requirements of
final Sec. 1926.1207(b)(3) (ID-099, p. 3). The relative significance
of the change in procedures does not determine the need for additional
training; employers must ensure that employees can perform their duties
safely, so any change in PRCS entry procedures for which an employee
did not receive previous training would necessitate training under this
final rule to the extent it requires new knowledge or skill by the employee.
Final Sec. 1926.1207(b)(5) provides that an employer must retrain
an employee whenever the employer has any evidence that the employee
has deviated from PRCS entry procedures or inadequacies in the
employee's knowledge or use of these procedures. This provision is
substantively identical to the general industry standard at Sec.
1910.146(g)(2)(iv), but this final provision clarifies that retraining
must occur when there is evidence of deviation, a change from the
phrase "reason to believe" in the general industry standard. OSHA
believes the term "evidence" will be clearer than the general
industry language for both employers and OSHA inspectors. By making
this revision, OSHA does not intend to make a substantive difference in
the types of employee actions or other factors that would trigger the
retraining requirement. Evidence of a need for retraining may come from
a variety of sources, such as an employee's actions during, or prior
to, an entry, statements made that indicate a lack of understanding of
permit-space entry procedures, reports of other employees or third
parties, or from other incidents.
One commenter asserted that requiring retraining after every
deviation is overly burdensome. (ID-120, p. 3.) This commenter
suggested that OSHA require the employer to establish a better line of
communication and coordination when the deviation is not too severe.
However, the commenter did not suggest a means of identifying the
severity of a deviation. In light of the hazards associated with
confined spaces, and the procedures implemented to address those
hazards, the failure of even one employee to follow the correct
procedure can adversely affect the safety of others. OSHA, therefore,
concludes that it is necessary to retrain any employee who deviates
from the approved entry procedures. This retraining must provide the
employee with the knowledge and skills necessary for safe performance
of his or her confined space duties in accordance with final Sec.
1926.1207(a), although the employer may restrict retraining to the
limited aspect of the employee's overall responsibility on which the
employee made the deviation. For example, if employee failed to use a
piece of equipment properly, the retraining could focus on the proper
use of that equipment, and need not focus on areas unrelated to the
deviation, such as the hazards associated with the atmosphere in the
space.
Paragraph (c). Final Sec. 1926.1207(c), which is identical to the
general industry standard at Sec. 1910.146(g)(3), requires an employer
to establish that the employee is capable of performing his or her
confined space duties proficiently, and to provide any supplemental
training needed to make the employee proficient. This provision ensures
that employees will not enter a PRCS without being able to apply the
knowledge and procedures addressed in their training. In other words,
the employer must determine that, for each employee, the training is
effective and resulted in the employee being capable of performing the
required duties proficiently.
Some commenters were unsure how an employer can demonstrate that an
employee is proficient under final Sec. 1926.1207(c) (ID-106, p. 2; -
120, p. 3; -152, p. 3). Final Sec. 1926.1207(c) is a performance-
oriented measure that provides employers with flexibility by not
requiring a particular way to demonstrate proficiency. Administration
of a test or practical examination are some examples of how an employer
may demonstrate an employee's proficiency.
Paragraph (d). Final Sec. 1926.1207(d), which is substantively
similar to the general industry standard at Sec. 1910.146(g)(4),
requires an employer to "maintain training records," as opposed to
the requirement in Sec. 1910.146(g)(4) that employers "certify"
training. This final paragraph also requires employers to document the
names of employees trained, the trainer's name, and the dates of the
training performed, and to make these records available for inspection
by employees and their authorized representatives. Final Sec.
1926.1207(d) differs from the general industry standard in that it
provides more flexibility in the documentation of training, and it
requires the retention of this documentation.
The training-documentation provision in final paragraph (d)
requires only the name of the trainer, not the trainer's signature or
initials as required in the general industry standard. Proposed Sec.
1926.1209(d)(5) contained these more flexible requirements, and OSHA
retained them in the final rule. This documentation can take any form
that reasonably demonstrates the employee's completion of the training.
Examples include a record of test scores, a photocopied card certifying
completion of a class, or any other reasonable means. The employer may
store these records electronically so long as they are readily
accessible upon request. OSHA recognizes that the turnover rate for
employees on construction sites is higher than in many other
industries, and that employees also are likely to work at several
different worksites based on the type of work required. For example, an
employer could designate an employee to be an authorized entrant in
several different confined spaces at the same worksite, which may
require the employee to perform different assigned tasks under various
planned conditions. In this situation, the documentation must be
readily accessible to determine whether the employee received the
training necessary to perform the various tasks under the planned
conditions. Compliance with this provision will help ensure safe
conditions within the PRCS by providing employers, and OSHA, with an
administrative tool that they can use to confirm which employees will
be able to perform the duties required by this standard. Section
1926.1207(d) requires, as the general industry standard does, that
these training records must be available for inspection by employees
and their authorized representatives. Permit-space employees rely on
their fellow employees for safe entry operations, and this provision
provides that the training records that document employees' training
status be available to those employees and their representatives. This
requirement can be especially important in the construction industry
due to the high level of employee turnover and multiple employers
present at construction sites, including different employers who
conduct simultaneous entry where one employer's lack of training for
its employees could jeopardize the fully trained employees of a
different employer. Consequently, making these records available for
inspection by employees and their representatives provides an
additional level review to ensure that the employees received the
proper training and are ready to engage in safe entry operations.
One commenter was unsure whether the final standard would require
an employer to maintain the name of the person that provides general
confined space training as well as "for the specifics of this PCRS."
(ID-098, p. 2). OSHA is uncertain of what training the commenter is
referring to. To the extent that the commenter was referring to
training required by this final rule, final Sec. 1926.1207(d) requires
the employer to record the name of the person who conducted the
training. To the extent the commenter was referring to training
required by a different rule, the comment is not applicable to this
rulemaking.
As in this final rule, proposed Sec. 1926.1219(c) required that
employers retain these training records for the time the employee
remains employed by them. The general industry confined spaces standard
at Sec. 1910.146(g)(4) does not specify how long an employer must
retain the documentation. These training records are a valuable
resource for tracking whether an employee received the necessary
training. If these records are to serve as a tool to confirm employee
training, the records must be available during the period the employee
is working for the employer. Once the employee ceases to work for the
employer, there is no longer a significant benefit in tracking this
information. Therefore, OSHA is keeping in the final rule the proposed
requirement that an employer must retain training documentation until
the employee ceases to work for the employer.
One commenter had several concerns about the retention of training
records. First, the commenter asserted that this retention requirement
is an unnecessary burden on employers (ID-099, p. 4). OSHA's experience
under the documentation requirements of other standards indicates that
employers typically use existing training records to meet these
documentation requirements and, as explained above, final Sec.
1926.1207(d) allows significant flexibility in the form of the records
and how an employer must store them. Next, the commenter was unsure
whether final Sec. 1926.1207(d) requires an employer to maintain
training records when the employer lays off an employee and then
rehires him or her (id). In the event an employee ceases to work for
the employer, final Sec. 1926.1207(d) does not necessarily require the
employer to continue to maintain or store the training records;
however, there is an incentive for the employer to retain these records
if there is a possibility that the employer might re-hire the employee,
as in the example offered by the commenter. The standard does require
the employer to maintain a set of training records for all employees
performing confined space work, regardless of when the employer hired
the employee, so if the employee is rehired the employer would be
required to produce that employee's training records or retrain the
employee. This commenter also asserted that employers should be free to
establish their own policy for retaining training records (id). Final
Sec. 1926.1207(d) leaves the employer with discretion in developing
its training-documents retention policy, and requires retention only
until the employee ceases to work for the employer.
Another commenter asserted that final Sec. 1926.1207(d) should
require employers to keep these training records on site (ID-031, p.
1). OSHA finds that such a requirement would be an unnecessary burden
on employers. The purpose of the final requirement is to ensure that
employers can document their employees' training in case an issue
arises with respect to the training (e.g., whether the employee
received training, whether the training was adequate). Though the
training records need to be readily available, it is not necessary for
the employer to have immediate access to these records at the site.
Requiring the employer to maintain the records and make them readily
accessible for inspection, even offsite and/or in electronic form, is
sufficient to accomplish the purpose of the provision.
Section 1926.1208--Duties of Authorized Entrants
An authorized entrant is an employee authorized by an entry
supervisor to enter a permit space. As the Agency noted in the preamble
to the general industry standard, "[T]his is the person who faces the
greatest risk of death or injury from exposure to the hazards contained
within the space" (58 FR 4515 (Jan. 14, 1993)). Because of the dangers
associated with confined space work, employers must prepare the
entrants properly to perform duties so as to assure their own safety
and the safety of their fellow entrants. The employer accomplishes this
purpose by means of training, communication of effective work rules,
and internal administration.
Final Sec. 1926.1208 is nearly identical to the general industry
requirements in Sec. 1910.146(h), except for minor editorial revisions
and a revision in the introductory text to improve clarity. The
introductory language in Sec. 1910.146(h), which sets out requirements
for authorized entrants, refers generally to the duties of "the
employer." OSHA changed the introductory language to refer to "the
entry employer" to clarify how this rule applies on multi-employer
worksites. This is a non-substantive change, however, because the
provisions in Sec. 1926.1208 apply to each employer establishing the
permit program for a permit space or allowing its employees to enter
under another employer's program.
The authorized entrant duties also are substantively the same as
the duties specified by proposed Sec. 1926.1211(g), except as noted in
the discussion below. The Agency did not receive any comments
specifically addressing that provision of the proposed rule.
Paragraph (a). Final Sec. 1926.1208(a), which is substantively
identical to the general industry standard at Sec. 1910.146(h)(1),
requires an employer to ensure that an authorized entrant is familiar
with and understands the potential hazards associated with each
particular confined space entry, including the mode, signs or symptoms,
and the consequences of exposure to these hazards. The final rule uses
"familiar with and understands," rather than the "knows" used in
the general industry standard, to emphasize the employee comprehension
required by the rule. This knowledge and understanding affords
authorized entrants with the information they need to protect
themselves from these hazards, including recognition of the effects of
these hazards should exposure occur.
Paragraph (b). Final Sec. 1926.1208(b), which is substantively
identical to the general industry standard at Sec. 1910.146(h)(2),
requires an employer to ensure that an authorized entrant uses required
equipment properly. OSHA believes that proper use of such equipment is
essential for working safely inside a PRCS and preventing any rescue
operation from harming the incapacitated authorized entrant. Many
employers can meet this requirement through implementation of safe work
practices, training, and effective enforcement of those practices.
Paragraph (c). Final Sec. 1926.1208(c), which is substantively
identical to the general industry standard at Sec. 1910.146(h)(3),
requires an employer to ensure that an authorized entrant communicates
effectively with the attendant to facilitate the attendant's adequate
assessment of the entrant's status and timely evacuation (see also the
discussion attendant-entrant communications in the explanation of Sec.
1926.1206(m)). The authorized entrant's communication with the
attendant provides the attendant with information regarding any
problems the entrant is having, which the attendant can use to
determine whether there is a need to evacuate the PRCS.
Paragraph (d). Final Sec. 1926.1208(d), which is similar to the
general industry standard at Sec. 1910.146(h)(4), requires an employer
to ensure that an authorized entrant alerts the attendant whenever one
of the following circumstances arises: (1) There is a warning sign or
symptom of exposure to a dangerous situation; or (2) the entrant
recognizes a prohibited condition. In some instances, a properly
trained authorized entrant may be able to recognize and report his
or her own symptoms, such as headache, dizziness, or slurred speech,
and take the required action. In other cases, the authorized entrant,
once the effects begin, may be unable to recognize or report them. In
these latter cases, this provision requires that other, unimpaired,
authorized entrants in the PRCS, who employers must properly train to
recognize signs, symptoms, and other hazard-exposure effects in other
authorized entrants, report these effects to the attendant. Reporting
these effects will ensure the safety of the authorized entrants by
removing them from the hazardous conditions in a timely manner.
Paragraph (d)(1) differs slightly from the corresponding general
industry provision at Sec. 1910.146(h)(4)(i). The general industry
provision requires an employer to ensure that an authorized entrant
alerts the attendant when "the entrant recognizes" a dangerous
situation. Final Sec. 1926.1208(d)(1) requires an employer to ensure
that an authorized entrant alerts the attendant whenever "there is . .
. a dangerous situation." OSHA made this change to make the
requirement objective, and not contingent on the subjective belief of
an authorized entrant about the level of danger. For example, if an
entrant knocks over a container of sealant that was not scheduled to be
opened until later, thereby releasing hazardous fumes into an
inadequately ventilated permit space, the final rule makes it clear
that the entrant has a duty to report the incident to the attendant
immediately. The employer must ensure that the entrant is adequately
prepared to identify such an incident as a dangerous situation, and the
entrant's failure to do so would not excuse the entrant or employer
from that duty.
By using language closer to that in the general industry, OSHA has
deviated slightly from the equivalent requirement in the proposed rule,
Sec. 1926.1211(g)(3), which required the authorized entrant to alert
the attendant of "any sign, symptom, unusual behavior, or other effect
of a hazard." OSHA retained the reference to a "symptom" from the
proposed rule, but believes that the reference to the "dangerous
situation" in the general industry standard provides slightly broader
coverage than the proposed language. Under the general industry
standard and this final rule, attendants would need to be aware, for
example, of an entrant experiencing a heart attack or other condition
unrelated to the conditions in the confined space, but which might
nevertheless affect that entrant and/or other entrants in the space.
However, the general industry language incorporated into the final rule
provides sufficient specificity regarding the conditions covered by the
provision, and employers and authorized entrants are familiar with the
language, having used it for years in general industry work (and in
construction work if they chose to voluntarily follow the general
industry requirements). Other examples of exposure to a dangerous
situation that an authorized entrant must report to the attendant under
paragraph (d)(1) or (d)(2) include: Low measurements of supplied air in
a closed-respirator system; fraying or snagging of a retrieval line; a
leak allowing an unidentified substance to enter the confined space
through the walls of the space or from a container brought into the
space; sparks or other evidence of potential electrical malfunction
(particularly in areas where flammable gases are present); and any
changes identified by the entrant in his or her physical condition or
the physical condition of another entrant (e.g., dizziness, chest
pains, vertigo, breathing difficulty, trembling, etc.).
Paragraph (e). The introductory language in final Sec.
1926.1208(e), which is identical to the general industry standard at
Sec. 1910.146(h)(5), requires an employer to ensure that an authorized
entrant exits from the confined space whenever one of circumstances
identified in final Sec. 1926.1208(e)(1)-(e)(4) arises.
Final Sec. 1926.1208(e)(1), which is similar to the general
industry standard at Sec. 1910.146(h)(5)(i), requires an employer to
ensure that an authorized entrant exits from the confined space
whenever the attendant or entry supervisor orders an evacuation. It is
essential that the authorized entrants quickly comply with the command
to evacuate, particularly because the attendant or entry supervisor may
be aware of a hazard that the authorized entrant has not detected. Even
when there is disagreement between the entry supervisor and attendant
as to whether to evacuate, this provision requires the employer to
enforce orders to evacuate given by either the entry supervisor or the
attendant. OSHA believes this provision is necessary because
emergencies within a confined space are time sensitive, and the entry
supervisor and attendant may have different information regarding the
types or severity of the hazards in the PRCS.
Final Sec. 1926.1208(e)(2), which is similar to the general
industry standard at Sec. 1910.146(h)(5)(ii), requires an employer to
ensure that an authorized entrant exits from the confined space
whenever there is a warning sign or symptom of a dangerous situation.
The phrase "warning sign or symptom of a dangerous situation" has the
same meaning as in final paragraph (d) of this section. As with final
paragraph (d), and for the same reason, final paragraph (e)(2) differs
slightly from the corresponding general industry provision at Sec.
1910.146(h)(5)(ii) because final Sec. 1926.1208(e)(2) requires an
employer to ensure that an authorized entrant exits the space whenever
"there is . . . a dangerous situation," rather than whenever "the
entrant recognizes" a dangerous situation. This provision requires
authorized entrants to exit the PRCS as quickly as possible in such
cases because the safety procedures delineated in the permit are
designed to work in the context of clearly defined acceptable entry
conditions, and deviations from the planned measures therefore require
timely evacuation to ensure the health and safety of the entrants
pending evaluation of the dangerous situation.
Final Sec. 1926.1208(e)(3), which is identical to the general
industry standard at Sec. 1910.146(h)(5)(iii), requires an employer to
ensure that an authorized entrant exits from the confined space
whenever the entrant detects a prohibited condition, as defined in
final Sec. 1926.1201. This requirement ensures that employees exit the
confined space if there is any prohibited condition, such as a
hazardous atmosphere or uncontrolled physical hazard, in the space.
Exiting the space upon detecting a prohibited condition will prevent
serious injury or death to the entrants. Other examples of prohibited
conditions include, but are not limited to, the emergence of a new
hazard, a hazard level that exceeds acceptable entry conditions, or
personal protective equipment that is not working as planned. In such
circumstances, authorized entrants must exit the space to protect their
health and safety.
Final Sec. 1926.1208(e)(4), which is identical to the general
industry standard at Sec. 1910.146(h)(5)(iv), requires an employer to
ensure that an authorized entrant exits the confined space whenever an
evacuation alarm sounds. Examples of these alarms include, but are not
limited to, atmospheric or engulfment-hazard monitor alarms or alarms
activated by an authorized entrant or other employee. This provision
ensures that entrants in a PRCS exit the space in a timely manner upon
activation of an evacuation alarm warning them of an impending danger,
thereby preventing serious injury or death to the entrants.
Section 1926.1209--Duties of Attendants
In final Sec. 1926.1209, OSHA sets out the duties of the attendant
required by final Sec. 1926.1204(f) as part of every permit program.
The general industry standard recognizes the need for an attendant
outside permit spaces, and the preambles for final Sec. 1926.1204(f)
and the general industry standard at 58 FR 4517 (Jan. 14, 1993),
explain the need for these attendants. One of the major problems in
permit space entry operations is that, if an entrant within the space
is injured or incapacitated in the space, he or she cannot normally be
seen from outside the space, so the attendant is critical to
recognizing quickly any injury or incapacitation so that the employer
can initiate the applicable rescue operation as soon as possible. The
attendant also plays a critical role in protecting employees inside the
confined space from unauthorized entries and potentially hazardous
conditions outside the confined space that could affect the workers
inside the confined space.
The provisions in final Sec. 1926.1209 are substantively identical
to the provisions in the general industry confined spaces rule, except
as noted below. The introductory language to Sec. 1910.146(i) refers
to "the" employer. As in the introductory language for many of the
provisions in the final rule, OSHA refers to "the entry employer" in
the introductory language of Sec. 1926.1209 to clarify how this rule
applies on multi-employer worksites.
The attendant duties are also similar to the duties specified in
proposed Sec. Sec. 1926.1210(f) and 1926.1211(f). The final rule does
not include a paragraph found in proposed Sec. 1926.1211(f)(9), which
expressly prohibited attendants from entering a confined space to
perform rescue. OSHA did not include this paragraph because the
prohibition is clear from the general industry standard language
incorporated into the final rule, i.e., employers must ensure that
attendants never enter a confined space, whether it is to perform
rescue or for any other purpose, unless another person assumes the
duties of the attendant, and the attendant is properly trained for
rescue activity. See Sec. 1926.1209(d) and its Note. In this way, the
final rule provides more flexibility to employers than the proposal.
Paragraph (a). Final Sec. 1926.1209(a), which is almost identical
to the general industry standard at Sec. 1910.146(i)(1) (except for
non-substantive clarifications), requires an employer to ensure that
each attendant is familiar with hazards that he or she may encounter
during entry, as well as the signs and consequences of such exposures.
Section 1910.146(i)(1) requires an employer to ensure that each
attendant "knows" the hazards that he or she may encounter during
entry. OSHA replaced "knows" with "is familiar with and
understands" in the final rule to emphasize that the element of
comprehension is critical to the attendant's ability to fulfill his or
her duties. Attendants must be able to recognize when entry conditions
in the PRCS are unacceptable--that the system of employee protection is
malfunctioning. Because attendants would be able to easily communicate
with entrants and entry supervisors, their recognition of deviations
from acceptable entry conditions, and of the signs, symptoms, and
characteristic effects that indicate exposure to a hazard, will enable
a timely evacuation from the PRCS. For additional information
concerning the signs and symptoms of exposure, see the discussion of
Sec. 1926.1208(d) in this preamble.
Paragraph (b). Final Sec. 1926.1209(b), which is identical to the
general industry standard at Sec. 1910.146(i)(2), requires the
attendant to be aware of the potential behavioral effects of hazard
exposure to authorized entrants. While there is overlap between this
requirement and the requirement to be familiar with and understand
signs and symptoms of exposure, the same overlap exists in the general
industry standard and OSHA is preserving the separate requirements for
consistency with the general industry standard and to emphasize the
importance of recognizing behavioral changes as possible evidence of
hazard exposure. OSHA believes this requirement is necessary because
the attendant is likely to be in a position to quickly recognize
deteriorating conditions within the space and readily communicate the
need for an immediate evacuation. For instance, subtle behavioral
changes or effects detected in an entrant's speech, or deviations in
established communication procedures, would alert the attendant that it
is necessary to initiate the procedure to evacuate or rescue the
entrant from the space.
Paragraph (c). Final Sec. 1926.1209(c), which is identical to the
general industry standard at Sec. 1910.146(i)(3), requires the
attendant to maintain an accurate count at all times of authorized
entrants, and to ensure that the method used to identify entrants under
final Sec. 1926.1206 of this section is accurate. In emergency
situations requiring evacuation, the count and identification of
entrants is necessary to determine whether evacuation of all authorized
entrants from the space occurred, and that no unauthorized entrants
remain in the space. This information can then be relayed, if
necessary, to rescue workers.
Paragraph (d). Final Sec. 1926.1209(d), which is identical to the
general industry standard at Sec. 1910.146(i)(4), requires the
attendant to stay outside of the permit space during entry operations
until he or she is relieved by another attendant. One of the main
duties of the attendant is to recognize hazardous conditions that are
occurring inside the PRCS, and to communicate this information to
rescue personnel in emergency situations. The attendant is also often
the first (and sometimes only) person to recognize prohibited
conditions or signs of hazardous conditions within the space. If the
attendant was inside the space, the attendant could become
incapacitated if an emergency occurred, or the entrants are exposed to
prohibited conditions, and consequently rendered unable to perform the
duties that are necessary to protect the other employees.
OSHA included a note to final Sec. 1926.1209(d) that is
substantively the same as the note in the general industry standard.
OSHA reorganized the sentence structure of the note in the final rule
to clarify that the attendant cannot attempt rescue until properly
relieved, and then only if the attendant is permitted to do so under
the permit program and adequately trained and equipped for entry
rescue. However, the final rule permits the attendant to perform non-
entry rescue so long as the attendant receives proper training to do
so. If the attendant is performing his or her duties in multiple
spaces, the attendant also must order the entrants in those other
spaces to exit the spaces while the attendant is involved in the
rescue, or ensure that another person assumes the attendant duties for
the other spaces.
Paragraph (e). Final Sec. 1926.1209(e), which is nearly identical
to the general industry standard at Sec. 1910.146(i)(5), requires the
attendant to communicate with authorized entrants as necessary to keep
track of the entrants' status and to notify entrants if evacuation
under final Sec. 1926.1209(f) of this section is necessary. OSHA
believes that this communication provides information that the
attendant needs to determine if the entry can continue. For example,
subtle behavioral changes detected in the entrant's speech, or
deviations from set communication procedures, could alert the attendant
that it is necessary to evacuate or rescue the entrant. This
requirement may assist the attendant in fulfilling the duties to
identify signs and
symptoms of exposure or behavioral changes (see paragraphs (a) and (b)
of this section). In addition, if the need arises, the attendant must
communicate to the entrants an order to evacuate because the entrants
may not know that there is an emergency.
In the final rule, OSHA requires the attendant to stay in
communication to "assess" the entrant's status, rather than to
"monitor" it as required in the general industry standard. While
there is no substantive difference between these terms, OSHA uses
"assess" because "monitor," as defined in the final standard,
refers to the identification and evaluation of hazards in a confined
space. Assessment connotes an interactive duty in which the attendant
may ask questions of the entrant, or ask the entrant to perform a task
so the attendant can evaluate the entrant's status.
As with the general industry standard, the attendant's
"communication" with the entrant may take different forms depending
on the limitations of the particular permit space. In most instances,
the attendant could use voice communication, including communication by
phone, walkie talkie, or other device that provides a clear and
continuous means of communication with the entrant. In other cases,
alternative methods, such as tapping on the walls of the space to allow
for assessment through a pre-arranged code, may be sufficient to
satisfy Sec. 1926.1209(e). See, e.g., July 30, 1993, letter to Julie
Emmerich.
Paragraph (f). Final Sec. 1926.1209(f), which is almost identical
to the general industry standard at Sec. 1910.146(i)(6), requires the
attendant to assess the activities and conditions inside and outside
the space to determine if it is safe for entrants to stay in the space.
OSHA again uses "assess" instead of "monitor" for the same reason
discussed above in final Sec. 1926.1209(e). OSHA refers to
"activities and conditions" in the final rule, as opposed to just
"activities" in the general industry standard, for internal
consistency within this provision. In the same paragraph, OSHA requires
the attendant to evacuate the permit space under any of the four
"conditions" listed in final Sec. 1926.1209(f)(1) through (f)(4):
(1) The attendant notices a prohibited condition, (2) the attendant
identifies the behavioral effects of hazard exposure in an authorized
entrant, (3) there is a condition outside the space that could endanger
the authorized entrants, or (4) the attendant cannot effectively and
safely perform the duties required under final Sec. 1926.1209. Thus,
it is necessary for the attendant to assess both the activities and
conditions affecting the entrants.
In the general industry standard, OSHA requires the attendant to
order evacuation "if the attendant detects" a prohibited condition,
certain behavioral effects, or a condition outside the space that could
endanger the entrants. See Sec. 1910.146(i)(6)(i) through (i)(6)(iii).
OSHA did not include the quoted language in the final rule because
existing conditions, not detection by the attendant, trigger the duties
in final Sec. 1926.1209(f)(1) through (3). OSHA believes that each of
these conditions represents potential precursors to serious safety
hazards that threaten the health and well-being of employees working in
and near the PRCS, and the employer has a duty to ensure that the
attendant detects them.
One of the conditions that triggers evacuation is a situation that
arises outside the permit space that could endanger the workers inside
the space. See final Sec. 1926.1209(f)(3). This requirement also is
specified in the general industry standard. Under final Sec.
1926.1203(h)(4) and Sec. 1926.1204(k), the employer must develop and
implement procedures to coordinate entry operations with other
employers working outside the confined space when the activities of
those employers could, either alone or in conjunction with the
activities within a permit space, foreseeably result in a hazard within
the confined space. In most cases, employers will perform such
activities outside the space in close proximity to the permit space,
and the attendant must be aware of the applicable coordination
procedures to identify any deviation and evacuate the entrants if the
deviation makes it unsafe for the entrants to remain in the permit
space. While not required to do so, the attendant may take steps to
stop activities that do not conform to those procedures, either
directly or by notifying the entry supervisor and the controlling
contractor, provided that doing so does not interfere with the
attendant's ability to fulfill the duties required by Sec. 1926.1209.
However, if the employer does not address the potentially endangering
activities immediately, the attendant must evacuate the entrants.
Consider, for example, a situation in which employees are working
inside a storm-sewer permit space that is not isolated from the general
storm sewer system. If someone within the view of the attendant is
setting up for an activity that will discharge water into the upstream
portion of the storm sewer system, the attendant must alert the entry
supervisor, and may call to the person setting up the discharge system
to request that the person not discharge water into the storm sewer
until the employees in the storm sewer have completed their work. If
the potential pumpers refuse to wait, then the attendant must order the
immediate evacuation of the permit space. See Sec. 1926.1209(f)(3).
Other examples of conditions or activities outside a permit space
that would require the attendant's attention include the placement of
potentially hazardous items near a ventilation intake source (e.g., an
open container of epoxy or gasoline-powered equipment emitting
exhaust), or physical conditions that could affect the permit space
(e.g., heavy rains outside a below-ground permit space).
One commenter asserted that requiring an attendant to evaluate
confined space hazards inside and outside a ground storage tank exposes
the attendant to both fall hazards and struck-by hazards (ID-210, Tr.
p. 223). For example, a situation in which the tank does not have a
ground level entrance, and the attendant must climb a vertical fixed
ladder to gain access, exposes the attendant to a fall hazard. However,
this comment fails to recognize that the standard would permit the
attendant to use electronic monitoring and communications or other
means to fulfill the duties in Sec. 1926.1209. Thus, depending on the
circumstances of the space, the attendant might only need to physically
approach the entrance of the permit space to perform non-entry rescue
if non-entry rescue is appropriate (the retrieval equipment would not
increase the overall risk of entry and would contribute to the rescue
of the entrant), and then only when assigned and trained to do so. In
addition, if the attendant encounters a hazard not covered by the
confined spaces standard (e.g., a fall hazard), the employer must
comply with the relevant OSHA requirements that address the hazard
(e.g., 29 CFR part 1926, subpart M, for fall hazards).
More importantly, it appears that the commenter also is challenging
the general need for an attendant by asserting that an attendant is
unnecessary when the employer is performing work inside an above-ground
storage tank (ID-210, Tr. p. 223). In these situations, so long as the
space meets the definition of a permit-required confined space, an
attendant is necessary for safe entry operations. Although the person
designated by the employer as attendant is not assigned the overall
responsibility for employee safety and health assigned to the entry
supervisor, the attendant is a crucial link in the communication chain
between the entry supervisor, rescue operations, and the authorized
entrants. For additional explanation of the importance of the
attendant's role, see the introductory discussion of Sec. 1926.1209.
It is extremely important that attendants understand their duties,
stay in contact with the entrants, and remain alert to conditions
inside and outside the PRCS. The attendant may be in the best position
to warn the entrants of hazardous conditions developing outside the
space and impending danger within the space, and to recognize physical
and behavioral changes in the entrants that indicate that conditions
within the space may be deteriorating. Should the entrant become
incapacitated, the attendant often is an entrant's only contact with
individuals outside the confined space. Therefore, the attendant is
necessary to detect emergencies that develop in the space, and to
summon emergency assistance before it is too late to prevent injury or
death to the entrant.
Another commenter suggested that OSHA make it explicit that the
attendant must remain outside the confined space when monitoring
atmospheric conditions of the confined space (ID-132, p. 3). This
additional language is unnecessary because final Sec. 1926.1209(d)
already requires attendants to remain outside the confined space while
fulfilling all of their duties under this section, including the duties
specified in Sec. 1926.1209(f).
Paragraph (g). Final Sec. 1926.1209(g), which is identical to
Sec. 1910.146(i)(7), requires the attendant to call upon rescue and
other emergency services as soon as he or she decides that authorized
entrants may need assistance to escape from permit space hazards. This
provision is necessary to ensure that rescue of authorized entrants
occurs as soon as possible to maximize their chance of survival and
limiting their injuries, as well as minimizing risk of injury to the
rescue-service employees. The Agency notes that in some situations, the
attendant may be the person designated to perform non-entry rescue and,
therefore, may simply commence that rescue. If other personnel are
necessary for non-entry rescue, or if entry rescue is necessary, then
the attendant must summon those personnel immediately.
One commenter noted that the parallel language in proposed
paragraph Sec. 1926.1211(f)(6) did not specifically require the
attendant to "summon" the rescue service (only to "inform" them),
and requested that OSHA insert language requiring that action (ID-210,
Tr. p. 357). OSHA responded to this comment by adopting the language of
the general industry standard in final Sec. 1926.1209(g).
Paragraph (h). Final Sec. 1926.1209(h), which is identical to the
general industry standard at Sec. 1910.146(i)(8), requires the
attendant to take the actions specified in Sec. 1926.1209(h)(1)
through (h)(3) to prevent unauthorized persons from entering a permit
space while entry is taking place. OSHA recognizes that there are
individuals who may mistakenly believe that they are to work on a task
in the space, or who may simply wander by or attempt to enter into the
space unaware of the dangers of the PRCS. Final Sec. 1926.1203(b)
requires the employer to notify the controlling contractor and other
specified employees, as well as the employees' authorized
representatives, about the location of, and dangers posed by, the
space. However, if someone other than an authorized entrant happens to
approach the PRCS, Sec. 1926.1209(h)(1) specifies that the attendant
must make that individual aware that he/she must stay away from the
PRCS. Some construction sites may be accessible to the public, so the
attendant also would be responsible for warning members of the public
who may attempt to enter a permit space at the site. Should an
unauthorized person enter the PRCS, paragraph (h)(2) of Sec. 1926.1209
requires the attendant to advise him/her to exit the space immediately.
This provision protects employees who enter permit spaces without
proper authorization, training, or equipment, from the hazards of the
permit space, and prevents injury to the entrants already in the permit
space from the actions of unauthorized entrants and the items they may
carry into the space.
Because an attendant may not have supervisory authority, or because
the errant individual may work for another employer at a multi-employer
construction site, an attendant may not have the authority to stop
unauthorized individuals from entering the PRCS, or to require them to
exit once they are inside the space. Therefore, paragraph (h)(3) of
Sec. 1926.1209 requires the attendant to notify the entry supervisor,
along with the authorized entrants, of this situation, and to evacuate
if necessary, as unauthorized entry will typically create a prohibited
condition under the permit. Accordingly, OSHA does not encourage or
require attendants to expose themselves to potential harm by physically
preventing entry to any person.
Paragraph (i). Final Sec. 1926.1209(i), which is identical to the
general industry standard at Sec. 1910.146(i)(9), requires employers
that designate attendants to perform non-entry rescues to ensure that
the attendants perform these rescues in accordance with the employer's
rescue procedure. When properly executed, the attendant's performance
of non-entry rescue can be the fastest and most effective means of
successfully rescuing an entrant, while preventing injuries and deaths
that may result from improperly executed entry rescue operations.
However, if the employer designates the attendant to perform non-entry
rescue but does train the attendant to perform non-entry rescue, or if
the attendant does not operate winching equipment or perform other
components of the rescue in accordance with the proper procedures, then
the result could render the rescue ineffective and endanger the
attendant (e.g., improper line retrieval could cause the attendant to
lose balance and fall into the permit space), delay rescue (and,
thereby, endanger the entrant in need of rescue), or endanger other
entrants.
Paragraph (j). Final Sec. 1926.1209(j), which is identical to the
general industry standard at Sec. 1910.146(i)(10), requires that the
attendant not engage in other activities that could distract him or her
from attending to the permit space. The attendant could endanger the
authorized entrants if distracted from these duties. If an attendant
performs a task that diverts his or her attention from the attendant
duties, an emergency condition inside or outside the space could go
undetected until it is too late to prevent injury or death to the
attendant. However, OSHA also recognizes that the attendant can perform
some additional tasks safely, particularly those tasks that enhance the
attendant's knowledge of conditions in the permit space. For example,
passing tools to authorized entrants and remote monitoring of the
atmosphere of the PRCS are among the types of duties permitted,
provided the attendant does not enter the PRCS. Activities requiring
close or prolonged concentration, or those activities requiring that
the attendant be away from a location in which he can observe the PRCS,
would likely interfere with attendant duties. Employers must not assign
such activities to an attendant and must ensure that an attendant not
engage in such activities. The Agency notes that, although the employer
may assign attendants to more than one permit space at the same time
under Sec. 1926.1204(f), the employer must still
properly train and equip the attendant so that the attendant's role
with respect to one space does not interfere with his or her duties
with respect to other permit spaces. See also Sec. 1926.1204(f)(1). In
other words, the attendant's duty under Sec. 1926.1209(j) applies
separately with respect to each individual permit space.
Section 1926.1210--Duties of entry supervisors
The duties of the entry supervisor are critical to the safety of
entrants working in a permit space. The employer must assign an entry
supervisor who has the responsibility to supervise testing the
atmosphere and identifying hazards both before and during entry,
terminating entry when necessary, removing unauthorized entrants, and
generally ensuring that the work performed in the permit space conforms
to the permit program and the acceptable conditions specified on the
permit. As noted in the preamble to the general industry standard, the
entry supervisor has "overall accountability for confined space
entry" (58 FR 4523). OSHA enumerated specific responsibilities in
Sec. 1926.1210 of the final rule, which is almost identical to Sec.
1910.146(j) of the general industry standard. The final rule also is
consistent with the entry supervisor requirements in the proposed rule,
which were at proposed Sec. 1926.1210(e)(2) and Sec. 1926.1211(d)(1)
and (d)(2).\24\
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\24\ OSHA specified in the proposed rule that the entry
supervisor is responsible for evacuating employees from the permit
space under specified conditions, and for terminating entry and
canceling the permit. OSHA included similar requirements in final
Sec. 1926.1205(e) (permitting process), which is a more appropriate
location than Sec. 1926.1210 of the final rule because the
requirements in Sec. 1926.1205(e) address the process of
terminating and canceling the permit.
---------------------------------------------------------------------------
The introductory language to Sec. 1910.146(j) refers to "the
employer." In this final rule, OSHA instead refers to "the entry
employer" to clarify how this rule applies on multi-employer
worksites. This revision is non-substantive; in both cases, the
requirements apply to each employer establishing the permit program for
a permit space.
One commenter suggested that OSHA use "competent person" in place
of "entry supervisor" to "be more consistent with other construction
standards" (ID-124, p. 8). Although some employers in the construction
industry may not be as familiar with the term "entry supervisor,"
OSHA is retaining the language of the general industry standard because
the term is clear and intuitive, and the majority of commenters seemed
familiar with that terminology.
Paragraph (a). Final Sec. 1926.1210(a), which is identical to the
general industry standard at Sec. 1910.146(j)(1), except for a non-
substantive clarification, requires the employer to ensure that each
entry supervisor is familiar with, and understands, the hazards that
entrants may encounter during entry, including information on the mode,
signs or symptoms, and the consequences of exposure to these hazards.
Consistent with its approach in other provisions noted earlier, OSHA
changed the use of the term "know," found in corresponding Sec.
1910.146(j)(1), to "is familiar with and understands" in this final
rule to clarify that the entry supervisor must comprehend the hazards
that entrants may encounter.
In the discussion of the duties of the entry supervisor in the
preamble to the general industry standard, OSHA explained that, in
light of the overarching responsibility of the entry supervisor for the
safety of all entrants, it is "only reasonable that he or she be
expected to know at least as much, if not more, than authorized
entrants and attendants" (58 FR 4523). That knowledge is particularly
important in the context of construction, where high turnover of
employees and changes to the work site may be more frequent than for
general industry. As an individual with the authority to terminate
entry and cancel the entry permit, it is essential that the entry
supervisor recognize hazardous conditions and telltale indications
(signs, symptoms, and characteristic effects) that a hazard from within
or outside the permit space is affecting employees engaged in the PRCS
operations. By meeting the knowledge requirements of final Sec.
1926.1210(a), the entry supervisor will be able to effectively identify
emergency situations by observing employees involved in entry
operations.
Paragraph (b). Final Sec. 1926.1210(b), which is identical to the
general industry standard at Sec. 1910.146(j)(2), requires the entry
supervisor to verify that the employer performed all tests specified by
the entry permit, and that all procedures and equipment so specified
are in place before he or she may sign the permit and allow entry. The
paragraph also specifies that the entry supervisor must verify this
information by checking the corresponding entries on the permit. These
preliminary checks are necessary to ensure that the conditions in the
space are within the acceptable entry conditions--hazard levels are as
planned, and protective measures are in place, working properly, and
are effective--before entry operations commence.
Paragraph (c). Final Sec. 1926.1210(c) requires the employer,
through the entry supervisor, to stop the entry and cancel (or suspend)
the permit, as set forth by final Sec. 1926.1205(e), when certain
conditions change inside the permit space. By requiring the entry
supervisor to terminate the entry permit under the specified
conditions, the final rule ensures that the employees will exit the
space if there is a deviation from acceptable entry conditions and,
therefore, avoid encountering harm arising from prohibited conditions
within the PRCS. Final Sec. 1926.1210(c) is nearly identical to the
general industry standard at Sec. 1910.146(j)(3), except that the new
final provision allows for the suspension of a permit, rather than a
cancellation, as permitted in final Sec. 1926.1205(e). For additional
explanation of the suspension of the permit, see the explanation above
of Sec. 1926.1205(e).
To perform this duty effectively, an entry supervisor must be
knowledgeable of the hazardous conditions and the tests and procedures
used to monitor these conditions so the entry supervisor can respond in
a timely manner to a developing hazard. While the entry supervisor need
not personally perform the testing or monitoring (but may choose to do
so if properly trained), the entry supervisor must possess the
expertise necessary to oversee the testing and identify the hazards in
the permit space, and is ultimately responsible for identifying
deviations from acceptable entry conditions and other unsafe
conditions. In the proposed rule, this requirement differed slightly
from the requirements in the general industry standard and this final
rule, but the result is the same: The entry supervisor must have all
the information regarding the conditions and monitoring results
required to know when it is necessary to terminate entry. This
requirement remains in effect even if the entry supervisor assumes
other duties, such as the duties of an entrant or attendant.
Paragraph (d). Final Sec. 1926.1210(d), which is nearly identical
to the general industry standard at Sec. 1910.146(j)(4), requires the
entry supervisor to verify that rescue services are available, and that
the means for obtaining such services are operable. Because the
employer must assign authority for safe permit entry operations to the
entry supervisor, it is reasonable and consistent with the rescue
provisions to specify that the entry supervisor verify that the rescue
service is available, and that the means of summoning it in a
timely manner is functioning properly. The only difference between this
final provision and the general industry standard is that OSHA
clarified in this final provision that, as part of the contact with the
rescue service, the entry supervisor must verify that the rescue
service will notify the supervisor if that service becomes unavailable
during the entry process. This clarification corresponds to the
employer's duty to confirm the continued availability of the rescue
service in final Sec. 1926.1211(a)(3), and is consistent with the
proposed rule, which focused overall coordination of the permit entry
operations on the entry supervisor (see 72 FR 67368 (Nov. 28, 2007)).
Under both the proposed and final rules, the overall coordination
duties include managing communications with the rescue service.
Paragraph (e). Final Sec. 1926.1210(e), which is identical to the
general industry standard at Sec. 1910.146(j)(5) and consistent with
the proposed rule at Sec. 1926.1211(d)(2), requires the entry
supervisor to remove unauthorized individuals who enter, or attempt to
enter, the permit space during entry operations. Unauthorized entrants
lack the safety training necessary to work in the PRCS, and the entry
permit does not account for them. Their presence in a permit space not
only poses a danger to them, but may also endanger the authorized
entrants in the space.
In the final rule, OSHA requires attendants to warn persons near a
permit space not to enter the permit space unless they have
authorization to do so, but the attendant is not required to physically
prevent unauthorized entry or to remove an unauthorized entrant (final
Sec. 1926.1209(h)). Under the final rule, as with the general industry
standard, the entry supervisor has ultimate responsibility for
preventing unauthorized entry and, if that fails, for removing the
unauthorized person as quickly as possible from the permit space.
Paragraph (f). Final Sec. 1926.1210(f) is identical to the general
industry standard at Sec. 1910.146(j)(6) and consistent with the
proposed rule at Sec. 1926.1211(e)(2). While paragraphs (a) and (b) of
this section of the final rule set out the entry supervisor's
responsibility to ensure that the permit space will be safe prior to
entry, and paragraph (c) of this section makes it clear when the
employer must cancel or suspend the permit, paragraph (f) requires the
entry supervisor to ensure the maintenance of safe working conditions
during the entry. In final Sec. 1926.1210(f), OSHA sets out the entry
supervisor's duty to assess the space when first assigned entry
supervisor duties for the permit space, and at regular intervals
thereafter.
OSHA recognizes that employers will need to replace entry
supervisors occasionally for various reasons (for example, shift
changes, lunch breaks, and regular rotations to other tasks at the job
site). This final provision requires that, whenever there is a transfer
of supervisory responsibility for a permit-space entry operation, the
entry supervisor must assess the space and its hazards to maintain
entry operations that are consistent with the entry permit and other
requirements of the standard pertaining to the maintenance of
acceptable entry conditions. This requirement ensures that the new
entry supervisor reviews the permit and entry conditions and,
consequently, has the information necessary for performing the duties
enumerated in final Sec. 1926.1210.
Final Sec. 1926.1210(f) also requires that the entry supervisor
assess the space and its hazards at intervals dictated by the hazards
and operations performed therein. This requirement addresses the fact
that conditions often change over time within a permit space, while
providing the employer some flexibility to monitor different hazards at
different intervals of time (see 58 FR 4524). Some hazards may develop
rapidly and require more frequent assessments, such as when employees
are in a space with a combustible gas already at 9 percent of its LEL,
and the employer expects the operations to generate additional gas that
will be controlled through ventilation. Other hazards, such as a slow
leak of water from a pipe into a permit space, are likely to develop at
a more predictable pace that would allow for less frequent monitoring.
The type of operation and location or characteristics of the space may
also require more frequent assessments by the entry supervisor, such as
demolishing an underground wall near water pipes or performing
construction work in a sewer system where even a small leak of an
unidentified substance or other small change in the sewer space could
potentially place the lives of the employees in danger.
One commenter asserted that it is not feasible for an employer to
have only one entry supervisor because employees could perform no work
in the permit space if the entry supervisor is absent (ID-107, p. 4).
This commenter misunderstands the entry supervisor requirements. Final
Sec. 1926.1210(f) permits an employer to transfer the duties of the
entry supervisor between employees, so long as each such entry
supervisor has the proper qualifications to perform these duties and
receives the appropriate information about the space from the previous
supervisor.
Another commenter also was unsure whether the final rule requires
the entry supervisor to be on the construction site at all times (ID-
124, p. 7). The entry supervisor is responsible for crucial duties,
including monitoring the space, physically removing unauthorized
entrants, and terminating entry if necessary. Therefore, it is highly
unlikely that the entry supervisor will be able to fulfill the required
duties from a distance. However, the standard does not foreclose the
potential for technology advances that may allow an entry supervisor to
perform the required functions while located away from the permit
space. If the entry supervisor is unable to perform his or her duties,
either because he or she is not present on the site or for another
reason, then the employer must terminate the entry or replace that
entry supervisor with a supervisor properly qualified under this final
section, and who makes the determinations required by final Sec.
1926.1210(f), or the employer will not be in compliance with this final
rule.
Section 1211 -- Rescue and Emergency Services
An employer conducting a permit-space entry must include procedures
for providing rescue and emergency service as part of its permit-space
program (final Sec. 1926.1204(i)). Final Sec. 1926.1211 specifies
requirements for that rescue and emergency service. The requirements in
final Sec. 1926.1211 are substantively similar to the corresponding
provisions in the general industry confined spaces standard at Sec.
1910.146(k). In general, the substance of the rescue provisions in the
proposed rule was similar to that of the rescue provisions in the
general industry rule, but the language of the general industry rule is
more performance-oriented and includes fewer detailed requirements than
the proposed rule.
Final Sec. 1926.1211 uses the term "rescue and emergency
services." There are two types of rescue services addressed by this
provision: Non-entry rescue and entry rescue, and the employer must
determine which is appropriate. Emergency services are distinct: They
are the services that must be used to retrieve the entrant when the
employer's non-entry or entry rescue fails.
OSHA notes that during the rulemaking for the general industry
confined spaces standard, a commenter raised a question as to whether
an entry rescue service involved only off-site
rescue teams (58 FR 4525). The Agency made clear in that rulemaking
that an employer could use an on-site team as long as the employer met
all the criteria outlined in the standard. That rationale is equally
applicable to this final rule. Consequently, the term "rescue
service" in this standard does not exclude the use of an on-site entry
rescue service. Indeed, as OSHA noted in the preamble to final Sec.
1910.146, the need to respond as quickly as possible to an emergency
within a permit space indicates a preference for on-site rescue teams
wherever it is practical.
Some employers may prefer to establish an on-site rescue service.
Other employers may prefer to rely on off-site rescue services, perhaps
because they believe that they do not have the resources to train
employees to perform rescue or because the ready availability of an
adequate off-site rescue service makes an on-site capability
unnecessary. The final rule allows employers to make arrangements for
either on-site or off-site services.
Also, the final rule's phrase "rescue service" refers to all
rescue personnel provided to remove entrants from permit spaces. It
includes situations in which one person will be responsible for the
rescue of authorized entrants (e.g., when the employer uses non-entry
rescue systems). In such situations, the evaluation and selection
requirements of final Sec. 1926.1211(a) will apply. The training and
practice requirements of final Sec. 1926.1211(b) also apply in these
situations. Thus, OSHA is treating all rescue services alike, whether
the service is on-site or off-site, whether the service is entry rescue
or non-entry rescue, or whether the service consists of a multiple-
person team or a single person.
One commenter asserted that the rescue requirements should differ
based on the type of hazard that is present in or near the confined
space (ID-077, p. 1). This standard does set different requirements
based on the type of hazard in a PRCS, although the requirements in
Sec. 1926.1211(a)(1) and (a)(3)(i) establish performance-oriented
criteria that vary based on the hazards in the permit spaces. Final
Sec. 1926.1203(e) allows an employer to use alternative entry
procedures different than those required by the rest of this standard
under certain circumstances. Final Sec. 1926.1203(g) allows an
employer to reclassify a PRCS as a non-permit confined space when the
employer meets the requirements of that paragraph. The rescue
requirements in this final standard do not apply when an employer is
using the procedures in final Sec. Sec. 1926.1203(e) or 1926.1203(g).
When an employer is working within a PRCS that does not meet the
criteria in one of those paragraphs, however, the rescue requirements
are the same for all hazards severe enough to trigger the PRCS program
required by final Sec. 1926.1204.
Paragraph (a). The introductory text in final Sec. 1926.1211(a),
which is identical to the general industry standard at Sec.
1910.146(k)(1), introduces the requirements for designating rescue
services. This paragraph emphasizes the evaluation that an employer
must perform of available rescue and emergency service resources before
designating a rescue provider for the purposes of this standard as
required at Sec. 1926.1204(i) of this final rule. The requirements of
this paragraph apply equally to both on-site (employees of the entry
employer or controlling contractor) and third-party rescue services.
One commenter asserted that some third-party rescue services, such
as fire departments, are unwilling to be the designated rescue service
due to liability concerns (ID-075, p. 8). Another commenter asserted
that relying on local fire departments to provide third-party recue
services can be problematic because the rescue service is not designed
specifically to provide confined space rescue at a particular worksite
(ID-210, Tr. p. 192). These comments imply that OSHA requires employers
to designate the local fire department as the rescue service, which is
not the case. In the final rule, OSHA provides employers with much
flexibility in choosing its third-party rescue service if the employer
elects to rely on a third-party rescue service.
Contrary to the assertion of one commenter (ID-107 p. 4), both the
proposed rule and the general industry standard require employers to
provide a rescue service for entries, even if a third-party rescue
service is not available. (See proposed Sec. 1926.1211(h) and 72 FR
67377-78; 29 CFR 1910.146(d)(9); 58 FR 4524-27; and 63 FR 66018, 66023
(Dec. 1, 1998).) If one third-party rescue service will not assume the
responsibility of providing rescue under this final rule, or is not
adequately prepared to meet these rescue requirements, then the
employer must either find a different third-party rescue service that
is capable of performing this service, or train and equip its own
employees to provide adequate rescue service.
Paragraph (a)(1). Final Sec. 1926.1211(a)(1), which is identical
to the general industry standard at Sec. 1910.146(k)(1)(i), requires
an employer to assess a prospective rescue service's ability to respond
to a rescue summons in a timely manner. Final Sec. 1926.1211(a)(1)
provides that the hazards identified in the permit space determine
timeliness. This provision defines "timeliness" in terms of how
quickly an entry rescue service needs to reach an entrant to prevent
further serious physical damage that may result from hazards in the
PRCS while the entrant is awaiting rescue. For example, as stated in
the note to paragraph (a)(1), OSHA's respiratory protection standard at
29 CFR 1910.134, made applicable to construction by 29 CFR 1926.103,
requires standby rescue personnel equipped with respiratory protection
when employees are working in atmospheres that require respiratory
protection because the atmospheres are immediately dangerous to life or
health (IDLH). Consistent with that requirement, the timeliness
requirement in this final rule also means that employers must ensure
that an appropriate rescue service is on site for IDLH permit entries.
An atmosphere in a permit space where an exposed entrant could suffer
irreversible impairment within four to six minutes would meet the
definition of an IDLH atmosphere. However, because not all permit
spaces pose the same immediate dangers as those spaces with IDLH
atmospheres, employers may use a less resource-intensive and more
measured response capability for situations in which the need for a
nearly instant response is not present. For example, in appendix F to
Sec. 1910.146, OSHA explained that if the danger to entrants is
restricted to mechanical hazards that would cause injuries (e.g.,
broken bones, abrasions) a response time of 10 or 15 minutes might be
adequate.
At least one commenter was unsure what constitutes a response in a
"timely manner" (ID-121, p. 5). Another commenter suggested that OSHA
identify the factors in Sec. 1910.146(k)(1)(i) of the general industry
confined spaces standard that it would use to analyze whether a rescue
response is "timely," and apply them in the construction standard
(ID-129, p. 3). The factors that apply in general industry are relevant
in evaluating timeliness in this final rule.
When the Agency added the parallel rescue selection requirements to
paragraph (k) of Sec. 1910.146, it included a substantive discussion
of "timely" rescue in the preamble, and concluded that the
determination of timeliness "will be based on the particular
circumstances and hazards of each confined space, circumstances and
hazards which the employer must take into account in developing a
rescue
plan" (63 FR 66023). As the note to new Sec. 1926.1211(a)(1) makes
clear, the same approach applies in this final rule. Employers must
consider the known hazards of in the space, the time it takes to reach
the permit space, as well as the time it will take to enter the space
and retrieve employees from inside the space, when determining what is
a "timely" response. Several commenters acknowledged that so many
factors could affect whether a response is "timely" that it is not
practical for OSHA to adopt a bright-line timeframe that would work in
all scenarios (ID-090, p. 1; ID-108, p. 3; ID-116, p. 4). As noted in
the discussion above, OSHA identified some of the factors that
determine whether an employer's response to an emergency is "timely,"
but these factors are not exclusive. The standard as a whole will
prevent employee exposure to hazards, but employers must develop rescue
plans that anticipate and minimize potential harm to employees in the
event an employee becomes trapped or exposed to an atmospheric hazard.
For example, if a permit space contains a potential IDLH atmosphere
that the employer will control through ventilation, the employer has a
duty to ensure that the ventilation is effective, but also has a
separate duty to plan for rescue in the event that the ventilation
fails and an employee becomes trapped in the increasingly hazardous
atmosphere.
The deaths of two workers during a sewer entry illustrate the
potential consequences of inadequate rescue planning: Not only did the
two employees enter the space without a permit, rescue plan, or
retrieval lines, but the employer also did not assess a potential
rescue service. See S. J. Louis Construction, OSHRC Docket No. 12-1045
(2013) (Welsh, ALJ). The first worker was overcome quickly by a
hazardous atmosphere in the sewer manhole, and the second worker was
also overcome after he entered the sewer manhole to attempt rescue. The
firemen who responded first were not trained or equipped for permit-
space entry and had to summon a different rescue service. The first
worker was washed down the sewer line before the second rescue service
arrived and was trapped underwater so that it took nearly a day to
retrieve his body.
One commenter asserted that, when using a third-party rescue
service, it is infeasible for the third-party rescue service to
maintain constant contact with construction sites, and not reasonable
for outside services to track frequent changes in a confined space's
configuration (ID-116, p. 4). Another commenter asserted that it is too
costly to require rescue services on site, and that OSHA should allow
an employer to merely establish a rescue plan to address accidents (ID-
108, p. 5). Neither final Sec. 1926.1211(a)(1), nor any other
paragraph in final Sec. 1926.1211, requires an employer's rescue
service to be on the construction site at all times, absent an IDLH
atmosphere or other hazard that would require immediate rescue, or to
be in constant contact with the construction site.
In general, final Sec. 1926.1211(a) only requires an employer to
determine that the rescue service is capable of responding to an
emergency in a timely manner. However, compliance may require the
employer to communicate with an off-site rescue service immediately
prior to each permit-space entry unless the employer has been assured
that personnel are always available and able to respond in a timely
manner. Section 1910.146 addresses the scenario in which the designated
rescue service is a local fire department that cannot guarantee that
the rescue team will available during the employer's entire permit-
space entry operations; in such a case, the employer must ensure close
communication with the rescue service during entry operations so that,
if the rescue service becomes unavailable while an entry is underway,
the employer can abort the entry immediately. May 23, 2008, letter to
Jonathan Pennington. To facilitate this communication, OSHA requires in
final paragraph (a)(3)(iii) that the entry employer select a rescue
provider that agrees to notify the entry employer in the event the
rescue service is unavailable. Entry operations must not resume until
the entry supervisor verifies that rescue services are available (final
Sec. 1926.1210(d)).
One commenter asserted that OSHA should focus on the capability of
the rescue service to provide life support, and not whether the rescue
response is "timely" (ID-017, p. 2). For example, the provision
should focus on requiring someone trained in space-specific rescue
techniques, first aid and cardiopulmonary resuscitation, who can gain
safe access to the patient, stop the bleeding, administer CPR, and
perhaps effect rescue. Final Sec. 1926.1211(a)(2) specifies the
requirement to assess whether a rescue service is capable of providing
adequate and effective rescue service. Final Sec. 1926.1211(a)(1)
requires the employer to assess whether the rescue service is capable
of applying such skills in a timely manner.
Paragraph (a)(2). Final Sec. 1926.1211(a)(2), which is identical
to the general industry standard at Sec. 1910.146(k)(1)(ii), requires
an employer to assess a prospective rescue service's ability to provide
adequate and effective rescue services. This requirement is necessary
to ensure that the rescue service can perform rescue safely and
effectively.
Many third-party emergency responders may be able to provide proper
permit-space rescue functions for spaces that do not require immediate,
stand-by rescue capability, but not all responders have this ability.
Each employer relying on these services must verify that the emergency
responder has the training, equipment, ability, and willingness to
perform rescue for confined spaces in its facility.
In evaluating a prospective rescue provider's abilities, the
employer also must consider the willingness of the service to become
familiar with the particular hazards and circumstances faced during its
permit-space entries. Paragraphs (a)(4) and (a)(5) of final Sec.
1926.1211 require the employer to provide its designated rescuers with
information about its confined spaces and access to those spaces to
allow the rescuers to develop appropriate rescue plans and to perform
rescue drills. A rescue service's receptiveness to this information is
directly relevant to its ability to function appropriately during
actual rescue operations.
Two commenters suggested that OSHA provide additional guidance
about how employers that use a third-party rescue service are to verify
that they meet the requirements in final Sec. 1926.1211(a) (ID-099, p.
3; ID-132, p. 3). OSHA has provided performance-based requirements that
are closely aligned with the general industry standard. Therefore, OSHA
does not believe that it will be difficult for an employer to determine
whether the rescue service meets these requirements. However, OSHA is
willing to provide additional guidance as necessary.
Paragraph (a)(3). Final Sec. 1926.1211(a)(3), which is identical
to Sec. 1910.146(k)(1)(iii) except for the addition of Sec.
1211(a)(3)(iii), introduces the requirements that a designated rescue
service must meet. Final Sec. 1926.1211(a)(3) requires the employer,
after performing the evaluations required by paragraphs (a)(1) and
(a)(2) of this section, to select a rescue provider that meets the
requirements of this paragraph. Therefore, it is not sufficient for an
employer simply to perform the evaluations required. The employer also
must use the results of those evaluations to select a rescue service
that will meet the requirements of this standard.
Final Sec. 1926.1211(a)(3)(i), which is identical to the general
industry
standard at Sec. 1910.146(k)(1)(iii)(A), requires an employer to
designate a rescue team that is capable of reaching a victim in an
appropriate amount of time. This requirement is an important element of
a preplanned rescue because it eliminates further risk of injury and
death resulting from an unnecessary lapse of time between an emergency
and when the rescue service affects the rescue. Delays may occur for
reasons such as: The travel distance from an off-site location is too
far away from the permit space; time needed to gather rescue equipment
from storage; lack of training needed to use the rescue equipment
properly; or the rescue service is off-duty at the time of the
emergency. As discussed above, the time required to respond to a rescue
summons varies with the hazards posed by the permit space, and the
entry employer must consider the hazards involved in its permit-space
work and select an appropriate rescue service.
Final Sec. 1926.1211(a)(3)(ii), which is identical to the general
industry standard at Sec. 1910.146(k)(1)(iii)(B), requires an employer
to designate a rescue team that is capable of providing proficient
rescue service. This requirement is an important element of a
preplanned rescue because it eliminates further risk of injury and
death resulting from improperly equipped or untrained rescuers. At a
minimum, the designated service must comply with final Sec.
1926.1211(b).
Final Sec. 1926.1211(a)(3)(iii) requires an employer to designate
a rescue service that agrees to notify the entry employer immediately
if it becomes unavailable during an entry operation. There is no
corresponding provision explicitly required in Sec. 1910.146, although
Sec. 1910.146(k)(1)(iii)(A) implies such a duty. For a rescue service
to be effective, it must be available when the entry employer is
conducting permit-space entry operations. This provision will promote
employee safety by ensuring that entry employers know when their
designated rescue services are unavailable.
Final Sec. 1926.1211(a)(3)(iii) enhances an employer's knowledge
about the availability of a rescue service during entry operations.
This final provision, in combination with other provisions of this
final standard, ensures that entry employers know that the rescue
service is available. Final Sec. 1926.1210(d), and Sec.
1910.146(j)(4), both require the entry supervisor to verify that the
rescue service is available.
Final Sec. 1926.1211(a), and Sec. 1910.146(k)(1), address the
employer with a designated third-party rescue service that cannot
guarantee that its rescue team will be available during the employer's
permit-space entry operations. In such a case, the employer must
maintain close communication with the rescue service during entry
operations so that, if the rescue service becomes unavailable while an
entry is underway, the employer can instruct the attendant to abort the
entry immediately. May 23, 2008, letter to Jonathan Pennington.
Consistent with these two provisions, the rescue service needs only to
communicate its unavailability when the entry employer informs it that
entry operations are underway. Although the employer is less likely to
know exactly when a third-party service is responding to another call
that would make the service unavailable to perform rescue from the
PRCS, this requirement also applies to on-site rescue services if, for
example, the on-site service members become involved in other work
activities that prevent them from responding in a timely fashion to a
rescue summons.
Paragraph (a)(4). Final Sec. 1926.1211(a)(4), which is identical
to the general industry standard at Sec. 1910.146(k)(1)(iv), requires
an employer to inform the designated rescue service of the known
hazards associated with the permit space in the event rescue becomes
necessary. This provision provides the rescue service with information
about hazards and conditions in the permit space that will protect the
rescue-service employees who enter the permit space for rescue
operations, training, or any other purpose.\25\ Compliance with this
paragraph, as well as with paragraphs (a)(1) and (a)(2) of this
section, would require the employer to provide this information to the
rescue service prior to permit-space entry. Similarly, if an entry
involves hazards not usually encountered by the rescue service, or
hazards or a configuration that would require the rescue service to use
equipment that it does not always have available, the employer would
have to notify the rescue service of these hazards and conditions prior
to beginning the entry operation. In most cases, this information
exchange can be accomplished during a single conversation, but
additional conversations would be necessary in the event of changes in
the conditions or configuration of the space after the initial
conversation.
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\25\ To meet the requirements of this provision, the employer
would have to inform the rescue service that the employer selected
the service to rescue its employees during entry operations, and
that the employer is relying on the rescue services to perform these
rescues when necessary.
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Paragraph (a)(5). Final Sec. 1926.1211(a)(5), which is identical
to the general industry standard at Sec. 1910.146(k)(1)(v), requires
an employer to provide the designated rescue service with access to all
permit spaces from which the rescue service may need to perform a
rescue. The purpose of the provision is to provide the rescue service
with an opportunity to develop appropriate rescue plans and to practice
rescue operations. OSHA believes that this provision will allow the
rescue service to become familiar with the configuration and features
of the permit space to which the employer may summon it to perform
rescue operations, and thereby develop appropriate rescue plans and
practice rescue operations.
Access to the permit space or a simulated permit space for the
purpose of planning and practicing rescue operations increases the
probability that rescue operations will proceed more efficiently and
effectively, thereby reducing the probability of serious injury or
death to authorized entrants and rescuers during an actual entry-rescue
operation. Note that this provision does not require the third-party
rescue service to use the permit spaces for practice; final paragraph
(a)(5) simply requires that the entry employer provide access to the
space. In performing practice rescues, the third-party service may use
any representative permit spaces that replicate the permit spaces from
which it may perform a rescue in accordance with final Sec.
1926.1211(b)(4).
Paragraph (b). Final Sec. 1926.1211(b) sets forth four
requirements for an employer that has employees designated to provide
rescue service. Paragraph (b) is identical to the general industry
standard at Sec. 1910.146(k)(2), except that OSHA replaced references
to employers' responsibilities for "employees" collectively with
references to employers' responsibilities to "each employee"; this
revision emphasizes that an employer's responsibility in this area is
to each employee individually.
Final Sec. 1926.1211(b) applies to the employer of the rescue
service (including non-entry rescue personnel) when that employer also
is the entry employer or other employer performing work integral to
construction. When the employer is a third-party rescue service that
does not perform work integral to construction, then the work performed
by the rescue service is covered under the corresponding general
industry standard at Sec. 1910.146(k)(2). OSHA believes that it is
important to protect employees who enter permit spaces to perform
rescue duties regardless of the
employer responsible for the rescue team. By making this final
paragraph substantively identical to Sec. 1910.146(k)(2), there are no
differences in the requirements for rescue-team employers under the
general industry or construction confined space standards. The Agency
determined that this requirement is necessary to provide protection for
employees in on-site rescue teams, while employees of third-party
rescue services will be protected under identical general industry
requirements. This is consistent with the intent of the Agency to
protect both on-site rescue teams and third-party rescue services in
the general industry confined spaces standard (58 FR 4527).
One commenter, representing a company involved in sewer work,
asserted that it is neither practical nor feasible for employers
performing construction to employ their own rescue personnel (ID-107,
p. 4). However, neither proposed Sec. 1926.1213(c) nor final Sec.
1926.1211(b) specify that entry employers must hire additional, rescue-
specific, personnel. Rather, employers that train and equip current
employees as required by this standard may designate their own
employees to provide permit-space rescue, just as under the general
industry standard. Also, the commenter referred to a "typical sewer
construction/maintenance project," implying that the company it
represents engages in maintenance projects that would be subject to the
same requirement in the general industry standard. However, the
commenter did not indicate that this company, or any other company,
found it infeasible to comply with the general industry standard. The
commenter did not provide any explanation for why compliance with the
requirement in this final standard would be more burdensome than
compliance with the general industry work.
Other commenters incorrectly asserted that OSHA would require
construction employers to become experts in rescue service (ID-126, pp.
2-3; ID-075, pp. 8-9). Final Sec. 1926.1211(b) does not prohibit
employers from using a third-party rescue service; it merely permits
employers to use their own employees to provide rescue service. The
general industry confined spaces standard at Sec. 1910.146(k) also
provides the option of using an employer's own employees to provide
rescue services. At least one commenter supported the provision
permitting construction employers to use their own employees to provide
rescue service, noting that the use of a third-party rescue service is
not always effective because of the location of the site or the
competency of the third-party rescuers (ID-143, p. 2).
Paragraph (b)(1). Final Sec. 1926.1211(b)(1), which is nearly
identical to the general industry standard at Sec. 1910.146(k)(2)(i),
requires an employer with employees designated to provide rescue
service to equip each affected employee with PPE and to train the
employees, at no cost to those employees, how to use the PPE safely.
The provisions in this paragraph will help the employer prevent
injuries and deaths that could occur without the appropriate PPE, or
because the employees did not receive proper training in use of such
equipment. Employers still must select and use PPE in accordance with
subpart E of part 1926 and all other applicable requirements. These
requirements, which include proper selection and use of respirators in
accordance with the requirements of the respiratory protection standard
at Sec. 1926.103, continue to apply when workers are working in a
permit space.
Paragraph (b)(2). Final Sec. 1926.1211(b)(2), which is nearly
identical to the general industry standard at Sec. 1910.146(k)(2)(ii),
requires an employer with employees designated to provide rescue
service to train each employee performing the rescue service, and to
ensure that these employees successfully complete the training required
for authorized entrants.
This provision would ensure that rescue-service employees can
perform their assigned duties proficiently and safely under hazardous
permit-space conditions. Lack of such training would endanger the
rescue-service employees, those in need of rescue, and others affected
by the permit-space rescue operations. Training in the proper use of
rescue equipment will help the employer eliminate injuries and deaths
caused by the improper use of such equipment. Rescue-equipment training
must include training on all equipment that may be used in conducting a
rescue in the PRCS, such as the care and inspection of breathing and
ventilation gear and emergency-evacuation equipment, and the use of
two-way radios and fire-fighting equipment. Training in the
requirements for authorized entrants also will protect the rescue-
service employee, those in need of rescue, and others affected by the
rescue operations because rescue-service employees will be familiar
with the hazards of permit spaces and the modes of communicating with
attendants. The rescue service may need to use the same modes of
communication to communicate with a trapped entrant.
One commenter suggested that OSHA require an employer to train all
of its employees, not just entry rescue-service employees, on how to
perform rescue duties (ID-150, p. 3). OSHA disagrees with this
commenter because, under final Sec. 1926.1211, training for employees
not authorized to perform rescue is not necessary for an employer to be
ready to provide effective and timely rescue service.
Paragraph (b)(3). Final Sec. 1926.1211(b)(3), which is nearly
identical to the general industry standard at Sec.
1910.146(k)(2)(iii), requires an employer with employees designated to
provide rescue service to train the employees performing both non-entry
and entry rescue services in basic first aid and cardiopulmonary
resuscitation (CPR). The Agency believes this requirement is necessary
because of the hazards and resultant injuries that may occur in permit
spaces. This requirement also will improve the probability that the
injured employees survive until higher levels of medical treatment
become available.
Paragraph (b)(4). Final Sec. 1926.1211(b)(4), which, apart from an
addition discussed below, is identical to the general industry standard
at Sec. 1910.146(k)(2)(iv), requires an employer to ensure that the
designated rescue service practices rescue operations at least once
every 12 months. OSHA believes this training requirement for entry-
rescue service employees is necessary to maintain proficiency in entry-
rescue procedures and the use of rescue equipment. This training also
will ensure that the employer trains the entry rescue-service employees
on all revisions to entry-rescue procedures, and that the employees are
cognizant of any other new information regarding entry rescue.
Practicing rescues in a permit space or a representative permit space
also highlights deficiencies in rescue procedures, and allows for
revisions of those procedures before they can adversely affect the
safety of rescue-service employees or employees in need of rescue
during an actual rescue operation.
One commenter read the proposed rule as prohibiting rescue services
from conducting practice rescues in the actual permit space (ID-107, p.
4). There was no such prohibition in the proposed rule, and by adopting
the language of the general industry standard in this final rule, OSHA
makes it clear that rescuers may practice by removing dummies or real
persons "from the actual permit spaces or from representative permit
spaces." If the employer does not use actual permit
spaces for practice, representative permit spaces must simulate the
types of permit spaces from which the rescuers may perform rescues with
respect to opening size, configuration, and accessibility.
Proposed Sec. 1926.1213(d) provided that this practice is not
necessary when the affected employees properly performed rescue in the
same, or similar, permit space during the last 12 months. This proposed
language made explicit the existing rule under the general industry
standard, which, in its original preamble, stated that satisfactory
performance of one or more actual rescues in the same, or similar,
space during the 12-month period prior to the training anniversary date
could substitute for a practice rescue (58 FR 4528). OSHA previously
recognized in other standards (such as in Sec. 1910.120--Hazardous
waste operations and emergency response) that actual experience at a
particular task can be at least as valuable as a practice session or
other type of training. However, just as the rescue service must
practice in the same spaces or spaces similar to the ones in which it
is to provide rescue, for an actual rescue to take the place of a
practice rescue, it must be in the same or similar space. Also note
that unsatisfactory performance of a rescue indicates the need for
further training and, therefore, cannot substitute for a practice
rescue. This exception applies when the rescuers perform a rescue
operation in a satisfactory manner and the entrants, through factors
beyond the rescuers' control, do not survive. Therefore, this final
rule incorporates the exception from the proposed rule by adopting the
performance-based language of the general industry standard.
One commenter asserted that the requirement to perform a simulated
rescue is infeasible in situations where the rescue service is a small
local fire department (ID-090, p. 2). Nevertheless, the commenter
volunteered that performing the simulated rescue is the safest
approach. When a third-party rescue service does not have the resources
to perform this simulated rescue, the employer must either train its
own employees to provide rescue or designate a third-party rescue
service that is capable of complying with all of the rescue
requirements in final Sec. 1926.1211(b).
Another commenter asserted that OSHA wrote proposed Sec.
1213(c)(6) in a manner that allowed an entry employer's employees to
enter a confined space even when the initial practice rescue occurred
15 years before the entry takes place (ID-013, p. 5). This commenter
misread the requirement. Final Sec. 1926.1211(b)(4), as in the
proposed rule, requires an employer to conduct a practice rescue at
least once every 12 months after the initial practice rescue.
Therefore, 12 months minus one day is the longest period allowed
between a practice rescue and the moment the employer begins entry
operations.
Another commenter asked how employers who designate a third-party
rescue service can verify that the service practices rescue every 12
months (ID-099, p. 3). The duties in paragraph (b) apply to the
"employer whose employees have been designated to provide permit space
rescue." Therefore, if an entry employer hires a third party to
provide rescue services, the final standard does not require the entry
employer to verify the practice of the third party. However, paragraph
(a), which applies to all employers that designate rescue and emergency
services, requires those employers to evaluate the rescue proficiency
of the rescue team, even a third-party rescue team, and select a team
that is proficient. This commenter also asserted that it is too
burdensome to fulfill the requirement to practice rescue operations,
but did not provide a specific reason why compliance is infeasible
(id.). Both the general industry confined spaces standard at Sec.
1910.146(k)(2)(iv) and NFPA 1670, sec. 7.1.3.4 (2009 ed.) also specify
a requirement to practice rescue operations found in final Sec.
1926.1211(b)(4). Without a specific reason to depart from this
established procedure, OSHA finalized this provision to be similar to
proposed rule Sec. 1926.1213(c)(6) and the corresponding provision for
general industry confined spaces at Sec. 1910.146(k)(2)(iv).
Paragraph (c). Final Sec. 1926.1211(c), which is substantively
similar to the general industry standard at Sec. 1910.146(k)(3),
requires that an employer use non-entry rescue, instead of entry
rescue, unless non-entry rescue is more dangerous or ineffective than
entry rescue. The major difference between this final provision and
Sec. 1910.146(k)(3) is that OSHA revised this final requirement to
clarify the employer's obligation.
If the employer determines that it will use non-entry rescue, final
Sec. 1926.1211(c) also requires the employer to use a retrieval system
or method. Accordingly, in general authorized entrants must wear
retrieval devices and employers must use a retrieval system, in
addition to confirming that emergency assistance is available in the
event the non-entry retrieval fails.
Retrieval lines can be highly effective in assisting in the rescue
of an unconscious or otherwise incapacitated employee from a confined
space. The other major advantage of using retrieval lines for rescue is
that it is not necessary to expose a rescuer to the hazards of entering
the permit space to help remove an injured entrant. The effectiveness
of retrieval lines in rescue was recognized by employers using this
equipment for confined space entries during the general industry
standard rulemaking (see 58 FR 4530), and mandatory use of retrieval
lines is included in both ANSI Z117.1 and the general industry
standard. However, the Agency recognizes that many spaces do not
readily or safely accommodate the use of retrieval lines. For example,
obstructions can snag the retrieval line, and the air lines and
electric cords within the space can pose entanglement hazards. In
addition, depending on the number of entrants and how much they move
around in the space, the retrieval lines themselves could pose an
entanglement hazard (see final Sec. 1926.1211(c)(3)).
To allow for the greatest degree of safety in addressing these
problems, the final standard requires the use of retrieval systems or
methods whenever an authorized entrant enters a permit space, except in
situations for which the employer can demonstrate that the retrieval
equipment would increase the overall risk of entry or would not
contribute to the rescue. This is the approach taken in ANSI Z117.1 and
the general industry standard, and OSHA believes that adopting this
approach will provide the most effective protection for employees, with
appropriate allowance for situations in which employers should not use
retrieval systems.
When enforcing this provision, OSHA may inspect the permit space to
determine whether a retrieval system would contribute to a rescue
without increasing the overall risk of entry. Although some spaces may
have configurations or hazards that warrant a slightly different
approach, in general, the Agency intends to use the following factors
in determining that a permit space does not require an employer to use
a retrieval system: (1) The permit space has obstructions or turns that
prevent transmitting pulls on the retrieval line to the entrant; (2)
the permit space has projections that would cause injury to an employee
making forceful contact with the projections during rescue; and (3)
when an entry employee enters the permit space using
an air-supplied respirator and the non-entry rescuers cannot control
the retrieval line so as to prevent entanglement of the retrieval line
with the respirator's air line.
Section 1926.1211(h) of the proposed rule specified that employers
must provide both entry and non-entry rescue, while proposed paragraph
(h)(2)(i) specified that employers must summon an entry-rescue service
whenever they initiate a non-entry rescue. One commenter was unsure
whether employers must prepare to provide both entry and non-entry
rescue (ID-098, p. 2). Another commenter asserted that it was too
burdensome to require employers to prepare for both entry and non-entry
rescue when working within or near a PRCS. (ID-120, p. 3). To address
these concerns, OSHA based the final rule on the general industry
confined space standard, but drafted the final rule to be more
performance-oriented than the general industry standard.
The final rule provides for a "back-up" to non-entry rescue, much
as the proposed rule did, but in a manner that is less burdensome for
employers. Consequently, final Sec. 1926.1211(c) requires that, if an
entry employer determines that it will use non-entry rescue, it must
confirm, prior to entry, that emergency assistance will be available in
the event that non-entry rescue fails. OSHA expects this confirmation
will typically involve a quick phone call or other communication to
establish availability before making the first entry. The employer need
not repeat such confirmation when there are several entries planned as
part of the same project, provided the employer discusses during the
initial contact with the rescue service the availability of emergency
assistance for the expected duration of the project. This confirmation
is especially important if the employer uses a 911 service or other
third-party service that is small and has few teams on call because the
service must be available to provide emergency assistance quickly when
needed if the assistance is to be effective. In the event emergency
assistance is summoned, OSHA anticipates that the emergency assistance
provider will assume direction of the rescue and would request any
other information it deems essential to effectively provide assistance,
and notes that employers may be required by other laws to comply with
the emergency assistance requests for information. OSHA is not
requiring the employer to provide other specific information at the
site out of concern that such a requirement might slow the rescue
process if it compels the employer to provide information not needed by
the emergency assistance provider. Note that arranging for emergency
assistance is not the same as providing for entry rescue; emergency
assistance is intended as the backup for the employer's rescue plan,
whether the employer relied on entry or non-entry rescue. Entry rescue
requires personnel trained to recognize the hazards associated with
entry rescue and perform entry rescue duties. These personnel must be
trained in performing entry rescues and must have practiced such a
rescue within the past year. Employers must designate entry rescuers
when non-entry rescue is not an appropriate option. Emergency
assistance is intended to supplement employer rescue efforts and
provide emergency care to employees injured on site and/or rescued from
a confined space. Emergency assistance is required if there is a
problem with a non-entry rescue or with an entry rescue.
The non-entry rescue requirements are based on the general industry
standard, but provide additional guidance. While there is no
corresponding provision stated explicitly in the general industry
standard at Sec. 1910.146, Sec. 1910.146(d)(9) requires employers to
develop plans to summon emergency services and for rescuing personnel.
In final Sec. 1926.1204(i), OSHA clarified that, if the entry employer
uses non-entry rescue as the designated method of rescue, the employer
must develop a procedure for summoning emergency assistance in case the
non-entry rescue is not able to retrieve the entrant. Emergency
assistance, such as a 911 emergency-responder service or an on-site or
off-site entry-rescue team, may prevent such a situation from resulting
in injury or death, so it is critical that emergency assistance be
available to respond to the emergency.
In final Sec. 1926.1211(c), OSHA also clarifies that, if the
employer determines that it will use entry rescue, it must designate a
rescue service that is capable of providing entry rescue. Additionally,
it sets requirements for non-entry rescue systems; these requirements
do not differ substantively from the corresponding general industry
provision.\26\
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\26\ As with the general industry standard, the construction
standard relies on existing fall-protection requirements to ensure
the proper use of fall-protection equipment. Final Sec.
1926.1211(c) does not address the issue of fall protection for entry
into, and exit from, vertical type permit spaces; 29 CFR part 1926,
subpart M, and the General Duty Clause, 29 U.S.C. 654(a)(1), govern
fall protection in construction.
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Paragraph (c)(1). Final Sec. 1926.1211(c)(1), which is similar to
the general industry standard at Sec. 1910.146(k)(3)(i), requires an
employer to provide each employee with a chest harness or full body
harness for most non-entry rescue, but permits use of wristlets or
anklets if the employer can demonstrate that the chest or full body
harness is infeasible or creates a greater hazard. A chest or full-body
harness prevents further injury should an employee become suspended
during a rescue; without a chest or full-body harness, injuries can
result from the unequal distribution of force on the body during
suspension (see the preamble to OSHA's final rule on fall protection
for construction at 59 FR 40672, 40702-40704 (Aug. 9, 1994), for a
detailed discussion of this issue.)
One commenter asserted that OSHA should require the use of a full-
body harness to perform rescue in every instance because it is the most
effective means of rescue (ID-210, Tr. p. 68). OSHA disagrees with this
commenter. Permit spaces come in many different sizes and
configurations, which may make a chest harness more appropriate than a
full-body harness in some circumstances.
This provision also provides that the employer must place the
retrieval line attached to the harness on the entrant's back near
shoulder level, over the entrant's head, or at another point that will
establish a small enough profile for successful removal of the entrant
from the permit space. One commenter agreed that it was safer to attach
the line to the entrant's back, rather than the chest (ID-095).
Final Sec. 1926.1211(c)(1) differs from the general industry
standard at Sec. 1910.146(k)(3)(i) in that it includes both anklets
and wristlets as acceptable means of retrieval in lieu of a harness in
limited circumstances. Employers can use wristlets or anklets in lieu
of a harness only if the employer can demonstrate that the use of a
harness is infeasible or creates a greater hazard to the employee, and
that the use of the wristlets or anklets is the most effective
alternative available. Proposed Sec. 1926.1213(a)(4)(iii) permitted
employers to use ankle straps, along with wristlets, for non-entry
rescue under limited conditions. One commenter supported this proposed
minor change from the general industry standard, asserting that anklets
may be the safest alternative in horizontal entries (ID-094). However,
because of the potential safety advantages of the chest and full-body
harnesses, the Agency believes that it is necessary to limit the
circumstances when employers
can use either wristlets or anklets to those in which the employer can
demonstrate that use of a harness is infeasible or a greater hazard
than wristlets or anklets because of the increased risk of employee
injury during a rescue.
Paragraph (c)(2). Final Sec. 1926.1211(c)(2), which is identical
to the general industry standard at Sec. 1910.146(k)(3)(ii), requires
an employer to use a retrieval line attached to a mechanical retrieval
device or fixed point outside the permit space so that non-entry rescue
can begin as soon as needed. It also requires an employer to use a
mechanical device to retrieve personnel from spaces more than five feet
deep. This provision reduces the elapsed time between an attendant
determining that a rescue is necessary and commencing the PRCS rescue
operation by requiring the essential parts of the retrieval system to
already be in place and attached to the mechanical device or fixed
point. This requirement will eliminate further injury or death due to
the delay resulting from locating and attaching retrieval-system parts
and equipment.
The requirement to use a mechanical device for spaces more than
five feet deep is consistent with the general industry standard and
ANSI Z117.1. Securing the line to an anchor point or using an un-
mechanized pulley for retrievals over five feet could endanger the
authorized entrant because designated non-entry rescuers may not have
sufficient strength and stamina to lift a disabled entrant over a
vertical distance of more than five feet.
One commenter asserted that OSHA should require a mechanical
retrieval device for all heights when the employer conducts non-entry
rescue (ID-211, Tr. pp. 43-44). Another commenter asserted that OSHA
should recognize that mechanical winches and pulleys are sometimes
necessary based on job conditions (ID-108, p. 2). Neither commenter
provided any evidence that attendants encountered difficulty retrieving
entrants from distances of less than five feet, or pointed to any
problems that arose in the context of the general industry standard or
ANSI Z117.1, both of which include the same five-foot threshold.
Without additional support for imposing this requirement, OSHA decided
to retain the language from the general industry standard. Nothing in
this standard, however, precludes use of mechanical retrieval devices
for retrievals from heights of less than five feet.
Proposed Sec. 1926.1213(a)(2)(iv)(B) also provided that movable
equipment (for example, earth-moving equipment) that is "sufficiently
heavy to serve as an anchor point," may be used for that purpose only
if effectively locked out or tagged out. Two commenters expressed
concern about movable equipment as an anchor point. One commenter
stated that many accidents occurred in the past when using a pick-up
truck as a fixed point without notifying the driver of the truck, who
then unexpectedly moved the truck. This commenter urged that this
provision include "proper protocols" to ensure that such a situation
did not recur (ID-025, p. 4). Another commenter noted that OSHA's
construction standards do not include an equivalent to the Lockout/
Tagout standard for general industry. The commenter, therefore, urged
OSHA to include a more protective requirement, asserting that a
requirement to "lock out" or "tag out" equipment, without
additional detail, would "be subject to various interpretations," and
could result in unexpected activation of the equipment (ID-143, p. 2).
OSHA recognizes that on a construction site, a piece of moveable
equipment may sometimes be the most accessible fixed point, but
acknowledges the commenter's concern that such equipment is moveable,
even if it has sufficient weight. Thus, under this final rule, an
employer must ensure that any movable equipment used as a fixed point
is "fixed," meaning that it is sufficiently heavy (such as earth-
moving equipment) to prevent movement, and that it is subject to
additional precautions to prevent unexpected movement. Accordingly, as
in the proposed requirement, to determine whether a retrieval line that
is attached to moveable equipment is "attached to a . . . fixed
point" under final Sec. 1926.1211(c)(2), OSHA will evaluate whether
the moveable equipment is effectively locked out or tagged out. In
particular, OSHA will use the final rule's definitions of "lockout"
and "tagout" in making that determination, which partially address
the commenter's concern by bringing the lockout/tagout process closer
to the protection offered by the general industry standard. For
example, as part of the tagout process, an employer must ensure that
tagout provides "equivalent protection" to lockout or that lockout is
infeasible. Consequently, the employer must take whatever measures are
necessary to prevent unexpected energization or movement of the
equipment. Placing a "do not move" tag in the truck or other
equipment would not be sufficient by itself. Typically, such measures
include activating an emergency brake or similar device, removing the
key from the equipment after ensuring that duplicates are not readily
available on the site, placing a tag on the equipment to warn others
not to start it, and informing any potential operator(s) not to move
the equipment while it is serving as a fixed point for rescue. If the
equipment is capable of activation by remote control, then the employer
must secure the remote control or disable that capability to prevent
unexpected movement.
Final Sec. 1926.1211(c)(2) is performance oriented, and allows
flexibility in the design specifications of the retrieval equipment,
subject to the requirements of Sec. 1925.1211(c)(3) (equipment must be
suitable). One commenter asserted that there are many instances when
the use of a tripod assembly with a three-way retrieval system is
effective (ID-060, p. 1). Final Sec. 1926.1211(c)(2) does not prohibit
the use of such a device if it meets the requirements of this
subparagraph. A different commenter asserted that final Sec.
1926.1211(c)(2) should be performance based because of ongoing
advancements in confined-space retrieval equipment, and suggested
incorrectly that the proposed rule limited retrieval by specifying the
use of anchor points or simple pulleys (ID-116, p. 3). The definition
of "retrieval system" in final Sec. 1926.1202 is performance based,
and allows for technological advancements in retrieval equipment. This
definition does not limit retrieval to the use of anchor points or
simple pulleys.
One commenter asserted that final Sec. 1926.1211(c)(2) should
require an employer to have the retrieval system located at the
confined space opening (ID-025, p. 4). Final Sec. 1926.1211(c)(2)
requires the employer to have the retrieval system available as soon as
needed, which ensures that rescue can begin immediately. Another
commenter asserted that the proposed language "available as soon as
needed" was too vague, and that a retrieval device could satisfy this
provision even if kept elsewhere on the worksite and not installed (ID-
095, p. 4). Final Sec. 1926.1211(c)(2) addresses this commenter's
concern by requiring attachment of the retrieval line to the
appropriate retrieval mechanism (a mechanical device if the depth
exceeds five feet, or a fixed anchor point for shallower entries) "in
such a manner that retrieval can begin as soon as the rescuer becomes
aware that rescue is necessary," thus ensuring that the line will be
available and ready for use when needed. If the retrieval device is not
at the opening of the permit space, then the employer is responsible
for demonstrating that it could initiate
retrieval immediately as soon as the rescuer becomes aware that rescue
is necessary.
Paragraph (c)(3). Final Sec. 1926.1211(c)(3) prohibits an employer
from using equipment that is unsuitable for retrieval, such as
retrieval lines likely to become entangled or that are ineffective due
to the configuration of the PRCS. Final Sec. 1926.1211(c)(3) is
similar to proposed Sec. 1926.1213(a)(4). There is no corresponding
provision in Sec. 1910.146.
A retrieval device, for example, would not be suitable unless it is
designed and rated for human use. The provision does not require
certification of the retrieval system, but OSHA will accept
certifications by manufacturers, as well as listing by a Nationally
Recognized Testing Laboratory, as evidence of the proper design and
rating. If the employer fabricates its own retrieval device, OSHA will
look for evidence that the employer designed, manufactured, tested, and
certified the retrieval device in accordance with generally accepted
industry practices (for example, by a registered professional
engineer).
This final provision prohibits the use of retrieval lines that have
a reasonable probability of becoming entangled with the retrieval lines
used by other authorized entrants, or due to the internal configuration
of the PRCS. The Agency believes that there are situations in which the
retrieval lines of two or more employees can become entangled, such as
when the employees' work requires that they move around each other.
There are also a variety of situations in which the configuration of
the PRCS would interfere with a non-entry rescue and cause further
serious injury to authorized entrants in need of rescue. For example,
the permit space may have objects or equipment protruding from its
walls, or sharp corners that may damage rescue equipment or prevent the
use of certain types of non-entry rescue equipment.
Final Sec. 1926.1211(c)(3) also prohibits the use of other
unsuitable equipment, such as equipment that increases the overall risk
of entry or impedes rescue of an authorized entrant. Under final Sec.
1926.1211(c)(3), the mechanical retrieval device used must be
appropriate for rescue service. This requirement follows the general
industry standard, which was based on the record in that rulemaking
indicating that incapacitated entrants could easily be bounced around,
torn apart, or impaled if too much torque was applied to the retrieval
line or the retraction of the line was not precisely controlled (see
the general industry preamble discussion at 58 FR 4531). Accordingly,
the employer must not use any mechanical device, such as a fork lift or
backhoe, that could injure the entrant during rescue. Using a material
hoist to both haul material and to serve as a rescue retrieval system
during an entry operation also is not acceptable. In such a situation,
the material hoist would not be available for rescue when it is hauling
materials; further delay would result when, during a rescue operation,
the attendant would have to detach the retrieval line from the
materials and attach it to the employee requiring rescue. See Oct. 6,
1995, letter to Mr. Joseph Bouchard. The employer also must not use
powered winches without a stop clutch or other power-limiting device.
Such winches can cause injuries to an entrant if the entrant becomes
entangled on an object inside the permit space, but the winch continues
to pull the entrant (58 FR 4462, 4531 (Jan. 14, 1993)).
Prohibiting such unsuitable equipment will reduce the injuries and
deaths that would result from the use of unsuitable retrieval equipment
during rescue operations. The Agency did not receive any comments
objecting to the propriety of this approach and, therefore, finalized
this proposed prohibition of unsuitable rescue equipment.
Paragraph (d). Final Sec. 1926.1211(d), which is identical to
Sec. 1910.146(k)(4), requires an employer to provide relevant
information about a hazardous substance to a medical facility treating
an entrant exposed to the hazardous substance if the substance is one
for which the employer must keep a safety data sheet (SDS) or other
similar information at the worksite. The Agency recognizes that such
information may already be available to medical facilities from other
sources (such as state emergency-planning commissions), and that SDS or
similar written information may not be available in some instances.
However, because the timely provision of this information may be
critical to the proper medical treatment of an injured employee, and
this final standard limits the requirement to SDS or other similar
written information that the employer already must keep at the
worksite, OSHA concludes that the potential significance of this
information to the health of the employee outweighs any minimal burden
on the employer associated with providing this information. Such
information would aid emergency medical services and medical facilities
in correctly diagnosing and treating the employee rescued from the
permit space.\27\
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\27\ The employer must provide this information if other
applicable Federal regulations (such as Sec. 1910.1200--Hazard
communication) or state regulations already require the employer to
keep the SDS or other written information at the worksite.
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Section 1926.1212--Employee Participation
This section provides for employee participation in confined space
programs. The provisions in final Sec. 1926.1212 are nearly identical
to the provisions in the general industry confined spaces rule at Sec.
1910.146(l). Final Sec. 1926.1212 differs from Sec. 1910.146(1) in
that it refers to "each affected employee" rather than "affected
employees," to emphasize that an employer's responsibility in this
area flows separately to each employee, but the employer's obligation
remains unchanged. In the proposed rule, employee participation was
limited to the requirement in proposed rule Sec. 1926.1204(e) that
employers offer entry employees the opportunity to observe the
evaluation and monitoring of the permit space. One commenter suggested
that OSHA restore the employee participation requirement from the
general industry rule for the reasons OSHA added paragraph (l) to the
general industry rule in 1998, and also noted that no commenters who
favored using the general industry format raised any objections to its
employee participation requirements (ID-0220 p. 26-28). OSHA agrees,
and notes that the use of the general industry language is particularly
warranted because the final rule requires a written permit-space
program in final Sec. 1926.1203(d), which was not required in the
proposed rule, so final Sec. 1926.1212(a) would ensure that employees
bring their experience to bear regarding that program.
Paragraph (a). Final Sec. 1926.1212(a), which is nearly identical
to the general industry standard at Sec. 1910.146(l)(1), requires
employers to consult with affected employees and their authorized
representatives in the development and implementation of the permit-
space program required by final Sec. 1926.1204. Allowing employees and
their authorized representatives to participate in this manner will
contribute to confined space safety. Commenters on the 1998 amendments
to the confined space standard that added Sec. 1910.146(l) noted that
employees who work in confined spaces and their representatives are
particularly well qualified to contribute to the task analysis that is
a necessary step in developing a confined space program
(63 FR 66018 (Dec. 1, 1998)). One commenter provided an example of when
he, as an employee representative, was able to identify dangerous
adhesive fumes in a confined space that could have otherwise harmed the
two employees in that space who did not identify the danger (ID-010).
These employees are most familiar with the practices used during
confined space entries. If those practices differ significantly from
the practices planned by the employer, the employer needs to know of
the differences and take appropriate steps to remedy any deficiencies
in the permit-entry procedures. Likewise, employees may know of hazards
within the space that non-entrants are not taking into consideration.
This provision leaves the final contents of the confined space program
up to the employer, but, by doing so, this provision should promote
safety and avoid the need to develop a cumbersome procedure to resolve
conflicts between employers and employees regarding confined space
entries.
Final Sec. 1926.1212(a) also is consistent with Section 2(13) of
the OSH Act, 29 U.S.C. 652(13), which emphasizes employer-employee
cooperation by stating that one of the purposes of the Act is to
"encourage joint labor-management efforts to reduce injuries and
disease arising out of employment." Congress reiterated this purpose
in a directive to OSHA to promulgate a Process Safety Management (PSM)
standard; this directive explicitly provides for employee involvement
in the development of the process safety management programs mandated
by that standard (see Chemical Process Safety Management, Pub. L. 101-
549, Title III, sec. 304(c)(3) (1990), reprinted at 29 U.S.C.A. 655
note (Supp. 1991)). OSHA also has a longstanding practice of
encouraging and promoting employer-employee cooperation as exemplified
in its 1989 Safety and Health Program Management Guidelines (54 FR
3904); these guidelines recognize the importance of involving employees
in safety and health programs at the workplace. OSHA's experience in
enforcing the employee-participation requirements under the PSM
standard and the general industry confined spaces standard convinced
the Agency of both the value and the utility of the provision in
paragraph (a).
Paragraph (b). Final Sec. 1926.1212(b), which is nearly identical
to Sec. 1910.146(l)(2), requires that affected employees and their
authorized representatives have access to all information developed
under this standard, with the clarification that this obligation
applies to each employee. Other sections of this standard, such as
final Sec. 1926.1203(d), already require that employers make some
information available to employees and their representatives. OSHA is
adding this provision for purposes of emphasis and clarification. This
provision emphasizes that employees and their representatives have a
right to all information developed under the rule affecting their
health and safety. Final Sec. 1926.1212(b) does not require employees
or their authorized representatives to request or review this
information; however, it provides them with the option of requesting
and reviewing the information should they choose to do so. Employers
need not provide separate copies of the information to each employee;
employers have flexibility in determining how to distribute the
information so long as each employee can access it.
Section 1926.1213--Provision of Documents to Secretary
Final Sec. 1926.1213 requires each employer who must retain
documentation under this final rule to make that documentation
available to the Secretary of Labor, or a designee, upon request. Final
Sec. 1926.1213 is similar to proposed rule Sec. 1925.1219(e). There
is no corresponding provision in Sec. 1910.146. OSHA added this
provision to enable the Agency to more accurately identify potential
safety hazards at a worksite and to monitor compliance with the
requirements of this standard.
The request from the Secretary or the Secretary's designee (for
example, OSHA) may be either oral or written. Unless another provision
of this standard requires employers to maintain a document at the
worksite, the employer may maintain these documents off site as long as
the employer can produce them readily to the requesting official, such
as through electronic transmission to the worksite where OSHA is
conducting an inspection. These documents pertain to the determinations
made, and actions taken, regarding hazards. They provide valuable
information to use when inspecting the worksite, including evaluating
any potential safety hazards.
At least one commenter objected to this requirement, asserting that
OSHA should have to demonstrate a need for a specific document and
obtain a subpoena, and that this requirement is a paperwork burden and
will not increase safety (ID-075, p. 11). Requesting such documentation
is already part of OSHA's standard inspection practice under the
general industry standard, as it is under many other standards. See
CPL-02-00-100, CPL-02-00-150. This provision creates no new retention
requirement--it merely confirms that when employers are already
required to maintain records, they must make those records available to
the Secretary. The provision provides employers with flexibility in
where and how such records are maintained. Though there is a small cost
to this provision, OSHA believes the safety benefit of identifying any
potential safety hazards supports the inclusion of this provision.
IV. Agency Determinations
A. Legal Authority
The purpose of the OSH Act, 29 U.S.C. 651 et seq., is "to assure
so far as possible every working man and woman in the Nation safe and
healthful working conditions and to preserve our human resources." 29
U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary
of Labor to promulgate and enforce occupational safety and health
standards. 29 U.S.C. 654, 655(b), 658.
A safety or health standard "requires conditions, or the adoption
or use of one or more practices, means, methods, operations, or
processes, reasonably necessary or appropriate to provide safe or
healthful employment and places of employment." 29 U.S.C. 652(8). A
safety standard is reasonably necessary or appropriate within the
meaning of 29 U.S.C. 652(8) if:
It substantially reduces a significant risk of material
harm in the workplace;
It is technologically and economically feasible;
It uses the most cost-effective protective measures;
It is consistent with, or is a justified departure from,
prior Agency action;
It is supported by substantial evidence; and
It is better able to effectuate the purposes of the OSH
Act than any relevant national consensus standard.
See United Auto Workers v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994)
(Lockout/Tagout II). In addition, safety standards must be highly
protective. See id. at 669.
A standard is technologically feasible if the protective measures
it requires already exist, available technology can bring these
measures into existence, or there is a reasonable expectation for
developing the technology that can produce these measures. See, for
example, American Iron and Steel Inst. v. OSHA (Lead II), 939 F.2d 975,
980 (D.C. Cir. 1991) (per curiam). A standard is economically feasible
when industry can absorb or pass on the costs of compliance without
threatening
industry's long-term profitability or competitive structure. See
American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 530 n. 55
(1981); Lead II, 939 F.2d at 980. A standard is cost effective if the
protective measures it requires are the least costly of the available
alternatives that achieve the same level of protection. See, for
example, Lockout/Tagout II, 37 F.3d at 668.
Section 6(b)(7) of the OSH Act authorizes OSHA to include among a
standard's requirements labeling, monitoring, medical testing, and
other information-gathering and information-transmittal provisions. 29
U.S.C. 655(b)(7). Finally, the OSH Act requires that when promulgating
a rule that differs substantially from a national consensus standard,
OSHA must explain why the promulgated rule is a better method for
effectuating the purposes of the Act. 29 U.S.C. 655(b)(8). OSHA
explains deviations from relevant consensus standards elsewhere in this
preamble.
B. Final Economic Analysis and Final Regulatory Flexibility Analysis
1. Introduction
The Occupational Safety and Health Administration (OSHA) finalized
its safety standard for confined spaces in construction work. When
appropriate, this final standard aligns with the confined-spaces
standard for general industry (29 CFR 1910.146), although it also has
distinctive characteristics for construction worksites. The pre-
existing rule on confined spaces in construction, 29 CFR 1926.21(b)(6),
which this final rule replaces, is merely a general training
requirement that lacks the specificity and protections that the general
industry rule--and this final standard--provide.
The final standard differs from the earlier proposed standard. OSHA
revised the proposal in response to numerous stakeholder comments,
including those from the Office of Advocacy of the Small Business
Administration (ID-119), which indicated that employers in construction
in large part followed the general industry standard and, therefore,
preferred that this final rule not depart substantially from general
industry standard. However, this final rule includes important
requirements (also present in the proposed rule) to address
communication, worksite evaluation, and training, which are absent
from, or not as clearly specified in, the general industry standard.
The final standard establishes practices and procedures that apply
to employers that have workers who enter confined spaces during
construction work, including major renovation projects. The final
standard does not apply to routine maintenance activities, which the
general industry standard covers instead.
Work in confined spaces involves a significant risk of death or
serious injury, which compliance with this rule will reduce
substantially. OSHA estimates that full compliance with this final rule
will prevent an average of approximately 5.2 fatalities and 780 lost
workday injuries each year. In particular, the Agency believes that
compliance with this final rule will avert injuries and fatalities from
causes such as asphyxiation, chemical burns, scalds, and poisonings.
Not all confined spaces pose occupational hazards. However, there
are spaces that employees can enter only after employers follow
specific procedures to ensure safety. Pursuant to the final rule,
employers must develop and implement permit programs or use specified
alternative procedures when employees work in such spaces. The standard
sets forth the requirements for evaluating hazards, identifying and
classifying confined spaces, and issuing permits or implementing
alternative procedures. When the standard requires a permit to enter a
confined space, the employer must maintain a written program and review
it annually, and prepare and post a permit for the space. Employers
also must adopt a variety of safety measures, including isolation
procedures, atmospheric testing, ventilation, monitoring, and
arrangements for rescue and emergency assistance.
As shown in Table IV-1 below, OSHA estimates that the final rule
will result in yearly compliance costs of $60.3 million (using a
discount rate of 7 percent), and yearly safety benefits, based on lives
saved and injuries prevented, of $93.6 million. Therefore, the benefits
of this final standard outweigh the costs of complying with its
provisions, yielding net benefits of $33.3 million a year. Compliance
with the final standard will result in approximately $1.55 of benefits
for every dollar of costs.
Based on the analysis presented in this FEA, OSHA concludes that
this final standard is technologically and economically feasible for
all affected industries.
This FEA includes numerous analyses OSHA is required to perform,
including the findings of technological and economic feasibility and
their supporting materials required by the OSH Act as interpreted by
the courts (in sections 5, and 7, which depend on results derived in
sections 3 and 6); the analyses required by E.O. 12866 and E.O. 13563
(primarily in sections 2, 4, 6, and 9, though these depend on material
in section 3); and those required by the Regulatory Flexibility Act
(the final regulatory flexibility analysis is presented in section 8,
but depends on or refers to results in section 3, 6 and 7 which in turn
depend, in part, on materials presented in other chapters). Terminology
and analytic methods and standards appearing in a particular chapter
correspond to the source(s) of that chapter's requirements; for
example, the legal concept of "economic feasibility," which is a key
subject of section 7, is not recognized in E.O.s 12866 or 13563 or
their associated guidance document, OMB Circular A-4.
Table IV-1--Net Benefits
[Millions of 2009 dollars]
------------------------------------------------------------------------
7% Discount 3% Discount
rate rate
------------------------------------------------------------------------
Annualized Costs
------------------------------------------------------------------------
Evaluation, Classification, Information $12.4 $12.2
Exchange and Notification..............
Written Program, Issue Permits, Verify $4.2 $4.2
Safety, Review Procedures..............
Provide Ventilation and Isolate Hazards. $2.8 $2.7
Atmospheric Monitoring.................. $11.4 $11.3
Attendant............................... $3.6 $3.6
Rescue Capability....................... $8.2 $7.6
Training................................ $11.3 $11.3
Other Requirements...................... $6.4 $6.3
-------------------------------
Total Annual Costs.................. $60.3 $59.2
------------------------------------------------------------------------
Annual Benefits
------------------------------------------------------------------------
Number of Injuries Prevented............................ 780
Number of Fatalities Prevented.......................... 5.2
Monetized Benefits...................................... $93.6
------------------------------------------------------------------------
Net Annual Monetized Benefits (Benefits Less Costs)
------------------------------------------------------------------------
$33.3 $34.4
------------------------------------------------------------------------
The remainder of this FEA contains the following chapters:
2. The Need for Regulation
3. Profile of Affected Industries
4. Benefits and Net Benefits
5. Technological Feasibility
6. Costs of Compliance
7. Economic Feasibility Analysis and Regulatory Flexibility
Determination
8. Final Regulatory Flexibility Analysis
9. Sensitivity Analysis
10. References
2. The Need for Regulation
OSHA previously considered non-regulatory alternatives and
established the need for regulation of work in confined spaces when it
promulgated the general industry standard (58 FR 4548). The Agency
asserts that the same need for regulation applies when employers are
entering these spaces to perform construction work. Confined spaces in
construction expose employees to a variety of significant hazards,
including engulfment, electric shock, burn, and atmospheric hazards
that cause serious injury and death. Although better compliance with
existing safety standards may prevent some of these incidents, research
and analyses conducted by OSHA found that many preventable injuries and
fatalities would continue to occur even if employers fully complied
with the existing standards. Relative to full compliance with the
existing standards, OSHA estimates, in Chapter 4 of this FEA, that full
compliance with the final standard would prevent an estimated
additional 780 injuries and 5.2 fatalities annually.
Executive Order 12866 provides that "[e]ach agency shall identify
the problem that it intends to address [via regulation] . . .
including, where applicable, the failures of private markets."
Executive Order 13563 reiterates that requirement. In the absence of
this regulation, many construction employees would not know about or
recognize the hazards that confined spaces, or the procedures to follow
to protect against such hazards. Even those employees with years of
experience in construction work may lack training on confined spaces,
information about specific onsite confined-space hazards, equipment
needed to monitor and ventilate confined spaces, or rescue procedures
and equipment.
The final standard for confined spaces in construction addresses
these problems. The benefits analysis presented in Chapter 4 of this
FEA shows that many accidents are potentially preventable with better
information on confined spaces and worksite conditions and the proper
confined-space procedures and equipment. When employers provide
confined-spaces training, that training may be incomplete or
ineffective in the absence of a specific set of construction
requirements addressing training for confined spaces.
To better understand the market failures that make this final rule
necessary, OSHA examined the economic incentives that underlie employer
decisions with respect to workplace safety and health. An employee
typically accepts the risks associated with a particular job in return
for two forms of compensation: (1) A wage premium for assuming that
risk; and (2) expected compensation for damages in the event of
occupational injury or illness. The rational profit-maximizing employer
will make investments in workplace safety to reduce the level of risk
to employees only if such expenditures result in at least an offsetting
reduction in the employer's payouts of wage premiums for risk and
compensation for damages. To the extent that the sum of the costs of
wage premiums and compensation for damages accurately represent the
total damages associated with workplace accidents, the rational
employer will accordingly arrive at the socially optimal level of
accident prevention from an economic efficiency viewpoint.
Consequently, the major possible sources of market failure,
resulting in an "under-provision" of health and safety, would be
either: (1) The existence of occupational accident costs borne neither
by the employee nor by the employer, or (2) the wage premiums or
compensation for damages are not fully responsive to changes in
employer-specific workplace risk. Both cases apply here.
In the first case, there are some non-fatal occupational injury and
illness costs incurred by neither the employer nor the employee. For
instance, neither employers nor employees have a vested interest in
Federal and State taxes that go unpaid as a result of an employee
injury. Such taxes typically represent 15 percent (for Social Security
alone) to 26 percent of the total value of the income loss to the
employee (IRS, 2013; Urban Institute/Brookings, 2012).\28\ Workers'
compensation payments are not subject to Federal income or Social
Security taxes (IRS, 2012), and many studies find that income losses
not compensated by workers' compensation are significant (NASI, 2012).
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\28\ The average Federal tax rate for 2009 for the middle
quintile of household income was 11.1 percent (Urban Institute/
Brookings, 2012).
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In the second case, as discussed below, the costs employers pay in
compensation for damages or wage premiums are not fully responsive to
changes in employer-specific workplace risk. Accordingly, most
employers cover compensation for injured employees
through workers' compensation insurance. (Some very large employers may
self-insure in some states.) States highly regulate premiums for
workers'-compensation insurance and, generally, employ a combination of
a class rating and an experience rating in deriving premiums (NCCI,
2013; Ashford, 2006). States base the class rating on the average risk
for employees in the same occupations as those working for the
employer. The basis of the experience rating is the employer's actual
workers'-compensation claims over the past several years. States use
class rating for almost all very small firms and some medium-sized
firms. Very large firms use either experience rating, but it takes
several years before their insurance premiums account fully for changes
in their workplace safety performance. States assign many firms a
combination of class and experience ratings.\29\ As a result, most
employers will not receive full or prompt reductions in their workers'
reduced premiums for the expenditures they made to prevent workplace
injuries, illnesses, and fatalities. From a societal perspective, the
result is an insufficient level of worker protection.
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\29\ Premiums due to class rating, by definition, do not vary
with an individual employer's injury experience. There is some
empirical evidence, using a difference in differences methodology,
showing that (small) firms that move from class rating to experience
rating decrease their total claims by 8 to 12 percent (Neuhauser et
al., 2013).
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Furthermore, workers' compensation covers only a small fraction of
most estimates of the willingness to pay to prevent a fatality.\30\
Additionally, workers' compensation payments do not fully compensate
injuries in that workers' compensation provides no payments for pain
and suffering, or losses other than lost wages or medical expenses
associated with injuries. There is extensive evidence that workers'
compensation does not even fully restore wages lost as a result of
long-term disability (Ashford, 2006).
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\30\ While workers' compensation varies by state, Leigh and
Marcin (2012) estimate that the average indemnity benefit for a
fatality is $225,919, far less than willingness-to-pay estimates.
For example, as explained in Chapter 4 of this FEA, OSHA uses a
willingness-to-pay measure of $8.7 million per life saved in 2009
dollars. Other agencies use different estimates, but all the values
are in the millions of dollars.
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Having to pay wage premiums for risk is another economic incentive
for employers to mitigate occupational risk. However, wage premiums do
not respond strongly to variations in risk level due to information
asymmetries. For an employer to have an adequate incentive to implement
measures that will prevent workplace incidents, it is not sufficient
that employees simply know that their work is dangerous, or even know
quantitatively that their occupation has a specific risk. Employees
must know the exact types, and the likely quantitative effects, of
safety measures and systems used by their employers; have a reasonable
expectation that their employer will continue to provide existing
safety measures in the future; and be able to act on their knowledge of
risk by readily changing workplaces or wage demands in response to
differences in levels of risk.\31\ OSHA believes that even skilled
construction workers (including some workers injured in accidents
preventable by the final rule who fall into that category) lack such
detailed employer-specific knowledge, or the ability to act on it.
Further, construction employees who typically work at a variety of
different sites, including sites controlled by multiple employers, will
find it particularly challenging to determine future risk levels, as
these levels will vary from site to site.
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\31\ Furthermore, bargaining power differences or external
constraints must not interfere in the wage setting process as these
factors do in circumstances such as monopsony or multiemployer
collective-bargaining agreement.
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In summary, OSHA believes that: (1) Neither employers nor employees
absorb the full costs of occupational injuries and fatalities; and (2)
wage premiums and workers'-compensation insurance are not sufficiently
responsive to variations in risk to assure that employers will reduce
risk to the socially optimal level. This final rule, therefore, is
necessary to address market failures and insufficient levels of worker
safety that result from externalities and information asymmetries.
OMB's Circular A-4 (OMB, 2003) states that "a demonstration of
compelling social purpose and the likelihood of effective action" may
provide the basis for a Federal regulation. The OSH Act provides a
Congressional finding as to the compelling social need for assuring
occupational safety. Congress declared that the purpose of the OSH Act
is "to assure so far as possible every working man and woman in the
Nation safe and healthful working conditions." 29 U.S.C. 651(b).
Further, by emphasizing "every working man and woman," Congress
expressed an interest in preventing unsafe workplaces to the extent
feasible, not simply in assuring that, on average, workplaces are safe.
Thus, while some employers are excessively cautious about risk, while
others are insufficiently cautious, OSHA's concern needs to be with the
insufficiently cautious employers.
3. Profile of Affected Industries
This chapter presents a profile of the industries affected by the
final standard for confined spaces in construction. It includes, for
each affected industry, estimates of the number of firms,
establishments, and employees, as well as the estimated number of
establishments affected annually by the final standard. It also
includes the number and characteristics of entries into confined spaces
covered by the final standard.
A preliminary profile of industries appeared in OSHA's Preliminary
Economic Analysis (PEA) that accompanied the proposed standard (ID-
002). For this final analysis, OSHA updated the profile to reflect the
latest available data from the Bureau of Labor Statistics, the Bureau
of the Census, the Internal Revenue Service, and other authoritative
sources and to address public comments. In addition, the Agency
organized the industries in this final analysis according to the North
American Industry Classification System (NAICS) rather than the
Standard Industry Classification (SIC) system used in the PEA. This was
necessary because OSHA wished to update the analysis using more recent
economic data and the more recent economic data uses the NAICS rather
than the SIC system.
An analysis conducted by CONSAD Research Corporation under contract
with OSHA served as the basis for the PEA (ID-003). The CONSAD report
relied on a variety of sources, including information provided by a
panel of construction industry safety experts in 1995 regarding
characteristics of, and entries into, confined spaces for 25 categories
of construction projects, as well as compliance rates for provisions of
the proposed standard. CONSAD used F.W. Dodge data to estimate the
number of construction-project starts for each project category, by
size of project
One commenter, the Associated General Contractors of America
(AGCA), presented an alternative economic analysis of the proposed
rule, prepared by Dr. N. Mike Helvacian, based in part on a survey of
AGCA's members (ID-222). That economic analysis suggested that the PEA
omitted five affected industries, including, by NAICS code: 238210
(Electrical Contractors); 221119 (Utilities--Other Electric Power
Generation); 221310 (Utilities--Water Supply Irrigation); 236118
(General Contractors in Residential Modeling); and 238220 (Plumbing,
Heating and Air Conditioning Contractors). OSHA included these five
industries, other than NAICS 221119 (Utilities--Other
Electric Power Generation), in the industry profile, and in the
estimation of compliance costs, for the final standard.
For electric power-generation industries (NAICS 221111, NAICS
221112, and NAICS 221113, in addition to NAICS 221119, in the 2007
version of NAICS), OSHA believes that most of the confined-space
entries performed are for maintenance and repair subject to General
Industry requirements under Sec. Sec. 1910.146 and 1910.269. When the
size and scope of a project involving entry into confined spaces is
large or complex enough that the work is construction work as defined
in Sec. 1910.12(b), electric utilities typically hire contractors in
industries that are already included in this FEA to perform the work
and confined-space entry. Consequently, OSHA concluded that employers
in NAICS 221119 will themselves rarely, if ever, perform work covered
by this final rule and, thus, will incur no direct costs or negligible
direct costs to comply with the final standard. By the same reasoning,
OSHA did not in the PEA, and did not in this FEA, include any other
electric power-generation industries in its industry profile or in its
estimation of compliance costs for the final standard.
Other commenters, including SBA Advocacy, pointed out that OSHA did
not include single-family housing projects in the analysis of
compliance costs in the PEA (see ID-119 and ID-219). In its original
analysis, the Agency excluded single-family housing projects, in part
because the previously mentioned panel of industry experts found that
such projects did not have entries into confined spaces covered by the
standard (see ID-003, p. 3.54). Comments in the record generally
indicate that there are a limited number of confined-space entries in
these projects. For example, the National Association of Home Builders
(NAHB) noted that "there is very limited exposure to confined space
hazards in residential construction" (ID-117). In a post-hearing
brief, NAHB explained that "although it will happen only occasionally,
permit spaces may arise in residential home construction, perhaps when
a subcontractor brings certain chemicals . . . into a confined space,
such as into a crawl space, attic, or a basement before steps are
installed" (ID-219). OSHA agrees that, although entry into confined
spaces to conduct work on home-building construction sites is rare, it
cannot rule out some potential for exposure to confined-space hazards
for this sector of the construction industry. Therefore, OSHA included
single-family home construction projects in this analysis by adding
NAICS code 236115, New Single-Family Housing Construction (except
Operative Builders), to the scope of this FEA.
In addition, OSHA believes that some residential remodeling
projects, such as an expansion of an apartment building or upgrading
HVAC systems, plumbing, or electrical systems in multi-family housing,
may constitute construction activity. Therefore, for this FEA, OSHA
added costs for employers with confined spaces in residential
remodeling projects to comply with the final standard.
Another commenter stated that the CONSAD report "specifically
excludes gas, water, sewer and municipal work from their analysis. It
is erroneous for . . . the entire sewer construction industry to be
excluded from the economic analysis" (ID-091). OSHA points out that
the PEA did not exclude the entire sewer-construction industry. Rather,
the PEA excluded new water- and sewer-line construction projects
because such work typically involves smaller lines and, therefore, does
not typically involve entries covered by the rule. However, OSHA
included entries into existing storm sewers, sanitary sewers, and sewer
manholes for construction work, including entries involved in storm
sewer and flood-control projects and sewer-, water-, and waste-
treatment plants, both in the PEA and in this FEA. OSHA also discusses
in the economic feasibility analysis the possibility that
establishments in industries that seldom have confined space entries
might occasionally have one.
OSHA concludes that the final standard will affect establishments
in 15 six-digit NAICS codes. In particular, the standard will affect
firms that perform construction work involving buildings, highways,
bridges, tunnels, utility lines, and other types of projects. Also
potentially affected by the final rule are general contractors, as well
as specialty-trade construction contractors and property owners.
Table IV-2 provides information on the estimated number of projects
for each type of construction activity, as well as the estimated number
of entrants per entry, number of entries, and worker-entry hours in
confined spaces. OSHA based this information on the estimates
originally provided in the CONSAD report.
Table IV-3 presents profile data on the number of establishments,
the number of employees, and revenues and profits for each affected
industry sector. The Agency updated this table from the PEA using the
more recent data from the 2007 Statistics of U.S. Businesses from the
Census Bureau adjusted to 2009 dollars using the GDP deflator. This is
the same source of data used in the PEA. These industries contain an
estimated combined total of over 500,000 establishments and nearly 5
million employees. The annual combined revenues of these industries in
2007 came to nearly $1.3 trillion (in 2009 dollars). Commercial and
Institutional Building Construction (NAICS 236220), the largest of
these industries in terms of annual revenue, accounted for about $393
billion of this total. However, due to the type of the activity
addressed by this rule, OSHA modeled only a small fraction of
establishments in the affected industries as performing construction
activities in confined spaces and bearing the associated compliance
costs in a given year.\32\
---------------------------------------------------------------------------
\32\ Only some construction projects involve entry into confined
spaces.
---------------------------------------------------------------------------
OSHA updated the PEA estimates of before-tax profit rates in Table
IV-3 using more recent corporate balance-sheet data from the Internal
Revenue Service's Corporation Source Book (IRS, 2013). This is a more
recent edition of the same source of data used in the PEA. For each of
the years 2003 through 2007, the Agency calculated profit rates as the
ratio of total receipts to net income by NAICS group, and averaged
profit rates across the five-year period (2003-2007). Since some data
provided by the IRS were not available at disaggregated levels for all
industries and profit rates, OSHA used data at more highly aggregated
levels as a proxy for such industries--that is, where data were not
available for each six-digit NAICS code, OSHA used corresponding four-
and five-digit NAICS codes, as appropriate.
Table IV-4 presents profile data for firms defined as small
entities by the Small Business Administration (SBA),\33\ and Table IV-5
presents profile data for very small entities, defined as firms with
fewer than 20 employees. Table IV-6 presents OSHA's estimated
compliance rates for key provisions of the final standard, which it
discusses in Chapter 6 of this FEA. Table IV-7 presents the wage rates,
in 2009 dollars, for the labor categories used in OSHA's cost analysis,
while Table IV-14 in Chapter 6 of this FEA presents other unit-cost
data used in the analysis.
---------------------------------------------------------------------------
\33\ OSHA converted revenue cutoffs for small business
designation to the closest employee number cutoffs so that it could
apply available business census employment numbers.
Table IV-2--Summary Statistics on Modeled Worker Entries Into Confined Spaces, by Type of Construction Activity and Project Size
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average number of confined spaces Total
Total per project Number of Total Number of worker Number of
number of ------------------------------------ Total Average entries entries worker entries worker- Total
Total projects number of number of into into entries into hours in worker
Project category number of with confined workers in confined confined into confined confined hours all
projects confined Existing New All spaces an entry spaces per spaces, confined spaces, spaces per projects
spaces team project all spaces per all project \a\
projects project projects
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Commercial and Public Buildings:
Small Project.................. 13,931 3,483 2 2 4 13,931 2 8 27,862 16 55,724 32 111,448
Medium Project................. 4,328 3,246 5 10 15 48,690 2 57 185,022 134 434,964 605 1,962,207
Large Project.................. 852 724 5 10 15 10,863 2 57 41,279 134 97,043 605 437,779
Warehouses:
Small Project.................. 2,609 130 2 0 2 261 2 12 1,565 18 2,348 72 9,392
Medium Project................. 4,409 220 0 2 2 441 2 4 882 7 1,543 25 5,511
Large Project.................. 462 23 0 2 2 46 2 4 92 7 162 25 578
Health Facilities and Laboratories:
Small Project.................. 2,332 117 5 0 5 583 2 29 3,381 77 8,978 294 34,310
Medium Project................. 4,419 442 4 4 8 3,535 2 13 5,745 22 9,722 65 28,724
Large Project.................. 643 129 4 4 8 1,029 2 13 1,672 22 2,829 65 8,359
Detention Facilities:
New Construction............... 163 147 1 14 15 2,201 2 43 6,308 90 13,203 87 12,763
Athletic and Entertainment
Facilities:
All Projects................... 1,378 69 1 6 7 482 2 24 1,654 46 3,169 66 4,547
Airline Terminals:
New Construction............... 59 53 1 14 15 797 2 43 2,283 90 4,779 87 4,620
Aircraft Service:
All Projects................... 295 30 0 5 5 148 2 36 1,062 72 2,124 19 551
Auto, Bus, and Truck Service:
Small Renovation............... 10 2 0 2 2 4 1 2 4 2 4 3 6
Major Renovation............... 20 12 0 8 8 96 1 16 192 22 264 92 1,104
New Construction............... 87 87 0 18 18 1,566 1 46 4,002 77 6,699 362 31,494
Residential Housing:
Small Project.................. 1,004,721 25,118 0 1 1 25,118 1 3 612 3 612 3 612
Medium Project................. 3,204 801 0 2 2 1,602 2 6 4,806 10 8,010 14 11,214
Large Project.................. 2,204 882 0 10 10 8,816 2 150 132,240 280 246,848 913 805,195
Apartments, Hotels, and
Dormitories:
All Projects................... 4,258 426 3 12 15 6,387 2 44 18,735 74 31,509 140 59,612
Streets and Highways:
Repair Storm Drain/Sewer Local 11,893 1,784 4 5 9 16,056 2 17 30,327 29 51,735 113 202,181
Street........................
Install New Storm Drain/Sewer 8,325 2,914 10 7 17 49,534 2 321 935,314 544 1,585,080 2,764 8,053,119
System........................
Lane Expansion on Major 3,568 1,784 15 13 28 49,952 2 721 1,286,264 1,463 2,609,992 6,765 12,068,165
Interstate....................
Bridges:
Small Project.................. 952 952 0 46 46 43,792 3 442 420,784 1,324 1,260,448 1,988 1,892,576
Medium Project................. 2,011 1,006 0 96 96 96,528 3 742 746,081 2,524 2,537,882 2,388 2,401,134
Large Project.................. 808 404 0 196 196 79,184 3 1,342 542,168 4,924 1,989,296 3,188 1,287,952
Dams and Reservoirs:
Small Project.................. 208 10 1 1 1 10 2 2 21 4 42 32 333
Medium Project................. 468 164 2 0 2 328 4 40 6,552 160 26,208 640 104,832
Large Project.................. 48 24 0 3 3 72 17 810 19,440 15,300 367,200 46,800 1,123,200
Storm Sewers and Flood Control:
Small Project.................. 2,489 2,489 21 2 23 57,247 1 26 64,714 26 64,714 80 198,290
Medium Project................. 350 350 0 59 59 20,650 1 437 152,950 460 161,000 598 209,300
Large Project.................. 59 59 0 193 193 11,387 1 446 26,314 478 28,202 666 39,294
Sewer, Water, and Waste Treatment
Plants:
Small Renovation............... 2,310 578 4 20 24 13,860 1 69 39,848 88 50,820 280 161,411
Major Renovation............... 1,012 708 0 34 34 24,086 1 94 66,590 126 89,258 395 279,641
New Construction............... 1,179 1,179 0 58 58 68,382 2 163 192,177 229 269,991 743 875,408
Tanks:
Minor Installation/Renovation 540 216 0 6 6 1,296 1 9 1,944 9 1,944 5 1,116
(Small Contractor)............
Minor Installation/Renovation 294 176 0 9 9 1,588 1 139 24,520 163 28,753 340 59,888
(Medium Contractor)...........
New Construction/Major 147 118 0 11 11 1,294 4 389 45,746 1,421 167,110 5,364 630,748
Renovation (Large Contractor).
Hydro-Electric Power Plants:
Small Project.................. 7 1 5 0 5 5 1 84 88 164 172 656 689
Medium Project................. 10 8 6 0 6 48 2 48 384 96 768 384 3,072
Large Project.................. 1 1 18 0 18 16 3 433 390 1,012 911 4,048 3,643
Other Power Plants:
Small Project.................. 49 0 0 0 0 0 0 0 0 0 0 0 0
Medium Project................. 119 95 11 0 11 1,047 5 252 23,990 1,304 124,141 4,035 384,132
Large Project.................. 92 87 7 0 7 612 18 604 52,790 3,590 313,766 15,880 1,387,912
Electric Substations:
Small Project.................. 34 31 2 1 3 92 2 22 673 44 1,346 176 5,386
Medium Project................. 107 102 4 3 7 712 2 138 14,028 276 28,055 1,104 112,222
Large Project.................. 13 12 4 3 7 86 2 138 1,704 276 3,409 1,104 13,634
Natural Gas Plants:
Small Upgrade.................. 4 3 0 2 2 7 1 2 7 2 7 4 13
Major Renovation............... 4 3 0 8 8 27 12 64 218 768 2,611 4,608 15,667
New Construction............... 8 7 8 28 36 265 12 728 5,358 8,728 64,238 24,135 177,631
Space Facilities:
Small Project.................. 37 37 0 15 15 555 1 43 1,591 54 1,998 196 7,252
Medium Project................. 1 1 0 27 27 27 1 78 78 95 95 342 342
Large Project.................. 1 1 0 44 44 44 1 126 126 152 152 572 572
Manufacturing Facilities:
Major Renovation............... 1,204 0 0 0 0 0 0 0 n/a 0 n/a 0 n/a
New Construction............... 1,067 107 0 2 2 213 11 51 5,442 1,001 106,807 24,000 2,560,818
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Data in this column rounded to the nearest whole hour.
n/a = not applicable (no confined spaces in this category).
Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety.
Table IV-3--Profile of Industries Affected by the Final Standard on Confined Spaces in Construction
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Estimated
Total number Total number Total annual number number of
NAICS Industry of firms in of employment in of projects establishments
industry establishments industry with confined affected
in industry spaces annually
--------------------------------------------------------------------------------------------------------------------------------------------------------
221310........................... Water Supply and Irrigation Systems.. 3,579 4,068 33,017 66 65
236115........................... New Single-Family Housing 61,262 61,613 282,851 1,340 1,321
Construction (except Operative
Builders).
236116........................... New Multifamily Housing Construction 4,319 4,373 46,634 1,482 883
(except Operative Builders).
236118........................... Residential Remodelers............... 99,592 99,791 355,134 13,542 9,602
236210........................... Industrial Building Construction..... 3,858 3,963 96,918 107 106
236220........................... Commercial and Institutional Building 41,282 42,369 670,043 9,021 6,408
Construction.
237110........................... Water and Sewer Line and Related 13,679 13,872 206,899 3,980 2,765
Structures Construction.
237130........................... Power and Communication Line and 5,099 5,750 196,223 341 341
Related Structures Construction.
237310........................... Highway, Street, and Bridge 10,953 11,746 323,289 8,843 4,275
Construction.
237990........................... Other Heavy and Civil Engineering 5,200 5,392 91,545 1,598 965
Construction.
238190........................... Other Foundation, Structure, and 5,701 5,720 45,035 2,680 1,182
Building Exterior Contractors.
238210........................... Electrical Contractors and Other 79,011 80,172 825,169 2,680 2,680
Wiring Installation Contractors.
238220........................... Plumbing, Heating, and Air- 99,374 100,806 1,012,541 2,935 2,934
Conditioning Contractors.
238310........................... Drywall and Insulation Contractors... 21,785 22,458 320,238 2,680 2,284
238910........................... Site Preparation Contractors......... 41,251 41,517 331,237 255 255
-------------------------------------------------------------------------------
Total............................. 495,945 503,610 4,836,773 51,551 36,066
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average
Revenues ($ revenues per Profit rate Estimated Average profit
NAICS Industry thousand) firm ($ (percent) profits ($ per firm ($
thousand) thousand) thousand)
--------------------------------------------------------------------------------------------------------------------------------------------------------
221310........................... Water Supply and Irrigation Systems.. $7,999,900 $2,235 5.89 $471,431 $132
236115........................... New Single-Family Housing 103,600,723 1,691 4.53 4,692,648 77
Construction (except Operative
Builders).
236116........................... New Multifamily Housing Construction 24,939,736 5,774 4.53 1,129,658 262
(except Operative Builders).
236118........................... Residential Remodelers............... 75,344,805 757 4.53 3,412,781 34
236210........................... Industrial Building Construction..... 26,486,027 6,865 4.53 1,199,698 311
236220........................... Commercial and Institutional Building 392,958,284 9,519 4.53 17,799,246 431
Construction.
237110........................... Water and Sewer Line and Related 51,808,802 3,787 5.98 3,099,719 227
Structures Construction.
237130........................... Power and Communication Line and 35,528,777 6,968 5.98 2,125,685 417
Related Structures Construction.
237310........................... Highway, Street, and Bridge 112,052,152 10,230 5.98 6,704,076 612
Construction.
237990........................... Other Heavy and Civil Engineering 24,090,901 4,633 5.98 1,441,358 277
Construction.
238190........................... Other Foundation, Structure, and 7,085,701 1,243 4.58 324,258 57
Building Exterior Contractors.
238210........................... Electrical Contractors and Other 129,184,454 1,635 4.54 5,864,637 74
Wiring Installation Contractors.
238220........................... Plumbing, Heating, and Air- 167,754,151 1,688 3.86 6,470,472 65
Conditioning Contractors.
238310........................... Drywall and Insulation Projects...... 42,281,365 1,941 4.58 1,934,891 89
238910........................... Site Preparation Contractors......... 67,939,838 1,647 4.77 3,243,144 79
-------------------------------------------------------------------------------
Total............................. 1,269,055,615 2,559 4.72 59,913,701 121
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety.
Table IV-4--Profile of SBA-Defined Small Entities Within Industries Affected by the Final Standard on Confined Spaces in Construction
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total number Estimated Estimated
Total number of Total annual number number of
NAICS Industry of firms in establishments employment in of projects establishments
industry-size in industry- industry-size with confined affected
grouping size grouping grouping spaces annually
--------------------------------------------------------------------------------------------------------------------------------------------------------
221310........................... Water Supply and Irrigation Systems.. 3,579 4,068 33,017 66 18
236115........................... New Single-Family Housing 61,065 61,125 241,095 953 953
Construction (except Operative
Builders).
236116........................... New Multifamily Housing Construction 4,208 4,218 31,694 828 728
(except Operative Builders).
236118........................... Residential Remodelers............... 99,571 99,657 347,579 12,848 9,468
236210........................... Industrial Building Construction..... 3,687 3,699 33,998 24 24
236220........................... Commercial and Institutional Building 40,279 40,424 415,362 4,463 4,463
Construction.
237110........................... Water and Sewer Line and Related 13,348 13,379 140,854 2,272 2,272
Structures Construction.
237130........................... Power and Communication Line and 5,012 5,121 84,488 112 112
Related Structures Construction.
237310........................... Highway, Street, and Bridge 10,205 10,255 134,875 2,784 2,784
Construction.
237990........................... Other Heavy and Civil Engineering 5,001 5,011 45,364 584 584
Construction.
238190........................... Other Foundation, Structure, and 5,638 5,650 35,003 1,763 1,112
Building Exterior Contractors.
238210........................... Electrical Contractors and Other 77,933 78,115 558,977 1,446 1,446
Wiring Installation Contractors.
238220........................... Plumbing, Heating, and Air- 98,267 98,468 727,726 1,722 1,722
Conditioning Contractors.
238310........................... Drywall and Insulation Projects...... 21,264 21,304 176,689 1,130 1,130
238910........................... Site Preparation Contractors......... 40,840 40,900 257,517 169 169
-------------------------------------------------------------------------------
Total............................. 489,841 496,340 3,247,574 31,116 26,985
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average
Revenues ($ revenues per Profit rate Estimated Average profit
NAICS Industry Thousand) firm ($ (%) profits ($ per firm ($
Thousand) Thousand) Thousand)
--------------------------------------------------------------------------------------------------------------------------------------------------------
221310........................... Water Supply and Irrigation Systems.. $2,510,882 $713 5.89 $147,965 $ 42
236115........................... New Single-Family Housing 76,651,638 1,255 4.53 3,471,975 57
Construction (except Operative
Builders).
236116........................... New Multifamily Housing Construction 15,147,671 3,600 4.53 686,122 163
(except Operative Builders).
236118........................... Residential Remodelers............... 73,283,645 736 4.53 3,319,420 33
236210........................... Industrial Building Construction..... 10,421,351 2,827 4.53 472,040 128
236220........................... Commercial and Institutional Building 199,388,653 4,950 4.53 9,031,411 224
Construction.
237110........................... Water and Sewer Line and Related 32,860,609 2,462 5.98 1,966,049 147
Structures Construction.
237130........................... Power and Communication Line and 15,098,169 3,012 5.98 903,323 180
Related Structures Construction.
237310........................... Highway, Street, and Bridge 43,921,533 4,304 5.98 2,627,824 258
Construction.
237990........................... Other Heavy and Civil Engineering 10,427,684 2,085 5.98 623,888 125
Construction.
238190........................... Other Foundation, Structure, and 5,277,635 936 4.58 241,517 43
Building Exterior Contractors.
238210........................... Electrical Contractors and Other 80,826,690 1,037 4.54 3,669,320 47
Wiring Installation Contractors.
238220........................... Plumbing, Heating, and Air- 111,089,247 1,130 3.86 4,284,841 44
Conditioning Contractors.
238310........................... Drywall and Insulation Contractors... 23,969,602 1,127 4.58 1,096,903 52
238910........................... Site Preparation Contractors......... 49,943,011 1,223 4.77 2,384,056 58
-------------------------------------------------------------------------------
Total............................. 750,818,022 1,533 4.74 35,447,057 72
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety.
Table IV-5--Profile of Very Small Entities (Fewer Than 20 Employees) Within Industries Affected by the Final Standard on Confined Spaces in Construction
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total number Estimated Estimated
Total number of Total annual number number of
NAICS Industry of firms in establishments employment in of projects establishments
industry-size in industry- industry-size with confined affected
grouping size grouping grouping spaces annually
--------------------------------------------------------------------------------------------------------------------------------------------------------
221310........................... Water Supply and Irrigation Systems.. 3,413 3,428 12,676 11 11
236115........................... New Single-Family Housing 59,376 59,385 185,153 580 580
Construction (except Operative
Builders).
236116........................... New Multifamily Housing Construction 3,760 3,761 15,035 271 271
(except Operative Builders).
236118........................... Residential Remodelers............... 97,291 97,294 258,012 7,105 7,105
236210........................... Industrial Building Construction..... 3,225 3,227 16,136 8 8
236220........................... Commercial and Institutional Building 33,977 33,992 174,975 1,329 1,329
Construction.
237110........................... Water and Sewer Line and Related 11,242 11,242 57,685 642 642
Structures Construction.
237130........................... Power and Communication Line and 3,973 3,976 21,403 17 17
Related Structures Construction.
237310........................... Highway, Street, and Bridge 8,011 8,014 42,634 601 601
Construction.
237990........................... Other Heavy and Civil Engineering 4,321 4,323 18,871 166 166
Construction.
238190........................... Other Foundation, Structure, and 5,244 5,244 19,607 706 706
Building Exterior Contractors.
238210........................... Electrical Contractors and Other 71,144 71,156 297,375 544 544
Wiring Installation Contractors.
238220........................... Plumbing, Heating, and Air- 89,245 89,255 388,409 655 655
Conditioning Contractors.
238310........................... Drywall and Insulation Projects...... 18,832 18,837 77,284 336 336
238910........................... Site Preparation Contractors......... 37,690 37,691 139,196 64 64
-------------------------------------------------------------------------------
Total............................. 450,744 450,825 1,724,451 13,035 13,032
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average
Revenues ($ revenues per Profit rate Estimated Average profit
NAICS Industry Thousand) firm ($ (percent) profits ($ per firm ($
Thousand) Thousand) Thousand)
--------------------------------------------------------------------------------------------------------------------------------------------------------
221310........................... Water Supply and Irrigation Systems.. $1,814,859 $532 5.89 $106,949 $31
236115........................... New Single-Family Housing 58,016,827 977 4.53 2,627,902 44
Construction (except Operative
Builders).
236116........................... New Multifamily Housing Construction 6,202,571 1,650 4.53 280,949 75
(except Operative Builders).
236118........................... Residential Remodelers............... 53,069,089 545 4.53 2,403,792 25
236210........................... Industrial Building Construction..... 4,744,855 1,471 4.53 214,921 67
236220........................... Commercial and Institutional Building 77,231,171 2,273 4.53 3,498,225 103
Construction.
237110........................... Water and Sewer Line and Related 12,423,307 1,105 5.98 743,286 66
Structures Construction.
237130........................... Power and Communication Line and 3,755,169 945 5.98 224,672 57
Related Structures Construction.
237310........................... Highway, Street, and Bridge 14,530,558 1,814 5.98 869,363 109
Construction.
237990........................... Other Heavy and Civil Engineering 4,349,517 1,007 5.98 260,231 60
Construction.
238190........................... Other Foundation, Structure, and 2,892,942 552 4.58 132,388 25
Building Exterior Contractors.
238210........................... Electrical Contractors and Other 40,914,727 575 4.54 1,857,422 26
Wiring Installation Contractors.
238220........................... Plumbing, Heating, and Air- 55,526,805 622 3.86 2,141,733 24
Conditioning Contractors.
238310........................... Drywall and Insulation Projects...... 11,280,100 599 4.58 516,203 27
238910........................... Site Preparation Contractors......... 25,679,366 681 4.77 1,225,818 33
-------------------------------------------------------------------------------
Total............................. 372,431,864 826 4.72 17,582,974 39
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety.
Table IV-6--Estimated Compliance Rates for Construction Projects Affected by OSHA's Final Standard for Confined Spaces in Construction
[By project category]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Written
Entrant programs Classify
training Information (and formal spaces and Lockout/ Mechanical Attendants Rescue
Project category (a) exchange annual issue tagout ventilation (percent) capability
(percent) (percent) review) permits (percent) (percent) (percent)
(percent) (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Commercial and Public Buildings:
Small Project............................... 65 75 50 83 83 86 83 N/A
Medium Project.............................. 83 75 70 93 86 90 86 79
Large Project............................... 86 80 80 97 93 93 93 86
Warehouses:
Small Project............................... 62 50 50 69 65 48 100 N/A
Medium Project.............................. 62 50 50 69 86 48 100 N/A
Large Project............................... 62 50 50 69 86 48 100 N/A
Health Facilities and Laboratories:
Small Project............................... 58 65 25 58 58 58 100 N/A
Medium Project.............................. 58 65 25 58 58 58 100 N/A
Large Project............................... 58 65 25 58 58 58 100 N/A
Detention Facilities:
New Construction............................ 100 20 0 45 N/A 93 65 86
Athletic and Entertainment Facilities:
All Projects................................ 33 75 20 47 37 47 N/A N/A
Airline Terminals:
New Construction............................ 100 20 0 45 N/A 93 65 86
Aircraft Service:
All Projects................................ 34 75 20 48 N/A 48 N/A N/A
Auto, Bus, and Truck Service:
Small Renovation............................ 38 20 10 65 N/A 31 N/A 72
Major Renovation............................ 38 20 10 65 N/A 31 N/A 72
New Construction............................ 100 80 80 65 N/A 100 N/A N/A
Residential Housing:
Small Project............................... 38 0 0 31 45 83 93 N/A
Medium Project.............................. 45 5 0 45 58 83 93 N/A
Large Project............................... 65 30 10 72 83 83 93 N/A
Apartments, Hotels, and Dormitories:
All Projects................................ 38 75 20 51 41 51 N/A N/A
Streets and Highways:
Repair Storm Drain/Sewer-Local Street....... 82 80 75 96 96 94 97 97
Install New Storm Drain/Sewer System........ 89 85 85 96 98 96 98 98
Lane Expansion on Major Interstate.......... 93 90 90 96 99 96 99 99
Bridges:
Small Project............................... 82 0 5 100 N/A 100 100 100
Medium Project.............................. 82 0 80 100 N/A 100 100 100
Large Project............................... 82 5 5 100 N/A 100 100 100
Dams and Reservoirs:
Small Project............................... 52 50 60 72 68 52 100 100
Medium Project.............................. 72 50 70 84 76 60 100 N/A
Large Project............................... 88 95 100 100 N/A 100 100 N/A
Storm Sewers and Flood Control:
Small Project............................... 63 50 50 100 N/A 56 N/A N/A
Medium Project.............................. 93 80 80 100 N/A 100 N/A N/A
Large Project............................... 93 80 80 100 N/A 100 N/A N/A
Sewer, Water, and Waste Treatment Plants:
Small Renovation............................ 63 50 30 93 N/A 63 N/A 85
Major Renovation............................ 63 50 30 93 N/A 63 N/A 85
New Construction............................ 63 50 30 93 N/A 63 N/A 85
Tanks:
Minor Installation/Renovation (Small 60 45 40 85 64 71 67 71
Contractor)................................
Minor Installation/Renovation (Medium 71 60 60 93 71 78 82 78
Contractor)................................
New Construction/Major Renovation (Large 85 80 80 96 82 85 89 85
Contractor)................................
Hydroelectric Power Plants:
Small Project............................... 64 90 95 96 100 71 86 N/A
Medium Project.............................. 82 95 100 100 N/A 78 100 N/A
Large Project............................... 89 95 100 100 N/A 86 100 N/A
Other Power Plants:
Medium Project.............................. 70 95 80 85 N/A 78 78 74
Large Project............................... 96 95 95 100 N/A 96 100 96
Electric Substations:
Small Project............................... 96 95 95 96 N/A 96 96 96
Medium Project.............................. 96 95 95 96 N/A 96 96 96
Large Project............................... 96 95 95 96 N/A 96 96 96
Natural Gas Plants:
Small Upgrade............................... 55 40 40 93 100 78 55 55
Major Renovation............................ 70 60 50 100 100 93 N/A N/A
New Construction............................ 93 90 90 100 N/A 93 100 100
Space Facilities:
Small Project............................... 93 90 90 100 N/A 93 N/A N/A
Medium Project.............................. 93 90 90 100 N/A 93 N/A N/A
Large Project............................... 93 90 90 100 N/A 93 N/A N/A
Manufacturing Facilities:
New Construction............................ 43 50 50 86 N/A 65 43 43
--------------------------------------------------------------------------------------------------------------------------------------------------------
(a) Current compliance rates for attendant training are nearly identical to the rates for entry training, but may be somewhat lower for some project
categories based on estimates provided by CONSAD's 1995 industry expert panel. See CONSAD report (2005) for details.
N/A = Not Applicable (treated as "0%" in calculations).
Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety.
Table IV-7--Loaded Hourly Labor Rates Applied in OSHA's Cost Analysis of
the Final Standard for Confined Spaces in Construction
[2009 dollars]
------------------------------------------------------------------------
Labor category Wage rate
------------------------------------------------------------------------
Construction supervisor................................. $42.16
Skilled worker.......................................... 29.60
General construction employee........................... 24.93
Clerical employee....................................... 22.53
Unskilled worker........................................ 22.67
------------------------------------------------------------------------
Source: Department of Labor, OSHA, Directorate of Standards and
Guidance, Office of Regulatory Analysis-Safety, based on data from
Bureau of Labor Statistics 2009 Occupational Employment Statistics
(OES) Survey.
4. Benefits and Net Benefits
Introduction
The final standard will improve the safety of workers who encounter
confined spaces in construction. Confined spaces represent special
safety problems because it can be difficult to exit them and it may be
difficult to provide aid if an incident occurs in a confined space.
There are also certain types of hazards, such as low oxygen levels,
accumulations of dangerous gases, and engulfment by water that are
particularly likely to be found in confined spaces. As a result, OSHA
developed a programmatic approach to assure the safety of workers who
must work in the vicinity of confined spaces. This programmatic
approach includes provisions for identifying confined spaces and the
hazards they may contain; removing the hazards if possible; restricting
entry through a permit system where employers cannot remove the hazard;
providing appropriate testing and equipment when employees must enter a
space; providing for attendants; and arranging for rescue services when
emergencies occur in a confined space.
Independent researchers found that a similar system in general
industry significantly reduced confined-spaces incidents (Seong and
Mendeloff, Assessing the Accuracy of OSHA's Projections of the benefits
of New Safety Standards, 2004). The Seong and Mendeloff paper estimates
at least a fifty percent reduction in total deaths in two BLS fatality
categories: "inhalation in enclosed, restricted, or confined spaces,"
and "depletion of oxygen in enclosed, restricted, or confined
spaces," following the implementation of the general industry rule.
These two categories would include a number of kinds of events not
covered by the general industry confined space standard, such as
inhalation of toxic substances in a room (for example, there are some
fatalities every year from using paint or paint strippers in ordinary
rooms not adequately ventilated for the purposes of heavy chemical use
that nevertheless would not be confined spaces). These kinds of events
would be included in the denominator of Seong and Mendeloff analysis
but would not be affected by the general industry confined space rule.
The Seong and Mendeloff analysis does not attempt to determine if the
incidents included in its analysis occurred in a confined space, much
less whether the confined spaces rule was being followed. OSHA believes
that most of the remaining confined space incidents in general industry
are the result of failure to follow that standard. Compliance with the
provisions of this standard will reduce accidents, injuries, and
fatalities in confined spaces in construction. In particular, the
number of injuries and fatalities from causes such as asphyxiation,
lethal gas, chemical burns, explosions, drowning, and failed rescue
attempts will decline.
For the Preliminary Economic Analysis (PEA), OSHA developed
estimates of the benefits associated with the proposed standard by
estimating the numbers of fatalities and injuries likely prevented by
full compliance, and then applied monetary values to them. Table IV-8
shows the Agency's estimate of the annualized monetary benefits
associated with the final standard. The remainder of this section
details OSHA's methodology for estimating those benefits.
Table IV-8--Estimated Value of Annualized Benefits *
------------------------------------------------------------------------
Benefits Number Monetized value
------------------------------------------------------------------------
Fatalities Avoided................ 5.2 $45.2 million. \a\
Injuries Avoided.................. 780 $48.4 million. \b\
-------------------------------------
Total........................... ........ $93.6 million.
------------------------------------------------------------------------
* In 2009 dollars.
\a\ Based on an estimated value of $8.7 million per fatality avoided.
\b\ Based on an estimated value of $62,000 per injury avoided.
Estimation of Prevented Fatalities
In the analysis CONSAD Research Corporation (CONSAD) submitted to
OSHA and which OSHA reviewed and approved for use in the PEA, the
CONSAD researchers used OSHA's Integrated Management Information System
(IMIS) and the Bureau of Labor Statistics (BLS) Census of Fatal
Occupational Injuries (CFOI) to develop the estimated safety benefits
or the number of fatalities and injuries potentially avoided as a
result of this standard. Using these sources, CONSAD gathered data on
the number of fatal and non-fatal construction-related accidents
involving the entry of a confined space by applying a search criterion
relevant to both confined spaces and construction work. For data
collected from the IMIS database, CONSAD searched for accident reports
with construction industry SIC codes of 15, 16, and 17, and then
manually reviewed those reports and the narratives of the accidents for
factors indicative of an enclosed or confined space-related injury.
Such factors included specific
types of environmental hazards, certain events and human errors, as
well as the type and source of an injury (see Section 4.1.1 of the
CONSAD Report for a detailed list of the factors; Docket ID: OSHA-2007-
0026-0003). Outside of the search criteria, CONSAD also reviewed
incident reports where the Agency cited employers for violations of
other OSHA standards involving constructions hazards similar to those
hazards found in confined spaces; however, OSHA assured that the
analysis excluded any cases involving a confined-space entry or cases
largely involving work activity covered by OSHA standards--subpart P,
subpart S, subpart V or any General Industry standard.
For data collected from CFOI, BLS provided CONSAD with a research
data file, procured under a confidentiality agreement, which contained
detailed information about work-related fatalities such as employee
occupation, industry, worker activity, the type and source of the
injury, the event, the location of the accident, as well as a narrative
description as to how the injury occurred. CONSAD used the BLS Confined
Space Fatality Study--1992 (BLS, 1992b) as a reference guide for
developing the screening criteria used to identify fatal confined-space
accidents in the CFOI file since the BLS study also used CFOI data and
defined a confined space similar to OSHA's General Industry confined-
spaces standard. Figure 4.1 of the CONSAD Report shows a detailed list
of the factors used to screen the CFOI data file for confined-space
accidents. Like the data used from the IMIS database, CONSAD manually
reviewed each CFOI record and eliminated any accident that did not
involve a confined space or that involved work activity covered by
another OSHA standard.
From the IMIS database, CONSAD reviewed fatality and injury cases
that occurred during the period of April 1984 to October 2001, and
identified a total of 102 accidents related to confined spaces in
construction. These accidents resulted in 84 fatalities and 88
injuries. The complete list of these accidents, along with their
narratives, is available in Appendix C.1 of the CONSAD Report. Since
the CFOI program did not begin collecting work-related fatality data
from all 50 states and the District of Columbia until 1992, any data
prior to 1992 was incomplete and, therefore, eliminated from further
analysis. As a result, CONSAD only reviewed cases from the CFOI
research data file that occurred during the period of 1992 to 2000,
identifying a total of 21 accidents related to confined spaces in
construction that resulted in a total of 24 fatalities. Due to the
confidentiality agreement made between CONSAD and BLS, the details of
these cases were not made available for public viewing. In an effort to
be consistent with the data-collection process used with the CFOI data,
CONSAD limited its analysis of the IMIS fatality and injury data to the
period of 1992 to 2000. Using this constraint, the IMIS data yielded a
total of 44 accidents related to confined spaces in construction that
resulted in 34 fatalities and 39 injuries. Collectively from these two
data sources, CONSAD was able to identify a total of 65 accidents
related to confined spaces in construction during the period of 1992 to
2000 in which 58 fatalities and 39 injuries occurred.\34\
---------------------------------------------------------------------------
\34\ While there is overlap between fatalities and injuries
reported in OSHA IMIS and BLS CFOI, using information such as date,
time, place, and names of affected individuals and firms allowed the
contractor to find the unique incidents reported in each database.
---------------------------------------------------------------------------
For the PEA, OSHA used the 58 selected fatalities from the 9-year
period of 1992 to 2000 as a baseline to develop an estimate of the
number of fatalities and injuries that this standard would potentially
prevent. At that time, OSHA estimated that there was an average of 6.44
\35\ confined-spaces-in-construction fatalities per year. In Section
4.3 of the CONSAD Report, CONSAD, with the assistance of its safety
professional, did a further analysis of the fatality data used to
estimate the safety benefits in the PEA and developed a methodology for
determining the likelihood of preventing an accident with full
compliance with the provisions of this standard. Using the expertise of
CONSAD's safety engineer, CONSAD assigned each accident used in the
analysis a ranking of 1 to 4, with 1 meaning that it was highly
unlikely that the standard would prevent the victim's fatality or
injury, and 4 meaning that is was highly likely that the standard would
prevent the victim's fatality or injury. CONSAD then translated these
rankings into probabilities that the standard would prevent each
fatality or injury, using percentages of 5 percent for a ranking of 1,
35 percent for a ranking of 2, 65 percent for a ranking of 3, and 95
percent for a ranking of 4.\36\ CONSAD subsequently aggregated the data
and drew the conclusion that full compliance with the standard would
prevent, on average, 91 percent of the fatalities and injuries.\37\
OSHA reviewed and approved the CONSAD analysis and applied this
probability prevention rate to the fatality estimate of 6.44 fatalities
per year, and estimated in the PEA that full compliance with the
provisions of this standard would prevent an estimated 5.9 (rounded to
6) confined-spaces-in-construction fatalities per year.
---------------------------------------------------------------------------
\35\ A commenter stated that "it is unknown and not reported
how OSHA has determined these figures. Practically, it is unknown
how there could be a .44 fatality" (ID-0100). OSHA notes that the
estimated number of preventable fatalities can take on decimal
values since it is an average value.
\36\ CONSAD estimated a maximum effectiveness in preventing
fatalities of 95 percent because the researchers believed that even
a reasonable effort at compliance would not result in perfect
compliance. OSHA believes that this percentage is very conservative
as the standard has multiple layers of protection that assure that
even fail to comply with some requirements, there are further
protections to preventing fatalities and for reducing fatalities to
injuries. The standard is unlikely to prevent any fatalities only
when the employer completely fails to identify a space as a confined
space and, thus, fails to take any of the appropriate measures.
However, if there is a complete failure to identify a confined
space, the employer will incur no costs.
\37\ Thus, the vast majority of the accidents had a rating of 4
and a 95 percent probability of prevention.
---------------------------------------------------------------------------
One commenter, Associated General Contractors of America (AGCA),
commissioned a report by Dr. N. Mike Helvacian (ID-222) that made
several criticisms of the methodology for estimating prevented
fatalities and injuries in the PEA. The report characterized the
approach to assigning prevention probabilities to accidents as "a
subjective assessment that cannot be reproduced by other safety
professionals" (p. 57). Another commenter stated that there was no
basis for the estimate that full compliance with the final standard
would eliminate 90 percent of fatalities and injuries (ID-100).
In light of such comments, as well as other comments received on
the proposed rule and the PEA, OSHA reevaluated the original fatalities
used to develop the benefits estimates and revised its values
accordingly, as shown in Table IV-8. Based on the IMIS data, the CONSAD
analysis showed 44 accidents during the period of 1992 to 2000 (listed
in Appendix C.1 of the CONSAD Report, beginning at CONSAD Accident
Number 57 and ending with CONSAD Accident Number 100), of which 34
fatalities and 39 injuries were reported.\38\ Of those 44 accidents, 27
of them included fatalities listed, along with their narratives, in
Table IV-9 below.\39\
---------------------------------------------------------------------------
\38\ Note that an accident could involve several workers, with
some injured and some killed.
\39\ Table IV-9 only provides the narratives of the fatalities
(with injuries omitted) shown in Appendix C.1 of the CONSAD Report;
the CONSAD accident number listed for each accident in the table
refers to the location of the narrative for that accident in the
report.
---------------------------------------------------------------------------
Due to a confidentiality agreement made with the Bureau of Labor
Statistics, OSHA did not include details
of the accidents gathered from the CFOI database in the PEA or this
FEA. However, the CONSAD report provides a detailed description of the
methodology used to collect construction-related accidents involving
confined-space entries from the CFOI database; OSHA made this
description available for public viewing and commenting in the docket
under Docket ID: OSHA-2007-0026-003.
OSHA still believes that CONSAD's analysis of the number of
accidents that would be prevented by the standard given full compliance
is reasonable. First, no existing standard provides a comprehensive
approach to confined spaces in construction. There is an existing
construction standard requiring employers to train employees in
confined-space hazards. However, this existing standard does not
specify what constitutes a confined space, nor does it specify the
contents of the training that would serve to prevent fatalities or
injuries due to confined-space hazards. There are also rules governing
specific hazards, such as immediately dangerous to life and health
(IDLH) atmospheres and hazardous gases, but OSHA did not adapt these
rules to the specific circumstances of confined spaces; therefore,
these rules are unlikely to provide adequate protection to workers when
they encounter the hazards within a confined space. As demonstrated by
the number of fatalities and injuries between 1992 and 2000, and
confirmed by the supplemental data indicating that the fatalities and
injuries continued to mount in more recent years, the existing rules
have not been effective in preventing confined-space fatalities in
construction. OSHA shares the belief of the ACCSH, as well as the other
industry representatives who recommended that OSHA conduct this
rulemaking, that a rule specific to confined spaces in construction
could prevent these fatalities in a way that existing rules do not.
Table IV-9 shows fatalities occurring as a result largely of
atmospheric hazards--either insufficient oxygen or the presence of
lethal gases, particularly carbon monoxide or hydrogen sulfide--all of
which this standard would prevent. This standard also could prevent
fatalities that resulted from construction-related explosions or fires.
In addition, a number of the fatalities were the result of would-be
rescuers entering a confined space to assist another employee and
succumbing to the same hazard, a result this standard would prevent.
Perfect compliance with the final standard would prevent all of
these fatalities in several ways. First, identification of confined
spaces would trigger the need for analysis and testing for possible
hazards, as well as restrictions to prevent unauthorized entry. To the
extent employers find hazards but cannot remove them, a system of
controls would go into place. This system would prevent casual entry
into confined spaces, such as occurred in CONSAD accident number 76 and
entry by an employee working alone as occurred in the accidents with
CONSAD accident numbers 72 and 84.\40\ When entry was necessary, there
would need to be appropriate and continuous testing, and employers
would have to install ventilation to remove the atmospheric, or
explosion and fire, hazards, or provide appropriate PPE. Better data
sharing also may prevent some accidents, such as accident number 92.
These factors would prevent most fatalities resulting from to
atmospheric or explosion hazards.
---------------------------------------------------------------------------
\40\ Hereafter, this discussion will refer to all incidents by
their CONSAD accident numbers.
---------------------------------------------------------------------------
To the extent these measures failed, the final standard also
includes provisions for rescue, and prohibitions against unauthorized
rescue entries. Rescue provisions may not prevent all fatalities that
result from hazards such as explosions, but they can be crucial when
atmospheric hazards are present. Adequate rescue might prevent
fatalities that do not result in instant death. For example, quick
withdrawal of workers from an explosive atmosphere or workers suffering
from asphyxiation (followed by adequate first-aid measures) could
prevent many fatalities. The rescue provisions would also prevent
fatalities due to entry of inadequately equipped rescuers, either by
removing the need for entry (providing non-entry rescue capability) or
by assuring that the rescuers have adequate equipment for entry. Such
rescue-related fatalities occurred in accidents 72, 84, and 97, and
nearly occurred in several other accidents such as accident number 92.
In addition to atmospheric hazards, Table IV-9 shows a few other
types of hazards. These include drowning and physical hazards such as
dislodged plugs. The provisions for upstream-warning systems might
prevent some of these drownings. Several of the accidents involved
physical hazards posed by pipe plugs (or exposure to the physical
hazards only temporarily restrained by the pipe plug); the requirements
in the final standard to remove or isolate physical hazards through
physical barriers or other means, rather than temporarily controlling
the physical hazards, would eliminate employee exposure to such hazards
during a confined-space entry and prevent some of these drownings. For
example, having water bypass an area, rather than relying on a plug to
hold the water, would prevent some of these accidents. The ability to
quickly remove an injured employee with a retrieval line would also
prevent a fatal accident in some cases. In many cases, better hazard
awareness, compliance with permit-program requirements that prohibit
entry when hazards are present, and the use of retrieval lines and
other rescue procedures would make a difference.
Based on this review, OSHA believes that CONSAD's estimate that the
standard would prevent 91 percent of the confined-space fatalities in
their database seems reasonable. In almost all cases, multiple
provisions would, if fully followed, completely prevent the fatalities.
However, this estimate is in some senses a maximum estimate of the
effectiveness of the standard. The estimate assumes full compliance,
and OSHA's experience in general industry shows that perfect compliance
with a similar standard was not achieved.\41\ It is also possible,
though none of the accidents examined illustrate this phenomenon, that
an employer might have confined space incident even when in compliance
with the standard due to an unanticipated equipment failure (such as an
air hose developing leaks) or gross human error (such as an attendant
falling asleep). However, not a single incident OSHA has examined
occurred in a situation in which an employer was in compliance with the
provisions of the standard.
---------------------------------------------------------------------------
\41\ Seong and Mendeloff (2004) have found that past OSHA safety
regulations' effectiveness at reducing occupational hazard-related
mortality has been substantially lower than estimated by OSHA. It
should be noted that (1) OSHA is forecasting effectiveness with full
compliance and Seong and Mendeloff measured effectiveness given
actual compliance, and (2) OSHA uses a fundamentally different
approach to estimating benefits to this (and most other) safety
standards than was used in the analyses the Seong and Mendeloff
study reviewed. Nevertheless, this study potentially provides
empirical support for the characterization of 91 percent as an upper
bound in terms of the benefits that will actually be realized.
---------------------------------------------------------------------------
In this Final Economic Analysis (FEA), OSHA revised its estimates
with the same methodology used in the PEA, but also added supplementary
data (i.e., Table IV-10, described later in this section) whereby the
Agency used new data to address a commenter's point and to confirm the
continuing validity of the original data.
Several commenters questioned generally whether OSHA properly
included the accidents used to estimate benefits in the PEA, but did
not point
to any specific accidents that they would remove from the list of IMIS
fatalities provided in the public record for this rulemaking. One of
these commenters, the Associated General Contractors of Texas--Highway,
Heavy, Utilities and Industrial Branch (AGCT), stated that OSHA did not
specify the industry sectors in which the fatalities and injuries
occurred (ID-0124).
AGCT also asserted that "most potential exposures to confined
space hazards in the construction industry occur in connection with
excavation operations," and that other standards adequately address
these hazards (ID-124). Another commenter stated that the PEA included
accidents in trenches, while the proposed standard excluded trenching
work (ID-035). In response, OSHA notes that the proposed standard did
not apply to non-sewer construction work regulated by 29 CFR part 1926,
subpart P--Excavations. However, the proposed standard applied to sewer
work that fell under subpart P and, therefore, the inclusion of some
accidents in trenches was consistent with the scope of the proposed
rule. Final Sec. 1926.1201(b) eliminates the distinction between non-
sewer construction work and other construction work; the final standard
clearly states that it does not apply to work regulated by 29 CFR part
1926, subpart P. As a result, the FEA does not include the costs and
benefits associated with accidents occurring in trench-related
activities unless they also involve confined spaces other than the
trench (e.g., a pipe placed inside the trench).
In addition, AGCT asserted, without support, "Most sewer related
fatalities involve municipal workers who are not covered by OSHA
standards" and expressed concern that it would be unfair and improper
for OSHA to include benefits to municipal workers not covered by OSHA
standards (ID-124). AGCT did not, however, point to any examples in the
IMIS fatality data on the record that involved municipal workers. OSHA
reexamined the 1992-2000 IMIS data and did not find any indication that
these examples involved fatalities of municipal workers. Moreover,
while AGCT's assertion may hold true with respect to the normal
maintenance activities in sewers typically performed by municipal
workers, AGCT did not distinguish in its comments between municipal-
worker fatalities resulting from sewer work performed as part of
construction and normal maintenance activities. To the contrary, it is
OSHA's understanding that private contractors perform most sewer-
construction activities.
Another commenter, Edison Electric Institute, stated that the
analysis did not explain the basis for determining how the included
accidents involved construction work, and that the analysis should
exclude "public sector" work (ID-210, Tr. pp. 98-100). OSHA limited
the accidents that served as the basis of the benefits analysis in the
PEA to construction work based on the industry code of the employer of
the worker involved in the accident. The final standard covers
employers subject to OSHA enforcement authority and engaged in
construction activity not covered by 29 CFR part 1926, subparts Y--
Commercial Driving Operations, P--Excavations, or S--Underground
Construction, Caissons, Cofferdams, and Compressed Air, so the final
standard covers "public sector" work only to the extent that such
work is within OSHA's enforcement authority. To the extent that
"public sector" work means work conducted by municipal employees,
OSHA refers to its response in the previous paragraph.
In response to these criticisms, OSHA reviewed the fatalities in
the CONSAD IMIS database with respect to the issue of whether a
construction standard would cover those accidents. First, the standard
would cover municipal workers in state-plan states. However, there is
not a single instance in Table IV-9 that identifies a municipal worker
as a fatality. As CONSAD reported, all fatalities were for firms in a
construction SIC code, and not for firms in a local government SIC
code. Some commenters may believe, incorrectly, that contracted
construction work funded by a municipality in a non-state plan state is
not subject to OSHA standards; if the work involves an employee of a
private-sector employer, that employer is subject to OSHA standards
regardless of whether or not a local government funds the work.
OSHA then examined whether the general industry standard or any
other OSHA standards covered the fatalities. It is difficult to
determine coverage from the IMIS descriptions alone, so OSHA examined
what standards it cited at the time of the fatality investigation. Even
this approach may be unreliable because there may be a citation for a
violation associated with a fatality inspection that did not involve a
violation that directly contributed to the fatality. OSHA found that
only two fatality accidents (89 and 99) had any citations under general
industry standards. Absent a clear indication of a causal link between
the general industry work cited and the fatality, OSHA is reluctant to
remove these accidents. Moreover, even if these fatalities were the
result of general industry activity, OSHA believes that it should
include these two fatalities as prevented by the construction standard
because it is possible that the employer believed the activities
constituted construction work and, therefore, not covered by the
general industry standard. With the promulgation of this final rule, it
will now be clear that all confined spaces are subject to an OSHA
standard, and that similar precautions apply to these spaces.
With respect to excavations, OSHA found only three accidents in
which it cited the excavation standard (66, 80, and 86). However, OSHA
believes that in all three cases, the fatality occurred in a confined
space. The accident investigator identified the worksite in Accident 66
as a confined space. Accident 80 describes an entry into a manhole,
which normally means a confined space. Accident 86 describes the
activities as "finish up work," implying the excavation phase of the
project was complete when the accident occurred.
Several of the accidents involved underground activities, so OSHA
examined the accidents for citations to subpart S, OSHA's underground
construction standards. OSHA did not find any such citations and,
therefore, did not exclude any accidents on that basis.
As a result of the decision, discussed in the cost analysis in this
FEA, to exclude costs in state-plan states that adopted some provisions
of a confined-spaces standard for construction, OSHA examined whether
any of the fatalities involved citations to a state confined-spaces-in-
construction standard. OSHA found two such cases--Accidents 67 and 82.
Accident 67 occurred in Alaska, which has a comprehensive confined-
space-in-construction standard that included almost all of the
provisions in this final confined-space standard. OSHA decided not to
include this fatality in the list of fatalities that this standard
would prevent given full compliance with the rule. Accident 82,
however, occurred in a state that required only mechanical ventilation
of confined spaces, and no other provisions of this OSHA standard. OSHA
believes that a full confined-space program compliant with this
standard would prevent this accident, while a simple ventilation
requirement would not.
Table IV-9--Confined Spaces in the Construction Industry
Fatal Accidents and Injuries--1992-2000
[As listed in the Consad report]
----------------------------------------------------------------------------------------------------------------
Number of
Consad accident No. Year Industry SIC Type of confined reported Inspection/
code space fatalities activity No.
----------------------------------------------------------------------------------------------------------------
57............................ 1992 1623 sewer/pipe/manhole. 1 109472456
----------------------------------------------------------------------------------------------------------------
Description of Accident:
At approximately 11:30 a.m. on April 16, 1992, Employee #1 entered a 15 ft. 9 in. deep manhole that was part of
a new sewer line installation project in order to plug two sewer lines with wing nut plugs. Employee #2 and a
third employee were at the top of the manhole watching as Employee #1 entered the hole and inserted one plug
near the top, then proceeded down the ladder to the bottom to install the second plug, which took approximately
4 minutes to install. Employee #1 then stated he was hot, started up the ladder, and fell unconscious to the
floor. Employee #2 entered the manhole and attempted to sit Employee #1 upright. Employee #2 then began feeling
faint and started up the ladder to exit. A little more than halfway up he passed out and was left hanging from
the ladder. The third employee then ran for help. A superintendent tied a rope around himself, held his breath,
and rescued Employee #2, who was transported to the hospital, where, after undergoing a blood gas test, he was
treated for carbon monoxide exposure. Employee # 1 died from acute carbon monoxide poisoning before he was
retrieved from the manhole. The company had no confined space entry procedure in place for this particular job
site because they did not consider new manholes to reasonably pose a risk to workers. No measuring equipment
was used to detect toxic or combustible gases and oxygen levels. No mechanical ventilation was used. No rescue
equipment was available.
----------------------------------------------------------------------------------------------------------------
61............................ 1992 1799 Other.............. 1 115562290
----------------------------------------------------------------------------------------------------------------
Description of Accident:
At approximately 7:45 a.m. on October 27, 1992, Employee #1 was preparing to fiberglass the interior surface of
a swimming pool that measured 30 ft long and 16 ft wide with a depth of 4 ft at the shallow end and 9 ft at the
deep end. Overnight, a water faucet adjacent to the pool had leaked water into the pool. Employee #1 was
removing the standing water in the bowl of the deep end. Initially, he used a sponge and bucket to remove the
water. Later, he used about 2 gal of acetone to help accelerate evaporation of the remaining water. He then
used a non-explosion-proof shop vacuum to vacuum the remaining water-acetone mixture. Switching on the vacuum
created a spark that ignited the acetone vapor in the bowl of the pool. The resulting explosion and fire caused
second- and third-degree burns on 70 percent of his body. Employee #1 was hospitalized until November 12, 1992,
when he died of complications.
----------------------------------------------------------------------------------------------------------------
64............................ 1993 1623 sewer/pipe/manhole. 1 114834930
----------------------------------------------------------------------------------------------------------------
Description of Accident:
On September 17, 1993, Employee #1, of Dan's Excavating Inc., a laborer on a sewer construction crew, entered a
26 ft deep manhole to check the line sight glass for water levels. After he had climbed to the bottom of the
manhole, Employee #1 made a noise as if he were clearing his throat and then started climbing back out. When
Employee #1 was 6 to 8 ft from the top he looked up, let go of the ladder, and fell backward to the bottom of
the manhole. Employee #1 died of asphyxia. The atmosphere had not been tested before he entered the manhole.
When it was later tested at the manhole level from which Employee #1 fell, an oxygen deficiency was found.
Citations were issued for serious violations of R408.40121(1), R408.40121(2), and R408.41115(8).
----------------------------------------------------------------------------------------------------------------
65............................ 1994 1771 sewer/pipe/manhole. 1 124771049
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 was applying grout in a manhole. There had been a 20 to 36 in. rubber plug installed into a 36 in.
sewer line that entered the manhole in which Employee #1 was working. For some unexplained reason, the rubber
plug exploded, hitting Employee #1 and forcing him down the downflow side of the sewer line. Employee #1 died
at the scene of severe head injuries.
----------------------------------------------------------------------------------------------------------------
66............................ 1994 1629 Undetermined....... 1 107232167
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 entered a confined space with a lighted torch. The atmosphere was not tested and contained an
explosive concentration of propane gas. The propane gas exploded, sending the employee approximately 20 feet in
the air, and igniting his clothing. Employee #1 sustained 2nd- and 3rd-degree burns over 70 percent of his
body. He died of respiratory arrest two days later. A propane torch had been left on in the space overnight and
the flame had gone out, allowing propane to accumulate. Citations were issued.
----------------------------------------------------------------------------------------------------------------
67............................ 1994 1623 Undetermined....... 1 124078163
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 died of asphyxia when he was directed to enter a confined space without full compliance with
confined space standards and associated procedures.
----------------------------------------------------------------------------------------------------------------
68............................ 1994 1623 sewer/pipe/manhole. 1 109054866
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employees #1, #2, and #3 were in a dry well modifying sewer mains. Fluids left in the pipe for three months
flowed into the work area. The fermenting fluids released hydrogen sulfide gas. Employees #1 and #2 were
hospitalized. Employee #1 died of asphyxiation. Employee #2 is in a long term health care facility in
Westchester, NY. Employee #3 was treated and released.
69............................ 1994 1794 sewer/pipe/manhole. 1 110465739
----------------------------------------------------------------------------------------------------------------
Description of Accident:
At approximately 7:00 a.m. on November 21, 1994, Employee #1 and a coworker, laborers, began removing the rubber
bladder plugs from a 48 inch storm sewer drain system to allow the construction site to drain off standing
water captured by the blocked line. They climbed into the 10 foot deep manhole D-2, and placed two jointed
pieces of 2 by 4s against the end of the metal portion on the rubber bladder plug and the manhole wall to
prevent the plug from being swept downstream in the 48 inch storm sewer drain pipe. They then climbed out of
manhole D-2. Air pressure was released from the plug installed in the storm sewer drain pipe in manhole D-2 to
allow the stored water to pass. Employee #1 told his coworker to release the air pressure from the plug in
manhole mixing box D-3, located approximately 71 feet away and upstream adjacent to the flightline. When the
coworker arrived at mixing box D-3, it was under water. The employees conversed and the coworker was told to
take the air release valve assembly out of the air vent hose to completely deflate the upstream plug. The
employees knew this plug was secured by a rope attached to mixing box D-3. They stood around the opening to
manhole D-2, and conversed when they noticed the 2 by 4 brace holding the rubber bladder plug in manhole D-2 in
the inflow pipe was coming loose. Employee #1 entered manhole D-2 without an access ladder and attempted to
shore up the brace by stomping it back into a horizontal position while standing on the lip of the outbound
pipe. He was washed down the storm drain and drowned.
----------------------------------------------------------------------------------------------------------------
70............................ 1995 1623 sewer/pipe/manhole. 1 116508169
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 was standing on a ladder while removing the rubber plug of an 8 inch sewer line in a manhole. He
fell from the ladder into the bottom of the manhole, which contained waste product. Employee #1 attempted to
climb out, but fell backward into the manhole. Employee #1 drowned in the bio-residue that was at the bottom of
the manhole.
----------------------------------------------------------------------------------------------------------------
72............................ 1995 1542 Pit................ 2 108724915
----------------------------------------------------------------------------------------------------------------
Description of Accident:
At approximately 7:45 a.m. on November 9, 1995, Employees #1 and #2 were dismantling a scaffold that was
approximately 12 ft above an open 45 ft by 60 ft excavation. Employee #1 allegedly fell into the pit on the
west side. Employee #2 ran to the ladder on the east side of the pit to help. He collapsed at the bottom of the
pit by the ladder. Employees #3 and #4 also went into the pit by the east side ladder. Employee #3 collapsed
behind the ladder on a dirt mound about 3 to 5 ft above the bottom of the pit. While descending the ladder,
Employee #4 began to feel lightheaded and weak in the knees, and was pulled out of the pit by two Reynolds
employees. Two coworkers, who were fire brigade members, also responded to the emergency. One descended the
ladder without SCBA and collapsed at the bottom of the pit on top of Employee #2. The other coworker also
started down the ladder without SCBA, began to feel lightheaded and weak in the knees, and was pulled out by
Reynolds employees. Employees #1 through #3 died of asphyxia and Employee #4 was hospitalized for approximately
one month. Argon gas had been used instead of compressed air to operate a pump that removed water from the pit.
----------------------------------------------------------------------------------------------------------------
76............................ 1996 1623 sewer/pipe/manhole. 1 300602943
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 and a coworker were assigned to search for a missing plug in one of several manholes in an active
sewer system. They opened three manholes, climbed down 12 ft, and used a flashlight to look in the 15 in.
pipes. Employee #1 then went into a fourth manhole, where he was overcome by toxic gases. He died several hours
later.
----------------------------------------------------------------------------------------------------------------
77............................ 1996 1629 sewer/pipe/manhole. 1 300947256
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1, a laborer, and his foreman arrived at a manhole to open a mechanical valve at the bottom of the
manhole. While Employee #1 was removing the manhole cover, the foreman was 5 ft away at his truck getting the
air tester. When the foreman turned around to go back to the manhole, he saw the top of Employee #1's head
disappear into it. The foreman then looked down into the manhole and saw that Employee #1 was unconscious. The
foreman tested the air in the manhole and obtained a reading of 14% oxygen. He immediately called 911, and
Employee #1's body was retrieved by the local fire department with the use of SCBAs. OSHA's testing of the
manhole showed oxygen levels of between 12 and 14 percent. Tests for carbon monoxide, hydrogen sulfide, and
flammable vapors were negative. Tests for carbon dioxide were positive, with a reading of 35,000 ppm.
----------------------------------------------------------------------------------------------------------------
78............................ 1997 1711 Pit................ 1 116308453
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 was working at the bottom of a 10 ft deep pit when he passed out. A coworker who went down to rescue
him started to feel sick, so he emerged from the pit and called for help. He then reentered the pit with a
second coworker, who passed out before Employee #1 could be rescued. The first coworker was again able to
escape. Emergency Services arrived and extricated Employee #1 and the second coworker from the pit. Employee #1
died of asphyxia from inhalation of argon gas.
----------------------------------------------------------------------------------------------------------------
79............................ 1997 1794 sewer/pipe/manhole. 1 127317493
----------------------------------------------------------------------------------------------------------------
Description of Accident:
At approximately 11:00 a.m. on March 4, 1997, Employee #1 entered a recently constructed 8 ft deep by 4 ft
diameter manhole to retrieve a clod of dirt on the bottom. He was one his way out when he fell back in and lost
consciousness. Employee #1 died of asphyxia. He apparently was overcome by high levels of methane gas.
----------------------------------------------------------------------------------------------------------------
80............................ 1997 1623 sewer/pipe/manhole. 1 122227283
----------------------------------------------------------------------------------------------------------------
Description of Accident:
At approximately 4:30 p.m. on August 4, 1997, Employees #1 through #3 were working on a sewer system project in
a residential area. Employee #1 descended into a 12 ft deep manhole to apply jointing compound and to remove
some laser sighting equipment. After several minutes, Employees #2 and #3 noticed that Employee #1 had
collapsed. They shouted to the foreman, who ran to the manhole, surveyed the situation, and immediately called
911 from his truck. Meanwhile, Employees #2 and #3 entered the manhole to rescue Employee #1. Employee #3 later
stated that he did not notice any unusual odors, but that he and Employee #2 began to feel dizzy during their
rescue efforts. They lifted Employee #1 to coworkers at the surface, after which Employee #3 climbed out of the
manhole and collapsed. Employee #2 tried to ascend the ladder, but collapsed to the bottom of the manhole.
Employees #2 and #3 were taken to separate hospitals and treated for carbon monoxide exposure. Employee #1 was
taken to the emergency room, where he was pronounced dead. The autopsy report listed the cause of death as
carbon monoxide inhalation. The employer had confined space entry procedures in place, but did not implement
them. At the time of the accident, there was no rescue equipment near the manhole and testing was not done for
toxic or combustible gases prior to the employees' entry. No mechanical ventilation was used for the manhole.
----------------------------------------------------------------------------------------------------------------
82............................ 1998 1794 sewer/pipe/manhole. 1 127298925
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 died of asphyxiation when he entered a sewer bore casing. Employee #1 entered the sewer bore casing
when the casing struck a rock and was unable to get out. A second employee also went into the casing but
managed to get out.
----------------------------------------------------------------------------------------------------------------
83............................ 1998 1623 sewer/pipe/manhole. 1 301312757
----------------------------------------------------------------------------------------------------------------
Description of Accident:
A construction crew of four men was tying an old sewer line into the new sewer system. Employee #1 broke a plug
within the new sewer line and began to climb up the ladder toward the opening of the manhole. Gas rushed from
behind the plug and overcame him, causing him to fall back into the hole. The second employee saw Employee #1
fall back into the manhole. He quickly went down to rescue him. The second employee partially reached the
bottom of the hole before he decided to come back up. The two remaining employees eventually went down into the
hole. The second employee managed to get out of the manhole and summon help. The Fire Department Rescue Team
retrieved the third and fourth employees before they became totally incapacitated. Employee #1 died of
asphyxiation. The other three employees were sent to the hospital for medical treatment.
----------------------------------------------------------------------------------------------------------------
84............................ 1998 1623 sewer/pipe/manhole. 2 110040383
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employees #1 and #2 were part of a construction crew building an extension sewer line that was to tap into an
existing city line. The crew had exposed one side of a manhole in the city sewer line and a subcontractor had
core-drilled a hole in it for placement of the new line. Some concrete remained intact after the drilling was
completed. Employee #1 was lowered into the manhole using a chain draped over a rock bar. He was immediately
overcome by the high levels of hydrogen sulfide. Employee #2 attempted to rescue him but was also overcome by
the fumes. Both workers were killed.
----------------------------------------------------------------------------------------------------------------
85............................ 1998 1623 sewer/pipe/manhole. 1 302098892
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 entered a 9 ft deep manhole to apply sealant to the connecting concrete rings. This was the last,
and the deepest, of the six manholes he had entered. Shortly after reaching the bottom, Employee #1 was
overcome by hydrogen sulfide gas that had collected in the manhole. He was killed.
----------------------------------------------------------------------------------------------------------------
86............................ 1998 4911 sewer/pipe/manhole. 1 301768784
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Some employees were installing a French drain system to collect water seeping from a slurry pond. The employees
were entering the catch basin to do the final touch-up work by riding the bucket of a backhoe down into the
basin. One of the employees, a 57-year old supervisor, was engulfed by vapors that were later found to be
hydrogen sulfide. He died of inhalation of toxic fumes. Four other employees were hospitalized for exposure to
the hydrogen sulfide.
----------------------------------------------------------------------------------------------------------------
89............................ 1999 7699 Tank............... 1 302710413
----------------------------------------------------------------------------------------------------------------
Description of Accident:
An employee was painting the interior of a 15,000-gallon water storage tank with epoxy primer paint. An airless
spray was being used for this task. An organic vapor air purifying respirator was in use and three small
exhaust fans were drawing from the 12-in. pipe openings in the tank. The employee was found dead at the bottom
of the section of the tank used for initial filling and settling. There was no confined space program or
procedure in place at the time of the incident and the employee was working alone without the knowledge of the
supervisor(s). The medical examiner's report stated that death was caused by an overexposure to organic vapors
consistent with those found in the paint formulation (MiBK, Toluene, Xylene). The Atlantic City Fire Department
Confined Space Rescue Team had measured approximately 3 of the LEL for these vapors at the time they removed
the deceased from the tank.
----------------------------------------------------------------------------------------------------------------
90............................ 1999 1799 Other.............. 1 302558580
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 was spraying Sunflex, a waterproofing substance, inside the bottom half of a 7 ft by 5 ft by 9 ft
concrete stoop while the coworker went to their truck to get more insulating boards. When the coworker
returned, he found Employee #1 collapsed at the bottom of the stoop. Employee #1 was rushed to the hospital,
where he later died.
----------------------------------------------------------------------------------------------------------------
92............................ 1999 1794 sewer/pipe/manhole. 1 303139166
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 entered a new manhole approximately 21 ft in depth and was overcome, lost consciousness, and was
unresponsive. Employee #2 entered the manhole in an attempt to rescue Employee #1 and was also overcome and
lost consciousness. Two additional co-workers attempt[ed] to rescue Employee's #1 and #2 but became dizzy,
disoriented and experienced shortness of breath. These employees were able to exit the manhole. The manhole had
been installed approximately two weeks earlier and was placed over an existing and active sewer line which had
not yet been tapped. Employee #1 was pronounced dead at the scene and Employee #2 was hospitalized.
----------------------------------------------------------------------------------------------------------------
95............................ 2000 1731 sewer/pipe/manhole. 2 119947521
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Two employees of an electrical contractor were working in a 7.9-meter-deep sump manhole at a water desalination
facility site under construction. An employee of a general contractor found the employees unconscious at the
bottom of the manhole. An outside rescue service from a local fire department responded and found the
atmosphere in the manhole to contain 8 percent oxygen at the bottom of the sump. The two employees died of
hypoxic asphyxia. Post accident evaluations found oxygen levels as low as 2 percent and elevated levels of
nitrogen and carbon dioxide. The sump was found to be in contact with warm, moist soil through a series of
interconnected perforated pipes designed to drain excess groundwater. It was suspected that biological activity
in the surrounding soil consumed the available oxygen and generated excess levels of nitrogen and carbon
dioxide.
----------------------------------------------------------------------------------------------------------------
97............................ 2000 1623 sewer/pipe/manhole. 2 303961155
----------------------------------------------------------------------------------------------------------------
Description of Accident:
At approximately 12:15 p.m. on September 26, 2000, Employees #1 and #2 were trying to unclog a sewer line.
Employee #1 entered the north manhole to place a bucket that would catch all the debris coming out of the pipe.
Employee #2 was able to release the blockage in the south manhole, and the water moved to the north manhole.
Employee #1, who was still there, called for help and Employee #2 ran to his assistance. Both workers succumbed
to gas present in the pipe, and died of asphyxia.
----------------------------------------------------------------------------------------------------------------
98............................ 2000 1771 sewer/pipe/manhole. 1 303185839
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 inserted an inflatable plug into a storm sewer pipe located at a street drain so that the pipe could
be pumped of water in order to perform concrete work at the other end of the pipe. He was half way in the drain
and was pushing on the inflatable plug to check its fit. The plug burst and blew him down an intersecting pipe
where he drowned.
----------------------------------------------------------------------------------------------------------------
99............................ 2000 1799 Other.............. 1 303682223
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employees #1 and #2, who worked for a nested maintenance contractor, were finishing the turnaround of the sulfur
recovery complex at a refinery. They were removing a 14 in. isolation blind from the overhead inlet of a
horizontal receiver vessel. The vessel was part of an amine treating unit that had been emptied, steamed out,
and drained a few days before. After several attempts, the overhead piping had been replaced and the blinds had
been removed and reinstalled. Employees #1 and #2 were working from a scaffold when they were exposed to strong
hydrogen sulfide emissions from the vessel. Employee #1 staggered away, but within minutes had lapsed into
unconsciousness and died. Employee #2 managed to escape and reach grade level. He was hospitalized for
observation and released with no lasting effects. The vessel had accumulated sour gas from a connected overhead
gas line, tied into nearby sulfur trains that were operating at relatively low pressure. The source was a
single leaking 12 in. gate valve that had been closed and locked out. Employees #1 and #2 were working without
respiratory protection or gas detection equipment. The valve inspection program, lockout/tagout program, and
respiratory protections were found lacking. At the time of the accident, the foreman was also overseeing other
crews at the site.
----------------------------------------------------------------------------------------------------------------
TOTAL NUMBER OF FATALITIES: 31
TOTAL NUMBER OF FATALITIES PREVENTABLE BY THE CONFINED-SPACES-IN-CONSTRUCTIONS PROVISIONS: 30
----------------------------------------------------------------------------------------------------------------
Source: OSHA IMIS database, analyzed by OSHA, Directorate of Standards and Guidance and Directorate of
Construction.
OSHA also reviewed the narratives for accuracy. OSHA found
duplicate fatalities reported for CONSAD Accident Numbers 65, 69, and
72, and removed those duplicates from the analysis. In this regard,
Appendix C.1 of the CONSAD Report erroneously shows two fatalities for
accident number 65, two fatalities for accident 69, and three
fatalities for accident 72. The IMIS database for these cases, however,
reported a total of one, one, and two fatalities, respectively. OSHA
then reduced the 34 fatalities cited in the initial IMIS data report to
a final total of 30 fatalities for the period of 1992 to 2000 to
account for the three duplicative fatalities, in addition to removing
the fatality described in CONSAD Accident number 67, discussed
previously. OSHA notes that the original CONSAD analysis may not
include all confined-space accidents. For example, the supplemental
analysis at the end of this chapter found several confined spaces where
there were electrical hazards; the CONSAD analysis did not include any
electrical hazards. It is possible that the original analysis
incorrectly excluded confined spaces when the only hazards were
electrical.
Due to a confidentiality agreement with BLS, OSHA could not publish
detailed information about the CFOI data used in the PEA, and OSHA no
longer has access to the research file containing the data. To account
for the possibility of human error of the initial review of the CFOI
data, OSHA made a proportionate reduction in the total fatality count
of the CFOI data used in the PEA. Applying a factor of 30/34 (derived
from the adjusted count for IMIS fatalities due to reporting errors) to
the initial CFOI fatality count of 24, the total number of CFOI
fatalities decreased to 21.
Therefore, for this FEA, OSHA concluded that a total of 51
construction-related fatalities due to confined-spaces entries occurred
during the nine-year period from 1992 to 2000. Full compliance with the
provisions of this standard would prevent an average of 5.7 fatalities
each year related to confined spaces in construction; applying a
probability prevention rate of 91 percent, the standard would prevent
5.2 fatalities each year.
AGCA noted that the results from a survey of 74 of AGCA's members,
employing 28,900 full-time workers, showed no fatalities in confined
spaces, and only two fatalities in construction, between 2005 and 2007
(p. 59). The finding that 74 employers had no fatalities in confined
spaces over a three-year period does not detract from, or contradict,
OSHA's analysis. OSHA believes that such a result is perfectly
consistent with the estimate that, from 1992 to 2000, there was an
average of 5.7 preventable confined-space fatalities per year among the
millions of workers engaged in construction covered by this standard.
Another comment from the AGCA report made several points asserting
that a standard on confined spaces in construction was unnecessary.
First, AGCA claimed that the rate of fatal and serious injuries "in
the affected industries" is declining, and, second, that OSHA's
analysis is deficient because it does not compare the construction
rates with rates across other industries. The report states that
"[t]he injury trends have cost and benefit implications for assessing
the proposal on a forward looking basis, which are not considered in
the OSHA report" (p. 58). In this case, the analysis of confined space
incidents for the period 2006 to 2009 show a slight increase, rather
than a decline, in the number of fatalities as compared to the original
1992 to 2000 period analyzed for the original PEA. OSHA therefore finds
no reason to reduce benefits or costs as result of a long term trend
toward safer practices in confined spaces. The report does not support
its claim that OSHA's analysis was somehow deficient in not comparing
the rates of injury in construction with the rates in other industries,
but OSHA notes that construction activities generally have high injury
rates. Moreover, contrary to the commenter's assertion that the
fatality rate is declining in comparison to the older set of data
analyzed in the PEA, when OSHA analyzed newer fatality data from
between 2006 and 2009 (see Table IV-10) for the purpose of confirming
the result under the older data, OSHA did not observe any decline.
Instead, it found the annual fatality rate for confined spaces in
construction over this period to be higher than during the earlier
period.
The National Utility Contractors Association (NUCA) urged OSHA to
model the construction rule on the general industry rule, as OSHA did
in this final rule. In this comment, NUCA stated:
It is also our opinion that there is no sound evidence to
support the view that a new and separate standard for construction
will reduce the number of confined space injuries and fatalities. *
* * Therefore, issuing a new, separate standard for construction
will not only create untold confusion, but also an unnecessary
burden--with no improvement in safety--on all contractors who have
been successfully using the General Industry Standard as a guideline
to safe entry into confined spaces.
(ID-075.)
NUCA also suggested the new classification system in the proposed
rule would have little benefit in terms of reduced accidents in
confined spaces, but did not provide specific data to support their
claims (ID-075). Other commenters pointed to the absence of fatalities
among employers that complied with the general industry standard when
engaged in construction activities (e.g., ID-035 and ID-113).
As discussed extensively in the preamble, this final rule is much
more similar to the general industry rule than was the proposed rule,
and it includes a number of cost-saving measures not in the proposed
rule. For example, this final rule excludes work performed under
subparts S and entirely from the scope of the standard and allows
suspension of the permit in certain circumstances. At the same time,
the final rule for construction also includes several important
distinctions and clarifications in comparison to the general industry
standard. For example, the new rule defines the term "controlling
employer" and shifts some of the duties that the general industry
standard assigns to the host employer to the controlling employer. This
difference is important in the many situations, of which there are
several reported in the database, involving host employers who need
construction work but may not directly run the confined-space program.
This final rule for construction also requires continuous
monitoring for atmospheric hazards during permit entries and during
entries under the alternative procedures specified in Sec.
1926.1203(e). With the improved technology available today, continuous
monitoring involves few costs beyond the cost of the regular monitoring
required by the general industry standard. Further, such monitoring is
necessary in confined spaces where conditions change as the work
progresses, either through the introduction of an unexpected substance
into the permit space, as in accidents number 68 and 78, or the
substances used as part of the work result in new hazards as in
accidents number 89 and 90.
To further evaluate and confirm its finding that this final
standard would reduce the number of fatalities and injuries when
entering construction-related confined spaces, OSHA added a
supplemental table (Table IV-10 shown below) using more recent accident
data, and modified its methodology for selecting relevant confined-
space fatalities. The Agency did not rely on this data in reaching any
of the findings legally required to support this rulemaking, but the
Agency concludes that this supplemental analysis confirms the overall
validity of the data on which it based those findings.
The Agency examined selected narratives of fatal accidents that
occurred in the years 2006 through 2009 and recorded in OSHA's IMIS
database. To identify fatal accidents in confined spaces, OSHA
conducted a terminology search of fatal accident narratives using a
list of several terms appearing in confined-spaces-in-construction
work.\42\ To limit the analysis to accidents related to construction
activities, OSHA identified construction-related accidents by those
employers classified under the two-digit Standard Industrial
Classification codes of 15, 16, and 17. As with the older data, OSHA
also screened the accidents for citations to subparts P (Excavations)
and S (Underground Construction). OSHA reviewed the cases and selected
only those cases covered by this final standard and that the final
standard would, with reasonable certainty, prevent if employer complied
fully with its provisions. In sum, OSHA identified 23 records involving
31 fatalities from 2006 through 2009 that met all of the above criteria
(construction-related activities; in SIC 15, 16, or 17; involved a
confined space covered by this final standard; and were preventable by
compliance with the provisions of the final standard). Table IV-10
presents these cases, along with a brief narrative for each case taken
verbatim from the IMIS records.
---------------------------------------------------------------------------
\42\ The list of search terms included the following: Confined
space, hole, pit, bin, boiler, manhole, tank, incinerator, scrubber,
pier, sewer, transformer, vault, duct, storm drain, water main,
drilled shaft, enclosed, enclosed beam, crawlspace, trench, tunnel,
vessel, digester, lift station, cesspool, silo, air receiver, sludge
gate, air preheater, step up transformer, turbine, chiller, bag
house, mixer, reactor, and cofferdam.
---------------------------------------------------------------------------
As the narratives demonstrate, these accidents usually resulted
from a failure to follow multiple provisions in the final standard. For
example, in several of the accidents listed in Table IV-10, workers
died or received injuries after entering confined spaces to attempt
rescue. These accidents were preventable had employers followed
appropriate rescue procedures, provided proper training, posted an
attendant to prevent unauthorized entry, or through a combination of
these steps, all prescribed by this final standard. In most other
examples, the prohibition on entry without a permit program in place
would prevent employee exposure to the hazard.
For the purposes of determining how the different provisions of the
standard prevent the accidents identified in the supplemental analysis,
OSHA grouped the provisions by general purpose. For example, OSHA
grouped all provisions related to evaluation and classification of
standards into one heading called "Classification and Evaluation,"
and grouped all of the provisions related to setting up and
implementing a permit system under the heading of "Permit System".
OSHA used these headings to avoid a confusing list of overlapping and
interdependent provisions, and to compare benefits to costs later in
this section.
The Agency sometimes attributed an accident to a set of provisions
even though it was unclear from the accident abstract whether the
employer followed that provision on a voluntary basis. Therefore,
although OSHA accounts for baseline compliance in terms of costs, it
does not account for baseline compliance in terms of potential
monetized benefits. OSHA believes from the descriptions of the
fatalities and injuries presented in Table IV-10 that baseline
compliance with most provisions, though high when examining compliance
across all affected industries, was minimal in the situations in which
these accidents occurred. It is unlikely that the accidents detailed in
this chapter would occur had the affected firms had a proper confined-
spaces program in place. Following some groups of provisions, such as
ventilation and hazard isolation, would have assured that the accidents
could not have possibly happened.
OSHA also used the term "potentially" in this analysis to
describe the prevention of some accidents because, as noted above, some
accident descriptions are unclear. The Agency also used the term
because some provisions, such as the training and information-exchange
provisions, do not directly and automatically prevent accidents, but
instead contribute to the likelihood that employers will correctly
follow other provisions and, therefore, prevent accidents. In the final
section of this chapter, OSHA presents a break-even sensitivity
analysis to examine further the number of injuries and fatalities that
would need to be prevented for the benefits of this standard to equal
its costs.
In some cases, a state had a confined-spaces rule in place at the
time the accident occurred. In one accident, the state rule was a
comprehensive rule similar to this final rule. OSHA removed this
accident from the database. In other cases, the state rule included
only some of the provisions in OSHA's final standard. In these cases,
OSHA did not list provisions in the OSHA standard that are also
mirrored in the state rule, but listed the OSHA provisions not mirrored
in the state rule.
In the remainder of this section, OSHA describes the groups of
provisions that it used in analyzing accidents, and the criteria for
determining whether the provision could potentially prevent the
accident. Some accidents involved more than one fatality, and, in these
cases, different sets of provisions might be relevant to different
fatalities.
Evaluation, Classification, and Notification Provisions: This group
includes all provisions related to requirements to identify and
classify confined spaces, such as Sec. Sec. 1926.1203(a) and
1926.1203(b). The evaluation and classification provisions can trigger
other employer duties, such as an employer duty to prevent entry under
Sec. 1926.1203(c), or to condition entry in accordance with Sec.
1926.1203(d). For the purposes of this analysis, this group includes
the provisions of Sec. 1926.1203(c) that require employers to use
barriers or other means
necessary to prevent unauthorized entry to a confined space. Since no
other preventive measures would go into effect without such evaluation
and classification, OSHA found that these provisions had potentially
preventive effects for all accidents examined.
Information-Exchange Provisions: This group includes all provisions
related to requirements for host contractors, controlling contractors,
and other contractors to exchange information, such as Sec.
1926.1203(h). The accident descriptions are unclear regarding
information-exchange activities. OSHA classified an accident as
potentially prevented by these provisions if the description indicated
the presence of more than one contractor or if the accident took place
in an existing structure (mainly sewers) where information about the
existing structure would almost certainly be known beforehand. OSHA did
not consider the accident potentially prevented by this provision if it
took place in a home or in new construction projects, unless there was
an indication of multiple contractors present. In those cases, there is
not typically a host employer with relevant knowledge about hidden
hazards available, but there may be multiple employers present. Because
the accident descriptions do not typically indicate whether there were
multiple employers on a site, this approach may underestimate the
number of multi-contractor sites.
Permit-Program Provisions: This group includes the provisions
requiring a permit program or alternative procedures for entry, as well
as the requirements for setting up and implementing systems, such as
Sec. Sec. 1926.1203(d), 1926.1203(e), and 1926.1204(a). OSHA
determined that these provisions could have a role in potentially
preventing accidents in all situations except where the entry took
place by explicit orders of a supervisor or where the entry was for
rescue purposes. (These two exceptions might be violations of these
requirements, but it is unlikely that a permit system could prevent
casualties related to rescue entry (though they might prevent the need
for such entry) or entries explicitly approved by supervisors.) OSHA
also noted situations in which an entry seemed to be unnecessary (such
as entries to retrieve dropped items) and, therefore, was extremely
unlikely to take place under a permit system with clear prohibitions on
unauthorized entry. OSHA determined that all such accidents involving
unnecessary entries would be preventable had employers complied with
these provisions.
Early-Warning-System and Atmospheric-Testing or -Monitoring
Provisions: This group includes all provisions that require or imply
the need for atmospheric testing or monitoring, including Sec.
1926.1203(a) (when monitoring is necessary for identification),
Sec. Sec. 1926.1204(b), 1926.1204(c), and 1926.1204(e). OSHA
determined that these provisions could have a role in preventing
accidents in all situations involving asphyxiation (whether due to lack
of oxygen or toxic gasses) or a build-up of explosive vapors. This
group also includes the requirement in Sec. 1926.1204(e)(1)(iii) to
monitor for non-isolated engulfment hazards, such as liquids flowing
through a sewer system. OSHA determined that this provision could
prevent accidents in which employees drown or asphyxiate when liquids
or other flowables that were not previously in the confined space
entered the space in the absence of barriers or other isolation methods
designed to contain such hazards.
Ventilation and Hazard-Isolation Provisions: This group includes
all provisions that require or imply the need for ventilation, as well
as isolation of physical hazards, such as parts of Sec. 1926.1203(e)
and portions of Sec. 1926.1204. OSHA included an accident as
potentially preventable by these provisions whenever the accident
occurred as a result of a hazard inside the confined space. For most of
these accidents, either ventilation or hazard-isolation measures, such
as disabling and locking out electrical hazards temporarily, could
prevent the accident. For other accidents, such as some drownings,
arranging for the bypass of water or other liquid solutions might have
been possible, thereby preventing the accident.
Provisions Requiring an Attendant: This group includes all
provisions that require or imply the need for an attendant when someone
is inside the confined space. The attendant in most cases has two
duties: (1) Assuring that continuous monitoring takes place (if it is
appropriate) and warning the person to exit the space if necessary; and
(2) conducting an appropriate non-entry rescue. For the purposes of
this analysis, OSHA listed an accident as potentially preventable had
an attendant been present if there was no notation of another person
present when someone entered the confined space. There are many other
situations in which the lack of an attendant may have been responsible
for the accident because the person present was not continually
assessing the conditions inside the permit space or was incapable of
conducting a non-entry rescue or summoning rescue or emergency
services; however, other provisions are more likely to potentially
prevent such accidents.
Rescue-Capability Provisions: This group includes all provisions,
such as Sec. Sec. 1926.1204(i) and 1926.1211, that require the
development and implementation of a plan addressing rescue capability
and summoning emergency services, with the plan involving non-entry
rescue when feasible. For the purposes of this analysis, OSHA listed an
accident as potentially preventable by improved rescue capability for
(1) all cases of asphyxiation when quick removal of endangered workers
from the confined space and prompt treatment were necessary to prevent
the fatality, and (2) for other accidents, such as drowning and
electroshock, when timely removal and treatment might have an effect.
OSHA did not consider this provision to have the potential to prevent
deaths resulting from burns, even though it is possible that more
immediate treatment or rescue before combustion occurred would mediate
or prevent the accident. OSHA also noted under this provision the
special, and all too numerous, cases when the rescuer(s) became a
fatality.
Training Provisions: This group includes all provisions that
require employers to develop and implement training, such as Sec. Sec.
1926.1207 and 1926.1208. OSHA found that better training could
potentially prevent all of the accidents, except for one accident that
was preventable using only appropriate physical barriers.
Equipment Provisions: This group includes all provisions that
require the employer to (1) provide necessary equipment, such as
communication equipment, necessary for attendants to perform their
duties (Sec. 1926.1203(d)(3)), or (2) develop appropriate lighting
(Sec. 1926.1204(d)(5)). For the purposes of this analysis, OSHA listed
an accident as potentially preventable by these provisions when
employees working together had difficulties communicating or there was
an indication of inadequate lighting or general difficulty locating
physical hazards before contacting them. There are some provisions in
this group that OSHA did not analyze in terms of their potential to
prevent accidents. These provisions include requirements for barriers
and disposable coveralls. However, OSHA's methods of searching for
confined-space accidents could not identify the accidents that these
provisions would prevent.
Table IV-10--Confined Spaces in the Construction Industry
Fatal Accidents and Injuries--2006-2009
----------------------------------------------------------------------------------------------------------------
Number of
Year Industry Type of confined space reported Activity No. 1
SIC fatalities
----------------------------------------------------------------------------------------------------------------
2006.................................. 1611 sewer...................... 2 309775443
----------------------------------------------------------------------------------------------------------------
Description of Accident:
An employee climbed down into a sewer vault to retrieve a tool he dropped and lost consciousness. A second
employee entered the sewer vault in an attempt to rescue his co-worker and also lost consciousness. Both
employees died.
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Information Exchange
Permit Program (1 of 2 fatalities)
(Not Ventilation and Hazard Isolation; Early Warning System and Atmospheric Testing or Monitoring; or Rescue
Capacity because these were already required in the State where the accident took place)
Training
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number of
Year Industry Type of confined space reported Activity No. 2
SIC fatalities
----------------------------------------------------------------------------------------------------------------
2006.................................. 1623 storm drain................ 1 308437631
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 and his crew were installing storm drainage pipes in an older neighborhood. During the installation
of the drainage pipes, damage had been caused on the existing natural gas pipe lines in the neighborhood. The
odor of gas was present prior to the day of the installation, and the local gas company had been contacted to
identify and repair the leaks. The smell of gas was still present and noticed by the supervisor, employees and
others; however, the supervisor did not contact the gas company to investigate the odor, and to locate the
leak. The supervisor also did not remove the employees from the excavation where the gas odor existed, and did
not test the atmosphere of the excavation to determine if there was a hazardous atmosphere or condition in the
excavation. The supervisor directed Employee #1 to enter the 48-inch diameter drainage pipe line to retrieve a
laser surveying machine that was located approximately 90 feet within the pipe line. Natural gas that had
escaped from two breaks in the gas line had accumulated within the storm drain pipe line. While Employee #1 was
in the pipe line, the natural gas within it ignited. The specific ignition source was not identified. Even
though severely burned, Employee #1 was able to exit the storm drain pipe line, and was taken to the hospital.
Six days later, he died as a result of his injuries.
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Information Exchange
Ventilation and Hazard Isolation
Early Warning System and Atmospheric Testing or Monitoring
Attendant
Training
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number of
Year Industry Type of confined space reported Activity No. 3
SIC fatalities
----------------------------------------------------------------------------------------------------------------
2006.................................. 1623 sewer...................... 1 310350418
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Three employees were working on a sewer system that was newly installed and not yet in use. A section of the
line had been plugged and tested for leakage. Employee #1 entered the sewer vault, which was approximately 15
to 20 feet deep, to remove a plug. Employee #1 collapsed into approximately 6 inches of unidentified liquid at
the bottom of the sewer vault. Employee #2 entered the sewer vault to assist Employee #1. Employee #2 also
collapsed at the bottom of the sewer vault. Employee #3 attempted to provide assistance to Employees #1 and #2.
Employee #3 began to feel ill about halfway down and then decided to emerge from the sewer vault. Fire/EMS
Department responded to the scene. Co-workers of the employees attached a hose approximately 19 feet long to an
air compressor and used it to blow air into the sewer vault. Employee #2 regained consciousness and was able to
assist in rescuing Employee #1 and himself from the sewer vault. All three employees were transported to area
hospitals. Employee #1 later died at the hospital. Employees #2 and #3 were treated, hospitalized, and released
in the following days.
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Information Exchange
Permit Program
(Not Ventilation and Hazard Isolation, Atmospheric Monitoring, or Rescue capacity because these were already
required in the State where the accident took place)
Training
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number of
Year Industry Type of confined space reported Activity No. 4
SIC fatalities
----------------------------------------------------------------------------------------------------------------
2007.................................. 1541 manhole.................... 1 311032809
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1, while doing an elevation survey of the invert of a storm water pipe in a manhole, entered the
manhole to find the bottom of the pipe. While in the manhole, Employee #1 was overcome due to a lack of oxygen
and died. Employee #2 entered the same manhole, and was also overcome. Employee #2 was hospitalized and
released the next day.
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Information Exchange
Permit Program (Entry very preventable)
Ventilation and Hazard Isolation
Early Warning System and Atmospheric Testing or Monitoring Attendant
Rescue Capacity
Training
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number of
Year Industry Type of confined space reported Activity No. 5
SIC fatalities
----------------------------------------------------------------------------------------------------------------
2007.................................. 1623 lift station............... 4 307043844
----------------------------------------------------------------------------------------------------------------
Description of Accident:
The victim was in the process of assisting another company with the replacement of a sump pump in an underground
lift station which collected draining and leached water from a construction debris landfill. Three employees of
the other company entered the lift station and succumbed to exposure to hydrogen sulfide gas. The victim had
entered the lift station in an attempt to assist/rescue the three victims from the other company, and also
succumbed to hydrogen sulfide gas. Rescue services arrived at the scene and performed air quality monitoring
which revealed that the victim and the three victims from the other company were exposed to concentrations of
up to 200 PPM of hydrogen sulfide gas. Body retrievals were initiated at that point. The lift station was
determined to be a permit-required confined space. The other company (host employer) had not evaluated the lift
station to determine that it was a permit-required space. Both companies had not developed and implemented a
written permit space program.
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Information Exchange
Permit Program (3 of 4 fatalities)
Ventilation and Hazard Isolation
Early Warning System and Atmospheric Testing or Monitoring
Rescue Capacity (Attempted rescue resulted in a fatality)
Training
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number of
Year Industry Type of confined space reported Activity No. 6
SIC fatalities
----------------------------------------------------------------------------------------------------------------
2007.................................. 1623 manhole.................... 2 310177456
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employees #1 and #2 were working in an approximately 7 ft diameter water vault located about 16 ft underground.
The vault contained a 12 in. water main and a 4 in. water main that was equipped with a water meter. The vault
had been constructed approximately ten days earlier and had sat undisturbed until the day of the accident, when
the employees were scheduled to conduct a pressure test of the system. Employee #1, the foreman, went down into
the vault to read the meter. When he did not return, Employee #2, a laborer, looked down through the manhole
cover and saw Employee #1 laying on the ground. Employee #2 called out to a coworker that Employee #1 was down
and then entered the vault through the manhole and climb down the ladder. The coworker came over to the manhole
and saw Employee #1 on the ground and Employee #2 hanging upside down, with his leg caught between the ladder
rungs. Neither employee responded to the coworker's calls. The coworker also started down the manhole but
noticed an overpowering musty odor and abruptly stopped and exited. The Fire Department and paramedics
responded to the job site and retrieved Employees #1 and #2, both of whom had died. At the time of rescue the
Fire Department's four gas meters measured the oxygen level in the vault at approximately 9.2 ppm. In its
referral to OSHA, the Fire Department referenced two workers who succumbed to an IDLH atmosphere.
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Information Exchange
Permit Program (1 of 2 fatalities)
Ventilation and Hazard Isolation
Early Warning System and Atmospheric Testing or Monitoring
Rescue Capacity (Attempted rescue resulted in a fatality)
Training
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number of
Year Industry Type of confined space reported Activity No. 7
SIC fatalities
----------------------------------------------------------------------------------------------------------------
2007.................................. 1623 manhole.................... 2 310253398
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 and Employee #2 were both asphyxiated when they entered a 12 ft manhole to perform grouting work.
Employee #1 entered the 12 ft manhole and collapsed. Employee #2 entered the manhole to help Employee #1 and
then Employee #2 collapsed. This was the company's first time performing sewer line work and Employee #1 and #2
entered the space without required testing. The employer did provide a tripod winch system over the manhole
with cable attached to rescue harness. In addition, a scott gas detector was used to detect any gases in hole;
none was detected. The oxygen level however was 8 near the top of the hole and 3 at or near the bottom of the
hole.
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Information Exchange
Permit program (1 of 2 fatalities)
Ventilation and Hazard Isolation
Early Warning System and Atmospheric Testing or Monitoring Provisions
Rescue Capacity (Attempted rescue resulted in a fatality)
Training
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number of
Year Industry Type of confined space reported Activity No. 8
SIC fatalities
----------------------------------------------------------------------------------------------------------------
2007.................................. 1623 manhole.................... 1 311354807
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 entered manhole to remove line plugs to activate a manhole sewer system, the manhole was 10.5 ft
deep. The probable cause of death was H2S poisoning as a result of employee working in a sewer manhole; this is
according to the county's forensic science department. The manhole had not been entered and was not monitored
for toxicity, oxygen level or explosive levels. No tripod was in-place for emergency retrieval of Employee #1.
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Information Exchange
Permit Program
Ventilation and Hazard Isolation
Early Warning System and Atmospheric Testing or Monitoring Provisions
Attendant
Rescue Capacity
Training
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number of
Year Industry Type of confined space reported Activity No. 9
SIC fatalities
----------------------------------------------------------------------------------------------------------------
2007.................................. 1721 crawl space................ 2 126192012
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1, a painting contractor, was hired by the property owner to apply primer over the creosote floor
joists. Employee #1 and #2 were working in a crawl space under the bedroom of the residence applying primer to
the floor joists. The incandescent work lamp or a broken light bulb ignited the vapors from the primer. The two
employees were burned and died. The other employees suffered minor burn injuries. The contributing causal
factors: The air in the crawl space was not flushed or purged of flammable vapors and no air testing to
determine whether dangerous air contamination or oxygen deficiency existed. Arson and homicide investigators
were called to the scene and were investigating the cause of the accident, which appeared to be accidental. The
crawlspace was located underneath one of the bedrooms and was measured between 21 in. to 22 in. from the
foundation to the floor of the bedroom.
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Permit Program
(Not Ventilation and Hazard Isolation because this was already required in the State where the accident took
place)
(Not Early Warning System and Atmospheric Testing or Monitoring because this was already required in the State
where the accident took place)
Attendant
Training
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number of
Year Industry Type of confined space reported Activity No.
SIC fatalities 10
----------------------------------------------------------------------------------------------------------------
2008.................................. 1711 lift station............... 2 312320666
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 entered a sewer lift station to check for leaks in the line. Employee #1 was overcome by hydrogen
sulfide gas. A second employee entered the station to retrieve Employee #1, and also was overcome by the gas.
Both employees died from overexposure to hydrogen sulfide gas.
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Information Exchange
Permit Program
Ventilation and Hazard Isolation
Early Warning System and Atmospheric Testing or Monitoring Provisions
Rescue Capacity (Attempted rescue resulted in a fatality)
Training
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number of
Year Industry Type of confined space reported Activity No.
SIC fatalities 11
----------------------------------------------------------------------------------------------------------------
2009.................................. 1623 manhole.................... 1 313122616
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #3 fell into a manhole and suffered a head injury and was life-flighted to the hospital. Employee #2
became unconscious in a manhole and was rescued and life-flighted to the hospital. Employee #1 entered the
manhole to attempt rescue of employee #2 and became unconscious and died before he could be rescued.
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Ventilation and Hazard Isolation
Early Warning System and Atmospheric Testing or Monitoring Provisions
Rescue Capacity (Attempted rescue resulted in a fatality)
Training
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number of
Year Industry Type of confined space reported Activity No.
SIC fatalities 12
----------------------------------------------------------------------------------------------------------------
2009.................................. 1791 tank....................... 1 311964886
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 was found unresponsive on scaffolding in the residential water tank in which he was performing stick
welding on the interior overhead of the tank. He was removed from the tank, and emergency services summoned. He
could not be revived. The medical examiner determined that core body temperature of employee #1 exceeded 109
degrees Fahrenheit, indicating that the preliminary cause of death was hyperthermia.
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Permit Program
Ventilation and Hazard Isolation (ventilation required beyond the amount needed to address welding fumes)
Attendant
Training
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number of
Year Industry Type of confined space reported Activity No.
SIC fatalities 13
----------------------------------------------------------------------------------------------------------------
2009.................................. 1794 manhole.................... 1 309620219
----------------------------------------------------------------------------------------------------------------
Description of Accident:
An employee entered into 18-in. manhole to retrieve part of laser equipment and was overcome by methane and lack
of oxygen. He died of asphyxiation.
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Information Exchange
Permit Program (Entry very preventable)
Ventilation and Hazard Isolation
Early Warning System and Atmospheric Testing or Monitoring Provisions
Attendant
Rescue Capacity
Training
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number of
Year Industry Type of confined space reported Activity No.
SIC fatalities 14
----------------------------------------------------------------------------------------------------------------
2009.................................. 1794 tunnel..................... 1 313553604
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 was inside a 24 inch pipe that ran through a tunnel underneath a highway. Employee #1 was
approximately 140 feet inside the pipe when a rain storm flooded the pipe drowning the employee.
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Information Exchange
Permit Program
Attendant
Rescue Capacity
Training
Early Warning System
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number of
Year Industry Type of confined space reported Activity No.
SIC fatalities 15
----------------------------------------------------------------------------------------------------------------
2006.................................. 1711 Crawl space................ 1 309539559
----------------------------------------------------------------------------------------------------------------
Description of Accident:
On August 7, 2006, Employee #1, of Mesquite Plumbing Company, entered the crawl space of a house undergoing
renovations to insulate a new plumbing fixture that a coworker had installed. During the course of his work he
contacted a live wire and was electrocuted.
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Permit program
Ventilation and Hazard Isolation
Attendant
Rescue Capacity
Training
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number of
Year Industry Type of confined space reported Activity No.
SIC fatalities 16
----------------------------------------------------------------------------------------------------------------
2006.................................. 1623 manhole.................... 1 310345053
----------------------------------------------------------------------------------------------------------------
Description of Accident:
On September 28, 2006, Employee #1, a construction worker, fell into a concrete manhole structure. He suffered a
fractured neck and back. Employee #1 was flown by helicopter to the hospital, where he died.
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Equipment (lack of cover or methods of assuring safety when a cover is removed)
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number of
Year Industry Type of confined space reported Activity No.
SIC fatalities 17
----------------------------------------------------------------------------------------------------------------
2007.................................. 1521 crawl space................ 1 120205794
----------------------------------------------------------------------------------------------------------------
Description of Accident:
On July 23, 2007, Employee #1, age 19, and a coworker were reinstalling an electrical outlet into a new bathroom
wall after it had been removed from the pre-existing wall. The 120-volt outlet electrical box was energized and
lying on the floor. Employee #1 went into a crawl space under the house while the coworker went to the
electrical panel and shut off the power to the home. Employee #1 was having trouble seeing in the darkness of
the crawl space, and he asked the coworker to turn on the power so he could use a halogen lamp that had a cord
running up through the floor and into an outlet in the kitchen. When the coworker turned on the power, this
also energized the electric conductors that Employee #1 was wiring in the junction box. He was lying on his
back under the floor, on top of the water line for the home. This pipe had been used to ground the electrical
system of the house when it was built and Employee #1 was electrocuted when he connected the wires. The
coworker, hearing a noise, tried to communicate with Employee #1. When he did not get a response, he again
turned off the electricity to the house. The coworker alerted the owner and tried to call 911 on his cell
phone, but could not get through. He and the owner tried to call 911 on the house's land line, but it was
electrically-based, and so they once again turned on the power to place the call. The owner then cut a hole in
the floor, removed Employee #1 from the crawl space, and attempted CPR until paramedics arrived. The coroner
stated cause of death was low voltage electrocution.
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Permit Program
Ventilation and Hazard Isolation
Attendant
Training
Equipment (lighting)
Rescue Capacity
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number of
Year Industry Type of confined space reported Activity No.
SIC fatalities 18
----------------------------------------------------------------------------------------------------------------
2007.................................. 1741 boiler..................... 1 311213326
----------------------------------------------------------------------------------------------------------------
Description of Accident:
On December 11, 2007, Employee #1 was part of a crew engaged in stone work at a residential site. To complete
the job, they covered the chimney with plastic. Once the plastic was in place, the coworkers went to put away
the tools for the night, and left Employee #1 to stitch close [ ] any openings in the plastic covering. The
chimney housed the vent for an Ultra 310 boiler system. When the coworkers returned, they found Employee #1,
unconscious, in the plastic enclosure. He died of carbon monoxide poisoning.
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Permit Program (Entry very preventable)
(Not Ventilation and Hazard Isolation or Rescue Capacity because this was already required in the State where
the accident took place)
Attendant
Training
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number of
Year Industry Type of confined space reported Activity No.
SIC fatalities 19
----------------------------------------------------------------------------------------------------------------
2008.................................. 1711 crawl space................ 1 311794093
----------------------------------------------------------------------------------------------------------------
Description of Accident:
On or about 3:30 p.m. on November 6, 2008, Employee #1, a 31 year-old-male working for Atm Plumbing, was working
in a crawl space under a private house. The crawl space was wet from recent rains. Employee #1 was using a
manual operated pipe cutter to cut a water pipe when he received an electrical shock and became unconscious.
Employee #2 was also under the house using a trouble light to illuminate the work area was not using a GFCI.
Unbeknown to Employee #1 the water pipe that he was working on was also used for the electrical grounding
system for the house. Employee #2 pulled him out of the crawl space. Paramedics transported Employee #1 to a
local hospital where he was pronounced dead.
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Permit Program
Ventilation and Hazard Isolation
Attendant
Training
Equipment
Rescue Capacity
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number of
Year Industry Type of confined space reported Activity No.
SIC fatalities 20
----------------------------------------------------------------------------------------------------------------
2008.................................. 1711 duct....................... 1 311815492
----------------------------------------------------------------------------------------------------------------
Description of Accident:
On May 21, 2008, Employee #1 was with a crew installing a steel security grate inside the duct system of a 10-
ton Trane air conditioning system (Model Number THC120A4RGAOW2B, Serial Number 8044100711L) that was located on
a roof. As he crawled into the duct to weld the grate into place, the back of his head contacted an energized
heat strip on the air conditioning unit coil. Employee #1 was electrocuted. The electrical power to the air
conditioning unit had not been deenergized and locked or tagged out.
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Permit Program
Ventilation and Hazard Isolation
Rescue Capacity
Training
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number of
Year Industry Type of confined space reported Activity No.
SIC fatalities 21
----------------------------------------------------------------------------------------------------------------
2008.................................. 1742 attic...................... 1 312098551
----------------------------------------------------------------------------------------------------------------
Description of Accident:
On May 17, 2008, Employee #1 was spraying foam insulation in the enclosed attic space of a two story, single-
family home that was undergoing renovations. He had accessed the attic via an aluminum ladder through a hole in
the second floor ceiling. A flash fire occurred, killing Employee #1. Inadequate ventilation contributed to the
buildup of vapors. The ignition source was not determined.
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Permit Program
Ventilation and Hazard Isolation
Early Warning System and Atmospheric Testing or Monitoring (Work may have caused build-up of vapors)
Attendant
Training
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number of
Year Industry Type of confined space reported Activity No.
SIC fatalities 22
----------------------------------------------------------------------------------------------------------------
2009.................................. 1731 crawl space................ 1 313555591
----------------------------------------------------------------------------------------------------------------
Description of Accident:
On August 18, 2009, Employee #1 was installing a new direct TV cable. Employee #1 was crawling under the house
and came into contact with an energized wire. He was electrocuted.
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Permit Program
Ventilation and Hazard Isolation
Rescue Capacity
Attendant
Training
Total Number of Fatalities: 30
----------------------------------------------------------------------------------------------------------------
Source: OSHA IMIS database, analyzed by OSHA, Directorate of Standards and Guidance and Directorate of
Construction.
For the FEA's supplemental data as shown in Table IV-10, OSHA, as
previously noted, carefully reviewed and selected from the IMIS
database only those cases determined preventable by full compliance
with the provisions of the final standard. As a result, OSHA did not
need to apply a probability prevention rate to estimate the number of
preventable fatalities. As itemized above, OSHA identified 30
preventable fatalities over the four-year period, 2006-2009, for an
average of 7.5 fatalities prevented annually by full compliance with
this final standard. This supplemental analysis supports OSHA's
conclusions that the problem of confined-space fatalities did not
diminish in the construction industry over this period, and that the
regulated community still needs the final standard. OSHA does not
believe this supplemental analysis is necessary, but believes that it
will aid the public in understanding OSHA's conclusions.
It is important to note that the approach used in this estimation
is conservative in that there are other fatal events that were likely
preventable but not included in the IMIS database. For example, the
Bureau of Labor Statistics' Census of Fatal Occupational Injuries for
2011 showed 111 fatalities in construction from exposure to harmful
substances or environments, and 123 fatalities from contact with
objects and equipment (these numbers include 4 fatalities in new
single-family housing construction from contact with objects and 10
fatalities in residential remodeling from exposure to harmful
substances or environments). Some fatal injuries that are preventable
by the final standard may not appear in the IMIS database because the
database only includes accidents involving a fatality or a catastrophe
with three or more injuries that result in hospitalization.
Estimation of Averted Injuries
In a 1994 report to OSHA, the Confined Spaces Work Group of the
Advisory Committee on Construction Safety and Health (ACCSH) estimated
that the ratio of lost time injuries (LTI) to fatalities in confined
spaces was approximately 100:1 for general industry and 200:1 for
construction (see ACCSH, 1994, pg. 6). In the PEA, OSHA used this range
of 100 to 200 LTIs per fatality to estimate the number of injuries
prevented by the proposed rule. At the public hearing on the proposed
rule, the Edison Electric Institute's representative noted, "There's
no explanation or support for the assertion that there has been under-
counting of injuries, however, and we cannot discern any basis for
multiplying these numbers by 100 and 200" (ID-210, Tr. p.99). As noted
above, OSHA explained that those estimates came from the ACCSH report,
which was the best available evidence. The commenter did not dispute
those numbers or, more importantly, provide any alternatives numbers as
its best evidence. Perhaps the commenter mistakenly concluded that OSHA
multiplied the IMIS injury numbers by 100 and 200; however, the
multiplication applied to the numbers of fatalities, because OSHA does
not have data on the number of non-fatal injuries.
In this FEA, OSHA provided updated estimates of the number of non-
fatal injuries involving confined spaces in construction and further
clarified the basis for its estimates. As a preliminary matter, the
Agency notes again that OSHA's IMIS database, which is the source of
information about fatal accidents, does not report most injuries. As
noted above, the IMIS database includes only accidents involving a
fatality or a catastrophe with three or more injuries that result in
hospitalization. Therefore, the IMIS database seldom captures injuries
involving accidents that do not result either in a fatality or
hospitalization of three or more workers.\43\ Because OSHA
could not find a data source for reliable estimates of non-fatal
injuries in confined spaces in construction,\44\ OSHA again relied on
the expertise of ACCSH for these estimates.
---------------------------------------------------------------------------
\43\ The Survey of Occupational Injuries and Illnesses (SOII)
produces annual estimates of counts and rates of new workplace
injuries and illnesses, but also is subject to under-reporting for a
variety of reasons, including missing cases, the reporting of sample
cases from large establishments, timeliness of updates to the logs
and data collection, and employer doubts about the recordability of
some cases (see Ruser, 2008). Furthermore, OSHA is unable to confirm
the determination of accidents in "confined spaces" as defined by
SOII and, therefore, relied on OSHA's IMIS database.
\44\ OSHA takes note of the AGCA survey finding of only 2
confined-space injuries among the 74 responding employers (ID-0222,
p. 29). However, this finding does not furnish a basis for
estimating the number of injuries preventable with full compliance
with this rule due to its lack of representativeness. Not all of the
respondents even had confined spaces on their job sites. Moreover,
AGCA designed the survey explicitly not to learn about injuries in
confined spaces, but "to determine the impact of compliance costs
for contractors under OSHA's Proposed Rule on Confined Space [sic].
. . . " It instructed respondents to "carefully review the
background information detailed below . . . before submitting your
information. OSHA's proposed rule for confined space [sic] in
construction is complicated, costly to implement, and does not
provide significant increases in safety above the existing general
industry standard." The survey did not provide a definition of a
confined space or otherwise seek to ensure that the person filling
out the survey was familiar with the appropriate definition.
---------------------------------------------------------------------------
Recognizing the age of the ACCSH Work Groups' LTI estimates of
100:1 and 200:1, OSHA attempted to corroborate these estimates using
data from the BLS CFOI and the BLS Survey of Occupational Injuries and
Illnesses (SOII). According to BLS,\45\ in 2009, there were a total of
4,090 occupational fatalities and 3,277,700 nonfatal occupational
injuries for private industry overall, and 834 fatalities and 251,000
nonfatal injuries for the construction industry. Using these estimates
of fatalities and injuries, the ratio of injuries to fatalities is
800:1 for all private industries, and 300:1 for the construction
industry.
---------------------------------------------------------------------------
\45\ Table A-1, Fatal Occupational Injuries by Industry, Event
and Exposure, available at http://www.bls.gov/iif/oshwc/cfoi/cftb0241.pdf*,
and Table 2, Number of Nonfatal Occupational Injuries
and Illnesses by Case Type and Ownership for Selected Industries,
2009 News Release USDL 10-1451, available at
http://www.bls.gov/news.release/pdf/osh.pdf*.
---------------------------------------------------------------------------
In light of the large injury-to-fatality ratios apparent in the
recent CFOI and SOII data, OSHA confirmed that the ratios recommended
by the expert ACCSH Confined Spaces Work Group are reasonable and
conservative, and used the average of the two ratios (150 injuries per
fatality) in this FEA to estimate the number of non-fatal injuries.
Calculations relating publicly reported injury-to-fatality statistical
data in construction also confirm the reasonableness of the estimates
OSHA used.\46\
---------------------------------------------------------------------------
\46\ See, for example, Dong, X., et al. (2011).
---------------------------------------------------------------------------
Based on OSHA's annual estimate of 5.2 confined-spaces-in-
construction fatalities avoided when fully complying with the
provisions of this standard, and the 91 percent preventability rate,
OSHA estimated that there would have been a total of between 520 and
1,040 confined-spaces-in-construction non-fatal injuries during the
period of 1992 to 2000, with a midpoint of 780 as the total number of
non-fatal injuries avoided each year when fully complying to the
provisions of this standard. Applying a similar methodology of a 100:1
to 200:1 fatality-to-injuries ratio to the supplemental data in Table
IV-10, OSHA estimates that, given 30 fatalities between the period of
2006 to 2009, there would be a total of 3,000 and 6,000 non-fatal
injuries prevented by the final standard in that time period, or an
average of 750 and 1,500 (with a midpoint of 1,125) injuries prevented
per year.
Assignment of Monetary Values to Avoided Injuries and Fatalities
In the PEA, OSHA used a willingness-to-pay approach to estimate a
monetary value of $50,000 for each prevented injury and $6.8 million
for each prevented fatality. One commenter stated that the estimated
value of $50,000 per prevented injury had "absolutely no foundation or
source for accuracy" and was "substantially inflated," but did not
provide any specifics or suggest an alternative (ID-100). The AGCA
report suggested that OSHA instead use workers' compensation claims,
which it estimated to be $242,770 per fatality and $31,664 per injury
(ID-222).
Workers' compensation claims do not reflect a willingness-to-pay
approach or represent the full costs associated with workplace
fatalities and injuries. Workers' compensation systems cover medical
expenses and partial payment of wages lost as a result of workplace
accidents, or, in the case of fatalities, burial costs and part of lost
future wages. However, workers' compensation does not cover other costs
resulting from fatalities and injuries, such as pain and suffering.
Therefore, it would be inaccurate to base estimates of total societal
costs of injuries and illnesses on workers' compensation claims.
As in the PEA, and following the approach recommended by OMB
Circular A-4 (OMB, 2003) and common analytic practice, OSHA developed
estimates of the benefits of avoided injuries and fatalities in this
FEA based on the willingness-to-pay to avoid a marginal increase in the
risk of a fatality or injury, as explained below. In addition, in this
FEA, OSHA updated the estimated monetary value of reductions in
fatalities and injuries presented in the PEA from 2002 to 2009 dollars.
While a willingness-to-pay (WTP) approach clearly has theoretical
merit, an individual's willingness to pay to reduce the risk of
fatality may underestimate the total willingness to pay, which could
include the willingness of others--particularly the immediate family--
to pay to reduce that individual's risk of fatality.\47\
---------------------------------------------------------------------------
\47\ See, for example, Thaler and Rosen (1976), pp. 265-266;
Sunstein (2004), p. 433; or Viscusi, Magat and Forrest (1988), the
last of whom write that benefits from improvement in public health
"consist of two components, the private valuation consumers attach
to their own health, plus the altruistic valuation other members of
society place on their health." This paper uses contingent
valuation methods to suggest that the effect of altruism could
significantly alter willingness-to pay estimates for some kinds of
health improvement. There are, however, many questions concerning
how to measure this and the conditions under which it might matter.
---------------------------------------------------------------------------
For estimates using the willingness-to-pay concept, OSHA relied on
existing studies of the imputed value of fatalities avoided based on
the theory of compensating wage differentials in the labor market.
These studies rely on certain critical assumptions for their accuracy,
particularly that workers understand the risks to which they are
exposed and that workers have legitimate choices between high- and low-
risk jobs. These assumptions are far from realized in actual labor
markets.\48\ A number of academic studies, as summarized in Viscusi &
Aldy (2003), show a correlation between higher job risk and higher
wages, suggesting that employees demand monetary compensation in return
for a greater risk of injury or fatality. The estimated trade-off
between lower wages and marginal reductions in fatal occupational
risk--that is, workers' willingness to pay for marginal reductions in
such risk--yields an imputed value of an avoided fatality: The
willingness-to-pay amount for a reduction in risk divided by the
reduction in risk.\49\ OSHA used this approach in many recent proposed
and final rules. (See, for example, 69 FR 59305, 59429 (Oct. 4, 2004)
and 71 FR
10099 (Feb. 28, 2006), the preambles for the proposed and final
hexavalent chromium rule, and 78 FR 56274, 56388 (Sept. 12, 2013), the
preamble for the proposed respirable crystalline silica rule.) The
Agency views the WTP approach as the best available, and relied on it
to monetize benefits. Viscusi & Aldy (2003) conducted a meta-analysis
of studies in the economics literature that use a willingness-to-pay
methodology to estimate the imputed value of life-saving programs and
found that each fatality avoided valued at approximately $7 million in
2000 dollars. Using the GDP Deflator (U.S. BEA, 2010), this $7 million
base number in 2000 dollars yields an estimate of $8.7 million in 2010
dollars for each fatality avoided.50 51
---------------------------------------------------------------------------
\48\ See, for example, the discussion of wage compensation for
risk for union versus nonunion workers in Dorman and Hagstrom
(1998).
\49\ For example, if workers are willing to pay $90 each for a
\1/100,000\ reduction in the probability of dying on the job, then
the imputed value of an avoided fatality would be $90 divided by \1/
100,000\, or $9,000,000. Another way to consider this result would
be to assume that 100,000 workers made this trade-off. On average,
one life would be saved at a cost of $9,000,000.
\50\ The Agency notes that two recent studies mentioned in this
chapter--Kniesner et al. (2010) and Kniesner et al. (2012)--report
similar estimates. The median quintile estimate of the imputed value
of an avoided fatality in Kniesner et al. (2010) is $9.2 million in
2010 dollars, while Kniesner et al. (2012) provide a range of
estimates between approximately $5 million and $12 million in 2012
dollars. For the purpose of this PEA, OSHA chose to rely on the
Viscusi and Aldy (2003) meta-analysis rather than the two more
recent individual studies.
\51\ An alternative approach to valuing an avoided fatality is
to monetize, for each year added to a life, an estimate from the
economics literature of the value of that statistical life-year
(VSLY). See, for instance, Aldy and Viscusi (2007) for a discussion
of VSLY theory and FDA (2003), pp. 41488-9, for an application of
VSLY in rulemaking. OSHA did not investigate this approach.
---------------------------------------------------------------------------
OSHA views these estimates as the best estimates currently
available, and will use them to monetize avoided fatalities and
injuries resulting from this final standard.
Net Benefits
Table IV-11, which repeats Table IV-1 for the convenience of the
reader, provides a summary of the estimated costs, benefits, and net
benefits of the final standard, using discount rates of 7 percent and,
alternatively, 3 percent, as recommended by OMB Circular A-4. OSHA
estimated the total benefits of the final standard to be $93.6 million
annually--of which $45.2 million come from prevented fatalities and
$48.4 million from prevented injuries. OSHA took the annualized costs
of $60.3 million, using a 7 percent discount rate, from Table IV-13 in
Chapter 6 of this FEA. OSHA estimated net benefits of the final rule to
be $33.3 million annually, using a 7 percent discount rate. OSHA
estimated that compliance with the final standard will provide $1.55 of
benefits per dollar of cost.
Table IV-11--Net Benefits
[Millions of 2009 dollars]
------------------------------------------------------------------------
7% Discount 3% Discount
rate rate
------------------------------------------------------------------------
Annualized Costs
------------------------------------------------------------------------
Evaluation, Classification, Information $12.4 $12.2
Exchange, and Notification.............
Written Program, Issue Permits, Verify 4.2 4.2
Safety, Review Procedures..............
Provide Ventilation and Isolate Hazards. 2.8 2.7
Early Warning System and Atmospheric 11.4 11.3
Testing or Monitoring..................
Attendant............................... 3.6 3.6
Rescue Capability....................... 8.2 7.6
Training Provisions..................... 11.3 11.3
Other Requirements...................... 6.4 6.3
-------------------------------
Total Annual Costs.................. 60.3 59.2
------------------------------------------------------------------------
Annual Benefits
------------------------------------------------------------------------
Number of Injuries Prevented............ 780
Number of Fatalities Prevented.......... 5.2
Monetized Benefits...................... $93.6
------------------------------------------------------------------------
Net Annual Monetized Benefits
(Benefits Less Costs)
------------------------------------------------------------------------
$33.3 $34.4
------------------------------------------------------------------------
Potential Net Benefits of the Individual Provisions of the Rule
As indicated in Table IV-11, the estimated benefits of the final
standard are nearly 50 percent larger than the estimated costs.
Nevertheless, it is possible that the costs of particular provisions
could exceed their benefits. To address this possibility, OSHA
conducted a supplemental analysis of the net benefits of the individual
provisions of the final rule that have associated costs.
Because the final rule contains jointly interacting and overlapping
provisions, there are two logistical issues with performing a
provision-by-provision sensitivity analysis of whether benefits exceed
costs in this case: (1) The available data do not permit OSHA to
determine the numbers of accidents that every combination of provisions
could prevent; and (2) a simple marginal analysis will not fully
address the question of whether benefits exceed costs for the rule as a
whole. It might, for example, take two or more provisions to prevent a
class of accident: An analysis of the effects of a requirement to do x
if situation y is the case would be dependent on not only the
requirement to do x if situation y is the case, but also a requirement
to train workers to do x, as well as a requirement to inform workers of
when y is the case. In such circumstances, while each provision alone
might pass a marginal benefit-cost test, all of the provisions together
might not pass a benefit-cost test because the provisions would prevent
the same accidents. The three provisions, each costing $5 million (for
a total cost of $15 million), might prevent only $12 million worth of
accidents because the three provisions would prevent the exact same
accidents. Thus, even if a provision-by-provision sensitivity analysis
were possible for
this rule, that analysis might still not demonstrate the total benefits
of the overall combination of provisions. Moreover, for the purpose of
determining whether benefits of a rule exceed the costs, one cannot
simply test each provision individually, but must find ways to examine
situations involving likely joint effects of the provisions of the
rule.
This provision-by-provision analysis addresses both of these
problems and takes the form of a break-even sensitivity analysis that
compares the potential benefits of a set of provisions against the
costs of those provisions and, separately, all provisions that, when
combined, achieve those particular benefits. Thus, a break-even
sensitivity analysis in this case represents an estimate of the
percentage of potentially preventable accidents that an individual
provision, or a combination of provisions, must prevent for the
benefits to equal the costs. Any percentage of preventable accidents a
provision or combination of provisions prevents that are greater than
this percentage would result in benefits exceeding costs.
For each narrative of the 30 preventable confined-spaces-in-
construction fatalities and injuries for the period 2006-2009 presented
in Table IV-10, OSHA listed the sets of provisions of the final rule
that, if followed, would potentially prevent the fatalities. For some
provisions, such as requirements to evaluate and classify spaces and to
develop and implement permit systems, the narratives do not clearly
state whether or not employers met these requirements. In these cases,
OSHA listed those provisions as being among those that would
potentially prevent the fatality, even though it is possible that the
employer took steps to implement the required provisions. For other
provisions, such as those for early warning system and atmospheric
testing or monitoring, the narratives do not clearly state that there
was such monitoring, but it seems unlikely that someone would enter
some of these extremely dangerous atmospheres had information on that
danger been available as a result of an early warning system and
atmospheric testing or monitoring. Finally, it is clear from the
descriptions that employers simply did not follow provisions relating
to ventilation and hazard isolation. Table IV-12 shows the aggregate
results for each set of provisions organized according to the
organization of costs provided in Chapter 5. Table IV-12 then monetizes
the prevented fatalities and injuries associated with each cost
category and compares that monetized total to the estimated costs for
each cost category. Finally, OSHA estimated the percentage of benefits
that a given provision needs to produce zero net benefits (that is,
when the estimated value of the prevented injuries and fatalities
equals the estimated cost of the related provision). Any percentage
greater than zero net benefits will produce positive net benefits.
Table IV-12 also shows the results of this analysis.
Before examining the benefits attributable to the provisions of the
final standard, OSHA examined the break-even sensitivity of the
standard as a whole and found that if compliance with the standard
prevented 45 percent of the fatalities recorded, then the benefits
would equal the costs; with any higher percentage prevention, benefits
would exceed the costs. OSHA considers it a near certainty that
compliance with the final standard would achieve this level of
benefits. For example, full compliance with the final standard would
avoid almost all fatalities involving asphyxiation, and 60 percent of
the accidents involved asphyxiation. Thus, if full compliance with the
final standard prevents just one class of accidents, the standard would
result in benefits that exceed costs.
To discuss the results shown in Table IV-12, OSHA will consider the
results for each provision in turn, as described in the following
paragraphs.
Evaluation and Classification: The portions of the standard covered
by this cost category are only effective if combined with other
measures. Evaluation and classification alone, without taking the
further steps needed to ameliorate the hazards, would be largely
pointless. The need for this provision, in the context of benefit-cost
analysis, is to assure that employers do not have to treat every
confined space as containing hazards; rather, it allows employers to
simply restrict entry or to implement the subsequent parts of their
confined-spaces program only when a hazard exists within a given
confined space.
This set of provisions is critical to reducing the costs of all
other provisions more than directly preventing fatalities. If the
evaluation and classification provisions reduce the costs of the
standard as a whole by 5 percent ($3.1 million costs of this provision
divided by $60.3 million costs of the remaining provisions), then these
provisions will be useful. Given the vast number of confined spaces
that do not require the ensuing steps, these provisions are almost
certainly cost effective, and are necessary given the standard as a
whole has positive net benefits--as was shown above.
To further evaluate the necessity and benefit of the evaluation and
classification provisions, it is necessary to examine state programs.
Only two of the accidents examined from 1992-2000 and 2006-2009
occurred in states with comprehensive programs similar to what OSHA is
proposing. Five accidents occurred in states that required some
provisions included in OSHA's confined-spaces-in-construction rule,
such as ventilation and atmospheric monitoring, but did not require
evaluation or permit systems. This result may suggest that there may be
advantages to a full, comprehensive program that explicitly requires
evaluation and classification. However, OSHA has not been able to do
any quantitative analysis of the rates of confined space fatalities in
these states as against other regulatory regimes.
Information Exchange: The exact economic benefits of information
exchanges are particularly difficult to pinpoint. Nevertheless, the
benefits of these provisions will exceed the cost if the final standard
prevents 10 percent of the potentially affected accidents.
Permit Programs: Table IV-12 shows that if these provisions prevent
4 percent of the accidents where they are potentially relevant, then
the benefits will equal the costs, and if they prevent more than 4
percent, the benefits will exceed the costs. A system of permits might
prevent, or have been a key part of preventing, many fatalities. As a
result, achieving a 4 percent prevention rate seems reasonable.
Further, at least 12 percent of the accidents potentially prevented by
this provision (Incidents 2 and 13) involved casual entry (e.g., to
retrieve a dropped item), or entry prior to testing, that a proper
permit system would completely prevent. Preventing these two accidents
alone would assure that the benefits of the provision exceed the costs.
Early Warning Systems, and Atmospheric Testing and Monitoring:
Early warning systems, and atmospheric testing and monitoring, can
prevent accidents that result in asphyxiation or caused by explosive
gases, or where early warning of oncoming liquids would prevent
drowning. The presence of atmospheric testing or monitoring data would
prevent most of these accidents because it is unlikely that anyone
would knowingly enter a space with a lethal or explosive atmosphere,
especially when provisions are in place to assure against unauthorized
entry. Table IV-12 shows that if these provisions prevent 14 percent of
the accidents for which they are potentially
relevant, then the benefits will equal the costs, and if they prevent
more than 14 percent of the accident, the benefits will exceed the
costs. OSHA believes that it is likely that atmospheric monitoring
could prevent a much higher percentage of these accidents. In addition,
there is one accident potentially prevented by an early warning system.
Requirement for an Attendant: This heading includes the provisions
that require an attendant whenever an employee enters a permit-required
confined space, such as Sec. Sec. 1926.1204(f), 1926.1209(f) and
1926.1209(h). These provisions function in conjunction with the
requirements for adequate rescue capacity. In the absence of
appropriate rescue capacity, persons standing by a confined space may
attempt a rescue that exposes them to the hazard. Table IV-12 shows
that if these provisions prevent 6 percent of the accidents in which
the person who died entered a confined space completely alone, then the
benefits will equal the costs, and if the provisions prevent more than
6 percent of the accidents, the benefits will exceed the costs. OSHA
believes that it is reasonable that appropriately trained and equipped
attendants could prevent this percentage of accidents.
Ventilation and Hazard Isolation: The standard generally requires
the use of ventilation when possible to address atmospheric hazards,
but it can be difficult for the purposes of this sensitivity analysis
to determine in which situations ventilation, rather than PPE, might be
sufficient. It is clear, however, that when ventilation is appropriate,
assuring its effectiveness would completely prevent ventilation-related
fatalities. The same is true for hazard-isolation methods such as
deactivating and locking out electrical sources and creating by-passes
for water around confined spaces. Table IV-12 shows that if these
provisions prevent 3 percent of the accidents for which they are
potentially relevant, then the benefits will equal the costs, and if
they prevent more than 3 percent of these accidents, the benefits will
exceed the costs. Therefore, even if proper ventilation or isolation
prevented one in five of the fatalities identified as potentially
avoidable with proper ventilation or isolation, then the benefits of
these provisions would exceed the costs. While the exact number of
situations in which ventilation or isolation would have been the
hazard-reducing measure of choice is uncertain, OSHA is confident that
at least 3 percent of those identified would require ventilation or
isolation.
Rescue Capacity: These provisions include all requirements related
to rescue, including the requirement for non-entry rescue whenever
feasible. Table IV-12 shows that if these provisions prevent 9 percent
of the accidents for which they are potentially relevant, then the
benefits will equal the costs, and if they prevent more than 9 percent
of the accidents, the benefits will exceed the costs. Given that 15
percent of the accidents for which OSHA identified inadequate rescue
capacity as a factor in a fatality involved deaths of additional
workers during an attempted rescue, then following provisions for non-
entry rescue would reasonably prevent more than 9 percent of all
accidents involving inadequate rescue capacity. However, if employers
follow all other provisions of the rule, then there will be less need
for rescue. As a result, this set of provisions will be necessary if
other provisions are not available or are not followed 9 percent of the
time, or if conditions change after the confined-space entry in ways
that result in a need for rescue.
Equipment: These provisions cover the requirement that employers
provide adequate lighting and other equipment needed for confined-
spaces work as specified in Sec. 1926.1204(d). Table IV-12 shows that
if these provisions prevent 47 percent of the accidents for which they
are potentially relevant, then the benefits will equal the costs, and
if they prevent more than 47 percent of the accidents, the benefits
will exceed the costs. However, as noted above, OSHA did not include
many of the accidents that proper equipment would prevent, such as
accidents caused by vehicles hitting persons working near a confined
space or illnesses caused by improper clothing. As a result, it is
likely that OSHA underestimated the number of fatalities and injuries
prevented by proper equipment.
Table IV-12--Comparison of Benefits Associated With Individual Cost Categories and Costs *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percentage
Estimated Estimated of
Number of number of Monetized number of Total monetized value potential
fatalities fatalities value of injuries Monetized of annual fatalities benefits
Cost provision potentially per year annual per year value of and injuries Costs of needed to
affected by potentially fatalities potentially injuries potentially affected by provision break even
provision affected by \a\ affected by \b\ the provision with costs
(2006-2009) provision provision \c\
(percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
All................................. 30 7.5 $65,250,000 1125 $69,750,000 $135,000,000 $60,300,000 45
Evaluation and Classification....... 30 7.5 65,250,000 1125 69,750,000 135,000,000 3,100,000 2
Information Exchange................ 18 4.5 39,150,000 675 41,850,000 81,000,000 9,300,000 11
Permit System....................... 22 5.5 47,850,000 825 51,150,000 99,000,000 4,200,000 4
Early Warning System and Atmospheric 18 4.5 39,150,000 675 41,850,000 81,000,000 11,300,000 14
Testing or Monitoring..............
Ventilation and Hazard Isolation.... 22 5.5 47,850,000 487.5 51,500,000 99,000,000 2,800,000 3
Attendant........................... 13 3.25 28,275,000 487.5 30,225,000 58,500,000 3,600,000 6
Rescue Capability................... 20 5 43,500,000 750 46,500,000 90,000,000 8,200,000 9
Training............................ 29 7.25 63,075,000 1087.5 67,425,000 130,500,000 11,300,000 9
Equipment........................... 3 0.75 4,350,000 112.5 6,975,000 13,500,000 6,3000,000 47
--------------------------------------------------------------------------------------------------------------------------------------------------------
* In 2009 dollars.
\a\ Based on an estimated value of $8.7 million per fatality avoided.
\b\ Based on an estimated value of $62,000 per injury avoided.
\c\ Costs of provision divided by total monetized value of fatalities potentially prevented by the provision.
* Note: OSHA did not apportion the benefits of a prevented fatality among the provisions that could prevent the fatality; instead, the Agency attributed
the entirety of the benefits of a prevented fatality to each provision that could prevent the fatality.
Source: OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.
5. Technological Feasibility
In accordance with the OSH Act, OSHA must demonstrate that
occupational safety and health standards promulgated by the Agency are
technologically feasible. OSHA demonstrates that a standard is
technologically feasible "by pointing to technology that is either
already in use or has been conceived and is reasonably capable of
experimental refinement and distribution within the standards
deadlines." American Iron and Steel Inst. v. OSHA (Lead II), 939 F.2d
975, 980 (D.C. Cir. 1991) (per curiam) (internal citation omitted). OSHA
reviewed each of the requirements imposed by the final rule and
determined that compliance with the requirements of the rule is
technologically feasible for all affected industries, that employers
can achieve compliance with all of the final requirements using readily
and widely available technologies, and that there are no technological
constraints associated with compliance with any of the final
requirements.
Several factors support OSHA's determination regarding the
technological feasibility of the final rule. First, OSHA concluded that
compliance with existing Sec. 1910.146 was technologically feasible
when it promulgated those standards in 1993 (58 FR 4539), and that
conclusion held true over OSHA's two decades of experience with that
standard. Likewise, this conclusion holds true with respect to
provisions in the final rule that OSHA based on the existing general
industry standard. A number of commenters stated that they are
complying with the general industry standard in construction
operations, which also supports a finding of technological feasibility.
(See e.g., ID-047, -075, -086, -092, -120, -124, -180).
Second, the provisions in the standard not based on the existing
standard are also technologically feasible. The new standard requires
employers to identify confined spaces at their worksites, establish a
written program and issue permits for qualifying confined spaces,
exchange information on the hazards of permit spaces with other
affected employers, train affected employees, provide for rescue and
emergency services, and assign duties to authorized entrants,
attendants, and supervisors. None of these requirements, including the
new requirements not in Sec. 1910.146, present any technological
feasibility concerns. These provisions simply require observation of
hazards, training, and communication among all parties, including
employees and all employers at a worksite--all of which are clearly
feasible.
In Section III of the preamble to the final rule, "Summary and
Explanation of the Final Rule," OSHA responded to issues associated
with the technological feasibility of specific provisions. In that
section of the preamble, OSHA discussed technological feasibility
concerns raised by rulemaking participants and the technological
feasibility of provisions that differ from the general industry rule,
including the requirement for continuous monitoring of atmospheric
hazards in final Sec. 1926.1203(e)(2)(vi) and Sec.
1926.1204(e)(1)(ii). In addressing potential concerns about the
technological feasibility of continuous monitors that would be capable
of identifying various types of atmospheric hazards, OSHA included an
exception that applies if the employer can demonstrate that the
appropriate devices are not commercially available for this purpose.
One commenter suggested that requirements to exchange information
and coordinate entry operations represent "an unnecessary burden" and
"in some cases may be infeasible," which OSHA takes to mean
technologically infeasible, for the homebuilding industry (ID-124).
Although this commenter cited industry statistics indicating that
homebuilders tend to be small businesses that rely on subcontractors to
handle specialized tasks, the commenter failed to show how this
situation renders multi-employer communication requirements of the rule
technologically infeasible for that industry. OSHA does not mandate any
particular equipment for coordinating communications, and the Agency
did not find evidence in the record suggesting that the exchange of
information and entry coordination, which OSHA believes already occurs
in the course of regular communications conducted by employers on
construction worksites, is infeasible. At a time when most individuals
have mobile phones, remote communication should be possible in most
locations. In any case, in construction work, home-building contractors
are able to successfully communicate with a variety of specialists
about what work needs to be done and at what time. Therefore, there
should be no feasibility problems in communicating essential safety
information in the same way.
There was only one other provision of the proposed standard that
elicited concerns from industry stakeholders about technological
feasibility. That provision, which appears as Sec.
1926.1204(e)(1)(iii) of the final standard, requires that employers
provide an early warning system that will detect non-isolated
engulfment hazards as a part of the permit-required confined space
program. Such hazards can result, for example, when runoff from a heavy
storm upstream in a sewer flows downstream into the work area. As noted
in the IMIS reports, an employee died in 2009 when a rainstorm sent
water rushing into a 24-inch pipe inside which the employee was
working. Other examples would be if sewage, sand, grain, or other
"flowable" solid substances flow into the area in which an employee
is working.
Two commenters questioned the availability of early warning system
technology (ID-059 and -098). A third commenter (ID-216) raised similar
objections and, in particular, expressed concerns about the technical
demands imposed on the employer to account for all of the factors
involved in properly positioning the system.
In response to these comments, OSHA observes that manufacturers
have designed early warning systems for years to alert workers to
migrating engulfment hazards, including migrating engulfment hazards
present in a space subject to final Sec. 1926.1204(e)(1) (see, for
example, http://www.memecosales.com/products/level/blok-aid/ or
http://www.flygt.com/en-us/Pumping/Products/Monitoring-and-Control-equipment/Pages/Alarm-telemetry.aspx).
The range of available early warning
systems runs from customized high-flow warning devices to simple fluid-
level meters with audible alarms. The wide availability and application
of such systems attest to their affordability and practicability under
a range of circumstances. OSHA also notes that, in a series of
stakeholder meetings in October 2000, various participants discussed
the range of early warning systems, including monitors, cameras, and
attendants positioned upstream outside confined spaces (see transcripts
of stakeholder meetings, available at https://www.osha.gov/doc/reference_documents.html).
The commenters generally characterized the
systems as easy to implement and commonly used.
Even though this technology is clearly available, the standard does
not require employers to use a device such as the early warning system.
An employer may determine that an effective compliance solution would
simply be to position detection and monitoring devices to provide early
warning, or to station an employee to accomplish that function. In any
case, given the option of using an employee to provide direct
observation as one potential method of fulfilling the requirement,
there is no doubt that the requirement may be accomplished with
existing technology.
In conclusion, employers can achieve compliance with all of the
requirements of the final standard with readily and widely available
technologies or through the use of human observers. To demonstrate
technological feasibility, OSHA must establish a "reasonable
possibility that the typical firm will be able to . . . meet the
[standard's
requirement] in most of its operations." Lead II, 939 F.2d at 980
(internal citation omitted). Given the wide availability of options for
early warning systems, the final rule meets this legal test.
6. Costs of Compliance
Introduction
In this chapter, OSHA presents the estimated costs of the final
rule for confined spaces in construction. These are the costs that
employers would incur to achieve full compliance with the final rule,
relative to the current baseline. They do not include costs employers
incurred to achieve current compliance with the existing requirements.
Table IV-13 presents OSHA's estimate of the total annualized costs
of the final rule by provision and by industry sector, expressed in
2009 dollars. As OSHA typically does, it annualized capital costs over
the estimated useful life of the equipment, and annualized one-time
costs over 10 years. Consistent with OMB's Circular A-4 (OMB, 2003),
OSHA calculated annualized costs using two alternative discount rates:
7 Percent and 3 percent. As shown, OSHA estimated the total annualized
cost of the final rule to be about $60.3 million using a discount rate
of 7 percent, and $59.2 million using a discount rate of 3 percent.
Table IV-13--Annualized Compliance Costs of OSHA's Final Standard for
Confined Spaces in Construction, by Provision
------------------------------------------------------------------------
Provision or hazard control 7 Percent rate 3 Percent rate
------------------------------------------------------------------------
Evaluation, Classification, and $12,363,600 $12,208,018
Notification...........................
Classify............................ 948,249 948,249
Notice.............................. 2,091,862 1,936,279
Information Exchange................ 9,323,489 9,323,489
Issue Permits, Verify Safety, Review 4,196,574 4,190,373
Procedures.............................
Annual Review....................... 154,746 154,746
Issue Permits....................... 2,710,594 2,710,594
Written Program..................... 1,331,234 1,325,033
Ventilation and Hazard Isolation........ 2,830,611 2,748,652
Isolation........................... 784,364 771,079
Vent................................ 2,046,247 1,977,573
Atmospheric Monitoring.................. 11,395,322 11,282,168
Test Prior/During................... 10,661,160 10,551,394
Calibrate........................... 734,162 730,773
Standby Person.......................... 3,623,866 3,623,866
Rescue Capability....................... 8,157,084 7,576,244
Rescue.............................. 5,745,876 5,379,002
Retrieval........................... 2,411,208 2,197,241
Training................................ 11,340,155 11,296,556
Training............................ 5,696,017 5,676,653
Supervisor Training................. 5,644,139 5,619,903
Other Requirements...................... 6,402,728 6,269,690
Clothing............................ 2,744,697 2,744,697
Barriers............................ 2,801,408 2,723,063
Communication Equipment............. 624,044 584,200
Lighting............................ 183,363 171,656
Alarms.............................. 61,252 57,644
-------------------------------
Total Compliance Costs.......... 60,321,976 59,207,135
------------------------------------------------------------------------
Source: U.S. Department of Labor, OSHA, Directorate of Standards and
Guidance, Office of Regulatory Analysis-Safety.
The structure of the equations which calculate the costs is the
following equation:
[GRAPHIC] [TIFF OMITTED] TR04MY15.000
Where TC = Total Cost, k subscripts each cost category, j subscripts
each industry type, i subscripts the project size, NP is the number
of projects in that size category, NC is the current non-compliance
rate, H is the number of hours, and UC is the unit cost.
Using a discount rate of 7 percent, OSHA estimates that the
annualized compliance costs for the major provisions of the final
standard are as follows: Evaluation and classification of enclosed
spaces, information exchange, and notification ($12.4 million);
developing and reviewing written programs, issuing entry permits, and
verifying the safety of confined spaces ($4.2 million); isolating
hazards and providing sufficient ventilation ($2.8 million); conducting
atmospheric monitoring ($11.4 million); having an attendant ($3.6
million); planning and providing rescue capability ($8.2 million);
providing training ($11.3 million); and other requirements ($6.4
million).
Estimating Compliance Costs
The approach to compliance-cost estimation in this FEA follows the
approach in the PEA and in the CONSAD analysis. However, the cost
estimates in this FEA changed relative to the PEA to reflect changing
construction practices over time, changes from the proposed to the
final rule (including more closely aligning the final rule with the
confined-spaces rule for general industry), and OSHA's responses to
comments on the proposal and on the PEA.
For each type of construction activity identified by the CONSAD
expert panel, OSHA took an estimate of the total number of construction
projects from the F.W. Dodge data (the same source used for the PEA)
and applied a category-specific number of confined spaces per project
to derive the number of confined spaces. OSHA then used the number of
confined spaces along with other pertinent estimates to determine the
number of affected workers, and applied unit-cost estimates to
calculate the costs of each provision of the standard, taking into
account current compliance. OSHA derived many of the costs of this
final rule by multiplying hourly wages by the labor hours required to
fulfill a given requirement. As previously noted, OSHA annualized
equipment purchase costs based on the estimated useful life of the
equipment, and annualized one-time expenditures over a 10-year period.
AGCA presented an alternative economic analysis, prepared by Dr.
Helvacian, of the compliance costs of the proposed rule, stating that
the analysis in the PEA "must be updated for the most recent data on
establishments, employees, wages and benefits, and for prices for
construction machinery and equipment" (ID-222). In this FEA, OSHA
updated its analysis of compliance costs to reflect more recent data,
when these data were available. Specifically, to account for changes in
wages and prices over time, OSHA updated the wages and capital and
equipment costs presented in the PEA to 2009 dollars based on the
percentage change in the GDP price deflator from 2002 to 2009,
published by the U.S. Commerce Department, Bureau of Economic
Analysis.\52\ Dr. Helvacian's economic analysis was based partially on
a survey of AGCA's member employers. The survey respondents have an
average of 98.8 confined spaces per job, with a median of 3 spaces per
job. This large disparity between the average and the median suggests
the possibility that there was widespread misunderstanding among the
respondents regarding what constitutes a confined space. By comparison,
the average number of confined spaces per project based on the CONSAD
report is 5.7, with an average of 193 entries per project.\53\ OSHA
believes that it would be unsound to extrapolate the commenter's survey
results, based on only 74 respondents and 5 categories of construction
projects, to the entire construction industry. In contrast, CONSAD
based its estimates on results stratified by 25 project categories
organized by project size. Furthermore, OSHA notes that adjusting the
estimated average number of confined spaces and entries to reflect the
commenter's reported median estimate would reduce OSHA's estimated
compliance costs.
---------------------------------------------------------------------------
\52\ Source: http://www.bea.gov/iTable/iTable.cfm?ReqID=9&step=1#reqid=9&step=3&isuri=1&903=13.
\53\ This estimate excludes single-family housing projects. OSHA
added these projects to the analysis in this FEA.
---------------------------------------------------------------------------
OSHA chooses not to adopt the commenter's estimated number of
confined spaces. OSHA believes that the research conducted by CONSAD
continues to provide detailed information that is not available
elsewhere (for example, information related to entries into confined
spaces and the distribution of confined spaces across construction
projects). Therefore, OSHA finds that the CONSAD report, with
appropriate updates and adjustments for the changing rule provisions
and industry practices, provides the best available data related to
entries into confined spaces in construction, and continues to rely on
data published in that report to estimate compliance costs.
Dr. Helvacian's analysis also suggested that the number of hours
required to comply with the proposed rule was greater than that
estimated in the PEA (ID-222). However, although the report provided
some aggregate time estimates, they were not sufficiently detailed for
OSHA to analyze the estimates by specific requirements. Furthermore,
OSHA notes that Dr. Helvacian based the survey results on the AGCA
members' understanding of the proposed rule rather than the final rule,
which the survey's introduction described as "complicated, costly to
implement, and does not provide significant increases in safety above
the existing general industry standard" (ID-222). For these reasons,
OSHA is not adjusting its time estimates based on the AGCA survey
results.
OSHA received a number of comments stating that many construction
contractors were already complying with the general industry standard.
For example, an association of utility contractors commented that its
members "enter into confined spaces on a regular basis in the course
of their construction operations. They have been using the General
Industry Standard (29 CFR 1926.146) since it was issued in 1993 and
have customized their confined space programs and training to comply
with that standard" (ID-075). Another commenter, a construction-safety
consultant, stated that employers were already complying with a state
standard on confined spaces, which the state based on OSHA's general
industry standard (ID-047). Tom Skaggs, representing the Mechanical
Contractors Association of America, testified that the industry was
successfully protecting workers "through voluntary compliance with
OSHA's general industry standard" (ID-210, Tr. p. 278; see also ID-180
for his written testimony). Other commenters also stated that much of
the construction industry adheres to the general industry standard
(e.g., ID-086, -092, -120, -124).
Based on these comments, and in light of the changes from the
proposed rule to the final rule that more closely align the final rule
with the general industry rule, OSHA revised its estimated rates of
current industry compliance upward in this FEA for many of the
provisions of the final rule. Table IV-6, introduced earlier in Chapter
3 of this FEA, presents these revised compliance rates. Because the
final rule requirements concerning information exchange, continuous
monitoring, and early warning systems and rescue vary from the general
industry rule, the Agency did not adjust the estimated compliance rates
related to these provisions in this FEA.
To adjust compliance rates, OSHA used information on state
confined-space standards for construction. The states that have
confined space standards for construction are: California, Kentucky,
Maryland, Michigan, Minnesota, Virginia, Washington, and Alaska. These
eight states have different confined-space requirements that comply
with some or all of the OSHA requirements in the final rule, depending
on the state. OSHA assumed that the original CONSAD compliance rate
would be applicable in states without state standards, and assumed full
compliance with the provisions of the standards specific to each of
these eight states. The content of the state construction standards
varies by state, so OSHA calculated weighted average compliance rates
for each provision of the standard based on the proportion of
establishments in each state having that provision. As the record
shows, this approach may underestimate the actual compliance rates
since many construction employers have come into compliance with the
general industry
standard, and, therefore, with provisions of this final rule, whether
or not they are located in the states with confined-space standards for
construction. These employers come into compliance with the general
industry standard because, in part, they perform both general industry
and construction work. OSHA also modified some compliance rates from
the CONSAD report to account for large projects having greater
compliance rates than smaller projects within the same activity type.
Table IV-14 presents the estimated unit costs associated with each
requirement in the final rule. Following this table is a discussion of
OSHA's estimated compliance costs by requirement.
Table IV-14--Unit-Cost Estimates for Controls Necessary To Achieve
Compliance With the Final Standard
------------------------------------------------------------------------
Activity or equipment Unit cost/useful life
------------------------------------------------------------------------
Construction supervisor wage (including $42.16 per hour.
benefits).
Skilled worker wage (including $29.60 per hour.
benefits).
General construction employee wage $24.93 per hour.
(including benefits).
Clerical employee wage (including $22.53 per hour.
benefits).
Unskilled worker wage (including $22.67 per hour.
benefits).
Confined-space notification signs...... $18.92/5 years.
Host employer/controlling contractor 8 minutes of supervisor time.
information exchange.
Controlling contractor/entry employer 20 minutes of supervisor time
information exchange. for each entity involved.
Controlling contractor/other worksite 5 minutes of supervisor time
employer information exchange. for 10 percent of employers.
Entry coordination..................... 10 minutes of supervisor time
for 3 supervisors per
coordinated entry.
Written program........................ 1 hour per project.
Issue permits/maintain records/review 10 minutes of supervisor time
procedures. and 5 minutes of clerical time
per permit issued.
Implement and verify alternative entry 5 minutes of supervisor time
procedures. and 5 minutes of clerical time
per non-permitted space entry.
Time to isolate a hazard (e.g., with 5 minutes skilled employee
double block and bleed method, lockout/ time.
tagout system, etc.).
Lock................................... $13.80/2 years.
Tag.................................... $1.61 each.
Portable ventilation system............ $1,332/5 years.
Operation and maintenance costs for Add 10% per year to cost of
ventilation system. system.
Set up ventilation system.............. 10 minutes skilled employee
time.
Ventilate confined space prior to entry 45 minutes skilled employee
time.
Set up atmospheric monitoring equipment 20 minutes skilled employee
time per entry.
Atmospheric-monitoring equipment (three- $1,000/5 years.
gas monitor).
Atmospheric-monitor calibration test... 1 calibration per 160 hours of
use.
Attendant.............................. 1 additional construction
employee for duration of entry
for anywhere from 3 hours to
3,400 hours.
Establish rescue procedures............ 1 hour supervisor time per
project.
Entry rescue equipment................. $5,328.56 per set/5 years.
Non-entry rescue equipment............. $3,248.54/20 years.
Rescue team training................... For each team of 4 employees:
16 hours skilled worker time
(4 hours per employee) plus 4
hours supervisor time; plus
for 1 employee: 4 hours
skilled worker time for CPR
training.
Training for entrants and attendants... Entrants (3-75 workers per
project): 0.25 hours
construction worker time;
attendants (2-6 workers per
project): 0.25 hours
construction worker time; plus
1.5 minutes supervisor time
per trained worker and 1.5
minutes clerical time per
worker.
Training program development........... 4 hours supervisor time plus 1
hour clerical time for program
development plus 6 hours
supervisor time for training
plus 1 hour clerical time per
project.
Disposable coveralls................... $8.94 per set.
Traffic barricades (pair).............. $165.64/3 years.
Barricade tape......................... $2.12 per 100 feet.
Sign................................... $18.92/5 years.
Installation of sign or barricade...... 5 minutes per sign or
barricade.
Two-way radios......................... $214.13/3 years.
Safety lantern for emergency lighting.. $19.04/3 years.
Air horn for emergency evacuation...... $23.79/3 years.
------------------------------------------------------------------------
Sources: Wage data from Bureau of Labor Statistics. Other data from
CONSAD report, Tables 6.1, 6.2, D.1, and D.2; and OSHA, Directorate of
Standards and Guidance, Office of Regulatory Analysis-Safety.
Evaluation and Identification, Information Exchange, and Notification
The proposed standard required employers to evaluate confined
spaces and their hazards, and to classify them as one of several types
of confined spaces. In the PEA, OSHA estimated that compliance with the
requirements would primarily involve a supervisor's time to categorize
the confined space and evaluate its hazards.
Many commenters found the proposed multiple classification system
for confined spaces unnecessarily burdensome. One commenter stated that
"[t]he four new classifications . . . will require drastic changes to
existing confined space programs at great financial expense to the
construction industry" (ID-124). Another commenter objected to "the
cost to the contractor for re-educating employees in the new
terminology," and supported the continued use of the "the existing
process" in Sec. 1910.146, the general industry standard (ID-035).
In contrast to the proposed standard, the final rule requires
employers to evaluate confined spaces and their hazards (i.e.,
determine whether a workspace is a confined space and identify the
types of hazards that workers may encounter), and to identify those
confined spaces that are permit spaces or covered by alternate
procedures. This simplified requirement mirrors the requirements of
OSHA's general industry standard for confined spaces. OSHA estimates
that the time required to evaluate confined spaces as permit-required
spaces would be substantially less than the time required to comply
with the more complex proposed classification system, and, therefore,
the Agency estimated an average time of about 12 minutes to evaluate a
permit space and identify hazards. OSHA believes this estimate is
appropriate given the many comments indicating that employers are
already familiar with the general industry rule and its required
classification process. For example, one commenter, which surveyed its
members about the proposed standard, reported that "identifying
confined spaces [is] currently performed as part of normal business
activities," and that "within the past 15 years, many contractors
have become accustomed to 29 CFR 1910.146 and have adjusted their
safety programs to comply with this standard" (ID-222).
For purposes of estimating the extent of current compliance, OSHA
considers that projects in compliance with the proposed requirements to
issue entry permits would also be in compliance with the final
requirements for evaluating spaces as permit-required or not.
Therefore, OSHA bases its compliance rates for these provisions on the
compliance rates estimated for the provisions related to issuing entry
permits. OSHA calculated the annual compliance cost for evaluating and
classifying confined spaces by multiplying the supervisor's hourly wage
rate by the number of hours per project required to identify and
evaluate confined spaces, which can vary by project type. OSHA applied
this total to the percentage of projects not already in compliance and
summed across all projects. Using this approach, OSHA estimates an
annualized cost of about $948,249 to comply with this requirement.
For example, to see how OSHA determined the cost of classification,
we will examine one of the 25 types of projects: Construction on
warehouses. Within this category there were 130 small projects, 220
medium projects, and 23 large projects.
The total cost for the large projects was derived by taking the
number of projects (23) times the current non-compliance rate (42%)
times the number of hours per project (1.5). This calculation yields a
product of 14.49 hours. Multiplying that number by the unit cost
($42.16 per hour)--the cost of an hour of supervisor's time--yields
$610.90, the cost of classification of large warehouse construction
project confined spaces.
To determine the total cost of classification of all permit
required confined spaces, the costs of all types of projects (small,
medium, and large) for all 25 types of construction, weighted by each
project-cell-types current non-compliance rate, are summed up. A total
of 94 cells are added up to produce the total cost of classification.
The final rule includes specific requirements for employers at
worksites with confined spaces to share information they may have about
the hazards confronting their workers or other workers. One commenter
stated that "[i]t is essential to add in the costs to implement this
proposed rule by all the employers on each construction site . . . , "
and that the "estimated time necessary to attend to each confined
space on each construction project by the proposed controlling
contractor is 6 to 8 hours" (ID-100). In providing this estimate, the
commenter delineates several requirements that fall under the duties of
entry employers and host employers. The commenter correctly notes the
requirement that the controlling contractor exchange information with
other worksite employers; however, by counting requirements for entry
employers with the requirements for controlling contractors, the
commenter overstates the time burden on controlling contractors.
Another comment, in the report prepared by Dr. Helvacian, noted that
employers had concerns about the costs of complying with requirements
for "information gathering" and "information sharing and
coordination" (ID-222). Although OSHA believes that employers on
construction sites currently conduct the information exchange described
in this chapter as part of their usual and customary business
practices, in this FEA (unlike in the PEA) the Agency included
estimated costs for information-exchange requirements, as follows.
Under final Sec. 1926.1203(h)(1) and (h)(2), the host employer and
the controlling contractor must exchange information about known permit
spaces, such as location, past experiences with hazards in the spaces,
and other pertinent information. Neither the host employer nor the
controlling contractor has to enter the confined spaces to obtain this
information. OSHA estimates that supervisors for the host employer and
the controlling contractor will engage in eight minutes of conversation
per project to fulfill this information-exchange requirement.
Under final Sec. 1926.1203(b)(2), (h)(2), (h)(3), (h)(5), and (i),
controlling contractors and entry employers must exchange information
about permit spaces and their hazards. They also must share most of
this information with employee representatives. OSHA estimates the
information exchange requirement can be fulfilled with an average of 20
minutes of communication (one pre-entry and one post-entry
conversation, each lasting 10 minutes) per project between a supervisor
for the controlling contractor and an entry employer plus a worker-
authorized representative of that entry employer
Under final Sec. 1926.1203(h)(2), before entry operations begin,
the controlling contractor must provide information about the permit-
required spaces to employers with employees whose activities could
foreseeably expose them to a hazard in the permit-required space. OSHA
expects that employers on a worksite will not usually have employees
engaged in work that could foreseeably expose them to such a hazard. To
estimate the cost of compliance with this provision, OSHA anticipates
that the controlling contractor's supervisor will engage in one 5-
minute conversation with 10 percent of all non-entry employers on a
worksite. OSHA calculated the number of non-entry employers on a
worksite from estimates made by CONSAD of the number of non-entry
workers on projects, assuming an average employer size of 20 employees.
Under final Sec. 1926.1203(h)(4), the controlling contractor must
coordinate entry operations when multiple employers enter
simultaneously or when an employer makes an entry while other work
performed at the site (outside the confined space) may result in a
hazard in the confined space. To obtain the cost of compliance with
this information-exchange provision, OSHA estimates that the
controlling contractor and two employers will engage in one 10-minute
conversation per coordinated entry. To estimate the number of
coordinated entries, OSHA used estimates in the CONSAD report on the
number of simultaneous entries per project. OSHA assumes that all
estimated simultaneous entries will require coordination, and estimates
that 10 percent of all entries will be subject to hazards as a result of
work outside the confined space.
Although the CONSAD report did not provide direct estimates of
compliance rates for the information-exchange requirements, OSHA
believes that these compliance rates are similar to the compliance
rates associated with the requirements for notification to non-entrant
employees (ID-003, Table D.2). OSHA also believes it is reasonable to
assume that projects in compliance with requirements addressing
notification to non-entrant employees would also be in compliance with
requirements addressing employer-to-employer communication.
OSHA calculated the annual compliance cost for information exchange
on each project by multiplying the supervisor's hourly wage rate by the
number of hours per project for each type of required information
exchange. To estimate the cost of information exchange between host
employers and controlling contractors, OSHA modeled eight minutes of
three supervisors' time per project. Similarly, to estimate the cost of
information exchange between controlling contractors and entry
employers, OSHA modeled 20 minutes of supervisor time for the
controlling contractor, a worker-authorized representative, and each of
the entry employers on the project. To estimate the cost of information
exchange between the controlling contractor and employers on the
worksite having employees whose work may result in a hazard in the
confined space, OSHA modeled five minutes of supervisor time for the
controlling contractor and 10 percent of non-entry employers present.
Finally, to estimate the cost of coordinating simultaneous entries,
OSHA modeled 10 minutes for 3 supervisors (i.e., the controlling
contractor and two entry employers) for each such entry. For all of
these calculations, OSHA applied the totals to the percentage of
projects not already in compliance (i.e., 1 minus the compliance rate)
and summed these values across all projects. Using this approach, OSHA
estimates an annual cost of approximately $9.3 million to comply with
the information-exchange requirements in the final rule.
One commenter stated that the requirements to exchange information
and coordinate entry operations represent "an unnecessary burden" and
"in some cases may be infeasible" (ID-124). OSHA addresses this
comment as a technological-feasibility issue in the section on
technological feasibility, but the commenter's unsupported argument
also would fail if directed at economic infeasibility. Although this
commenter cited home-building industry statistics indicating that
homebuilders tend to be small businesses that rely on subcontractors to
handle specialized tasks, the comment did not explain how this
condition renders the multi-employer and communication requirements of
the rule economically infeasible for that industry.
Under final Sec. 1926.1203(b) and (c), employers must inform
exposed employees of the existence of permit spaces and the dangers
they pose. In the PEA, OSHA estimated that complying with this
requirement involved an average of five minutes per notified worker. In
the FEA, the Agency no longer includes such notification costs. Rather,
OSHA followed the PEA in assuming that employers will achieve
compliance with the notification requirement by posting a sign at each
confined space. OSHA estimates that signs have a five-year life, and
that installation takes five minutes per sign. The Agency calculates
the cost of signs as the unit cost of one sign times the number of
signs per project, and calculates the installation costs as five
minutes (\1/12\ of an hour) times the unskilled worker's hourly wage
times the number of signs per project. OSHA applies these totals to the
percentage of projects not already in compliance, summed across all
projects. Treating the installation cost as a recurring cost, and
treating signs as a capital cost with a useful life of five years, OSHA
estimates that the annualized cost of signs, including materials and
labor, to be $2.0 million.
Two stakeholders representing utility contractors, in similarly
worded comments, stated that notifying non-authorized entrants "could
mean informing 25-100 or more employees on the jobsite, which would be
extremely time consuming" (ID-124 and ID-075). However, OSHA believes
that, beyond posting the signs, there should be no additional costs
associated with the requirement to inform exposed employees of the
existence of permit spaces and the danger posed by unauthorized entry.
OSHA notes that, under 29 CFR 1926.21(b)(2), employers must already
provide general training to employees engaged in construction work to
ensure that they recognize the hazards on the worksite, including
applicable signage warning of hazards. As one commenter stated, "In
reference to warning employees not to attempt an unauthorized rescue,
it should be part of every construction employee's training . . .
because this warning applies to all construction rescue operations"
(ID-075).
In summary, OSHA estimates the total annualized costs related to
the final requirements for evaluation and classification, information
exchange, and notice to employees to be $12.1 million.
Written Program, Permit Issuance, and Annual Review
The proposed standard required that employers on worksites with
confined spaces either develop a confined-space program and maintain a
copy of the written program, or, alternatively, maintain a copy of the
standard at the site. For analytical purposes, OSHA assumed that
employers would choose the least-cost alternative and maintain a copy
of the standard at the site in lieu of developing a written program. In
contrast, final Sec. 1926.1203(d) is similar to the general industry
provision in that it requires entry employers to develop and implement
a written permit-space program, and final Sec. 1926.1204(n) requires
employers to review the permit-space program.
In this FEA, OSHA estimates one hour of supervisor time per project
to write a program. OSHA based this estimate on the paperwork-burden
determination made in the proposed rule for developing such a program,
which no commenter disputed. OSHA also notes the wide availability of
written model permit-space programs provided by government entities,
trade associations, and others, that employers could adapt with a
limited number of revisions to comply with the new standard (see, for
example, http://www.purdue.edu/rem/home/booklets/ConSpProg.pdf). OSHA
calculated compliance costs associated with the requirement to develop
a written program as a one-time cost consisting of one hour times the
supervisor's hourly wage times the number of projects. OSHA applied
this total to the percentage of projects not already in compliance, and
annualized the costs using assumptions on the share of projects that
are new to a contractor each year--yielding a total annualized cost of
approximately $1.3 million. OSHA notes that, in practice, an employer
is likely to develop one, somewhat generic, program, and then apply it
later to other projects. Given the ready availability of model programs
online and elsewhere, adapting one with limited revisions to a
company's particular needs is not especially difficult or time
consuming. In addition, following the PEA, OSHA estimates five minutes
of supervisor time per program for the annual review, and computes the
cost for this review as five minutes (\1/12\ of an hour) times the
supervisor's hourly wage times the number of
projects not already in compliance--yielding an estimated annual
compliance cost of about $155,000.
Final Sec. 1926.1205 requires employers to issue entry permits,
and final Sec. 1926.1206 specifies the information employers must
include in the permits. In the PEA, OSHA estimated that compliance with
the requirements to issue written entry permits when necessary, and to
review procedures periodically, would primarily involve supervisor
time; OSHA estimated that 15 minutes of supervisor time per permit
issued was sufficient for this purpose. For this FEA, OSHA estimated
compliance costs associated with issuing permits separately from the
compliance costs associated with the annual review of the permit-space
program. Following the analysis by CONSAD, OSHA estimates that
compliance with these provisions will involve 10 minutes of supervisor
time to issue a permit, 5 minutes of clerical time to write the permit,
as well as 5 minutes of supervisor time to provide written verification
regarding the safety of non-permit spaces, and 5 minutes of clerical
time for recordkeeping for non-permit spaces. The total estimated
annual costs in this final standard associated with issuing entry
permits and written verifications of safety are $2.7 million.
In summary, OSHA estimates that the annualized costs of the final
requirements to provide a written program, issue written permits, and
conduct an annual review of the program total to $4.2 million.
One commenter stated that the requirement to develop a confined-
space program might require the assistance of a third party, and
asserted that program development could cost contractors $10,000 (ID-
112). However, the commenter did not explain the basis for the $10,000
estimated cost of program development, and did not specify which
elements of "program development" were in its estimate. For example,
OSHA separately estimated the costs of providing a written confined-
space program and developing a training program. Furthermore, OSHA
notes that the final rule does not require employers to engage a third
party in the development of a confined-space program. Indeed, a variety
of examples of confined-space programs are widely available on the
Internet, which employers may adapt for their needs; in addition, OSHA
will provide a small entity compliance guide to aid employers in
developing such programs.
Isolating Hazards and Providing Ventilation
Final Sec. Sec. 1926.1203(e) and 1926.1204 refer to isolating
hazards and providing ventilation to ensure safe entry conditions for
permit-required spaces and confined spaces covered by alternate
procedures. As in the PEA, OSHA estimates that isolating hazards and
providing ventilation would require the time of a skilled construction
employee, additional costs for locks and/or tags, th
