January 27, 1994

Mr. Bruce Smith
Training Manager
Speed Shore Corporation
P.O. Box 262591
Houston, Texas 77207

Dear Mr. Smith:

This is in response to your April 8, 1993, letter requesting an interpretation on the scope of the Occupational Safety and Health Administration's (OSHA) confined space standard for general industry. I apologize for the delay in responding to your inquiry.

OSHA's enforcement policy with regard to confined spaces at construction sites has not changed with the promulgation of the general industry regulation. In those instances where a hazard is addressed by an existing part 1926 standard, OSHA will continue to cite the specific standard. In those cases where a hazard is observed that is not addressed by an existing specific construction standard but is addressed in the American National Standards Institute's Z117.1 consensus standard, OSHA will continue to cite under 5(a)(1) of the Act provided the conditions for citing the general duty clause are present. OSHA will not reference 1910.146 for construction work activities.

In addition, OSHA can cite 1926.21 for failure to provide adequate training for employees entering confined spaces. However, OSHA policy dictates that where a standard does not prescribe specific criteria, such as is the case with 1926.21, the Agency must establish that the cited employer failed to provide the instructions that a reasonably prudent employer would have given in the same circumstances.

With regard to references and cross references between part 1910 and 1926 standards, please be advised that before June 30, 1993, OSHA would cite certain 1910 standards where they applied at construction sites. On June 30, OSHA incorporated the General Industry standards which have been identified as applicable to construction work into part 1926. While other part 1910 standards may be identified in the future as applicable to construction, this compendium represents all of the part 1910 standards that have presently been identified as applicable. OSHA does not cross reference general industry and construction standards.

With regard to ANSI standards and NIOSH recommendations, please be advised that where OSHA standards incorporate by reference a particular ANSI standard, the ANSI standard becomes law and is fully enforceable under the OSH Act. As stated above, where a hazard is not addressed by an existing standard but is addressed in an ANSI standard, OSHA can cite under 5(a)(1) of the Act referencing the ANSI standard. NIOSH recommendations are not normally used in OSHA's enforcement actions.

If we can be of any further assistance, please contact me or Mr. Dale Cavanaugh at (202) 219-8136.

Sincerely,



Roy F. Gurnham, P.E., J.D.
Director
Office of Construction and Maritime
Compliance Assistance




February 9, 1993

Roy F. Gurnham, Esq., P.E.
Director
Office of Construction and Maritime
Compliance Assistance
O.S.H.A.
Washington, D.C. 20210

Dear Mr. Gurnham,

I would like an interpretation on how the construction standard CFR 29 Part 1926 will be impacted by the recent actions related to CFR 29 Part 1910 "Permit required confined spaces for General Industry; Final Rule."

Specifically:

Will O.S.H.A. reference 1910.146 when employee exposure to hazards are encountered and cited under 1926.21(b)(6)?

Will O.S.H.A. reference 1910.146 when employee exposure to hazards are encountered and cited under 1926.352(g) and 1926.353(b)?

Will O.S.H.A. reference 1910.146 when employee exposure to hazards are encountered are cited under the General duty clause 5(a)(1) of the O.S.H. Act?

Are references and cross references between 1910 and 1926 and/or ANSI and/or NIOSH a common practice in O.S.H.A. enforcement? If so, please explain the rationale and explain, if possible, some examples of this practice.

Thank you for your time and effort.

Sincerely yours,



Bruce Smith
Training Manager