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Regulations (Preambles to Final Rules) - Table of Contents
• Record Type: Permit-Required Confined Spaces
• Section: 1
• Title: Section 1 - I. Background


I. Background

On January 14, 1993, the Occupational Safety and Health Administration (OSHA) issued a general industry standard (29 CFR 1910.146) to require protection for employees who enter permit-required confined spaces (permit spaces). The permit space standard, which provides a comprehensive regulatory framework for the safe performance of entry operations in general industry workplaces, became effective on April 15, 1993.

The United Steelworkers of America (USWA), the American Gas Association, and the Edison Electric Institute sought judicial review of the standard. In particular, the USWA argued that paragraph (k)(2) of the standard, which addresses the use of off-site rescue services, was vague and ineffective. The USWA also stated that OSHA had inappropriately omitted from the final rule a provision allowing affected employees or their designated representatives to observe any required testing or monitoring of permit spaces and a provision granting affected employees access to permit space testing or monitoring results. All three petitions were subsequently withdrawn pursuant to settlement agreements.

Based on settlement discussions with the USWA, OSHA agreed to initiate further rulemaking, and a notice of proposed rulemaking (NPRM) was accordingly issued on November 28, 1994. In the notice, the Agency specifically asked for public input on the USWA's suggestion that OSHA add provisions to the rule providing employees the opportunity to observe permit space monitoring or testing as well as granting them access to the results of such testing or monitoring. The notice also proposed changes to paragraph (k)(2) to clarify that host employers must ensure that rescue teams or services selected to perform permit space rescues at the host employer's facility have the capability to provide rescue in a timely manner, depending on the hazard(s) present in the permit spaces at the host employer's facility. In addition, on the basis of information received after the 1993 final rule was published, OSHA proposed to make the requirement for the point of attachment of a retrieval line more performance oriented by permitting any point of attachment to be used that enables the entrant's body to present the smallest possible profile during removal.

The NPRM set a 90-day comment period, ending on February 27, 1995, to receive written comments on the proposed revisions and the issues raised. OSHA received 51 written comments (Exs. 161-1 through 161-51). Several commenters (Exs. 161-21, 161-22, 161-38, 161-40, 161-44) requested that OSHA convene an informal public hearing to address their concerns.

OSHA published a notice of informal public hearing on August 2, 1995, scheduling a hearing for September 27, 1995, in Washington, D.C. In the hearing notice, OSHA also announced the extension, until September 13, 1995, of the public comment period to receive comments relating to the issues raised in the hearing notice. Twenty-seven additional comments (Exs. 161-52 through 161-78) were received as a result of the reopening of the record.

Twelve participants introduced testimony and evidence at the September 27 and 28 public hearing, which was presided over by Administrative Law Judge Joel Williams. At the conclusion of the hearing, Judge Williams set a post-hearing period for the submission of additional briefs, arguments and summations (ending on December 20, 1995). A total of 12 submissions (Exs. 178 through 189) were received during the post-hearing period. On February 14, 1996, the record for the rulemaking was closed and certified to OSHA. The record for this phase of the rulemaking contains a total of 90 submissions and more than 470 pages of hearing transcript. OSHA has carefully considered all of the materials submitted as part of this rulemaking in the drafting of this final rule. The materials submitted are available for review and copying in the OSHA Docket Office, Docket S-019A.

A few commenters appeared to believe that this revision constitutes an entirely new rulemaking proceeding (Exs. 161-33, 167). OSHA emphasizes, however, that this proceeding is properly viewed as a continuation of the rulemaking leading to the 1993 standard. Therefore, the Agency is not required to demonstrate that the relatively minor changes it is making to the PRCS standard are independently justified or that they, by themselves, effect a substantial reduction in significant risk. OSHA made that finding for the PRCS standard as a whole in 1993. In this case, the changes OSHA is making to paragraphs (c), (d), (e), and (k) essentially clarify what was always the Agency's intent with regard to employee representatives' access to information and employers' evaluation and selection of rescue services and teams. Although it is OSHA's view that the employee participation revisions it is making to paragraphs (c) and (d), and the addition of paragraph (l), will in fact substantially reduce the risks faced by permit space entrants, the revisions are proper so long as they are rationally related to the purposes of the OSH Act and the standard as a whole, and are supported by the rulemaking record.

[63 FR 66019, December 1, 1998]

Regulations (Preambles to Final Rules) - Table of Contents

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