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Regulations (Preambles to Final Rules) - Table of Contents
• Record Type: Confined and Enclosed Spaces and Other Dangerous Atmospheres in Shipyard Employment
• Section: 1
• Title: Section 1 - I. Background

I. Background

A. History of the Regulation

In May 1971, the Occupational Safety and Health Administration (OSHA), under authority granted by section 6(a) of the Occupational Safety and Health Act of 1970 (OSH Act, 84 Stat. 1590; 29 U.S.C. 655(a)), adopted established Federal standards issued under section 41 of the Longshore and Harbor Workers' Compensation Act (44 Stat. 1444, as amended; 33 U.S.C. 941), as standards applicable to ship repairing (29 CFR part 1915), shipbuilding (29 CFR part 1916), and shipbreaking (29 CFR part 1917) operations. Additionally, other Federal standards and national consensus standards were similarly adopted as general industry standards (29 CFR part 1910) and were made applicable to all aspects of shipyard operations not specifically covered by parts 1915, 1916, and 1917. On April 20, 1982 (47 FR 16984), parts 1915, 1916, and 1917 were consolidated into a single part 1915, for shipyard employment. The consolidated set of standards, entitled "Occupational Safety and Health Standards for Shipyard Employment," eliminated duplicate and overlapping provisions within the former three parts, but did not alter any substantive requirements. The consolidation had no effect on the applicability of the general industry standards, in part 1910, to hazards or conditions in shipyard employment not specifically addressed in the shipyard standards.

On November 29, 1988, OSHA published a proposed rule in the Federal Register (53 FR 48092) that would revise its previous standards on explosive and other dangerous atmospheres in vessels and vessel sections, contained in Subpart B of part 1915. The proposed standards covered safe entry into and work on board vessels and vessel sections in shipyards. The NPRM proposed the following revisions to the previous Subpart B:

* Expanding the scope so that the entire subpart applied to all phases of shipyard work on board vessels and vessel sections;

* Adding several definitions; changing the sequence of testing so that requirements for oxygen, flammability, and toxicity testing are presented in that order (the proposal would not, however, have required testing in that order);

* Increasing the oxygen content required for unprotected confined or enclosed space entry from 16.5 percent by volume to 19.5 percent by volume; adding a requirement that spaces containing concentrations of toxic contaminants above the permissible exposure limit be labeled "Not Safe for Workers";

* Adding a requirement for hot work that the concentration of oxygen not exceed 22 percent by volume; adding a requirement to label spaces if those spaces contain, or are adjacent to a space containing, concentrations of flammable gases or vapors at or above 10 percent of their lower explosive limit; and

* Adding two new appendices to aid employers and employees.

The NPRM also proposed a revision of 1915.7, Competent Person. The previous 1915.7, which is contained in Subpart A of the Shipyard Standards, defines a competent person for the purposes of Subparts B, C (Surface Preparation and Preservation), D (Welding, Cutting, and Heating), and H (Tools and Related Equipment). The proposed revision was intended to eliminate the paperwork burden involved in designating competent persons, to clarify the skills required of them, and to simplify requirements relating to logging of inspections and tests.

The notice of proposed rulemaking (NPRM) gave interested persons until February 27, 1989, to submit comments with respect to the proposal, to file objections, and to request a hearing. OSHA received over 40 comments in response to the proposed rulemaking. There were no hearing requests, and no hearing was held.

A short time after the shipyard proposed rule (Subpart B) was published, in November 1988, the Shipyard Employment Standards Advisory Committee (SESAC) was established to provide OSHA with guidance in revising its shipyard standards and in developing a vertical standard for the shipyard industry. At several SESAC meetings, the proposed rules in Subpart B were on the agenda.

Subsequently, on June 5, 1989 (several months after the comment period closed for the proposed revision of Subpart B), OSHA published a proposed rule for permit-required confined spaces in general industry (54 FR 24080). This general industry permit space proposal was intended to apply to land-side (that is, other than on vessels or vessel sections) operations within shipyards, including all operations and work areas, such as fabricating shops, machine shops, and staging areas. As a result, shipyard employers would have been required to comply with one set of standards for shipboard operations (part 1915, Subpart B) and another for land-side operations (part 1910, 1910.146).

The general industry permit space proposal was discussed at several SESAC meetings with a view toward incorporating applicable requirements into a vertical confined space standard for the entire shipyard. This would make it unnecessary for the general industry standard to apply to hazardous atmospheres in confined spaces in shipyards, as had been proposed in the 1910 rulemaking.

At SESAC's meeting of April 25-26, 1990, the Committee recommended that the scope of the proposed shipyard standard on vessels and vessel sections be expanded to include all confined and enclosed space operations within the shipyard (Tr. 102, 4/25/90). The committee also recommended that the title of the subpart, originally called "Explosive and Dangerous Atmospheres in Vessels and Vessel Sections," be changed to clarify that this standard addresses all confined and enclosed spaces and dangerous atmospheres encountered in shipyard employment. Additionally, SESAC recommended that several provisions similar to those proposed for general industry be added to subpart B to make it a comprehensive standard for shipyard employment. The provisions they recommended included a paragraph covering training requirements and duties of confined space entrants; a new paragraph on self-rescue and rescue teams; and a new paragraph addressing the duties of employers with respect to on-site contractors. As recommended by SESAC, the additional provisions would make subpart B a comprehensive set of requirements applicable to the hazards posed by confined and enclosed spaces and dangerous atmospheres encountered throughout shipyard employment.

In response to issues raised in various comments submitted to the docket concerning the general industry permit-required confined spaces proposal and to enable OSHA to place the SESAC recommendations into the subpart B rulemaking record, the Agency reopened the subpart B record for additional comment (57 FR 28152). In the notice reopening the record, which was published on June 24, 1992, OSHA invited public comment on seven issues. These issues were:

(1) Whether or not land-side confined and enclosed spaces and other dangerous atmospheres should be treated separately from spaces in vessels and vessel sections.

(2) What kind of training should shipyard confined space workers receive.

(3) Whether or not subpart B should require attendants for shipyard confined spaces.

(4) What should be a shipyard employer's duty with respect to rescue services.

(5) What should be a shipyard employer's duty with respect to contractors and other employers.

(6) Whether or not hot work permits should be required. (7) What are the costs associated with applying requirements from the generic confined spaces standard to shipyards.

Interested persons were given until September 22, 1992, to submit comments. OSHA received 53 comments in response to the notice reopening the record on the revision of subpart B.

The final rule on general industry permit-required confined spaces was published in the Federal Register on January 14, 1993 (58 FR 4462). Shipyards were omitted from the scope of the final general industry standard because the Agency felt that it would be more appropriate to address them in the revision of subpart B of part 1915. The relationship between subpart B and 1910.146 and OSHA's reasons for adopting a separate rule in subpart B are presented in the summary and explanation discussion of the scope and application section for subpart B (1915.11).

The information OSHA relied upon to prepare the Notice of Proposed Rulemaking (NPRM), comments received in response to the (NPRM), to the notice of the reopening of the record, and the exhibits (including the written transcripts of relevant SESAC meetings) submitted during the period allowed for such submissions, constitute the rulemaking record for this proceeding. The entire record was carefully considered in the preparation of this final rule.

B. Significant Risk

The Occupational Safety and Health Administration (OSHA) has determined that there is a significant risk to the health and safety of workers who enter confined spaces in shipyards. According to the most recent data from the Bureau of Labor Statistics (BLS), SIC 3731 (Ship building and Repairing) has the highest lost workday case incidence rate for injuries of any industry ("Occupational Injuries and Illnesses in the United States by Industry, 1991," Bureau of Labor Statistics, May, 1993).

The industry as a whole therefore poses the highest risk of injury from all hazards for its employees in the U.S. Within shipyards, confined space operations are one of the riskiest activities, which is why the industry developed its own effective confined space procedures that were adopted by OSHA as subpart B in 29 CFR part 1915 in the early 1970's.

At the present time, work in confined spaces on vessels is covered by the current shipyard confined space regulations in subpart B of part 1915, but work in "land-side" confined spaces is not. This work on land-side operations is therefore not currently addressed by a specific OSHA regulation. These operations were originally included in the scope of the proposed general industry confined space rule (1910.146) but were omitted in the final rule. In the preamble to that final rule, the Agency noted its intention to cover confined spaces, both on vessels and on land, in its revision of subpart B of part 1915. (58 FR 4471) Confined space work on ships is extremely hazardous, and accidents and fatalities still occur when the procedures of subpart B are not adhered to. OSHA has recorded 20 deaths in the shipyard and boat-building industries from 1983 to 1992 from confined space accidents. The Agency has concluded that the new elements in final subpart B will address non-compliance and lack of discipline in applying subpart B and will reduce significant risk in confined and enclosed spaces and other dangerous atmosphere work. These new elements include training, duty to employers (contractors), and rescue. In addition, the Agency concludes that other additions in the final will reduce risk in confined and enclosed spaces and other dangerous atmospheres work, including: specifying the order of testing of atmospheres, increasing the required oxygen content from 16.5 percent to 19.5 percent by volume, restricting oxygen content of spaces for hot work to 22 percent by volume, and posting notification if spaces contain or are adjacent to spaces that contain, concentration of flammable gases or vapors at or above 10 percent of there LEL.

[59 FR 37816, July 25, 1994]

Regulations (Preambles to Final Rules) - Table of Contents

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