25366 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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. 

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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25367 

1References are available at the end of this 

section of the preamble. 

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] 

7% discount 

rate 

3% discount 

rate 

Annualized Costs 

Evaluation, Classification, Information Exchange and Notification ......................................................................... $12.4 $12.2 

Written Program, Issue Permits, Verify Safety, Review Procedures ...................................................................... 4.2 4.2 

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 

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) 

mstockstill on DSK4VPTVN1PROD with RULES2

25368 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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). 

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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25369 

exception from some of the permitrequired 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 sewerconstruction 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 confinedspace 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25370 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 reorganized 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, performancebased 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); MiamiDade 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25371 

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 § 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 § 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 § 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 § 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 confinedspace 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 § 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 StatePlan States that have standards 

applicable to construction work in 

confined spaces that are similar to 

§ 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 

§ 1926.21(b)(6) did not adequately 

protect construction employees in 

confined spaces from atmospheric, 

physical, and other hazards. Even when 

§ 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 significantrisk 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 § 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 

§ 1926.953 are included as a placeholder 

mstockstill on DSK4VPTVN1PROD with RULES2

25372 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 § 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 (§ 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 (§ 1910.269(x) and 

§ 1926.968). There is overlap between 

an enclosed space and a ‘‘permitrequired confined space’’ (permit space) 

as defined in the confined spaces 

standards for general industry 

(§ 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 

§ 1910.146 or new subpart AA, but it is 

not an enclosed space under final 

§ 1910.269 or subpart V. 

The note to the definition of 

‘‘enclosed space’’ in § 1910.269(x) states 

that enclosed spaces expected to contain 

a hazardous atmosphere meet the 

definition of permit spaces in 

§ 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 § 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 § 1910.146, but 

OSHA intended to add a corresponding 

note to § 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 § 1926.968 that 

corresponds to the note in § 1910.269(x), 

replacing the reference to § 1910.146 

with a reference to subpart AA. 

Amendments to § 1926.953 

Prior to this rulemaking, § 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 § 1910.146 when the precautions 

taken under §§ 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, 

§ 1926.953(g) stated that employees may 

not enter any enclosed space while it 

contains a hazardous atmosphere, 

unless the entry conforms to the permitrequired confined spaces standard in 

§ 1910.146. OSHA is amending 

§§ 1926.953(a) and 1926.953(g) by 

replacing each reference to § 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 

§ 1926.953(a) to clarify that employers 

may comply with the requirements of 

§ 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 § 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 

§ 1926.953(a) corresponds to a similar 

sentence in § 1910.269(e) specifying that 

employers are not required to comply 

with § 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 § 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 § 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 § 1910.269, OSHA only 

excuses employers from compliance 

with § 1910.146(d) through (k) for these 

routine entries, but employers must still 

comply with the requirements in 

§ 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 § 1926.953(a), the enclosed spaces 

requirements apply in lieu of the permit 

requirements in § 1926.1204 through 

§ 1211, but employers still need to 

comply with subpart AA’s 

corresponding requirements in 

§ 1926.1203 to assess the space, prevent 

unauthorized entry, and coordinate with 

and communicate with the controlling 

contractor, in addition to the 

requirements in § 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 

§ 1926.953, which appears at the end of 

the section, by replacing its reference to 

§ 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 

§ 1926.353(a). Some employers may 

prefer to comply with new subpart AA 

rather than § 1926.353(a), and subpart 

AA protects employees entering 

enclosed spaces at least as effectively as 

the provisions in § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25373 

hazard’’ (see proposed § 1926.1201(a)). 

OSHA removed the ‘‘Introduction’’ 

section to make this final rule similar to 

§ 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 § 1910.146(a) expressly 

excludes construction work. Therefore, 

it is impractical for OSHA to change the 

language in final rule § 1926.1201 to 

mirror § 1910.146(a). Instead, OSHA 

structured the scope section in final rule 

§ 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 (§ 1910.146(a)), OSHA 

phrased final § 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 § 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 § 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 § 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 

§ 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 § 1926.1201(a) differs 

slightly from proposed § 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 

§ 1926.1201(a). 

Final § 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 

§ 1926.1201(a) is identical to the note to 

proposed § 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 § 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 permitrequired 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25374 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

2All of the letters and memoranda included in 

this preamble are available at www.osha.gov. 

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, 

§ 1926.353—Ventilation and protection 

in welding, cutting, and heating at, and 

§ 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 

§ 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. 

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 § 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 (§ 1926.701, 

referencing § 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 § 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 

§ 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 ‘‘nonsewer’’ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25375 

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 

§ 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 confinedspace 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 

§ 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 

(§ 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 cutand-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 

(§ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25376 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

3OSHA 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. 

4Note 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. 

5OSHA 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. 

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. 

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. 

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 § 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 

§ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25377 

6The OSHA regulation addressing the overlap of 

different standards is in 29 CFR 1910.5. Paragraph 

Continued 

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 electricutility 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, 

§ 1910.269, does not exempt that 

industry from the general industry 

confined-space requirements at 

§ 1910.146: to the contrary, the 

‘‘enclosed spaces’’ provision in 

§ 1910.269(e) expressly requires 

employers to comply with the 

requirements in § 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 

§ 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 § 1926.953(a) and its 

explanation at 79 FR 20375–20376).). 

OSHA explained that the enclosed 

spaces provisions in § 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 § 1926.953 

incorporation, but that incorporation of 

§ 1910.146 was limited: it only applied 

to routine entries into enclosed spaces. 

Not all enclosed spaces are permitrequired 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 § 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 § 1926.1201(c) in this 

final standard to emphasize that point. 

When both the scope of final 

§ 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 

(§ 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 § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25378 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

(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. 

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 § 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 §§ 1926.1203(d), 

1926.1204, 1926.1205, and 1926.1206. 

Employers must comply with the 

ventilation requirements in 

§ 1926.353(a) of subpart J to address 

atmospheric hazards produced by 

welding fumes, but employers also must 

comply with § 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 § 1926.1203(a), (b), and 

(h), and the relevant training required 

by § 1926.1207. Employers must 

develop a rescue plan in accordance 

with § 1926.353(b)(3) of subpart J, but 

also must assess and select a rescue 

service in accordance with 

§§ 1926.1204(i) and 1926.1211(a) and 

(c), and equip and train its in-house 

rescue services pursuant to 

§ 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 (§ 1926.1211(d)), 

and the employee-participation 

requirements in § 1926.1212. 

Subpart D—Occupational Health and 

Environmental Controls, at 

§ 1926.64(f)(4) and (j), discussed above, 

and in subpart V—Power Distribution 

and Transmission, at § 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 § 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 § 1926.1202(d) 

not included—Statement on other 

duties of controlling contractors. 

Proposed § 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: MultiEmployer 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 § 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 

§ 1926.1202 of the final rule. OSHA took 

many of the definitions of the terms 

used in final rule § 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 § 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 § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25379 

§ 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 § 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 

§ 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 § 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 § 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 

§ 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 § 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 § 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 § 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 § 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 

§ 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 § 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 multiemployer 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 § 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 § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25380 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

7See 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). 

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 § 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., 

§§ 1926.32(f), 1926.450(b), 1926.650(b), 

1926.751, and 1926.1401; see also the 

discussion of final § 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 § 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. 

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 § 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 § 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 § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25381 

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 

§ 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 § 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 oxygendeficient 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25382 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 § 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, 

§ 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 § 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 MultiEmployer Citation Policy. For more 

information about the role of the 

controlling employer, see OSHA 

Directive CPL 02–00–124: MultiEmployer Citation Policy. 

Double block and bleed means the 

closure of a line, duct, or pipe by 

closing and locking or tagging two inline 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 § 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 § 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 § 1926.1204(e)(1) below in this 

preamble). As illustrated by the nonexhaustive list of examples of earlywarning 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 

§ 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 § 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 § 1926.1204(i), 

which requires the employer to develop 

and implement procedures for 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25383 

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 

§ 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 § 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 

§ 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 

§ 1910.146(b). 

Entry employer means an employer 

who decides that an employee it directs 

will enter a permit space. Paragraph (b) 

of § 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 § 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 multiemployer 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 (§ 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 § 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 preentry information exchanges in 

§ 1926.1203(h) and the duty to develop 

and implement a permit program to 

restrict access under § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25384 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 § 1910.146. This 

definition is otherwise identical to the 

definition in § 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 

§ 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 

§ 1910.146(b), and several commenters 

requested that OSHA make the 

definition in this final rule more similar 

to the definition in § 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 

§ 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 § 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 § 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.)) 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25385 

8NFPA 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). 

9The 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. 

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 § 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 

§ 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 

§ 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. 

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 confinedspace 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. 

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 crossreferences 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 § 1910.1000 

also would apply under this condition 

(ID–028, p. 5). OSHA did not include a 

reference to § 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 

§ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25386 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 selfrescue. 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 selfrescue 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 selfrescue 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 

§ 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 § 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 § 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 § 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 § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25387 

heating. In § 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 

§ 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 § 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 § 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 § 1926.1203(e) 

(see the discussion of § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25388 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

10OSHA uses ‘‘periodic testing’’ and ‘‘periodic 

monitoring’’ interchangeably in this standard. 

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 § 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 § 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 § 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 § 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 electricpowered 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 

§ 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. 

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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25389 

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 

§ 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 permitrequired space: It meets all of the 

requirements to be a confined space, but 

does not meet the criteria to be a permitrequired confined space (see the 

discussion of the definition of ‘‘permitrequired 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 § 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 § 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 § 1926.1202 to make it 

identical to the definition in the general 

industry confined spaces standard at 

§ 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 

§ 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 permitrequired 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 nonpermit-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 § 1926.1202 (excluding 

lockout/tagout) may be able to reclassify 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 

§ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25390 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 § 1910.146(e), and 

defines it in § 1910.146(b). In the final 

rule, OSHA uses the term ‘‘permitting 

process’’ as the heading of the parallel 

requirement at § 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 

§ 1926.1205 because such a definition is 

unnecessary; the ‘‘permitting system’’ is 

comprised of the requirements of 

§ 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 

§ 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 

§§ 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 

§ 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 § 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 § 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 § 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 § 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 nonexhaustive 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25391 

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 § 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 § 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 blastrelated 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 § 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 hearingprotection 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 § 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 § 1926.32(m) and other subparts of 

OSHA’s construction safety standards 

(see, e.g., § 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 nonmstockstill on DSK4VPTVN1PROD with RULES2

25392 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

11OSHA 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. 

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 § 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 

§ 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 

§ 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 § 1910.146 except that it allows for 

the use of anklets. In proposed 

§ 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 § 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 selfrescue (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. 

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. 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25393 

12OSHA 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. 

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 § 1910.147— 

The control of hazardous energy 

(lockout/tagout) (see § 1910.146(b); 

§ 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. 

First, tagging equipment does not, by 

itself, prevent the release of a hazard 

into the space. Therefore, under 

§ 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 (§ 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 (§ 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 § 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 § 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 § 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, 

§ 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 

§ 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, § 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 § 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 

§ 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 § 1926.1203(a) is 

similar to the corresponding provision 

for general industry confined spaces at 

§ 1910.146(c)(1), with some minor 

modifications. Final § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25394 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 § 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 

§ 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 § 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 § 1926.1204(b), 

which would have required employers 

to test for atmospheric hazards using the 

procedures in proposed 

§ 1926.1204(b)(3). However, final 

§ 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 

§ 1926.1203(a) is only initial testing; 

final § 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 § 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 

§ 1926.1203(a) and § 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 § 1926.1203(a) also requires the 

competent person to consider and 

evaluate other elements of the confined 

space to determine if it is a permitrequired 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 

§ 1926.1203(d) and (g)(2); 

§ 1926.1204(b)(2)). This applies to 

entries performed to determine whether 

or not that space is a permit space. 

Final § 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 § 1910.146(c)(1) does 

not explicitly identify the two steps, 

they are implicit in § 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 § 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 

§ 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 (§ 1910.146(c)(1)). On a 

construction worksite, there typically 

are many more employers than at 

general industry worksites. Therefore, 

under final § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25395 

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 §§ 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 § 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 

§§ 1926.1207–1210). The initial 

evaluation of spaces under final 

§ 1926.1203(a) includes a competentperson 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 § 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 § 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 § 1926.1203(a) broadly, so 

it is not as specific as proposed 

§ 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 

§ 1926.1203(d). Furthermore, under 

final § 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 § 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 § 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 

§ 1203(a) and § 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 § 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 § 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 

§ 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 

§ 1926.1203(b)(1) is similar to both the 

general industry rule at § 1910.146(c)(2) 

and proposed § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25396 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

13OSHA’s requirements for accident prevention 

signs in § 1926.200 also apply. 

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 § 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 

§ 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 

§ 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 § 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. 

Proposed § 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 

§ 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 

§ 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 

§ 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 § 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 

§ 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 § 1926.1203(c) 

requires an employer to comply with 

final § 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 § 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 PermitRequired 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 

§ 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 

§ 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 

§ 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 § 1926.1203(h)(4). 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25397 

Paragraph (b)(2). Final 

§ 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 

§ 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 

§ 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 

§ 1926.1203(h). Final § 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 § 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., § 1910.146(l) 

and the discussion of § 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 § 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 § 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 

§ 1926.1203(b)(1), and the controlling 

contractor under final § 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 § 1926.1203(b)(1) 

requires only posting to notify 

employees of confined space hazards, 

similar to the general industry standard 

at § 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 § 1926.1203(c), 

which is similar to § 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 

§ 1926.1203(a); receive notification from 

the controlling contractor of the 

presence of a permit space under final 

§ 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 

§ 1926.1209(b) required employers not 

conducting confined space operations to 

take specific steps to prohibit entry by 

employees, final § 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 § 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 permitspace 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 

§ 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 § 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: § 1926.1203(a), relating 

to identification of permit spaces in the 

workplace; § 1926.1203(b)(1), relating to 

informing employees of the presence of 

permit spaces; § 1926.1203(f), relating to 

changes in confined spaces; and 

§ 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 

§ 1926.1203(h)(2) and (h)(4), controlling 

contractors must inform and coordinate 

mstockstill on DSK4VPTVN1PROD with RULES2

25398 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 

§ 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 § 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 § 1926.1203(d) is 

similar to the corresponding provision 

for general industry confined spaces at 

§ 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 

§ 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 § 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 § 1910.146(d)(3). Before a 

specific permit space is entered, the 

employer must document the completion of 

the measures required by § 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 

§ 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 § 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 stepby-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 

§ 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 permitspace 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25399 

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 § 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 § 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 § 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 

§ 1926.1203(e) spaces remain permitrequired 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 permitprogram requirements specified by final 

rule § 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 § 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 

§ 1926.1203(e) is similar to proposed 

§ 1926.1216. 

Paragraph (e)(1). Final 

§ 1926.1203(e)(1), which is 

substantively identical to 

§ 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 § 1926.1203(e)(1) slightly 

from the general industry rule to state 

explicitly that employers must meet all 

of the conditions listed in final 

§ 1926.1203(e)(1) before using the 

alternate procedures specified by final 

§ 1926.1203(e). If employers meet all of 

these conditions, the employer need not 

comply with final §§ 1926.1204–1206 

(addressing permits and permit 

programs) or final §§ 1926.1208–1211 

(setting forth specific duties for permitrequired confined spaces). Employers in 

permit spaces qualified to use the 

alternate procedures, however, still 

must comply with final § 1926.1207 

(training requirements), final 

§§ 1926.1212–1213 (Employee 

participation and provision of 

documents to the Secretary), and the 

other provisions of final § 1926.1203, 

including the information exchange 

requirements in final § 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 

§ 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 

§ 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 § 1926.1203(e) spaces 

(ID–099, p. 3). Final § 1926.1203(e)(1) 

clarifies that spaces qualifying for the 

alternate procedures under 

§ 1926.1203(e) do not need to comply 

with final §§ 1926.1204–1206 

(addressing permits and permit 

programs) and §§ 1926.1208–1211 

(setting forth specific duties for permitrequired confined spaces). 

Paragraph (e)(1)(i). Final 

§ 1926.1203(e)(1)(i), which is similar to 

the general industry standard at 

§ 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 § 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 § 1926.1216, which 

the commenter described as requiring 

the elimination of all physical hazards 

(ID–220, p. 6). Proposed § 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 

§ 1926.1216(a)(1); see also proposed 

§ 1926.1216(a)(3), which required the 

documentation of the method for 

‘‘isolating’’ each physical hazard). The 

mstockstill on DSK4VPTVN1PROD with RULES2

25400 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

14The general industry standard does not allow 

employers to use the alternative entry procedures 

in § 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. 

final rule, which defines ‘‘isolate or 

isolation’’ in final § 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 lowhanging pipe with foam or locking out 

pieces of equipment (see the definition 

of ‘‘isolate or isolation’’ in final 

§ 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

Paragraph (e)(1)(ii). Final 

§ 1926.1203(e)(1)(ii), which corresponds 

to the general industry standard at 

§ 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 forcedair 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 

§ 1926.1203(e). In the preamble to 

§ 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 § 1926.1203(e). 

Final § 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 

§ 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 § 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 § 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 

§ 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 

§ 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 § 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 

§ 1926.1204(c)(3). 

Paragraph (e)(1)(iii). Final 

§ 1926.1203(e)(1)(iii), which is identical 

to the general industry standard at 

§ 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 

§ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25401 

15OSHA recognizes that compliance with final 

§ 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 § 1926.1203(e)(1)(iii), and enters under 

a permit program that complies with all other 

provisions except the pre-entry testing in 

§ 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. 

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 forcedair 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 

§ 1926.1203(e)(1)(iv), which is identical 

to the general industry standard at 

§ 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 

§ 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 §§ 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. 

Paragraph (e)(1)(v). Final 

§ 1926.1203(e)(1)(v), which is identical 

to the general industry standard at 

§ 1910.146(c)(5)(i)(E), sets out the fifth 

criterion for using the alternate 

procedures. It also is similar to 

proposed § 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 § 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 § 1926.1203(e) for a 

particular permit space. 

Paragraph (e)(1)(vi). Final 

§ 1926.1203(e)(1)(vi), which is identical 

to the general industry standard at 

§ 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 § 1926.1203(e) in accordance 

with the specific procedures required by 

final § 1926.1203(e)(2). 

Paragraph (e)(2). Final 

§ 1926.1203(e)(2), which is similar to 

§ 1910.146(c)(5)(ii), sets forth the 

procedures that employers must follow 

for permit-space entries made under 

final § 1926.1203(e)(1). The introductory 

paragraph in § 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 

§ 1926.1203(e)(2)(i), which is identical 

to the general industry standard at 

§ 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 

§ 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 

§ 1926.1203(e)(2)(ii), which is nearly 

identical to the general industry 

standard at § 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 § 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 § 1926.1203(e)(2)(ii) 

differs from § 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 

§ 1926.1203(e)(2)(iii), which is 

substantively identical to the general 

industry standard at 

§ 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 

§§ 1926.1216(d)(2) and 1926.1205(a)(1), 

though not as detailed as the testing 

required by proposed § 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 

§ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25402 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 

§ 1926.1203(e)(2)(iv), which is identical 

to the general industry standard at 

§ 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 

§ 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 § 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 §§ 1926.1204– 

1211. See also the discussion of final 

§ 1926.1203(e)(2)(vii)(A) below. 

Paragraph (e)(2)(v). Final 

§ 1926.1203(e)(2)(v), which is identical 

to the general industry standard at 

§ 1910.146(c)(5)(ii)(E), sets out 

requirements for using continuous 

forced-air ventilation to maintain the 

permit space safe for entry. Final 

§ 1926.1203(e)(2)(v)(A) also is identical 

to § 1910.146(c)(5)(ii)(E)(1) and similar 

to proposed § 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 § 1926.1203(e)(2)(v)(B) 

is identical to § 1910.146(c)(5)(ii)(E)(2), 

and shares the purpose of proposed 

§ 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 § 1926.1203(e)(2)(v)(C) is identical 

to § 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 

§ 1926.1203(e)(2)(vi), which is similar to 

the general industry standard at 

§ 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 § 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 § 1926.1204(e)(2) (discussion of 

continuous monitoring of permit spaces 

entered under a full permit program, 

rather than the alternative procedures). 

Final § 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 

§ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25403 

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 § 1926.1203(e)(2)(vi), 

in combination with the continuous 

forced-air ventilation required by final 

§ 1926.1203(e)(2)(v), ensure that 

entrants remain protected the entire 

time they are present within the permit 

space. 

Finally, final § 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 

§ 1926.1203(e)(2)(vii), which is similar 

to the general industry standard at 

§ 1910.146(c)(5)(ii)(G), specifies what an 

employer must do if it detects a hazard 

in a space regulated by the 

§ 1926.1203(e) alternate procedures 

during entry. Final § 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 

§ 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 

§ 1926.1203(e)(1)(i), which allows 

employers to use the alternate 

procedures of final § 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 

§§ 1926.1203(e)(2)(vii)(A)–(C), which 

are similar to general industry 

§§ 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 § 1926.1203(e) 

during entry. Final 

§ 1926.1203(e)(2)(vii)(A) is identical to 

the general industry standard at 

§ 1910.146(c)(5)(ii)(G)(1), and requires 

employees to exit the permit space 

immediately after detecting a hazard. 

Final § 1926.1203(e)(2)(vii)(B) is similar 

to the general industry standard at 

§ 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 

§ 1926.1203(e)(2)(vii)(C) is similar to the 

general industry standard at 

§ 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 

§ 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 § 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 

§ 1926.1203(e)(2)(viii) requires an 

employer to provide a safe means of 

access and egress during confined space 

entries under final § 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 § 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 § 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 

§ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25404 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 § 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 

§ 1926.1203(e)(2)(viii) for the alternative 

entries regulated under § 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 § 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 

§ 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 permitspace operations governed by final 

§ 1926.1204 also apply to the spaces 

regulated under final § 1926.1203(e) 

and, therefore, OSHA adopted the 

proposed requirement in this final rule. 

Paragraph (e)(2)(ix). Final 

§ 1926.1203(e)(2)(ix), which is identical 

to general industry 

§ 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 

§ 1926.1203(e)(2). This provision also is 

similar to proposed § 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 

§ 1926.1203(e)(1)(v), will document the 

employer’s efforts to comply with final 

§ 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 

§ 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 § 1926.1203(e)(1)(v), 

and provides that entry under final 

§ 1926.1203(e)(2) can occur only under 

the conditions set forth in final 

§ 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 § 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 

§ 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 § 1926.1216 

was more detailed than the 

documentation requirement in this final 

rule and, thus, more similar to an entry 

permit. Final § 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 

§ 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 § 1926.1203(f), 

which is nearly identical to the general 

industry standard at § 1910.146(c)(6), 

addresses the reevaluation of confined 

spaces. This final provision requires 

each entry employer to reevaluate nonpermit 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 

§ 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 

§ 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 § 1926.1204(e)(5)). 

OSHA does not expect employers to 

reevaluate spaces when trivial changes 

occur that do not affect the 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25405 

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 § 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 § 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 

§ 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 § 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 § 1926.1203(g), 

which is similar to the general industry 

standard at § 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 § 1926.1203(g)(1)–(4). Final 

§ 1926.1203(g) is substantively similar 

to proposed § 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 

§ 1926.1203(g) will be more efficient 

and less costly to implement than 

permit-space requirements. The Agency 

made three non-substantive changes 

from § 1910.146(c)(7) in the 

introductory paragraph of final 

§ 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 

§ 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 § 1926.1203(g) 

applies (ID–099, p. 4). Another 

commenter asserted that OSHA should 

require attendants for spaces regulated 

by final § 1926.1203(g) (ID–060, p. 3). 

Final § 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 nonpermit 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 § 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 

§ 1926.1203(g). 

Paragraph (g)(1). Final 

§ 1926.1203(g)(1), which is identical to 

general industry § 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 § 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 § 1926.1204(c)(3). 

Paragraph (g)(2). Final 

§ 1926.1203(g)(2), which is similar to 

the general industry standard at 

§ 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 

§ 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 § 1926.1203(g)(2) 

requires the entry employer to comply 

with all PRCS procedures in final 

§§ 1926.1204–1211 until elimination or 

isolation of the hazards is complete. 

Final § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25406 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

OSHA based on proposed 

§ 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 nonpermit 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 

§ 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 § 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 § 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 

§ 1926.1203(e), not § 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 

§ 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 § 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 § 1926.1203(g), 

rather than using the term ‘‘hazardous 

atmosphere’’ as in § 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 

§ 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 

§ 1926.1203(e) space remains a permitrequired space that can be entered 

without a permit so long as the controls 

remain effective. Final § 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 forcedair ventilation or other practices. 

Paragraph (g)(3). Final 

§ 1926.1203(g)(3), which is nearly 

identical to the general industry rule at 

§ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25407 

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 

§ 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 § 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 

§ 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 

§ 1926.1203(g)(4), which is similar to 

§ 1910.146(c)(7)(iv), requires that 

whenever a hazard arises in a space 

reclassified under final § 1926.1203(g), 

employees must evacuate the space, and 

the entry employer must reevaluate the 

space. This final provision also is 

similar to proposed § 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 § 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 § 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 

§§ 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 reclassifying 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 § 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 § 1926.1204 and permitting 

requirements of § 1926.1205. The fact 

that the spaces addressed in 

§ 1926.1203(g) were previously permit 

spaces before reclassification as nonpermit 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 § 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 (§ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25408 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 § 1926.1204.) 

Based on the record as a whole, 

OSHA finds that the informationsharing 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 § 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 

§ 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 § 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 

§ 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 § 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 multimstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25409 

employer citation policy. The specific 

communication and coordination 

requirements imposed by this rule are 

discussed in the paragraph-byparagraph explanation of § 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 hostcontractor 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 § 1926.1203(h) and (i) 

Final § 1926.1203(h) is substantively 

similar to the corresponding provision 

for general industry confined spaces at 

§ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25410 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

(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 § 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 § 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 informationexchange 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 § 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 permitspace 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 

§ 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 

§ 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 

§ 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 

§ 1926.1203(h)(2)(i) and the host 

employer must share it under final 

§ 1926.1203(h)(1). 

These complementary duties also 

address the concerns of some 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25411 

16For a discussion of the term ‘‘near’’ see the 

overview of § 1926.1205 in this preamble. 

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 

§ 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 § 1926.1203(h)(2) is similar to 

the corresponding provisions for general 

industry confined spaces with a few 

distinctions. General industry 

§ 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 § 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 permitspace entry only by complying with a 

permit-space program meeting the 

requirements of the standard (see 

§ 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 § 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 

§ 1910.146(c)(8)(iii)) and the proposed 

rule (referring to ‘‘employers’’ in 

proposed § 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 

§ 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. 

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 

§ 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 § 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 informationexchange process, and to centralize the 

role of the controlling contractor. The 

controlling contractor needs this 

information for dissemination to entities 

entering permit spaces (final 

§ 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 

§ 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, 

§ 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 § 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 

§ 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 § 1926.1203(h)(4). 

Final § 1926.1203(h)(2)(ii)(C) is 

similar to the general industry standard 

at § 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 

§ 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 § 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, 

mstockstill on DSK4VPTVN1PROD with RULES2

25412 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 InformationExchange 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 permitrequired 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 permitspace 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 § 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 informationexchange 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 informationsharing 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 informationsharing requirement: On large 

commercial construction projects, it is 

common to exchange information at the 

start of the project, but this information 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25413 

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 permitspace 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 

§ 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 

§ 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 permitspace 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 permitspace program is selected. Consistent 

with the approach in the proposed rule, 

separating this pre-entry exchange from 

the subsequent entry report required by 

§ 1926.1203(h)(5)(ii) clarifies that these 

two information exchanges must take 

place at two distinct stages of permitentry 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 informationexchange 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 

§ 1926.1203(h)(2). 

Paragraph (h)(4)—Coordination duties 

of controlling contractors and entry 

employers. Final § 1926.1203(h)(4) 

requires controlling contractors and 

entry employers to coordinate permitspace 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25414 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 

§ 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 §§ 1926.1204(k) 

and 1926.1210(f). Final § 1926.1204(k) 

requires an entry employer to account 

for such coordination as part of its 

permit program, while final 

§ 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 § 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 permitspace 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25415 

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, § 1926.1203(h)(5)(i) 

requires the controlling contractor to 

retrieve the information, and 

§ 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 

§ 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 § 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 § 1926.1203(h)—host employer and 

controlling contractor not required to enter 

a confined space. The final standard also 

includes the note from proposed 

§ 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 

§ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25416 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

17The Secretary delegated those responsibilities 

to the Assistant Secretary for Occupational Safety 

and Health, who heads OSHA. See 77 FR 3912 (Jan. 

25, 2012). 

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 § 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 

§ 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 § 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, 

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 hostemployer 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 multiemployer 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 informationexchange 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: 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25417 

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 multiemployer provisions. And, there is nothing in 

the record that . . . suggested that the 

information-sharing requirements under 

§ 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 

§ 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 § 1926.1203(d)). Final 

§ 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 § 1926.1202. 

Technically, final § 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 § 1926.1203(d), but employers 

should view § 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 § 1926.1204, which is similar to 

§ 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 permitrequired confined space provisions in 

§ 1926.1204 of the final rule to the 

corresponding provisions for general 

industry confined spaces at 

§ 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 §§ 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 (§ 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 

§ 1910.146 refers to both ‘‘permit space 

operations’’ (§ 1910.146(g)(2)(iii)) and 

‘‘permit space entry operations’’ 

(§ 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 

§ 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 § 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 § 1926.1204(a), 

which is identical to § 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 § 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 § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25418 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 § 1926.1203(a), 

OSHA requires employers to identify 

and evaluate the hazards of permit 

spaces that employees will enter. Final 

§ 1926.1204(b), which is identical to 

§ 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 § 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 §§ 1926.1203(a) 

and 1926.1204(b). 

Paragraph (c). Final § 1926.1204(c), 

which is similar to § 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 § 1926.1204(c) 

provide specific elements of these 

required procedures. 

Paragraph (c)(1). Final 

§ 1926.1204(c)(1), which is identical to 

§ 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 

§ 1926.1204(c)(2), which is identical to 

§ 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 § 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 

§ 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 

§ 1926.1204(c)(3), which is similar to 

§ 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 

§ 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. 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25419 

18The 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 § 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. 

19OSHA 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. 

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 § 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 § 1926.1203(e) or the 

reclassification under § 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 § 1926.1204(c)(4) and 

§ 1926.1204(e) (see final 

§ 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 sewerservices 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

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

Paragraph (c)(4). Final 

§ 1926.1204(c)(4), which is identical to 

§ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25420 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

20This 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., §§ 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). 

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

In § 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 § 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 (§ 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 

§ 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 § 1926.1202 of this final 

rule. Even when the space is 

successfully inerted, an oxygendeficient 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 § 1926.1202 and § 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, explosionproof 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 

§ 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 

§ 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 § 1926.1208(b). There 

is no corresponding provision specified 

in § 1910.146 that mirrors final 

§ 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 

§ 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 

§ 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 § 1926.1203(e) alternateprocedures 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 § 1926.1204 or 

the alternative ‘‘ventilation only’’ 

procedure allowed by § 1926.1203(e). As 

with the general industry standard (see 

explanation of § 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. 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25421 

21All additional requirements of subparts G and 

M remain in effect. 

Proposed § 1926.1208(b)(2) contained 

provisions similar to those in final 

§ 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 

§ 1926.1204(c)(6), which is identical to 

§ 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). 

Paragraph (c)(7). Final 

§ 1926.1204(c)(7), the first clause of 

which is identical to 

§ 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 § 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 § 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 § 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 

§ 1926.1204(c)(4), then the employer 

may allow employees to enter with 

closed-circuit respirators that would 

protect the employees from the oxygendeficiency 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 suppliedatmosphere respirators to protect the 

employees from the oxygen-deficiency 

hazard), or terminate entry. See also the 

previous discussion of final 

§ 1926.1204(c)(4). 

Paragraph (c)(8). Final 

§ 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 

§ 1926.1204(c)(8); it is drawn from the 

requirements in proposed 

§§ 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 § 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, 

§ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25422 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

22OSHA 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. 

ability of the rescuers to perform rescues 

safely. 

Paragraph (d). Final § 1926.1204(d), 

which is similar to § 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 § 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 § 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 § 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 

§ 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 

§ 1926.1204(d)(1), which is identical to 

§ 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 

§ 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 directreading 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. 

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 § 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 

§ 1926.1204(d)(2), which is identical to 

§ 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 

§ 1926.1204. Use of the required 

equipment when appropriate is a 

significant factor in protecting the 

employees from hazardous atmospheres. 

Paragraph (d)(3). Final 

§ 1926.1204(d)(3), which is 

substantively identical to 

§ 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 §§ 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 § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25423 

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 § 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 § 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 

§ 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 § 1926.1210(j)(1), such equipment 

may consist of a variety of types (for 

example, cell phones, two-way handheld 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 

§ 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 

§ 1926.1204(d)(4), which is identical to 

the general industry standard at 

§ 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 (§ 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 

§ 1926.1204(c)(4) and (c)(7) above, PPE 

cannot provide protection against some 

hazards such as explosions. 

Paragraph (d)(5). Final 

§ 1926.1204(d)(5), which is similar to 

§ 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 § 1910.146(d)(4)(v) does not 

explicitly note that lighting equipment 

must meet other applicable OSHA 

standards; however, proposed rule 

§ 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 § 1926.407(b)(2)(i); 

a note to § 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 

§ 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 

§ 1926.1204(d)(6), which is 

substantively identical to 

§ 1910.146(d)(4)(vi), requires an 

employer to provide barriers and shields 

when required by this standard (see 

§ 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 

§ 1926.1204(d)(7), which is identical to 

§ 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. 

mstockstill on DSK4VPTVN1PROD with RULES2

25424 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

Paragraph (d)(8). Final 

§ 1926.1204(d)(8), which is identical to 

§ 1910.146(d)(4)(viii), requires an 

employer to provide rescue and 

emergency equipment as needed. Final 

§ 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 

§ 1926.1204(d)(9), which is similar to 

§ 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 permitspace 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 permitspace 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 § 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 

§ 1926.1204(d)(9) the corresponding 

language in § 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 § 1926.1204(e), is 

similar to § 1910.146(d)(5), but includes 

language from proposed § 1926.1215— 

Continuous system permit spaces, as 

well as editorial revisions to the 

introductory text. 

Paragraph (e)(1). Final 

§ 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 § 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 

§ 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 § 1926.1204(e)(1) is similar to 

the corresponding provision for general 

industry confined spaces at 

§ 1910.146(d)(5)(i), with three 

exceptions. First, OSHA reorganized the 

two requirements in § 1910.146(d)(5)(i), 

pre-entry testing followed by 

continuous monitoring, into separate 

paragraphs in final § 1926.1204(e)(1)(i)– 

(ii). Second, OSHA also added the 

requirement for employers to provide an 

early warning system in final 

§ 1926.1204(e)(1)(iii). OSHA separated 

the two paragraphs to emphasize that an 

employer performing confined-space 

operations under final § 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 § 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 

§ 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 

§ 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 

§ 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 § 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). Nonisolated 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 § 1926.1204(e)(1)(ii) is similar to 

the corresponding provision for general 

industry confined spaces at 

§ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25425 

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 § 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 

§ 1926.32(f). For example, final 

§ 1926.1208(b) and § 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 § 1926.1204(d)). Under 

the training provisions of both 

§ 1910.146(g) and final § 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 § 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 § 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 performanceoriented approach so that this standard 

will not become outdated through 

advances in monitoring technology. 

Paragraph (e)(1)(iii). Final 

§ 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 

§ 1926.1215(a)(2), but there is no 

corresponding § 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 § 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 nonisolated 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25426 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 § 1926.1203(e), 

or if there are no atmospheric hazards 

and the permit space is reclassified in 

accordance with § 1926.1203(g). OSHA 

anticipates, however, that in most cases 

employers in non-isolated spaces will 

need to comply with 

§ 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 

§ 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 

§ 1926.1204(e)(1)(iii). 

Paragraph (e)(2). Final 

§ 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 § 1926.1204(e)(2) is similar to the 

corresponding provision for general 

industry confined spaces at 

§ 1910.146(d)(5)(ii), except that final 

§ 1926.1204(e)(2) generally requires 

continuous monitoring as did the 

proposed rule (see proposed 

§ 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 

§ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25427 

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 

§ 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 § 1910.146 is causing the 

level of confusion suggested by the 

commenters. 

Paragraph (e)(3). Final 

§ 1926.1204(e)(3), which is identical to 

§ 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 

§ 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 § 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 

§ 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 

§ 1926.1204(e)(4), which is identical to 

§ 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 § 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 

§ 1926.1204(e)(5), which is similar to 

§ 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 § 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 § 1926.1204(c)(2) 

and notes a problem with that testing 

may request a re-evaluation of the space 

under § 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 

§ 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 

§ 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 

§ 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 

§ 1926.1204(e)(6), which is identical to 

§ 1910.146(d)(5)(vi) except for nonsubstantive clarifications and 

grammatical changes, requires an 

employer to immediately provide the 

results of testing conducted in 

accordance with final § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25428 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 § 1926.1204(c)(2) 

for further explanation of this 

requirement. 

Paragraph (f). The introductory text of 

final § 1926.1204(f), which is identical 

to § 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 

§ 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 

§ 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 § 1926.1209 for more 

than one permit space, similar to the 

requirement specified in the proposed 

rule at § 1926.1210(f)(3). Under final 

§ 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 § 1926.1209 for 

all spaces to which the attendant is 

assigned from that remote location. 

Final § 1926.1204(f)(1) and (f)(2) are 

similar to the note in the general 

industry confined-spaces standard at 

§ 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 § 1926.1204(g), 

which is identical to § 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 

§ 1910.146 and the note to proposed 

§ 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 § 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 § 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 § 1926.1204(h), 

which is identical to § 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 § 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 § 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 § 1910.146(b). OSHA 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25429 

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 § 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 § 1926.1204(i), 

which is nearly identical to 

§ 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 § 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 

§ 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 

§§ 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 § 1926.1204(j), 

which corresponds to the requirements 

in § 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 

§ 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 §§ 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 

§ 1926.1211). 

One commenter was unsure which 

employers must comply with final 

§ 1926.1204(j) (ID–120, p. 4). Final 

§ 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 § 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 

§ 1926.1204(d). In the general industry 

confined-space standard, 

§ 1910.146(d)(11) requires coordination 

procedures when multiple employers 

are working simultaneously ‘‘as 

authorized entrants.’’ This final 

provision differs from § 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 § 1926.1203(i)) and each 

entry employer are responsible for 

coordinating work activities among 

different employers to protect confined 

space entrants under final 

§ 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 § 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 § 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 

§ 1926.1203(h)(4). 

Paragraph (l). Final § 1926.1204(l), 

which is identical to § 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 

§§ 1926.1212(a) and 1926.1214(d). See 

the discussion of final § 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 

§ 1926.1212(a) in its discussion of final 

§ 1926.1204(j). 

Paragraph (m). Final § 1926.1204(m), 

which is similar to § 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 

§ 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 

§ 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 § 1926.1204(n) is 

identical to § 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 

§ 1926.1214(b). The Agency moved the 

comma that appears after ‘‘as necessary’’ 

in § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25430 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 § 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 § 1926.1203(h) and 

final § 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 

§ 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 

§ 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 

§ 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 

§ 1926.1203(e) do not have to comply 

with the requirements of final 

§ 1926.1204 (see final § 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 § 1926.1203(e) or reclassify 

the permit space under 

§ 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 § 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 

§ 1926.1205 are similar to the provisions 

in the general industry confined spaces 

rule at § 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 § 1926.1205(a), 

which is almost identical to 

§ 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 

§ 1926.1204(c) (practices and 

procedures for ensuring safe entry). This 

provision differs slightly from 

§ 1910.146(e)(1) because it refers to 

‘‘each entry employer,’’ whereas 

§ 1910.146(e)(1) refers to ‘‘the 

employer.’’ OSHA made this change to 

clarify which employer on a multiemployer worksite has duties under 

final § 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 § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25431 

employers properly coordinate the entry 

operations of the multiple employers as 

required under §§ 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 § 1926.1205(b), 

which is identical to § 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 § 1926.1205(c), 

which is identical in substance to 

§ 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 § 1926.1205(d), 

which is identical to § 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 

§ 1926.1204(e)(2) requires an employer 

to monitor the conditions inside a 

confined space to determine if they 

become unacceptable. Furthermore, 

final § 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 § 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 § 1926.1205(e), 

which corresponds to § 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 § 1926.1205(e)(1), 

which is identical to § 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 

§ 1926.1205(e)(3), which is identical to 

§ 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 

§ 1926.1205(f). 

In response to comments, OSHA also 

is adding an additional provision in 

final § 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. 

mstockstill on DSK4VPTVN1PROD with RULES2

25432 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 

§ 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 § 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 § 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 § 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 gasolinepowered 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25433 

23The 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. 

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 § 1926.1205(f), 

which is almost identical to 

§ 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, § 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 § 1926.1205(e), on the pertinent 

permit. 

This provision differs slightly from 

§ 1910.146(e)(6) because it clarifies that 

‘‘every entry employer’’ must comply 

with these duties, whereas 

§ 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 

§ 1926.1204(n). The requirements of 

§ 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 § 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 

§ 1926.1219(b)). In some cases, entry 

permits may constitute employeeexposure records. (See definition of 

‘‘employee exposure record’’ at 29 CFR 

1910.1020(c)(5).) 

One commenter suggested that OSHA 

incorporate the language in the general 

industry confined spaces directive, CPL 

02–00–100: Application of the PermitRequired 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 permitspace 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 § 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 permitspace entry operations. 

The introductory language in final 

§ 1926.1206 requires the employer to 

include, on the entry permit, all of the 

information specified in § 1926.1206(a) 

through (p). Most of the information 

required on the permit is substantively 

identical to the general industry 

confined spaces requirements at 

§ 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 § 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 § 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., § 1926.1203(e)(1), (g)(2), 

(g)(3)). Final § 1926.1206 is otherwise 

generally consistent with proposed 

§ 1926.1214(a). 

Paragraph (a). Final § 1926.1206(a), 

which is identical to § 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 § 1926.1206(b), 

which is identical to § 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 § 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. 

mstockstill on DSK4VPTVN1PROD with RULES2

25434 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 § 1926.1206(c), 

which is identical to § 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 § 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 § 1926.1206(d), 

which is identical to § 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 

§ 1926.1204(c)(5)). Final § 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 § 1926.1206(f), 

which is substantively the same as 

§ 1910.146(f)(5), requires the employer 

to record the names of each attendant. 

Final § 1926.1206(f) differs from 

§ 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 § 1926.1206(g), 

which is nearly identical to 

§ 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 § 1926.1206(h), 

which is identical to § 1910.146(f)(7) 

and corresponds to proposed 

§ 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 § 1926.1206(i), 

which is identical to § 1910.146(f)(8) 

and corresponds to proposed 

§ 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 § 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 earlywarning systems, if required by final 

§ 1926.1204(e), and how frequently each 

hazard is to be monitored). Note that 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25435 

under final § 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 § 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 § 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 (§ 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 § 1926.1206(j), 

which is identical to § 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 § 1926.1204. As explained in the 

proposed rule, and above in the 

discussion of final § 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 ventilationsystem 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 § 1926.1206(i) to identify the hazardcontrol 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 § 1926.1206(k), 

which is nearly identical to 

§ 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 § 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 

§ 1910.146: This final rule generally 

requires continuous monitoring, 

whereas § 1910.146 only requires 

periodic testing. For further explanation 

of this change, see the discussion to 

final § 1926.1204(e). 

Consistent with data collection from 

continuous monitoring under 

§ 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 § 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. 

mstockstill on DSK4VPTVN1PROD with RULES2

25436 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

See December 10, 1996, letter to 

Michael Coleman, available at 

www.osha.gov. 

Paragraph (l). Final § 1926.1206(l), 

which is identical to § 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 § 1926.1206(m), 

which is identical to § 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 § 1926.1206(n), 

which is identical to § 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 § 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 § 1926.1206(o), 

which is substantively identical to 

§ 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 § 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 § 1926.1206(p), 

which is identical to § 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 § 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 

§ 1926.1207 are substantively similar to 

the provisions in the general industry 

confined spaces rule at § 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 

§§ 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 

§ 1910.146(g), OSHA placed the training 

requirements together in one section. 

Paragraph (a). Final § 1926.1207(a) 

sets forth the requirement, also found in 

§ 1910.146(g)(1), that employers must 

train each employee who performs work 

regulated by this standard. OSHA 

modified this provision from 

§ 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 § 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), § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25437 

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 

§ 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 

§ 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 hazardprotection methods fail. 

Additionally, final § 1926.1207(a) 

includes the requirement, found in 

proposed § 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 

§ 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 § 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 § 1926.1207(b), 

which is substantively similar to 

§ 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 

§ 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 § 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 § 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 

§ 1910.146(g)(2)(i)–(g)(2)(iii). OSHA 

believes the requirements in final 

§ 1926.1207(b)(2)–(b)(3) are necessary to 

ensure that employers provide the 

training required by final § 1926.1207(a) 

at the appropriate times, that is, prior to 

exposure to confined space hazards. 

Final § 1926.1207(b)(2), which is 

identical to § 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 

§ 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 § 1926.1207(b)(3) and (b)(4) are 

substantively identical to the general 

industry standard at § 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 permitspace 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 permitspace 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 

§ 1910.146(g)(2)(iii), to ‘‘permit space 

entry operations’’ for the reasons 

explained in the introduction to the 

discussion of final § 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 § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25438 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

to the extent it requires new knowledge 

or skill by the employee. 

Final § 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 

§ 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 

§ 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 § 1926.1207(c), 

which is identical to the general 

industry standard at § 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 

§ 1926.1207(c) (ID–106, p. 2; –120, p. 3; 

–152, p. 3). Final § 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 § 1926.1207(d), 

which is substantively similar to the 

general industry standard at 

§ 1910.146(g)(4), requires an employer 

to ‘‘maintain training records,’’ as 

opposed to the requirement in 

§ 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 § 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 

§ 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 

§ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25439 

comment is not applicable to this 

rulemaking. 

As in this final rule, proposed 

§ 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 § 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 

§ 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 § 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 § 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 § 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 

§ 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 § 1926.1208 is nearly identical 

to the general industry requirements in 

§ 1910.146(h), except for minor editorial 

revisions and a revision in the 

introductory text to improve clarity. The 

introductory language in § 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 § 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 § 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 § 1926.1208(a), 

which is substantively identical to the 

general industry standard at 

§ 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 § 1926.1208(b), 

which is substantively identical to the 

general industry standard at 

§ 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 § 1926.1208(c), 

which is substantively identical to the 

general industry standard at 

§ 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 

§ 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 § 1926.1208(d), 

which is similar to the general industry 

standard at § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25440 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 § 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 § 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, § 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 § 1926.1208(e), which 

is identical to the general industry 

standard at § 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 § 1926.1208(e)(1)- 

(e)(4) arises. 

Final § 1926.1208(e)(1), which is 

similar to the general industry standard 

at § 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 § 1926.1208(e)(2), which is 

similar to the general industry standard 

at § 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 § 1910.146(h)(5)(ii) because 

final § 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 § 1926.1208(e)(3), which is 

identical to the general industry 

standard at § 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 § 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 § 1926.1208(e)(4), which is 

identical to the general industry 

standard at § 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. 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25441 

Section 1926.1209—Duties of 

Attendants 

In final § 1926.1209, OSHA sets out 

the duties of the attendant required by 

final § 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 § 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 § 1926.1209 

are substantively identical to the 

provisions in the general industry 

confined spaces rule, except as noted 

below. The introductory language to 

§ 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 

§ 1926.1209 to clarify how this rule 

applies on multi-employer worksites. 

The attendant duties are also similar 

to the duties specified in proposed 

§§ 1926.1210(f) and 1926.1211(f). The 

final rule does not include a paragraph 

found in proposed § 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 

§ 1926.1209(d) and its Note. In this way, 

the final rule provides more flexibility 

to employers than the proposal. 

Paragraph (a). Final § 1926.1209(a), 

which is almost identical to the general 

industry standard at § 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 § 1926.1208(d) in this 

preamble. 

Paragraph (b). Final § 1926.1209(b), 

which is identical to the general 

industry standard at § 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 § 1926.1209(c), 

which is identical to the general 

industry standard at § 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 

§ 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 § 1926.1209(d), 

which is identical to the general 

industry standard at § 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 

§ 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 § 1926.1209(e), 

which is nearly identical to the general 

industry standard at § 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 

§ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25442 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 

§ 1926.1209(e). See, e.g., July 30, 1993, 

letter to Julie Emmerich. 

Paragraph (f). Final § 1926.1209(f), 

which is almost identical to the general 

industry standard at § 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 § 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 § 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 

§ 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 

§ 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 

§ 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 § 1926.1209(f)(3). This 

requirement also is specified in the 

general industry standard. Under final 

§ 1926.1203(h)(4) and § 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 § 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 stormsewer 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 

§ 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 belowground 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 

§ 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 aboveground storage tank (ID–210, Tr. p. 223). 

In these situations, so long as the space 

meets the definition of a permitrequired 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25443 

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 

§ 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 

§ 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 

§ 1926.1209(f). 

Paragraph (g). Final § 1926.1209(g), 

which is identical to § 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 

§ 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 

§ 1926.1209(g). 

Paragraph (h). Final § 1926.1209(h), 

which is identical to the general 

industry standard at § 1910.146(i)(8), 

requires the attendant to take the actions 

specified in § 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 § 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, § 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 § 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 § 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 § 1926.1209(i), 

which is identical to the general 

industry standard at § 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 § 1926.1209(j), 

which is identical to the general 

industry standard at § 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 

§ 1926.1204(f), the employer must still 

mstockstill on DSK4VPTVN1PROD with RULES2

25444 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

24OSHA 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 § 1926.1205(e) (permitting process), which is 

a more appropriate location than § 1926.1210 of the 

final rule because the requirements in 

§ 1926.1205(e) address the process of terminating 

and canceling the permit. 

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 

§ 1926.1204(f)(1). In other words, the 

attendant’s duty under § 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 § 1926.1210 of the 

final rule, which is almost identical to 

§ 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 

§ 1926.1210(e)(2) and § 1926.1211(d)(1) 

and (d)(2).24

The introductory language to 

§ 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 nonsubstantive; 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 § 1926.1210(a), 

which is identical to the general 

industry standard at § 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 § 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 

§ 1926.1210(a), the entry supervisor will 

be able to effectively identify emergency 

situations by observing employees 

involved in entry operations. 

Paragraph (b). Final § 1926.1210(b), 

which is identical to the general 

industry standard at § 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 § 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 § 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 § 1926.1210(c) is 

nearly identical to the general industry 

standard at § 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 

§ 1926.1205(e). For additional 

explanation of the suspension of the 

permit, see the explanation above of 

§ 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 § 1926.1210(d), 

which is nearly identical to the general 

industry standard at § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25445 

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 § 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 § 1926.1210(e), 

which is identical to the general 

industry standard at § 1910.146(j)(5) and 

consistent with the proposed rule at 

§ 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 § 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 § 1926.1210(f) is 

identical to the general industry 

standard at § 1910.146(j)(6) and 

consistent with the proposed rule at 

§ 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 

§ 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 § 1926.1210. 

Final § 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 § 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 

§ 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 permitspace entry must include procedures for 

providing rescue and emergency service 

as part of its permit-space program (final 

§ 1926.1204(i)). Final § 1926.1211 

specifies requirements for that rescue 

and emergency service. The 

requirements in final § 1926.1211 are 

substantively similar to the 

corresponding provisions in the general 

industry confined spaces standard at 

§ 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 § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25446 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 § 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 § 1926.1211(a) will apply. The 

training and practice requirements of 

final § 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 § 1926.1211(a)(1) and 

(a)(3)(i) establish performance-oriented 

criteria that vary based on the hazards 

in the permit spaces. Final 

§ 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 § 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 §§ 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 

§ 1926.1204. 

Paragraph (a). The introductory text in 

final § 1926.1211(a), which is identical 

to the general industry standard at 

§ 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 

§ 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 § 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 

§ 1926.1211(a)(1), which is identical to 

the general industry standard at 

§ 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 

§ 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 § 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 § 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 § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25447 

plan’’ (63 FR 66023). As the note to new 

§ 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 § 1926.1211(a)(1), nor any other 

paragraph in final § 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 § 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 § 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 § 1926.1211(a)(2) 

specifies the requirement to assess 

whether a rescue service is capable of 

providing adequate and effective rescue 

service. Final § 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 

§ 1926.1211(a)(2), which is identical to 

the general industry standard at 

§ 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 

§ 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 thirdparty rescue service are to verify that 

they meet the requirements in final 

§ 1926.1211(a) (ID–099, p. 3; ID–132, p. 

3). OSHA has provided performancebased 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 

§ 1926.1211(a)(3), which is identical to 

§ 1910.146(k)(1)(iii) except for the 

addition of § 1211(a)(3)(iii), introduces 

the requirements that a designated 

rescue service must meet. Final 

§ 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 § 1926.1211(a)(3)(i), which is 

identical to the general industry 

mstockstill on DSK4VPTVN1PROD with RULES2

25448 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

25To 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. 

standard at § 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 offsite 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 § 1926.1211(a)(3)(ii), which is 

identical to the general industry 

standard at § 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 § 1926.1211(b). 

Final § 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 § 1910.146, although 

§ 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 § 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 § 1926.1210(d), and 

§ 1910.146(j)(4), both require the entry 

supervisor to verify that the rescue 

service is available. 

Final § 1926.1211(a), and 

§ 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 thirdparty 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 

§ 1926.1211(a)(4), which is identical to 

the general industry standard at 

§ 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. 

Paragraph (a)(5). Final 

§ 1926.1211(a)(5), which is identical to 

the general industry standard at 

§ 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 entryrescue operation. Note that this 

provision does not require the thirdparty 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 thirdparty service may use any representative 

permit spaces that replicate the permit 

spaces from which it may perform a 

rescue in accordance with final 

§ 1926.1211(b)(4). 

Paragraph (b). Final § 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 § 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 § 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 § 1910.146(k)(2). OSHA 

believes that it is important to protect 

employees who enter permit spaces to 

perform rescue duties regardless of the 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25449 

employer responsible for the rescue 

team. By making this final paragraph 

substantively identical to 

§ 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 thirdparty 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 § 1926.1213(c) nor 

final § 1926.1211(b) specify that entry 

employers must hire additional, rescuespecific, 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 § 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 § 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 

§ 1926.1211(b)(1), which is nearly 

identical to the general industry 

standard at § 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 § 1926.103, 

continue to apply when workers are 

working in a permit space. 

Paragraph (b)(2). Final 

§ 1926.1211(b)(2), which is nearly 

identical to the general industry 

standard at § 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 rescueservice 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 § 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 

§ 1926.1211(b)(3), which is nearly 

identical to the general industry 

standard at § 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 

§ 1926.1211(b)(4), which, apart from an 

addition discussed below, is identical to 

the general industry standard at 

§ 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 entryrescue 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 rescueservice 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25450 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 § 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 § 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 

§ 1926.1211(b). 

Another commenter asserted that 

OSHA wrote proposed § 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 § 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 

§ 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 

§ 1926.1211(b)(4). Without a specific 

reason to depart from this established 

procedure, OSHA finalized this 

provision to be similar to proposed rule 

§ 1926.1213(c)(6) and the corresponding 

provision for general industry confined 

spaces at § 1910.146(k)(2)(iv). 

Paragraph (c). Final § 1926.1211(c), 

which is substantively similar to the 

general industry standard at 

§ 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 

§ 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 

§ 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 

§ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25451 

26As with the general industry standard, the 

construction standard relies on existing fallprotection requirements to ensure the proper use of 

fall-protection equipment. Final § 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. 

an air-supplied respirator and the nonentry 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 ‘‘backup’’ to non-entry rescue, much as the 

proposed rule did, but in a manner that 

is less burdensome for employers. 

Consequently, final § 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 § 1910.146, § 1910.146(d)(9) 

requires employers to develop plans to 

summon emergency services and for 

rescuing personnel. In final 

§ 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 onsite 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 § 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

Paragraph (c)(1). Final 

§ 1926.1211(c)(1), which is similar to 

the general industry standard at 

§ 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 § 1926.1211(c)(1) differs from 

the general industry standard at 

§ 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 

§ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25452 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 

§ 1926.1211(c)(2), which is identical to 

the general industry standard at 

§ 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 § 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 

§ 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 § 1926.1211(c)(2) is performance 

oriented, and allows flexibility in the 

design specifications of the retrieval 

equipment, subject to the requirements 

of § 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 § 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 § 1926.1211(c)(2) 

should be performance based because of 

ongoing advancements in confinedspace 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 § 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 

§ 1926.1211(c)(2) should require an 

employer to have the retrieval system 

located at the confined space opening 

(ID–025, p. 4). Final § 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 

§ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25453 

27The employer must provide this information if 

other applicable Federal regulations (such as 

§ 1910.1200—Hazard communication) or state 

regulations already require the employer to keep the 

SDS or other written information at the worksite. 

retrieval immediately as soon as the 

rescuer becomes aware that rescue is 

necessary. 

Paragraph (c)(3). Final 

§ 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 § 1926.1211(c)(3) is 

similar to proposed § 1926.1213(a)(4). 

There is no corresponding provision in 

§ 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 nonentry 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 § 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 

§ 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 § 1926.1211(d), 

which is identical to § 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

Section 1926.1212—Employee 

Participation 

This section provides for employee 

participation in confined space 

programs. The provisions in final 

§ 1926.1212 are nearly identical to the 

provisions in the general industry 

confined spaces rule at § 1910.146(l). 

Final § 1926.1212 differs from 

§ 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 

§ 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 § 1926.1203(d), which was not 

required in the proposed rule, so final 

§ 1926.1212(a) would ensure that 

employees bring their experience to bear 

regarding that program. 

Paragraph (a). Final § 1926.1212(a), 

which is nearly identical to the general 

industry standard at § 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 § 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 § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25454 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

(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 § 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 labormanagement 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 employeremployee 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 § 1926.1212(b), 

which is nearly identical to 

§ 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 § 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 § 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 § 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 § 1926.1213 is 

similar to proposed rule § 1925.1219(e). 

There is no corresponding provision in 

§ 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25455 

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 informationtransmittal 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 

rate 

3% Discount 

rate 

Annualized Costs 

Evaluation, Classification, Information Exchange and Notification ......................................................................... $12.4 $12.2 

Written Program, Issue Permits, Verify Safety, Review Procedures ...................................................................... $4.2 $4.2 

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 

mstockstill on DSK4VPTVN1PROD with RULES2

25456 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

28The average Federal tax rate for 2009 for the 

middle quintile of household income was 11.1 

percent (Urban Institute/Brookings, 2012). 

TABLE IV–1—NET BENEFITS—Continued 

[Millions of 2009 dollars] 

7% Discount 

rate 

3% Discount 

rate 

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 nonregulatory 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 profitmaximizing 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 employerspecific workplace risk. Both cases 

apply here. 

In the first case, there are some nonfatal 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). 

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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25457 

29Premiums 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). 

30While 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. 

31Furthermore, 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 collectivebargaining agreement. 

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. 

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 longterm disability (Ashford, 2006). 

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. 

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 

mstockstill on DSK4VPTVN1PROD with RULES2

25458 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

32Only some construction projects involve entry 

into confined spaces. 

33OSHA converted revenue cutoffs for small 

business designation to the closest employee 

number cutoffs so that it could apply available 

business census employment numbers. 

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 

§§ 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 

§ 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 powergeneration 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 waterand 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 floodcontrol 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 specialtytrade 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

OSHA updated the PEA estimates of 

before-tax profit rates in Table IV–3 

using more recent corporate balancesheet 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. 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25459 

TABLE IV–2—SUMMARY

STATISTICS ON

MODELED

WORKER

ENTRIES INTO

CONFINED

SPACES, BY

TYPE OF

CONSTRUCTION

ACTIVITY AND

PROJECT

SIZE

Project category 

Total 

number of 

projects 

Total 

number of 

projects 

with 

confined 

spaces 

Average number of confined spaces 

per project Total 

number of 

confined 

spaces 

Average 

number of 

workers in 

an entry 

team 

Number of 

entries into 

confined 

spaces per 

project 

Total 

entries into 

confined 

spaces, all 

projects 

Number of 

worker 

entries into 

confined 

spaces per 

project 

Total 

worker 

entries into 

confined 

spaces, all 

projects 

Number of 

workerhours in 

confined 

spaces per 

project 

Total worker 

hours all 

projects a Existing New All 

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 Street ............................................... 11,893 1,784 4 5 9 16,056 2 17 30,327 29 51,735 113 202,181 Install New Storm Drain/Sewer System ............................................... 8,325 2,914 10 7 17 49,534 2 321 935,314 544 1,585,080 2,764 8,053,119 Lane Expansion on Major Interstate ..................................................... 3,568 1,784 15 13 28 49,952 2 721 1,286,264 1,463 2,609,992 6,765 12,068,165 

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 (Small Contractor) ................................. 540 216 0 6 6 1,296 1 9 1,944 9 1,944 5 1,116 Minor Installation/Renovation (Medium Contractor) ............................. 294 176 0 9 9 1,588 1 139 24,520 163 28,753 340 59,888 New Construction/Major Renovation (Large Contractor) ..................... 147 118 0 11 11 1,294 4 389 45,746 1,421 167,110 5,364 630,748 

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 

mstockstill on DSK4VPTVN1PROD with RULES2

25460 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

TABLE IV–2—SUMMARY

STATISTICS ON

MODELED

WORKER

ENTRIES INTO

CONFINED

SPACES, BY

TYPE OF

CONSTRUCTION

ACTIVITY AND

PROJECT

SIZE— 

Continued 

Project category 

Total 

number of 

projects 

Total 

number of 

projects 

with 

confined 

spaces 

Average number of confined spaces 

per project Total 

number of 

confined 

spaces 

Average 

number of 

workers in 

an entry 

team 

Number of 

entries into 

confined 

spaces per 

project 

Total 

entries into 

confined 

spaces, all 

projects 

Number of 

worker 

entries into 

confined 

spaces per 

project 

Total 

worker 

entries into 

confined 

spaces, all 

projects 

Number of 

workerhours in 

confined 

spaces per 

project 

Total worker 

hours all 

projects a Existing New All 

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. 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25461 

TABLE IV–3—PROFILE OF INDUSTRIES AFFECTED BY THE FINAL STANDARD ON CONFINED SPACES IN CONSTRUCTION

NAICS Industry 

Total number 

of firms in 

industry 

Total 

number of 

establishments 

in industry 

Total 

employment 

in industry 

Estimated 

annual 

number of 

projects with 

confined 

spaces 

Estimated 

number of 

establishments 

affected 

annually 

221310 ......... Water Supply and Irrigation Systems ........ 3,579 4,068 33,017 66 65 

236115 ......... New Single-Family Housing Construction 

(except Operative Builders).

61,262 61,613 282,851 1,340 1,321 

236116 ......... New Multifamily Housing Construction (except Operative Builders).4,319 4,373 46,634 1,482 883 

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 

Construction.

41,282 42,369 670,043 9,021 6,408 

237110 ......... Water and Sewer Line and Related Structures Construction.13,679 13,872 206,899 3,980 2,765 

237130 ......... Power and Communication Line and Related Structures Construction.5,099 5,750 196,223 341 341 

237310 ......... Highway, Street, and Bridge Construction 10,953 11,746 323,289 8,843 4,275 

237990 ......... Other Heavy and Civil Engineering Construction.5,200 5,392 91,545 1,598 965 

238190 ......... Other Foundation, Structure, and Building 

Exterior Contractors.

5,701 5,720 45,035 2,680 1,182 

238210 ......... Electrical Contractors and Other Wiring Installation Contractors.79,011 80,172 825,169 2,680 2,680 

238220 ......... Plumbing, Heating, and Air-Conditioning 

Contractors.

99,374 100,806 1,012,541 2,935 2,934 

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 

NAICS Industry Revenues 

($ thousand) 

Average 

revenues 

per firm 

($ thousand) 

Profit rate 

(percent) 

Estimated 

profits 

($ thousand) 

Average profit 

per firm 

($ thousand) 

221310 ......... Water Supply and Irrigation Systems ........ $7,999,900 $2,235 5.89 $471,431 $132 

236115 ......... New Single-Family Housing Construction 

(except Operative Builders).

103,600,723 1,691 4.53 4,692,648 77 

236116 ......... New Multifamily Housing Construction (except Operative Builders).24,939,736 5,774 4.53 1,129,658 262 

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 

Construction.

392,958,284 9,519 4.53 17,799,246 431 

237110 ......... Water and Sewer Line and Related Structures Construction.51,808,802 3,787 5.98 3,099,719 227 

237130 ......... Power and Communication Line and Related Structures Construction.35,528,777 6,968 5.98 2,125,685 417 

237310 ......... Highway, Street, and Bridge Construction 112,052,152 10,230 5.98 6,704,076 612 

237990 ......... Other Heavy and Civil Engineering Construction.24,090,901 4,633 5.98 1,441,358 277 

238190 ......... Other Foundation, Structure, and Building 

Exterior Contractors.

7,085,701 1,243 4.58 324,258 57 

238210 ......... Electrical Contractors and Other Wiring Installation Contractors.129,184,454 1,635 4.54 5,864,637 74 

238220 ......... Plumbing, Heating, and Air-Conditioning 

Contractors.

167,754,151 1,688 3.86 6,470,472 65 

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. 

mstockstill on DSK4VPTVN1PROD with RULES2

25462 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

TABLE IV–4—PROFILE OF SBA-DEFINED SMALL ENTITIES WITHIN INDUSTRIES AFFECTED BY THE FINAL STANDARD ON

CONFINED SPACES IN CONSTRUCTION

NAICS Industry 

Total number 

of firms in 

industry-size 

grouping 

Total 

number of 

establishments 

in industry-size 

grouping 

Total 

employment 

in industry-size 

grouping 

Estimated 

annual 

number of 

projects with 

confined 

spaces 

Estimated 

number of 

establishments 

affected 

annually 

221310 ......... Water Supply and Irrigation Systems ........ 3,579 4,068 33,017 66 18 

236115 ......... New Single-Family Housing Construction 

(except Operative Builders).

61,065 61,125 241,095 953 953 

236116 ......... New Multifamily Housing Construction (except Operative Builders).4,208 4,218 31,694 828 728 

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 

Construction.

40,279 40,424 415,362 4,463 4,463 

237110 ......... Water and Sewer Line and Related Structures Construction.13,348 13,379 140,854 2,272 2,272 

237130 ......... Power and Communication Line and Related Structures Construction.5,012 5,121 84,488 112 112 

237310 ......... Highway, Street, and Bridge Construction 10,205 10,255 134,875 2,784 2,784 

237990 ......... Other Heavy and Civil Engineering Construction.5,001 5,011 45,364 584 584 

238190 ......... Other Foundation, Structure, and Building 

Exterior Contractors.

5,638 5,650 35,003 1,763 1,112 

238210 ......... Electrical Contractors and Other Wiring Installation Contractors.77,933 78,115 558,977 1,446 1,446 

238220 ......... Plumbing, Heating, and Air-Conditioning 

Contractors.

98,267 98,468 727,726 1,722 1,722 

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 

NAICS Industry Revenues 

($ Thousand) 

Average 

revenues per 

firm 

($ Thousand) 

Profit rate 

(%) 

Estimated 

profits 

($ Thousand) 

Average profit 

per firm 

($ Thousand) 

221310 ......... Water Supply and Irrigation Systems ........ $2,510,882 $713 5.89 $147,965 $ 42 

236115 ......... New Single-Family Housing Construction 

(except Operative Builders).

76,651,638 1,255 4.53 3,471,975 57 

236116 ......... New Multifamily Housing Construction (except Operative Builders).15,147,671 3,600 4.53 686,122 163 

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 

Construction.

199,388,653 4,950 4.53 9,031,411 224 

237110 ......... Water and Sewer Line and Related Structures Construction.32,860,609 2,462 5.98 1,966,049 147 

237130 ......... Power and Communication Line and Related Structures Construction.15,098,169 3,012 5.98 903,323 180 

237310 ......... Highway, Street, and Bridge Construction 43,921,533 4,304 5.98 2,627,824 258 

237990 ......... Other Heavy and Civil Engineering Construction.10,427,684 2,085 5.98 623,888 125 

238190 ......... Other Foundation, Structure, and Building 

Exterior Contractors.

5,277,635 936 4.58 241,517 43 

238210 ......... Electrical Contractors and Other Wiring Installation Contractors.80,826,690 1,037 4.54 3,669,320 47 

238220 ......... Plumbing, Heating, and Air-Conditioning 

Contractors.

111,089,247 1,130 3.86 4,284,841 44 

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. 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25463 

TABLE IV–5—PROFILE OF VERY SMALL ENTITIES (FEWER THAN 20 EMPLOYEES) WITHIN INDUSTRIES AFFECTED BY THE

FINAL STANDARD ON CONFINED SPACES IN CONSTRUCTION

NAICS Industry 

Total number 

of firms in 

industry-size 

grouping 

Total number 

of establishments in 

industry-size 

grouping 

Total 

employment in 

industry-size 

grouping 

Estimated 

annual number 

of projects 

with confined 

spaces 

Estimated 

number of establishments 

affected 

annually 

221310 ......... Water Supply and Irrigation Systems ........ 3,413 3,428 12,676 11 11 

236115 ......... New Single-Family Housing Construction 

(except Operative Builders).

59,376 59,385 185,153 580 580 

236116 ......... New Multifamily Housing Construction (except Operative Builders).3,760 3,761 15,035 271 271 

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 

Construction.

33,977 33,992 174,975 1,329 1,329 

237110 ......... Water and Sewer Line and Related Structures Construction.11,242 11,242 57,685 642 642 

237130 ......... Power and Communication Line and Related Structures Construction.3,973 3,976 21,403 17 17 

237310 ......... Highway, Street, and Bridge Construction 8,011 8,014 42,634 601 601 

237990 ......... Other Heavy and Civil Engineering Construction.4,321 4,323 18,871 166 166 

238190 ......... Other Foundation, Structure, and Building 

Exterior Contractors.

5,244 5,244 19,607 706 706 

238210 ......... Electrical Contractors and Other Wiring Installation Contractors.71,144 71,156 297,375 544 544 

238220 ......... Plumbing, Heating, and Air-Conditioning 

Contractors.

89,245 89,255 388,409 655 655 

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 

NAICS Industry Revenues 

($ Thousand) 

Average revenues per firm 

($ Thousand) 

Profit rate 

(percent) 

Estimated 

profits 

($ Thousand) 

Average profit 

per firm 

($ Thousand) 

221310 ......... Water Supply and Irrigation Systems ........ $1,814,859 $532 5.89 $106,949 $31 

236115 ......... New Single-Family Housing Construction 

(except Operative Builders).

58,016,827 977 4.53 2,627,902 44 

236116 ......... New Multifamily Housing Construction (except Operative Builders).6,202,571 1,650 4.53 280,949 75 

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 

Construction.

77,231,171 2,273 4.53 3,498,225 103 

237110 ......... Water and Sewer Line and Related Structures Construction.12,423,307 1,105 5.98 743,286 66 

237130 ......... Power and Communication Line and Related Structures Construction.3,755,169 945 5.98 224,672 57 

237310 ......... Highway, Street, and Bridge Construction 14,530,558 1,814 5.98 869,363 109 

237990 ......... Other Heavy and Civil Engineering Construction.4,349,517 1,007 5.98 260,231 60 

238190 ......... Other Foundation, Structure, and Building 

Exterior Contractors.

2,892,942 552 4.58 132,388 25 

238210 ......... Electrical Contractors and Other Wiring Installation Contractors.40,914,727 575 4.54 1,857,422 26 

238220 ......... Plumbing, Heating, and Air-Conditioning 

Contractors.

55,526,805 622 3.86 2,141,733 24 

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. 

mstockstill on DSK4VPTVN1PROD with RULES2

25464 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

TABLE IV–6—ESTIMATED COMPLIANCE RATES FOR CONSTRUCTION PROJECTS AFFECTED BY OSHA’S FINAL STANDARD

FOR CONFINED SPACES IN CONSTRUCTION

[By project category] 

Project category 

Entrant 

training (a) 

(percent) 

Information 

exchange 

(percent) 

Written 

programs 

(and formal 

annual 

review) 

(percent) 

Classify 

spaces and 

issue 

permits 

(percent) 

Lockout/ 

tagout 

(percent) 

Mechanical 

ventilation 

(percent) 

Attendants 

(percent) 

Rescue 

capability 

(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 Contractor) .................................................... 60 45 40 85 64 71 67 71 

Minor Installation/Renovation (Medium 

Contractor) .............................................. 71 60 60 93 71 78 82 78 

New Construction/Major Renovation 

(Large Contractor) .................................. 85 80 80 96 82 85 89 85 

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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25465 

TABLE IV–6—ESTIMATED COMPLIANCE RATES FOR CONSTRUCTION PROJECTS AFFECTED BY OSHA’S FINAL STANDARD

FOR CONFINED SPACES IN CONSTRUCTION—Continued 

[By project category] 

Project category 

Entrant 

training (a) 

(percent) 

Information 

exchange 

(percent) 

Written 

programs 

(and formal 

annual 

review) 

(percent) 

Classify 

spaces and 

issue 

permits 

(percent) 

Lockout/ 

tagout 

(percent) 

Mechanical 

ventilation 

(percent) 

Attendants 

(percent) 

Rescue 

capability 

(percent) 

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. 

aBased on an estimated value of $8.7 million per fatality avoided. bBased 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25466 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

34While 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. 

35A 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. 

36CONSAD 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. 

37Thus, the vast majority of the accidents had a 

rating of 4 and a 95 percent probability of 

prevention. 

38Note that an accident could involve several 

workers, with some injured and some killed. 

39Table 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. 

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 confinedspace 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 workrelated 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 datacollection 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

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) confinedspaces-in-construction fatalities per 

year. 

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

Due to a confidentiality agreement 

made with the Bureau of Labor 

Statistics, OSHA did not include details 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25467 

40Hereafter, this discussion will refer to all 

incidents by their CONSAD accident numbers. 

41Seong 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. 

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. 

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 upstreamwarning 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. 

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 

mstockstill on DSK4VPTVN1PROD with RULES2

25468 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 § 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 trenchrelated 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 municipalworker 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 confinedspaces standard for construction, OSHA 

examined whether any of the fatalities 

involved citations to a state confinedspaces-in-construction standard. OSHA 

found two such cases—Accidents 67 

and 82. Accident 67 occurred in Alaska, 

which has a comprehensive confinedspace-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 confinedspace program compliant with this 

standard would prevent this accident, 

while a simple ventilation requirement 

would not. 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25469 

TABLE IV–9—CONFINED SPACES IN THE CONSTRUCTION INDUSTRY

FATAL ACCIDENTS AND INJURIES—1992–2000 

[As listed in the Consad report] 

Consad accident No. Year Industry SIC 

code Type of confined space 

Number of 

reported 

fatalities 

Inspection/ 

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 nonexplosion-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. 

mstockstill on DSK4VPTVN1PROD with RULES2

25470 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

TABLE IV–9—CONFINED SPACES IN THE CONSTRUCTION INDUSTRY—Continued 

FATAL ACCIDENTS AND INJURIES—1992–2000 

[As listed in the Consad report] 

Consad accident No. Year Industry SIC 

code Type of confined space 

Number of 

reported 

fatalities 

Inspection/ 

activity No. 

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. 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25471 

TABLE IV–9—CONFINED SPACES IN THE CONSTRUCTION INDUSTRY—Continued 

FATAL ACCIDENTS AND INJURIES—1992–2000 

[As listed in the Consad report] 

Consad accident No. Year Industry SIC 

code Type of confined space 

Number of 

reported 

fatalities 

Inspection/ 

activity No. 

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. 

mstockstill on DSK4VPTVN1PROD with RULES2

25472 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

TABLE IV–9—CONFINED SPACES IN THE CONSTRUCTION INDUSTRY—Continued 

FATAL ACCIDENTS AND INJURIES—1992–2000 

[As listed in the Consad report] 

Consad accident No. Year Industry SIC 

code Type of confined space 

Number of 

reported 

fatalities 

Inspection/ 

activity No. 

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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25473 

TABLE IV–9—CONFINED SPACES IN THE CONSTRUCTION INDUSTRY—Continued 

FATAL ACCIDENTS AND INJURIES—1992–2000 

[As listed in the Consad report] 

Consad accident No. Year Industry SIC 

code Type of confined space 

Number of 

reported 

fatalities 

Inspection/ 

activity No. 

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 

mstockstill on DSK4VPTVN1PROD with RULES2

25474 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

42The 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. 

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 confinedspace 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 

§ 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 constructionrelated 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. 

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 breakeven 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 confinedspaces 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 

§§ 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 § 1926.1203(c), or to condition 

entry in accordance with 

§ 1926.1203(d). For the purposes of this 

analysis, this group includes the 

provisions of § 1926.1203(c) that require 

employers to use barriers or other means 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25475 

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 § 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 multicontractor 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 

§§ 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 § 1926.1203(a) 

(when monitoring is necessary for 

identification), §§ 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 § 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 

§ 1926.1203(e) and portions of 

§ 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 hazardisolation 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 

§§ 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 §§ 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 (§ 1926.1203(d)(3)), 

or (2) develop appropriate lighting 

(§ 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. 

mstockstill on DSK4VPTVN1PROD with RULES2

25476 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

TABLE IV–10—CONFINED SPACES IN THE CONSTRUCTION INDUSTRY

FATAL ACCIDENTS AND INJURIES—2006–2009 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 1 

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 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 2 

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 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 3 

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. Coworkers 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25477 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 4 

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 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 5 

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 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 6 

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 

mstockstill on DSK4VPTVN1PROD with RULES2

25478 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 7 

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 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 8 

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 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 9 

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 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 10 

2008 ........................... 1711 lift station ................................................................................................. 2 312320666 

Description of Accident: 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25479 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 10 

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 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 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 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 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 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25480 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 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 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 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 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 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) 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25481 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 17 

Equipment (lighting) 

Rescue Capacity 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 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 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 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 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 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 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 21 

2008 ........................... 1742 attic .......................................................................................................... 1 312098551 

Description of Accident: 

mstockstill on DSK4VPTVN1PROD with RULES2

25482 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

43The Survey of Occupational Injuries and 

Illnesses (SOII) produces annual estimates of counts 

and rates of new workplace injuries and illnesses, 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 21 

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 

Year Industry 

SIC Type of confined space 

Number of 

reported 

fatalities 

Activity No. 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25483 

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. 

44OSHA 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. 

45Table 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. 46See, for example, Dong, X., et al. (2011). 

47See, 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. 

48See, for example, the discussion of wage 

compensation for risk for union versus nonunion 

workers in Dorman and Hagstrom (1998). 

49For 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. 

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. 

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. 

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

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 nonfatal 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 fatalityto-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 willingnessto-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

For estimates using the willingnessto-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 tradeoff 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25484 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

50The 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) metaanalysis rather than the two more recent individual 

studies. 51An 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. 

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 metaanalysis 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

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 

rate 

3% Discount 

rate 

Annualized Costs 

Evaluation, Classification, Information Exchange, and Notification ........................................................................ $12.4 $12.2 

Written Program, Issue Permits, Verify Safety, Review Procedures ...................................................................... 4.2 4.2 

Provide Ventilation and Isolate Hazards ................................................................................................................. 2.8 2.7 

Early Warning System and Atmospheric Testing or Monitoring ............................................................................. 11.4 11.3 

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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25485 

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-inconstruction 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 breakeven 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25486 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 §§ 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 ventilationrelated 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 § 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 * 

Cost provision 

Number of 

fatalities 

potentially 

affected by 

provision 

(2006– 

2009) 

Estimated 

number of 

fatalities 

per year 

potentially 

affected by 

provision 

Monetized 

value of 

annual 

fatalities a

Estimated 

number of 

injuries 

per year 

potentially 

affected by 

provision 

Monetized 

value of 

injuries b

Total monetized value of 

annual fatalities and 

injuries potentially 

affected by 

the provision 

Costs of 

provision 

Percentage 

of potential 

benefits 

needed to 

break even 

with costs 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 Testing or Monitoring ...... 18 4.5 39,150,000 675 41,850,000 81,000,000 11,300,000 14 

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. 

aBased on an estimated value of $8.7 million per fatality avoided. 

bBased 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, 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25487 

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 § 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 § 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 

§ 1926.1203(e)(2)(vi) and 

§ 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 multiemployer 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, homebuilding 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 

§ 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 § 1926.1204(e)(1) 

(see, for example, http:// 

www.memecosales.com/products/level/ 

blok-aid/ or http://www.flygt.com/enus/Pumping/Products/Monitoring-andControl-equipment/Pages/Alarmtelemetry.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 

mstockstill on DSK4VPTVN1PROD with RULES2

25488 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 Notification .............................................................................................................. $12,363,600 $12,208,018 

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 Procedures ................................................................................................... 4,196,574 4,190,373 

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: 

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 


mstockstill on DSK4VPTVN1PROD with RULES2ER04MY15.000</GPH>
Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25489 

52Source: http://www.bea.gov/iTable/iTable.cfm?

ReqID=9&step=1#reqid=9&step=3&isuri=1&903=13. 

53This estimate excludes single-family housing 

projects. OSHA added these projects to the analysis 

in this FEA. 

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. 

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 constructionsafety 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 confinedspace 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25490 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 benefits) .................................. $42.16 per hour. 

Skilled worker wage (including benefits) .................................................. $29.60 per hour. 

General construction employee wage (including benefits) ...................... $24.93 per hour. 

Clerical employee wage (including benefits) ............................................ $22.53 per hour. 

Unskilled worker wage (including benefits) .............................................. $22.67 per hour. 

Confined-space notification signs ............................................................. $18.92/5 years. 

Host employer/controlling contractor information exchange .................... 8 minutes of supervisor time. 

Controlling contractor/entry employer information exchange ................... 20 minutes of supervisor time for each entity involved. 

Controlling contractor/other worksite employer information exchange .... 5 minutes of supervisor time 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 procedures .................................. 10 minutes of supervisor time and 5 minutes of clerical time per permit 

issued. 

Implement and verify alternative entry procedures .................................. 5 minutes of supervisor time and 5 minutes of clerical time per nonpermitted space entry. 

Time to isolate a hazard (e.g., with double block and bleed method, 

lockout/tagout system, etc.).

5 minutes skilled employee time. 

Lock .......................................................................................................... $13.80/2 years. 

Tag ............................................................................................................ $1.61 each. 

Portable ventilation system ...................................................................... $1,332/5 years. 

Operation and maintenance costs for ventilation system ........................ Add 10% per year to cost of 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-gas monitor) .......................... $1,000/5 years. 

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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25491 

process’’ in § 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 noncompliance 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 noncompliance 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 informationexchange requirements, as follows. 

Under final § 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 informationexchange requirement. 

Under final § 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 § 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 § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

25492 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

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 nonentrant 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 multiemployer and communication 

requirements of the rule economically 

infeasible for that industry. 

Under final § 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 nonauthorized 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 § 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 § 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 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25493 

projects not already in compliance— 

yielding an estimated annual 

compliance cost of about $155,000. 

Final § 1926.1205 requires employers 

to issue entry permits, and final 

§ 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 nonpermit 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 confinedspace 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 §§ 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, the purchase costs, and the 

operating and maintenance costs for a 

portable ventilation system. OSHA 

included the unit costs for these items 

in Table IV–14 above. OSHA received 

no specific comments on the 

preliminary compliance costs in the 

PEA related to these provisions. While 

recognizing that isolation costs may 

vary according to the hazards isolated, 

OSHA nevertheless considers the cost 

estimates in the PEA for blanking and 

bleeding and lockout/tagout to be 

reasonable estimates of isolation costs; 

therefore, OSHA applied the same cost 

methodology to this section of the final 

standard. 

OSHA estimated isolation costs by 

multiplying the skilled worker hourly 

wage times 10 minutes (1⁄6 or an hour) 

times the number of entries per project 

requiring blanking, plus the skilled 

worker hourly wage times 5 minutes 

(1⁄12 of an hour) times the number of 

entries per project requiring double 

block and bleed, plus the skilled worker 

hourly wage times 10 minutes (1⁄6 of an 

hour) times the number of entries per 

project requiring lockout/tagout, plus 

the cost of tags and locks annualized 

over a 2-year useful life. OSHA applied 

these totals to the percentage of projects 

not already in compliance, summed 

across all projects. Similarly, OSHA 

estimated ventilation costs as the 

purchase costs and operating and 

maintenance costs for portable 

ventilation systems applied to the 

percentage of projects not already in 

compliance, summed across all projects. 

OSHA based this estimate on a unit cost 

of about $1,332 per portable ventilation 

system, annualized over a useful life of 

5 years, and 10 minutes (1⁄6 of an hour) 

of setup time multiplied by the 

unskilled worker hourly wage. The 

Agency applied these totals to the 

percentage of projects not already in 

compliance, summed across all projects. 

Based on this method, OSHA estimates 

total annualized costs related to 

isolating hazards and providing 

ventilation to be $2.5 million for this 

final rule. 

Monitoring, Early Warning Systems, and 

Attendants 

Final §§ 1926.1203(e) and 

1926.1204(e) set forth requirements for 

monitoring hazards, which generally 

include continuous monitoring, or 

periodic monitoring of sufficient 

frequency, to ensure acceptable entry 

conditions, as well as an early warning 

system for non-isolated engulfment 

hazards. The monitoring provision 

reflects the requirements in § 1910(d)(5) 

of the general industry standard, while 

the requirement for an early warning 

system is unique to the construction 

standard (that is, not included in the 

general industry standard). 

Costs related to monitoring and early 

warning consist of both equipment costs 

and labor costs associated with 

attendants and other employees who 

perform these functions. The following 

paragraphs include a discussion of the 

costs related to attendants and other 

employees who perform monitoring and 

early warning for hazards under 

specified conditions. 

One commenter stated that the early 

warning system for engulfment hazards 

will be ‘‘quite expensive for a contractor 

to purchase, install and maintain with 

calibration’’ (ID–098), while some other 

commenters suggested that the 

requirement for an early warning system 

would force employers to hire more 

employees for the purpose of 

monitoring for these hazards (ID–059 

and ID–112). OSHA provides a choice to 

employers for how they comply with 

the early warning requirement: They 

may use early-warning equipment or 

they may rely on personnel to provide 

warning. OSHA expects that employers 

will do whatever is less costly; in some 

cases this will be a worker exclusively 

assigned to monitoring duty, and in 

other cases it will be cheaper to use a 

monitoring device. OSHA calculated the 

costs based on the use of personnel to 

perform this function because it is 

simpler to calculate on a per-instance 

basis; however, OSHA does not expect 

that the cost of purchasing a device 

would be significantly higher on a perinstance basis when employer can use 

the device over a number of projects and 

over several years. In some cases the 

equipment cost will be lower than the 

labor estimates included in this 

analysis. 

OSHA expects that incumbent 

workers can discharge the early 

warning-monitoring duty, and estimates 

the total cost as the construction 

worker’s hourly wage multiplied by the 

number of entry hours per project, 

which varies by project. OSHA applied 

these totals to the percentage of projects 

mstockstill on DSK4VPTVN1PROD with RULES2

25494 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

not already in compliance, summed 

across all projects. Based on this 

method, OSHA estimates total 

annualized costs of $3.6 million to 

comply with the requirement to provide 

an early warning system. 

To assign costs to the use of 

equipment required to monitor 

atmospheres in confined spaces, OSHA 

estimated in the PEA that gas monitors 

have an average useful life of 2.5 years, 

and that their unit cost (in 2009 dollars) 

is $1,660. One commenter (ID–222, p. 

12) stated that an average monitor 

would cost ‘‘around $2,000,’’ and that 

an employer would need to have two 

units and additional sensors due to 

reliability problems with such 

equipment. The Agency notes that 

employers in general industry have 

successfully used monitoring equipment 

under the general industry standard, 

and the Agency believes that reliable 

equipment is commercially available. 

Moreover, based on OSHA research, the 

price of a gas monitor has fallen to 

around $1,000, and industry practice 

suggest that a gas monitor has a useful 

life of 5 years; these are the estimates 

used in this FEA. 

OSHA estimated 20 minutes of 

supervisor time to set up the monitoring 

equipment, taking into account the 

possibility that, in some cases (with a 

test occurring after 160 hours of use— 

a conservative estimate according to 

industry experts). OSHA calculated the 

costs related to monitoring as the 

equipment cost ($1,000) annualized 

over a useful life of 5 years, plus 

operating and maintenance costs equal 

to 5 percent of equipment costs, plus 

calibration costs based on use time, plus 

observation and testing costs based on 

the duration of entries, which varies by 

project. OSHA applied these totals to 

the percentage of projects not already in 

compliance, summed across all projects. 

Based on these calculations, OSHA 

estimates that annualized compliance 

costs for monitoring total to $11.3 

million. 

A commenter stated that employers 

had concerns about the recordkeeping 

cost of retaining monitoring data for 30 

years (ID–222). However, OSHA notes 

that although employers must make 

exposure records for employees exposed 

to hazards available for 30 years under 

pre-existing OSHA requirements (i.e., 29 

CFR 1910.1020), this final rule does not 

require that routine monitoring records 

be kept for 30 years. 

Final § 1926.1204(f) requires 

employers to post an attendant outside 

the permit space for the duration of 

authorized entry operations, and final 

§ 1926.1209 sets forth the duties of 

attendants, which include assessing the 

entrants and the conditions inside and 

outside the permit space to detect 

prohibited conditions and summoning 

rescue and other emergency services. 

The requirement for an attendant is 

similar to a requirement in the general 

industry standard. In this FEA, as in the 

PEA, OSHA estimates that the cost of 

posting an attendant is the wage rate of 

a skilled construction worker multiplied 

by the time that entrants spend in the 

confined space. 

Rescue Capability 

The proposed standard sets forth 

several requirements for non-entry and 

entry rescue, including provisions for 

preparing, protecting, and training 

entry-rescue employees. In the PEA, 

OSHA estimated that compliance with 

rescue-related provisions would have a 

total annualized cost of approximately 

$9.6 million, including costs for nonentry rescue and in-house entry rescue 

teams for many construction projects. 

One comment characterized the 

estimated costs related to rescue 

‘‘planning and compliance’’ as 

‘‘drastically low and inaccurate’’ (ID– 

124). Several commenters seized on the 

proposed requirement to summon an 

entry-rescue team whenever an 

employer initiates a non-entry rescue. 

For example, at the hearing, testimony 

from the National Utility Contractors 

Association suggested that the proposed 

rule required employers to have ‘‘a 

standby entry rescue team that can 

respond to the incident in a timely 

manner’’ (ID–210, Tr. p. 177). Another 

commenter stated that the rescue 

requirements are ‘‘unreasonable and 

burdensome’’ (ID–075). This 

commenter, representing utility 

contractors, elaborated on its concerns: 

It is not always practical or feasible to have 

a rescue team onsite and it is very expensive 

to have a team on standby unless it is the 

local fire/police rescue squad. The proposed 

rule should be revised to permit entry into 

the average PRCS without having a rescue 

team onsite or on standby. Most fire 

department rescue squads can handle the 

majority of confined space rescues, such as 

manhole, pipe, vault and underground tank 

rescues. However, due to liability, most fire 

departments will not assume the 

responsibility of being the designated rescue 

team on standby, although they will respond 

to a call and perform the rescue. In our 

opinion it is safer to have professionals 

respond than to depend on employees who 

have had some training and probably no 

experience handling an actual rescue. Id. 

(emphasis in original). 

Other commenters suggested that 

rescue equipment costs could be high. 

One commenter stated: ‘‘At the very 

least, the equipment would include a 

tri-pod, retrieval device, ventilation 

equipment, air monitors, two airsupplied respirators, air cart and air 

bottles or air compressor designed to 

provide breathing air, stokes stretcher 

and necessary equipment to package the 

victim and much more’’ (ID–075). 

Another commenter stated that the 

‘‘rescue equipment required could vary 

greatly. A Confined Space Rescue Team 

Kit, consisting of a tripod, rescue 

harnesses/helmets, blower, rope, 

hardware, software, etc., can easily cost 

upwards of $17,000 per set’’ (ID–112). 

In response to these and other 

comments, OSHA revised the 

requirements for rescue and emergency 

services for the final rule. For example, 

OSHA dropped the requirement in 

proposed § 1926.1211(h)(2) that 

required employers to summon an 

entry-rescue team every time they 

initiated non-entry rescue. OSHA also 

clarified the Agency’s preference for 

non-entry rescue, which typically 

consists of a retrieval system and is, 

therefore, less expensive than entry 

rescue. Moreover, it appears that some 

of the commenters mistakenly included 

costs for equipping contracted rescue 

services (rather than in-house services 

of employees) when asserting that 

OSHA’s estimates were too low; 

employers would not incur such costs 

as the result of this final rule, and 

OSHA, therefore, did not include these 

costs in this analysis. 

Final § 1926.1204(i) requires 

employers to develop and implement 

procedures for: Providing rescue and 

emergency services, including 

procedures for summoning emergency 

assistance in the event of a failed nonentry rescue; rescuing entrants from 

permit spaces; providing necessary 

emergency services to rescued 

employees; and preventing 

unauthorized personnel from attempting 

a rescue. Paragraph (a) of § 1926.1211 

specifies the criteria according to which 

employers can choose rescue and 

emergency services; § 1926.1211(b) 

specifies requirements for employers 

who choose to designate their own 

employees as the rescue service; and 

§ 1926.1211(c) sets forth requirements 

related to retrieval systems used to 

facilitate non-entry rescue from permit 

spaces. These provisions are similar to 

the general industry standard for 

confined spaces. For cost-estimation 

purposes in the PEA, OSHA judged that 

entry employers would designate 

employees who use self-contained 

breathing apparatuses to provide entry 

rescue services. OSHA also determined 

that the rescue-related compliance costs 

incurred by these employers include 

expenditures for training and 

equipment. The Agency used the time of 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25495 

54See http://www.majorsafety.com/index.cfm/

product/450_105/confined-space-tripod-rescuesystem-with-bw-gasalert-max-xt-and-blower.cfm; 

http://www.rocknrescue.com/acatalog/Con-SpaceRescue-Kit-3.html#aCSI_2dRES_2dKIT3; http://

www.rocknrescue.com/acatalog/Skedco-EvacConfined-Space-Rescue-Kit.html. 

a skilled construction worker to 

estimate the labor costs associated with 

training four employees in rescue 

operations, conducting practice rescue 

operations, and training one employee 

in CPR. Separately, OSHA estimated 

costs of retrieval lines for employers 

electing non-entry rescues. Thus, for the 

proposed rule, the Agency estimated 

costs for entry rescue and non-entry 

rescue separately. 

Final § 1926.1211(c) requires 

employers to use non-entry rescue, such 

as retrieval equipment, unless the 

retrieval equipment would increase the 

overall risk of entry or would not 

contribute to the rescue of the entrant. 

Therefore, for this FEA, OSHA 

estimated that employers that use nonentry rescue (retrieval lines) would not 

also designate employees for entry 

rescue for the same project, but would 

instead continue to rely solely on 

emergency services in the event of nonentry rescue failure. OSHA estimated a 

unit cost per entrant of $3,250 for 

retrieval systems. The cost of retrieval 

systems includes the cost of harnesses, 

which, according to one commenter, 

cost $100 each and have a useful life of 

5 years (ID–112). However, harnesses 

are a small part of a retrieval system’s 

total cost. In addition to the equipment 

cost of retrieval lines for each entrant, 

employers using non-entry rescue 

would incur additional costs, including 

one hour of supervisor time to establish 

rescue procedures and one hour of 

practice annually for a supervisor and 

team of 4 non-entry rescuers. 

OSHA judges that, when employers 

do not employ non-entry rescue, they 

will rely on in-house rescue teams only 

when entrants use a self-contained 

breathing apparatus, and will rely on 

outside rescue service in other 

situations. OSHA estimates one hour of 

supervisor time to establish rescue 

procedures for all employers electing 

entry-rescue procedures. Following the 

PEA, OSHA modeled additional costs 

only for employers using in-house 

rescue teams; these costs include one 

hour of practice annually for a 

supervisor and a team of four rescuers, 

as well as costs for annual training, CPR 

training, and entry-rescue equipment. 

OSHA did not receive any comments 

addressing its method of estimating 

costs for employers using in-house 

rescue services. 

In the PEA, OSHA estimated that 

confined-space entry-rescue team kits 

will cost approximately $5,330 per unit 

(in 2009 dollars). While rescue team kits 

as such are not required by the standard, 

they are a simple way for an employer 

to obtain the equipment typically 

necessary for an adequate rescue team. 

OSHA concurs with the comment that 

unit costs for these rescue kits can vary 

considerably, but a review of 

commercially available kits shows that 

the estimate developed by OSHA is 

reasonable. For example, one 

commercially available system priced at 

$2,735 includes a tripod rescue/retrieval 

system, blower, gas monitor with 

calibration capability, and a harness. 

Another system, priced at $4,450, 

includes a two-way communication 

system, talk box, cable splitter, operator 

headset, face masks, speaker harnesses, 

cables, hooks, and connectors. 

Confined-space rescue kits are available 

at a price range of $3,000–$4,500. These 

kits typically include a wide range of 

items such as a tripod with bag, spine 

splint, collar kit, 4:1 rescue kit, fullbody harnesses, tag line, belay line, 

anchor sling, continuous-loop sling, 

handled ascender, helmets, ascending 

stirrup, rope pad, rope guard, and 

carabiners.54 Based on these prices, and 

given that OSHA estimated costs for 

communication devices, ventilation 

equipment, and gas monitors elsewhere 

in this analysis, OSHA believes that its 

estimate of $5,330 for a rescue kit more 

accurately reflects the requirements of 

the standard than does the estimate of 

$17,000 suggested by the commenter. 

Indeed, OSHA’s cost estimate may be an 

overestimate of the true cost to the 

extent that a particular confined space 

covered by the final standard may not 

require some of the equipment included 

in commercially available kits. 

The final rule requires non-entry 

rescue unless the retrieval equipment 

would increase the overall risk of entry 

or would not contribute to the rescue of 

the entrant. To calculate compliance 

costs, OSHA estimated that employers 

will use non-entry rescue with retrieval 

lines for projects whenever required 

under the standard, and will select entry 

rescue for all other projects. OSHA 

estimated that, for all projects, one hour 

of supervisor time is necessary to set up 

procedures, and estimates this cost as 

the supervisor’s hourly wage, applied to 

all projects not already in compliance. 

In addition, OSHA estimated costs for 

projects that use non-entry rescue based 

on the equipment costs for retrieval 

lines ($3,250) multiplied by the number 

of entrants on a project. The Agency 

annualized this cost over a useful life of 

20 years, with the total applied to the 

percentage of projects not already in 

compliance, adjusted for the number of 

projects with retrieval lines onsite but 

not properly used. OSHA estimated four 

hours of skilled worker time per year to 

capture the cost of non-entry rescue 

practice, and applied this total to the 

percentage of projects not already in 

compliance. 

OSHA estimated costs for projects 

using entry rescue as the cost of 

providing in-house rescue for a subset of 

projects. For all other projects, OSHA 

estimated that employers will rely on 

local emergency responders to provide 

entry rescue, as most employers who 

have programs do today. For projects 

using in-house rescue, OSHA calculated 

the cost of 2 days of entry-rescue 

training for 4 skilled construction 

workers (16 hours times 4 workers times 

the skilled construction worker’s hourly 

wage), 4 hours of CPR training for one 

skilled worker, and a set of rescue 

equipment annualized over a useful life 

of 5 years. OSHA estimated 4 hours of 

skilled worker time per year to capture 

the cost of non-entry rescue practice, 

and applied this total to the percentage 

of projects not already in compliance. 

Based on this method, OSHA estimates 

that the annualized costs for the 

requirements in the final standard to 

provide rescue capability total to $8.3 

million. 

Training 

Final § 1926.1207 sets forth 

requirements for training entrants, 

attendants, and supervisors to ensure 

safe performance of the duties assigned 

under the standard. 

In the PEA, OSHA estimated that 

annualized training costs associated 

with the proposed standard would total 

to $8.1 million. As stated in the PEA, 

this total reflected an adjustment to the 

estimates in the CONSAD report based 

on comments received from potentially 

affected small businesses, and the 

findings and recommendations made by 

a panel of reviewers. Several 

commenters stated that training under 

the proposed rule would be expensive. 

However, since the final rule represents 

a significant simplification of the 

requirements in the proposed rule, 

OSHA reduced the cost estimates 

accordingly. OSHA further notes that, 

although it anticipates that most 

affected employers will train workers 

once using a procedure that covers 

many topics, and conduct refresher 

training as appropriate along with 

training newly arrived employees, the 

Agency modeled training costs on a perproject basis to be consistent with the 

rest of the CONSAD-derived analysis. 

This assumption, along with the unitmstockstill on DSK4VPTVN1PROD with RULES2

25496 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

55The following excerpt from the preamble to 

OSHA’s Cadmium standard at 57 FR 42101, 42340 

(Sept. 14, 1992) provides a typical summary of 

OSHA’s concerns about reliance on PPE and the 

importance of the hierarchy of controls: 

Engineering controls are preferred by OSHA for 

a number of reasons. Engineering controls are 

reliable, provide consistent levels of protection to 

large numbers of workers, can be monitored 

continually and inexpensively, allow for 

predictable performance levels, and can remove 

toxic substances from the workplace. Once 

removed, the toxic substances no longer pose a 

threat to the employee. Moreover, the effectiveness 

of engineering controls does not depend to any 

marked degree on human behavior, and . . . the 

operation of equipment is not as vulnerable to 

human error as is the use of personal protective 

equipment . . . 

Respirators are another, important method of 

compliance. However, to be used effectively, 

respirators must be individually selected; fitted and 

periodically refitted; conscientiously and properly 

worn; regularly maintained; and replaced as 

necessary. In many workplaces, these preconditions 

for effective respirator use are difficult to achieve 

with sufficient consistency to provide adequate 

protection. The absence of any of these 

preconditions can reduce or eliminate the 

protection the respirator provides to the employee. 

Because there are so many ways that respirators 

can be rendered ineffective and so many potential 

problems associated with their use, OSHA has 

traditionally relied less on respirators than on 

engineering and work-practice controls in the 

hierarchy of controls. For example, where work is 

strenuous, the increased breathing resistance of 

certain types of respirators may contribute to an 

employee’s health problems and may reduce the 

acceptability of wearing a respirator to employees. 

Although experience in industry shows that most 

healthy workers do not have physiological 

problems wearing properly chosen and fitted 

respirators, common health problems can cause 

difficulty in breathing while an employee is 

wearing a respirator. 

cost figures used, results in a large and 

inflated estimate of the training costs. 

OSHA notes that the duties of 

entrants and attendants as set forth in 

the final standard are now similar to the 

duties of comparable employees covered 

by the general industry standard, and 

that many commenters stated that they 

were already complying with the 

general industry standard. In addition, 

29 CFR 1926.21(b), a decades-old 

provision applicable to confined spaces 

in construction, already requires some 

training on the characteristics of 

confined spaces and associated safety 

practices. Many comments echoed the 

statement that ‘‘affected construction 

workers are already extremely familiar 

with the existing general industry 

standard’’ (ID–148). Therefore, 

consistent with the observations above, 

OSHA believes that the training 

required for employees will be less 

extensive than was suggested by the 

Agency’s preliminary training cost 

estimates. 

For this final analysis, OSHA 

estimates that the costs associated with 

training entrants and attendants would 

primarily involve supervisor and 

employee time necessary for the 

supervisor to conduct the training. For 

this FEA, OSHA estimated that 

employers will spend four hours of 

supervisor time plus an hour of clerical 

time developing or revising the training 

programs for entrants, attendants, and 

supervisors. OSHA estimates 15 

minutes of training for entrants and 

attendants (1 supervisor and 1 clerical 

worker are modeled to provide training 

to a class of 10 entrants). OSHA also 

includes 1 hour of supervisor training, 

and 6 minutes of supervisor time to 

provide the training, per project (again, 

assuming a class size of 10). As a 

reminder, most supervisors are already 

familiar with the general industry rule 

and, therefore, with many provisions of 

this final rule. Based on these 

underlying unit costs, OSHA estimates 

that the annualized training-related 

costs under the final standard will be 

$11.3 million. 

Other Compliance Costs 

Other compliance costs associated 

with the final standard include 

providing disposable coveralls when 

necessary, emergency lights, traffic 

barriers, and communication 

equipment. OSHA identified these costs 

in the PEA and received no specific 

comments on the compliance costs for 

these requirements. Therefore, the 

Agency used the same methodology in 

this FEA to estimate these costs. 

OSHA modeled the clothing costs 

based on workers wearing disposable 

coveralls. The Agency multiplied the 

number of worker entries requiring 

disposable coveralls for each project 

type (by activity and size) by the 

number of projects in that category that 

are not currently in compliance and by 

the unit-cost for disposable coveralls of 

$8.94 per set. The number of entries 

requiring this clothing is a subset of the 

entire number of entries. The estimated 

annual cost for disposable overalls 

comes to $2.7 million. 

To calculate the costs of emergency 

lights, OSHA estimated the number of 

simultaneous entries for each project 

type. OSHA then multiplied that 

number by the unit cost of a lantern, 

$19.04, and annualized it over a useful 

life of 3 years. Finally, OSHA multiplied 

the cost per project by the number of 

projects not in compliance for each 

category, and summed across categories. 

The resulting cost is about $193,000 a 

year. 

To calculate the costs of traffic 

barriers, OSHA added costs for traffic 

barricades and barricade tape. The 

Agency estimated that 50 percent of all 

projects require these controls. OSHA 

then annualized the unit cost of $165.64 

for a traffic barricade over 3 years, and 

the unit cost of barricade tape at $2.12. 

The total annualized cost of these 

barriers comes to $2.9 million. 

To calculate the costs of 

communication equipment, OSHA 

assumes that employers use two-way 

radios. OSHA estimated using this 

equipment for each simultaneous entry. 

The useful life of this equipment is 

typically three years. OSHA multiplied 

annualized costs by the number of 

simultaneous entries per project and by 

the number of projects not in 

compliance per category, and summed 

the results across categories. The total 

annual communication costs come to 

about $55,000. 

The total annualized costs for these 

other requirements come to $6.5 

million. 

Respiratory Protection 

In this FEA, OSHA did not include 

costs for respiratory protection for two 

reasons. First, OSHA designed the final 

rule to prevent an employee’s exposure 

to confined-space hazards whenever 

possible, thereby obviating the need for 

respirators and other PPE in those cases; 

the provisions of the final rules 

designed to prevent such exposure 

include training, information exchanges, 

and a program that ensures appropriate 

testing and evaluation, monitoring, 

planning, and control of the space to 

prevent unauthorized entry (including 

unauthorized rescues). This approach is 

fundamental to OSHA’s regulatory 

policy, which recognizes a hierarchy of 

controls consisting of engineering 

controls when possible, then workpractice controls when engineering 

controls are not possible, and finally 

personal protective equipment only 

when the other controls are not 

feasible.55 Second, consistent with the 

design of the final rule, none of the 

safety benefits estimated in this FEA 

were attributable to respiratory 

protection. The Agency believes that it 

would be inconsistent to attribute costs, 

but not benefits, to respiratory 

protection (unless, of course, the 

respiratory protection requirement 

generates costs but not benefits). 

This treatment of respiratory 

protection in the FEA is fundamentally 

different from OSHA’s earlier treatment 

of respiratory protection in the PEA. In 

the PEA, OSHA included costs for 

employers to provide respiratory 

protection. These costs included the 

purchase of the appropriate type of 

respirator (e.g., self-contained breathing 

apparatus, powered air purifying 

respirators, dust masks), time and 

materials for cleaning respirators, and 

other necessary equipment such as a 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25497 

compressor or air supply, depending on 

the type of confined space and the type 

of work performed in the space. 

Furthermore, the Agency used a 

relatively low rate of current respirator 

compliance in the PEA, resulting in 

significant estimated costs 

(approximately $11.6 million in 2009 

dollars) for respirator protection. 

The revised treatment of respiratorprotection costs in this FEA remedies 

several issues retrospectively identified 

in the PEA. First, OSHA designed the 

final rule to avoid respirator use by 

relying instead on training, information 

exchanges, and a program that ensures 

appropriate testing and evaluation, 

monitoring, planning, and control of the 

space to prevent unauthorized entry 

(including unauthorized rescues). The 

costs estimated for respirator protection 

in the PEA failed to fully appreciate the 

underlying logic of the proposed rule to 

avoid respirator use whenever possible. 

Second, OSHA did not attribute any 

benefits to respirator protection in the 

PEA. Removing the respirator-protection 

costs in the FEA resolves the 

inconsistent treatment of respirator 

costs and respirator benefits in the PEA. 

The third issue concerns the relatively 

low rate of respirator compliance used 

to estimate the costs of respirator 

protection in the PEA. These rates 

reflected the findings of the 1994 

CONSAD report. As noted earlier in this 

FEA, some commenters questioned the 

continued relevance of the CONSAD 

report produced in 1994 (ID–222, p. 20). 

In light of these comments, OSHA 

reexamined the CONSAD report and 

concluded that, generally, while it is the 

best available data source for this 

rulemaking, the Agency had to make 

adjustments in particular areas to reflect 

updated information. One of these areas 

involves CONSAD’s outdated 

assumptions and data regarding 

respirator use. Based on surveys 

conducted in 1993, the CONSAD report 

assumed a high rate of non-compliance 

with the Respiratory Protection standard 

that existed at the time, and the PEA 

included significant respirator costs 

under the assumption that the new 

confined-spaces standard for 

construction would have a significant 

impact on respirator use. However, the 

CONSAD assumption did not account 

for the publication of OSHA’s 

significantly revised Respiratory 

Protection standard in 1998 (63 FR 1152 

(Jan. 8, 1998)). In that 1998 rulemaking, 

OSHA reviewed its enforcement data for 

the years 1990–1996, acknowledged that 

many of the respiratory-protection 

programs were deficient, and designed 

the new standard to improve employer’s 

selection, maintenance, fit testing, and 

training for proper respirator use, and 

‘‘to provide employers with the tools 

needed to implement an effective 

respiratory protection program’’ (63 FR 

1160). The rulemaking increased 

monitoring requirements and awareness 

and understanding of the respirator 

requirements. In light of these revisions 

to the Respirator Protection standard 

subsequent to the CONSAD report, 

OSHA concluded that the new standard 

would significantly enhanced employer 

compliance with the respiratoryprotection requirements by reducing 

misinterpretations and inconsistencies 

(63 FR 1158). Enhanced compliance 

increased the respiratory protection 

provided to workers, making it 

unnecessary to rely on the provisions of 

this final confined-space rulemaking to 

protect workers from respiratory 

hazards. 

The new confined-spaces standard 

does not require any additional 

respirator use beyond that already 

required by the existing Respiratory 

Protection standard. OSHA believes that 

the much-reduced need for respirator 

protection in confined spaces in the 

future (as a result of this final rule) will 

not increase, and could arguably 

decrease, future respirator use in 

confined spaces in construction relative 

to current respirator use. 

Annualized Costs by NAICS Industry 

Based on the cost estimates for the 

individual provisions contained in this 

final standard, Table IV–15 shows, by 

affected industry engaged in 

construction activity, annualized 

compliance costs for all establishments, 

annualized compliance costs for all 

small entities (as defined by the Small 

Business Act and the Small Business 

Administration’s (SBA’s) implementing 

regulations; see 15 U.S.C. 632 and 13 

CFR 121.201), and annualized 

compliance costs for all very small 

entities (those with fewer than 20 

employees). OSHA annualized the costs 

presented in Table IV–15 using the 

discount rate of 7 percent, which is, 

along with a discount rate of 3 percent, 

recommended by OMB in Circular A–4. 

TABLE IV–15—ANNUALIZED COSTS, BY INDUSTRY, FOR ALL CONSTRUCTION ENTITIES AFFECTED BY THE FINAL CONFINEDSPACE STANDARD FOR ALL ESTABLISHMENTS, SMALL ENTITIES, AND VERY SMALL ENTITIES

NAICS Industry All 

establishments 

Small entities 

(SBA-defined) 

Very small entities 

<20 employees) 

221310 .......... Water Supply and Irrigation Systems ............................................. $51,635 $14,299 $8,738 

236115 .......... New Single-Family Housing Construction (except Operative 

Builders).

813,505 578,128 351,852 

236116 .......... New Multifamily Housing Construction (except Operative Builders).955,662 533,573 174,635 

236118 .......... Residential Remodelers ................................................................. 8,277,207 7,853,017 4,342,753 

236210 .......... Industrial Building Construction ...................................................... 2,331,853 527,967 175,989

236220 .......... Commercial and Institutional Building Construction ....................... 11,862,610 5,868,843 1,747,634 

237110 .......... Water and Sewer Line and Related Structures Construction ........ 8,687,099 4,956,577 1,400,582 

237130 .......... Power and Communication Line and Related Structures Construction.2,125,111 697,984 105,944 

237310 .......... Highway, Street, and Bridge Construction ..................................... 15,614,845 4,915,948 1,061,237 

237990 .......... Other Heavy and Civil Engineering Construction .......................... 1,405,363 513,278 145,898 

238190 .......... Other Foundation, Structure, and Building Exterior Contractors ... 1,627,010 1,069,906 428,448 

238210 .......... Electrical Contractors and Other Wiring Installation Contractors .. 1,627,010 877,857 330,259 

238220 .......... Plumbing, Heating, and Air-Conditioning Contractors ................... 2,471,532 1,450,572 551,757 

238310 .......... Drywall and Insulation Projects ...................................................... 1,627,010 686,015 203,983 

238910 .......... Site Preparation Contractors .......................................................... 844,522 559,703 211,959 

Total ......................................................................................... 60,321,976 31,103,667 11,241,667 

Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety. 

mstockstill on DSK4VPTVN1PROD with RULES2

25498 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

56 29 U.S.C. 655(b)(5). 

57 Indus Union Dep’t v. Hodgson, 499 F.2d 467 

(D.C. Cir. 1974). 

58 Id. at 478. 

59 Id. 

60 Id.; see also Am. Iron and Steel Inst. v. OSHA, 

939 F.2d 975, 980 (D.C. Cir. 1991); United 

Steelworkers of Am., AFL–CIO–CLC v. Marshall, 

647 F.2d 1189, 1265 (D.C. Cir. 1980). 

61See OSHA’s Web page, http://www.osha.gov/

dea/lookback.html#Completed, for a link to all 

completed OSHA lookback reviews. 

Time Distribution of Compliance Costs 

Table VI–4 provides the estimated 

stream of unannualized compliance 

costs for 10 years following the effective 

date of the final standard. 

TABLE VI–4—DISTRIBUTION OF

COMPLIANCE COSTS BY YEARS

Year 1 ................................... $ 93,068,644 

Year 2 ................................... 50,514,323 

Year 3 ................................... 50,950,150 

Year 4 ................................... 55,365,256 

Year 5 ................................... 50,950,150 

Year 6 ................................... 76,163,971 

Year 7 ................................... 55,801,082 

Year 8 ................................... 50,514,323 

Year 9 ................................... 50,950,150 

Year 10 ................................. 55,365,256 

Source: Department of Labor, OSHA, Directorate of Standards and Guidance, 

Office of Regulatory Analysis-Safety. 

7. Economic Feasibility Analysis and 

Regulatory Flexibility Determination 

Introduction 

In this chapter, OSHA investigates the 

economic impacts of its final standard 

on confined spaces in construction. This 

impact investigation has two overriding 

objectives: (1) To determine whether the 

final rule is economically feasible for all 

affected industries, and (2) to establish 

if the Agency can certify that the final 

standard will not have a significant 

economic impact on a substantial 

number of small entities. 

Economic Feasibility 

Section 6(b)(5) of the OSH Act states: 

‘‘The Secretary . . . shall set the 

standard which most adequately 

assures, to the extent feasible, on the 

basis of the best available evidence, that 

no employee will suffer material 

impairment of health or functional 

capacity....56 [Emphasis added.] 

OSHA interpreted the phrase ‘‘to the 

extent feasible’’ to encompass economic 

feasibility. The U.S. Court of Appeals 

for the D.C. Circuit supported this 

interpretation in a 1974 decision.57 The 

court noted that ‘‘Congress does not 

appear to have intended to protect 

employees by putting their employers 

out of business . . ., ’’ 58 and then 

proceeded to define the concept of 

‘‘economic feasibility’’ and to indicate 

its boundaries: 

Standards may be economically feasible 

even though, from the standpoint of 

employers, they are financially burdensome 

and affect profit margins adversely. Nor does 

the concept of economic feasibility 

necessarily guarantee the continued 

existence of individual employers. It would 

appear to be consistent with the purposes of 

the Act to envisage the economic demise of 

an employer who has lagged behind the rest 

of the industry in protecting the health and 

safety of employees and is consequently 

financially unable to comply with new 

standards as quickly as other employers. As 

the effect becomes more widespread within 

an industry, the problem of economic 

feasibility becomes more pressing.59

Thus, according to the court, OSHA 

standards would satisfy the economicfeasibility criterion even if they impose 

significant costs on regulated industries 

and force some marginal firms out of 

business, so long as they did not cause 

massive economic dislocations within a 

particular industry or imperil the 

existence of the industry.60 The 

implication for analysis of economic 

impacts is that OSHA must determine 

whether its standards will eliminate or 

alter the competitive structure of an 

industry, not to determine whether any 

individual plants may close. 

In practice, the economic burden of 

an OSHA standard on an industry—and 

whether the standard is economically 

feasible for that industry—depends on 

the magnitude of compliance costs 

incurred by establishments in that 

industry and the extent to which they 

are able to pass those costs on to their 

customers. To determine whether a rule 

is economically feasible for an industry, 

OSHA begins with two screening tests 

to consider minimum threshold effects 

of the rule under two extreme cases: (1) 

All costs are passed through to 

customers in the form of higher prices, 

and (2) firms absorb all costs in the form 

of reduced profits. In the former case, 

the immediate impact of the rule would 

appear as increased industry revenues. 

In the absence of evidence to the 

contrary, OSHA generally considers a 

standard to be economically feasible for 

an industry when the annualized costs 

of compliance are less than a threshold 

level of one percent of annual revenues. 

Retrospective studies of previous OSHA 

regulations show that potential impacts 

of such a small magnitude are unlikely 

to eliminate an industry or significantly 

alter its competitive structure.61

In the second case, the immediate 

impact of the rule would appear as 

reduced industry profits. Again, in the 

absence of evidence to the contrary, 

OSHA generally considers a standard to 

be economically feasible for an industry 

when the annualized costs of 

compliance are less than a threshold 

level of 10 percent of annual profits. 

OSHA’s choice of a threshold level of 10 

percent of annual profits is low enough 

that even if the industry incurred all 

compliance costs upfront, the costs 

could still be met from profits without 

needing to resort to the credit market. 

Assuming a 7 percent discount rate and 

a 10-year annualization period, the 

compliance costs would equal about 70 

percent of first-year profits; the industry 

could absorb these costs from profits 

without resorting to credit markets. The 

industry analysis refers to an average 

firm and its threshold level of profits. 

Some firms in any industry are belowaverage, and under-capitalized, poorly 

run, saddled with lawsuits, or operating 

in a shrinking market. OSHA cannot 

guarantee that not a single firm in any 

industry will become unprofitable in the 

first year because of this rule, but rather 

that the vast majority of firms will have 

their profits impacted by 10 percent or 

less. 

To implement the economic 

feasibility screening tests described 

above, OSHA first compared, for each 

affected industry, annualized 

compliance costs to annual revenues 

and profits per (average) affected 

establishment. The results for all 

affected establishments in affected 

industries are in Table IV–14. Shown in 

the table for each affected industry are 

the total number of affected firms 

(entities) and establishments, the 

percentage of firms affected, annualized 

costs per affected establishment, annual 

revenues per establishment, annual 

profits per establishment, annualized 

compliance costs as a percentage of 

annual revenues, and annualized 

compliance costs as a percentage of 

annual profits. 

To estimate costs for different NAICS 

construction industries, OSHA 

developed ‘‘crosswalks’’ from project 

types used in the CONSAD report to the 

appropriate NAICS. The Agency then 

used data from the 2007 Statistics of 

U.S. Businesses to obtain information on 

the number of establishments and 

receipts (revenues), and data from the 

Internal Revenue Service Corporation 

Source Book to obtain the average of 

2003–2007 profit rates for these sectors. 

Subsequently, OSHA allocated 

confined-space projects to sectors and 

size classes on the assumption that 

smaller establishments are less likely to 

work in such spaces than larger ones, 

and on an allocation rule whereby the 

Agency assigned each establishment a 

project before assigning any 

establishment a second project (for 

analytical tractability). Finally, OSHA 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25499 

62 In Chapter 6 of this FEA, OSHA explained why 

it was not including costs for respiratory protection 

as part of the estimated costs of the final standard. 

The Agency notes that this feasibility determination 

would not change with respect to any affected 

industry even if OSHA attributed to the final 

standard the respiratory-protection costs included 

in the PEA. Using the PEA assumptions, and 

updating unit-cost information for half masks and 

HEPA filters (based on currently available online 

price quotes), OSHA finds that none of the 

annualized costs for any NAICS code exceed the 

Agency’s threshold of presumptive feasibility of one 

percent of revenues. The annualized costs for only 

one NAICS code, 236210 (Industrial Building 

Construction), exceed the threshold of presumptive 

feasibility of 10 percent of annual profits. The 

overall annualized costs for this NAICS code would 

total roughly $2.8 million after including the costs 

for respiratory protection; this figure represents 0.57 

percent of annual revenue and 12.6 percent of 

annual profit for this industry. However, for the 

reasons stated above, the Agency believes that the 

final standard would be feasible for this industry 

even after including the respiratory-protection 

costs. 

aggregated compliance costs by 

industry, divided by the number of 

affected establishments in the industry 

to derive average compliance costs per 

affected establishment by industry, and 

compared the quotient to average 

annual establishment revenues and 

profits by industry. 

Note that, in any industry sector in 

construction, the final standard will 

affect directly only a small percentage of 

firms and establishments in any given 

year. Many business entities in affected 

industries do not regularly work with 

confined spaces. As demonstrated in 

Tables IV–16 and IV–3, respectively, the 

final standard will affect only about 6.3 

percent of firms and 7.2 percent of 

establishments in the affected 

industries. OSHA estimates that the 

average cost of complying with the final 

standard, per affected establishment, 

will be less than $2,000 annually 

(compared with average revenues of 

about $2.6 million). The estimated costs 

of compliance represent about 0.08 

percent of revenues and 1.6 percent of 

profits, on average, across all affected 

entities. 

As previously noted, OSHA 

established a minimum threshold level 

of annualized costs, equal to 1 percent 

of annual revenues or 10 percent of 

annual profits, below which the Agency 

concluded that costs are unlikely to 

threaten the economic viability of an 

affected industry. The key result from 

Table IV–16, for purposes of 

determining economic feasibility, is that 

annualized compliance costs do not 

represent more than 0.48 percent of 

revenues for affected firms in any 

industry. Furthermore, there is only one 

industry, NAICS 236210 (Industrial 

Building Construction), in which 

annualized compliance costs for 

affected firms exceed 10 percent of 

annual profits. For that industry, 

annualized compliance costs are equal 

to 10.56 of annual profits. However, the 

Agency believes that the final standard 

would still be clearly feasible for this 

industry because, first, the final 

standard affects only 1.84 percent of all 

firms in that industry each year (see 

Table IV–4). Second, OSHA believes 

that firms engaged in confined-spaces 

work are larger and more profitable than 

average, so profit losses to them are 

likely to be less than modeled. Third, 

OSHA does not believe that industries 

will absorb all or most of the costs of the 

final standard in lost profits. The price 

elasticity of demand in construction is 

sufficiently inelastic to enable affected 

firms to substantially offset variable 

compliance costs through minor price 

increases—here, less than 0.5 percent— 

without experiencing any significant 

reduction in total revenues or in net 

profits. Consequently, the Agency 

concludes that the final standard for 

confined spaces in construction is 

economically feasible for all affected 

industries.62

TABLE IV–16—POTENTIAL ECONOMIC IMPACTS FOR ENTITIES AFFECTED BY THE FINAL STANDARD FOR CONFINED SPACES

IN CONSTRUCTION

[2009 dollars] 

NAICS 

industry 

code 

Industry name 

Affected 

Affected 

firms as a 

percentage 

of total 

(percent) 

Annualized 

compliance 

costs per 

affected firm 

Average 

revenues 

per firm 

($ thousands) 

Average profits per firm 

($ thousands) 

Annualized 

costs as a 

percentage 

of affected 

firm 

revenues 

(percent) 

Annualized 

costs as a 

percentage 

of affected 

firm profits 

(percent) 

Firms Establishments 

221310 ... Water Supply and Irrigation Systems.22 65 0.61 $2,347 $2,235 $132 0.11 1.78 

236115 ... New Single-Family Housing 

Construction (except Operative Builders).

1,075 1,321 1.75 757 1,691 77 0.04 0.99 

236116 ... New Multifamily Housing Construction (except Operative 

Builders).

830 883 19.22 1,151 5,774 262 0.02 0.44 

236118 ... Residential Remodelers ............. 9,405 9,602 9.44 880 757 34 0.12 2.57 

236210 ... Industrial Building Construction .. 71 106 1.84 32,843 6,865 311 0.48 10.56 

236220 ... Commercial and Institutional 

Building.

5,401 6,408 13.08 2,196 9,519 431 0.02 0.51 

237110 ... Water and Sewer Line and Related Structures Construction.2,579 2,765 18.85 3,368 3,787 227 0.09 1.49 

237130 ... Power and Communication Line 

and Related Structures Construction.

127 341 2.49 16,733 6,968 417 0.24 4.01 

237310 ... Highway, Street, and Bridge 

Construction.

3,486 4,275 31.83 4,479 10,230 612 0.04 0.73 

237990 ... Other Heavy and Civil Engineering Construction.778 965 14.96 1,806 4,633 277 0.04 0.65 

238190 ... Other Foundation, Structure, and 

Building Exterior Contractors.

1,163 1,182 20.40 1,399 1,243 57 0.11 2.46 

238210 ... Electrical Contractors ................. 2,046 2,680 2.59 795 1,635 74 0.05 1.07 

238220 ... Plumbing, Heating, and Air-Conditioning Contractors.2,264 2,934 2.28 1,092 1,688 65 0.06 1.68 

238310 ... Drywall and Insulation Projects .. 1,640 2,284 7.53 992 1,941 89 0.05 1.12 

238910 ... Site Preparation Contractors ...... 225 255 0.55 3,753 1,647 79 0.23 4.77 

mstockstill on DSK4VPTVN1PROD with RULES2

25500 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

TABLE IV–16—POTENTIAL ECONOMIC IMPACTS FOR ENTITIES AFFECTED BY THE FINAL STANDARD FOR CONFINED SPACES

IN CONSTRUCTION—Continued 

[2009 dollars] 

NAICS 

industry 

code 

Industry name 

Affected 

Affected 

firms as a 

percentage 

of total 

(percent) 

Annualized 

compliance 

costs per 

affected firm 

Average 

revenues 

per firm 

($ thousands) 

Average profits per firm 

($ thousands) 

Annualized 

costs as a 

percentage 

of affected 

firm revenues 

(percent) 

Annualized 

costs as a 

percentage 

of affected 

firm profits 

(percent) 

Firms Establishments 

Total ........................................ 31,112 36,066 6.27 1,939 2,559 121 0.08 1.60 

Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety. 

Regulatory Flexibility Screening 

Analysis 

To determine if the Assistant 

Secretary of Labor for Occupational 

Safety and Health can certify that the 

final standard for confined spaces in 

construction will not have a significant 

economic impact on a substantial 

number of small entities, the Agency 

applied long-standing screening tests to 

consider minimum threshold effects of 

the final standard on small entities. The 

minimum threshold effects for this 

purpose are annualized costs equal to 

one percent of annual revenues, or 

annualized costs equal to five percent of 

annual profits, applied to each affected 

industry. OSHA applied these screening 

tests both to small entities and to very 

small entities. For purposes of 

certification, affected small entities or 

very small entities in any affected 

industry cannot exceed the minimum 

threshold effects. 

Table IV–17 shows that the 

annualized costs of the standard do not 

exceed one percent of annual revenues 

for small entities in any affected 

construction industry, but they do 

exceed five percent of annual profits for 

small entities in two construction 

industries—NAICS 236210 (Industrial 

Building Construction) and NAICS 

238910 (Site Preparation Contractors). 

Table IV–18 shows that the annualized 

costs of the standard exceed one percent 

of revenues and five percent of annual 

profits for very small entities in NAICS 

236210 (Industrial Building 

Construction), and exceed five percent 

of annual profits for very small entities 

in two other construction industries— 

NAICS 237130 (Power and 

Communication Line and Related 

Structures) and NAICS 238910 (Site 

Preparation Contractors). OSHA is, 

therefore, unable to certify that the final 

standard will not have a significant 

economic impact on a substantial 

number of small entities in 

construction, and must prepare a Final 

Regulatory Flexibility Analysis (FRFA) 

(see Chapter 8 below). 

TABLE IV–17—POTENTIAL ECONOMIC IMPACTS FOR SMALL ENTITIES AFFECTED BY THE FINAL STANDARD FOR CONFINED

SPACES

[2009 dollars] 

NAICS 

industry 

code 

Industry name Affected 

firms 

Average compliance costs 

per affected 

firm 

($) 

Average revenues per firm 

($ thousand) 

Average profits per firm 

($ thousand) 

Costs as a 

percentage 

of affected 

firm 

revenues 

Costs as a 

percentage 

of affected 

firm profits 

Cost as a 

percentage 

of overall 

category 

firm 

revenues 

Costs as a 

percentage 

of overall 

category 

firm profits 

221310 ... Water Supply and Irrigation Systems.16 894 713 42 0.13 2.13 0.00 0.01 

236115 ... New Single-Family Housing Construction (except 

Operative Builders).

942 614 1,255 57 0.05 1.08 0.00 0.02 

236116 ... New Multifamily Housing 

Construction (except 

Operative Builders).

719 742 3,600 163 0.02 0.46 0.00 0.08 

236118 ... Residential Remodelers ... 9,384 837 736 33 0.11 2.51 0.01 0.24 

236210 ... Industrial Building Construction.24 21,999 2,827 128 0.78 17.18 0.01 0.11 

236220 ... Commercial and Institutional Building.4,398 1,334 4,950 224 0.03 0.60 0.00 0.06 

237110 ... Water and Sewer Line and 

Related Structures Construction.

2,248 2,203 2,462 147 0.09 1.50 0.02 0.25 

237130 ... Power and Communication Line and Related 

Structures Construction.

95 7,347 3,012 180 0.24 4.08 0.00 0.08 

237310 ... Highway, Street, and 

Bridge Construction.

2,738 1,795 4,304 258 0.04 0.70 0.01 0.19 

237990 ... Other Heavy and Civil Engineering Construction.579 884 2,085 125 0.04 0.71 0.00 0.08 

238190 ... Other Foundation, Structure, and Building Exterior Contractors.1,100 973 936 43 0.10 2.27 0.02 0.44 

238210 ... Electrical Contractors ....... 1,424 616 1,037 47 0.06 1.31 0.00 0.02 

238220 ... Plumbing, Heating, and 

Air-Conditioning Contractors.

1,700 853 1,130 44 0.08 1.96 0.00 0.03 

238310 ... Drywall and Insulation 

Projects.

1,119 613 1,127 52 0.05 1.19 0.00 0.06 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25501 

TABLE IV–17—POTENTIAL ECONOMIC IMPACTS FOR SMALL ENTITIES AFFECTED BY THE FINAL STANDARD FOR CONFINED

SPACES—Continued 

[2009 dollars] 

NAICS 

industry 

code 

Industry name Affected 

firms 

Average compliance costs 

per affected 

firm 

($) 

Average revenues per firm 

($ thousand) 

Average profits per firm 

($ thousand) 

Costs as a 

percentage 

of affected 

firm revenues 

Costs as a 

percentage 

of affected 

firm profits 

Cost as a 

percentage 

of overall 

category 

firm revenues 

Costs as a 

percentage 

of overall 

category 

firm profits 

238910 ... Site Preparation Contractors.167 3,352 1,223 58 0.27 5.74 0.00 0.02 

Total ........................... 26,653 1,167 1,533 71 0.08 1.64 0.00 0.09 

* Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis—Safety. 

TABLE IV–18—POTENTIAL ECONOMIC IMPACTS FOR VERY SMALL ENTITIES (FEWER THAN 20 EMPLOYEES) AFFECTED BY

THE FINAL STANDARD FOR CONFINED SPACES

[2009 dollars] 

NAICS 

industry code Industry name 

Annual 

number of 

affected 

firms 

Average compliance costs 

per affected 

firm 

($) 

Average revenues per affected firm 

($ thousand) 

Average profits per affected 

firm 

($ thousand) 

Costs as a 

percentage 

of affected 

firm revenues 

Costs as a 

percentage 

of affected 

firm profits 

Cost as a 

percentage 

of overall 

category 

firm revenues 

Costs as a 

percentage 

of overall 

category 

firm profits 

221310 ........... Water Supply and Irrigation Systems.11 794 532 31 0.15 2.54 0.00 0.01 

236115 ........... New Single-Family 

Housing Construction (except Operative Builders).

580 607 977 44 0.06 1.37 0.00 0.01 

236116 ........... New Multifamily 

Housing Construction (except Operative Builders).

271 644 1,650 75 0.04 0.86 0.00 0.06 

236118 ........... Residential Remodelers.7,104 611 545 25 0.11 2.47 0.01 0.18 

236210 ........... Industrial Building 

Construction.

8 21,999 1,471 67 1.45 31.92 0.00 0.08 

236220 ........... Commercial and Institutional Building.1,327 1,317 2,273 103 0.06 1.28 0.00 0.05 

237110 ........... Water and Sewer 

Line and Related 

Structures Construction.

642 2,182 1,105 66 0.20 3.30 0.01 0.19 

237130 ........... Power and Communication Line and 

Related Structures 

Construction.

17 6,232 945 57 0.66 11.02 0.00 0.05 

237310 ........... Highway, Street, and 

Bridge Construction.

601 1,766 1,814 109 0.10 1.63 0.01 0.12 

237990 ........... Other Heavy and 

Civil Engineering 

Construction.

166 879 1,007 60 0.09 1.46 0.00 0.06 

238190 ........... Other Foundation, 

Structure, and 

Building Exterior 

Contractors.

706 607 552 25 0.11 2.40 0.01 0.32 

238210 ........... Electrical Contractors 544 607 575 26 0.11 2.33 0.00 0.02 

238220 ........... Plumbing, Heating, 

and Air-Conditioning Contractors.

655 842 622 24 0.14 3.51 0.00 0.03 

238310 ........... Drywall and Installation Projects.336 607 599 27 0.10 2.21 0.00 0.04 

238910 ........... Site Preparation Contractors.64 3,312 681 33 0.49 10.18 0.00 0.02 

Total ...................... 13,032 863 827 38 0.10 2.27 0.00 0.07 

Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis—Safety. 

8. Final Regulatory Flexibility Analysis 

The Regulatory Flexibility Act, as 

amended in 1996 and 2010, requires 

that an agency prepare a final regulatory 

flexibility analysis for any rule expected 

to have a significant economic impact 

on a substantial number of small entities 

(5 U.S.C. 601–612). Under the 

provisions of the law, such an analysis 

must contain: 

1. A description of the impact of the 

rule on small entities; 

2. A statement of the need for, and 

objectives of, the rule; 

3. The response of the agency to any 

comments filed by the Chief Counsel for 

Advocacy of the Small Business 

Administration in response to the 

mstockstill on DSK4VPTVN1PROD with RULES2

25502 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

proposed rule, and a detailed statement 

of any change made to the proposed rule 

in the final rule as a result of the 

comments; 

4. A statement of the significant issues 

raised by 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 

proposed rule as a result of such 

comments; 

5. A description, and estimate, of the 

number of small entities to which the 

rule will apply, or an explanation of 

why no such estimate is available; 

6. 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 

requirements, and the type of 

professional skills necessary for 

preparation of the report or record; and 

7. A description of the steps the 

agency took to minimize the significant 

economic impact on small entities 

consistent with the stated objectives of 

the 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 of the other 

significant alternatives to the rule 

considered by the agency which affect 

the impact on small entities. 

1. A Description of the Impact of the 

Final Rule on Small Entities 

As shown in Table IV–19, the 

estimated total annualized cost of the 

final standard for all affected small 

entities in construction (as defined by 

SBA) is $31.1 million. Also shown in 

that table are annualized costs per 

affected small entity by industry. These 

costs per affected small entity range 

from $613 for NAICS 238310 (Drywall 

and Insulation Projects) to $21,999 for 

NAICS 236210 (Industrial Building 

Construction). The average yearly cost 

per affected small entity is $1,167. 

To assess the potential economic 

impact of the final rule on affected small 

entities, OSHA calculated the ratios of 

these annualized compliance costs to 

yearly profits and to yearly revenues. 

These percentages for each construction 

industry are in Table IV–17 (see Chapter 

7 of this FEA). As shown, among small 

entities potentially affected by the final 

rule, the annualized cost of the rule is 

equal to approximately 0.07 percent of 

annual revenues. In no construction 

industry does the annualized cost of the 

rule for affected small entities exceed 

0.7 percent of annual revenues. 

Accordingly, on average, prices for 

affected small entities in construction 

would have to increase by about 0.08 

percent to completely offset the cost of 

the final rule. For affected small entities 

in the most impacted industry, NAICS 

236210 (Industrial Building 

Construction), prices would have to 

increase by about 0.8 percent to 

completely offset the cost of the final 

rule. 

Only to the extent that such price 

increases are not possible would there 

be any effect on the average profits of 

affected small entities. Even in the 

unlikely event that entities could not 

pass the costs of the final rule through 

in the form of higher prices, the entities 

could absorb the costs completely 

through a reduction in profits of 1.64 

percent, on average, for affected small 

entities (as shown in Table IV–17). In all 

but two of the affected industries, the 

affected small entities could absorb the 

compliance costs completely through an 

average reduction in profits of less than 

5 percent; the reduction in profits 

would not exceed 17.2 percent for 

affected small entities in any of the 

construction industries, again assuming 

these entities could not pass through the 

costs. 

To further ensure that OSHA fully 

analyzed and considered the potential 

impacts on small entities, the Agency 

separately examined the potential 

impacts of the final standard on very 

small entities, defined as those entities 

with fewer than 20 employees. As 

shown in Table IV–20, OSHA estimated 

the total annualized cost of the final 

standard for all affected very small 

entities in construction to be $11.2 

million. Also shown in that table are 

annualized costs per affected small 

entity by industry. These costs per 

affected small entity range from $607 for 

several construction industries to 

$21,999 for NAICS 236210 (Industrial 

Building Construction). The average 

yearly cost per affected small entity is 

$862. 

To assess the potential economic 

impact of the final standard on very 

small entities, OSHA calculated the 

ratios of the annualized costs of the final 

rule to yearly profits and to yearly 

revenues. These percentages for each 

affected construction industry are in 

Table IV–18. As shown, among very 

small entities potentially affected by the 

final rule, the annualized cost of the 

rule is equal to approximately 0.10 

percent of annual revenues. In no 

construction industry does the 

annualized cost of the rule for affected 

very small entities exceed 1.45 percent 

of annual revenues. Accordingly, on 

average, prices for affected very small 

entities in construction would have to 

increase by about 0.10 percent to 

completely offset the cost of the final 

rule. For affected very small entities in 

the most impacted industry, NAICS 

236210 (Industrial Building 

Construction), prices would have to 

increase by about 1.45 percent to 

completely offset the cost of the final 

rule. 

TABLE IV–19—ANNUALIZED COMPLIANCE COSTS ASSOCIATED WITH THE FINAL CONFINED-SPACES STANDARD FOR SMALL

ENTITIES, BY NAICS INDUSTRY

[2009 dollars] 

NAICS 

industry 

code 

Industry name Affected firms Affected 

establishments 

Affected firms as 

a percentage of 

total 

(percent) 

Annualized 

compliance 

costs 

Cost per firm 

221310 Water Supply and Irrigation Systems 16 18 0.5 $14,299 $894 

236115 New Single-Family Housing Construction.942 953 1.5 578,128 614 

236116 New Multifamily Housing Construction.719 728 17.1 533,573 742 

236118 Residential Remodelers .................... 9,384 9,468 9.4 7,853,017 837 

236210 Industrial Building Construction ......... 24 24 0.7 527,967 21,999 

236220 Commercial and Institutional Building 4,398 4,463 10.9 5,868,843 1,334 

237110 Water and Sewer Line and Related 

Structures Construction.

2,248 2,272 16.8 4,956,577 2,205 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25503 

TABLE IV–19—ANNUALIZED COMPLIANCE COSTS ASSOCIATED WITH THE FINAL CONFINED-SPACES STANDARD FOR SMALL

ENTITIES, BY NAICS INDUSTRY—Continued 

[2009 dollars] 

NAICS 

industry 

code 

Industry name Affected firms Affected 

establishments 

Affected firms as 

a percentage of 

total 

(percent) 

Annualized 

compliance 

costs 

Cost per firm 

237130 Power and Communication Line and 

Related Structures Construction.

95 112 1.9 697,984 7,347 

237310 Highway, Street, and Bridge Construction.2,738 2,784 26.8 4,915,948 1,795 

237990 Other Heavy and Civil Engineering 

Const..

579 584 11.6 513,278 886 

238190 Other Foundation, Structure, and 

Building Exterior Contractors.

1,100 1,112 19.5 1,069,906 973 

238210 Electrical Contractors ........................ 1,424 1,446 1.8 877,857 616 

238220 Plumbing, Heating, and Air-Conditioning Contractors.1,700 1,722 1.7 1,450,572 853 

238310 Drywall and Insulation Projects ......... 1,119 1,130 5.3 686,015 613 

238910 Site Preparation Contractors ............. 167 169 0.4 559,703 3,352 

Total ............................................... 26,653 26,985 5.4 31,103,667 1,167 

Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety. 

TABLE IV–20—ANNUALIZED COMPLIANCE COSTS ASSOCIATED WITH THE FINAL CONFINED-SPACES STANDARD FOR VERY

SMALL ENTITIES, BY NAICS INDUSTRY

[2009 dollars] 

NAICS 

industry 

code 

Industry name Affected 

firms 

Affected 

establishments 

Affected firms as 

a percentage of 

total 

Annualized 

compliance costs 

($) 

Cost per firm 

($) 

221310 Water Supply and Irrigation Systems 11 11 0.3 8,738 794 

236115 New Single-Family Housing Construction.580 580 1.0 351,851 607 

236116 New Multifamily Housing Construction.271 271 7.2 174,635 644 

236118 Residential Remodelers .................... 7,104 7,105 7.3 4,342,753 611 

236210 Industrial Building Construction ........ 8 8 0.2 175,989 21,999 

236220 Commercial and Institutional Building 1,327 1,329 3.9 1,747,634 1,317 

237110 Water and Sewer Line and Related 

Structures Construction.

642 642 5.7 1,400,582 2,182 

237130 Power and Communication Line and 

Related Structures Construction.

17 17 0.4 105,944 6,232 

237310 Highway, Street, and Bridge Construction.601 601 7.5 1,061,237 1,766 

237990 Other Heavy and Civil Engineering 

Const.

166 166 3.8 145,898 879 

238190 Other Foundation, Structure, and 

Building Exterior Contractors.

706 706 13.5 428,448 607 

238210 Electrical Contractors ........................ 544 544 0.8 330,259 607 

238220 Plumbing, Heating, and Air-Conditioning Contractors.655 655 0.7 551,757 842 

238310 Drywall and Insulation Projects ......... 336 336 1.8 203,983 607 

238910 Site Preparation Contractors ............. 64 64 0.2 211,959 3,312 

Total ............................................... 13,032 13,035 2.9 11,241,667 863 

Only to the extent that such price 

increases are not possible would there 

be any effect on the average profits of 

affected very small entities. Even in the 

unlikely event that the entities could 

not pass through the costs of the final 

rule in the form of higher prices, small 

affected entities could absorb the costs 

completely through an average 

reduction in profits of 2.27 percent (as 

shown in Table IV–18). In all but three 

of the affected industries, the affected 

small entities could absorb the 

compliance costs completely through an 

average reduction in profits of less than 

5 percent; the reduction in profits 

would not exceed 32 percent for 

affected small entities in any of the 

construction industries, again assuming 

that no costs could be passed through. 

In practice, given the small 

incremental increases in prices 

potentially resulting from compliance 

with the final standard and the lack of 

readily available substitutes (including 

foreign competition) for the products 

and services provided by the covered 

construction industry sectors, OSHA 

believes demand to be sufficiently 

inelastic in each affected industry to 

enable small and very small entities to 

substantially offset variable compliance 

costs through minor price increases 

mstockstill on DSK4VPTVN1PROD with RULES2

25504 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

without experiencing any significant 

reduction in total revenues or in net 

profits. 

Further, it is important to note that 

cost assignment to entities by size is 

approximate, and in some instances 

larger firms may bear the burden, so the 

impacts on individual small entities is 

suggestive only, not definitive. Indeed, 

the limitations of available economic 

data and the Dodge report data make it 

impossible to assign small projects to 

small firms in a way that represents 

economic reality. Because OSHA did 

not assign fractions of projects to firms, 

it is likely that the Agency 

overestimated the costs of the final rule 

on small and very small entities. 

Accordingly, OSHA believes that it 

overstated its estimates of impacts on 

small entities. 

With this important caveat, the 

Agency notes that there are industries in 

which impacts are above the 

conventional thresholds of 1 percent of 

revenue and 5 percent of profit for some 

small and very small entities. However, 

only a few firms account for the impacts 

as shown from the fact that the costs are 

negligible when expressed as a 

percentage of overall revenues and 

profits for the industry-size class (see 

the last two columns of Table IV–17 and 

Table IV–18). 

2. A Statement of the Need for, and 

Objectives of, the Rule 

The primary objective of the final rule 

is to provide an increased degree of 

occupational safety for employees 

performing construction work in 

confined spaces. Another objective of 

the final rule, in support of the primary 

objective, is to provide updated, clear, 

and comprehensive safety standards 

regarding construction work in confined 

spaces to the relevant employers, 

employees, and interested members of 

the public. The estimated 5.2 fatalities 

and 780 injuries annually that the final 

rule would prevent (assuming full 

compliance) demonstrate the need for 

the final rule. 

The legal basis for the rule is the 

responsibility given the Department of 

Labor through the Occupational Safety 

and Health (OSH) Act of 1970. The OSH 

Act authorizes and obligates the 

Secretary of Labor to promulgate 

mandatory occupational safety and 

health standards as necessary ‘‘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). Additional legal authority 

for this final rule includes 29 U.S.C. 

653, 655(b), and 657; and 40 U.S.C. 

3701. 

3. The Response of the Agency to Any 

Comments Filed by the Chief Counsel 

for Advocacy of the Small Business 

Administration in Response to the 

Proposed Rule, and a Detailed 

Statement of Any Change Made to the 

Proposed Rule in the Final Rule as a 

Result of the Comments 

In addition to the issues raised by the 

SBREFA panel, SBA’s Office of 

Advocacy provided recommendations 

for OSHA to consider (OSHA–2007– 

0026–0119.1). The Agency provides the 

following responses to these 

recommendations (quoted verbatim): 

SBA Recommendation 1: While the 

proposed rule is much improved from 

the draft version of the rule reviewed 

during the SBREFA process, it is still 

very complicated and difficult to 

understand. Advocacy recommends that 

OSHA try to further streamline the rule 

and harmonize it as much as possible 

with the existing general industry 

standard (or consider adopting a single 

rule for both industries). Advocacy 

notes that many employers operate on 

work sites that include both general 

industry and construction confined 

spaces and employees may encounter 

both types of confined spaces in close 

proximity. As many of the SERs pointed 

out to the SBAR Panel, having two 

separate standards could double the cost 

of their safety and training programs 

(especially if they contract out these 

services) and cause unnecessary 

confusion on the job site. Further, the 

distinction between ‘‘maintenance’’ and 

‘‘construction’’ work in various facilities 

is often unclear. Having two different 

standards increases the complexity of 

compliance and could ultimately 

increase risk. This was, and remains, a 

key concern of the SERs. 

OSHA’s Response: When possible, 

OSHA adapted requirements in the 

general industry confined spaces 

standard to construction using parallel 

language. For example, § 1926.1205, 

Permitting process, in the final standard 

contains provisions virtually identical 

to those in § 1910.146(e), Permit system, 

in the general industry standard, rather 

than retaining the distinct classification 

system that OSHA proposed. However, 

the final standard for confined spaces in 

construction bears important 

distinctions from the general industry 

standard due to: 

• Advances in safety systems (for 

example, monitoring procedures that 

detect increases in atmospheric hazards, 

as required in § 1926.1204(c)(5)); 

• Unique conditions associated with 

construction, such as greater emphasis 

on assessing hazards at sewer worksites 

and the need for information exchange 

in a complex multi-employer 

environment; 

• Requests from stakeholders and 

commenters to allow greater flexibility 

for employers, such as permitting 

employers to enter a confined space 

under the alternative procedures 

specified by final § 1926.1203(e) if they 

isolate physical hazards within a space, 

or permitting employers to suspend a 

permit (rather than cancelling it) in 

response to certain temporary changes 

in conditions; 

• Improvements in language for 

clarity and enforcement considerations. 

SBA Recommendation 2: Advocacy is 

concerned about the host-employer and 

controlling-contractor provisions of the 

proposed rule and remains 

apprehensive about OSHA’s imposition 

of legal obligations on employers for 

employees who are not their own. This 

policy seems to emanate from OSHA’s 

Multi-Employer Citation Policy, which 

has never been promulgated as a rule 

and whose legal status has been called 

into question in the recent Secretary of 

Labor v. Summit Contractors, Inc. 

decision. Advocacy filed a similar 

comment about the host-contractor 

provisions in OSHA’s proposed Electric 

Power Transmission rule. Some of the 

key concerns of small businesses are 

that host employers may not even be 

engaged in construction work (and 

therefore have no expertise on confined 

spaces), and that contractors may be 

working in remote locations with no 

interaction or oversight. Advocacy 

appreciates that OSHA has tried to limit 

the scope of this provision by only 

requiring host-employers or controlling 

contractors to provide information they 

actually possess (as opposed to having 

to obtain information they do not 

already have); however, these 

provisions are highly controversial and 

are opposed by many small businesses. 

Advocacy recommends that OSHA 

eliminate these requirements from the 

rule. 

OSHA’s Response: The U.S. Court of 

Appeals for the Eighth Circuit vacated 

the cited Summit decision in Solis v. 

Summit Contractors, Inc., 558 F.3d 815 

(8th Cir. 2009), and the Commission 

subsequently reiterated its support for 

OSHA’s multi-employer citation policy 

and OSHA’s authority to hold 

employers responsible for actions of 

employees who are not their own. Solis 

v. Summit Contractors, Inc., 23 BNA 

OSHC 1196, 1202–03 (No. 05–0839, 

2010). OSHA continues to believe, as 

stated in the NPRM: 

On multi-employer worksites, an 

employer’s actions can affect the health and 

safety of another employer’s employees. It is 

critical for the safety of all employees on a 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25505 

63Available online at: http://www.dol.gov/dol/

regs/appendix.htm. 

worksite that contractors and subcontractors 

communicate with each other. Requiring 

communication between employers is an 

efficient way to ensure that each employer 

learns important information about the 

confined space hazards present so that all 

employees are adequately protected. (72 FR 

67358.) 

In this final rule, OSHA made every 

effort to minimize the impact of the 

information-exchange requirements on 

host employers and controlling 

contractors. OSHA believes that the 

affected parties conduct such multiemployer communication currently 

with minimal disruption to business 

operations, and that the obligations 

specified by the final standard will 

become routine and easy to fulfill for 

employers who must initiate a system 

for regular communication. OSHA 

provided a detailed explanation of its 

decision to retain these requirements, 

along with its authority for these 

requirements, in its discussion of final 

§ 1926.1203(h) and (i). 

SBA Recommendation 3: Advocacy 

notes that there are no single-family 

residential builders included in the 

economic analysis or the Initial 

Regulatory Flexibility Analysis (IRFA); 

however, it appears that there are 

confined spaces on these construction 

sites. If OSHA is assuming that no 

single-family residential builders will 

incur costs or be affected by the rule 

(possibly because OSHA is assuming 

that all of this work is subcontracted out 

and these subcontractors are already 

included), then OSHA should state this 

clearly in the rule. If not, these costs 

should be included in the economic 

analysis and IRFA [sic FRFA] (including 

the costs for the host-employer and 

controlling-contractor provisions and 

the paperwork and recordkeeping 

requirements associated with them). 

Advocacy notes that because the net 

benefits of this rule (i.e., benefits minus 

costs) are only $8.2 million, the 

additional costs for single-family 

residential builders could mean that the 

costs of this proposed rule outweigh its 

benefits. 

OSHA’s Response: In this FEA, OSHA 

analyzed the costs and impacts to 

residential single-family builders for 

confined spaces in single-family 

dwellings that are subject to the final 

standard (see Chapters VI and VII of this 

FEA). OSHA determined that, even with 

these costs included, the benefits of the 

final standard significantly exceed the 

costs. 

SBA Recommendation 4: In the 

Regulatory Flexibility Act section, it 

would be helpful if OSHA clarified in 

the first paragraph that ‘‘an RFA 

analysis is required for any proposed 

rule that is expected to have a 

significant economic impact on a 

substantial number of small entities’’ 

(rather than saying ‘‘for certain 

proposed rules’’). Further, OSHA should 

affirmatively declare in the IRFA [sic 

FRFA] that OSHA expects this proposed 

[sic final] rule will have a significant 

economic impact on a substantial 

number of small entities. 

OSHA’s Response: In the opening 

paragraph of this FRFA, OSHA made 

the following clarifying statement: ‘‘The 

Regulatory Flexibility Act, as amended 

in 1996, requires that an agency prepare 

a final regulatory flexibility analysis for 

any rule expected to have a significant 

economic impact on a substantial 

number of small entities . . .’’ However, 

the overall thrust of SBA’s 

recommendation is inconsistent with 

the RFA, as well as with OSHA’s official 

procedures.63 According to both the 

RFA and OSHA’s official procedures, 

the Agency must prepare an FRFA only 

if it is unable to certify that the final 

standard will not have a significant 

economic impact on a substantial 

number of small entities. In Chapter 7 

of this FEA, the Agency explained that 

it was unable to certify that the final 

standard will not have a significant 

economic impact on a substantial 

number of small entities and that, 

therefore, it must prepare an FRFA. 

Note that OSHA may prepare an 

FRFA even when it has no requirement 

to do so. In fact, OSHA may, and has, 

voluntarily prepared FRFAs for 

purposes of transparency even when the 

Agency is able to certify that the final 

standard will not have a significant 

economic impact on a substantial 

number of small entities. 

SBA Recommendation 5: Also, in 

Item 7 of the IRFA (Alternatives), OSHA 

should have summarized the significant 

alternatives it considered and invited 

public comment on them (OSHA simply 

mentions that some were considered). 

Advocacy notes that a ‘‘significant’’ 

alternative is defined as one that: (1) 

Reduces the burden on small entities; 

(2) is feasible; and (3) meets the agency’s 

underlying objectives. Since it appears 

that none of the alternatives OSHA 

considered meets these criteria, OSHA 

should have stated that fact and invited 

public comment on its determination. 

This is a significant issue because many 

of the SERs recommended that OSHA 

either adopt the general industry 

standard or harmonize the two sets of 

rules as much as possible. 

OSHA’s Response: OSHA did discuss, 

and request comment on, several 

regulatory alternatives, including the 

major alternative supported by the SBA 

of aligning the new rule more closely 

with the general industry rule (see 

discussion at 72 FR 67396, which 

incorporates discussions of regulatory 

alternatives in Table 6 on page 67397, 

and PEA Chapter 3 at OSHA–2007– 

0026–0002). The Agency considered 

these alternatives in terms of (1) 

reducing the burden on small entities; 

(2) feasibility; and (3) satisfying the 

Agency’s statutory obligations and 

objectives. Furthermore, in referring the 

public, in Item 7 of the IRFA, to more 

extensive discussions of the alternatives 

elsewhere, OSHA attempted to comply 

with both the spirit and the letter of 

§ 605(a) of the RFA to avoid duplicative 

analyses. 

OSHA believes that it addressed the 

recommendation to a large extent by 

extensively reworking the proposed 

standard to this final format, which 

closely reflects the general industry 

standard, and thereby reduces the 

burden on small entities. In this FEA, 

OSHA evaluated the impacts of more 

stringent and less stringent regulatory 

alternatives. The final standard in large 

part reflects the general industry 

standard, tailored to address the unique 

characteristics of the construction 

industry. A more stringent regulatory 

alternative to the final standard would 

require that employers identify and 

distinguish the type of confined space 

according to the classification system 

specified in the proposed rule. OSHA 

estimates that the more complex 

classification system, present in the 

proposed rule but not in this final 

standard, would increase compliance 

costs by $1.7 million, not including any 

costs required for additional training. 

One less stringent alternative would 

relieve employers of the requirement to 

have a written program for each permitrequired entry, and would instead 

require making a copy of the standard 

available to employees. OSHA estimates 

that the requirement for a written 

program imposes compliance costs of 

about $1.3 million. OSHA believes that 

having a written program onsite 

maintains consistency with the general 

industry standard and provides specific 

guidance about how employees are to 

address hazards in the confined spaces; 

entry supervisors and employees may 

need to refer to the program quickly 

during the entry. The proposed rule 

allowed employers to simply keep a 

copy of the standard at the worksite 

instead of a written program because the 

proposed standard provided specific 

and detailed requirements for each 

potential type of confined space; 

however, commenters criticized this 

mstockstill on DSK4VPTVN1PROD with RULES2

25506 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

approach as overly complex. The final 

standard is not conducive to replacing 

a written program with a copy of the 

standard because it takes a more generic 

approach to confined-space 

requirements than the proposal; this 

approach is similar to the general 

industry standard, which also requires 

employers to maintain a written 

program on site. 

SBA Recommendation 6: Advocacy 

recommends that OSHA include a list of 

examples of confined spaces for each of 

the proposed categories to make the 

proposed standard easier to understand. 

For example, the only example cited for 

the Continuous System-Permit-Required 

Confined Space category is a ‘‘sewer.’’ It 

would be helpful if OSHA provided 

additional examples. Similarly, since 

the SERs and many small businesses 

have said they find the existing 

categories to be too complex and 

confusing, Advocacy recommends that 

OSHA consider providing a table with 

four columns listing: (1) The category of 

confined space; (2) examples of 

confined spaces under that category; (3) 

a sequential list of the steps an 

employer must take to comply with the 

requirements for that particular 

category; and (4) a cross-reference to the 

regulatory citation. OSHA should 

include this table as an Appendix to the 

rule as it has done for Entry Permits, 

which is very helpful. 

OSHA’s Response: As noted earlier in 

this chapter, for the final standard 

OSHA simplified the classification 

system for confined spaces, making the 

recommended supplemental lists, 

tables, and examples unnecessary. 

OSHA also plans to issue additional 

guidance documents to help employers 

comply with this simpler standard. 

SBA Recommendation 7: Finally, 

OSHA should clarify the definition of a 

‘‘confined space’’ itself, which is 

currently unclear. For example, it is 

unclear what is meant by ‘‘not designed 

for continuous employee occupancy.’’ It 

would be helpful if OSHA provided 

some examples for clarification. Also, 

OSHA should specifically state whether 

foundations, attics, and crawl spaces in 

single-family residential homes are 

considered confined spaces. Finally, 

OSHA should clarify whether there is 

any legal distinction between 

‘‘enclosed’’ and ‘‘confined’’ spaces, as 

the term ‘‘enclosed’’ spaces is also used 

in the preamble. 

OSHA’s Response: In the Summary 

and Explanation section of the preamble 

to the final standard, OSHA clarifies its 

definition of a ‘‘confined space,’’ and 

§ 1926.1201(a) of the standard 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 same section of the preamble 

addresses the scope of the standard with 

respect to affected spaces in singlefamily residential construction. In the 

final rule, OSHA does not distinguish 

between an ‘‘enclosed space’’ and a 

‘‘confined space’’ because the final rule 

does not include requirements for 

enclosed spaces. OSHA amended the 

‘‘enclosed spaces’’ provision of subpart 

V, § 1926.953, as part of this 

rulemaking, and defined that term for 

purposes of subpart V. OSHA does not 

use the term in the preamble of the 

NPRM or the final rule other than in 

response to SBREFA comments, the 

removal of § 1926.21(b), and the ACCSH 

recommendation to address enclosed 

spaces, which OSHA did not adopt. 

4. A Statement of the Significant Issues 

Raised by the Public Comments in 

Response to the Initial Regulatory 

Flexibility Analysis, a Summary of the 

Assessment of the Agency of Such 

Issues, and a Statement of Any Changes 

Made in the Proposed Rule as a Result 

of Such Comments 

On September 26, 2003, OSHA 

convened a Small Business Advocacy 

Review Panel (the Panel) for this 

rulemaking in accordance with the 

provisions of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 (Pub. L. 104–121), as codified at 5 

U.S.C. 601 et seq. The Panel consisted 

of representatives of OSHA, the Office 

of Information and Regulatory Affairs in 

the Office of Management and Budget, 

and the Office of Advocacy within the 

U.S. Small Business Administration. 

The Panel received oral and written 

comments on a draft proposal and a 

draft economic analysis from small 

entities (businesses) potentially affected 

by the rule. The Panel, in turn, prepared 

a written report which it delivered to 

the Assistant Secretary for Occupational 

Safety and Health (and is available in 

the docket on Regulations.gov as 

OSHA–2007–0026–0037). The report 

summarized the comments received 

from the small-entity representatives 

(SERs), and included recommendations 

from the Panel to OSHA regarding the 

proposal and the associated analysis of 

compliance costs. OSHA sought 

comment in the NPRM on a variety of 

issues of particular interest to small 

businesses as a result of the 

recommendations of the Panel. Table 

IV–21 below provides the Panel 

recommendations and a summary of 

OSHA’s response to each of these 

recommendations in light of comments 

made on the record. 

TABLE IV–21—OSHA RESPONSE TO RECOMMENDATIONS BY THE SMALL BUSINESS ADVOCACY REVIEW PANEL FOR THE

PROPOSED STANDARD ON CONFINED SPACES IN CONSTRUCTION

Panel recommendation OSHA’s response 

1. The SERs generally believed that OSHA had underestimated the 

costs of the draft proposed standard. The Panel recommended that 

OSHA revise its economic and regulatory flexibility analysis as appropriate to reflect the SERs’ comments on underestimation of costs, 

and that the Agency compare OSHA’s revised estimates to alternative estimates provided by the SERs. For those SER estimates 

that OSHA did not adopt, OSHA should explain its reasons for preferring an alternative estimate, and solicit comment on the issue.

The Agency relied, in part, on the comments and alternative cost estimates from the SERs to help ensure that the estimated costs of 

compliance with the final standard would reflect the actual costs that 

businesses might incur when complying with the requirements specified by the standard. OSHA reduced or eliminated some requirements altogether (such as those addressing hazardous-enclosed 

spaces) in light of the information provided and issues raised by the 

SERs. The Agency revised or clarified other requirements (such as 

those involving communications to/from controlling employers and 

the classification of spaces) to avoid the potential for misinterpretations regarding the applicability of the requirements and the specific 

actions necessary to ensure compliance. OSHA discusses the revisions in further detail below in the responses to specific Panel recommendations separately addressing each of these issues. 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25507 

TABLE IV–21—OSHA RESPONSE TO RECOMMENDATIONS BY THE SMALL BUSINESS ADVOCACY REVIEW PANEL FOR THE

PROPOSED STANDARD ON CONFINED SPACES IN CONSTRUCTION—Continued 

Panel recommendation OSHA’s response 

2. Many SERs observed that OSHA had underestimated the cost of 

training. They were concerned particularly about the length of time 

required for training, training the trainers, renewal training, and multilingual training. The SERs also noted that much retraining could be 

avoided if OSHA adopted the general industry rule because most 

firms already have trained their employees on that rule. Some SERs 

also noted that they still need to train employees on the general industry standard because some of their work would come under the 

general industry standard. In these situations, they would need to 

continue training on the general industry standard while adding training on the construction standard, and on how employees should determine which standard applies. Because OSHA’s economic analysis 

examined training on a project basis, it is difficult to compare 

OSHA’s cost estimates to the estimates provided by the SERs. The 

Panel recommends that OSHA carefully analyze the SERs’ comments on training costs by developing methods for comparing these 

cost estimates to those estimates provided in OSHA’s economic 

analysis. OSHA then should compare these costs to its present cost 

estimates, and revise its training costs as necessary based on all of 

the available information.

The Agency reviewed its estimates of the costs of complying with the 

training requirements in the proposed standard in light of the additional information provided by the SERs. OSHA understands that 

many businesses would have to comply with both the general industry and the construction industry versions of the OSHA confinedspaces standards, depending on the circumstances. Under the final 

standard, OSHA decided not to allow compliance with the general industry standard in lieu of compliance with this final standard for construction projects because there are situations where the general industry standard would not adequately protect construction employees because of the unique characteristics of construction work (see 

section II.B. (‘‘History’’) of this document for a discussion of this 

issue). However, to simplify the process for employers in confined 

spaces where both general industry and construction work is ongoing, OSHA provided a statement of enforcement policy which has the 

effect of allowing all employers in that space to comply with a single 

set of rules: The construction standard. That policy, along with the 

changes that bring the construction rule closer in line with the general industry rule and address much of the information provided by 

the SERs, should reduce the training costs. 

3. Many SERs stated that OSHA had neglected some elements of 

monitoring costs, such as the need for a competent person to conduct the monitoring, the need for the entire crew to wait while a supervisor performs the monitoring, the short life span in the field of 

monitoring equipment, and costs associated with calibrating the 

equipment. Those SERs affected by the hazardous-enclosed spaces 

portion of the draft proposed rule were concerned particularly about 

increased monitoring costs. The Panel notes that if the SERs’ views 

about the life of equipment and the need for the entire crew to suspend work during monitoring are correct, and no other assumptions 

are changed, the costs of monitoring would be three to five times 

higher than OSHA estimated, adding $6 to $12 million to the cost of 

the draft proposed standard. The Panel recommends that OSHA 

consider these factors and revise its monitoring cost estimates accordingly, and that monitoring costs reflect the total actual costs associated with conducting monitoring, including the cost of transporting and maintaining equipment, and the costs associated with 

crew members waiting for the completion of monitoring activities.

The Agency reviewed its estimates of the costs of complying with the 

atmospheric-monitoring requirements in the proposed standard in 

light of the additional information provided by the SERs. The Agency 

decided not to revise the use of a five-year useful life of monitoring 

equipment absent additional evidence demonstrating that a shorter 

span was more appropriate. In any case, the effect on total costs of 

minor variances in the life of equipment would be small. OSHA increased the costs associated with setting up monitoring equipment to 

20 minutes (instead of 10 minutes) to reflect the possibility of additional losses of productive work time by other employees. OSHA 

also doubled the costs associated with periodic calibration of the 

equipment to reflect possible additional time, costs associated with 

the transportation of equipment, and other incidental expenses. 

4. Many SERs were concerned that the hazardous enclosed spaces 

provisions of the draft proposed rule would result in extensive costs 

with few benefits. Some SERs thought the provisions required little 

recordkeeping beyond what they currently do. Also, some SERs 

noted that OSHA had underestimated the costs associated with recordkeeping. The Panel is concerned that the hazardous enclosed 

spaces provision would require major atmospheric testing and monitoring burdens not identified in the cost analysis. The Panel recommends that OSHA carefully examine the benefits and costs of this 

portion of the rule and compare these requirements carefully to what 

is required under other existing regulations, and to existing construction industry practice.

As recommended by the Panel, OSHA carefully examined the hazardous-enclosed space portion of the draft proposed standard. 

OSHA also reexamined applicable existing requirements, the extent 

of occupational risks involved, and the potential for risk reduction 

with the promulgation of additional regulatory requirements for hazardous-enclosed spaces. Based on this reexamination, the Agency 

decided not to promulgate any new or additional requirements for 

hazardous-enclosed spaces. OSHA believes that other existing 

standards adequately cover potential hazards associated with these 

spaces (for example, 29 CFR 1926.55). Therefore, OSHA eliminated 

all requirements involving hazardous-enclosed spaces, and no such 

requirements appear in the final standard. 

5. Most SERs were concerned that the treatment of controlling employers in the draft proposed standard would result in additional costs for 

controlling employers in the form of increased monitoring and supervision of subcontractor activities. SERs also were concerned with the 

costs and time required to meet the coordination and communication 

requirements of the draft proposed standard. The Panel recommends 

that, if OSHA does not clarify these provisions, then it should examine further the possible costs of the controlling-employer provisions in 

the draft proposed rule. Also, OSHA should be certain that it has accounted for all of the burdens associated with this provision.

The Agency clarified the duties of the controlling employer in 

§ 1926.1203 of the final standard (General requirements). In its explanation of paragraph (h) of this section, OSHA provided additional 

information about the type of information that the controlling employer must share with its subcontractors, and OSHA further clarified 

in a note to this paragraph that the controlling or host employer do 

not have to enter a confined space to collect the specified information for its subcontractors. Therefore, the Agency believes that compliance with final § 1926.1203 would not result in a significant added 

cost to controlling employers. Its purpose is to aid them in their duties to safely coordinate the activities of their subcontractors within 

the space. 

6. Many SERs were concerned that the increased complexity of the 

classification system would add not only to the training costs but also 

to the costs associated with classifying confined spaces. The Panel 

recommends that, if the classification process is not simplified, 

OSHA should further analyze the costs associated with classifying 

confined spaces.

The Agency revised the classification system in the final standard to 

clarify and simplify the classification of confined spaces. The Agency 

believes this system reflects current practice under the general industry standard when employers apply it to construction work, thereby reducing the compliance burden for employers. 

mstockstill on DSK4VPTVN1PROD with RULES2

25508 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

TABLE IV–21—OSHA RESPONSE TO RECOMMENDATIONS BY THE SMALL BUSINESS ADVOCACY REVIEW PANEL FOR THE

PROPOSED STANDARD ON CONFINED SPACES IN CONSTRUCTION—Continued 

Panel recommendation OSHA’s response 

7. OSHA estimated that the draft proposed standard potentially affects 

small entities performing construction work in confined and enclosed 

spaces. Small entities in eight specific construction industry classifications were identified as being potentially affected by the draft proposed standard. These classifications include Residential Housing 

(SIC 1522); Industrial Buildings (SIC 1541); Other Nonresidential 

Buildings (SIC 1542); Highway and Street Construction (SIC 1611); 

Bridge and Tunnel Construction (SIC 1622); Water, Sewer, and Pipeline Construction (SIC 1623); Other Heavy Construction (SIC 1629); 

and Structural Steel Erection (SIC 1791). For each of these industry 

classifications, Table 3 in the Panel report shows estimates of the 

total number of small firms in the industry, the number of establishments operated by these firms, the number of employees of these 

firms, and the total sales of these firms. These figures represent the 

best available estimates for the numbers of potentially affected small 

entities meeting the definition of a small entity established by the 

Small Business Administration for these particular industry sectors. In 

summary, an estimated 86,012 small entities are potentially affected 

by the draft proposed standard. These firms operate an estimated 

86,158 establishments, employ an estimated 921,831 employees, 

and generate total sales estimated at $192 billion. In addition to the 

small entities identified above.

As noted in the response to item 4 above, OSHA did not include the 

requirements addressing hazardous-enclosed spaces that the Panel 

believed may impose a burden on the industrial sector for General 

Contractors for Single Family Homes in the final standard. 

8. Almost all of the SERs found the draft proposed standard difficult to 

follow. The SERs stated that they currently were using the general 

industry standard and were familiar with it. A few SERs saw some 

advantages to the differences between the draft proposed standard 

and the general industry standard, but even these SERs did not believe that these advantages were sufficient to justify the amount of 

training the draft proposed standard would require. The Panel recommends that OSHA either make the standard easier to follow, consider a standard closer to the general industry standard, or develop a 

standard in which the classification provisions that provide greater 

flexibility to employers are optional rather than required.

In the final standard, OSHA addressed the concerns of the SERs 

about the difficulty in following the text of the proposed standard. 

OSHA reorganized the regulatory text to follow more closely the general industry structure preferred by the SERs. The final standard 

specifies the general duties, the standards pertaining to permit-required confined spaces, the permitting process, entry permits, training, rescue services, and specific duties assigned to entrants, attendants, and supervisors. OSHA recognized and addressed problematic 

situations common to construction sites not clearly addressed by the 

general industry standard (e.g., sites where there is no host, the kind 

of information that entities need to exchange, conducting the initial 

hazard assessment of a previously unclassified space). OSHA 

adopted many of the general industry provisions, and adjusted them 

for use on a construction worksite. 

9. Most SERs were confused by the distinctions between types of confined spaces. One SER referred to the distinctions as ‘‘metaphysical.’’ The Panel recommends that if these distinctions are retained, they should be made clearer, or OSHA should consider making such classifications optional.In the final standard, OSHA greatly simplified the system for classifying 

confined spaces (relative to that in the proposed standard) by removing the series of classifications in the proposed rule and simply requiring that employers identify all confined spaces where their employees may work, and designate them as either permit-required 

confined spaces (i.e., permit spaces) or non-permit spaces. Within 

the subcategory of permit spaces, employers must identify and address the hazards, such as through hazard isolation or atmosphere 

control; the final rule addresses these responsibilities using performance language in §§ 1926.1203 (General requirements) and 

1926.1204 (Permit-Required Confined Space Program) and does not 

require the additional classifications required by the proposed rule. 

10. Many SERs noted that the hazardous-enclosed spaces requirements would result in a major recordkeeping burden. Some SERs 

believed that these requirements represented major new requirements for many contractors. OSHA notes that a few of the SERs 

seemed unacquainted with some of the requirements of existing regulations. The Panel notes that the requirement to evaluate each potentially hazardous space, implicit in § 1926.1225(a)(3), could radically alter the compliance requirements and the costs of the rule in 

ways not reflected in OSHA’s Preliminary Initial Regulatory Flexibility 

Analysis. The Panel recommends that OSHA more carefully explain 

the relation of these requirements to existing requirements and practice, and explain the need for different requirements.

See the Agency’s response to item 4 above. 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25509 

TABLE IV–21—OSHA RESPONSE TO RECOMMENDATIONS BY THE SMALL BUSINESS ADVOCACY REVIEW PANEL FOR THE

PROPOSED STANDARD ON CONFINED SPACES IN CONSTRUCTION—Continued 

Panel recommendation OSHA’s response 

11. SERs were concerned that the provisions addressing controlling 

employers would require general contractors to develop confinedspace expertise and provide confined-space supervision. OSHA’s intent with these provisions was not to change existing relations between general contractors and their subcontractors, but rather to assure that general contractors provide subcontractors with the information they possess relevant to confined spaces. Some SERs 

agreed that additional information could be useful. The Panel recommends that OSHA clarify this requirement to indicate that the role 

of the controlling employer is only to provide any information they 

possess concerning confined spaces.

As stated above, OSHA clarified the responsibilities of controlling employers in final § 1926.1203. In addition to sharing specific information that it may have about the space with its affected subcontractors, the note to that section clearly states that employers do not 

have to enter a confined space to gather such information for its 

subcontractors. The purpose of this section is not to change existing 

relations between general contractors and their subcontractors, but 

rather to assure that general contractors provide subcontractors with 

information relevant to the safety of their subcontractors’ employees 

working within a confined space. The proposed standard did not require controlling employers to develop confined-space expertise to 

fulfill their duties, and neither does the final standard. 

12. OSHA’s Hazard Communication standard also provides guidance 

to employers on the use of certain chemicals in the workplace. However, OSHA does not see any conflict between this standard and the 

draft proposed standard. The Hazard Communication standard provides general precautionary information regarding the use of certain 

chemicals and products; the draft proposed standard provides more 

explicit requirements for conditions specific to confined and enclosed 

spaces. Also, many construction contractors still will need to follow 

the general industry standard [for confined spaces] in some types of 

work, and thus need to train their workers in using two different 

standards, and when to apply each standard. The SERs identified 

other federal standards that they believe address the hazards associated with confined and enclosed spaces, including OSHA standards 

for Ventilation (§ 1926.57) and for Gases, Vapors, Fumes, Dusts, and 

Mists (§ 1926.55), and EPA and HUD rules on abatement work. Accordingly, the Panel recommends that OSHA clarify the exact relation between the draft proposed standard and other standards affecting work by construction employers in confined or enclosed spaces, 

including the Hazard Communication standard, the general industry 

standard, the Permissible Exposure Limit standards, the Ventilation 

standard, the Gases, Vapors, Fumes, Dusts, and Mists standard, 

and applicable EPA and HUD standards.

OSHA recognized that the confined spaces standard may overlap with 

provisions in other part 1926 standards. In the preamble discussion 

of this final rule, OSHA clarified the relationship between this standard and other pre-existing construction standards which may be applicable in a confined space. In § 1926.1201(c) of the final standard, 

OSHA explains how overlapping standards would interact with each 

other, and the obligations of an employer in such situations. OSHA 

also explains in the preamble of the final rule how employers would 

evaluate practical situations under the requirements of the final 

standard when it overlaps with another OSHA requirement. In its explanation of the scope of the final rule, OSHA also provided additional guidance about the potential overlap with part 1926, subparts 

J, P, S, and Y. In addition, OSHA made a minor modification to 29 

CFR part 1926, subpart V, to ensure that it provides clear guidance 

to employers about the interaction of that standard with the confined 

spaces in construction standard. OSHA is currently unaware of any 

other Federal agency standards that overlap or conflict with the final 

OSHA standard. 

13. Alternatives to adopting the draft proposed standard developed by 

OSHA include adopting the draft proposed standard developed by 

the Advisory Committee for Construction Safety and Health, the industry consensus standard developed by the American National 

Standards Institute, or the existing OSHA general industry standard 

[for confined spaces]. Additional alternatives include modifying the 

OSHA draft proposed standard by removing provisions addressing 

hazardous-enclosed spaces, removing the requirement to classify 

spaces in the least hazardous category, revising requirements for atmospheric monitoring to allow periodic monitoring instead of continuous monitoring, and/or reducing or eliminating recordkeeping requirements. The Panel recommends that OSHA continue to consider 

these alternatives, and discuss and solicit comment on them in the 

proposed rule.

OSHA considered alternatives to drafting its own confined space standard for construction. The Agency considered the general industry 

standard for confined spaces, but found it to be unsuitable for the 

construction industry. OSHA believes that the general industry standard does not adequately address some problematic situations common on construction sites. These concerns include multiple subcontractors working within one space, and hazards created by a confined space built around employees. OSHA drafted the final standard 

to be similar to the general industry standard in terms of organization 

and most of the requirements. ANSI is presently considering whether 

it is feasible to begin drafting a confined-spaces standard for application specifically to construction. OSHA addressed major concerns of 

the SERs regarding the hazardous-enclosed space requirements in 

the draft proposed standard by removing that section completely 

from the proposal and final standard. As previously stated above, 

OSHA also simplified classification as either permit-required or nonpermit required. Finally, OSHA reduced employers’ recordkeeping requirements by minimizing the time necessary for employers to maintain documentation. For example, in § 1926.1205 of the final standard, an employer will only have to maintain entry permits for one 

year. 

mstockstill on DSK4VPTVN1PROD with RULES2

25510 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

TABLE IV–21—OSHA RESPONSE TO RECOMMENDATIONS BY THE SMALL BUSINESS ADVOCACY REVIEW PANEL FOR THE

PROPOSED STANDARD ON CONFINED SPACES IN CONSTRUCTION—Continued 

Panel recommendation OSHA’s response 

14. Most SERs indicated a preference for using the general industry 

standard for construction work, as opposed to the draft proposed 

standard. OSHA is concerned that not all construction employers are 

as familiar with the general industry standard as the SERs are, and 

that some employers might benefit from a standard designed to provide greater compliance flexibility. The Panel recommends that 

OSHA consider the alternative of adopting the general industry 

standard and, if this alternative is not adopted, discuss and solicit 

comment on this alternative in the proposed rule. If OSHA does not 

adopt a standard closer to the general industry standard, the Panel 

recommends that OSHA revise its comparative cost analysis of the 

general industry rule and the draft proposed standard to take account of SERs’ concerns about the increased training, communication, and classification costs associated with the draft proposed 

standard. The Panel also recommends that OSHA solicit comment 

on how an alternative standard similar to the general industry standard could be adapted to the construction sector. In addition, the 

Panel recommends that OSHA analyze and solicit comment on the 

non-regulatory alternative of not issuing a final standard, relying instead on existing standards and improved outreach.

As stated before, the draft proposed confined-spaces standard for construction addresses some concerns that are unique to the construction industry. OSHA believes that the reorganization of the proposed 

standard and the elimination of the section on hazardous-enclosed 

spaces will make the final standard easier to read than the general 

industry standard for confined spaces, thereby expediting employer 

compliance. OSHA requested that the public submit comments regarding the degree of flexibility granted to employers in classifying 

confined spaces, as well as other alternatives to the proposed rule in 

general. In the final standard, OSHA adopted a classification system 

based on identifying permit-required spaces (i.e., permit spaces). 

This system reflects the classification system used widely under the 

general industry standard. OSHA rejected the alternative of not 

issuing a final standard because the record demonstrates that the 

existing standards, even with improved outreach, would be inadequate to prevent the fatalities and injuries identified earlier in this 

analysis. The earlier discussion in this FEA under ‘‘Need For Regulation’’ includes additional information on the need for this new standard. 

15. The SERs were confused by the variety of distinctions among confined spaces, and generally believed that the training required by 

these provisions negated any advantages that might arise from the 

flexibility of different types of confined spaces. The Panel recommends that OSHA examine and solicit comment on alternatives 

that reduce the number of types of confined spaces, and that OSHA 

consider alternatives that would allow employers the choice of using 

or ignoring these provisions.

In the proposed rule, the Agency reduced the number of classifications 

by removing the classification for hazardous-enclosed spaces. In the 

proposed rule, OSHA further clarified the four remaining categories 

by reorganizing the text of the proposed standard to ensure that all 

requirements for each classification type were available in one section. OSHA requested that the public submit comments regarding 

other alternatives to the proposed rule. In the final standard, OSHA 

further reduced the number of confined-space classifications by 

adopting the approach used in the general industry standard to designate permit-required spaces. The Agency believes that, because 

the final standard closely mirrors the general industry standard, there 

will be minimal additional costs for employers to train their employees on the final construction standard. 

16. Many SERs viewed the requirements for hazardous-enclosed 

spaces as highly burdensome. The Panel recommends that OSHA 

remove this provision unless OSHA can (1) clarify exactly how the 

requirements of this provision are different from other existing requirements and practices; (2) develop a detailed cost analysis of this 

provision; (3) quantify the hazards associated with hazardous-enclosed spaces; and (4) explain how the hazardous-enclosed space 

provisions can serve to reduce these hazards. If OSHA retains this 

requirement or one like it, OSHA also should solicit comment on the 

need for the recordkeeping requirements in the provision. In addition, 

OSHA should solicit comment on removing this provision entirely.

As recommended by the Panel, OSHA removed the provisions for hazardous-enclosed spaces. 

17. Most SERs were concerned that the provisions for controlling contractors would alter the existing relationship between contractors and 

subcontractors with little gain in reduced risk to employees. OSHA 

notes that the purpose of this provision was only to ensure that contractors share available information at multi-employer worksites. 

Some SERs agreed that information sharing would be helpful, but 

were concerned that the OSHA draft went far beyond this purpose. 

The Panel recommends that OSHA consider removing this provision 

or clarifying the purpose of this provision, and solicit comment in the 

proposal on the need for this provision.

As stated previously, § 1926.1203(h), and the note to that section, clarify the duties of the controlling contractor and explain that a controlling contractor will not have to enter a confined space to gather the 

specified information for the subcontractor. 

OSHA received no significant 

comments in response to the Initial 

Regulatory Flexibility Analysis for the 

proposed rule, but it did receive two 

comments on whether elements of the 

proposed standard were feasible for 

small entities. First, the National 

Association of Home Builders (NAHB) 

claimed the proposed rule required 

controlling contractors to supervise all 

entries into permit spaces, and argued 

that it was not economically feasible for 

small home builders to do so (ID–219.2). 

In addition, NAHB claimed the 

information coordination duties of the 

proposed rule were not economically 

feasible for small home builders. 

OSHA finds these arguments 

misguided. First, neither the proposal 

nor the final rule required controlling 

employers to supervise the entries of 

other employers. Nor did NAHB provide 

convincing evidence that the 

coordination duties placed on 

contractors were infeasible. 

Among the evidence cited in the 

published study NAHB used to support 

this economic infeasibility conclusion is 

a profit rate (profit as a percentage of 

revenue) of 7.7 percent for NAHB 

builder members in 2006, which is 

significantly higher than the more 

conservative rate OSHA used in its 

calculations: 4.53 percent. If the actual 

profit rate is higher than OSHA’s 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25511 

estimate, OSHA’s impact estimates may 

overstate the effect of this rule on 

revenues and profits in the 

homebuilding industry. As previously 

demonstrated in Chapter 7 of this FEA, 

these potentially inflated estimates of 

revenue and profit impacts for the new 

single-family housing-construction 

industry (NAICS 236115; all affected 

firms) are well below the threshold of 

economic infeasibility at 0.04 percent 

and 0.99 percent, respectively (0.05 

percent and 1.08 percent, respectively, 

for small entities). 

As noted in Chapter 6 of this FEA, 

OSHA assigned typical unit-time 

estimates for the multi-employer 

(information-exchange) provisions of 

the final standard and demonstrated 

there, and in this chapter, that the costs 

incurred by home builders would not be 

excessive or unreasonable. Despite 

assertions by NAHB that the demands of 

coordinating subcontractors would be 

economically infeasible as prescribed by 

the multi-employer provisions of the 

rule, there is evidence (ID–211, Tr. pp. 

123–127) to suggest that home builders 

often find that they must coordinate and 

communicate efficiently with 

subcontractors across construction sites 

of varied size and complexity. 

Therefore, OSHA believes that, based on 

the evidence in the record as a whole, 

the multi-employer informationexchange requirements of the final 

standard would not impose an 

unreasonable burden on home builders, 

and would not threaten the competitive 

stability of the industry or otherwise 

create conditions of economic 

infeasibility. 

Another commenter asserted that the 

impact of the proposed rule on small 

businesses would be ‘‘staggering’’ and 

would drive some contractors out of 

business, arguing that several of the 

costs of the proposed standard were 

disproportionate to its benefits (ID–112). 

This commenter suggested that OSHA 

withdraw the proposed standard or that 

compliance with the general industry 

standard constitute compliance with the 

construction standard. OSHA revised 

the final rule by harmonizing it with the 

general industry standard to a 

substantial degree. Therefore, the final 

standard in large part reflects the 

general industry standard, tailored to 

address the unique characteristics of the 

construction industry. In revising 

several provisions of the final rule to 

reflect the general industry standard, 

OSHA sought to minimize the impact 

on small entities by minimizing the 

costs involved in distinguishing 

between the two rules and complying 

with both standards, as well as the costs 

involved in retraining employees on 

new procedures. 

5. 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 

OSHA completed an analysis of the 

economic impacts associated with this 

final rule, including an analysis of the 

type and number of small entities to 

which it would apply, as described 

previously in this section (See Tables 

IV–19 and IV–20). To determine the 

number of small entities potentially 

affected by this rulemaking, OSHA used 

the definitions of small entities 

developed by the Small Business 

Administration (SBA) for each industry. 

For the construction industry 

generally, SBA defines small businesses 

using revenue-based criteria. For most 

of the affected construction industries, 

including those industries that mostly 

consist of general contractors, OSHA 

classified firms with annual revenues of 

less than $33.5 million as small 

businesses. For specialty contractors, 

such as structural-steel erection 

contractors, the Agency considered 

firms with annual revenues of less than 

$14 million to be small businesses. 

Based on the definitions of small 

entities developed by SBA for each 

industry, the final rule would 

potentially affect a total of 490,000 

small entities, as shown in Table IV–4. 

Included in this number are an 

estimated 451,000 entities with fewer 

than 20 employees, as shown in Table 

IV–5. 

6. 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 

OSHA is issuing a standard that 

addresses the work practices employers 

must use and other requirements they 

must follow when performing 

construction work in confined spaces. 

Table IV–14 of this FEA shows the unit 

costs for these requirements. 

Employers must keep records 

associated with work in confined spaces 

as specified by the final standard. 

Records include entry permits and 

verification documents. The final 

standard does not require regular 

reporting; however, employers must 

demonstrate compliance with the 

recordkeeping requirements as part of 

OSHA compliance inspections. 

Other compliance requirements of the 

final standard include evaluating and 

classifying confined spaces, eliminating 

or isolating hazards, providing sufficient 

ventilation, conducting atmospheric 

monitoring, providing an attendant, 

providing respiratory protection, 

preventing unauthorized entry, 

planning and providing rescue 

capability, and providing training. 

The preamble to the final standard 

provides a comprehensive description 

of, and further detail regarding, the 

provisions of the final rule. The 

preceding chapters of this FEA provide 

a description of the types of entities 

subject to the new and revised 

requirements, and the types of 

professional skills necessary for 

compliance with the requirements. 

7. A Description of the Steps the Agency 

Took To Minimize any Significant 

Economic Impact on Small Entities 

Consistent With the Stated Objectives of 

the 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 took a number of steps to 

minimize economic burdens on small 

entities. In response to the SERs’ 

suggestion that the Agency harmonize 

the construction standard with the 

general industry standard to the greatest 

extent possible, the final standard in 

large part reflects the general industry 

standard, tailored to address the unique 

characteristics of the construction 

industry. In revising several provisions 

of the final rule to reflect the general 

industry standard, OSHA sought to 

minimize the impact on small entities 

by reducing the need to comply with 

different confined-space requirements 

for construction and general industry, 

and to train employees on new 

procedures. The vast majority of 

commenters believed that the 

classification system in the proposed 

rule would not contribute to worker 

safety, and would result in confusion 

among employers. Therefore, OSHA 

decided to adopt the system reflected in 

the general industry standard for 

classifying confined spaces as permitrequired confined spaces. 

In addition, OSHA did not include a 

proposed provision in the final rule that 

required an employer to summon an 

entry-rescue service whenever the 

employer initiated a non-entry rescue. 

OSHA also allows employers to use the 

alternative ventilation-only procedures 

under final § 1926.1203(e) if an 

employer is able to isolate all physical 

mstockstill on DSK4VPTVN1PROD with RULES2

25512 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

hazards in the space, which provides 

more flexibility to an employer than the 

general industry standard. Furthermore, 

OSHA allows employers to suspend a 

permit in certain circumstances, rather 

than cancelling and developing a new 

permit. Each of these options has the 

potential to significantly reduce the 

economic impact on employers, 

including small entities. The preamble 

for §§ 1926.1203(e) and 1926.1205(e) 

includes an in-depth explanation of the 

specific steps taken to minimize 

employer burden. 

Another less stringent alternative 

would relieve employers of the 

requirements specified in the final 

standard for information exchange 

between host employers, controlling 

contractors, and entry employers on 

worksites; these requirements are absent 

from the general industry standard. 

While OSHA notes that host employers 

must share this information under the 

general industry standard, and believes 

that this exchange of information occurs 

as a matter of usual and customary 

practice on general industry and 

construction worksites alike, the general 

industry standard does not explicitly 

impose information-sharing 

requirements on controlling contractors. 

OSHA estimates that compliance with 

the information-exchange requirements 

of the final rule will result in 

compliance costs of about $9.3 million, 

and that the less-stringent alternative, 

reflected in the general industry 

standard, would reduce compliance 

costs by about $5.9 million. However, 

OSHA believes that, given the unique 

characteristics of the construction 

industry that include continually 

changing projects and multiple 

employers onsite, the specific 

information-exchange requirements 

contained in the final rule will 

contribute to an effective exchange of 

information about confined-space 

hazards and will, therefore, increase 

worker safety on construction sites. 

Another, less stringent, alternative 

would relieve employers of the 

requirement in the final standard to 

develop a written program for each 

permit-required entry, and would 

instead require that a copy of the 

standard be made available at the 

worksite. OSHA estimates that the 

requirement for a written program will 

result in compliance costs of about $1.3 

million. OSHA believes that having a 

written program onsite maintains 

consistency with the general industry 

standard and provides site-specific 

information about the confined spaces. 

The proposed rule allowed employers to 

simply keep a copy of the standard at 

the worksite instead of a written 

program because the proposed standard 

provided specific and detailed 

requirements for each potential type of 

confined space. The final standard is 

not conducive to replacing a written 

program with a copy of the standard 

because it takes a more generic 

approach to confined-space 

requirements than the proposal; this 

approach is similar to the general 

industry standard, which also requires 

employers to maintain a written 

program on site. 

9. Sensitivity Analysis 

In this chapter, OSHA presents the 

results of two different types of 

sensitivity analysis to demonstrate how 

robust the estimates of net benefits are 

to changes in selected cost and benefit 

parameters. In the first set of sensitivity 

tests, OSHA makes a series of isolated 

changes to individual cost- and benefitinput parameters to determine their 

effects on the Agency’s estimates of 

annualized costs, benefits, and net 

benefits. In the second set of tests—a socalled ‘‘break-even analysis’’—OSHA 

also investigates isolated changes to 

individual cost- and benefit-input 

parameters, but with the objective of 

determining the magnitude of the 

changes needed for annualized costs to 

equal annualized benefits. The Agency 

conducted these calculations for 

informational purposes only, and is not 

relying on these calculations to justify 

this final rule. 

Effects of Isolated Changes to Specific 

Input Parameters 

OSHA provides below a sensitivity 

analysis of several assumptions 

underlying the Agency’s estimates of the 

annualized costs and benefits of the 

final rule. The calculations underlying 

the estimation of compliance costs, 

benefits, and economic impacts 

associated with this rulemaking are 

generally linear and additive. 

Accordingly, the changes in the costs or 

benefits will generally be proportional 

to variations in the relevant input 

parameters. For example, if the 

estimated time for supervisors to 

evaluate and classify confined spaces 

increased by 50 percent, the 

corresponding labor costs would also 

increase 50 percent. 

OSHA evaluated a series of such 

changes in input parameters to test the 

extent to which the general conclusions 

of the economic analysis remained 

stable. On the whole, OSHA finds these 

conclusions to be robust, as even 

sizeable changes in the values of several 

input parameters did not greatly alter 

the estimates of the costs, benefits, or 

net benefits. Furthermore, this final rule 

produces significant positive net 

benefits regardless of the individual 

revisions to costs, benefits, or discount 

rate. Table IV–22 below summarizes the 

results of the individual sensitivity 

tests. In all the sensitivity tests, the 

parameters remained unchanged except 

for the one tested. 

In the first sensitivity test on costs, 

when OSHA increased by 100 percent 

the estimated time for supervisors to 

evaluate and classify confined spaces, 

the estimated total costs of compliance 

increased by $0.7 million annually, or 

by 1 percent. In a second sensitivity test, 

OSHA increased by 100 percent the 

time estimated for information exchange 

on a multi-employer project. This test 

led to an increase in the estimated 

annualized compliance costs of $9.3 

million, or of about 17 percent. In a 

third sensitivity test, OSHA increased 

by 100 percent its estimate of the time 

needed to issue entry permits and verify 

the safety of entries into confined 

spaces, which resulted in an increase in 

the estimated annualized compliance 

costs of $2.3 million, or of about 4 

percent. Finally, in a fourth sensitivity 

test, when OSHA increased by 100 

percent the estimate of the time devoted 

to training entrants and attendants, the 

estimated compliance costs rose by $1.5 

million, or by about 3 percent. 

In addition, OSHA examined the 

effect of a change in the discount rate on 

annualized costs and benefits. Changing 

the discount rate from 7 percent, used 

in the base case, to 3 percent lowered 

the estimated costs of the final rule from 

$60.3 million to $59.2 million per year 

(while leaving estimated annual benefits 

unaffected), thereby increasing the 

estimate of net benefits by $1 million. 

OSHA also performed a sensitivity 

test on an input parameter used to 

estimate the benefits of the final rule. In 

particular, OSHA assumed that there 

were 100 injuries for every fatality 

instead of 150 injuries per fatality, the 

value used in the main analysis. As a 

result, the estimated benefits of the final 

rule fell by $15.6 million, or by about 

17 percent. 

In conclusion, these sensitivity tests 

demonstrate that even with relatively 

large variations in the input parameters, 

there are no large changes in the 

estimates of compliance costs or 

benefits. 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25513 

TABLE IV–22—SENSITIVITY TESTS

Variable OSHA’s Best estimate Change in 

variable 

Change in 

annualized costs 

Percentage 

change in 

annualized 

costs 

Annualized 

costs Net benefit 

Cost Parameters 

OSHA’s Best Estimate of Total Annualized Costs $60.3 million ..... $33.3 million. 

Supervisor Time to 

Evaluate and Classify Confined 

Spaces.

Average of 12 minutes per 

confined space.

Increase by 

100 percent.

$0.7 million ....... 1 $61 million ........ $32.6 million. 

Time for Information 

Exchange on a 

Multi-employer 

Project.

Per project: 8 minutes of supervisor time for exchange 

information between host 

employer and controlling 

contractor, 20 minutes of 

supervisor time each for 

the controlling contractor, 

employee representative, 

and every entry employer, 

5 minutes of supervisor 

time each for the controlling contractor and 10 percent of other (non-entry) 

employers on the work 

site, and 10 minutes of supervisor time each for the 

controlling contractor and 

two other employers on the 

work site for coordinated 

entries.

Increase by 

100 percent.

$9.3 million ....... 17 $69.6 million ..... $24 million. 

Time to Issue Entry 

Permits and Verify 

Safety of Entries.

Per permit issued: 10 minutes of supervisor time and 

5 minutes of clerical time.

Increase by 

100 percent.

$2.3 million ....... 4 $62.6 million ..... $31 million. 

Per entry not requiring a permit: 5 minutes of supervisor time and 5 minutes of 

clerical time.

Employee Training ... Per project: 15 minutes of 

worker time and 1.5 minutes each of supervisor 

and clerical employee time 

for each entrant, 15 minutes of attendant time and 

1.5 minutes each of supervisor and clerical employee 

time for each attendant.

Increase by 

100 percent.

$1.5 million ....... 3 $61.8 million ..... $31.8 million. 

Discount Rate .......... 7 percent ............................... Change to 3 

percent.

¥$1 million ....... ¥2 $59.2 million ..... $34.3 million. 

Benefit Parameter 

OSHA’s Best Estimate of Total Annualized Benefits $93.6 million ..... $33.3 million. 

Number of injuries 

per fatality.

150 ........................................ 100 ................ ¥$15.6 million .. ¥17 $78 million ........ $17.7 million. 

Break-Even Analysis 

OSHA also performed sensitivity tests 

on two other parameters used to 

estimate the net costs and benefits of the 

proposed rule. However, for these tests, 

the Agency performed a break-even 

analysis that asked the extent to which 

the various cost and benefits inputs 

would have to vary for the costs to equal 

benefits. 

In the first break-even test addressing 

cost estimates, OSHA examined how 

much costs would have to increase for 

costs to equal benefits. This point would 

occur when costs increased by $33.3 

million, or 55 percent. 

In a second break-even test, on 

benefits, OSHA examined the reduction 

needed in the rule’s estimated aggregate 

benefits (in terms of avoided fatalities 

and injuries) for the costs to equal the 

benefits. The point would occur when 

OSHA’s estimates of the number of 

avoided fatalities and injuries fell by 59 

percent. The break-even point would, 

thus, require reducing the estimated 

benefits of the final rule by 2.18 

fatalities and 326 injuries prevented 

annually (relative to OSHA’s estimate of 

5.2 fatalities and 780 injuries prevented 

annually). 

mstockstill on DSK4VPTVN1PROD with RULES2

25514 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

In summary, according to these two 

break-even tests, there would have to be 

a fairly significant increase in costs or 

reduction in benefits for the rule to no 

longer produce positive net benefits. 

Further, OSHA notes that some of the 

other benefits of the rule are nonquantifiable, such as those benefits 

associated with making the general 

industry and construction provisions as 

compatible as possible. These benefits 

would increase the overall net benefits 

of the final rule. 

10. References 

ACCSH Confined Spaces Work Group 

(ACCSH, 1994). ‘‘Work Group Report: 

Confined Spaces,’’ submitted to the 

Advisory Committee on Construction 

Safety and Health, May 17, 1994. 

Available at: https://www.osha.gov/doc/

reference_documents.html. 

Ahluwalia, G. (Ahluwalia, 2003). 

‘‘Subcontracting and Channels of 

Distribution,’’ Housing Economics, May 

2003. (Attached to OSHA–2007–0026– 

0117.) 

Ashford, N. A., 2006. ‘‘Workers’ 

Compensation,’’ in Environmental and 

Occupational Medicine, Fourth Edition, 

W.N. Rom and S. Markowitz (Eds.), 

Lippincott-Raven Publishers, 

Philadelphia: pp. 1712–1719. 

CONSAD Research Corporation (CONSAD, 

2005). ‘‘Rulemaking Support for the 

Proposed OSHA Confined Space 

Standard for Construction,’’ prepared for 

the U.S. Department of Labor, 

Occupational Safety and Health 

Administration, Office of Regulatory 

Analysis, June 8, 2005. (OSHA–2007– 

0026–003.) 

Dong, X., et al. (Dong, et al., 2011). ‘‘Lifetime 

Risk of Occupational Injuries and 

Illnesses among Construction Workers,’’ 

American Public Health Association, 

Washington, DC, October 31, 2011. 

Hintermann, B., A. Alberini, and A. 

Markandya (Hinterman, Alberini, and 

Markandya, 2010). ‘‘Estimating the Value 

of Safety with Labour Market Data: Are 

the Results Trustworthy?,’’ Applied 

Economics, 42 (9): pp. 1085–1100, 2010. 

IRS (Internal Revenue Service), 2012. 

Publication 525, ‘‘Taxable and 

Nontaxable Income.’’ Available at: http:// 

www.irs.gov/uac/Publication-525,- 

Taxable-and-Nontaxable-Income--1. 

IRS (Internal Revenue Service), 2013. Topic 

751, ‘‘Social Security and Medicare 

Withholding Rates.’’ Available at: http:// 

www.irs.gov/taxtopics/tc751.html. 

Leigh, J. P., and J. P. Marcin, 2012. ‘‘Workers’ 

Compensation Benefits and Shifting 

Costs for Occupational Injury and 

Illness,’’ Journal of Occupational and 

Environmental Medicine, April, 54(4): 

pp. 445–50. 

NASI (National Academy of Social 

Insurance), 2012. ‘‘Workers’ 

Compensation: Benefits, Coverage, and 

Costs, 2010,’’ August. Available at http:// 

www.nasi.org/research/2012/reportworkers-compensation-benefitscoverage-costs-2010. 

NCCI (National Council on Compensation 

Insurance), 2013. ‘‘ABCs of Experience 

Rating.’’ Available at https://

www.ncci.com/NCCIMain/Education/

ExperienceRating/Pages/default.aspx. 

Neuhauser, F.W., S.S. Seabury, and J. 

Mendeloff, 2013. ‘‘The Impact of 

Experience Rating on Small Employers: 

Would Lowering the Threshold for 

Experience Rating Improve Safety?,’’ 

Rand Working Papers WR–955. 

Newsletter discussion available at: 

http://www.rand.org/jie/centers/

workplace-health-safety/projects/

experience-rating.html. Full paper at: 

http://www.rand.org/pubs/working_

papers/WR955.html. 

Ruser, J.W. (Ruser, 2008). ‘‘Examining 

Evidence on Whether BLS Undercounts 

Workplace Injuries and Illnesses,’’ 

Monthly Labor Review, 131 (8): pp. 20– 

32, August 2008. 

Small Business Advocacy Review Panel for 

the OSHA Confined Spaces in 

Construction Draft Standard (SBREFA 

Panel, 2003). ‘‘Report of the Small 

Business Advocacy Review Panel on the 

Draft OSHA Standard for Confined 

Spaces in Construction,’’ submitted to 

Mr. John Henshaw, Assistant Secretary 

for Occupational Safety and Health, U.S. 

Department of Labor, Occupational 

Safety and Health Administration, 

November 24, 2003. (Exhibit 2–1 in 

OSHA docket S107A.) 

Seong, S.K., and J. Mendeloff, 2004. 

‘‘Assessing the Accuracy of OSHA’s 

Projections of the Benefits of New Safety 

Standards,’’ American Journal of 

Industrial Medicine, 45, 4: 2004. 

Sunstein, C., 2004. ‘‘Valuing Life: A Plea for 

Disaggregation,’’ Duke Law Journal, 54: 

pp. 385–445. 

Thaler, R., and S. Rosen, 1976. ‘‘The Value 

of Saving a Life: Evidence from the Labor 

Market,’’ in Household Production and 

Consumption, N E. Terleckyj (ed.), New 

York: Columbia University Press, 1976: 

pp. 265–298. 

U.S. Bureau of Labor Statistics (BLS 2009A). 

Table A–1, ‘‘Fatal Occupational Injuries 

by Industry, Event and Exposure, 2009.’’ 

Available at: http://www.bls.gov/iif/

oshwc/cfoi/cftb0241.pdf. 

U.S. Bureau of Labor Statistics (BLS 2009B). 

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://bls.gov/

news.release/archives/osh2_

11092010.pdf. 

U.S. Commerce Department, Bureau of 

Economic Analysis. ‘‘GDP Price Deflator 

2002 to 2009.’’ Available at: http://

www.bea.gov/iTable/

iTable.cfm?ReqID=9&step=1#reqid=

9&step=3&isuri=1&903=13, downloaded 

on 11/9/2010. 

U.S. Census Bureau. ‘‘Annual Value of 

Construction Put in Place 2002–2009.’’ 

Available at: http://www.census.gov/

construction/c30/c30index.html. 

U.S. Environmental Protection Agency (EPA, 

2000). ‘‘Guidelines for Preparing 

Economic Analyses,’’ EPA 240–R–00– 

003: September 2000. Available at: 

http://yosemite1.epa.gov/ee/epa/eed.nsf/

Webpages/Guidelines.html; also 

available in OSHA Docket No. H–0054a, 

Exhibit 35–334. 

U.S. Internal Revenue Service (IRS, 2013), 

2010. ‘‘Corporation Source Book,’’ 

Publication 1053. Available at: < http:// 

www.irs.gov/uac/SOI-Tax-StatsCorporation-Source-Book:-U.S.-Totaland-Sectors-Listing> Accessed by OSHA 

on 4/19/2013. 

U.S. Office of Management and Budget 

(OMB, 2003). ‘‘To the Heads of Executive 

Agencies and Establishments; Subject: 

Regulatory Analysis,’’ Circular A–4: 

September 17, 2003. Available at: http:// 

www.whitehouse.gov/sites/default/files/

omb/assets/regulatory_matters_pdf/a4.pdf. 

Urban Institute/Brookings, 2012. ‘‘Historical 

Average Federal Tax Rates for All 

Households,’’ Tax Policy Center, 

October. Available at: http://

www.taxpolicycenter.org/taxfacts/

displayafact.cfm?Docid=456. 

Viscusi, K., and J. Aldy (Viscusi and Aldy, 

2003). ‘‘The Value of a Statistical Life: A 

Critical Review of Market Estimates 

Throughout the World,’’ The Journal of 

Risk and Uncertainty, 27 (1): pp. 5–76, 

August 2003. 

Viscusi, W. Kip, Wesley A. Magat, and Anne 

Forrest. ‘‘Altruistic and Private Valuation 

of Risk Reduction.’’ Journal of Policy 

Analysis and Management 7(2): pp. 227– 

245, 1988. 

Workers Compensation Research Institute 

(WCRI, 1987). Workplace Injuries— 

Economic and Noneconomic 

Consequences for Workers, 3 (7): 

Cambridge, MA, July 1987. 

C. Office of Management and Budget 

Review Under the Paperwork Reduction 

Act of 1995 

The final Confined Spaces in 

Construction Standard contains 

collection of information requirements 

(paperwork) that are subject to review 

by the Office of Management and 

Budget (OMB) under the Paperwork 

Reduction Act of 1995 (PRA–95) (44 

U.S.C. 3501 et seq.) In accordance with 

44 U.S.C. 3506(c)(2) of the PRA–95, 

OSHA solicited public comments on the 

Confined Spaces in Construction (29 

CFR 1926, subpart AA) Information 

Collection Request (ICR) (paperwork 

burden hour and cost analysis) for the 

proposed rule. The Department also 

submitted this ICR to OMB for review in 

accordance with 44 U.S.C. 3507(d) on 

November 28, 2007. On February 15, 

2008, OMB authorized the Department 

of Labor to use OMB Control Number 

1218–0258 in future paperwork 

submissions involving this rulemaking. 

OMB commented, ‘‘This OMB action is 

not an approval to conduct or sponsor 

an information collection under the 

Paperwork Reduction Act of 1995.’’ 

OMB also stated that ‘‘OMB will review 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25515 

the associated collection requirements 

in parallel with the final regulation 

prior to approval.’’ 

OSHA received no public comments 

on the proposed ICR. However, a 

number of comments received in 

response to the Notice of Proposed 

Rulemaking (NPRM), described earlier 

in this preamble, contained information 

relevant to the burden-hour and cost 

analysis that OSHA considered when it 

developed the revised ICR associated 

with this final rule. 

In accordance with 44 U.S.C. 3507 of 

the PRA–95, OSHA requested OMB 

approval of the collection of information 

requirement described below. A copy of 

the ICR is available at http://

www.reginfo.gov. OMB is preapproving 

the collection of information 

requirements under OMB Control 

Number 1218–0258 and they will take 

effect on the same date as other parts of 

this rule. 

The Department of Labor notes that, 

under the PRA–95, a Federal agency 

cannot conduct or sponsor a collection 

of information unless OMB approves it 

and the collection of information 

displays a currently valid OMB control 

number. Also, notwithstanding any 

other provision of law, no employer 

shall be subject to penalty for failing to 

comply with a collection of information 

if the collection of information does not 

display a currently valid OMB control 

number. 

The collection of information 

requirements in this final rule impose 

duties on employers to communicate, 

produce and maintain records, and take 

other measures to protect employees 

from confined-space hazards in 

construction. These provisions are 

necessary to protect the health and 

safety of employees who are engaged in 

construction work in confined spaces. 

Accordingly, each employer engaged in 

construction who has employees who 

enter a permit-required confined space 

(PRCS) must have, as applicable, the 

following information posted in 

accordance with the standard or on file 

and available at the job site: Danger 

signs and other means of notification of 

PRCSs; a written PRCS program; entry 

permits that document procedures 

necessary for safe permit-entry 

operations and that include 

atmospheric-testing and monitoring 

information and results; signed 

certifications and supporting 

documentation for entry under alternate 

procedures, including documentation of 

the hazard determinations and the 

methods used to protect employees from 

these hazards; written approval from a 

professional engineer for use of jobmade hoisting systems when entering 

spaces under alternate procedures, 

certifications documenting 

reclassification of the space; a Safety 

Data Sheet or similar written 

information to provide to medical 

facilities treating exposed employees; 

and training records for employees. 

Entry employers must retain each 

canceled entry permit for at least 1 year 

to facilitate the review of the permitrequired confined space program and 

maintain employee training records for 

the period of time the employee is 

employed by that employer. Employers 

must make all information required to 

be developed under the standard 

available for review by the affected 

employees and their authorized 

representatives, and provide access to 

documents required to be retained by 

the standard to OSHA for compliance 

purposes. Additionally, controlling 

contractors have responsibilities to 

obtain and disseminate information 

about the permit space, host employers 

have a duty to disclose known 

information about permit spaces, and 

each employer engaged in construction 

who has an employee enter a PRCS 

must share information with the 

controlling contractor and must ensure 

that its attendants, authorized entrants, 

supervisors and rescue teams or services 

communicate as required by the 

standard. An employer’s failure to 

generate and disclose the information 

required in this standard will affect 

significantly the Agency’s effort to 

control and reduce injuries and fatalities 

related to confined spaces in 

construction. 

Table IV–23 below identifies and 

describes the collection of information 

requirements contained in the final rule. 

As discussed in Section II.B. of the 

preamble, OSHA is finalizing a 

Confined Spaces in Construction 

standard that more closely resembles 

the general industry standard than did 

the NPRM. OSHA’s rationale for the 

need to collect information is set forth 

in the general discussion in the 

Background section of the preamble, 

and in the discussion of each of these 

specific provisions in Section III of the 

preamble. As noted in the preamble 

discussions of the specific sections of 

the standard, the new information 

collection requirements not contained 

in the NPRM include requirements for 

written PRCS programs, written 

approval for job-made hoisting systems 

used when entering spaces under 

alternate procedures, and consultation 

with affected employees and their 

authorized representatives in the 

development and implementation of the 

PRCS program. In addition, while the 

proposed rule required host employers 

to communicate directly with entry 

employers, OSHA assigned the 

controlling contractor that function in 

the final rule. Table IV–23 identifies the 

collection of information requirements 

contained in the final rule as follows: 

TABLE IV–23—COLLECTION OF INFORMATION REQUIREMENTS OF THE FINAL STANDARD

29 CFR 1926.1203(b)(1) and (b)(2) .......... If the workplace contains a PRCS, employers must inform employees by posting a danger sign, and 

inform the employees’ authorized representatives and controlling contractor in a manner other 

than posting, of the existence and location of, and the danger posed by, the PRCS. 

29 CFR 1926.1203(d), 29 CFR 

1926.1204, 29 CFR 1926.1211(a)(5), 

and 29 CFR 1926.1212(a).

If an employer decides that employees it directs will enter a PRCS, the employer must have and implement a written permit-space program at the construction site that complies with § 1926.1204 of 

this standard. The employer must make the written program available prior to, and during, entry 

operations for inspection by employees and their authorized representatives. Entry employers 

must document a number of necessary procedures, including: Safe PRCS entry operations; summoning rescue and emergency services (including the development of a rescue plan for employers who have in-house rescue teams), rescuing entrants from PRCSs, providing necessary emergency services to rescued employees, and preventing unauthorized personnel from attempting a 

rescue; coordinating entry operations; and for concluding entry. Employers must consult with affected employees and their authorized representatives on all aspects of the PRCS program. 

29 CFR 1926.1203(e)(1)(v), (e)(2)(viii) and 

(e)(2)(ix).

Before entry under alternate procedures, employers must document the determinations and supporting data required by paragraphs § 1910.1204(e)(1)(i)–(e)(1)(iii) of this standard. The employer 

must make the documented determinations and supporting data available to each employee entering the space or to that employee’s authorized representative. A job-made hoisting system is 

permissible if it is approved for personnel hoisting by a registered professional engineer, in writing, prior to use. 

mstockstill on DSK4VPTVN1PROD with RULES2

25516 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

TABLE IV–23—COLLECTION OF INFORMATION REQUIREMENTS OF THE FINAL STANDARD—Continued 

29 CFR 1926.1203(g)(3) ........................... Entry employer(s) must document and certify the basis for determining the elimination or isolation of 

all hazards in a PRCS when reclassifying the space. The certification must be made available to 

each employee entering the space or to that employee’s authorized representative. 

29 CFR 1926.1203(h)(1)(i)–(h)(1)(iii), 

(h)(2)(i), (h)(5)(iii), and (i).

The host employer and controlling contractor must exchange PRCS information before and after 

entry operations. 

29 CFR 1926.1203(h)(2)(ii), and (i) ........... The controlling contractor must provide PRCS information to non-entry employers before entry operations begin. 

29 CFR 1926.1203(h)(2)(ii), (h)(3)(i)– 

(h)(3)(ii), (h)(5)(i)–(h)(5)(ii), and (i).

The controlling contractor and the entry employer(s) must exchange PRCS information before and 

after entry operations. 

29 CFR 1926.1203(h)(4)(i), (h)(4)(ii), and 

(i).

The controlling contractor and entry employer(s) must each coordinate entry operations: When more 

than one entity performs PRCS entry at the same time; or when performing permit-space entry 

while at the same time any activities are performed that could foreseeably result in a hazard in 

the PRCS. 

29 CFR 1926.1204(e)(6) ........................... Employers must provide results of any testing conducted under § 1926.1204 to employees or employees’ authorized representative. 

29 CFR 1926.1204(m) and (n) .................. Entry employers must review entry operations when the measures taken under the permit-space 

program may not protect employees, and revise the program to correct deficiencies found to exist 

before subsequent entries are authorized. Entry employers must review the permit-space program, using the canceled permits retained under § 1926.1205(f) of this standard, within 1 year 

after each entry, and revise the program as necessary to protect employees participating in entry 

operations from permit-space hazards. Employers may perform a single annual review covering 

all entries performed during a 12-month period. 

29 CFR 1926.1205(a) and (c), and 29 

CFR 1926.1206.

Each entry employer must document the completion of measures required by § 1926.1204(c) of this 

standard by preparing an entry permit and making it available by posting or other equally effective 

means to authorized entrants or their authorized representatives before entry is authorized. Employers must identify on the permit specific information such as: The purpose of the entry, date 

and authorized duration of the permit, authorized entrants, means of detecting atmospheric hazards, attendants, entry supervisors, hazards of the PRCS, measures used to isolate the PRCS 

and to control permit-space hazards before entry, acceptable entry conditions, results of tests and 

monitoring performed under § 1926.1204(e) of this standard and the names or initials of the testers and an indication of when the tests were performed, rescue and emergency services (such as 

the equipment to use and the numbers to call) and the means to summon those services, communication procedures, equipment, any additional permits issued previously to authorize work in 

the permit space, and any other information necessary, given the circumstances of the particular 

confined space to ensure employee safety. 

29 CFR 1926.1205(b) and 29 CFR 

1926.1210(b).

Before entry begins, the entry supervisor identified on the permit must sign the entry permit, and 

verify, by checking that the appropriate entries have been made on the permit, that all tests specified by the permit have been conducted and that all procedures and equipment specified by the 

permit are in place before endorsing the permit and allowing entry to begin. 

29 CFR 1926.1205(f) ................................. Entry employers must retain each canceled entry permit for at least 1 year to facilitate the review of 

the permit-required confined space program required by § 1926.1204(n) of this standard. The employer must note on the permit any problems encountered during an entry operation and make 

appropriate revisions to the permit-space program. 

29 CFR 1926.1207(d) ................................ Employers must maintain training records containing each employee’s name, the name of the trainers, and the dates of training to show completion of the training required by § 1926.1207(a) 

through (c) of this standard. The documentation must be available for inspection by employees 

and their authorized representatives for the period of time the employee is employed by that employer. 

29 CFR 1926.1208(c) and (d) ................... Entry employers must ensure that authorized entrants: Communicate with the attendant as necessary to enable the attendant to assess entrant status and to enable the attendant to alert entrants of the need to evacuate the space as required by § 1926.1209(f) of this standard, and to 

alert the attendant whenever there is any warning sign or symptom of exposure to a dangerous 

situation, or the entrant detects a prohibited condition. 

29 CFR 1926.1209(e), (f), (g), and (h)(1)– 

(h)(3).

Entry employers must ensure that attendants: Communicate with authorized entrants and order 

them to evacuate the permit space under specified conditions; summon PRCS rescue services as 

soon as necessary; warn unauthorized persons to stay away from, or to exit, PRCSs; and informs 

authorized entrants and entry supervisors of any unauthorized PRCS entry. 

29 CFR 1926.1210(d) and 29 CFR 

1926.1211(c).

Entry employers must ensure that each entry supervisor verifies that rescue services are available, 

the means for summoning them are operable, and the employer will be notified as soon as the 

services become unavailable. If the employer uses non-entry rescue, the employer must confirm, 

prior to entry, that emergency assistance will be available in the event that non-entry rescue fails. 

29 CFR 1926.1211(a)(1) and (a)(2) .......... Employers who designate rescue and emergency services must evaluate a prospective rescuer’s 

ability to respond to a rescue summons in a timely manner, considering the hazard(s) identified, 

and evaluate a prospective rescue service’s ability to function proficiently with rescue-related 

tasks and equipment while rescuing entrants from the particular PRCS identified. 

29 CFR 1926.1211(a)(4) ........................... Employers who designate rescue and emergency services must inform each rescue team or service 

of the hazards they may confront when called on to perform rescue at the site. 

29 CFR 1926.1211(d) ................................ If an injured entrant is exposed to a substance for which the employer must keep a Safety Data 

Sheet or other similar written information at the worksite, the employer must make that SDS or 

written information available to the medical facility treating the exposed entrant. 

29 CFR 1926.1212(b) ................................ Employers must make available to each affected employee and his/her authorized representatives 

all information they must develop under this standard. 

29 CFR 1926.1213 .................................... Employers must disclose to the Secretary of Labor or the Secretary’s designee all documents this 

standard requires them to retain. 

The final rule imposes a program 

adjustment of 654,514 new burden 

hours to 30,066 constructionemployment establishments after the 

effective date of the final standard. 

Title of Collection: Confined Spaces in 

Construction (29 CFR 1926 subpart AA). 

OMB Control Number: 1218–0258. 

Affected Public: Businesses or other 

for-profits. 

Total Estimated Number of 

Respondents: 30,066. 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25517 

Total Estimated Number of 

Responses: 4,093,825. 

Total Estimated Annual Time Burden: 

654,514 hours. 

Total Estimated Annual Other Costs 

Burden: $1,017,859. 

D. Federalism 

OSHA reviewed this final rule in 

accordance with the most recent 

Executive Order (E.O.) on Federalism 

(E.O. 13132, 64 FR 43255 (Aug. 10, 

1999)). This E.O. requires that Federal 

agencies, to the extent possible, refrain 

from limiting State policy options, 

consult with States prior to taking any 

actions that would restrict State policy 

options, and take such actions only 

when clear constitutional authority 

exists and the problem is national in 

scope. E.O. 13132 provides for 

preemption of State law only with the 

expressed consent of Congress. Federal 

agencies must limit any such 

preemption to the extent possible. 

Under Section 18 of the OSH Act, 

Congress expressly provides that States 

may adopt, with Federal approval, a 

plan for the development and 

enforcement of occupational safety and 

health standards; States that obtain 

Federal approval for such a plan are 

referred to as ‘‘State-Plan States’’ (29 

U.S.C. 667). Occupational safety and 

health standards developed by StatePlan States must be at least as effective 

in providing safe and healthful 

employment and places of employment 

as the Federal standards. While OSHA 

promulgated this final rule to protect 

employees in every State, Section 

18(c)(2) of the Act permits State-Plan 

States and Territories to develop and 

enforce their own standards for 

confined spaces work provided that 

those requirements are at least as 

effective in providing safe and healthful 

employment and places of employment 

as the requirements in this final rule. 

In summary, this final rule complies 

with E.O. 13132. In States without 

OSHA-approved State Plans, this final 

rule limits State policy options in the 

same manner as every standard 

promulgated by OSHA. In States with 

OSHA-approved State Plans, this 

rulemaking does not significantly limit 

State policy options. 

E. State-Plan States 

When Federal OSHA promulgates a 

new standard or more stringent 

amendment to an existing standard, the 

27 states and U.S. Territories with their 

own OSHA-approved occupational 

safety and health plans must amend 

their standards to reflect the new 

standard or amendment, or show OSHA 

why such action is unnecessary, for 

example, because an existing state 

standard covering this area is ‘‘at least 

as effective’’ as the new Federal 

standard or amendment (29 CFR 

1953.5(a)). The state standard must be at 

least as effective as the final Federal rule 

and must be completed within 6 months 

of the promulgation date of the final 

Federal rule. When OSHA promulgates 

a new standard or amendment that does 

not impose additional or more stringent 

requirements than an existing standard, 

State-Plan States do not have to amend 

their standards, although the Agency 

may encourage them to do so. 

The 21 states and 1 U.S. Territory 

with OSHA-approved occupational 

safety and health plans covering private 

employers and state and local 

government employees are: Alaska, 

Arizona, California, Hawaii, Indiana, 

Iowa, Kentucky, Maryland, Michigan, 

Minnesota, Nevada, New Mexico, North 

Carolina, Oregon, Puerto Rico, South 

Carolina, Tennessee, Utah, Vermont, 

Virginia, Washington, and Wyoming. In 

addition, four states and one U.S. 

Territory have OSHA-approved State 

Plans that apply to state and local 

government employees only: 

Connecticut, Illinois, New Jersey, New 

York, and the Virgin Islands. 

The requirements in this final rule are 

more stringent than all or most State 

plans for the work they cover. However, 

as discussed previously in this 

preamble, OSHA believes that StatePlan States that have standards 

applicable to construction work in 

confined spaces that are similar to 29 

CFR 1910.146, the general industry 

standard for confined spaces, 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. 

OSHA believes that the record warrants 

these changes so as to provide 

construction employees with the same 

level of protection afforded to them by 

this final rule. Therefore, states and 

territories with OSHA-approved State 

Plans must adopt comparable 

amendments to their standards within 6 

months of the promulgation date of this 

rule unless they demonstrate that such 

amendments are not necessary because 

their existing standards are at least as 

effective in protecting workers as this 

final rule. Each State Plan State’s 

existing requirements will continue to 

be in effect until that State adopts the 

required revisions. 

F. Unfunded Mandates Reform Act 

OSHA reviewed this final rule 

according to the Unfunded Mandates 

Reform Act of 1995 (UMRA) (2 U.S.C. 

1501 et seq.) and E.O. 13132 (64 FR 

43255 (Aug. 10, 1999)). As discussed in 

the Final Economic and Regulatory 

Flexibility Analysis for this rulemaking, 

OSHA estimates that compliance with 

the rule will require expenditures of less 

than $100 million per year by all 

affected employers. Therefore, this rule 

is not a significant regulatory action 

within the meaning of Section 202 of 

UMRA (2 U.S.C. 1532). 

OSHA standards do not apply to state 

or local governments except in states 

that elect voluntarily to adopt a State 

Plan approved by the Agency. 

Consequently, this final rule does not 

meet the definition of a ‘‘Federal 

intergovernmental mandate’’ (2 U.S.C. 

658(5)). 

Therefore, for the purposes of UMRA, 

the Agency certifies that this final rule 

does not mandate that state, local, or 

Tribal governments adopt new, 

unfunded regulatory obligations or 

increase expenditures by the private 

sector of more than $100 million in any 

year. 

G. Consultation and Coordination With 

Indian Tribal Governments 

OSHA reviewed this final rule in 

accordance with Executive Order 13175, 

(65 FR 67249 (Nov. 9, 2000)) and 

determined that it does not have ‘‘tribal 

implications’’ as defined in that order. 

The final rule does not have substantial 

direct effects on one or more Indian 

tribes, on the relationship between the 

Federal government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

government and Indian tribes. 

H. Applicability of Existing Consensus 

Standards 

Section 6(b)(8) of the Occupational 

Safety and Health Act of 1970 (29 U.S.C. 

655(b(8)) requires OSHA to explain why 

the rule adopted will better effectuate 

the purposes of the Act than relevant 

national consensus standards. The 

American National Standards Institute 

(ANSI) Z117.1 consensus standard 

(‘‘Safety Requirements for Confined 

Spaces’’) contains provisions addressing 

safety in confined spaces. The Agency 

consulted this standard in developing 

its proposed rule for confined spaces in 

construction, as well as in developing 

its general industry confined spaces 

standard. The Summary and 

Explanation section of this rule 

discusses OSHA’s consideration of the 

requirements contained in ANSI Z– 

117.1 and other ANSI standards. 

The Agency did not adopt the ANSI 

standard as the OSHA confined spaces 

in construction standard for several 

reasons. First, the Agency believes that 

the ANSI standard concentrates on 

confined spaces with oxygen-deficient 

mstockstill on DSK4VPTVN1PROD with RULES2

25518 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

atmospheres, or with potential 

overexposures to air contaminants, 

without adequately addressing the full 

range of hazards that can occur in a 

confined space. In this regard, OSHA 

concurs with the findings it published 

in the preamble to the general industry 

confined spaces standard (58 FR 4464). 

After reviewing relevant publications by 

the National Institute for Occupational 

Safety and Health, the ANSI Z117.1 

standards (both the 1989 and the 1977 

editions), and the relevant guidelines 

developed by other organizations, the 

Agency decided to diverge from the 

approach used by those standardsdevelopment organizations because 

their documents do not provide 

sufficient guidance for employers to 

distinguish among the several types of 

confined space hazards they may 

encounter. Second, OSHA concludes 

that the structure and organization of 

the ANSI standard is not sufficiently 

user-friendly for small businesses, 

especially those that rarely deal with 

confined spaces. Third, OSHA finds that 

the ANSI standard does not adequately 

address construction-specific hazards, 

particularly where multiple employers 

are working in or around permit spaces. 

Fourth, OSHA notes that, in most 

instances, the wording of the provisions 

in these ANSI standards needed 

revision to improve enforceability, 

clarity, and ease of use. For example, 

much of the information in the 

consensus standard is presented as 

suggestions or non-mandatory guidance 

rather than enforceable imperative 

commands. Finally, most commenters 

expressed a preference for a rule that 

was similar to the general industry 

confined spaces standard. Agency 

incorporation of consensus standards 

can often facilitate rulemaking by 

avoiding duplicative Agency efforts and 

preventing potential confusion in the 

affected industries, but the widespread 

use of OSHA’s general industry 

confined spaces standard suggests that, 

in this area, the Agency will be better 

able to facilitate worker safety and 

health by basing the new construction 

standard on the general industry 

standard rather than incorporating the 

ANSI standard. 

List of Subjects in 29 CFR Part 1926 

Confined space, Construction 

industry, Occupational safety and 

health, Permit space, Safety. 

Authority and Signature 

David Michaels, Ph.D., MPH, 

Assistant Secretary of Labor for 

Occupational Safety and Health, U.S. 

Department of Labor, 200 Constitution 

Ave. NW., Washington, DC 20210, 

authorized the preparation of this 

document. OSHA is issuing this final 

rule under the following authorities: 29 

U.S.C. 653, 655, 657; 40 U.S.C. 3701 et 

seq.; 5 U.S.C. 553; Secretary of Labor’s 

Order No. 1–2012 (77 FR 3912, Jan. 25, 

2012); and 29 CFR part 1911. 

Signed at Washington, DC, on April 8, 

2015. 

David Michaels, 

Assistant Secretary of Labor for Occupational 

Safety and Health. 

Amendments to Standards 

For the reasons stated in the preamble 

of this rule, the Agency is amending 29 

CFR part 1926 as follows: 

PART 1926—[AMENDED] 

Subpart C—General Safety and Health 

Provisions 

■ 1. The authority citation for subpart C 

of 29 CFR part 1926 is revised to read 

as follows: 

Authority: 40 U.S.C. 3701 et seq.; 29 U.S.C. 

653, 655, 657; Secretary of Labor’s Order No. 

12–71 (36 FR 8754), 8–76 (41 FR 25059), 9– 

83 (48 FR 35736), 6–96 (62 FR 111), 5–2007 

(72 FR 31160), or 1–2012 (77 FR 3912) as 

applicable; and 29 CFR part 1911. 

§ 1926.21 [Amended] 

■ 2. In § 1926.21, paragraph (b)(6) is 

removed. 

Subpart V—Electric Power 

Transmission and Distribution 

■ 3. The authority citation for subpart V 

of part 1926 continues to read as 

follows: 

Authority: 40 U.S.C. 3701 et seq.; 29 U.S.C. 

653, 655, 657; Secretary of Labor’s Order No. 

1–2012 (77 FR 3912); and 29 CFR part 1911. 

■ 4. Amend § 1926.953 by revising 

paragraphs (a) and (g) and the note at 

the end of the section to read as follows: 

§ 1926.953 Enclosed spaces. 

(a) General. This section covers 

enclosed spaces that may be entered by 

employees. It does not apply to vented 

vaults if the employer makes a 

determination that the ventilation 

system is operating to protect employees 

before they enter the space. This section 

applies to routine entry into enclosed 

spaces. If, after the employer takes the 

precautions given in this section and in 

§ 1926.965, the hazards remaining in the 

enclosed space endanger the life of an 

entrant or could interfere with an 

entrant’s escape from the space, then 

entry into the enclosed space must meet 

the permit space entry requirements of 

subpart AA of this part. For routine 

entries where the hazards remaining in 

the enclosed space do not endanger the 

life of an entrant or interfere with an 

entrant’s escape from the space, this 

section applies in lieu of the permitspace entry requirements contained in 

§§ 1926.1204 through 926.1211. 

* * * * * 

(g) Hazardous atmosphere. Employees 

may not enter any enclosed space while 

it contains a hazardous atmosphere, 

unless the entry conforms to the 

confined spaces in construction 

standard in subpart AA of this part. 

* * * * * 

Note to § 1926.953.: Entries into enclosed 

spaces conducted in accordance with the 

permit space entry requirements of subpart 

AA of this part are considered as complying 

with this section. 

■ 5. Amend § 1926.968 by adding a note 

to the definition for ‘‘Enclosed spaces’’ 

to read as follows: 

§ 1926.968 Definitions. 

* * * * * 

Enclosed space. * * * 

Note to the definition of ‘‘Enclosed space’’. 

The Occupational Safety and Health 

Administration does not consider spaces that 

are enclosed but not designed for employee 

entry under normal operating conditions to 

be enclosed spaces for the purposes of this 

subpart. Similarly, the Occupational Safety 

and Health Administration does not consider 

spaces that are enclosed and that are 

expected to contain a hazardous atmosphere 

to be enclosed spaces for the purposes of this 

subpart. Such spaces meet the definition of 

permit spaces in subpart AA of this part, and 

entry into them must conform to that 

standard. 

* * * * * 

■ 6. Subpart AA is added to read as 

follows: 

Subpart AA—Confined Spaces in 

Construction 

Sec. 

1926.1200 [Reserved] 

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 and emergency services. 

1926.1212 Employee participation. 

1926.1213 Provision of documents to 

Secretary. 

Authority: 40 U.S.C. 3701 et seq.; 29 U.S.C. 

653, 655, 657; Secretary of Labor’s Order No. 

1–2012 (77 FR 3912); and 29 CFR part 1911. 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25519 

§ 1926.1200 [Reserved] 

§ 1926.1201 Scope. 

(a) This standard sets forth 

requirements for practices and 

procedures to protect employees 

engaged in construction activities at a 

worksite with one or more confined 

spaces, subject to the exceptions in 

paragraph (b) of this section. 

Note to paragraph (a). Examples of 

locations where confined spaces may occur 

include, but are not limited to, the following: 

Bins; boilers; pits (such as elevator, escalator, 

pump, valve or other equipment); manholes 

(such as sewer, storm drain, electrical, 

communication, or other utility); tanks (such 

as fuel, chemical, water, or other liquid, solid 

or gas); incinerators; scrubbers; concrete pier 

columns; sewers; transformer vaults; heating, 

ventilation, and air-conditioning (HVAC) 

ducts; storm drains; water mains; precast 

concrete and other pre-formed manhole 

units; drilled shafts; enclosed beams; vessels; 

digesters; lift stations; cesspools; silos; air 

receivers; sludge gates; air preheaters; step up 

transformers; turbines; chillers; bag houses; 

and/or mixers/reactors. 

(b) Exceptions. This standard does not 

apply to: 

(1) Construction work regulated by 

subpart P of this part (Excavations). 

(2) Construction work regulated by 

subpart S of this part (Underground 

Construction, Caissons, Cofferdams and 

Compressed Air). 

(3) Construction work regulated by 

subpart Y of this part (Diving). 

(c) Where this standard applies and 

there is a provision that addresses a 

confined space hazard in another 

applicable OSHA standard, the 

employer must comply with both that 

requirement and the applicable 

provisions of this standard. 

§ 1926.1202 Definitions. 

The following terms are defined for 

the purposes of this subpart only: 

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. 

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 

§ 1926.1209. 

Authorized entrant means an 

employee who is authorized by the 

entry supervisor to enter a permit space. 

Barrier means a physical obstruction 

that blocks or limits access. 

Blanking or blinding means the 

absolute closure of a pipe, line, or duct 

by the fastening of 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. 

Competent person means one who is 

capable of identifying existing and 

predictable hazards in the surroundings 

or working conditions which are 

unsanitary, hazardous, or dangerous to 

employees, and who has the 

authorization to take prompt corrective 

measures to eliminate them. 

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. 

Control means the action taken to 

reduce the level of any hazard inside a 

confined space using engineering 

methods (for example, by ventilation), 

and then using these methods to 

maintain the reduced hazard level. 

Control also refers to the engineering 

methods used for this purpose. Personal 

protective equipment is not a control. 

Controlling Contractor is the 

employer that has overall responsibility 

for construction at the worksite. 

Note to the definition of ‘‘Controlling 

Contractor’’. If the controlling contractor 

owns or manages the property, then it is both 

a controlling employer and a host employer. 

Double block and bleed means the 

closure of a line, duct, or pipe by 

closing and locking or tagging two inline valves and by opening and locking 

or tagging a drain or vent valve in the 

line between the two closed valves. 

Early-warning system means the 

method used to alert authorized entrants 

and attendants that an engulfment 

hazard may be developing. Examples of 

early-warning systems include, but are 

not limited to: Alarms activated by 

remote sensors; and lookouts with 

equipment for immediately 

communicating with the authorized 

entrants and attendants. 

Emergency means any occurrence 

(including any failure of power, hazard 

control or monitoring equipment) or 

event, internal or external, to the permit 

space that could endanger entrants. 

Engulfment means the surrounding 

and effective capture of a person by a 

liquid or finely divided (flowable) solid 

substance that can be aspirated to cause 

death by filling or plugging the 

respiratory system or that can exert 

enough force on the body to cause death 

by strangulation, constriction, crushing, 

or suffocation. 

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 is considered 

to have occurred 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 any work 

activities are actually performed in the 

space. 

Entry Employer means any employer 

who decides that an employee it directs 

will enter a permit space. 

Note to the definition of ‘‘Entry 

Employer’’. 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. 

Entry permit (permit) means the 

written or printed document that is 

provided by the employer who 

designated the space a permit space to 

allow and control entry into a permit 

space and that contains the information 

specified in § 1926.1206. 

Entry rescue occurs when a rescue 

service enters a permit space to rescue 

one or more employees. 

Entry supervisor means the qualified 

person (such as the employer, foreman, 

or crew chief) responsible for 

determining if acceptable entry 

conditions are present at a permit space 

where entry is planned, for authorizing 

entry and overseeing entry operations, 

and for terminating entry as required by 

this standard. 

Note to the definition of ‘‘Entry 

supervisor’’. An entry supervisor also may 

serve as an attendant or as an authorized 

entrant, as long as that person is trained and 

equipped as required by this standard for 

each role he or she fills. Also, the duties of 

entry supervisor may be passed from one 

individual to another during the course of an 

entry operation. 

Hazard means a physical hazard or 

hazardous atmosphere. See definitions 

below. 

Hazardous atmosphere means an 

atmosphere that may expose employees 

to the risk of death, incapacitation, 

impairment of ability to self-rescue (that 

is, escape unaided from a permit space), 

injury, or acute illness from one or more 

of the following causes: 

(1) Flammable gas, vapor, or mist in 

excess of 10 percent of its lower 

flammable limit (LFL); 

(2) Airborne combustible dust at a 

concentration that meets or exceeds its 

LFL; 

Note to paragraph (2) of the definition of 

‘‘Hazardous atmosphere’’. This 

concentration may be approximated as a 

condition in which the combustible dust 

obscures vision at a distance of 5 feet (1.52 

meters) or less. 

mstockstill on DSK4VPTVN1PROD with RULES2

25520 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

(3) Atmospheric oxygen concentration 

below 19.5 percent or above 23.5 

percent; 

(4) Atmospheric concentration of any 

substance for which a dose or a 

permissible exposure limit is published 

in subpart D of this part (Occupational 

Health and Environmental Control), or 

in subpart Z of this part (Toxic and 

Hazardous Substances), and which 

could result in employee exposure in 

excess of its dose or permissible 

exposure limit; 

Note to paragraph (4) of the definition of 

‘‘Hazardous atmosphere’’. An atmospheric 

concentration of any substance that is not 

capable of causing death, incapacitation, 

impairment of ability to self-rescue, injury, or 

acute illness due to its health effects is not 

covered by this definition. 

(5) Any other atmospheric condition 

that is immediately dangerous to life or 

health. 

Note to paragraph (5) of the definition of 

‘‘Hazardous atmosphere’’. For air 

contaminants for which OSHA has not 

determined a dose or permissible exposure 

limit, other sources of information, such as 

Safety Data Sheets that comply with the 

Hazard Communication Standard, § 1926.59, 

published information, and internal 

documents can provide guidance in 

establishing acceptable atmospheric 

conditions. 

Host employer means the employer 

that owns or manages the property 

where the construction work is taking 

place. 

Note to the definition of ‘‘Host employer’’. 

If the owner of the property on which the 

construction activity occurs has contracted 

with an entity for the general management of 

that property, and has transferred to that 

entity the information specified in 

§ 1926.1203(h)(1), OSHA will treat the 

contracted management entity as the host 

employer for as long as that entity manages 

the property. Otherwise, OSHA will treat the 

owner of the property as the host employer. 

In no case will there be more than one host 

employer. 

Hot work means operations capable of 

providing a source of ignition (for 

example, riveting, welding, cutting, 

burning, and heating). 

Immediately dangerous to life or 

health (IDLH) means any condition that 

would interfere with an individual’s 

ability to escape unaided from a permit 

space and that poses a threat to life or 

that would cause irreversible adverse 

health effects. 

Note to the definition of ‘‘Immediately 

dangerous to life or health’’. Some 

materials—hydrogen fluoride gas and 

cadmium vapor, for example—may produce 

immediate transient effects that, even if 

severe, may pass without medical attention, 

but are followed by sudden, possibly fatal 

collapse 12–72 hours after exposure. The 

victim ‘‘feels normal’’ after recovery from 

transient effects until collapse. Such 

materials in hazardous quantities are 

considered to be ‘‘immediately’’ dangerous to 

life or health. 

Inerting means displacing the 

atmosphere in a permit space by a 

noncombustible gas (such as nitrogen) 

to such an extent that the resulting 

atmosphere is noncombustible. 

Note to the definition of ‘‘Intering’’. This 

procedure produces an IDLH oxygendeficient atmosphere. 

Isolate or isolation means the process 

by which employees in a confined space 

are completely protected against the 

release of energy and material into the 

space, and contact with a physical 

hazard, by such means as: Blanking or 

blinding; misaligning or removing 

sections of lines, pipes, or ducts; a 

double block and bleed system; lockout 

or tagout of all sources of energy; 

blocking or disconnecting all 

mechanical linkages; or placement of 

barriers to eliminate the potential for 

employee contact with a physical 

hazard. 

Limited or restricted means for entry 

or exit means a condition that has a 

potential to impede an employee’s 

movement into or out of a confined 

space. Such conditions include, but are 

not limited to, trip hazards, poor 

illumination, slippery floors, inclining 

surfaces and ladders. 

Line breaking means the intentional 

opening of a pipe, line, or duct that is 

or has been carrying flammable, 

corrosive, or toxic material, an inert gas, 

or any fluid at a volume, pressure, or 

temperature capable of causing injury. 

Lockout means the placement of a 

lockout device on an energy isolating 

device, in accordance with an 

established procedure, ensuring that the 

energy isolating device and the 

equipment being controlled cannot be 

operated until the lockout device is 

removed. 

Lower flammable limit or lower 

explosive limit means the minimum 

concentration of a substance in air 

needed for an ignition source to cause 

a flame or explosion. 

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 is performed 

in a periodic or continuous manner after 

the completion of the initial testing or 

evaluation of that space. 

Non-entry rescue occurs when a 

rescue service, usually the attendant, 

retrieves employees in a permit space 

without 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. 

Oxygen deficient atmosphere means 

an atmosphere containing less than 19.5 

percent oxygen by volume. 

Oxygen enriched atmosphere means 

an atmosphere containing more than 

23.5 percent oxygen by volume. 

Permit-required confined space 

(permit space) means a confined space 

that has one or more of the following 

characteristics: 

(1) Contains or has a potential to 

contain a hazardous atmosphere; 

(2) Contains a material that has the 

potential for engulfing an entrant; 

(3) Has an internal configuration such 

that an entrant could be trapped or 

asphyxiated by inwardly converging 

walls or by a floor which slopes 

downward and tapers to a smaller crosssection; or 

(4) Contains any other recognized 

serious safety or health hazard. 

Permit-required confined space 

program (permit space program) means 

the employer’s overall program for 

controlling, and, where appropriate, for 

protecting employees from, permit 

space hazards and for regulating 

employee entry into permit spaces. 

Physical hazard means an existing or 

potential hazard that can cause death or 

serious physical damage. Examples 

include, but are not limited to: 

Explosives (as defined by paragraph (n) 

of § 1926.914, definition of 

‘‘explosive’’); mechanical, electrical, 

hydraulic and pneumatic energy; 

radiation; temperature extremes; 

engulfment; noise; and inwardly 

converging surfaces. Physical hazard 

also includes chemicals that can cause 

death or serious physical damage 

through skin or eye contact (rather than 

through inhalation). 

Prohibited condition means any 

condition in a permit space that is not 

allowed by the permit during the period 

when entry is authorized. A hazardous 

atmosphere is a prohibited condition 

unless the employer can demonstrate 

that personal protective equipment 

(PPE) will provide effective protection 

for each employee in the permit space 

and provides the appropriate PPE to 

each employee. 

Qualified person means one who, by 

possession of a recognized degree, 

certificate, or professional standing, or 

who by extensive knowledge, training, 

and experience, has successfully 

demonstrated his ability to solve or 

resolve problems relating to the subject 

matter, the work, or the project. 

Representative permit space means a 

mock-up of a confined space that has 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25521 

entrance openings that are similar to, 

and is of similar size, configuration, and 

accessibility to, the permit space that 

authorized entrants enter. 

Rescue means retrieving, and 

providing medical assistance to, one or 

more employees who are in a permit 

space. 

Rescue service means the personnel 

designated to rescue employees from 

permit spaces. 

Retrieval system means the equipment 

(including a retrieval line, chest or full 

body harness, wristlets or anklets, if 

appropriate, and a lifting device or 

anchor) used for non-entry rescue of 

persons from permit spaces. 

Serious physical damage means an 

impairment or illness in which a body 

part is made functionally useless or is 

substantially reduced in efficiency. 

Such impairment or illness may be 

permanent or temporary and includes, 

but is not limited to, loss of 

consciousness, disorientation, or other 

immediate and substantial reduction in 

mental efficiency. Injuries involving 

such impairment would usually require 

treatment by a physician or other 

licensed health-care professional. 

Tagout means: 

(1) Placement of a tagout device on a 

circuit or equipment that has been 

deenergized, in accordance with an 

established procedure, to indicate that 

the circuit or equipment being 

controlled may not be operated until the 

tagout device is removed; and 

(2) The employer ensures that: 

(i) Tagout provides equivalent 

protection to lockout; or 

(ii) That lockout is infeasible and the 

employer has relieved, disconnected, 

restrained and otherwise rendered safe 

stored (residual) energy. 

Test or testing means the process by 

which the hazards that may confront 

entrants of a permit space are identified 

and evaluated. Testing includes 

specifying the tests that are to be 

performed in the permit space. 

Note to the definition of ‘‘Test or testing’’. 

Testing enables employers both to devise and 

implement adequate control measures for the 

protection of authorized entrants and to 

determine if acceptable entry conditions are 

present immediately prior to, and during, 

entry. 

Ventilate or ventilation means 

controlling a hazardous atmosphere 

using continuous forced-air mechanical 

systems that meet the requirements of 

§ 1926.57 (Ventilation). 

§ 1926.1203 General requirements. 

(a) Before it begins work at a worksite, 

each employer must ensure that a 

competent person identifies all confined 

spaces in which one or more of the 

employees it directs may work, and 

identifies each space that is a permit 

space, through consideration and 

evaluation of the elements of that space, 

including testing as necessary. 

(b) If the workplace contains one or 

more permit spaces, the employer who 

identifies, or who receives notice of, a 

permit space must: 

(1) Inform exposed employees by 

posting danger signs or by any other 

equally effective means, of the existence 

and location of, and the danger posed 

by, each permit space; and 

Note to paragraph (b)(1). A sign reading 

‘‘DANGER—PERMIT-REQUIRED CONFINED 

SPACE, DO NOT ENTER’’ or using other 

similar language would satisfy the 

requirement for a sign. 

(2) Inform, in a timely manner and in 

a manner other than posting, its 

employees’ authorized representatives 

and the controlling contractor of the 

existence and location of, and the 

danger posed by, each permit space. 

(c) Each employer who identifies, or 

receives notice of, a permit space and 

has not authorized employees it directs 

to work in that space must take effective 

measures to prevent those employees 

from entering that permit space, in 

addition to complying with all other 

applicable requirements of this 

standard. 

(d) If any employer decides that 

employees it directs will enter a permit 

space, that employer must have a 

written permit space program that 

complies with § 1926.1204 implemented 

at the construction site. The written 

program must be made available prior to 

and during entry operations for 

inspection by employees and their 

authorized representatives. 

(e) An employer may use the alternate 

procedures specified in paragraph (e)(2) 

of this section for entering a permit 

space only under the conditions set 

forth in paragraph (e)(1) of this section. 

(1) An employer whose employees 

enter a permit space need not comply 

with §§ 1926.1204 through 1206 and 

§§ 1926.1208 through 1211, provided 

that all of the following conditions are 

met: 

(i) The employer can demonstrate that 

all physical hazards in the space are 

eliminated or isolated through 

engineering controls so that the only 

hazard posed by the permit space is an 

actual or potential hazardous 

atmosphere; 

(ii) The employer can demonstrate 

that continuous forced air ventilation 

alone is sufficient to maintain that 

permit space safe for entry, and that, in 

the event the ventilation system stops 

working, entrants can exit the space 

safely; 

(iii) The employer develops 

monitoring and inspection data that 

supports the demonstrations required by 

paragraphs (e)(1)(i) and (ii) of this 

section; 

(iv) If an initial entry of the permit 

space is necessary to obtain the data 

required by paragraph (e)(1)(iii) of this 

section, the entry is performed in 

compliance with §§ 1926.1204 through 

1926.1211; 

(v) The determinations and 

supporting data required by paragraphs 

(e)(1)(i), (ii), and (iii) of this section are 

documented by the employer and are 

made available to each employee who 

enters the permit space under the terms 

of paragraph (e) of this section or to that 

employee’s authorized representative; 

and 

(vi) Entry into the permit space under 

the terms of paragraph (e)(1) of this 

section is performed in accordance with 

the requirements of paragraph (e)(2) of 

this section. 

Note to paragraph (e)(1). See paragraph (g) 

of this section for reclassification of a permit 

space after all hazards within the space have 

been eliminated. 

(2) The following requirements apply 

to entry into permit spaces that meet the 

conditions set forth in paragraph (e)(1) 

of this section: 

(i) Any conditions making it unsafe to 

remove an entrance cover must be 

eliminated before the cover is removed. 

(ii) When entrance covers are 

removed, the opening must be 

immediately guarded by a railing, 

temporary cover, or other temporary 

barrier that will prevent an accidental 

fall through the opening and that will 

protect each employee working in the 

space from foreign objects entering the 

space. 

(iii) Before an employee enters the 

space, the internal atmosphere must be 

tested, with a calibrated direct-reading 

instrument, for oxygen content, for 

flammable gases and vapors, and for 

potential toxic air contaminants, in that 

order. Any employee who enters the 

space, or that employee’s authorized 

representative, must be provided an 

opportunity to observe the pre-entry 

testing required by this paragraph. 

(iv) No hazardous atmosphere is 

permitted within the space whenever 

any employee is inside the space. 

(v) Continuous forced air ventilation 

must be used, as follows: 

(A) An employee must not enter the 

space until the forced air ventilation has 

eliminated any hazardous atmosphere; 

(B) The forced air ventilation must be 

so directed as to ventilate the immediate 

areas where an employee is or will be 

present within the space and must 

mstockstill on DSK4VPTVN1PROD with RULES2

25522 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

continue until all employees have left 

the space; 

(C) The air supply for the forced air 

ventilation must be from a clean source 

and must not increase the hazards in the 

space. 

(vi) The atmosphere within the space 

must be continuously monitored unless 

the entry employer can demonstrate that 

equipment for continuous monitoring is 

not commercially available or periodic 

monitoring is sufficient. If continuous 

monitoring is used, the employer must 

ensure that the monitoring equipment 

has an alarm that will notify all entrants 

if a specified atmospheric threshold is 

achieved, or that an employee will 

check the monitor with sufficient 

frequency to ensure that entrants have 

adequate time to escape. If continuous 

monitoring is not used, periodic 

monitoring is required. All monitoring 

must ensure that the continuous forced 

air ventilation is preventing the 

accumulation of a hazardous 

atmosphere. Any employee who enters 

the space, or that employee’s authorized 

representative, must be provided with 

an opportunity to observe the testing 

required by this paragraph (e)(2)(vi). 

(vii) If a hazard is detected during 

entry: 

(A) Each employee must leave the 

space immediately; 

(B) The space must be evaluated to 

determine how the hazard developed; 

and 

(C) The employer must implement 

measures to protect employees from the 

hazard before any subsequent entry 

takes place. 

(viii) The employer must ensure a safe 

method of entering and exiting the 

space. If a hoisting system is used, it 

must be designed and manufactured for 

personnel hoisting; however, a job-made 

hoisting system is permissible if it is 

approved for personnel hoisting by a 

registered professional engineer, in 

writing, prior to use. 

(ix) The employer must verify that the 

space is safe for entry and that the preentry measures required by paragraph 

(e)(2) of this section have been taken, 

through a written certification that 

contains the date, the location of the 

space, and the signature of the person 

providing the certification. The 

certification must be made before entry 

and must be made available to each 

employee entering the space or to that 

employee’s authorized representative. 

(f) When there are changes in the use 

or configuration of a non-permit 

confined space that might increase the 

hazards to entrants, or some indication 

that the initial evaluation of the space 

may not have been adequate, each entry 

employer must have a competent person 

reevaluate that space and, if necessary, 

reclassify it as a permit-required 

confined space. 

(g) A space classified by an employer 

as a permit-required confined space may 

only be reclassified as a non-permit 

confined space when a competent 

person determines that all of the 

applicable requirements in paragraphs 

(g)(1) through (4) of this section have 

been met: 

(1) If the permit space poses no actual 

or potential atmospheric hazards and if 

all hazards within the space are 

eliminated or isolated without entry 

into the space (unless the employer can 

demonstrate that doing so without entry 

is infeasible), the permit space may be 

reclassified as a non-permit confined 

space for as long as the non-atmospheric 

hazards remain eliminated or isolated; 

(2) The entry employer must 

eliminate or isolate the hazards without 

entering the space, unless it can 

demonstrate that this is infeasible. If it 

is necessary to enter the permit space to 

eliminate or isolate hazards, such entry 

must be performed under §§ 1926.1204 

through 1926.1211. If testing and 

inspection during that entry 

demonstrate that the hazards within the 

permit space have been eliminated or 

isolated, the permit space may be 

reclassified as a non-permit confined 

space for as long as the hazards remain 

eliminated or isolated; 

Note to paragraph (g)(2). Control of 

atmospheric hazards through forced air 

ventilation does not constitute elimination or 

isolation of the hazards. Paragraph (e) of this 

section covers permit space entry where the 

employer can demonstrate that forced air 

ventilation alone will control all hazards in 

the space. 

(3) The entry employer must 

document the basis for determining that 

all hazards in a permit space have been 

eliminated or isolated, through a 

certification that contains the date, the 

location of the space, and the signature 

of the person making the determination. 

The certification must be made available 

to each employee entering the space or 

to that employee’s authorized 

representative; and 

(4) If hazards arise within a permit 

space that has been reclassified as a 

non-permit space under paragraph (g) of 

this section, each employee in the space 

must exit the space. The entry employer 

must then reevaluate the space and 

reclassify it as a permit space as 

appropriate in accordance with all other 

applicable provisions of this standard. 

(h) Permit space entry communication 

and coordination. (1) Before entry 

operations begin, the host employer 

must provide the following information, 

if it has it, to the controlling contractor: 

(i) The location of each known permit 

space; 

(ii) The hazards or potential hazards 

in each space or the reason it is a permit 

space; and 

(iii) Any precautions that the host 

employer or any previous controlling 

contractor or entry employer 

implemented for the protection of 

employees in the permit space. 

(2) Before entry operations begin, the 

controlling contractor must: 

(i) Obtain the host employer’s 

information about the permit space 

hazards and previous entry operations; 

and 

(ii) Provide the following information 

to each entity entering a permit space 

and any other entity at the worksite 

whose activities could foreseeably result 

in a hazard in the permit space: 

(A) The information received from the 

host employer; 

(B) Any additional information the 

controlling contractor has about the 

subjects listed in paragraph (h)(1) of this 

section; and 

(C) The precautions that the host 

employer, controlling contractor, or 

other entry employers implemented for 

the protection of employees in the 

permit spaces. 

(3) Before entry operations begin, each 

entry employer must: 

(i) Obtain all of the controlling 

contractor’s information regarding 

permit space hazards and entry 

operations; and 

(ii) Inform the controlling contractor 

of the permit space program that the 

entry employer will follow, including 

any hazards likely to be confronted or 

created in each permit space. 

(4) The controlling contractor and 

entry employer(s) must coordinate entry 

operations when: 

(i) More than one entity performs 

permit space entry at the same time; or 

(ii) Permit space entry is performed at 

the same time that any activities that 

could foreseeably result in a hazard in 

the permit space are performed. 

(5) After entry operations: 

(i) The controlling contractor must 

debrief each entity that entered a permit 

space regarding the permit space 

program followed and any hazards 

confronted or created in the permit 

space(s) during entry operations; 

(ii) The entry employer must inform 

the controlling contractor in a timely 

manner of the permit space program 

followed and of any hazards confronted 

or created in the permit space(s) during 

entry operations; and 

(iii) The controlling contractor must 

apprise the host employer of the 

information exchanged with the entry 

entities pursuant to this subparagraph. 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25523 

Note to paragraph (h). Unless a host 

employer or controlling contractor has or will 

have employees in a confined space, it is not 

required to enter any confined space to 

collect the information specified in this 

paragraph (h). 

(i) If there is no controlling contractor 

present at the worksite, the 

requirements for, and role of, 

controlling contactors in this section 

must be fulfilled by the host employer 

or other employer who arranges to have 

employees of another employer perform 

work that involves permit space entry. 

§ 1926.1204 Permit-required confined 

space program. 

Each entry employer must: 

(a) Implement the measures necessary 

to prevent unauthorized entry; 

(b) Identify and evaluate the hazards 

of permit spaces before employees enter 

them; 

(c) Develop and implement the 

means, procedures, and practices 

necessary for safe permit space entry 

operations, including, but not limited 

to, the following: 

(1) Specifying acceptable entry 

conditions; 

(2) Providing each authorized entrant 

or that employee’s authorized 

representative with the opportunity to 

observe any monitoring or testing of 

permit spaces; 

(3) Isolating the permit space and 

physical hazard(s) within the space; 

(4) Purging, inerting, flushing, or 

ventilating the permit space as 

necessary to eliminate or control 

atmospheric hazards; 

Note to paragraph (c)(4). When an 

employer is unable to reduce the atmosphere 

below 10 percent LFL, the employer may 

only enter if the employer inerts the space so 

as to render the entire atmosphere in the 

space non-combustible, and the employees 

use PPE to address any other atmospheric 

hazards (such as oxygen deficiency), and the 

employer eliminates or isolates all physical 

hazards in the space. 

(5) Determining that, in the event the 

ventilation system stops working, the 

monitoring procedures will detect an 

increase in atmospheric hazard levels in 

sufficient time for the entrants to safely 

exit the permit space; 

(6) Providing pedestrian, vehicle, or 

other barriers as necessary to protect 

entrants from external hazards; 

(7) Verifying that conditions in the 

permit space are acceptable for entry 

throughout the duration of an 

authorized entry, and ensuring that 

employees are not allowed to enter into, 

or remain in, a permit space with a 

hazardous atmosphere unless the 

employer can demonstrate that personal 

protective equipment (PPE) will provide 

effective protection for each employee 

in the permit space and provides the 

appropriate PPE to each employee; and 

(8) Eliminating any conditions (for 

example, high pressure) that could make 

it unsafe to remove an entrance cover. 

(d) Provide the following equipment 

(specified in paragraphs (d)(1) through 

(9) of this section) at no cost to each 

employee, maintain that equipment 

properly, and ensure that each 

employee uses that equipment properly: 

(1) Testing and monitoring equipment 

needed to comply with paragraph (e) of 

this section; 

(2) Ventilating equipment needed to 

obtain acceptable entry conditions; 

(3) Communications equipment 

necessary for compliance with 

§§ 1926.1208(c) and 1926.1209(e), 

including any necessary electronic 

communication equipment for 

attendants assessing entrants’ status in 

multiple spaces; 

(4) Personal protective equipment 

insofar as feasible engineering and 

work-practice controls do not 

adequately protect employees; 

Note to paragraph (d)(4). The requirements 

of subpart E of this part and other PPE 

requirements continue to apply to the use of 

PPE in a permit space. For example, if 

employees use respirators, then the respirator 

requirements in § 1926.103 (Respiratory 

protection) must be met. 

(5) Lighting equipment that meets the 

minimum illumination requirements in 

§ 1926.56, that is approved for the 

ignitable or combustible properties of 

the specific gas, vapor, dust, or fiber that 

will be present, and that is sufficient to 

enable employees to see well enough to 

work safely and to exit the space 

quickly in an emergency; 

(6) Barriers and shields as required by 

paragraph (c)(4) of this section; 

(7) Equipment, such as ladders, 

needed for safe ingress and egress by 

authorized entrants; 

(8) Rescue and emergency equipment 

needed to comply with paragraph (i) of 

this section, except to the extent that the 

equipment is provided by rescue 

services; and 

(9) Any other equipment necessary for 

safe entry into, safe exit from, and 

rescue from, permit spaces. 

(e) Evaluate permit space conditions 

in accordance with the following 

paragraphs (e)(1) through (6) of this 

section when entry operations are 

conducted: 

(1) Test conditions in the permit 

space to determine if acceptable entry 

conditions exist before changes to the 

space’s natural ventilation are made, 

and before entry is authorized to begin, 

except that, if an employer demonstrates 

that isolation of the space is infeasible 

because the space is large or is part of 

a continuous system (such as a sewer), 

the employer must: 

(i) Perform pre-entry testing to the 

extent feasible before entry is 

authorized; and, 

(ii) If entry is authorized, 

continuously monitor entry conditions 

in the areas where authorized entrants 

are working, except that employers may 

use periodic monitoring in accordance 

with paragraph (e)(2) of this section for 

monitoring an atmospheric hazard if 

they can demonstrate that equipment for 

continuously monitoring that hazard is 

not commercially available; 

(iii) Provide an early-warning system 

that continuously monitors for nonisolated engulfment hazards. The 

system must alert authorized entrants 

and attendants in sufficient time for the 

authorized entrants to safely exit the 

space. 

(2) Continuously monitor atmospheric 

hazards unless the employer can 

demonstrate that the equipment for 

continuously monitoring a hazard is not 

commercially available or that periodic 

monitoring is of sufficient frequency to 

ensure that the atmospheric hazard is 

being controlled at safe levels. If 

continuous monitoring is not used, 

periodic monitoring is required with 

sufficient frequency to ensure that 

acceptable entry conditions are being 

maintained during the course of entry 

operations; 

(3) When testing for atmospheric 

hazards, test first for oxygen, then for 

combustible gases and vapors, and then 

for toxic gases and vapors; 

(4) Provide each authorized entrant or 

that employee’s authorized 

representative an opportunity to observe 

the pre-entry and any subsequent testing 

or monitoring of permit spaces; 

(5) Reevaluate the permit space in the 

presence of any authorized entrant or 

that employee’s authorized 

representative who requests that the 

employer conduct such reevaluation 

because there is some indication that 

the evaluation of that space may not 

have been adequate; and 

(6) Immediately provide each 

authorized entrant or that employee’s 

authorized representative with the 

results of any testing conducted in 

accordance with this section. 

(f) Provide at least one attendant 

outside the permit space into which 

entry is authorized for the duration of 

entry operations: 

(1) Attendants may be assigned to 

more than one permit space provided 

the duties described in § 1926.1209 can 

be effectively performed for each permit 

space. 

mstockstill on DSK4VPTVN1PROD with RULES2

25524 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

(2) Attendants may be stationed at any 

location outside the permit space as 

long as the duties described in 

§ 1926.1209 can be effectively 

performed for each permit space to 

which the attendant is assigned. 

(g) If multiple spaces are to be 

assigned to a single attendant, include 

in the permit program the means and 

procedures to enable the attendant to 

respond to an emergency affecting one 

or more of those permit spaces without 

distraction from the attendant’s 

responsibilities under § 1926.1209; 

(h) Designate each person who is to 

have an active role (as, for example, 

authorized entrants, attendants, entry 

supervisors, or persons who test or 

monitor the atmosphere in a permit 

space) in entry operations, identify the 

duties of each such employee, and 

provide each such employee with the 

training required by § 1926.1207; 

(i) Develop and implement 

procedures for summoning rescue and 

emergency services (including 

procedures for summoning emergency 

assistance in the event of a failed nonentry rescue), for rescuing entrants from 

permit spaces, for providing necessary 

emergency services to rescued 

employees, and for preventing 

unauthorized personnel from attempting 

a rescue; 

(j) Develop and implement a system 

for the preparation, issuance, use, and 

cancellation of entry permits as required 

by this standard, including the safe 

termination of entry operations under 

both planned and emergency 

conditions; 

(k) Develop and implement 

procedures to coordinate entry 

operations, in consultation with the 

controlling contractor, when employees 

of more than one employer are working 

simultaneously in a permit space or 

elsewhere on the worksite where their 

activities could, either alone or in 

conjunction with the activities within a 

permit space, foreseeably result in a 

hazard within the confined space, so 

that employees of one employer do not 

endanger the employees of any other 

employer; 

(l) Develop and implement 

procedures (such as closing off a permit 

space and canceling the permit) 

necessary for concluding the entry after 

entry operations have been completed; 

(m) Review entry operations when the 

measures taken under the permit space 

program may not protect employees and 

revise the program to correct 

deficiencies found to exist before 

subsequent entries are authorized; and 

Note to paragraph (m). Examples of 

circumstances requiring the review of the 

permit space program include, but are not 

limited to: Any unauthorized entry of a 

permit space, the detection of a permit space 

hazard not covered by the permit, the 

detection of a condition prohibited by the 

permit, the occurrence of an injury or nearmiss during entry, a change in the use or 

configuration of a permit space, and 

employee complaints about the effectiveness 

of the program. 

(n) Review the permit space program, 

using the canceled permits retained 

under § 1926.1205(f), within 1 year after 

each entry and revise the program as 

necessary to ensure that employees 

participating in entry operations are 

protected from permit space hazards. 

Note to paragraph (n). Employers may 

perform a single annual review covering all 

entries performed during a 12-month period. 

If no entry is performed during a 12-month 

period, no review is necessary. 

§ 1926.1205 Permitting process. 

(a) Before entry is authorized, each 

entry employer must document the 

completion of measures required by 

§ 1926.1204(c) by preparing an entry 

permit. 

(b) Before entry begins, the entry 

supervisor identified on the permit must 

sign the entry permit to authorize entry. 

(c) The completed permit must be 

made available at the time of entry to all 

authorized entrants or their authorized 

representatives, by posting it at the 

entry portal or by any other equally 

effective means, so that the entrants can 

confirm that pre-entry preparations have 

been completed. 

(d) The duration of the permit may 

not exceed the time required to 

complete the assigned task or job 

identified on the permit in accordance 

with § 1926.1206(b). 

(e) The entry supervisor must 

terminate entry and take the following 

action when any of the following apply: 

(1) Cancel the entry permit when the 

entry operations covered by the entry 

permit have been completed; or 

(2) Suspend or cancel the entry permit 

and fully reassess the space before 

allowing reentry when a condition that 

is not allowed under the entry permit 

arises in or near the permit space and 

that condition is temporary in nature 

and does not change the configuration 

of the space or create any new hazards 

within it; and 

(3) Cancel the entry permit when a 

condition that is not allowed under the 

entry permit arises in or near the permit 

space and that condition is not covered 

by paragraph (e)(2) of this section. 

(f) The entry employer must retain 

each canceled entry permit for at least 

1 year to facilitate the review of the 

permit-required confined space program 

required by § 1926.1204(n). Any 

problems encountered during an entry 

operation must be noted on the 

pertinent permit so that appropriate 

revisions to the permit space program 

can be made. 

§ 1926.1206 Entry permit. 

The entry permit that documents 

compliance with this section and 

authorizes entry to a permit space must 

identify: 

(a) The permit space to be entered; 

(b) The purpose of the entry; 

(c) The date and the authorized 

duration of the entry permit; 

(d) The authorized entrants within the 

permit space, by name or by such other 

means (for example, through the use of 

rosters or tracking systems) as will 

enable the attendant to determine 

quickly and accurately, for the duration 

of the permit, which authorized entrants 

are inside the permit space; 

Note to paragraph (d). This requirement 

may be met by inserting a reference on the 

entry permit as to the means used, such as 

a roster or tracking system, to keep track of 

the authorized entrants within the permit 

space. 

(e) Means of detecting an increase in 

atmospheric hazard levels in the event 

the ventilation system stops working; 

(f) Each person, by name, currently 

serving as an attendant; 

(g) The individual, by name, currently 

serving as entry supervisor, and the 

signature or initials of each entry 

supervisor who authorizes entry; 

(h) The hazards of the permit space to 

be entered; 

(i) The measures used to isolate the 

permit space and to eliminate or control 

permit space hazards before entry; 

Note to paragraph (i). Those measures can 

include, but are not limited to, the lockout 

or tagging of equipment and procedures for 

purging, inerting, ventilating, and flushing 

permit spaces. 

(j) The acceptable entry conditions; 

(k) The results of tests and monitoring 

performed under § 1926.1204(e), 

accompanied by the names or initials of 

the testers and by an indication of when 

the tests were performed; 

(l) The rescue and emergency services 

that can be summoned and the means 

(such as the equipment to use and the 

numbers to call) for summoning those 

services; 

(m) The communication procedures 

used by authorized entrants and 

attendants to maintain contact during 

the entry; 

(n) Equipment, such as personal 

protective equipment, testing 

equipment, communications equipment, 

alarm systems, and rescue equipment, to 

mstockstill on DSK4VPTVN1PROD with RULES2

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25525 

be provided for compliance with this 

standard; 

(o) Any other information necessary, 

given the circumstances of the 

particular confined space, to ensure 

employee safety; and 

(p) Any additional permits, such as 

for hot work, that have been issued to 

authorize work in the permit space. 

§ 1926.1207 Training. 

(a) The employer must provide 

training to each employee whose work 

is regulated by this standard, at no cost 

to the employee, and ensure that the 

employee possesses the understanding, 

knowledge, and skills necessary for the 

safe performance of the duties assigned 

under this standard. This training must 

result in an understanding of the 

hazards in the permit space and the 

methods used to isolate, control or in 

other ways protect employees from 

these hazards, and for those employees 

not authorized to perform entry rescues, 

in the dangers of attempting such 

rescues. 

(b) Training required by this section 

must be provided to each affected 

employee: 

(1) In both a language and vocabulary 

that the employee can understand; 

(2) Before the employee is first 

assigned duties under this standard; 

(3) Before there is a change in 

assigned duties; 

(4) Whenever there is a change in 

permit space entry operations that 

presents a hazard about which an 

employee has not previously been 

trained; and 

(5) Whenever there is any evidence of 

a deviation from the permit space entry 

procedures required by § 1926.1204(c) 

or there are inadequacies in the 

employee’s knowledge or use of these 

procedures. 

(c) The training must establish 

employee proficiency in the duties 

required by this standard and must 

introduce new or revised procedures, as 

necessary, for compliance with this 

standard. 

(d) The employer must maintain 

training records to show that the 

training required by paragraphs (a) 

through (c) of this section has been 

accomplished. The training records 

must contain each employee’s name, the 

name of the trainers, and the dates of 

training. The documentation must be 

available for inspection by employees 

and their authorized representatives, for 

the period of time the employee is 

employed by that employer. 

§ 1926.1208 Duties of authorized entrants. 

The entry employer must ensure that 

all authorized entrants: 

(a) Are familiar with and understand 

the hazards that may be faced during 

entry, including information on the 

mode, signs or symptoms, and 

consequences of the exposure; 

(b) Properly use equipment as 

required by § 1926.1204(d); 

(c) Communicate with the attendant 

as necessary to enable the attendant to 

assess entrant status and to enable the 

attendant to alert entrants of the need to 

evacuate the space as required by 

§ 1926.1209(f); 

(d) Alert the attendant whenever: 

(1) There is any warning sign or 

symptom of exposure to a dangerous 

situation; or 

(2) The entrant detects a prohibited 

condition; and 

(e) Exit from the permit space as 

quickly as possible whenever: 

(1) An order to evacuate is given by 

the attendant or the entry supervisor; 

(2) There is any warning sign or 

symptom of exposure to a dangerous 

situation; 

(3) The entrant detects a prohibited 

condition; or 

(4) An evacuation alarm is activated. 

§ 1926.1209 Duties of attendants. 

The entry employer must ensure that 

each attendant: 

(a) Is familiar with and understands 

the hazards that may be faced during 

entry, including information on the 

mode, signs or symptoms, and 

consequences of the exposure; 

(b) Is aware of possible behavioral 

effects of hazard exposure in authorized 

entrants; 

(c) Continuously maintains an 

accurate count of authorized entrants in 

the permit space and ensures that the 

means used to identify authorized 

entrants under § 1926.1206(d) 

accurately identifies who is in the 

permit space; 

(d) Remains outside the permit space 

during entry operations until relieved 

by another attendant; 

Note to paragraph (d). Once an attendant 

has been relieved by another attendant, the 

relieved attendant may enter a permit space 

to attempt a rescue when the employer’s 

permit space program allows attendant entry 

for rescue and the attendant has been trained 

and equipped for rescue operations as 

required by § 1926.1211(a). 

(e) Communicates with authorized 

entrants as necessary to assess entrant 

status and to alert entrants of the need 

to evacuate the space under 

§ 1926.1208(e); 

(f) Assesses activities and conditions 

inside and outside the space to 

determine if it is safe for entrants to 

remain in the space and orders the 

authorized entrants to evacuate the 

permit space immediately under any of 

the following conditions: 

(1) If there is a prohibited condition; 

(2) If the behavioral effects of hazard 

exposure are apparent in an authorized 

entrant; 

(3) If there is a situation outside the 

space that could endanger the 

authorized entrants; or 

(4) If the attendant cannot effectively 

and safely perform all the duties 

required under this section; 

(g) Summons rescue and other 

emergency services as soon as the 

attendant determines that authorized 

entrants may need assistance to escape 

from permit space hazards; 

(h) Takes the following actions when 

unauthorized persons approach or enter 

a permit space while entry is underway: 

(1) Warns the unauthorized persons 

that they must stay away from the 

permit space; 

(2) Advises the unauthorized persons 

that they must exit immediately if they 

have entered the permit space; and 

(3) Informs the authorized entrants 

and the entry supervisor if unauthorized 

persons have entered the permit space; 

(i) Performs non-entry rescues as 

specified by the employer’s rescue 

procedure; and 

(j) Performs no duties that might 

interfere with the attendant’s primary 

duty to assess and protect the 

authorized entrants. 

§ 1926.1210 Duties of entry supervisors. 

The entry employer must ensure that 

each entry supervisor: 

(a) Is familiar with and understands 

the hazards that may be faced during 

entry, including information on the 

mode, signs or symptoms, and 

consequences of the exposure; 

(b) Verifies, by checking that the 

appropriate entries have been made on 

the permit, that all tests specified by the 

permit have been conducted and that all 

procedures and equipment specified by 

the permit are in place before endorsing 

the permit and allowing entry to begin; 

(c) Terminates the entry and cancels 

or suspends the permit as required by 

§ 1926.1205(e); 

(d) Verifies that rescue services are 

available and that the means for 

summoning them are operable, and that 

the employer will be notified as soon as 

the services become unavailable; 

(e) Removes unauthorized individuals 

who enter or who attempt to enter the 

permit space during entry operations; 

and 

(f) Determines, whenever 

responsibility for a permit space entry 

operation is transferred, and at intervals 

dictated by the hazards and operations 

performed within the space, that entry 

mstockstill on DSK4VPTVN1PROD with RULES2

25526 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 

operations remain consistent with terms 

of the entry permit and that acceptable 

entry conditions are maintained. 

§ 1926.1211 Rescue and emergency 

services. 

(a) An employer who designates 

rescue and emergency services, 

pursuant to § 1926.1204(i), must: 

(1) Evaluate a prospective rescuer’s 

ability to respond to a rescue summons 

in a timely manner, considering the 

hazard(s) identified; 

Note to paragraph (a)(1). What will be 

considered timely will vary according to the 

specific hazards involved in each entry. For 

example, § 1926.103 (Respiratory protection) 

requires that employers provide a standby 

person or persons capable of immediate 

action to rescue employee(s) wearing 

respiratory protection while in work areas 

defined as IDLH atmospheres. 

(2) Evaluate a prospective rescue 

service’s ability, in terms of proficiency 

with rescue-related tasks and 

equipment, to function appropriately 

while rescuing entrants from the 

particular permit space or types of 

permit spaces identified; 

(3) Select a rescue team or service 

from those evaluated that: 

(i) Has the capability to reach the 

victim(s) within a time frame that is 

appropriate for the permit space 

hazard(s) identified; 

(ii) Is equipped for, and proficient in, 

performing the needed rescue services; 

(iii) Agrees to notify the employer 

immediately in the event that the rescue 

service becomes unavailable; 

(4) Inform each rescue team or service 

of the hazards they may confront when 

called on to perform rescue at the site; 

and 

(5) Provide the rescue team or service 

selected with access to all permit spaces 

from which rescue may be necessary so 

that the rescue team or service can 

develop appropriate rescue plans and 

practice rescue operations. 

(b) An employer whose employees 

have been designated to provide permit 

space rescue and/or emergency services 

must take the following measures and 

provide all equipment and training at no 

cost to those employees: 

(1) Provide each affected employee 

with the personal protective equipment 

(PPE) needed to conduct permit space 

rescues safely and train each affected 

employee so the employee is proficient 

in the use of that PPE; 

(2) Train each affected employee to 

perform assigned rescue duties. The 

employer must ensure that such 

employees successfully complete the 

training required and establish 

proficiency as authorized entrants, as 

provided by §§ 1926.1207 and 

1926.1208; 

(3) Train each affected employee in 

basic first aid and cardiopulmonary 

resuscitation (CPR). The employer must 

ensure that at least one member of the 

rescue team or service holding a current 

certification in basic first aid and CPR 

is available; and 

(4) Ensure that affected employees 

practice making permit space rescues 

before attempting an actual rescue, and 

at least once every 12 months, by means 

of simulated rescue operations in which 

they remove dummies, manikins, or 

actual persons from the actual permit 

spaces or from representative permit 

spaces, except practice rescue is not 

required where the affected employees 

properly performed a rescue operation 

during the last 12 months in the same 

permit space the authorized entrant will 

enter, or in a similar permit space. 

Representative permit spaces must, with 

respect to opening size, configuration, 

and accessibility, simulate the types of 

permit spaces from which rescue is to 

be performed. 

(c) Non-entry rescue is required 

unless the retrieval equipment would 

increase the overall risk of entry or 

would not contribute to the rescue of 

the entrant. The employer must 

designate an entry rescue service 

whenever non-entry rescue is not 

selected. Whenever non-entry rescue is 

selected, the entry employer must 

ensure that retrieval systems or methods 

are used whenever an authorized 

entrant enters a permit space, and must 

confirm, prior to entry, that emergency 

assistance would be available in the 

event that non-entry rescue fails. 

Retrieval systems must meet the 

following requirements: 

(1) Each authorized entrant must use 

a chest or full body harness, with a 

retrieval line attached at the center of 

the entrant’s back near shoulder level, 

above the entrant’s head, or at another 

point which the employer can establish 

presents a profile small enough for the 

successful removal of the entrant. 

Wristlets or anklets may be used in lieu 

of the chest or full body harness if the 

employer can demonstrate that the use 

of a chest or full body harness is 

infeasible or creates a greater hazard and 

that the use of wristlets or anklets is the 

safest and most effective alternative. 

(2) The other end of the retrieval line 

must be attached to a mechanical device 

or fixed point outside the permit space 

in such a manner that rescue can begin 

as soon as the rescuer becomes aware 

that rescue is necessary. A mechanical 

device must be available to retrieve 

personnel from vertical type permit 

spaces more than 5 feet (1.52 meters) 

deep. 

(3) Equipment that is unsuitable for 

retrieval must not be used, including, 

but not limited to, retrieval lines that 

have a reasonable probability of 

becoming entangled with the retrieval 

lines used by other authorized entrants, 

or retrieval lines that will not work due 

to the internal configuration of the 

permit space. 

(d) If an injured entrant is exposed to 

a substance for which a Safety Data 

Sheet (SDS) or other similar written 

information is required to be kept at the 

worksite, that SDS or written 

information must be made available to 

the medical facility treating the exposed 

entrant. 

§ 1926.1212 Employee participation. 

(a) Employers must consult with 

affected employees and their authorized 

representatives on the development and 

implementation of all aspects of the 

permit space program required by 

§ 1926.1203. 

(b) Employers must make available to 

each affected employee and his/her 

authorized representatives all 

information required to be developed by 

this standard. 

§ 1926.1213 Provision of documents to 

Secretary. 

For each document required to be 

retained in this standard, the retaining 

employer must make the document 

available on request to the Secretary of 

Labor or the Secretary’s designee. 

[FR Doc. 2015–08843 Filed 5–1–15; 8:45 am] 

BILLING CODE 4510–26–P 

mstockstill on DSK4VPTVN1PROD with RULES2