[Federal Register Volume 80, Number 85 (Monday, May 4, 2015)]
[Rules and Regulations]
[Pages 25366-25526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-08843]



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Vol. 80

Monday,

No. 85

May 4, 2015

Part II





Department of Labor





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Occupational Safety and Health Administration





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29 CFR Part 1926





Confined Spaces in Construction; Final Rule

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

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket ID-OSHA-2007-0026]
RIN 1218-AB47


Confined Spaces in Construction

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Final rule.

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SUMMARY: OSHA is adding a new subpart to provide protections to 
employees working in confined spaces in construction. This new subpart 
replaces OSHA's one training requirement for confined space work with a 
comprehensive standard that includes a permit program designed to 
protect employees from exposure to many hazards associated with work in 
confined spaces, including atmospheric and physical hazards. The final 
rule is similar in content and organization to the general industry 
confined spaces standard, but also incorporates several provisions from 
the proposed rule to address construction-specific hazards, accounts 
for advancements in technology, and improves enforceability of the 
requirements.

DATES: The final rule becomes effective on August 3, 2015.

ADDRESSES: In accordance with 28 U.S.C. 2112(a), the Agency designates 
Ms. Ann Rosenthal, the Associate Solicitor of Labor for Occupational 
Safety and Health, Office of the Solicitor of Labor, Room S4004, U.S. 
Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210, 
to receive petitions for review of the final rule.

FOR FURTHER INFORMATION CONTACT:
    General information and press inquiries: Mr. Frank Meilinger, 
Office of Communications, Room N3647, OSHA, U.S. Department of Labor, 
200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1999; email <a href="/cdn-cgi/l/email-protection#761b131f1a1f181113045810041718151f05443612191a58111900"><span class="__cf_email__" data-cfemail="234e464a4f4a4d4446510d4551424d404a501163474c4f0d444c55">[email protected]</span></a>.
    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 <a href="/cdn-cgi/l/email-protection#fb9f948e969ad5919e888892989abb9f9497d59c948d"><span class="__cf_email__" data-cfemail="5a3e352f373b74303f292933393b1a3e3536743d352c">[email protected]</span></a>.
    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

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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     3% discount
                                               rate            rate
------------------------------------------------------------------------
                            Annualized Costs
------------------------------------------------------------------------
Evaluation, Classification, Information            $12.4           $12.2
 Exchange and Notification..............
Written Program, Issue Permits, Verify               4.2             4.2
 Safety, Review Procedures..............
Provide Ventilation and Isolate Hazards.             2.8             2.7
Atmospheric Monitoring..................            11.4            11.3
Attendant...............................             3.6             3.6
Rescue Capability.......................             8.2             7.6
Training................................            11.3            11.3
Other Requirements......................             6.4             6.3
                                         -------------------------------
    Total Annual Costs..................            60.3            59.2
------------------------------------------------------------------------
                             Annual Benefits
------------------------------------------------------------------------
Number of Injuries Prevented............................             780
Number of Fatalities Prevented..........................             5.2
Monetized Benefits......................................            93.6
------------------------------------------------------------------------
           Net Annual Monetized Benefits (Benefits Less Costs)
------------------------------------------------------------------------
                                                    33.3            34.4
------------------------------------------------------------------------
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)

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and $60.3 million (when costs are annualized at 7 percent). The final 
rule's requirements for employers to evaluate, classify, and exchange 
information account for the largest component of the total compliance 
costs, at approximately $12.2 million to $12.4 million (when costs are 
annualized at 3 and 7 percent, respectively). Other compliance costs 
associated with the final rule include costs related to atmospheric 
monitoring--($11.3 million to $11.4 million), training ($11.3 million), 
rescue capability ($7.6 million to $8.2 million), written programs, 
permits, and review procedures ($4.2 million), attendants ($3.6 
million),--and ventilation and hazard isolation ($2.7 million to $2.8 
million).
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    \1\ References are available at the end of this section of the 
preamble.
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F. Economic Impacts

    To assess the economic impacts associated with compliance with the 
final rule, OSHA developed quantitative estimates of the potential 
economic impact of the requirements in this rule on entities in each 
affected industry. OSHA compared the estimated costs of compliance with 
industry revenues and profits to provide an assessment of potential 
economic impacts.
    The costs of compliance for the final rule are not large in 
relation to the corresponding annual financial flows associated with 
the regulated activities. The estimated costs of compliance (when 
annualized at 7 percent) represent about 0.08 percent (less than 1 
percent) of revenues and 1.6 percent of profits, on average, across all 
entities. One industry, NACIS 23621 Industrial Building Construction, 
showed the potential for compliance costs to exceed 10 percent of 
annual profits (10.5 percent), but the Agency concludes that the final 
standard is still feasible for this industry because it affects less 
than 2 percent of all firms in that industry sector each year, and OSHA 
believes that firms engaged in confined spaces work are larger and more 
profitable than average. Moreover, OSHA does not believe that 
industries will absorb all or most of the final standard costs in lost 
profits, as the price elasticity of demand in construction is 
sufficiently inelastic for minor price increases to offset costs--here, 
a price increase of less than 0.5 percent (or one-half of 1 percent).
    OSHA concludes that compliance with the requirements of the final 
rule is economically feasible in every affected industry sector.
    In addition, based on an analysis of the costs and economic impacts 
associated with this rulemaking, OSHA concludes that the effects of the 
final rule on international trade, employment, wages, and economic 
growth for the United States are negligible.

G. Final Regulatory Flexibility Analysis

    The Regulatory Flexibility Act, as amended in 1996 by the Small 
Business Regulatory Enforcement Fairness Act, requires the preparation 
of a Final Regulatory Flexibility Analysis for certain rules 
promulgated by agencies (5 U.S.C. 601-612). Under the provisions of the 
law, each such analysis must contain: (1) A statement of the need for, 
and objectives of, the rule; (2) a statement of the significant issues 
raised by the public comments in response to the initial regulatory 
flexibility analysis, a statement of the assessment of the agency of 
such issues, and a statement of any changes made in the final rule as a 
result of such comments; (3) a response to any comments filed by the 
Chief Counsel for Advocacy of the Small Business Administration, and a 
detailed statement of any change made to the proposed rule in the final 
rule as a result of those comments; (4) a description and an estimate 
of the number of small entities to which the rule will apply or an 
explanation of why no such estimate is available; (5) a description of 
the projected reporting, recordkeeping, and other compliance 
requirements of the rule, including an estimate of the classes of small 
entities that will be subject to the requirement, and the type of 
professional skills necessary for preparation of the report or record; 
and (6) a description of the steps the agency took to minimize the 
significant economic impact on small entities consistent with the 
stated objectives of applicable statutes, including a statement of the 
factual, policy, and legal reasons for selecting the alternative 
adopted in the final rule, and why the agency rejected each one of the 
other significant alternatives to the rule considered by the agency 
which affect the impact on small entities.
    OSHA analyzed the potential impact of the final rule on small and 
very small entities, as described further under the heading ``Final 
Regulatory Flexibility Analysis,'' later in this preamble (see Section 
IV). OSHA concludes that the compliance costs are equivalent to 
approximately 1.64 percent of profits for affected small entities 
generally, and less than approximately 0.10 percent (less than 1 
percent) of annual revenues for very small industries, though the 
inelasticity of demand in construction would allow the costs to be 
offset by price increases in most industries.

II. Background

A. Record Citations

    References in parentheses are to exhibits or transcripts in the 
docket for this rulemaking. Documents from the subpart AA rulemaking 
record are available under Docket OSHA-2007-0026 on the Federal 
eRulemaking Portal at http://www.regulations.gov or in the OSHA Docket 
Office. The term ``ID'' refers to the column labeled ``ID'' under 
Docket No. OSHA-2007-0026 on http://www.regulations.gov. This column 
lists individual records in the docket. This document will identify 
each of these records only by the last three digits of the record, such 
as ``ID-032'' for OSHA-2007-0026-0032. Identification of records from 
dockets other than records in OSHA-2007-0026 will be by their full ID 
number. In addition, the transcripts for the public hearings OSHA held 
on July 22-23, 2008 are identified by the docket number in the record 
under Docket No. OSHA-2007-0026-0210 and -0211. To aid readers in 
locating citations to the transcripts, this document refers to these 
citations using the abbreviation ``Tr.'' and the corresponding page 
numbers, such as ID-201, Tr. pp. 10-15.

B. History

    On March 25, 1980, OSHA published an Advanced Notice of Proposed 
Rulemaking (ANPR) on confined spaces for the construction industry (45 
FR 19266). The ANPR posed 31 questions concerning confined-space 
hazards in the construction industry, and the Agency received 75 
comments in response to these questions. However, OSHA took no further 
action on this regulatory initiative at the time.
    The Agency subsequently published a Notice of Proposed Rulemaking 
(NPRM) for a general industry confined spaces rule on June 5, 1989 (54 
FR 24080). OSHA issued the general industry confined spaces rule (29 
CFR 1910.146) on January 14, 1993 (58 FR 4462).
    The general industry standard requires employers to classify 
hazardous confined spaces as ``permit-required confined spaces'' and to 
implement specific procedures to ensure the safety of employees who 
enter them. It contains detailed procedures for developing a written 
confined-space program, monitoring atmospheric hazards, isolating 
physical hazards through lock out tag out procedures, training 
employees, preventing unauthorized employees from entering these 
spaces, providing rescue (both non entry and entry rescue), and 
maintaining records. The general industry standard specifies a limited

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exception from some of the permit-required confined-space requirements 
when the only hazard in a confined space is an atmospheric hazard and 
ventilation equipment will control the atmospheric hazard at safe 
levels. It also provides protection to employees from non-atmospheric 
hazards (for example, physical hazards) in confined spaces. However, 
the general industry standard does not apply to construction employers, 
and, as such, does not specify the appropriate level of employee 
protection based on the hazards created by construction activities 
performed in confined spaces.
    In 1993, as part of the litigation activity associated with the 
newly promulgated general industry standard, OSHA agreed in a 
settlement with the United Steel Workers of America to issue a proposed 
rule to extend confined-space protection to construction employees. On 
February 18, 1994, OSHA submitted a draft proposed standard for 
confined spaces in construction to the Advisory Committee for 
Construction Safety and Health (ACCSH) for comment. ACCSH established a 
work group on March 22, 1994, to address the OSHA draft proposed 
standard and report its findings to the full committee. ACCSH adopted 
the work group report on May 17, 1994 and recommended that OSHA 
incorporate it into a rulemaking docket. In this report, ACCSH noted 
that the general industry standard did not meet the needs of the 
construction industry. ACCSH found that employers often do not identify 
or classify confined spaces encountered or generated at construction 
worksites prior to the beginning of a construction project, and noted 
the difficulties faced by employers generally on construction 
worksites, where conditions often change rapidly and many different 
subcontractors may perform work simultaneously.
    Consequently, ACCSH established a work group to draft a proposed 
standard that would meet the unique needs of the construction industry. 
The draft proposed standard emphasized identifying different types of 
confined spaces encountered in construction (for example, spaces in 
which the employer isolates all hazards or controls atmospheric hazards 
at safe levels, and spaces that are permit-required spaces), as well as 
inter-contractor information exchange and the detailed protections 
necessary to eliminate or control specific hazards.
    As the result of the ACCSH work group review, ACCSH submitted a 
draft proposed standard for confined spaces in construction to OSHA in 
1996. ACCSH recommended that OSHA use the draft as a proposed confined 
spaces standard. OSHA determined that the ACCSH draft proposed standard 
needed revision to make it easier to understand, especially for small 
employers that do not employ a separate safety staff. The Agency also 
determined that the draft proposed standard did not address adequately 
certain hazards, such as hazards encountered in sewer-construction 
work. Consequently, OSHA determined that it was necessary to develop a 
new draft proposed standard.
    In 1998, OSHA completed a new draft proposed standard, but 
discovered that there were several issues that the Agency needed to 
resolve before it could finalize the draft proposed standard. To get 
feedback from the construction community, OSHA held three stakeholders 
meetings in October of 2000 across the country. The topics discussed at 
the stakeholder meetings were: (1) Typical confined spaces encountered 
in construction; (2) whether the proposed standard should require an 
early-warning system for spaces in which the employer could not isolate 
an engulfment hazard (such as in some sewer situations); (3) the need 
for, and cost of, continuous monitoring for atmospheric hazards; (4) 
how a confined spaces standard for construction could accommodate the 
needs of small businesses; and (5) whether the proposed standard should 
permit an attendant to perform his or her duties for more than one 
confined space at a time.
    In late 2003, OSHA completed drafting the proposed standard and 
convened a panel under the Small Business Regulatory Enforcement 
Fairness Act (SBREFA) to solicit comments on the proposal from small 
business entities. The SBREFA panel conducted two conference-call 
discussions, which were open to the public, in which small entity 
representatives expressed their concerns about the draft proposed 
standard; these representatives also submitted written comments to the 
record that covered the issues. The SBREFA panel then submitted its 
recommendations to the Agency in November 2003.
    The Agency published a proposed rule for confined spaces in 
construction on November 28, 2007 (72 FR 67351). The proposed confined 
spaces standard for construction reflected input from stakeholder 
meetings, ACCSH, and the SBREFA review process. For example, OSHA 
removed a provision that addressed working in hazardous enclosed spaces 
(i.e., spaces designed for human occupancy but subject to a hazardous 
atmosphere), which small business entities participating in the SBREFA 
review process considered burdensome and unnecessary; OSHA removed this 
provision because it believes that existing construction standards (for 
example, 29 CFR 1926.55) adequately address these hazards. The proposed 
standard used a confined-space classification approach consistent with 
the ACCSH recommendations. OSHA organized the proposed standard 
chronologically to guide the employer from its initial encounter with a 
potential confined space through the steps necessary to ensure adequate 
protection for employees. In addition, it addressed the need for 
coordination and information exchange at construction sites, which 
typically have multiple employers.
    The Agency recognized that a number of requirements in the proposed 
standard for confined spaces in construction duplicated, or were 
similar to, the provisions of the general industry standard for permit-
required confined spaces. Nevertheless, OSHA had concerns about whether 
the general industry standard adequately addressed the unique 
characteristics of confined spaces in construction. The feedback that 
OSHA received from ACCSH, stakeholders, and the SBREFA process 
indicated that, compared to general industry, the construction industry 
experiences higher employee turnover rates because construction 
employees often work at multiple worksites performing short-term tasks. 
Unlike most general industry worksites, construction worksites are 
continually evolving, with the number and characteristics of confined 
spaces changing as work progresses. Also, multiple contractors and 
controlling contractors are more common on construction worksites than 
general industry worksites. Therefore, a construction standard for 
confined spaces, even more so than the general industry standard for 
confined spaces, must emphasize training, continuous worksite 
evaluation, and communication requirements
    Decision to abandon the proposed new classification system and 
adapt an alternative that is more similar to the general industry 
standard.
    During the SBREFA review process, some small entity representatives 
urged OSHA to consider adopting the general industry standard for 
construction, and to solicit comment on how the Agency could adapt an 
alternative standard similar to the general industry standard to the 
construction sector. When the Agency published the proposed 
construction standard, it requested

[[Page 25370]]

public comments on how to adapt an alternative standard similar to the 
general industry standard for the construction industry (72 FR 67352, 
67401 (Nov. 28, 2007)). During the comment period and the public 
hearings OSHA held on July 22-23, 2008, OSHA received many comments and 
much testimony regarding the issue of using an adapted version of the 
general industry standard as the basis for the final rule rather than 
the new classification systems proposed in the NPRM. A clear majority 
of comments were in favor of finalizing a confined spaces in 
construction standard that more closely resembles the general industry 
standard for confined spaces. (See, e.g., ID-032; -047; -075; -088; -
092; -095; -105; -106; -115; -117; -118; -119; -120; -121; -125; 150; -
152; -153; 185; -189; -210, Tr. pp. 54-60, 74-76, 174-175, 282-284; -
211, Tr. pp. 73, 172, and 238-239.) Several commenters proposed 
adopting the general industry standard with some adaptations for the 
construction context, though not all of these commenters specified, or 
agreed on, what specific adaptations were appropriate (see, e.g., ID-
092; -117; -125). The Agency received a number of comments suggesting 
that many construction employers were currently following the general 
industry confined spaces standard (see, e.g., ID-075; -085; -088; -092; 
-095; -112; -117; -118; -120; -121; -125; -147).
    For the reasons discussed in the preamble to the proposed rule, and 
in light of the comments and testimony the Agency received, OSHA 
remains convinced that the general industry standard does not 
adequately address confined-space hazards as these hazards arise in the 
construction industry. Moreover, the 19 years of experience that 
employers have working with the general industry rule, and that OSHA 
has enforcing the general industry rule, highlight several areas in 
which additional clarification in the language of the general industry 
standard could improve the effectiveness of a new construction 
standard. Therefore, OSHA is not simply incorporating the general 
standard by reference into the construction standards.
    OSHA believes that the particular duties and obligations in the 
general industry standard and the proposed construction standard are 
similar, and that the public's confusion over the re-organized 
structure in the proposed rule is the result of the degree of detail in 
the proposed rule, as well as its organization. Most notably, compared 
to the general industry rule, the proposed rule added specificity to 
the general industry standard's broad, performance-based requirements, 
and defined a larger number of confined-space classifications.
    Nevertheless, in recognition of the commenter requests for more 
consistency between the two standards, OSHA is using the organization, 
language, and most of the substantive requirements in the general 
industry confined spaces standard as the basis for the final confined 
spaces in construction rule. However, differences in employee and 
worksite characteristics between the construction industry and general 
industry, as well as the comments and testimony of the regulated 
community indicating the need for consistency and continuity in OSHA 
requirements, prompted OSHA to develop a final rule for confined spaces 
in the construction industry that contains important requirements from 
the proposed rule and some additional changes. Many of these changes, 
such as the information exchange requirements, are designed to address 
the heightened need, on constantly evolving construction worksites for 
communication, worksite evaluation, and training for confined spaces in 
construction. In addition, several regulatory provisions in the general 
industry rule differ from the regulatory provisions of this final rule 
because the provisions of this final rule: (1) Address construction-
specific issues; (2) account for advancements in technology; (3) 
address concerns raised by the regulated community through comment and 
at the hearing; or (4) reflect improvements in language for modern 
regulatory drafting (``must'' in place of ``shall''), clarity and 
enforcement considerations. In most cases, the preamble that follows 
this introductory section explains the differences between the 
provisions of the final rule and the general industry rule.
    The Agency believes that it provided adequate notice of the 
substantive terms of the final rule, as well as an extensive 
description of the subjects and issues involved. Accordingly, the 
Agency fairly apprised interested persons of the content of the 
rulemaking, and the comments and hearing testimony provide ample 
evidence that interested parties to the rulemaking understood the 
issues and potential outcomes of the rulemaking. See, e.g., Nat'l 
Mining Ass'n v. Mine Safety & Health Admin., 512 F.3d 696, 699 (D.C. 
Cir. 2008); Miami-Dade County v. U.S. E.P.A., 529 F.3d 1049, 1059 (11th 
Cir. 2008); United Steelworkers of America, AFL-CIO-CLC v. Marshall, 
647 F.2d 1189, 1221 (D.C. Cir. 1980) (``a final rule may properly 
differ from a proposed rule and indeed must so differ when the record 
evidence warrants the change. . . . Where the change between proposed 
and final rule is important, the question for the court is whether the 
final rule is a `logical outgrowth' of the rulemaking proceeding''). 
The resulting final standard is a logical outgrowth of the proposal, 
and the number of comments urging an adapted version of the general 
industry standard provides a clear indication that the affected members 
of the public are not only familiar with the general industry standard, 
but also viewed the inclusion of part or all of the general industry 
standard's structure and language as a potential outcome of this 
rulemaking. The confined-space issues the Agency addresses in the final 
rule are the same as in the proposed rule, and the Agency addressed the 
criticisms and suggestions made by interested parties in response to 
the proposed rule. In short, the combination of OSHA's request for 
comment on the approach that it ultimately adopted in the final rule, 
the explanation of the hazards it sought to address in proposal, and 
the comments and testimony received in response to the proposal 
provided the regulated community with adequate notice regarding the 
outcome of the rulemaking. Therefore, the Agency concludes that there 
is no basis for further delaying promulgation of the standard to obtain 
comment on the approach adopted in this final rule.
    Many of the comments OSHA received on the proposal related to 
specific requirements included in the detailed procedures of the 
proposed standard. As a result of finalizing a confined spaces in 
construction standard that closely resembles the general industry 
standard, much of this detailed language does not appear in this final 
rule. In some cases, OSHA addressed the substance of the comment in the 
discussion of the most relevant preamble section in this final rule. In 
other instances, the issue raised in the comment became moot as a 
result of OSHA's decision not to include the proposed text in the final 
rule. Therefore, OSHA is not directly responding to each of these 
particular comments in the summary and explanation of the final rule.
    OSHA considered, but ultimately rejected, several other regulatory 
alternatives based on the comments submitted to the Agency. For 
example, some commenters suggested that employers should have the 
option of following either 29 CFR 1910.146 or this final rule (ID-089, 
p. 2; -147, p. 4). This suggestion relates to some commenters' concern 
that having separate rules for confined spaces in construction and

[[Page 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 Sec.  1910.146, there are 
differences when certain procedures are necessary to protect employees 
from the unique hazards of construction confined-space work. Therefore, 
an employer does not have the option of bypassing the procedures that 
are unique to this final rule by complying instead with Sec.  1910.146. 
Such a policy would severely undermine OSHA's effort to protect 
employees from the unique hazards present during confined-space 
operations in construction.
    OSHA recognizes that the differences between Sec.  1910.146 and 
this final rule can make it more complicated for employers to comply 
with two different sets of procedures if they perform maintenance and 
construction work at the same time in the same confined space. In order 
to ease the compliance burden on these employers, OSHA will consider 
compliance with this final rule as compliance with Sec.  1910.146. This 
enforcement policy was suggested by at least one commenter (ID-211, Tr. 
p. 303).
    Another commenter suggested that OSHA issue a directive on 
confined-space work in construction instead of a final rule (ID-100, p. 
5). OSHA generally issues a directive on a particular work practice 
after the Agency issues a rule, not in lieu of a rule; accordingly, the 
directive provides guidance as to how the Agency will enforce a 
standard. The rulemaking process, on the other hand, provides the 
public with notice and an opportunity to comment on the Agency's 
proposed action, and the Agency may use the information gathered during 
this process to impose substantive duties on employers, such as 
employers engaged in confined-space construction work. The information 
gathered by the Agency during the rulemaking process for this final 
rule supports issuing a final rule for confined-space work in 
construction. Therefore, OSHA rejects the alternative approach 
suggested by the commenter.
    A different set of commenters focused on individual states' 
confined spaces standards. One commenter asserted that several State-
Plan States have effective confined space standards and that this rule 
will unnecessarily force those states to change these standards (ID-
135, p. 3). A similar comment discussed Virginia's confined spaces 
rule, but did not suggest OSHA adopt that rule (ID-047, p. 1). Another 
commenter suggested OSHA adopt the majority of California's confined 
spaces rule (ID-077, p. 1). OSHA notes that the Occupational Safety and 
Health Act of 1970 (OSH Act) allows for different regulatory schemes to 
address the hazards of confined-space work provided those standards are 
at least as effective as the Federal OSHA standard. The record 
indicates that, by issuing a final rule that is similar to Sec.  
1910.146, OSHA is not drastically changing industry practice for 
addressing confined-space hazards. (See, e.g., ID-047; -075; -085; -
088; -092; -095; -112; -117; -118; -120; -121; -125; -147; -189.) 
Therefore, OSHA believes that State-Plan States that have standards 
applicable to construction work in confined spaces that are similar to 
Sec.  1910.146 will not have to make major changes to their existing 
rules to ensure that these rules are at least as effective as this 
final rule. When a State-Plan State's confined spaces rule is not as 
effective as this final rule, OSHA believes that the record warrants a 
change in the State-Plan State's rule so that it will provide 
construction employees with the same level of protection afforded to 
them by this final rule. For a full discussion of State-Plan States, 
see Section IV.E (``State-Plan States'') later in this preamble.

C. Need for a Rule Regulating Confined Spaces in Construction

    Before promulgating this final rule, OSHA had one existing 
provision in its construction standards that included a general 
training requirement for employers working in confined spaces. A broad 
``safety and training'' requirement in 29 CFR 1926.21(b)(6), adopted by 
the Agency in 1979, provided limited guidance: Under this provision, 
employers were only required to instruct employees required to enter 
into confined or enclosed spaces as to the nature of the hazards 
involved, the necessary precautions to be taken, and in the use of 
protective and emergency equipment required. Fatality and injury data, 
OSHA enforcement experience, and advice from ACCSH indicate that Sec.  
1926.21(b)(6) did not adequately protect construction employees in 
confined spaces from atmospheric, physical, and other hazards. Even 
when Sec.  1926.21(b)(6) applied, it required employers only to train 
employees who work in confined spaces--it did not address how to 
protect trained employees while they are working in such spaces, nor 
did it address the actions of employers outside the spaces engaged in 
activities that might harm employees inside the spaces. For situations 
in which none of the construction standards apply, the employer was 
still required to comply with the general-duty requirement of the OSH 
Act to ``furnish to each of [its] employees employment and a place of 
employment which are free from recognized hazards that are causing or 
are likely to cause death or serious physical harm to [its] employees'' 
(29 U.S.C. 654), but this ``general duty'' is often more difficult for 
OSHA to enforce and does not provide the same level of guidance and 
safety information provided in a standard.
    As noted in the economic analysis section of the preamble to this 
final rule, OSHA determined that employees in the construction industry 
who perform work in confined spaces face a significant risk of death or 
serious injury, and that this final rule would substantially reduce 
that risk. At present, OSHA estimates that 20,479 establishments 
annually have employees entering at least one confined space as defined 
by this final rule. OSHA estimates that, each year, 6 fatalities and 
900 injuries occur among employees working in confined spaces covered 
by this final rule. OSHA determined that the final rule, when 
implemented properly by employers, will reduce the average number of 
fatalities and injuries in confined spaces covered by this standard by 
96 percent (5.2 fatalities prevented annually, and 780 injuries 
prevented annually). (For further explanation of the significant-risk 
calculations, see section V.B. (``Final Economic Analysis and 
Regulatory Flexibility Analysis'') of this document.)

III. Summary and Explanation of the Final Standard

Explanation of Changes to Subpart V--Power Transmission and 
Distribution

    Subpart V of part 1926 governs construction work involving power 
transmission, generation, and distribution. OSHA recently updated 
subpart V (79 FR 20316 (April 11, 2014). When it did so, OSHA required 
compliance with the general industry confined-spaces standard at Sec.  
1910.146 in several provisions of subpart V. OSHA did so because at 
that time there was no comprehensive confined-spaces standard for 
construction, but the Agency explained in the subpart V preamble that 
``the references to the general industry standard in final Sec.  
1926.953 are included as a placeholder

[[Page 25372]]

pending the promulgation of the confined spaces in construction 
standard. OSHA intends to change these references to refer to the 
construction standard when it promulgates that standard.'' (79 FR 
20376) OSHA is, therefore, amending subpart V in this rulemaking to 
replace references to the general industry confined spaces standard 
with references to this final construction rule, because OSHA 
specifically tailored this final rule to construction work, making the 
confined spaces in construction rule more appropriate than the general 
industry standard for construction work addressed by subpart V.
Amendments to Definition of ``Enclosed Space'' in Sec.  1926.968
    An ``enclosed space'' is a term of art under subpart V and the 
corresponding general industry standard for electric power generation, 
transmission, and distribution (Sec.  1910.269) describing a workspace 
such as a manhole or vault that is designed for periodic employee entry 
under normal operating conditions, and that, under normal conditions, 
does not contain a hazardous atmosphere, but may contain a hazardous 
atmosphere under abnormal conditions (Sec.  1910.269(x) and Sec.  
1926.968). There is overlap between an enclosed space and a ``permit-
required confined space'' (permit space) as defined in the confined 
spaces standards for general industry (Sec.  1910.146) and construction 
(new subpart AA): An enclosed space meets the definition of a permit 
space--while it is not expected to contain a hazardous atmosphere, it 
has the potential to contain one--but the definition of permit-space is 
broader than the definition of enclosed space. For instance, if a space 
contains a hazardous atmosphere under normal conditions, that space is 
a permit space under Sec.  1910.146 or new subpart AA, but it is not an 
enclosed space under final Sec.  1910.269 or subpart V.
    The note to the definition of ``enclosed space'' in Sec.  
1910.269(x) states that enclosed spaces expected to contain a hazardous 
atmosphere meet the definition of permit spaces in Sec.  1910.146, and 
entry into them must conform to that standard. Subpart V, however, did 
not have any definition of ``enclosed space'' until OSHA amended it in 
2014 by adding a definition that matched the general industry 
definition in Sec.  1910.269(x) except that it did not include the 
note. OSHA explained in the preamble to the subpart V amendments that 
it did not include the note at that time because there was no 
comprehensive corresponding confined spaces construction standard to 
reference in place of Sec.  1910.146, but OSHA intended to add a 
corresponding note to Sec.  1926.268 when it promulgated the new 
construction confined spaces standard (see 79 FR 20376-20377). As part 
of this rulemaking, OSHA is therefore adding a note to the definition 
of ``enclosed space'' in Sec.  1926.968 that corresponds to the note in 
Sec.  1910.269(x), replacing the reference to Sec.  1910.146 with a 
reference to subpart AA.
Amendments to Sec.  1926.953
    Prior to this rulemaking, Sec.  1926.953(a) in subpart V, as 
amended in 2014, required that entry into an enclosed space to perform 
construction work meet the permit-space entry requirements of 
paragraphs (d) through (k) of Sec.  1910.146 when the precautions taken 
under Sec. Sec.  1926.953 and 1926.965 were insufficient to eliminate 
hazards in the enclosed space that could endanger the life of an 
entrant or interfere with escape from the space. Similarly, Sec.  
1926.953(g) stated that employees may not enter any enclosed space 
while it contains a hazardous atmosphere, unless the entry conforms to 
the permit-required confined spaces standard in Sec.  1910.146. OSHA is 
amending Sec. Sec.  1926.953(a) and 1926.953(g) by replacing each 
reference to Sec.  1910.146 with a reference to subpart AA so that the 
appropriate construction standard, rather than a general industry 
standard, will apply.
    OSHA is also adding a sentence to Sec.  1926.953(a) to clarify that 
employers may comply with the requirements of Sec.  1926.953 ``in lieu 
of'' most of the requirements in new subpart AA when the entry into the 
enclosed space is a routine entry for subpart V work and there is no 
hazardous atmosphere in the space. Without this clarifying sentence, 
employers could have been confused about which standard applied. OSHA 
determined that Sec.  1926.953 provides adequate protection to 
employees in that situation and announced in the subpart V preamble 
that it intended to add the sentence when it issued this final rule 
(see 79 FR 20376).
    The new ``in lieu of'' sentence in Sec.  1926.953(a) corresponds to 
a similar sentence in Sec.  1910.269(e) specifying that employers are 
not required to comply with Sec.  1910.146(d) through (k) for the same 
type of routine entries into enclosed spaces. OSHA has used slightly 
different wording from the language in Sec.  1910.269 to emphasize that 
``in lieu of'' language is only applicable where the entry is routine 
and the space does not contain hazards that could cause death or impede 
exit. As with the general industry standard, the new sentence in Sec.  
1926.1953(a) only exempts employers from compliance with some, but not 
all, of subpart AA's requirements. In the ``in lieu of'' sentence in 
Sec.  1910.269, OSHA only excuses employers from compliance with Sec.  
1910.146(d) through (k) for these routine entries, but employers must 
still comply with the requirements in Sec.  1910.146(c) and (l), 
including the requirements to assess the space, prevent unauthorized 
entry, communicate with and coordinate with the host employer when 
applicable, and to involve entrants and their representatives in the 
process. Likewise, in Sec.  1926.953(a), the enclosed spaces 
requirements apply in lieu of the permit requirements in Sec.  
1926.1204 through Sec.  1211, but employers still need to comply with 
subpart AA's corresponding requirements in Sec.  1926.1203 to assess 
the space, prevent unauthorized entry, and coordinate with and 
communicate with the controlling contractor, in addition to the 
requirements in Sec.  1211 to involve entrants and their 
representatives in the process.
    Finally, in addition to some minor, non-substantive grammatical 
changes to improve the paragraph, OSHA is also revising the note to 
paragraph Sec.  1926.953, which appears at the end of the section, by 
replacing its reference to Sec.  1910.146 with a reference to new 
subpart AA. The note clarifies that OSHA considers employers who comply 
with new subpart AA when entering an enclosed space as in compliance 
with Sec.  1926.353(a). Some employers may prefer to comply with new 
subpart AA rather than Sec.  1926.353(a), and subpart AA protects 
employees entering enclosed spaces at least as effectively as the 
provisions in Sec.  1926.353.

Section 1926.1201--Scope

    The scope of new 29 CFR part 1926, subpart AA--Confined Spaces in 
Construction is set forth in 29 CFR 1926.1201. This subpart provides 
minimum safety and health requirements and procedures to protect 
employees who work in confined spaces. It addresses how to protect 
employees from confined-space hazards. The final rule includes 
requirements for training, identification and assessment of confined 
spaces, hazard analysis, entering, working, exiting, and rescue for 
confined spaces containing a variety of different hazards.
    The proposed rule contained an ``Introduction'' section that 
provided a general overview of the standard and stated that the 
proposed standard would cover ``working within or near a confined space 
that is subject to a

[[Page 25373]]

hazard'' (see proposed Sec.  1926.1201(a)). OSHA removed the 
``Introduction'' section to make this final rule similar to Sec.  
1910.146, and to avoid confusion caused by potential overlap with the 
``Scope'' provisions. Section 1926.1201 in the final rule is the scope 
section.
    Paragraph (a). Although many commenters urged OSHA to conform this 
final rule to the general industry standard as much as possible, the 
scope section for confined spaces in general industry at Sec.  
1910.146(a) expressly excludes construction work. Therefore, it is 
impractical for OSHA to change the language in final rule Sec.  
1926.1201 to mirror Sec.  1910.146(a). Instead, OSHA structured the 
scope section in final rule Sec.  1926.1201 in a manner that draws from 
the language in the scope sections of the general industry standard and 
the proposed rule. As with the scope of the general industry standard, 
which states that it protects employees from the hazards of entry in 
permit-required confined spaces (Sec.  1910.146(a)), OSHA phrased final 
Sec.  1926.1201(a) in terms of the employees protected by the final 
standard. In contrast, the scope of the proposed rule focused on 
employers (see proposed Sec.  1926.1202(a)). While the final standard 
necessarily imposes the duties exclusively on employers, OSHA concluded 
that phrasing the scope in terms of employers ``who have confined 
spaces at their job site'' was potentially more problematic than the 
general industry approach because the regulated community could 
misinterpret the proposed language as requiring some analysis of the 
extent to which the employer exercised control over a particular part 
of a construction site.
    A number of commenters expressed confusion about the description of 
the standard included in the proposed introduction, which appeared to 
function as an additional statement about the scope of the rule (see, 
e.g., ID-032.0; -100.1; -105.1; -114.1; -119.1; -120.1; -125.1; -
135.0.) In particular, many commenters asserted that the reference to 
work ``within or near a confined space,'' as used in the proposed 
description of the standard, was too vague, and requested that OSHA 
clarify its meaning. (See, e.g., ID-031, p. 4; -061, p. 7; -095, p. 1; 
-101, p. 2; p. 1; -106, p. 1; -117, p. 7; -120, p. 2; -121, p. 8; -124, 
p. 4; p.-125, p. 5.) In response, OSHA did not include the phrase 
``within or near a confined space'' in the scope section in this final 
rule. Instead, in final Sec.  1926.1201(a), OSHA describes the scope in 
more definite terms by stating that the new standard protects employees 
engaged in construction activities at a worksite with one or more 
confined spaces, which is similar to the language of the proposed rule 
except that it avoids the reference to ``their job site.'' The language 
in final Sec.  1926.1201(a) incorporates a bright-line test (whether or 
not the worksite has a confined space) to underscore two important 
points in the final rule that also are true for the general industry 
standard and the proposed rule: First, all employers engaged in 
construction have a duty under the final standard to ensure that their 
employees do not enter a confined space except in accordance with the 
requirements of the standard, and the presence of a confined space on 
the worksite triggers this duty rather than the type of work the 
employer is performing. Second, there are critical components of this 
standard, such as information sharing and coordination of work, that 
apply to certain employers that, regardless of whether their employees 
are authorized to enter a confined space, have information necessary 
for the protection of employees working inside confined spaces, or are 
engaged in activities that could, either alone or in conjunction with 
activities inside the confined space, endanger the employees working 
inside a confined space. Final Sec.  1926.1201(a) makes it clear that 
the focus of the final standard is on the type of work performed, and 
whether that work could produce, and expose employees to, confined 
space hazards. Although final Sec.  1926.1201(a) differs slightly from 
proposed Sec.  1926.1202(a), this difference does not affect the scope 
of the final rule; it merely makes the scope more precise than the 
scope of the proposed rule. This change also is consistent with the 
proposed ``Introduction'' section in proposed Sec.  1926.1201(a).
    Final Sec.  1926.1201(a) includes a note with a non-exhaustive list 
of potential confined spaces that commonly occur on a construction 
worksite. This list provides examples for employers who may be 
unfamiliar with confined spaces in construction. The note to final 
Sec.  1926.1201(a) is identical to the note to proposed Sec.  
1926.1202(a).
    One commenter asserted that OSHA should exclude steel tanks, which 
OSHA included in the list of examples of confined spaces in 
construction in the proposed rule, from the new standard when the tanks 
are under construction because this activity does not produce an 
atmospheric hazard (ID-138, p. 2; -214.1, p. 4; -210, Tr. p. 217). In 
particular, the commenter asserted that contractors typically do not 
close entirely steel tanks under construction until the final phase of 
construction and that, prior to the final phase, the tanks typically 
have sufficient natural ventilation to prevent a hazardous atmosphere 
from forming. The final phase is typically conducted without any 
employees inside the tank (ID-210, Tr. p. 5).
    Whether a confined space exists is a separate analysis from whether 
a hazard exists, unless the hazard prevents unrestricted egress from 
the space. A steel tank is a confined space at any stage of 
construction when it has limited or restricted means for entry and exit 
(see the definition of a confined space in Sec.  1926.1202, which is 
discussed later in this preamble). However, OSHA recognizes that a 
significant portion of steel-tank construction activity may not result 
in work inside a confined space if contractors generally do not 
assemble the tank sections in a manner that would place an employee 
inside a space with limited egress. Even when construction of the tank 
results in such a space, the space may not contain a hazard that would 
render it a permit-required confined space. If the space is not a 
permit-required confined space, then the employer's duties are very 
limited. In such spaces, the employer's responsibility under this 
standard would be limited to verifying what the commenter asserts is 
true: There is no atmospheric hazard or other hazard. Nevertheless, the 
commenter acknowledged that welding activities in some steel tank 
construction, particularly for relatively small tanks, could produce 
the types of hazardous atmospheres this standard is intended to address 
(ID-210, Tr. pp. 228-229). Thus, OSHA is not categorically excluding 
steel tanks from coverage under this standard and continues to include 
steel tanks in the list of potential confined spaces to alert employers 
that the process of steel-tank construction could place employees in a 
space that meets the definition of a permit-required confined space.
    Another commenter asserted that the note did not include wind 
turbines (ID-210, Tr. p. 154). This commenter misunderstood the 
reference to ``turbines'' in the note in the proposed and final rules. 
The reference to ``turbines'' is general, and applies to all turbines 
that meet the definition of a confined space.
    It is important to note that only the presence of a hazard inside a 
confined space will trigger the majority of procedures required by this 
final rule. One commenter asserted that limited egress is a continual 
hazard to every employee in a confined space, regardless of whether any 
other hazards exist (ID-060, p. 3). Therefore, the

[[Page 25374]]

commenter argued that the permit requirements of this final rule, 
including the requirement to have a rescue service available, should 
apply to all confined spaces, even those spaces in which another hazard 
does not exist. This approach would apparently treat all confined 
spaces as permit spaces, which would be a radical departure from OSHA's 
longstanding treatment of confined spaces in the general industry. OSHA 
does not agree that such a departure, or the additional costs that 
employers would incur because of such departure, are warranted in the 
absence of employee exposure to some hazard inside the confined space. 
Limited egress in a confined space is a safety concern only when an 
employee cannot readily exit a confined space to avoid being exposed to 
a hazard within the space. Limited egress, by itself, is unlikely to 
injure or kill an employee. If limited egress is the only safety 
concern, then OSHA concludes that it is not reasonable to require 
employers to comply with the provisions of this final rule that pertain 
to permit spaces. In such a circumstance, employers already must follow 
existing construction standards that apply to work in an enclosed space 
(for example, Sec.  1926.353--Ventilation and protection in welding, 
cutting, and heating at, and Sec.  1926.55--Gases, vapors, fumes, 
dusts, and mists).
    Another commenter noted that the shipyard employment standard at 29 
CFR part 1915 includes confined spaces requirements and was unsure 
whether this new construction standard will apply to confined space 
construction work performed in a shipyard (ID-028, p. 1). It will. OSHA 
focuses on the type of work activity, not necessarily the location of 
the work activity, in determining whether this confined spaces in 
construction standard or the shipyard employment standard, part 1915, 
applies. See, e.g., Feb. 9, 2004, letter to Jack Swarthout.\2\ The 
shipyard employment standards apply to ship repairing, shipbuilding, 
ship breaking, and related employment. This confined spaces in 
construction standard covers confined space work in shipyards to the 
extent that it is construction work and is not ship repairing, 
shipbuilding, ship breaking, or related employment. An example in which 
this confined spaces in construction standard applies is the 
construction of a building on the grounds of a shipyard. Non-
construction work performed in a shipyard is not subject to this final 
rule; either Sec.  1910.146 or the shipyard employment standard at 29 
CFR part 1915, subpart B--Confined and Enclosed Spaces and Other 
Dangerous Atmospheres in Shipyard Employment would cover such work.
---------------------------------------------------------------------------

    \2\ All of the letters and memoranda included in this preamble 
are available at www.osha.gov.
---------------------------------------------------------------------------

    Paragraph (b) Exceptions. This paragraph explicitly excludes 
construction work regulated by 29 CFR part 1926, subpart Y--Diving, 
construction work regulated by 29 CFR part 1926, subpart P--Excavation, 
and construction work regulated by 29 CFR part 1926, subpart S--
Underground Construction, Caissons, Cofferdams and Compressed Air from 
the scope of this final rule. Accordingly, this provision exempts 
employers operating under one of the three listed exemptions from 
complying with this final rule for work within a confined space, so 
long as that work falls within the scope of one of the listed subparts.
    The Agency exempted each type of work covered by the listed 
subparts from the requirements of this standard because OSHA 
specifically tailored the existing requirements in these subparts to 
protect employees from the hazards associated with confined spaces. In 
addition, OSHA believes that overlapping standards covering these 
activities could be unnecessarily burdensome to employers, or cause 
some confusion about the appropriate procedures to use.
    Under Sec.  1926.1201(b)(3), this confined spaces standard does not 
apply to construction activities covered by 29 CFR part 1926, subpart 
Y, which encompasses diving and related support operations conducted in 
connection with all types of work and employments, including 
construction (29 CFR 1926.701, referencing 29 CFR 1910.401). As defined 
in subpart Y, a ``diver'' is an employee working in water using 
underwater apparatus which supplies compressed breathing gas at the 
ambient pressure (Sec.  1926.701, referencing Sec.  1910.402). The 
Agency notes that, if a diver engages in construction activity in an 
area that meets the definition of a confined space under this final 
rule, and is not working in water or removes his/her underwater 
breathing apparatus, then, in most cases, the activity is outside the 
scope of subpart Y because the employee is no longer a ``diver''; in 
such a case, the requirements of this confined spaces standard apply 
instead.
    The other exemptions set forth in final Sec.  1926.1201(b) are 
identical to the proposed exemptions except that OSHA removed the 
``non-sewer'' limitation for the exemption that applies to 29 CFR part 
1926, subpart P--Excavations and 29 CFR part 1926, subpart S--
Underground Construction. Under Sec.  1926.1201(b)(1) and (b)(2), OSHA 
exempted construction activities covered by subparts P and S. In its 
explanation in the proposed rule, the Agency noted that subparts P and 
S generally provide adequate protections against hazards in excavations 
and underground work (72 FR 67356 (Nov. 28, 2007)). In light of the 
additional hazards associated with sewers as continuous systems that 
often have hazardous atmospheres and engulfment hazards, the Agency 
proposed limiting the Excavations, and Underground Construction 
exemptions to ``non-sewer'' work, which would have the effect of 
applying this final standard, in addition to subpart P or subpart S, 
whenever an employer performed excavation or trenching construction 
work related to a sewer system. One commenter urged OSHA to limit the 
exemption further, characterizing subpart P as ``insufficient for 
addressing potential worker exposures to hazardous atmospheres,'' and 
asserting that this final rule should apply to excavations where a 
hazardous atmosphere exists because the confined spaces standard would 
provide more comprehensive protection for employees than the excavation 
standard (ID-105, p. 5). The commenter did not, however, provide any 
basis for this assessment. Two commenters emphasized the significance 
of the hazards posed by excavation, and urged OSHA to protect employees 
from those hazards; however, they did not discuss subpart P--
Excavations and did not provide a clear rationale for why those 
standards do not provide adequate protection for employees working in 
excavations (ID-032, p. 4; -034, p. 1).
    A different commenter asserted that OSHA should apply the confined 
spaces standard to hazards in excavation work not covered by the 
excavation requirements (ID-025, p. 2). In other words, OSHA should 
exempt excavation work unless there is a hazard present not addressed 
by subpart P--Excavations, but addressed by this confined spaces 
standard, in which case the confined-space requirements applicable to 
addressing that specific hazard would apply. The commenter did not 
provide an example of a hazard that could be present in excavations but 
not addressed by subpart P. Also, OSHA believes that the approach 
advocated by the commenter would lead to confusion, and may not promote 
safety. OSHA designed the confined spaces standard to work as a 
comprehensive system, not through piecemeal application. Therefore, 
OSHA concludes that it is

[[Page 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 Sec.  
1926.1201(b)(1)).
    Although the exemption in the final rule may be broader than the 
proposed exemption because the final rule does not cover underground 
sewer work and sewer excavation work, the expanded exemption is still 
consistent with OSHA's intent in the proposed rule. In proposing to 
apply the confined spaces standard to all sewer work, the Agency 
emphasized the extraordinary dangers associated with sewer systems, 
including the difficulties in isolating hazards in a contiguous system, 
and the extremely hazardous atmospheres that can develop in sewers and 
quickly cause fatalities. These dangers, however, primarily involve 
existing sewer structures, rather than construction of new sewer 
systems; new systems would not necessarily present such hazards until 
connected to an existing sewer system. Under this final rule, the 
limitations on the scope of subparts P and S will ensure that the 
confined-space requirements apply to most construction work within 
existing sewer structures, as explained in the following discussion of 
the interaction between this confined spaces standard and subparts P 
and S. In the context of sewer work, the principal hazards associated 
with the excavation work around the sewer lines are likely to be 
atmospheric hazards that arise from the soil surrounding an existing 
sewer pipe (from leaching or other sources), as well as potential 
hazards associated with the release of hazardous substances from the 
sewer pipe. These hazards are similar to the hazards encountered during 
excavation and underground work near landfills and water mains that 
OSHA exempted from coverage in the proposed rule because OSHA regarded 
the protections of subparts P and S as sufficient (see 72 FR 67356).
    OSHA considered the common scenario in which an employer digs down 
to an existing sewer line, then excavates a new trench in which it lays 
new sewer pipe and connects it to an existing sewer line. During the 
``tie in'' process of connecting the new sewer pipe to the existing 
sewer line, employees could potentially be exposed to atmospheric 
hazards and physical hazards emanating from the existing sewer line. 
While any entry into the existing sewer line, including placing any 
part of the body inside existing line (see definition of ``entry'' in 
Sec.  1926.1202), would be governed by the confined spaces standard, 
OSHA does not believe that hazards from the existing sewer line should 
subject the entire excavation project to the confined spaces standard. 
Employers already have a duty under subpart P to address the 
atmospheric and physical hazards in the excavation, and employers must 
anticipate and address the hazards that might come from the existing 
sewer line. Employers must use extreme caution in unsealing the 
existing sewer line. Before opening the existing line, employers must, 
whenever possible, isolate the existing line to be opened from the rest 
of the sewer and ensure that employees are removed from the excavation.
    Based on the record, OSHA concludes that subparts P and S are also 
sufficient to address the hazards associated with excavation work 
around sewers and the construction of new sewers, while the confined 
spaces standard will address the work inside the sewer pipes where the 
atmospheric and physical hazards are greatest.

Clarification of the Scope of Subparts P and S

    OSHA does not intend for this final standard to overlap with 29 CFR 
part 1926, subpart P or 29 CFR part 1926, subpart S. Each of these 
standards contains specific provisions addressing many of the same 
hazards that could arise in the same space. The Agency is, therefore, 
taking this opportunity to clarify the scope of subparts P and S 
relative to the scope of this final confined spaces standard, thereby 
simplifying the regulatory scheme for employers working in these 
spaces.
    Subpart P applies to ``all open excavations made in the earth's 
surface,'' including trenches (Sec.  1926.650(a)). For example, the 
work of digging trenches, shoring up the trenches, and placing a sewer 
pipe or other materials into the trenches are subject to subpart P. 
When an employer is excavating a trench to install a new storm drain, 
subpart P applies to all excavation and trenching activities. The final 
confined spaces standard applies, however, to non-excavation work 
within a confined space located in an excavation, as this work would 
expose employees to additional hazards besides excavation-related 
hazards. For example, this final standard covers entry into a 
prefabricated storm drain, other pipe, or manhole even if located at 
the bottom of an open excavation.
    Subpart S applies to the construction of underground tunnels, 
shafts, chambers, and passageways and cut-and-cover excavations which 
are both physically connected to ongoing underground construction 
operations within the scope of the subpart, and covered in such a 
manner as to create conditions characteristic of underground 
construction (Sec.  1926.800(a)(1)). For subpart S to apply, ``the 
tunnel or other underground structure must be under `construction.' '' 
See October 1, 2010, letter #20061017-7300. For example, the 
construction of an underground structure by boring a tunnel through 
soil and providing the concrete or metal supports necessary to preserve 
the opening is subject to subpart S, as are structural modifications 
such as upgrading a

[[Page 25376]]

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.
---------------------------------------------------------------------------

    \3\ OSHA previously determined that the underground construction 
requirements in subpart S also apply to tunnels placed underwater. 
See August 8, 2002, memorandum to K. Frank Gravitt. This new 
confined spaces standard does not affect that previous 
determination. However, this confined spaces standard does cover 
construction work that occurs inside an underwater tunnel following 
the initial construction of that tunnel.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \4\ Note that the distinctions discussed here are solely for the 
purposes of determining which construction standard applies. This 
discussion does not impact OSHA's analysis of whether an activity 
constitutes construction work as opposed to maintenance work.
    \5\ OSHA notes that in a 1991 memorandum the Agency applied 
subpart S to the ``rehabilitation'' of a sewer tunnel originally 
completed in 1932. January 21, 1991, memorandum to Michael Connors. 
OSHA issued the memorandum before it issued either this standard or 
the general industry standard for confined spaces, and, thus, before 
it had reason to consider potential overlap between a confined 
spaces standard and other construction standards, or could point to 
any other employee protections. Depending on the extent of the 
``rehabilitation'' and the activities involved, the new confined 
spaces standard may apply instead to such projects in the future. 
For example, subpart S would cover the ``rehabilitation'' of an 
existing tunnel that involves expansion of the existing sewer or an 
improvement of a collapsed wall. However, this final confined spaces 
standard would cover ``rehabilitation'' that consists of adding 
sealant to the existing tunnel structure, or attaching equipment or 
new materials to the tunnel walls. To the extent that the 1991 
memorandum requires a different result, this final standard 
supersedes it.
---------------------------------------------------------------------------

    One commenter representing homebuilders asserted that house 
foundations and basement excavations become ``trenches'' when 
contractors construct formwork, foundations, or walls, and, therefore, 
subpart P, rather than the final confined spaces standard, should cover 
these work areas (ID-117, pp. 6 and 7). According to the commenter, 
OSHA should not consider this type of work area a confined space 
because it is subject to natural ventilation. Whether a work area is 
subject to natural ventilation is not dispositive in determining 
whether the area meets the definition of a confined space in final 
Sec.  1926.1202. However, if the work is ``excavation'' work or 
``trench'' work under subpart P, then this final rule would not apply. 
OSHA agrees that subpart P, and not this confined spaces standard, 
would apply to the construction of most house foundations in an 
excavated area until the contractor backfills the area adjacent to the 
foundation or otherwise covers the foundation or the other areas. 
However, depending on the particular circumstances at the worksite, 
once the backfill or other covering occurs, the area inside the 
foundation space could be a confined space subject to this final rule 
if it meets all of the criteria in the definition of a confined space 
in Sec.  1926.1201.

Other Requests for Exemptions

1. Home Construction
    One commenter requested that OSHA exempt the following areas from 
coverage under this standard: attics, crawl spaces, basements, 
cabinets, and ``similar areas in home building'' (ID-117, pp. 6 and 7). 
The commenter's rationale for these exemptions was that these spaces 
``do not contain hazardous atmospheres or engulfment hazards'' (id). 
The commenter did not provide any basis for the assertion that these 
areas are inherently free of the identified hazards, and OSHA does not 
agree that these spaces are always inherently free from such hazards. 
Hazardous gases or other substances may occur in almost any confined 
space. For example, one employee may store or apply an epoxy or other 
chemical in a crawl space, which could expose that employee or a 
subsequent entrant to a hazardous atmosphere. A different commenter 
noted that surface coatings such as paints and epoxies are seemingly 
stable, and, while generally undetectable through air monitoring once 
applied and dried, could result in significant safety and health 
hazards to employees who are welding or involved in other hot work in a 
confined space (ID-213.1, pp. 6 and 7).
    Moreover, hazardous atmospheres and engulfment hazards are only two 
types of hazards that could cause death or serious injury to employees 
in a confined space. The commenter requesting the exemption did not 
provide any indication that the spaces would be free of physical 
hazards that could trap, kill, or seriously injure the employees. In 
fact, the final economic analysis for this rule cites several 
fatalities that resulted from exposure to physical hazards (generally 
electrical) in crawlspaces under homes. Therefore, a categorical 
exemption for these types of spaces is inappropriate, and would be 
inconsistent with the purpose of the standard.
    However, while a categorical exemption is not appropriate, OSHA 
anticipates that, in new construction, employers may be able to 
organize work practices to avoid placing workers in areas that meet the 
definition of a confined space (for example, complete work in what will 
eventually become a crawl space before constructing the overhead 
portion of the crawl space, apply insulation to an attic floor before 
the underlying ceiling below it is installed, complete basement work 
before the overhead structure is installed or after stairways are in 
place). Furthermore, if the commenter is correct that the majority of 
the spaces it identified do not contain a hazardous atmosphere or other 
hazards, then the employer would have only a limited duty under this 
standard because a permit program would not be necessary if the spaces 
do not contain such hazards. Accordingly, employers would only need to 
identify the spaces and ensure that the confined spaces remain free of 
hazards.
2. 29 CFR Part 1926, Subpart V Work
    Commenters representing the electric utilities asserted that OSHA 
should not

[[Page 25377]]

require employers engaged in 29 CFR part 1926, subpart V work to follow 
two different confined spaces standards (ID-112, pp. 3 and 4; -134, p. 
2; -210, Tr. pp. 106-108, 142). These commenters stated that general 
industry electric-utility work practices are similar to construction 
electric-utility work practices. OSHA addresses the commenters' 
preference to have identical confined-space provisions applicable to 
both general industry and construction earlier in this preamble where 
the Agency explains why it chose to adopt a modified version of the 
general industry standard as the confined spaces in construction final 
rule. As discussed there, OSHA will also treat compliance with this new 
rule as compliance with the general industry confined spaces rule when 
one or more employers are engaged in both general industry work and 
construction work at the same time in the same space.
    To the extent that the commenters were requesting that OSHA exempt 
all subpart V work from all of the new confined-space requirements in 
final subpart AA, OSHA declines to do so. First, the general industry 
standard includes no such broad exemption, and the record does not 
indicate why electric-utility industry work in confined spaces is less 
hazardous or otherwise less suitable for coverage by a confined spaces 
standard than the work of any other industry. The general industry 
electric power generation, transmission, and distribution rule, Sec.  
1910.269, does not exempt that industry from the general industry 
confined-space requirements at Sec.  1910.146: to the contrary, the 
``enclosed spaces'' provision in Sec.  1910.269(e) expressly requires 
employers to comply with the requirements in Sec.  1910.146 when the 
enclosed-space entry will not be routine in nature or the space 
contains a hazardous atmosphere that cannot be controlled through the 
steps specified in Sec.  1910.269(e).
    As explained earlier in this preamble, OSHA anticipated in its 
recent amendments to the corresponding construction rule, 29 CFR part 
1926, subpart V--Electric Power Generation, Transmission, and 
Distribution; Electrical Protective Equipment, that the confined spaces 
in construction standard would provide the parallel integral 
protections to employers engaged in construction work that involves 
conducting non-routine entries into enclosed spaces, or where the 
enclosed spaces contain hazards that are not controlled by the enclosed 
spaces requirement (see Sec.  1926.953(a) and its explanation at 79 FR 
20375-20376).). OSHA explained that the enclosed spaces provisions in 
Sec.  1926.953(a) are only intended to address routine entries with a 
limited type of hazard, while the general industry confined spaces 
standard (which the Agency noted it intended replace with the 
construction version in this final rule) applies to all other entries 
into enclosed spaces. The confined space standard ``ensures that 
employees working in enclosed spaces will be afforded protection in 
circumstances in which the Subpart V provisions are insufficiently 
protective'' (79 FR 20376). If OSHA exempts employers engaged in 
subpart V work from the confined spaces standard, it would be creating 
a regulatory gap that is not present in the general industry context.
    The commenter asserted that electric utility work in ``power 
generation facilities and other electric utility installations'' is 
sufficiently similar that OSHA has previously acknowledged it should be 
regulated in the same manner, regardless of whether the employer is 
engaged in construction or general industry activity (ID-112.1, p. 4-
5). To the extent that this commenter is requesting greater consistency 
between the construction rule and the general industry rule, OSHA has 
provided that in this final rule. To the extent that this commenter is 
requesting an exemption from the construction standard so that it could 
comply instead with the general industry standard, OSHA disagrees 
because such an approach would result in a regulatory gap. Section 
1910.146 is a general industry standard that, by its own terms, could 
not apply to construction activities beyond the scope of the previous 
Sec.  1926.953 incorporation, but that incorporation of Sec.  1910.146 
was limited: it only applied to routine entries into enclosed spaces. 
Not all enclosed spaces are permit-required confined spaces and not all 
entries are routine. Further, while in general industry, ``routine'' 
entries for maintenance work covers a relatively broad range of 
activities, in the context of construction work a ``routine'' entry 
would be much narrower. In practice, a complete exemption from the new 
construction rule for confined spaces would leave many subpart V 
workers completely unprotected from the hazards in many confined 
spaces.
    Paragraph (c)--Other Standards. This final rule replaces the 
confined spaces training requirement previously specified in Sec.  
1926.21(b), but does not replace any other construction standards. 
Rather, OSHA developed this final rule to work in conjunction with 
other construction standards to provide additional protections needed 
to address hazards that may arise when employees are working in or near 
a confined space. No requirement in this confined spaces final rule 
supplants or diminishes employer duties imposed by any other OSHA 
standard, and the Agency included Sec.  1926.1201(c) in this final 
standard to emphasize that point. When both the scope of final Sec.  
1926.1201 and the provisions in another OSHA construction standard 
related to confined-space hazards cover an activity, OSHA requires 
employers to comply with both provisions (Sec.  1926.1201(c)). For 
example, while 29 CFR part 1926, subpart D--Occupational Health and 
Environmental Controls contains requirements for ventilation when 
working in potentially hazardous atmospheric conditions, it does not 
address other equipment or workplace conditions covered by this final 
rule. Therefore, where a potential hazardous atmosphere exists and this 
final confined spaces rule requires ventilation to control that hazard, 
the employer must ventilate in accordance with Sec.  1926.57. However, 
the remaining provisions of this confined spaces rule will still apply: 
for example, if the situation requires rescue, the employer must 
provide rescue in accordance with this final rule.
    In the preamble to the proposal, OSHA also discussed the overlap of 
the confined-spaces standard with its construction welding standard in 
subpart J of 29 CFR part 1926. The Agency explained that both standards 
would apply, noting for example that subpart J sets criteria for the 
use of a lifeline system in the confined space, but does not set 
criteria for the use of rescue services or provide the same level of 
procedures and controls for permit-required confined spaces (72 FR 
67356 (Nov. 28, 2007)). OSHA designed the welding standard to protect 
employees solely from the hazards of welding, which include metal fume, 
gases, and smoke hazards associated with the welding process, physical 
hazards from the welding device or contact with the hot welding 
surface, potential explosion of the gas tanks, and hazards from working 
with specific materials. The confined-spaces standard, however, 
addresses a wider range of hazards than the welding standard, and OSHA 
considers the confined-spaces standard more detailed and comprehensive 
than the welding standard in its protection of employees from those 
other hazards for purposes of 29 CFR 1910.5(c).\6\ Although the

[[Page 25378]]

welding standard has a section designed to address the hazards of 
welding in a confined space, the Agency is applying the provisions of 
the confined-spaces standard to all other hazards associated with 
confined-spaces work to the extent these provisions of the confined-
spaces standard do not conflict with employee protections in subpart J. 
Therefore, as OSHA explained in the proposal, the rescue service and 
entry procedures must meet the requirements of this confined-spaces 
standard, while the employer must use a lifeline system as required to 
meet the criteria in subpart J. Specifically, employers must comply 
with the requirements of Sec.  1926.1203(c) to prevent unauthorized 
entry, and the subpart AA requirements to implement a permit program 
(including posting a permit) to provide for entry in accordance with 
Sec. Sec.  1926.1203(d), 1926.1204, 1926.1205, and 1926.1206. Employers 
must comply with the ventilation requirements in Sec.  1926.353(a) of 
subpart J to address atmospheric hazards produced by welding fumes, but 
employers also must comply with Sec.  1926.1204(c), which requires 
ventilation as necessary to control any atmospheric hazards beyond 
those generated by welding because the welding standard does not 
address those hazards. Employers also must comply with the 
identification, assessment, and information-exchange and coordination 
requirements in Sec.  1926.1203(a), (b), and (h), and the relevant 
training required by Sec.  1926.1207. Employers must develop a rescue 
plan in accordance with Sec.  1926.353(b)(3) of subpart J, but also 
must assess and select a rescue service in accordance with Sec. Sec.  
1926.1204(i) and 1926.1211(a) and (c), and equip and train its in-house 
rescue services pursuant to Sec.  1926.1211(a) and (b). Finally, 
employers must comply with additional confined-spaces requirements not 
addressed in the welding standard, such as the requirement to make 
Safety Data Sheets available to the medical facility treating any 
entrant exposed to hazardous substance (Sec.  1926.1211(d)), and the 
employee-participation requirements in Sec.  1926.1212.
---------------------------------------------------------------------------

    \6\ The OSHA regulation addressing the overlap of different 
standards is in 29 CFR 1910.5. Paragraph (c)(1) of that regulation 
states that if a particular standard is specifically applicable to a 
condition, practice, means, method, operation, or process, it shall 
prevail over any different general standard which might otherwise be 
applicable to the same condition, practice, means, method, 
operation, or process. Paragraph (c)(2), however, provides that any 
standard shall apply according to its terms even though particular 
standards are also prescribed for the industry to the extent that 
none of such particular standards applies. The Agency interprets 
this regulation in this context to mean that the welding standard is 
the more specific standard addressing welding hazards and, 
therefore, applies to welding activities even when conducted in 
confined spaces; however, several provisions of the confined-spaces 
standard apply to confined-space hazards not addressed by the 
welding standard (see examples later in this paragraph), and 
employers must comply with these provisions when their employees are 
exposed to these hazards during confined-space operations.
---------------------------------------------------------------------------

    Subpart D--Occupational Health and Environmental Controls, at Sec.  
1926.64(f)(4) and (j), discussed above, and in subpart V--Power 
Distribution and Transmission, at Sec.  1926.950(a), provide other 
examples of potential overlap with existing standards. In general, the 
final confined-spaces standard applies to hazards not addressed by 
subpart V. Subpart V generally protects employees from electrical 
hazards but does not necessarily address a hazardous atmosphere or 
other physical hazards in the confined space; the requirements of the 
confined-spaces standard address those hazards, and employers must 
comply with these requirements during confined-spaces operations. For 
example, in Sec.  1926.953 of subpart V OSHA specifically addresses the 
overlap between the ``enclosed spaces'' requirements of subpart V and 
the confined spaces standard, mandating compliance with the confined-
spaces requirements when hazards remain even after an employer has 
complied with all of the measures described in subpart V.
    Language in proposed Sec.  1926.1202(d) not included--Statement on 
other duties of controlling contractors. Proposed Sec.  1926.1202(d) 
contained a statement that the information-sharing requirements in the 
rule do not limit a controlling contractor's responsibilities under any 
other provisions of the rule or the OSH Act, including those 
responsibilities described in OSHA Directive CPL 02-00-124: Multi-
Employer Citation Policy (Dec. 10, 1999). The proposed rule text listed 
several specific examples of controlling contractor duties.
    OSHA is not including that statement or any equivalent statement in 
the final rule for several reasons. First, such a statement is 
unnecessary because it is only a reminder that OSHA has a wide variety 
of health and safety standards that could apply to various activities 
of controlling contractors and host employers, depending on their 
activities and responsibilities. OSHA does not typically include such a 
reminder in the regulatory text of its standards. For example, OSHA 
does not include a similar statement in the general industry confined 
spaces standard even though that standard includes specific duties for 
host employers, and the host employers could also have additional 
duties under other standards or if they qualify as controlling 
employers or exposing employers under OSHA's multi-employer citation 
policy.
    Second, OSHA is concerned that the regulated community will view 
the inclusion of such a statement in this standard as implying that 
standards without the same statement preempt other potentially 
applicable standards or policies. OSHA did not intend such an 
implication, and it does not have the time or resources to revise all 
of its standards to include this statement.
    Third, several commenters found fault with the statement in the 
proposed rule. One commenter noted the statement was incomplete because 
it addressed controlling contractors, not host employers (ID-117, p. 
19). Another commenter implied that the statement would not be helpful 
unless it listed all of the other potential duties to which controlling 
contractors could be subject (ID-211, Tr. p. 76).

1926.1202--Definitions

    Final rule Sec.  1926.1202 provides definitions for key words used 
to describe the requirements of this final rule. OSHA adopted most of 
the definitions from its general industry confined spaces standard (29 
CFR 1910.146); most definitions also are generally consistent with the 
voluntary consensus standard on confined spaces, ANSI Z117.1-2003. 
Unless otherwise noted, these definitions are applicable only to this 
confined spaces in construction standard; OSHA added an introductory 
statement to that effect in Sec.  1926.1202 of the final rule. OSHA 
took many of the definitions of the terms used in final rule Sec.  
1926.1202 from other OSHA construction standards; the Agency included 
these definitions in this final rule to minimize the need to reference 
those other standards.
    Several commenters objected that some of the definitions of terms 
used in the proposed confined spaces in construction standard were 
different than the definitions for identical terms in the general 
industry confined spaces standard at Sec.  1910.146(b) (ID-086, p. 3; -
112, p. 7; -147, pp. 2-3). For the reasons set forth in section II.B 
(History) of this preamble, in the final rule OSHA revised many of 
these definitions so that the terms are consistent with the general 
industry terms defined at Sec.  1910.146(b): entry, entry supervisor, 
hazardous atmosphere, immediately dangerous to life and health, permit-
required confined space, rescue service, retrieval system, and testing.
    In addition, OSHA included some terms in the Definitions section of 
this final rule not defined in the proposed rule, but defined in the 
general industry confined spaces standard at

[[Page 25379]]

Sec.  1910.146(b), including: acceptable entry conditions, hot work, 
inerting, line-breaking, non-permit confined space, and prohibited 
condition. Again, for the reasons explained in preamble section II.B 
(History), OSHA made definitions of these terms in this final rule 
consistent with Sec.  1910.146(b). In general, OSHA defined the terms 
identically to the general industry standard or revised the definition 
slightly to make grammatical improvements or to clarify the meaning of 
the term. When OSHA deviated substantively in the final definition from 
the term as defined in Sec.  1910.146(b), the Agency explains its 
reasons for doing so in the individual preamble paragraph addressing 
that definition.
    One commenter urged OSHA to define certain terms exactly as ANSI Z-
117.1-.2003 defines the terms (ID-086, p. 3). The Agency does not agree 
that such an approach is appropriate. The commenter did not explain why 
the definitions as proposed were inappropriate, how the change would 
improve safety, or why the consensus standard was preferable to the 
longstanding definitions in the general industry standard that most 
commenters supported. OSHA selected the definitions in this final rule 
specifically for the activities and equipment covered by this final 
rule and, to the extent possible, to be consistent with the definitions 
in Sec.  1910.146(b) so as to reduce confusion among the regulated 
community and facilitate compliance. In many cases, the ANSI standards 
were not as clear or comprehensive as the final language, and therefore 
less preferable for a mandatory and legally enforceable standard.
    Some commenters also noted that OSHA proposed definitions for many 
terms not defined in Sec.  1910.146(b) (ID-112, p. 9; -147, pp. 2-3). 
These commenters did not, however, specifically object to these 
definitions, identify errors, suggest improvements, or otherwise give a 
reason why OSHA should not include these definitions in the final rule. 
In this regard, the final standard uses some terms, such as early 
warning system and controlling contractor, not used in the general 
industry confined spaces standard. The general industry confined spaces 
standard uses other terms not defined in Sec.  1910.146(b). In general, 
for definitions in either of these categories, OSHA made the definition 
in this final rule identical to the definition in the proposed rule. 
When the Agency includes in the final rule a definition that does not 
have a parallel definition in the general industry standard, and when 
the Agency revises a definition from the proposed definition, it 
explains the reasons for its decision below in the discussion 
accompanying that definition.
    OSHA also decided not to include several of the proposed 
definitions, such as definitions of contractor, controlled atmosphere 
confined space, and isolated hazard confined space in this final rule 
because OSHA did not use these terms in this final rule. In addition, 
the final rule does not include a definition of ``protect'' or 
``protection'' because the Agency believes these terms, as used in this 
final rule, are sufficiently clear from their ordinary use. The general 
industry standard uses these terms without definition. In addition, the 
general industry standard does not include a definition of ``control,'' 
but OSHA is including a definition of this term in this final rule to 
clarify that ventilation and other atmospheric controls provide some 
level of worker protection, even if such measure are not fully 
protective.
    OSHA believes that the construction industry readily understands 
most of the defined terms in the final rule because these terms are 
self-explanatory or are consistent with the definitions used in Sec.  
1910.146 and ANSI 117.1-2003. Nevertheless, OSHA includes an expanded 
discussion for several of the defined terms, and, when necessary, 
explains differences between the definition in the final rule and the 
definitions contained in either the proposed rule or Sec.  1910.146(b). 
The Agency also addresses comments on terminology received during the 
SBREFA process and the public comment period, including comments made 
through testimony during the public hearing.
1. Defined Terms
    Acceptable entry conditions means the conditions that must exist in 
a permit space, before an employee may enter that space, to ensure that 
employees can safely enter into, and safely work within, the space. The 
definition differs slightly from the definition of the term in Sec.  
1910.146(b). OSHA added ``before an employee may enter that space'' to 
clarify that employers are to measure and determine ``acceptable entry 
conditions'' before entry. Once entry occurs, the employer must 
continue to monitor the permit space and terminate the entry if a 
prohibited condition (i.e., a condition that is not an ``acceptable 
entry condition'') arises. (See the discussion of final Sec.  
1926.1204(c)(1) for an explanation of how an employer must consider the 
work it will perform inside a confined space when identifying 
``acceptable entry conditions.'') In the NPRM, OSHA defined ``planned 
condition'' in a similar manner. In the final rule, OSHA uses and 
defines the term in the same manner as the general industry standard to 
provide consistency between the two standards.
    Attendant means an individual stationed outside one or more permit 
spaces who assesses the status of authorized entrants and who must 
perform the duties specified in Sec.  1926.1209--Duties of Attendants. 
The general industry definition of ``attendant'' refers to an attendant 
who performs ``all attendant duties assigned. . ..'' In the final 
construction rule, the attendant's duties are specified in Sec.  
1926.1209--Duties of Attendants. OSHA refers to an attendant's 
responsibility to ``assess,'' rather than ``monitor'' as in the general 
industry standard, because ``monitor'' is a term of art in the new 
standard (but not under the general industry standard). However, there 
is no substantive difference from the definition in the general 
industry standard.
    Authorized entrant means an employee who is authorized by the entry 
supervisor to enter a permit space. The general industry rule defines 
``authorized entrant'' based on who the employer authorizes to enter 
the permit space. OSHA shifted the focus to who the entry supervisor 
authorizes to enter the space to avoid confusion about who the 
authorizing employer is on a multi-employer worksite. This revision 
clarifies that an entry supervisor has the duty to identify the 
authorized entrants on the entry permit, regardless of whether or not 
they are employees of another employer.
    Barrier means a physical obstruction that blocks or limits access. 
One commenter suggested that OSHA place a note under the definition of 
``barrier'' explaining that a barrier does not block or limit egress 
(ID-025, p. 2). This revision is unnecessary because there are 
provisions in the final rule that require employers to provide 
unobstructed egress when employees are inside a confined space. For 
example, final rule Sec.  1926.1204(d)(7) requires an employer to 
provide equipment needed for safe egress from a Permit-Required 
Confined Space (``PRCS'' or ``permit space''), and final rule Sec.  
1926.1208(e) requires the authorized entrant to exit a PRCS as quickly 
as possible under certain circumstances. Therefore, an employer would 
be in violation of this final rule when a barrier that prohibits or 
limits persons from entering a PRCS from outside the space also 
prohibits or limits

[[Page 25380]]

egress for authorized entrants seeking to exit the permit space, even 
though the definition of ``barrier'' does not address egress 
explicitly. Locking a bolt on a door that is the only means of egress 
from a permit space, for example, could constitute a prohibited barrier 
that would interfere with egress from the permit space.
    Blanking or blinding means the absolute closure of a pipe, line, or 
duct by fastening a solid plate (such as a spectacle blind or a skillet 
blind) that completely covers the bore, and that is capable of 
withstanding the maximum pressure of the pipe, line, or duct with no 
leakage beyond the plate. OSHA took this definition directly from Sec.  
1910.146, and uses this term the same way in this final rule as in the 
general industry standard.
    Competent person means a person capable of identifying existing and 
predictable hazardous conditions, and who has the authority to address 
them promptly. Section 1926.1203 of the proposed rule did not use or 
define ``competent person,'' but required the employer to identify and 
assess confined spaces. Several commenters suggested that OSHA clarify 
that a competent person make these determinations, and to include in 
the final rule the same definition for ``competent person'' as the one 
contained in other OSHA construction standards (ID-025, p. 2; -028, p. 
4; -095, p. 2; -124, p. 7; -150, p. 3). OSHA agrees with these 
commenters and, therefore, added its customary definition to the final 
rule. OSHA uses this well-known definition in several of its 
construction standards. See, e.g., Sec. Sec.  1926.32(f), 1926.450(b), 
1926.650(b), 1926.751, and 1926.1401; see also the discussion of final 
Sec.  1926.1203(a) for a further explanation of why OSHA included a 
competent person requirement in this final rule.
    Confined space means a space that: (1) Is large enough and so 
configured that an employee can bodily enter it; (2) has limited or 
restricted means for entry and exit; and (3) is not designed for 
continuous employee occupancy. OSHA based the definition of ``confined 
space'' on the definition of ``confined space'' in the general industry 
confined spaces standard at Sec.  1910.146(b). It describes a space 
where three elements exist. First, the configuration of the space is 
such that a person can enter into it with his/her entire body (although 
the ``entry'' occurs as soon as any part of the body crosses into the 
confined space).\7\ Second, there is limited or restricted entry or 
exit from the space. Third, the space is not designed for continuous 
employee occupancy.
---------------------------------------------------------------------------

    \7\ See March 5, 2008, letter to Andrew Lewis (no confined space 
where it is impossible for employee to fit his entire body into the 
space); October 18, 1995, letter to Charles M. Bessey (entry occurs 
when any part of the body breaks the plane of the opening of a space 
large enough to allow full entry, regardless of intent to fully 
enter).
---------------------------------------------------------------------------

    OSHA is not including in the definition of ``confined space'' in 
the final rule the requirement that employees be able to ``perform 
assigned work,'' which it included in the general industry definition 
in Sec.  1910.146(b). OSHA did not include this phrase in this final 
standard because it was superfluous, and to avoid arguments that it 
added ambiguity. Some in the regulated community might attempt to 
interpret the phrase incorrectly to suggest that this final standard, 
and the majority of the protections provided by the standard, would not 
apply if the entrant did not have an assignment to perform on entering 
the space, or if the employee was unable to perform work inside the 
space. Therefore, this final rule addresses confined spaces in terms of 
the hazards present, rather than the purpose for entering the space. By 
removing the unnecessary language from the proposed definition of 
``confined space,'' OSHA makes it clear that this final standard covers 
any entry into a confined space. This does not imply that ``performed 
assigned work'' has a substantive meaning in the general industry 
standard; OSHA is simply taking the opportunity to improve the language 
of the definition as it proposed. OSHA did not include the ``perform 
assigned work'' language in the proposed definition of ``confined 
space'' adopted in this final rule, and received no comment on the 
absence of that language.
    The final definition also includes an additional change from the 
general industry standard. The definition of ``confined space'' in 
Sec.  1910.146(b) contains examples of different types of confined 
spaces in a parenthetical to the second part of the definition. OSHA 
did not include this parenthetical in this final rule to avoid 
confusing these examples with a note to Sec.  1926.1201(a) that 
provides a more comprehensive, but not exclusive, list of examples of 
confined spaces.
    One commenter asserted that the proposed definition of a confined 
space is too broad because it includes attics, crawlspaces, cabinets, 
unfinished basements, swimming pools, window wells or utility closets 
that contain water heaters in single-family residential homes, but 
those spaces ``do not present the kind of risk the standard is intended 
to address.'' (ID-117, p. 5). Although some of these spaces could meet 
the definition of a confined space, the Agency does not agree that this 
definition is too broad. As noted earlier when OSHA rejected the same 
commenter's request for a complete exemption from the standard, the 
commenter provides no support for the assertion that these spaces do 
not present the kind of risks this standard is addressed and the crawl-
space fatalities included in the final economic analysis clearly 
demonstrate that these spaces are not inherently safe. OSHA defined the 
term broadly to ensure that employers perform the requisite evaluation 
to determine whether a known or potential hazard exists in those 
spaces. The majority of the requirements of this final rule would apply 
only if a known or potential hazard is found to exist in the confined 
space, but the initial assessment required by this standard is crucial 
to discovering whether such hazards are present. Therefore, an employer 
performing construction work inside attics or any of the other spaces 
noted by this commenter must comply with only the reevaluation 
provisions in this final rule when no atmospheric or physical hazard 
exists in a confined space. If an employer does not wish to conduct an 
evaluation, then the employer can either prevent its employees from 
entering the space or design the construction process to avoid the need 
for entry into a confined space.
    One commenter expressed confusion as to the meaning of the third 
element of the confined space definition: ``not designed for continuous 
employee occupancy'' (ID-119, p. 5). The third element captures all 
spaces where conditions are such that employees would normally exit the 
space relatively soon after entering, absent the construction activity. 
When determining whether a space is designed for continuous occupancy, 
it is appropriate to focus on the design of the space and whether that 
space is still configured as designed. See October 22, 1993, letter to 
Robert Bee; December 20, 1994, letter to Edward Donoghue; June 22, 
1995, letter to Dan Freeman (noting difference between the ``primary 
function'' and ``design'' of a confined space). For example, if a space 
that meets the definition of a confined space has a powered ventilation 
system that allows for continuous occupancy, but that system is not 
functional or the construction activity would interfere with the proper 
function of that system, then the space would be a confined space 
subject to this final standard. See

[[Page 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 Sec.  1926.1201(a) 
provides examples of locations where confined spaces may occur. In 
addition, OSHA notes that numerous letters of interpretation are 
available providing additional guidance as to the meaning of a 
``confined space'' in the context of the general industry standard. 
OSHA is adopting into its construction rule the guidance regarding the 
definition of a confined space provided by the letters of 
interpretation referenced in the previous paragraph. In addition, the 
following letters apply with respect to the definition of a confined 
space in this final standard as they did to the general industry 
standard: September 19, 1994, letter to Edward Donoghue Associates, 
Inc. (elevator pit can be a confined space); June 15, 1992, letter to 
George Kennedy (storm sewer manhole entrance can be a confined space); 
July 11, 1995, letter to Alan Sefton (entry by a robot does not trigger 
the standard); October 23, 1995, letter to Mark Arriens (roll off 
container, dump truck bed, and truck trailer can be confined spaces); 
October 27, 1995, letter to James Sharpe (entry limited if employee 
must bend down to avoid striking the top of an opening or step over a 
raised threshold); February 8, 1996, letter to Remi Morrissette 
(personnel airlock can be a confined space when both sets of doors 
cannot open at the same time); April 24, 1998, letter to Gregory Faeth 
(30-inch deep chest-type freezer not a confined space when person can 
simply stand up to get out); December 2, 2002, letter to Art Varga 
(dock leveler pit can be a confined space); March 8, 2005, letter to 
Ron Sands (box van of truck is not a confined space as normally used 
and configured). The Agency notes, however, that any guidance 
previously provided with respect to its previous confined spaces in 
construction standard, 29 CFR 1926.21, is no longer applicable or in 
effect. See, e.g., July 10, 2006, letter to John Williams II.
    One commenter requested that OSHA clarify the distinction between 
an ``enclosed space'' and a ``confined space,'' and another commenter 
suggested that OSHA provide additional discussion of the hazards of an 
``enclosed space'' in this final rule (ID-119, p. 6; -140, p. 4). As 
OSHA stated in the preamble to the proposed rule, the Small Business 
Advocacy Review Panel recommended that OSHA examine the benefits and 
costs associated with provisions addressing hazardous-enclosed spaces 
(72 FR 67398 (Nov. 28, 2007)). Consequently, the Agency decided not to 
include any new or additional requirements for hazardous-enclosed 
spaces in the final rule. Instead, OSHA relies on existing standards, 
such as Sec.  1926.55--Gases, vapors, fumes, dusts, and mists, to 
address the hazards of working inside enclosed spaces. OSHA Technical 
Information Bulletin 02-05-30 is available to employers who are looking 
for guidance on the particular hazards of working in enclosed spaces. 
For example, this bulletin states that the OSHA respirator standard may 
apply when employees are working in enclosures that do not meet the 
definition of ``confined space.''
    Another commenter questioned the inclusion of spaces equipped with 
ladders or stairways for employee entry or exit in the proposed 
definition of ``confined space'' (ID-013, p. 5). Both the proposed and 
final definitions of ``confined space'' include ``limited or 
restricted'' entry or exit. A space where an employee can enter or exit 
only with the use of a stairway or a ladder, like an attic, generally 
meets this definition of a confined space. See, e.g., October 27, 1995, 
letter to James Sharpe. The following guidance provided earlier by OSHA 
with respect to the general industry standard definition of this term 
also is applicable to this construction standard:

    Ladders, and temporary, movable, spiral, or articulated stairs 
will usually be considered a limited or restricted means of egress. 
Fixed industrial stairs that meet OSHA standards will be considered 
a limited or restricted means of egress when the conditions or 
physical characteristics of the space, in light of the hazards 
present in it, would interfere with the entrant's ability to exit or 
be rescued in a hazardous situation.

OSHA Directive CPL 02-00-100: Application of the Permit-Required 
Confined Spaces (PRCS) Standards, 29 CFR 1910.146 (May 5, 1995), 
Appendix E.
    OSHA also clarified in the context of the general industry confined 
spaces standard that, although the Agency does not generally consider 
doorways and other portals through which a person can walk to be 
limited means of entry or exit, it may deem a space containing such a 
door or portal to be a confined space if the door or portal hinders an 
entrant's ability to escape from the confined space in an emergency 
(see 59 FR 55208 (Nov. 4, 1994)). The same interpretation applies in 
the construction context. OSHA provided the following explanation in 
its compliance directive on the general industry rule, which also 
applies in the construction context:

    A space has limited or restricted means of entry or exit if an 
entrant's ability to escape in an emergency would be hindered. The 
dimensions of a door and its location are factors in determining 
whether an entrant can easily escape; however, the presence of a 
door does not in and of itself mean that the space is not a confined 
space. For example, a space such as a bag house or crawl space that 
has a door leading into it, but also has pipes, conduits, ducts, or 
equipment or materials that an employee would be required to crawl 
over or under or squeeze around in order to escape, has limited or 
restricted means of exit. A piece of equipment with an access door, 
such as a conveyor feed, a drying oven, or a paint spray enclosure, 
will also be considered to have restricted means of entry or exit if 
an employee has to crawl to gain access to his or her intended work 
location. Similarly, an access door or portal which is too small to 
allow an employee to walk upright and unimpeded through it will be 
considered to restrict an employee's ability to escape.

OSHA Directive CPL 02-00-100: Application of the Permit-Required 
Confined Spaces (PRCS) Standards, 29 CFR 1910.146 (May 5, 1995), 
Appendix E.
    Another commenter asked OSHA to clarify whether a space that is 
temporary can still meet the definition of a confined space in the 
final rule (ID-136, p. 2). For example, the commenter asserted that a 
space constructed for the sole purpose of allowing employees to 
temporarily work over the end of a large open gas pipe could qualify as 
a confined space. In this particular example, the commenter emphasized 
the need for an employer to address the hazard of establishing an 
oxygen-deficient atmosphere as a result of purging the pipe with 
nitrogen.
    OSHA agrees that a temporary space, including the temporary space 
provided in the commenter's example, can be a ``confined space.'' The 
fact that the space described by the commenter is temporary does not 
prevent the space from meeting the definition of a confined space in 
this final rule. The temporary character of the space may be the most 
readily apparent factor in determining whether a temporary space would 
permit continuous employee occupancy.
    OHSA did not define the term ``contractor'' in the final rule, as 
it did in the proposed rule. One commenter recognized that OSHA's 
proposed definition of ``contractor'' excluded controlling contractors 
(ID-099, p. 1). To simplify the terminology used throughout the 
standard, to address the inconsistency identified by the commenter, and 
to avoid other confusion with the term ``controlling contractor,'' OSHA 
is using terms more precisely in the final rule. OSHA uses

[[Page 25382]]

the term ``employer'' to refer generically to employers, including 
employers that meet the final rule's definitions of ``controlling 
contractor'' or ``host employers.'' OSHA also added the term ``entry 
employer'' to refer to employers performing confined-space entry. As 
discussed elsewhere in this preamble the Agency also is using 
``controlling contractor'' and ``host employer'' to refer to other 
specific types of employers when necessary.
    Control, as defined in this final standard, is an action taken, 
through engineering methods, to reduce the hazard level inside a 
confined space, including the maintenance of this reduced hazard level. 
This definition is consistent with the use of the term in the general 
industry confined spaces standard, although OSHA did not define the 
term in Sec.  1910.146(b). The proposed rule's definition of 
``control'' provided isolation as an example of a control action. 
However, controlling a hazard provides less protection to an employee 
than isolating the hazard because it does not result in the elimination 
or removal of the hazard. For example, ventilation is a control method 
that merely reduces the hazard level below its Permissible Exposure 
Limit (PEL) or Lower Explosive Limit (LEL) for the duration needed to 
protect employees in or near a confined space. Therefore, OSHA deleted 
the reference to isolation from the final standard to clarify the 
distinction between control and isolation. Otherwise, the final 
standard defines the term as proposed.
    Controlling contractor is the employer that has overall 
responsibility for construction at the worksite. In addition, the note 
to this definition explains that, if a host employer has overall 
responsibility for construction at the worksite, then the host employer 
also is the controlling contractor under this final rule. The final 
rule's definition of ``controlling contractor'' is identical to the 
proposed rule's definition. The general industry confined spaces 
standard does not use the term ``controlling contractor'' and, 
therefore, Sec.  1910.146(b) does not define the term.
    OSHA included a definition of ``controlling contractor'' in this 
final rule because it is a common practice in construction work for a 
number of employers to be working at a construction site at the same 
time. Also, there often is one employer that has overall authority over 
the construction site, including the authority to change worksite 
conditions, set schedules, and alter work practices with regard to 
safety. This definition is nearly identical to the definition of the 
term as used in the OSHA's Steel Erection standard at 29 CFR part 1926, 
subpart R. The definition reflects the core principle of general 
supervisory control over the construction site. Under this final rule, 
OSHA clarified the responsibilities of different employers on the site 
and assigned specific duties to the controlling contractor, as 
distinguished from the host employer and the other employers (see final 
Sec.  1926.1203(h)). Consequently, there is a need to define the term 
``controlling contractor.''
    Some commenters were unsure whether an employer with no contractual 
authority for the overall safety of a project could qualify as a 
``controlling contractor'' (ID-106, p. 2; -129, p. 2). Another 
commenter asserted that an employer will have extreme difficulty 
exercising the control required by the standard without explicit 
contractual authority to do so (ID-120, p. 2). The facts and 
circumstances present at the job site determine whether an employer is 
a controlling contractor under this final rule: explicit contractual 
authority is sufficient to indicate a controlling contractor, but the 
absence of contractual authority is not definitive. In this regard, 
OSHA intends the controlling contractor's authority to be established 
in the same manner that a controlling employer's authority is 
established under OSHA's Multi-Employer Citation Policy. For more 
information about the role of the controlling employer, see OSHA 
Directive CPL 02-00-124: Multi-Employer Citation Policy.
    Double block and bleed means the closure of a line, duct, or pipe 
by closing and locking or tagging two in-line valves and by opening and 
locking or tagging a drain or vent valve in the line between the two 
closed valves. This can be done to eliminate the potential for 
substances in the sections of the pipes to enter the space. OSHA took 
this term directly from Sec.  1910.146. The proposed definition was 
different grammatically, and also specified the exact position in which 
the closures were to be locked or tagged, but there is no substantive 
difference between the final language and the language in the proposed 
rule.
    Early-warning system is the method used to alert attendants, as 
well as authorized entrants in a permit space, that an engulfment 
hazard may be developing. Examples of early-warning systems include: 
alarms activated by remote sensors and lookouts with equipment for 
immediately communicating with the authorized entrants and attendants. 
OSHA did not revise the definition from the proposed rule, other than 
to use ``assess'' rather than ``monitor'' because the latter is now a 
defined term under the standard. Although Sec.  1910.146 does not 
explicitly include the ``early warning system'', the Agency included 
the term in the final rule to ensure that the regulated community 
understands that these systems must provide an effective means of 
warning attendants and authorized entrants that a non-isolated 
engulfment hazard may be developing in an area where it could flow into 
the work area. A clear understanding of this term will help employers 
ensure that authorized entrants have sufficient time to safely exit the 
space (see explanation of Sec.  1926.1204(e)(1) below in this 
preamble). As illustrated by the non-exhaustive list of examples of 
early-warning systems in this definition, employers have flexibility 
regarding the type of early-warning system to use for continuously 
monitoring engulfment hazards. However, as stated in final rule Sec.  
1926.1204(e)(1)(iii), whatever warning system an employer selects, it 
must alert authorized entrants and attendants in sufficient time for 
the authorized entrants to safely exit the space.
    Emergency means any occurrence inside or outside a space that could 
endanger an entrant. The definition is similar to the definition in the 
general industry standard, and is not substantively different from the 
definition provided in the proposed rule. The only distinction between 
the general industry standard and the final rule is that the final rule 
includes a loss of power in the non-exhaustive list of examples of 
emergencies. OSHA is specifying power loss to make it clear that 
unexpected loss of power can endanger entrants, particularly if the 
permit plan relied on the use of ventilation, monitoring, controls, 
communication with the attendant, or egress that would be affected by 
the loss of power. The definition is important because 1204(d)(5) 
requires employers to provide adequate lighting for egress in an 
emergency.
    One commenter urged OSHA to clarify that an occurrence constituting 
the emergency must involve the work performed in the confined space 
(ID-099, p. 1). For example, in this commenter's view a heart attack 
that does not involve the working conditions in a confined space, but 
occurs while an employee is working in or near a confined space, would 
not qualify as an ``emergency'' under Sec.  1926.1202. OSHA disagrees 
with this comment, and is not making this revision because the final 
standard uses the term ``emergency'' with respect to the provision of 
rescue services. (See, e.g., final Sec.  1926.1204(i), which requires 
the employer to develop and implement procedures for

[[Page 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 Sec.  1910.146, except 
that it also includes ``or suffocation'' at the end of the definition, 
paraphrasing the following additional language from the proposed rule: 
``or the substance suffocates the individual.'' This additional 
language clarifies that the definition includes suffocation that does 
not result from strangulation, constriction, or the blockage of any 
respiratory mechanism. For example, the definition includes surrounding 
an employee with a flowable material even if personal protective 
equipment or some other barrier (for example. a person trapped in sand 
while wearing respirator mask with an enclosed air source) delays 
immediate drowning or suffocation. The final definition does not differ 
substantively from the definition in the proposed rule, and OSHA 
received no comments on the proposed definition.
    Entry means the action by which any part of a person passes through 
an opening into a permit-required confined space. Entry includes 
ensuing work activities in that space, and occurs as soon as any part 
of the entrant's body breaks the plane of an opening into the space, 
whether or not such action is intentional or the person performs any 
work activities in the space. This definition is similar to the 
definition of ``entry'' in Sec.  1910.146(b), except OSHA added the 
last clause to clarify that this is a bright-line definition: entry 
occurs under all circumstances in which the entrant's body breaks the 
physical threshold of the opening, regardless of the events or actions 
that caused entry. For example, when an employer assigns an employee a 
task that would not ordinarily involve entry into a confined space, and 
the employee inadvertently falls into the confined space and does not 
perform any work in that space, the employee entered the space at the 
instant the first part of the employee's body crosses the plane of the 
confined space. This clarification is consistent with OSHA's 
longstanding interpretation of the general industry standard. See 
October 18, 1995, letter to Charles Bessey. As a result, an entry 
employer's duty to prevent unauthorized entry under Sec.  1926.1204(a) 
means that the employer must take the necessary steps, such as 
installing barriers when appropriate, to prevent both intentional and 
unintentional entries.
    As noted in the explanation for the definition of ``confined 
space,'' a space must be large enough to fit the entering employee's 
entire body to constitute a confined space. However, if the space is 
large enough to qualify as a confined space, any entry into that space 
constitutes an entry, even if the employee's entire body does not enter 
the space. This application is consistent with OSHA's design of this 
final standard: to ensure that this construction rule is enforceable. 
Therefore, OSHA declines to incorporate into this final rule its 
previous guidance offered with respect to the general industry rule to 
the extent that the guidance indicated that entry would not take place 
if only part of the body, and not the whole body, crossed the plane of 
the confined space. See July 13, 1993, letter to Dean Davenport (no 
entry into water pipe when employee stuck in an arm, but not the whole 
body). Absent some safeguard to ensure that the rest of the employee's 
body could not cross the threshold into the confined space, the 
likelihood of inadvertent entry into a space in the context of 
construction warrants a strict approach that differs from the more 
routine entries often associated with maintenance under the general 
industry standard. For example, an employee who sticks his/her head 
into a new space established during construction may be overcome by 
fumes and fall into the space or be rendered unable to remove his or 
her head from the space and avoid further exposure to the hazards.
    The definition of ``entry'' in this final rule is slightly 
different than the proposed definition, but the differences do not 
change the substantive meaning of the term as proposed. OSHA made these 
changes to the proposed definition to make the final definition of 
``entry'' similar to the definition of the term in Sec.  1910.146(b).
    Entry employer means an employer who decides that an employee it 
directs will enter a permit space. Paragraph (b) of Sec.  1910.146 does 
not use the term ``entry employer''; instead, the general industry 
standard refers generally to ``employer.'' In general the term ``entry 
employer'' in this final rule and the term ``employer'' in Sec.  
1910.146(b) are synonymous because both terms identify the employer who 
must follow the accompanying confined-space procedures for employers 
that plan to enter a permit space. However, OSHA uses this term in this 
final rule to clarify that not all employers on a multi-employer 
worksite have duties associated with entering a permit space.
    On a multi-employer worksite, each employer has a duty under this 
new standard to ensure that a competent person identifies all confined 
spaces in which any employee it directs may work (Sec.  1926.1203(a)). 
Each employer must then prevent the employees it directs from entering 
permit spaces or limit access to those spaces in accordance with the 
permit procedure (or alternatives) specified in this standard (see 
Sec.  1926.1203(a) and (c)-(e)). Under the standard, an entry employer 
has a number of important duties that must be performed prior to anyone 
physically entering a permit space, such as the requirements for pre-
entry information exchanges in Sec.  1926.1203(h) and the duty to 
develop and implement a permit program to restrict access under Sec.  
1926.1204. Therefore, under the definition, an employer becomes an 
entry employer when it ``decides that'' an employee it directs will 
enter, rather than at the later point when the employee actually 
enters. An employer can be an entry employer regardless of whether that 
employer has completed any of the steps of instituting a permit program 
or an employee has actually entered the space.
    However, OSHA does not intend for the ``decides that'' language in 
the definition to narrow the meaning of ``employer'' in any way or to 
focus on any deliberative or procedural process. OSHA has added a note 
to the definition of ``entry employer'' to emphasize that an employer 
cannot avoid the duties of the standard merely by refusing to decide 
whether its employees will enter a permit space, and OSHA will consider 
the failure to so decide to be an implicit decision to allow employees 
to enter those spaces if they are working in the proximity of the 
space.
    The ``an employee it directs'' language encompasses temporary 
workers, permanent employees, and all other workers who are under the 
direction of the employer at the worksite, whether they are contracted 
directly or through a third party such as a staffing agency. For 
example, when a general contractor

[[Page 25384]]

contracts with a third party to bring on a temporary worker and assigns 
the worker to work in a permit space, the general contractor is an 
entry employer. However, if the temporary employee is assigned to a 
welding subcontractor, and the welding contractor makes the 
determination of where the temporary employee will work without 
direction from the general contractor, then the welding subcontractor 
would be the entry employer. The general contractor would not be an 
entry employer in the latter example.
    Entry permit means the document, provided by the entry employer, 
which allows and controls entry into a permit space. Section 
1926.1206--Entry Permit of this final standard specifies the contents 
of the permit. As part of its effort to specify the duties and 
responsibilities of different employers on a multi-employer worksite, 
OSHA specifies that the employer ``who designated the space a permit 
space,'' must prepare the permit, rather than just ``the employer'' as 
in Sec.  1910.146. This definition is otherwise identical to the 
definition in Sec.  1910.146(b). In a typical multi-employer worksite, 
all employers would have the duty to identify confined spaces that 
their employees might enter, but only some employers must establish a 
permit program and complete permits.
    Entry rescue means rescue that occurs when a rescue service enters 
a PRCS to rescue one or more employees. This definition is identical to 
the proposed definition of ``entry rescue,'' except that the Agency 
clarifies that the term includes a rescue of a single employee. Section 
1910.146(b) does not define ``entry rescue'' because the general 
industry standard does not use the term. The term is included in this 
final rule to make the requirements for each type of rescue more clear.
    Entry supervisor means the qualified person (such as the employer, 
foreman, or crew chief) assigned by the employer to determine if 
acceptable entry conditions are present at a permit space where entry 
is planned, to authorize entry and oversee entry operations, and to 
terminate entry as required by the final standard. This definition is 
identical to the definition provided in Sec.  1910.146(b), except that 
OSHA replaced ``person'' with ``qualified person'' as in the proposed 
rule (the proposed rule used ``qualified individual''), to clarify that 
the individual must meet the requirements for ``qualified person'' as 
defined later in this section. The note to this definition, which 
clarifies that the entry supervisor may enter the permit space or serve 
as an attendant if the applicable requirements are met, is identical to 
the note in the general industry definition.
    Hazard means a ``physical hazard'' or ``hazardous atmosphere'' as 
defined by this standard. The proposed rule defined this term, and OSHA 
is including it here to clarify that references to a ``hazard'' or 
``hazards'' can mean either physical or atmospheric hazards, or both.
    Hazardous atmosphere refers to the five enumerated atmospheres, any 
one of which may expose employees to the risk of death, incapacitation, 
impairment of ability to self-rescue (that is, unaided escape from a 
permit space), injury, or acute illness. The proposed definition of 
``hazardous atmosphere'' varied slightly from the definition in Sec.  
1910.146(b), and several commenters requested that OSHA make the 
definition in this final rule more similar to the definition in Sec.  
1910.146(b) (ID-017, p. 1; -132, p. 2; -138, p. 3; -153, p. 12). OSHA 
did so, as explained below, and the final definition is substantively 
identical to the definition in the general industry standard.
    One commenter noted that the proposed definition included 
``existing or potential'' atmospheres, and argued that this language, 
combined with OSHA's failure to include a note that is part of the 
general industry definition of ``hazardous atmosphere,'' constituted an 
inappropriate expansion of the scope of this final standard compared to 
the general industry standard (ID-219.2, p. 72). OSHA addressed this 
commenter's concerns by adopting the general industry language, which 
does not refer to ``existing or potential'' atmospheres, and also 
included the note favored by the commenter. See the note after the 
fourth enumerated paragraph in the definition, which is substantively 
identical to the note in the general industry standard.
    The five enumerated paragraphs or conditions in the definition 
address four specific types of hazardous atmospheres and a broad 
condition that encompasses any other atmosphere that is immediately 
dangerous to life or health. The first enumerated condition addresses 
an atmospheric condition that consists of a flammable gas, vapor, or 
mist in excess of 10 percent of its lower flammable limit (LFL). OSHA 
set this level to account for the difficulty employers have in 
detecting each and every flammable gas vapor, or mist. The LFL, as it 
is defined by the confined spaces in construction standard, refers to 
the minimum concentration of a substance in air needed for an ignition 
source to cause a flame or explosion. The LFL of the atmosphere is a 
cumulative measure that represents the mixture of different flammable 
elements, not just the presence of a single element that could lead to 
an explosion. Therefore, for the reasons explained below, OSHA has 
defined hazardous atmosphere as any atmosphere at or above 10 percent 
of a detected substance's LFL (10 percent LFL) to provide an adequate 
safety margin, and to ensure that an atmosphere does not exceed the LFL 
if one of a combination of substances goes undetected.
    OSHA specifically asked for public comment on the propriety of 
defining a hazardous atmosphere for purposes of the confined spaces in 
construction standard at 10 LFL when Sec.  1926.651(g)(1)(iii) 
prohibits exposure to atmospheres in excavations exceeding 20 percent 
of the LFL (20 percent LFL). Some commenters urged OSHA to permit 20 
percent LFL in this final rule for the sake of uniformity, while 
another commenter favored this change only if credible data justifies 
this uniform LFL (ID-090, p. 1 and ID-108, p. 6; ID-060, p. 1, 
respectively). Other commenters, however, indicated that 10 percent LFL 
was more appropriate, and recommended that OSHA revise the subpart P 
LFL to 10 percent LFL to provide adequate safety to employees working 
in excavations (ID-132, p. 3; -140, p. 6). This last group of 
commenters noted that using 10 percent LFL would align the definition 
of ``hazardous atmosphere'' in this final rule with the general 
industry confined spaces rule at Sec.  1910.146(b) and ANSI Z-117.1. 
One commenter also noted that because the LFL of many common petroleum 
based materials is approximately 1 percent of the total volume of the 
atmosphere, which would convert to 10,000 parts per million (ppm), 10 
percent of that LFL is 1,000 ppm, which approaches the immediately 
dangerous to life or health (IDLH) (see below) level for many materials 
(ID-132, p. 3).
    OSHA selected the 10 percent LFL in the final rule to match the 
general industry standard. As the Agency explained when selecting the 
10 percent LFL in Sec.  1910.146(b), the 10 percent level is ``widely 
recognized as being the threshold value for a hazardous atmosphere'' 
(58 FR 4473). The record indicates that this lower level continues to 
be more widely used and more appropriate than the 20 percent LFL 
suggested by the commenter, particularly now that the general industry 
standard is nearly 20 years old. (See also ANSI Z-117.1 (setting the 
maximum level at 10 percent LFL); ANSI 6.3.1.12 (setting the maximum 
level at less than 10 percent LFL.))

[[Page 25385]]

Moreover, the record does not include credible data to justify why the 
20 percent LFL would be more appropriate for a confined space. OSHA may 
consider amending subpart P to a similar level in the future, but that 
decision is outside the scope of this rulemaking.
    The second enumerated condition in the final definition addresses 
``hazardous atmosphere'' consisting of an airborne combustible dust at 
a concentration that meets or exceeds its lower flammable limit (LFL). 
One commenter asked why OSHA did not propose a 10 percent LFL for 
combustible dust, similar to OSHA's approach for flammable gas, vapor, 
or mist in the first condition under this definition (ID-112, p. 6). 
OSHA did not propose a percentage of the LFL in defining a hazardous 
airborne combustible-dust concentration level for several reasons. 
Employers usually can visually judge the flammability hazard posed by 
airborne dust. Moreover, as OSHA noted in the preamble to the general 
industry standard, it is difficult at present to measure airborne 
concentrations of combustible dust reliably at a site, so there likely 
would be significant delays in determining whether the level of 
combustible dust meets the LFL at a particular site. Therefore, LFL 
determinations would appear to be unnecessarily burdensome with regard 
to combustible dust. OSHA concludes that the final rule will protect 
employees adequately so long as employers train their employees in the 
recognition of combustible dust, and ensure that the concentration of 
combustible dust remains below its LFL.
    For this reason, OSHA has incorporated the note for this condition 
from Sec.  1910.146(b), except that it has added the word 
``combustible'' before ``dust'' to clarify the meaning of the note, and 
made a minor additional change from the proposed rule to make the final 
definition identical to Sec.  1910.146(b). OSHA used LFL in this final 
rule definition, rather than ``lower explosive limit (LEL),'' which 
OSHA used in the proposed definition. OSHA notes, however, that the 
Agency uses these terms interchangeably. (See, e.g., proposed 
definition of ``lower flammable limit or lower explosive limit'' at 72 
FR 67406.)
    The third condition of a hazardous atmosphere in this definition 
addresses the conditions of an atmospheric oxygen concentration below 
19.5 percent (``oxygen deficient'') or above 23.5 percent (``oxygen 
enriched'') in a confined space. Four commenters suggested that OSHA 
change the oxygen-enriched level from 23.5 percent to 22 percent, which 
they noted is the level set by the National Fire Protection Association 
(NFPA) \8\ (ID-25, p. 2; -27, p. 6; -28, p. 4; 95, p. 1). Two 
commenters suggested that increases in oxygen levels due to leaks of 
compressed oxygen used in ``hot work'' would more easily be detected if 
the maximum acceptable oxygen level was 22 percent instead of 23.5 
percent (ID-95, p.1), as it is in the rules for maritime work. The 
commenters did not, however, provide any data or other information 
supporting the suggestion that the proposed level, which is identical 
to the level in the general industry standard, is not sufficiently 
protective. The absence of such information, the lack of incidents 
caused by oxygen levels between 22 and 23.5 percent lead OSHA to 
conclude that the difference is not significant. In addition, this 
consistency benefits employers that engage in both general industry and 
construction work. OSHA finalized the level at 23.5 percent so that it 
is consistent with the general industry confined spaces standard at 
Sec.  1910.146(b), as well as the definition of ``enriched oxygen'' in 
OSHA's Respiratory Protection standard. This oxygen-enriched level also 
is the same as the level in the proposed definition of ``hazardous 
atmosphere.'' OSHA continues to believe that the 23.5 percent level 
provides a sufficient amount of time for employers to detect a 
hazardous oxygen-enriched atmosphere, and to exit the space safely, 
before the oxygen level gets so high that it begins to have adverse 
effects on the exposed employees. Other standards, such as Subpart J--
Welding and Subpart V--Electronic Transmission and Distribution, set 
forth protective requirements for employees engaged in ``hot work'' 
that address the commenters' concerns.
---------------------------------------------------------------------------

    \8\ NFPA 53 defines ``oxygen-enriched atmosphere'' as one in 
which the concentration of oxygen exceeds 21 percent by volume or 
its partial pressure exceeds 21.3 kPa. (See NFPA 53, Recommended 
Practice on Materials, Equipment, and Systems Used in Oxygen-
Enriched Atmospheres, 2011 Edition at 3.3.25).
---------------------------------------------------------------------------

    Additionally, OSHA recognizes that safe levels of oxygen vary with 
altitude, and that concentrations of oxygen at or above the oxygen 
deficient limit of 19.5 percent in this final rule may still pose 
atmospheric hazards at very high altitudes. For example, ANSI/ASSE 
Z88.2-1992 recognizes an IDLH circumstance at altitudes of 5,000 ft. 
above sea level or higher, if the oxygen concentration is at 19.5 
percent.\9\ The Agency believes that most confined-space work takes 
place at altitudes lower than 5,000 ft. above sea level, and retains 
the 19.5 percent oxygen deficient limit in this final rule. However, 
the Agency notes that to the extent a high altitude causes an otherwise 
permissible oxygen concentration to become IDLH, such circumstances may 
also result in a ``hazardous atmosphere'' as set forth in the fifth 
condition in OSHA's definition, which defines a ``hazardous 
atmosphere'' to include any other atmospheric condition that is IDLH.
---------------------------------------------------------------------------

    \9\ The Agency also notes that an updated revision of ANSI/ASSE 
Z88.2-1992 was forthcoming at the time of its development of this 
final rule. The draft of the updated standard appeared to be 
consistent with the 1992 version on this issue.
---------------------------------------------------------------------------

    The fourth condition in the definition of ``hazardous atmosphere'' 
addresses an airborne concentration of a substance that exceeds the 
permissible dose or exposure limit specified by OSHA. The final 
definition includes cross-references to the applicable PELs in subparts 
D--Occupational Health and Environmental Controls and Z--Toxic and 
Hazardous Substances of 29 CFR part 1926, rather than the general 
reference to PELs specified in ``any OSHA requirement'' contained in 
the proposed rule. The form of the definition now duplicates the form 
found in the general industry standard. In addition, removing the 
reference to ``any OSHA requirement'' avoids the implication that PELs 
in general industry standards would apply to construction work.
    One commenter requested that OSHA insert a note under this fourth 
condition explaining that the PELs in Sec.  1910.1000 also would apply 
under this condition (ID-028, p. 5). OSHA did not include a reference 
to Sec.  1910.1000 because those general industry PELs do not apply to 
construction work. Section 1926.55 establishes the relevant PELs for 
construction.
    OSHA did, however, include a note to the fourth condition of the 
definition that is substantively identical to the note to the fourth 
subheading of the Sec.  1910.146(b) definition of ``hazardous 
atmosphere,'' except that OSHA changed the word ``provision'' to 
``definition'' to make it clear that the note applies to the types of 
hazards covered by the definition of ``hazardous atmosphere.'' OSHA 
sets its construction PELs at different levels for different reasons; 
some of these PELs prevent harm from substances that manifest quickly 
in the human body, such as [hydrogen sulfide and carbon monoxide, among 
others], while OSHA sets other PELs prevent harm from substances that 
produce long-term health effects but do not produce any acute effect on 
employees. The note

[[Page 25386]]

makes clear that, for the purposes of determining whether a hazardous 
atmosphere exists under this final rule as the result of a 
concentration of a substance in excess of its PEL, employers need to 
address only the substances with PELs that could result in immediate 
harm or impairment of the employee's ability to perform self-rescue. 
See also the discussion in the general industry preamble at 58 FR 4474. 
For example, a short-term exposure to silica is unlikely to cause 
immediate injury. Likewise, nitrogen and carbon dioxide will not impair 
self-rescue unless their levels are so high that they replace 
significant oxygen, so that they act as an asphyxiant. The same is true 
for any inert gases, for example argon, neon and helium. Most of the 
substances with an OSHA PEL (in subparts D and Z of the construction 
standards) are based on long-term, chronic risks to health. Presumably, 
most of these substances do not pose a risk of an acute health effect 
or of self-rescue at exposure levels near the PEL. However, if 
extremely high levels of exposure far above a PEL occurred, one of 
these substances could potentially pose a risk to self-rescue, which 
would in turn trigger the fourth condition of hazardous atmosphere.
    The note also addresses a comment that PELs regulating substances 
with long-term effects, such as iron oxide emitted during welding or 
xylene emitted when painting, should not automatically trigger the PRCS 
requirements (ID-028). While OSHA agrees that iron oxide by itself 
would not trigger permit restrictions because the symptoms of iron 
oxide exposure would generally not prevent an entrant from exiting a 
confined space, xylene is highly flammable and would therefore present 
a hazard if the potential exists for the concentration of xylene to 
exceed the LFL.
    A different commenter suggested that OSHA avoid potential confusion 
by rearranging the order in which the subparagraphs in the definition 
of ``hazardous atmosphere'' are presented to reflect the order in which 
OSHA requires atmospheric testing and monitoring (oxygen content, 
flammability, then toxicity--see Sec.  1926.1204(e)(3) of the final 
rule) (ID-132, p. 2). OSHA does not agree that the order of 
presentation in this definition is likely to cause confusion, 
particularly when the actual order of testing is spelled out in Sec.  
1926.1203(e). OSHA did not make this change in the final rule so that 
it could to keep the definition of ``hazardous atmosphere'' in this 
final rule similar to the definition of that term in Sec.  1910.146(b), 
including the order of the listed conditions.
    Host employer means the employer that owns or manages the property 
where the construction work is taking place. As explained in the 
definition of ``controlling contractor,'' OSHA added this definition to 
clarify the distinction between a host employer, a controlling 
contractor, and an employer performing confined space entry because 
each of these entities has specific obligations under this final rule. 
(See the discussion under ``controlling contractor'' above.) OSHA used 
the term ``host employer'' in the general industry standard without 
defining it, but the definition in this final rule is consistent with 
the use of the term in that general industry standard. It is also 
substantively the same as the proposed definition.
    One commenter asserted that an employer should never meet the 
definition of ``host employer'' if the employer ``had no employees at 
all (a home owner, for example, might fit this category) or had no 
employees `engaged in construction work' (an owner of an office 
building might fit this category)'' (ID-117, p. 5). OSHA notes that it 
has already addressed the commenter's first concern because an entity 
only meets the definition of a ``host employer'' under the final rule 
if it is ``an employer.'' OSHA disagrees with the commenter's second 
assertion, and has addressed the propriety of placing duties on the 
host employer, and OSHA's authority for doing so, in the discussion of 
Sec.  1926.1203(h) later in this preamble.
    OSHA also added a note to the definition of ``host employer'' to 
address situations in which the owner of the property contracts with a 
management company to manage the property. OSHA understands that this 
type of arrangement is somewhat common with commercial properties, and 
that in many cases the management company will be the principal 
custodian of blueprints and other information about the property that 
identifies confined spaces on the property or is otherwise relevant to 
confined spaces work on that property. Because the host-employer 
requirements in final Sec.  1926.1203(h)(1) are designed to ensure that 
relevant information about the property and known hazards therein is 
conveyed to employers who will be performing work in confined spaces, 
OSHA clarifies in the note that the entity that possesses that 
information, either the owner or the management company, will serve as 
the host employer for the purposes of this standard for as long as the 
company manages the property (if there is a change in management 
companies, the initial management company would return the information 
to the owner, and the host employer duties would revert to the property 
owner until discharged to the new management company). The note also 
clarifies that only one of these entities will serve as a host 
employer. If a property owner contracts with a third party to manage 
the property, turns over all relevant information about the property 
that it has (the locations of permit space the hazards they contain, 
and the previous precautions used to address them) to the management 
company, then OSHA will treat the management company (not the property 
owner) as the ``host employer'' under this standard. That management 
company, rather than the owner, must then maintain the relevant 
information about the property and fulfill the duties of the host 
employer under this standard (e.g., share that information with the 
controlling contractor). For example, if the owner transfers its 
records to the management company, including a map of the property 
showing a confined space marked for storage of containers of flammable 
liquids, then the management company must relay to the controlling 
contractor hired to oversee welding operations the location of that 
space, its contents, and any previous measures used to address them 
(e.g., ``when the painters came, they tried to move the containers but 
the containers began to leak and soaked into the floors so the painters 
had to continuously ventilate the whole area during their entry.'') The 
property owners would not have a separate duty to relay that 
information to the controlling contractor. In another example, the 
owner of a commercial property hires a professional property management 
company to manage a property. The property owner turns over all 
relevant information to the management company. The management company 
contracts with a general contractor to oversee renovations in a furnace 
room and boilers on the property, and the general contractor hires a 
subcontractor to perform the construction work inside the boilers, 
which are activated through an electrical system. Under this standard, 
the management company has a duty to notify the controlling contractor 
that the boiler tanks are connected to the electrical system, the way 
in which that electrical hazard is normally addressed (e.g., isolating 
the electrical hazards by disconnecting, and locking out, the power 
source).
    Hot work means operations capable of providing a source of 
ignition, such as riveting, welding, cutting, burning, and

[[Page 25387]]

heating. In Sec.  1910.146(b), OSHA defined ``hot work permit'' to 
describe the same activity, but focused on the permit rather than the 
work. OSHA did not include the word ``permit'' in the definition in 
this final rule because the final regulatory text uses only the term 
``hot work,'' and does not use the term ``hot work permit.''
    Immediately dangerous to life or health (IDLH) means any condition 
that could cause a threat to life, cause irreversible health effects, 
or otherwise inhibit an employee's ability to escape from a permit 
space. The proposed definition of ``IDLH'' also included separately any 
condition that exposes an employee to ``serious physical harm,'' which 
some commenters opposed. (ID-0013, p. 2; ID-219.2, p. 74; ID-0147, p. 
3.) In particular, one commenter noted that the definition of ``IDLH'' 
in Sec.  1910.146(b) does not include every condition that could cause 
``serious physical harm,'' and asserted that the use of this term makes 
it less clear that an IDLH condition is one associated with urgent 
danger. (ID-0013, p. 2) For example, the commenter asserted that, under 
the proposed definition, an IDLH condition would be present when an 
employee breaks his/her nose.
    Another commenter asserted that ``irreversible adverse health 
effects'' should not be an element of the IDLH definition unless OSHA 
adds language tying those effects to an impairment of the ability for 
self-rescue (ID-0219.2, p. 74.). OSHA notes that the revised definition 
of IDLH is applied in this standard through the definition of hazardous 
atmosphere, and excludes ``an atmospheric concentration of any 
substance that is not capable of causing death, incapacitation, 
impairment of ability to self-rescue, injury, or acute illness'' (see 
Note to the definition of ``hazardous atmosphere''). Thus, the standard 
follows the general industry standard and is as appropriately focused 
on conditions that would impair the ability to self-rescue as is the 
definition in the general industry standard. In a comment submitted 
after the hearing for this rulemaking, the same commenter did not 
object to the inclusion of ``irreversible adverse health effects'' in 
the general industry standard, asserting that the general industry 
standard ``does not regulate non-acute hazards'' (ID-219.2, p. and 71.) 
However, OSHA finds no evidence in the record, even after 20 years of 
experience with the general industry standard, that this ``irreversible 
adverse health effects'' component of the IDLH definition would be less 
appropriate for the construction industry. OSHA has thus modified the 
definition of IDLH to focus on conditions which would impair an 
entrant's ability to self-rescue and either pose a threat to life or 
have the capacity to cause irreversible adverse health effects, and 
notes that all other OSHA standards regarding exposure to hazardous 
substances continue to apply.
    Inerting means displacing the atmosphere in a permit space by 
adding a noncombustible gas (such as nitrogen) to such an extent that 
the resulting atmosphere is noncombustible. The definition is identical 
to the general industry definition, except for a minor grammatical 
change. OSHA also included a note from the general industry standard to 
remind employers that the inerting process results in an atmosphere 
that is oxygen deficient; oxygen deficiency is a separate atmospheric 
hazard identified in the third subparagraph of ``hazardous 
atmosphere.'' Accordingly, the final rule prohibits employees from 
working in that space without a permit program which includes use of 
necessary PPE.
    Isolate or Isolation means the process--such as misaligning or 
removing sections of lines, pipes or ducts; a double block and bleed 
system; lockout or tagout of all sources of energy; or blocking or 
disconnecting all mechanical linkages--that an employer uses to 
completely protect entrants from the release of energy or other hazard 
into a confined space. This definition is based on the definition in 
Sec.  1910.146(b) and the proposed rule, but OSHA made two minor 
adjustments to the definition in this final rule and added a 
clarification regarding isolation of a portion of a contiguous space 
such as a sewer system. First, OSHA clarified that the purpose of 
isolation is to protect employees, rather than the space itself, from 
the release of hazards into the space. In most cases this involves 
isolating the entire space from a hazard, such as isolating a room from 
a potential source of flooding. However, in some cases employers may be 
able to isolate a hazard inside a confined space, and the final rule's 
emphasis on protecting employees, rather than the space, allows for 
that type of isolation. To that end, the second difference from the 
general industry definition is that in the final rule OSHA defines 
``isolate'' to include employers' use of physical barriers to eliminate 
the opportunity for contact between an employee and a physical hazard 
inside a confined space, as requested by a commenter (ID-061, p. 6). 
This addresses commenter concerns that a single physical hazard such as 
low-hanging pipe or a sharp object would unnecessarily foreclose 
alternative entries under Sec.  1926.1203(e) (discussed below) and 
require an employer to treat the entire space as a permit space even 
after the employer has taken steps to ensure that employees could not 
come in contact with the physical hazard. OSHA has reached a similar 
result in most circumstances by interpreting the general industry 
standard to allow employers to ``eliminate'' hazards in a similar 
manner without necessarily deeming it isolation. See, e.g., October 27, 
1995, letter to William Taylor (temporary floor could be used to 
eliminate fall hazard from inwardly converging walls). But in the 
construction context the addition to the definition of isolation 
addresses the issue directly and provides more flexibility for 
employers to address physical hazards for the purpose of alternative 
entries under Sec.  1926.1203(e) (see the discussion of Sec.  
1926.1203(e) for additional explanation on the difference between the 
general industry standard and this final rule regarding alternative 
procedures for addressing permit spaces with hazardous atmospheres and 
physical hazards).
    A different commenter suggested that using the term ``isolation'' 
to refer to the elimination of a physical or atmospheric hazard will be 
confusing since industry generally uses the term ``isolation'' to refer 
to the control of a hazard and not to the elimination of the hazard 
(ID-098.1). OSHA agrees that the terms are not interchangeable, and has 
tailored the definition of isolation accordingly. While eliminating a 
hazard or removing it altogether from a confined space would constitute 
means of isolating a hazard, isolating the hazard in the context of 
this rule does not necessarily eliminate it from the space altogether 
in the sense that the physical item may remain in the space and that it 
might still pose a hazard absent the isolation measures. For example, 
if exposed rebar is sticking out of a wall in a confined space, the 
employer may eliminate the hazard by pounding the rebar into the wall 
so that it does not protrude in any way; it may remove the hazard by 
cutting out the rebar and carrying it out of the space; or it may 
isolate the rebar by erecting a barrier in a manner that effectively 
prevents the possibility of anyone coming into contact with the rebar.
    Both of the definitions in the general industry rule and this final 
rule permit ``tagout'' in addition to ``lockout'' as a means of 
isolating a hazard, but in both cases the tagout process involves more 
than the placement of a tag on equipment because tagging equipment does 
not prevent the release of a hazard into the space. As discussed below, 
OSHA has added definitions of ``lockout'' and ``tagout'' to ensure that

[[Page 25388]]

the regulatory text of this final rule reflects these critical elements 
of the general industry standard.
    Several commenters asserted that the definition of ``isolation'' 
should not include misaligning or removing sections of lines, pipes, or 
ducts, but did not provide a reason for this assertion (ID-025, p.2; -
027, p. 4; -095, p. 2). The general industry confined spaces standard 
at Sec.  1910.146(b) includes misaligning or removing sections of 
lines, pipes, or ducts in its definition of ``isolation.'' Without a 
clear reason to depart from this established understanding of the term 
``isolation,'' OSHA continues to include the misalignment or removal of 
sections of lines, pipes, or ducts as a form of ``isolation'' to match 
the definition of the term in Sec.  1910.146(b). To the extent that the 
commenters were concerned that removing a section of pipe within a 
space would not isolate employees from a hazard entering the space, 
such an action would not meet the definition of ``isolation'' if it 
does not effectively and completely prevent employee exposure to the 
hazard. The removal of a section of a water pipe that would effectively 
divert water away from a confined space could be a form of isolating 
the employees in that space from the water hazard; disconnecting a 
sewer pipe in a location where fumes or physical hazards could still 
enter a confined space and affect employers (such as disconnecting the 
pipe at a location inside the confined space or immediately adjacent to 
the space where the remainder of the pipe entering the confined space 
is not sealed) does not meet the definition of ``isolation.''
    Another commenter asserted that defining ``isolation'' differently 
from ``control'' could cause confusion (ID-025, p. 2). This comment 
highlights the need to have a separate definition: ``Isolate or 
isolation'' is distinct from ``control'' in this final rule because the 
former term requires the elimination or removal of the hazard. Control, 
on the other hand, merely entails a reduction in the degree of a hazard 
or a reduction in the risk that the hazard will cause an injury or 
death. For example, an employer can control an atmosphere through 
ventilation, but it cannot use ventilation to isolate a space from a 
hazard.
    Limited or restricted means for entry or exit means a condition 
that may obstruct an employee's ability to exit or enter a confined 
space, including trip hazards, poor illumination, slippery floors, 
inclining surfaces and ladders (see the earlier discussion of the 
definition of ``confined space'' for a discussion of ladders). The 
proposed construction rule, but not the general industry standard, 
defined this term. The proposed definition referred to ``hazards'' 
rather than ``trip hazards.'' OSHA did not include in this final 
standard the reference to all ``hazards'' because the Agency believes 
that term was potentially too broad, and that its inclusion in this 
final standard would render all the other examples redundant. Instead, 
the final definition refers to ``trip hazards,'' which is a condition 
that is similar to the other examples, and provides a greater degree of 
guidance than the term ``hazards.''
    One commenter objected to the inclusion of ``poor illumination and 
slippery floors'' in the definition, arguing that the regulated 
community does not generally understand these conditions as ``limited 
or restricted means for entry and exit'' as used in the general 
industry confined spaces standard at Sec.  1910.146(b) (ID-153, p. 14). 
The commenter did not explain why poor illumination and slippery floors 
would not limit or restrict means for entry or exit. The same commenter 
acknowledged that Sec.  1910.146 does not define this term, but 
nevertheless accused OSHA of ``changing the meaning of the term.'' OSHA 
disagrees, and is retaining the list of examples in the final rule. The 
Agency previously explained in its compliance directive on general 
industry confined spaces, OSHA Directive CPL 02-00-100: Application of 
the Permit-Required Confined Spaces (PRCS) Standards, 29 CFR 1910.146 
(May 5, 1995), that a ``space has limited or restricted means of entry 
or exit if an entrant's ability to escape in an emergency would be 
hindered.'' Therefore, OSHA concludes that the meaning of ``limited or 
restricted means for entry and exit'' as used in the general industry 
standard already encompasses these conditions, and that the Agency is 
simply providing the same guidance more explicitly in this final 
standard.
    Line breaking refers to the process of opening a pipe or duct when 
the substance inside could injure an employee because of the 
characteristics of the substance or the manner in which it is released 
from the conductor. This definition is identical to the corresponding 
definition in the general industry standard. Although the term is not 
otherwise used in the text of this final standard (or in the text of 
the general industry standard), OSHA included it for parallelism with 
the general industry standard and to inform construction employers of 
the hazards that may be associated with opening an existing pipe or 
duct.
    Lockout refers to a means of isolating a physical hazard (typically 
an electric-powered device) by placing a lockout device on an energy 
isolating device in accordance with established procedures to ensure 
that the equipment which poses a hazard and the energy isolating device 
cannot be operated or inadvertently energized until the lockout device 
is removed. This definition is identical to the definition in the 
general industry standard (see Sec.  1910.147(b)). OSHA has included it 
to maintain consistency with the general industry approach to lockout 
in confined spaces. As discussed in the explanation for ``Isolate or 
isolation'', above, lockout is one method of isolating a physical 
hazard in a confined space.
    Lower flammable limit (LFL) or lower explosive limit (LEL) means 
the minimum concentration of a substance in air needed for an ignition 
source to cause a flame or explosion. The measurement is usually 
expressed in terms of percentage by volume of gas or vapor in air. When 
more than one type of flammable substance is present in the air, the 
LFL is derived from the combined sum of all flammable substances as a 
percentage of the total atmosphere. The definition is identical to the 
proposed definition and is consistent with the use of the term in the 
general industry standard. The Agency did not receive any comments on 
this definition.
    Monitor or monitoring means the process used to identify and 
evaluate the hazards after an authorized entrant enters the space. This 
is a process of checking for changes that the employer must perform in 
a periodic or continuous manner after the completion of the initial 
testing or evaluation of that space.\10\ The proposed rule included a 
definition this term. OSHA included the definition in this final rule, 
but revised it slightly to make it clear that monitoring does not apply 
solely to atmospheric hazards.
---------------------------------------------------------------------------

    \10\ OSHA uses ``periodic testing'' and ``periodic monitoring'' 
interchangeably in this standard.
---------------------------------------------------------------------------

    Non-entry rescue means a rescue, usually by the attendant, that 
retrieves employees in a permit space without the rescuer entering the 
permit space. While the general industry standard does not include a 
definition of this term, the proposed rule did include such a 
definition. OSHA included the definition in this final rule, but 
clarified the distinction between entry rescue, as defined above, and 
rescue that does not involve entering the permit space.
    Non-permit confined space means a confined space that meets the 
definition

[[Page 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 Sec.  1910.146(b), requires 
a separate analysis of hazards or potential hazards. OSHA revised the 
general industry definition in the final rule to make it clear that a 
non-permit confined space is simply the inverse of a permit-required 
space: It meets all of the requirements to be a confined space, but 
does not meet the criteria to be a permit-required confined space (see 
the discussion of the definition of ``permit-required confined space'' 
below in this preamble). A confined space in which all physical hazards 
are isolated or eliminated and in which there are no actual or 
potential hazardous atmospheres is a non-permit confined space.
    Oxygen deficient atmosphere means an atmosphere containing less 
than 19.5 percent oxygen by volume. This final standard defines the 
term exactly as it is in Sec.  1910.146(b).
    Oxygen enriched atmosphere means an atmosphere containing more than 
23.5 percent oxygen by volume. The final standard also defines this 
term exactly as it is in Sec.  1910.146(b).
    OSHA based the general industry definitions for ``oxygen deficient 
atmosphere'' and ``oxygen enriched atmosphere'' on levels set by the 
National Institute for Safety and Health (NIOSH) (see 58 FR 4474 and 
4476). The proposed rule did not include separate definitions of these 
terms, but did incorporate the same levels into the definition of 
``hazardous atmosphere.'' As discussed in the explanation above of 
``hazardous atmosphere,'' OSHA does not agree with several commenters' 
suggestions for an alternative oxygen level. OSHA did not receive any 
other comments disputing that the construction industry generally 
accepts these definitions of the terms.
    Permit-required confined space (permit space) means a confined 
space that has at least one of the following characteristics: (1) 
Contains or has the potential to contain a hazardous atmosphere; (2) 
contains an engulfment hazard; (3) is configured so that it poses a 
risk of entrapment or asphyxiation; or (4) any other recognized serious 
hazards. OSHA revised this definition in final rule Sec.  1926.1202 to 
make it identical to the definition in the general industry confined 
spaces standard at Sec.  1910.146(b). Consequently, the final rule 
diverges from the proposed rule in that OSHA revised the order of the 
characteristics from the proposed rule, clarified that a potential 
hazardous atmosphere can trigger a permit space, and separated the 
third and fourth characteristics from the proposed definition (``an 
engulfment hazard or other physical hazard'') so that engulfment 
hazards addressed in the second characteristic in the final definition 
while some physical hazards are encompassed by ``other recognized 
serious safety or health hazard'' in the fourth characteristic; there 
was not a fourth characteristic in the proposed definition. Otherwise, 
this definition is the same as the definition in the proposed rule.
    Several commenters noted that the proposed definition of ``permit-
required confined space'' included any ``physical hazard,'' and 
asserted that the definition of ``permit space'' would, therefore, 
include non-serious hazards in a confined space (ID-013, p. 3; -147, 
pp. 2-4). In the proposed rule, OSHA addressed this concern in the 
definition of ``physical hazard,'' which limited the definition to 
hazards that were capable of causing ``death or serious physical 
harm.'' In this final rule, OSHA defined the term to match the 
definition in Sec.  1910.146(b), which specifies that the phrase 
``contains any other recognized serious safety or health hazard'' 
applies only to serious hazards, and the definition of serious physical 
harm (now ``serious physical damage'' in the final rule) excludes 
injuries that could not impair the ability of an entrant to escape the 
space without assistance. As noted in the explanation of the definition 
of hazardous atmosphere, this standard is focused on hazards that could 
impair the ability of an entrant to self-rescue.
    The proposed definition of permit-required confined space referred 
to a ``hazardous atmosphere,'' which OSHA defined to include an 
existing or ``potential'' atmosphere. One commenter urged OSHA to 
clarify that a ``potential hazardous atmosphere'' is a hazardous 
atmosphere that an employer could anticipate, as opposed to a hazardous 
atmosphere that is ``remotely possible under unforeseen conditions,'' 
such as a train carrying chlorine crashing and causing a toxic cloud of 
chlorine that engulfs an entire worksite. (ID-0138, p. 4.) The phrase 
``potential to contain a hazardous atmosphere'' in the context of this 
final rule refers to the existing conditions affecting the confined 
space at the time of entry and any changes to those conditions over the 
duration of the entry, and limits hazards to those hazards that a 
qualified person should anticipate would affect that space. If an 
employer becomes aware (or should be aware) of the release of a toxic 
gas that could enter the confined space, or detects such a gas near a 
ventilation source for that space, then the space would have the 
potential to contain a hazardous atmosphere when the PEL or LEL are 
below the ``hazardous atmosphere'' levels. The potential for a 
hazardous atmosphere remains until the employer confirms that the space 
is completely free of the toxic gas or the gas level rises to a 
hazardous level.
    As OSHA stated in a December 2, 2005, letter to Ms. Laura Johnson, 
a potential hazard exists if the employer does not entirely remove the 
source of the hazard. For example, a space will have the potential to 
contain a flammable atmosphere if any piping, containers, materials 
brought into the space, or residual contamination of the space brings 
combustible dust or flammable gas, vapor, or mist into the space. 
Employers can refer to a substance's Safety Data Sheet (SDS) as one 
indicator of the hazards the employer should reasonably anticipate as a 
result of using a particular substance. Testing and monitoring are some 
other methods of identifying potentially flammable atmospheres. OSHA 
also previously clarified that an appropriate lockout procedure that 
blocks a potentially hazardous atmosphere does not eliminate the 
potential for a hazardous atmosphere, so the space cannot be classified 
as a non-permit-required space. See August 28, 1995 letter to William 
K. Principe. Under this final rule, however, employers who can 
effectively isolate a potential hazardous atmosphere by using one of 
the other techniques described in the definition of the term 
``isolation'' in Sec.  1926.1202 (excluding lockout/tagout) may be able 
to re-classify the space.
    Permit-required confined space program (permit space program) means 
the employer's overall program for regulating employee entry into 
permit spaces and protecting employees from permit space hazards. This 
definition of this term in the final standard duplicates the term's 
definition in Sec.  1910.146(b). An employer need not tailor a confined 
space program specifically to each space entered. If the permit 
contains most of the relevant information required by this final rule, 
the program may be general and designate the particular permit that the 
employer developed earlier for such work, along with any other testing 
procedures, PPE, or other information normally required in response to 
the types of hazard present in the space. Accordingly, the employer is 
still responsible for developing the appropriate plans and other 
information

[[Page 25390]]

required by this standard to address the unique conditions of each 
space.
    In the general industry standard, OSHA uses the term ``permit 
system'' as the heading for Sec.  1910.146(e), and defines it in Sec.  
1910.146(b). In the final rule, OSHA uses the term ``permitting 
process'' as the heading of the parallel requirement at Sec.  
1926.1205, but does not employ the term anywhere else in the text of 
the final rule. OSHA, therefore, chooses not to provide a separate 
definition of ``permitting system'' in Sec.  1926.1205 because such a 
definition is unnecessary; the ``permitting system'' is comprised of 
the requirements of Sec.  1926.1205.
    Physical hazard means an existing or potential hazard that can 
cause death or serious physical damage. Examples include: Explosives 
(see paragraph (n) of Sec.  1926.914 for the definition of 
``explosive''); mechanical, electrical, hydraulic, and pneumatic 
energy; radiation; temperature extremes; engulfment; noise; and 
inwardly converging surfaces. The term ``physical hazard'' also 
includes chemicals that can cause death or serious physical damage 
through skin or eye contact (rather than through inhalation). The 
general industry confined space standard does not define the term 
``physical hazard.'' OSHA uses the term ``physical hazard'' throughout 
this final rule, however, and defined this term in the proposed rule to 
clarify its meaning.
    The proposed definition of ``physical hazard'' referred to a hazard 
that can cause harm ``in or near a confined space,'' or a hazard that 
might ``occur'' in or near the confined space. OSHA deleted the 
language tying the location of where the harm could occur to the 
meaning of ``physical hazard'' because a condition establishing a 
physical hazard can exist wherever it is regardless of proximity to a 
confined space (e.g., exploding dynamite is a physical hazard whether 
or not it is in or near a confined space, and an engulfment hazard may 
originate in a sewer far upstream from where employees are located). 
OSHA provides appropriate guidance in the implementing requirements of 
the final standard to ensure that the standard focuses on physical 
hazards related to confined spaces. See discussion of final Sec. Sec.  
1926.1203 and 1926.1204 in this preamble.
    The proposed definition of ``physical hazard'' also referred to a 
hazard that has a ``reasonable probability'' of occurring, and referred 
to the same list of examples now incorporated into the text of the 
final rule. OSHA has replaced that phrase with ``potential hazard'' to 
keep the terminology consistent with the general industry standard. 
Both Sec.  1910.146 and this final rule use the term ``potential 
hazard'' throughout the standard, so OSHA is using the term with which 
the industry is already familiar.
    One commenter noted that, in the proposed rule, OSHA defined 
``physical hazard'' to encompass not only hazards that could cause 
death or serious physical harm, but also ``a hazard that has a 
reasonable probability of occurring in or near a confined space'' (ID-
219.2, p. 75). The latter part of the definition did not require the 
hazard to result in death or serious physical harm, so the commenter 
objected on the grounds that the definition of ``hazard'' would be 
unnecessarily broad because it would cover minor hazards (i.e., ``a 
stubbed pinky finger or toe'') that would, in turn, trigger the permit 
restriction in the proposed standard (id). This final definition does 
not encompass stubbed fingers or toes or other minor injuries; 
therefore, the Agency did not include the extra component of the 
proposed definition in the final rule. The definition duplicates the 
general industry standard in this regard, and it also limits coverage 
to hazards that can cause death or ``serious physical damage,'' which 
OSHA has defined to clarify the differences between ``serious physical 
damage'' in this standard and ``serious physical harm'' as it is used 
in other OSHA standards. For additional information, see the 
explanation for the definition of ``serious physical damage'' below in 
this preamble.
    Another commenter asserted that the definition of ``physical 
hazard'' should not encompass equipment or material inside a confined 
space that could cause an ``impact hazard'' (e.g., ``a low hanging pipe 
or angle iron strut'') simply because it is present inside a confined 
space and could injure an employee who comes into contact with it (ID-
061, p. 7). The commenter expressed concern that if OSHA included these 
types of equipment or materials, the alternate procedures set forth in 
Sec.  1926.1203(e) of the final rule would almost never be available 
because such spaces must be free of physical hazards. In response, OSHA 
modified the definition of ``isolation'' and the ventilation 
alternative procedure in Sec.  1926.1203(e) to make it clear that this 
alternative procedure remains an option for employers if the employer 
protects entrants sufficiently from the impact hazards by eliminating 
them or isolating them through the use of engineering controls. For 
example, if a low-hanging pipe does not obstruct the entrance or egress 
of the space and is adequately padded to prevent potential employee 
exposure to the hazard, or there is enough room in the confined space 
to barricade the hazardous condition and prevent employee exposure to 
the hazard posed by the pipe, OSHA would consider the physical hazard 
isolated within the meaning of that term in this final standard. If 
there are no other physical hazards in the space, and the employer can 
demonstrate that it satisfied the other conditions of Sec.  
1926.1203(e), then the employer may use the ventilation alternative 
procedure in that space.
    If, however, there is a piece of equipment or other physical object 
inside a confined space that could cause serious physical damage to an 
employee upon impact, and the employer does not eliminate or isolate 
that hazard, then the employer must follow all of the PRCS procedures 
set forth in Sec.  1926.1204. The commenter did not provide any 
evidence of why an ``impact hazard'' is different than any other type 
of physical hazard, nor did the commenter indicate any inherent 
restrictions on physical movement that would necessarily limit the 
force of the impact to a level not capable of causing serious physical 
damage. In the absence of such evidence, OSHA believes that an object 
such as a low hanging pipe or angle-iron strut has the same potential 
to impair the ability of an entrant to exit the confined space unaided 
as other physical hazards. For example, an entrant could walk into a 
low-hanging pipe and receive a head injury that could render the 
entrant unconscious, or the entrant could receive some other form of 
serious injury to another part of the body that could render the 
entrant immobile.
    Two commenters suggested that the examples in the definition should 
include both fire and crush hazards (ID-025, p. 2; -095, p. 2). Another 
commenter suggested that the final rule definition should include falls 
as an example (ID-211, Tr. p. 42.) OSHA agrees that each of these is an 
example of a physical hazard, but notes that the list of examples 
provided in the definition is not an exhaustive list. Therefore, OSHA 
concludes that it is not necessary to add to this non-exhaustive list.
    The Agency included ``noise'' in the proposed definition of 
``physical hazard'' as one example of such a hazard because sound waves 
constitute a physical disturbance of the air that results in a physical 
impact on the human ear. Several commenters asserted that excessive 
noise should not trigger the application of PRCS procedures when no 
other hazard exists (ID-112, p. 17; -114, p. 2; -138, p. 4). These 
commenters indicated that the

[[Page 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 Sec.  1926.52, OSHA's construction noise 
standard, would trigger the permit-space requirements. The final 
construction confined spaces standard does not specify this threshold, 
and OSHA notes that noise will only trigger PRCS procedures if it 
reaches a level at which it can cause death or serious physical damage. 
For example, noise would constitute a physical hazard if it is loud 
enough to substantially reduce the efficiency of the entrant's ears to 
process communications from the attendant or entry supervisor regarding 
exit instructions or other emergency information, thereby impairing the 
ability of the employee in the permit space to exit the space safely 
(see the definition of ``serious physical damage,'' which includes ``an 
impairment . . . in which a body part is made functionally useless or 
is substantially reduced in efficiency'' and specifically mentions 
disorientation). OSHA has previously recognized the capacity of noise 
to create a hazardous situation by masking warning shouts or signals 
(see, e.g., OSHA's preamble to Sec.  1910.95, the general industry 
noise exposure standard, at 46 FR 4080 (Jan. 16, 1981). Employers 
generally can address these types of noise hazards by implementing a 
permit program that uses non-auditory cues, such as flashing lights, to 
resolve communication issues.
    In some cases, the sound waves from an explosion or other air 
disturbance may be so intense that it might cause physical pain or 
disorient an entrant to the extent that it could impair the ability of 
the entrant to exit the space unaided. See, e.g., Stephen A. Fausti, 
Ph.D., et al., Auditory and vestibular dysfunction associated with 
blast-related traumatic brain injury, Journal of Rehabilitation 
Research and Development, Vol. 46, No. 6 (2009) pp. 797-810 (discussing 
the impacts of excessive noise exposure, such as the noise caused by a 
blast or explosion, including immediate temporary hearing loss and 
sensory damage).
    Two of these commenters asserted that the use of personal 
protective equipment can protect employees effectively from noise 
hazards, but expressed concern that OSHA would prohibit employers from 
working in a confined space with excessive noise because the definition 
of ``control'' provides explicitly that ``personal protective equipment 
is not a control'' (ID-114, p. 2.) As another commenter noted, OSHA 
would treat earplugs as protection from a hazard, but not control of 
the hazard, and, therefore, would prohibit work in an area with an 
uncontrolled noise hazard (ID-112, p. 17).
    The final rule will not prevent work in a noisy confined space if 
employees are properly protected. In the final rule, OSHA requires 
employers to protect their employees adequately from confined-space 
hazards; in protecting employees, other construction standards also 
would apply. Therefore, if the noise is above the decibel levels 
specified in 29 CFR 1926.52, employers must protect their employers in 
accordance with that section, regardless of whether the noise 
conditions trigger the permit-space requirements of this final 
standard. OSHA's Field Operations Manual provides that employers may 
``rely on personal protective equipment and a hearing conservation 
program, rather than engineering and/or administrative controls, when 
hearing protectors will effectively attenuate the noise to which 
employees are exposed to acceptable levels.'' (CPL 02-00-150 at Ch. 4, 
XI.B). However, feasible administrative and/or engineering controls 
must be used when personal protective equipment may not reliably reduce 
noise levels received to the levels specified in the standard or when 
those controls are less expensive than an effective hearing 
conservation program. Employers choosing to rely on personal protective 
equipment instead of administrative or engineering controls must ensure 
that employees will be aware of continuous monitoring alarms and other 
hazard alerts in a timely manner regardless of PPE use. Therefore, to 
promote consistency with OSHA's treatment of noise hazards under Sec.  
1926.52, OSHA permits employers to use these same methods to address 
the noise hazards in a permit space so long as the administrative and 
engineering controls, or the personal protective equipment, do not 
interfere with the ability of the entrant to maintain effective 
communication with the attendant and other workers. Notwithstanding the 
general statement in the definition of ``control'' that personal 
protective equipment does not constitute a control, OSHA is permitting 
employers to use appropriate hearing-protection equipment as a means of 
addressing a noise hazard in a permit space when the PPE attenuates the 
noise to acceptable levels. However, if the employer is unable to 
reduce an employee's exposure to noise to a level where it does not 
constitute a threat of death or serious physical damage, then the 
employer must not permit employees to enter any portion of the permit 
space that would expose the employee to such a noise level.
    Prohibited condition means any condition in a permit space not 
allowed by the permit during the period of authorized entry. This 
portion of the definition is identical to the definition in Sec.  
1910.146(b), and is similar to the definition of ``unplanned 
condition'' in the proposal. In addition, the Agency added a sentence 
to the definition in the final standard to clarify that a hazardous 
atmosphere is always a prohibited condition, unless the employer can 
demonstrate that use of appropriate PPE will effectively protect 
entrants; this added condition means that employees cannot work in a 
hazardous atmosphere without the appropriate PPE. The definition of 
hazardous atmosphere in the general industry standard implies this 
condition, which the Agency made explicit in this final rule for 
construction.
    Qualified person means one who successfully demonstrates his/her 
ability to solve or resolve problems relating to the subject matter, 
the work, or the project. While the general industry does not include 
this term in the definition of ``entry supervisor,'' the proposed rule 
did, and OSHA retained this term in the final standard. While the 
proposal did not define ``qualified person,'' the final rule's 
definition is similar to definitions of the term found in Sec.  
1926.32(m) and other subparts of OSHA's construction safety standards 
(see, e.g., Sec.  1926.1401--Cranes and derricks in construction). In 
this way the final rule clarifies that an ``entry supervisor'' 
clarifies that the employer must ensure that the entry supervisor has 
sufficient experience to properly conduct identification, testing, and 
planning for the type of confined space involved.
    Representative permit space means a confined space, or mock-up of a 
confined space, that has entrance openings that are similar to, and is 
of similar size, configuration, and accessibility to, the permit space 
that authorized entrants enter. OSHA simplified this definition from 
the definition included in the proposed rule, but the simplification is 
a non-

[[Page 25392]]

substantive change that clarifies the criteria for a representative 
permit space. OSHA changed the term from ``simulated permit-required 
confined space'' to ``representative permit space'' because the Agency 
used the latter term in the general industry confined spaces standard 
at Sec.  1910.146; however, changing the terminology has no effect on 
the meaning of the term and the requirements relating to it. OSHA 
changed this terminology to make this final rule more consistent with 
Sec.  1910.146, for the reasons set forth above in the section, 
``Decision to abandon the proposed new classification system.''
    Rescue means retrieving, and providing medical assistance to, one 
or more employees who are in a permit space. OSHA defined this term in 
the proposed rule, and included the term in the final rule unchanged 
except for addition of the phrase ``one or more'' to clarify that a 
rescue can involve the retrieval of a single employee.
    Rescue service means the personnel designated to rescue employees 
from permit spaces. This definition duplicates the definition of the 
term in the general industry standard at Sec.  1910.146. In the 
proposed rule, OSHA included specific statements that the term applied 
to both onsite and offsite personnel, and to personnel designated by 
the employer for either non-entry or entry rescue (or both). In the 
final standard, OSHA elected to use the broader language of the general 
industry standard for consistency; however, the Agency believes that 
there is no substantive difference between the proposed and final 
standards in the meaning of these statements.
    Retrieval system means the equipment used for non-entry rescue of 
persons from permit spaces. The purpose of the retrieval system is to 
provide a means of removing an entrant from a space quickly without 
exposing any additional employees to the hazards of permit-space entry. 
This equipment typically includes a retrieval line attached around the 
chest of the entrant or to a full-body harness worn by the entrant, 
with the other end of the line attached to a lifting device or anchor. 
Alternatively, the retrieval system may consist of a retrieval line 
attached to wristlets or anklets when this method of pulling the 
entrant from the confined space would be safer than using a body 
harness.
    The definition of this term in the final standard duplicates the 
definition found in Sec.  1910.146 except that it allows for the use of 
anklets. In proposed Sec.  1926.1213(a)(4), OSHA permitted the use of 
``ankle straps'' for retrieval in certain cases, and at least one 
commenter supported this option in limited circumstances such as some 
horizontal entries (ID-94, p. 1) (see also the discussion of the 
requirements retrieval lines in Sec.  1926.1211(c)(1)).
    Serious physical damage refers to an impairment or illness in which 
a body part becomes functionally useless or substantially reduced in 
efficiency.
    One commenter noted that the proposed definition (``serious 
physical harm'' in the proposed rule) included impairments that are 
``chronic,'' in addition to impairments that are ``acute,'' and 
asserted that this definition is, therefore, too broad because it would 
apply on exposing an employee to a minor hazard that would not 
interfere with the ability to self-rescue (ID-219.2, p. 76).
    The term ``serious physical harm'' has a longstanding meaning 
within the OSH Act that developed over many years through litigation 
and many rulemakings. When developing the definition used in the final 
rule, OSHA used the Agency's common understanding of ``serious physical 
harm,'' as provided in the Agency's Field Operations Manual (FOM), 
which provides guidance to OSHA personnel conducting inspections and 
other activities in the field.\11\ The Agency acknowledges that the 
FOM, compared to the final rule, has a broader purpose of providing 
guidance for the enforcement of the OSH Act as a whole, and that the 
inclusion of the phrase ``acute or chronic'' from the FOM in the 
definition may not provide meaningful guidance in the context of this 
final rule. Therefore, OSHA changed the term to ``serious physical 
damage'' to distinguish it from the broader term used in the FOM and 
other contexts, and also did not include the phrase ``or acute or 
chronic'' in this definition. By doing so, OSHA addressed the 
commenter's concern that the reference to ``chronic'' impairments would 
``cause the standard to apply to conditions that cannot pose a 
significant risk of harm from the entry'' and thereby ``increase the 
cost of the standard so drastically as to render it infeasible for all 
construction industry sectors'' (ID-219.2, p. 72). In addition, OSHA 
recognizes that a similar issue exists with the reference to illness. 
The proposed definition included ``illnesses that could shorten life or 
substantially reduce physical or mental efficiency by impairing a 
normal functioning body part.'' This language could be read as 
including chronic illnesses that do not limit the ability to self-
rescue. For the purposes of this standard only, OSHA intends the 
reference to illness to encompass only those illnesses that could 
interfere with the entrant's ability to exit the confined space. 
Therefore, the final rule deleted this language, and inserted 
``illness'' after ``impairment'' to make clear that only illnesses that 
could impede self-rescue are covered in the meaning of serious physical 
damage.
---------------------------------------------------------------------------

    \11\ OSHA based the definition in the proposed rule on the Field 
Inspection Reference Manual, chapter III, section C.2.b(2)(c). See 
72 FR 67358. OSHA subsequently published the Field Operations Manual 
and updated it in April, 2011, but the definition of ``serious 
physical harm'' remains unchanged from the previous version: 
``Impairment of the body in which part of the body is made 
functionally useless or is substantially reduced in efficiency on or 
off the job. Such impairment may be permanent or temporary, chronic 
or acute. Injuries involving such impairment would usually require 
treatment by a medical doctor or other licensed health care 
professional.'' See CPL 02-00-150 II.C.3. at p. 4-11.
---------------------------------------------------------------------------

    Nevertheless, the Agency does not believe that these distinctions 
make a meaningful difference in employer duties because the majority of 
hazards in a confined space that could cause a serious physical injury 
are also likely to have the potential to impair the entrant's ability 
to exit the space without aid. As OSHA stated in the FOM in a note 
explaining the term ``serious physical harm'': ``The key determination 
is the likelihood that death or serious harm will result IF an accident 
or exposure occurs'' (Emphasis in the original).
    Although one commenter belittled the proposed definition of 
``serious physical harm'' as encompaasing a ``stubbed pinky finger or 
toe'' criticized the potentially broad scope of ``serious physical 
harm'' by suggesting that it would include ``a stubbed pinky finger or 
toe'' (ID-219.2, p. 75), such an argument improperly shifts the focus 
of the standard away from the hazard requiring protection and to the 
potential outcome of employee exposure to that hazard. If, for example, 
there is a physical obstruction in a confined space that is only 
capable of inflicting, as a maximum injury, a stubbed toe or finger, 
then OSHA agrees with the commenter that such an obstruction would not 
trigger any permit space requirements under this final standard. 
However, if it is reasonably foreseeable that an obstruction could 
cause the entrant to trip and either strike his/her head and lose 
consciousness, or fall and break his/her arm or leg thereby impairing 
the entrant's ability to exit the space, then the presence of this 
hazard would trigger the permit-space requirements of this standard, 
and the entry employer would need to address the hazard to protect 
employees it directs.

[[Page 25393]]

    Tagout, as used in this confined spaces standard, is a two-step 
process that follows the general industry approach: First, a tagout 
device must be placed on a circuit or equipment that has been 
deenergized, in accordance with an established procedure, to indicate 
that circuit or equipment being controlled may not be operated until 
the tagout device is removed. Second, the employer must ensure that the 
tagout provides equivalent protection to lockout, or that lockout is 
infeasible. If lockout is infeasible, the employer must tag the 
equipment and also provide protection from stored (residual) energy. 
This ensures that the final rule is more closely aligned with the full 
protections required for general industry work.
    Both the general industry rule and this final rule permit 
``tagout,'' in addition to ``lockout,'' as a means of isolating some 
hazards. The Agency added a definition of ``tagout'' to the 
construction standard because OSHA intends the tagout process under 
this construction rule to parallel the process under the general 
industry rule, which requires compliance with Sec.  1910.147--The 
control of hazardous energy (lockout/tagout) (see Sec.  1910.146(b); 
Sec.  1910.147(a)(3)(ii)).\12\ That tagout process involves more than 
the placement of a tag on equipment, and the final rule's definition of 
``tagout'' ensures that the regulatory text of this final rule reflects 
the critical additional elements of the general industry standard.
---------------------------------------------------------------------------

    \12\ OSHA did not include a definition of ``tagout'' in the 
NPRM, though the preamble noted the Agency's intent that 
``appropriate lockout/tagout procedures'' were required for 
isolation of physical hazards (72 FR 67386). As explained earlier in 
this preamble, OSHA is tailoring the final rule to follow the 
general industry rule more closely in response to numerous requests 
by commenters. If OSHA had allowed the use of tags without more, it 
would have been a key distinction from the general industry standard 
and would have allowed employers to circumvent most of the permit-
space requirements involving physical hazards.
---------------------------------------------------------------------------

    First, tagging equipment does not, by itself, prevent the release 
of a hazard into the space. Therefore, under Sec.  1910.147(c)(2), an 
employer may use tagout alone (i.e., not in conjunction with lockout) 
only if an energy isolating device is not capable of being locked out 
or the employer can demonstrate that the utilization of a tagout system 
will provide full employee protection. The standard specifies that 
``full employee protection'' means that the employer shall demonstrate 
that the tagout program will provide a level of safety equivalent to 
that obtained by using a lockout program (Sec.  1910.147(c)(3)). 
Paragraph (2) of the final rule's definition of tagout requires 
employers to ensure the same level of safety if they use tagout when 
lockout is feasible.
    Second, the general industry standard provides examples safety 
measures employers may use as a part of the tagout process to reduce 
the likelihood of inadvertent energization: Removal of an isolating 
circuit element, blocking of a controlling switch, opening of an extra 
disconnecting device, or the removal of a valve handle (Sec.  
1910.147(c)(3)(ii)). Under the final rule, employers may also use these 
methods, when applicable to their work, as part of their process for 
fulfilling their obligation to ensure that tagout provides equivalent 
protection to lockout. Finally, even when tagout is used alone, the 
general industry standard requires the employer to relieve, disconnect, 
restrain and otherwise render safe stored (residual) energy (see Sec.  
1910.147(d)(5)).
    This same requirement applies in this final rule to the use of 
tagout alone.
    Test or testing means the process by which employers identify and 
evaluate the hazards that may confront entrants of a permit space. 
Testing includes specifying the identification and evaluation processes 
the employer will perform in the permit space. This definition is 
similar to the definition found in Sec.  1910.146, except that OSHA 
added the word ``test'' to clarify that the definition applies to both 
words. OSHA is also including a note identical to the note to this 
definition on the general industry standard. The note emphasizes the 
importance of testing as the basis for developing and implementing 
adequate control measures.
    Ventilate or ventilation means controlling a hazardous atmosphere 
using continuous forced-air mechanical systems that meet the 
requirements of 29 CFR 1926.57--Ventilation. This definition is 
identical to the definition of these terms in the proposed rule. Some 
commenters asserted that the final definition should allow for the use 
of suction as a form of ventilation (ID-061.1, p. 1; -210, Tr. p. 289). 
Although the final rule does not prohibit the use of suction, suction 
is not an adequate means of providing the general ventilation required 
by this final rule. The general industry standard does not include a 
definition of ``ventilation,'' but OSHA interpreted that standard as 
precluding the use of ``negative'' suction ventilation to meet the 
requirements of the standard. See April 24, 1996, letter to Verne 
Brown. Suction may be appropriate to remove contaminants from a 
specific operation close to the source of the contaminant, but not for 
general ventilation of the entire confined space. OSHA is, therefore, 
including the proposed definition of ``ventilate'' in the final rule.
    Another commenter requested clarification regarding how an employer 
can use forced air to ``ventilate'' while also complying with OSHA's 
welding requirements at Sec.  1926.353(a) through (e) (ID-061.1, p. 2). 
Section 1926.353(a)(3) requires local exhaust ventilation (LEV) when 
general mechanical ventilation does not provide sufficient protection. 
In addition, Sec.  1926.351(a)(1) authorizes the use of general 
mechanical ventilation. The overlap of the welding standard and this 
confined spaces standard is addressed earlier in the explanation of 
Sec.  1926.1201(c). Both of these practices are consistent with the 
requirement in this final rule that employers use ventilation that 
consists of continuous forced-air. Accordingly, this confined spaces 
standard requires that employers use continuous forced-air ventilation 
to ventilate confined spaces. When an employee is welding inside a 
confined space, Sec.  1926.353(a)(3) may require the employer to also 
implement LEV. In conclusion, OSHA believes that LEV alone is not 
sufficient for the purposes of providing general ventilation of a 
confined space because LEV might not eliminate all of the toxic 
material from the area, and any residual fumes would be more likely to 
build up and create a potential or actual hazardous atmosphere in a 
confined space.

Section 1926.1203--General Requirements

    Final Sec.  1926.1203 sets forth general requirements for employers 
that have operations within the scope of this standard. This section 
establishes a comprehensive regulatory framework under which employers 
must identify any permit spaces at their workplaces and take 
appropriate measures for the protection of affected employees. It is 
similar to the general industry rule at Sec.  1910.146(c). The 
corresponding requirements in the proposed rule also were similar to 
the requirements in this final rule, but this final rule organizes the 
requirements differently.
    Paragraph (a). Final Sec.  1926.1203(a) is similar to the 
corresponding provision for general industry confined spaces at Sec.  
1910.146(c)(1), with some minor modifications. Final Sec.  1926.1203(a) 
requires an employer to have a competent person evaluate the spaces in 
which employees it directs may work, and requires a two-step process 
for the evaluation: (1) The competent person must evaluate whether a 
space meets the definition of a confined space, and if so, (2) the 
competent person must identify, in accordance with other

[[Page 25394]]

provisions of this final rule, any confined spaces that are PRCSs 
through consideration and evaluation of the space, including testing of 
the space as necessary. The final construction rule specifies both the 
two-step approach and the competent-person requirement more explicitly 
than in the general industry standard.
    OSHA added the competent-person requirement in response to several 
comments noting that the analysis required for these evaluations 
necessitated some level of expertise. (See ID-025, p. 2; -028, p. 4; -
095, p. 2; -097, p. 3; -140, p. 3; -150, p. 2.) A ``competent person,'' 
which Sec.  1926.1202 defines under this standard, must be capable of 
identifying the hazards of permit spaces and have the authority to 
eliminate them promptly. Because final Sec.  1926.1203(a) requires the 
competent person to conduct initial testing as necessary, the competent 
person also must be knowledgeable about appropriate testing. The 
correct initial identification of permit spaces is an important part of 
preventing unauthorized entry into those spaces and ensuring that 
authorized entrants have adequate protection.
    As discussed in the explanation of the definition of ``entry 
employer,'' each employer has a responsibility to protect all the 
employees that it directs, including employees hired directly by that 
employer as well as other employees, such as temporary workers, who are 
under its the control at the worksite. Thus, each employer who directs 
a temporary worker to a work area must ensure that a competent person 
evaluates that area for confined spaces and permit spaces.
    Final Sec.  1926.1203(a) also differs from the general industry 
rule in that it explicitly specifies that the competent person must 
identify confined and permit spaces through consideration and 
evaluation of other elements of the confined space, and testing as 
necessary. The atmospheric-testing requirement in this final rule is 
less specific than the atmospheric-testing requirement in proposed 
Sec.  1926.1204(b), which would have required employers to test for 
atmospheric hazards using the procedures in proposed Sec.  
1926.1204(b)(3). However, final Sec.  1926.1203(a) is more specific 
than the corresponding provision in the general industry rule, which 
states that employers must ``evaluate the workplace'' to determine if 
any spaces are permit-required spaces. Accordingly, this final 
provision explicitly requires testing if necessary to assess whether a 
confined space is a permit-required confined space.
    The testing required by final Sec.  1926.1203(a) is only initial 
testing; final Sec.  1926.1204(b) addresses the detailed evaluation and 
identification of hazards found within the space (see discussion later 
in this preamble). The primary purpose of the assessment required by 
Sec.  1926.1203(a) is to determine whether the space is a permit space 
so that this information can be conveyed to employees, the controlling 
contractor, and other employers at the site in order to prohibit 
unauthorized entry. In some cases employers may discover that the space 
is a permit space after only limited testing and decide not to allow 
their employees to enter the space at that point rather than fully 
assessing the space. Employers who intend to enter, however, may choose 
to conduct more thorough testing that satisfies the requirements of 
both Sec.  1926.1203(a) and Sec.  1926.1204(b) at the same time, so 
long as it does not delay their notification of their employees and the 
controlling contractor of the existence of the permit space.
    Final Sec.  1926.1203(a) also requires the competent person to 
consider and evaluate other elements of the confined space to determine 
if it is a permit-required confined space. Such elements include the 
configuration of the space and any physical hazards or obstacles to 
egress from the space. Both the testing and consideration of the space 
are essential in making an initial determination whether a confined 
space is a permit-required space; the Agency believes that requiring 
these basic steps will ensure that employers correctly identify PRCSs.
    OSHA determined that employers must identify confined spaces that 
meet the definition of a permit space at the time their work begins on 
a worksite rather than when an employer decides that employees will 
enter a confined space. The Agency believes that the initial workplace 
survey is essential because it alerts employers to the need to take 
measures to prevent unauthorized entry into these spaces. OSHA further 
notes that while it may not always be feasible for employers to create 
and follow a full permit program before assessing an previously 
unexplored confined space, when it is feasible employers must treat any 
entry into a confined space as if the space was a permit space and 
eliminate or isolate the hazards before entry (see Sec.  1926.1203(d) 
and (g)(2); Sec.  1926.1204(b)(2)). This applies to entries performed 
to determine whether or not that space is a permit space.
    Final Sec.  1926.1203(a) states that there are two steps to be 
followed. The first step in the evaluation process is to determine 
whether a space meets the definition of a confined space. If the 
employer determines that there is a confined space on the worksite, the 
second step requires the employer to evaluate, in accordance with other 
provisions of this final rule, whether there are any actual or 
potential hazards in the confined space. Actual or potential hazards 
the employer must consider include atmospheric, engulfment, physical, 
or any other type of hazard. Both stages of the initial evaluation are 
crucial, as correctly identifying both confined spaces and the 
conditions or potential conditions that would make a confined space a 
permit-required confined space determines how the employer and 
employees will perform in and around the space thereafter. Though the 
general industry rule at Sec.  1910.146(c)(1) does not explicitly 
identify the two steps, they are implicit in Sec.  1910.146(c)(1) 
because an employer cannot evaluate the hazards of a confined space 
without first evaluating whether there are confined spaces on the 
worksite, as well as the location of these confined spaces. This 
clarification that an employer must first consider whether there are 
confined spaces at a worksite also was in proposed Sec.  1926.1204(b). 
The Agency believes that making this requirement explicit is necessary 
to ensure that employers correctly assess the spaces so that they can 
adequately protect employees from the hazards present in the confined 
spaces.
    One commenter requested that OSHA clarify which employer has the 
responsibility to evaluate hazards in confined spaces (ID-086, p. 4). 
Final Sec.  1926.1203(a) clarifies the requirement by specifying that 
each employer that directs employees who may work in a confined space 
must perform the requisite evaluation. As in both the general industry 
standard and the proposed rule, this evaluation provision applies to a 
group of employers larger than just entry employers. The general 
industry standard requires each employer to evaluate the workspace and 
determine if any confined spaces are permit spaces (Sec.  
1910.146(c)(1)). On a construction worksite, there typically are many 
more employers than at general industry worksites. Therefore, under 
final Sec.  1926.1203(a), each employer that directs employees who may 
work in a confined space must identify all such spaces, and also 
identify each space that is a permit space. The term ``may work'' means 
that this requirement applies to any employer (not just entry 
employers) at a construction worksite who should

[[Page 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 
Sec. Sec.  1926.1203(h) and (i) to exchange information about the 
permit space.
    Some commenters also suggested requiring a competent person to 
perform additional duties specified by this standard, such as 
monitoring or calibration of equipment (ID-025, p. 3; -028, pp. 3-4; -
150, p. 2). However, final Sec.  1926.1204(h) requires employers to 
properly train employees who perform these duties during entry 
operations. This final standard also includes training and knowledge 
requirements for entry supervisors, attendants, and other specific 
positions set forth in this standard to ensure that the employees 
filling those positions have the knowledge and capabilities to perform 
the specified duties once a permit space is identified (see final 
Sec. Sec.  1926.1207-1210). The initial evaluation of spaces under 
final Sec.  1926.1203(a) includes a competent-person requirement 
because of the critical need to identify confined and permit spaces 
early in the work at the site, and because the requirement to evaluate 
spaces also applies to employers who are not entry employers and who 
are, thus, not covered under the permit-space requirements of this 
final rule.
    One commenter suggested that OSHA add a note in the standard to 
inform the regulated community that Material Safety Data sheets (now 
called Safety Data sheets) may be helpful in evaluating confined space 
hazards (ID-140, p. 4). OSHA agrees that this is useful information, 
but observes that a note under the definition of ``hazardous 
atmosphere'' in final Sec.  1926.1202 provides similar information and 
achieves the commenter's stated result.
    The same commenter also expressed concern that an employer, when 
identifying confined space hazards, does not have to consider the work 
it plans on performing inside the confined space, which may create a 
hazard (e.g., welding or painting) (ID-140, p. 5). The commenter based 
this assertion on proposed Sec.  1926.1204(b)(1), which provided that 
an employer must identify confined space hazards without entering the 
space and, thus, without first performing the work that could 
potentially create a hazard. OSHA drafted final Sec.  1926.1203(a) 
broadly, so it is not as specific as proposed Sec.  1926.1204(b)(1). An 
employer who is planning to conduct entry operations must develop and 
implement a written permit-space program under final rule Sec.  
1926.1203(d). Furthermore, under final Sec.  1926.1205(c)(1), these 
employers must specify acceptable entry conditions. Taken together, 
these provisions require an employer that will conduct entry operations 
to consider the work it is planning to perform and the hazards that may 
result from this work when conducting the initial evaluation under 
final Sec.  1926.1203(a).
    One commenter asserted that the proposed prohibition on the use of 
mechanical ventilation or changing the space's natural ventilation 
during atmospheric testing would make some confined space work 
dangerous (ID-077, p. 1). This commenter asserted that when an employer 
is performing abrasive blasting on a tank interior, it is unsafe to 
perform the abrasive blasting with the dust collector turned off just 
to get a baseline reading. This commenter misunderstands the purpose of 
this requirement. Under final Sec.  1926.1203(a), an employer's 
evaluation is the first step for any confined space work. This 
evaluation must occur before the employer performs either ventilation 
or construction in the confined space (see Sec.  1203(a) and Sec.  
1204(e)(1) (allows an exception for spaces where it is infeasible to 
isolate the space). Only after the employer completes this initial 
evaluation, and the other required steps of its permit-space program, 
may it perform the construction work permitted under the rest of this 
final rule (e.g., abrasive blasting with the dust collector turned on); 
however, the employer must consider this work and the types of hazards 
it might create when conducting the initial evaluation and when 
developing its permit-space program.
    Paragraph (b). Final Sec.  1926.1203(b) requires an employer that 
identifies one or more permit spaces on a worksite to inform exposed 
employees, employees' authorized representatives, and controlling 
contractors of the existence and location of those permit spaces and 
the known dangers inside. This duty applies to the employer that 
identifies a permit space under final Sec.  1926.1203(a), as opposed to 
the general industry language, which refers to ``the employer.'' One of 
the keys to protecting employees from PRCS hazards is for both 
employers and employees to know the location of the PRCSs at the job 
site, the characteristics of the hazards, and their associated dangers. 
The provisions in this paragraph will achieve this goal.
    The introductory language in paragraph (b) follows the general 
industry standard except that the new rule specifies that the 
employer's duty is triggered when the workplace has ``one or more'' 
permit spaces, whereas the general industry standard just refers to 
``spaces'' in the plural. A single permit space triggers the employer's 
duty under both the general industry standard and this final rule, and 
OSHA is making this point explicit in the new rule.
    Paragraph (b)(1). Final Sec.  1926.1203(b)(1) requires the employer 
to inform exposed employees of the existence and location of, and the 
danger posed by, the permit spaces by posting danger signs or by any 
other equally effective means. Final Sec.  1926.1203(b)(1) is similar 
to both the general industry rule at Sec.  1910.146(c)(2) and proposed 
Sec.  1926.1209(a)(2). As OSHA noted in the preamble to the general 
industry standard, many confined space accidents occur when an employee 
fails to recognize the hazards present when entering a permit-required 
confined space that the employer failed to mark as such. (58 FR 4462, 
4483 (Dec. 17, 1993)). Therefore, OSHA determined that it is important 
to identify permit spaces and to inform exposed employees of their 
presence and the hazards involved. The Agency believes that employees 
need this information to

[[Page 25396]]

understand the seriousness of potential hazards in PRCSs. To recognize 
all methods of informing employees and to clarify the purpose of the 
rule, OSHA is adopting a performance-oriented requirement in the final 
rule. Accordingly, the employer must post a danger sign at or near PRCS 
entrances, which the Agency believes is an effective way to ensure that 
employees receive proper warning of the hazards in a PRCS, or 
adequately inform exposed employees through another equally effective 
means. Compliance with this requirement will ensure that exposed 
employees who are not authorized entrants receive the information 
necessary to prevent them from entering the spaces. Whatever method the 
employer uses, the standard requires the employer to inform employees 
exposed to the hazards posed by permit-required confined spaces of the 
existence, location, and danger of those spaces. Everyone at the 
construction site benefits from this information even if they do not 
engage in construction activity (e.g., designers or architects).
    However, OSHA notes that only employees who work in PRCSs need to 
know the details about the potential hazards. Final Sec.  1926.1205(c) 
provides that employers post the entry permit, which contains 
information about the hazards of the PRCS and the measures used to 
address those hazards, at the entry portal or make this information 
available by any other equally effective means at the time of entry. 
Final Sec.  1926.1212 provides that employers must make available to 
each affected employee and his/her authorized representatives all 
information required by this standard. Therefore, final Sec.  
1926.1203(b) does not require employers to list specific PRCS hazards 
on each sign.
    In enforcing this provision, OSHA will make determinations about 
whether methods other than warning signs used by employers to notify 
employees about the spaces are truly as effective in imparting the 
required information to employees. Such methods must go beyond just the 
generic training required by this standard, for example, since generic 
training would not identify the location of permit spaces at a specific 
worksite. Therefore, an equally effective means would identify the PRCS 
locations so that employees at the job site who may work near the PRCSs 
would be aware of these locations and would understand the importance 
of not entering them. The final rule places on employers, not 
employees, the burden of using an effective means of identifying the 
spaces and controlling the associated hazards.
    If an employer uses a warning sign, the sign must convey that 
entering the space is dangerous and that only authorized employees may 
enter the space. In this final provision, OSHA included the note from 
Sec.  1910.146(c)(2) that a sign reading ``DANGER--PERMIT-REQUIRED 
CONFINED SPACE, DO NOT ENTER'' or similar language would satisfy the 
requirement for a sign.\13\ This language is familiar to employers and 
employees under the general industry standard, and is a clear warning 
not to enter the space. The Agency believes that, when properly warned, 
employees who are not authorized to enter the space would avoid 
entering the PRCS, thereby preventing harm that could result from the 
PRCS hazards.
---------------------------------------------------------------------------

    \13\ OSHA's requirements for accident prevention signs in Sec.  
1926.200 also apply.
---------------------------------------------------------------------------

    Proposed Sec.  1926.1209(a) specified a two-step process that 
involved notifying employees who would be in or near the permit space, 
and then posting a sign. One commenter asserted that limiting 
notification to employees who the entry employer anticipates will be in 
or near the PRCS, as provided in proposed Sec.  1926.1209(a)(1), would 
allow entry employers to avoid this requirement by claiming they did 
not anticipate a particular employee was going to be in or near the 
PRCS (ID-086, p. 5). Final Sec.  1926.1203(b)(1) requires notification 
to exposed employees, which addresses this commenter's concern.
    Other commenters argued that notifying employees near a PRCS, or 
employees on the jobsite, was burdensome, and that posting a warning 
sign would be sufficient to notify employees of the PRCSs and their 
hazards (ID-124, pp. 6-7; ID-133, p. 2). At least one other commenter 
argued that the barriers required by proposed Sec.  1926.1209(b) would 
not always be feasible, and that posting warning signs would be 
sufficient (ID-104, p. 3). OSHA agrees with these commenters, and 
drafted final Sec.  1926.1203(b)(1) to specify that notification by 
posting a warning sign would provide adequate notice to employees of 
the existence, location, and hazards of the PRCSs.
    Another commenter was unsure whether the posting requirement 
applies when employers physically barricade the space (ID-099, p. 3). 
It does. Final Sec.  1926.1203(b)(1) requires posting a warning sign or 
using another equally effective means of informing exposed employer 
about the hazards of the permit space, and final Sec.  1926.1203(c) 
requires an employer to comply with final Sec.  1926.1203(b)(1) when 
the employer prohibits entry into a confined space. Barricading the 
confined space in a manner that prevents easy entry by unauthorized 
employees (for example, by using a barricade that requires a key to 
gain entry) would be an equally effective means of informing employees 
under Sec.  1926.1203(b)(1), provided the employer ensures that all 
affected employees receive information about such spaces and know that 
they must not enter the spaces without authorization and without taking 
proper precautions This means of compliance is consistent with the 
general industry standard. See OSHA Directive CPL 02-00-100: 
Application of the Permit-Required Confined Spaces (PRCS) Standard, 
Appendix E, Section (c)(4), and July 22, 1998, letter to Mr. Black.
    This commenter, as well as another, asked which employer has the 
responsibility to post the warning sign if the space is a pre-existing 
one or there are multiple entry employers (ID-099, p. 3; -133, p. 2). 
Each employer that identifies that space, or receives notice of it, has 
a duty to inform exposed employees about a permit space (see Sec.  
1926.1203(b) and (c)). Each employer also has a responsibility to 
identify permit spaces in which one or more of employees it directs may 
work (see Sec.  1926.1203(a)). However, if there already is a warning 
sign posted at the permit space, then the employer does not need to 
post an additional sign. Rather, an employer that relies on a 
preexisting sign to identify a space must ensure that the sign remains 
posted for the duration of the potential exposure to the permit space 
of employees it directs.
    One of those commenters also asserted that the controlling 
contractor or host employer should post the warning sign because of 
their responsibility to ensure safe confined space entry operations. 
Final Sec.  1926.1203(b)(1) requires the ``employer who identifies a 
permit space'' to post the warning sign. For the purposes of this 
standard, such employers include the controlling contractor, the host 
employer, and the entry employer if these employers have employees who 
could be exposed to permit-space hazards. The standard merely requires 
that an employer post the sign, thereby retaining flexibility among 
these entities to determine which employer is in the best position to 
post the sign. When multiple employers will be working in the same 
space, each employer has a separate duty to post the warning sign. If 
an employer decides to enter the space, then this subject must be 
resolved between the controlling contractor and the entry employers as 
part of the coordination discussion required by final Sec.  
1926.1203(h)(4).

[[Page 25397]]

    Paragraph (b)(2). Final Sec.  1926.1203(b)(2) requires each 
employer to notify its employees' representatives and the controlling 
contractor, in a manner other than posting, of the hazards of permit 
spaces and the location of those spaces. This requirement follows 
proposed Sec.  1926.1209(a)(1). The primary purpose of this provision 
is to ensure that the employer who identifies a permit space conveys 
the location and general characteristics of the space to the designated 
recipients as soon as possible. Later, in accordance with Sec.  
1926.1203(h)(3), the entry employer must provide to the controlling 
contractor a more thorough assessment of the space, the hazards it 
expects to encounter, and the permit program measures it intends to use 
to address those hazards. It is important for employers to provide the 
controlling contractor with this information because the controlling 
contractor is in the best position to convey the employer's information 
to other employers at the site, and later share this information with 
entry employers under final Sec.  1926.1203(h). Final Sec.  
1926.1203(b)(2) is also important because it applies to employers who 
identify a permit space, even if they choose not to allow their 
employees to enter it, thereby ensuring that the location of all permit 
spaces will be conveyed to the controlling contractor. Otherwise, the 
information exchange in Sec.  1926.1203(h)(3) would only apply if the 
employer chooses to enter the space and become an ``entry employer.''
    One commenter questioned the necessity of notifying authorized 
representatives, particularly if no such representatives are on the 
project site (ID-099, p. 2). Both the general industry standard and 
this final standard typically require information sharing between 
employers and employees and the employees' authorized representatives 
(see, e.g., Sec.  1910.146(l) and the discussion of Sec.  1926.1212 
later in this document). OSHA believes that notifying employees and 
their authorized representatives of the presence of confined spaces on 
a worksite will contribute to the successful implementation of safe 
entry operations, and the prevention of unauthorized entry, by ensuring 
that they have knowledge of the hazards present in the confined space. 
Sharing this information with employees' authorized representatives 
provides an additional way to ensure that this information reaches the 
employer's employees, and alerts the authorized representatives that 
there is the potential for permit entry operations. Final Sec.  
1926.1203(b)(2) also will facilitate the effective sharing of this 
important information among other employers at the site whose 
activities may impact the PRCS, as well as the employees of those other 
employers.
    In some cases, an authorized representative of employees may have 
more extensive knowledge than the employee about particular hazards, or 
may be in a better position than the employee to assess the safety of 
the project site based on past experience at similar sites; therefore, 
OSHA sees no reason to deviate from the accepted general industry 
practice of information sharing with the employee's authorized 
representatives. Final Sec.  1926.1203(b)(2) limits this notification 
requirement to only the representatives of the employer's employees. 
Also, while employers must notify these representatives in a timely 
manner to ensure that the information is available to the employee 
representatives and controlling contractor in sufficient time for it to 
be useful, this notification may be by any means normally used for 
communication with the employee representative or agreed upon in 
advance, including telephonic or electronic communication. If there are 
no authorized representatives of employees, the employer must still 
notify employees under final Sec.  1926.1203(b)(1), and the controlling 
contractor under final Sec.  1926.1203(b)(2).
    Another commenter asserted that notifying the controlling 
contractor of the existence of every PRCS was unnecessary because 
posting would provide adequate notification (ID-090, p. 2). With 
respect to employees exposed to confined space hazards, OSHA agrees 
with this commenter that posting will provide these employees with 
adequate notification because of the proximity of the danger sign to 
the PRCS. Therefore, final Sec.  1926.1203(b)(1) requires only posting 
to notify employees of confined space hazards, similar to the general 
industry standard at Sec.  1910.146(c)(2). However, with respect to the 
controlling contractor and the employees' authorized representatives, a 
separate notification requirement is necessary to ensure a timely and 
efficient information exchange, rather than relying on the controlling 
contractor and employees' authorized representatives to explore the 
worksite and discover each danger sign.
    Paragraph (c). Final Sec.  1926.1203(c), which is similar to Sec.  
1910.146(c)(3), requires an employer that identifies, or has 
notification of, a permit space to take measures that are effective in 
prohibiting entry when that employer decides employees it directs will 
not enter permit spaces, and to comply with the rest of the standard as 
applicable. This provision applies to all employers that: Identify 
permit spaces under final Sec.  1926.1203(a); receive notification from 
the controlling contractor of the presence of a permit space under 
final Sec.  1926.1203(h)(2); receive notification of the permit space 
from a danger sign posted at a permit space; or receive notification of 
the permit space from any other means. While proposed Sec.  
1926.1209(b) required employers not conducting confined space 
operations to take specific steps to prohibit entry by employees, final 
Sec.  1926.1203(c) follows the performance-oriented language of the 
general industry rule.
    The effective measures to prohibit entry could include permanently 
closing the space and providing barriers, supplemented by training 
employees and the posted danger signs required under Sec.  
1926.1203(b). In any event, the steps taken by the employer must be 
effective in preventing employee entry into permit spaces. In OSHA's 
experience, posting signs without barriers is generally less effective 
than with barriers, so employers who choose the former method must take 
special care to ensure that employees they direct recognize and 
understand permit-space warning signs, that they are knowledgeable 
regarding the hazards associated with these spaces, and that they 
understand that entry into the spaces is not authorized. This 
reinforces the employer's existing obligation under Sec.  1926.21(b)(2) 
to instruct each employee in the recognition and avoidance of unsafe 
conditions. OSHA believes that these provisions in the final rule will 
protect employees from unauthorized entry into permit spaces.
    Final Sec.  1926.1203(c) also requires employers covered by this 
provision to comply with the rest of the confined spaces in 
construction standard, as applicable. The parallel provision in the 
general industry standard requires employers to comply with specific 
provisions of that standard, which correspond to the following 
provisions in this final rule: Sec.  1926.1203(a), relating to 
identification of permit spaces in the workplace; Sec.  
1926.1203(b)(1), relating to informing employees of the presence of 
permit spaces; Sec.  1926.1203(f), relating to changes in confined 
spaces; and Sec.  1926.1203(h), relating to the controlling 
contractor's information exchange with employers. Employers must comply 
with those provisions that are applicable. For example, under final 
Sec.  1926.1203(h)(2) and (h)(4), controlling contractors must inform 
and coordinate

[[Page 25398]]

with employers that direct employees (including employees not involved 
directly in the confined space operations) whose activities could, 
either alone or in conjunction with the activities performed in the 
confined space, foreseeably result in a hazard to employees in the 
confined space. Additional provisions of this standard may apply as 
well, depending on the activities of the employer in question. For 
these reasons, in final Sec.  1926.1203(c), OSHA used the general 
language ``all other applicable requirements'' rather than specifying 
different sections of the final standard that may be applicable.
    Paragraph (d). Final Sec.  1926.1203(d) requires any employer that 
has employees who will enter a confined space to have and implement a 
written permit-space program that meets the requirements of this final 
standard, and to make the program available for inspection by employees 
and their representatives. Final Sec.  1926.1203(d) is similar to the 
corresponding provision for general industry confined spaces at Sec.  
1910.146(c)(4), with slight modifications. OSHA modified the language 
of this final provision slightly to clarify that entry employers do not 
necessarily have to develop a separate written program for each 
individual entry. Rather, an entry employer may reuse a program it 
developed previously, or a program developed by another employer, an 
industry association, or other entity, so long as the program is 
appropriate for the specific entry operations and the type of work 
involved, and that the program meets the requirements set forth in 
final Sec.  1926.1204. OSHA anticipates that in most cases employers 
will be able to use or modify an existing program and will not need to 
develop an entirely new program.
    Although the final rule requires the permit program to meet the 
requirements of final Sec.  1926.1204, OSHA will allow employers to 
fulfill this obligation through a combination of the permit program and 
the entry permit itself. In a 2006 interpretation of the general 
industry standard, the Agency noted that employers could use the same 
permit program to cover multiple spaces:

    If employees will enter a permit space, an employer must develop 
and implement the means, procedures and practices necessary for safe 
permit space entry operations in accordance with Sec.  
1910.146(d)(3). Before a specific permit space is entered, the 
employer must document the completion of the measures required by 
Sec.  1910.146(d)(3) by preparing an entry permit. A specific permit 
must be completed prior to each entry. However, if there are several 
similar tanks, with the same conditions and hazards, the same means, 
procedures and practices could be used for this similar group of 
tanks.

September 21, 2006, letter to Fred Rubel. OSHA anticipates that, in 
practice, some employers in construction may operate with a general 
permit-space program that covers numerous types of permit spaces and 
hazards, along with a specific permit that includes the unique hazards 
and practices applicable to each of those spaces. The Agency has no 
objection to this approach, provided the permit conveys all of the 
applicable information to employees at the required times, this 
information is readily available to the employees for reference during 
entry operations, and employees receive the training necessary for them 
to refer to the appropriate document for the required information. 
Therefore, for this purpose, OSHA allows employers to treat the permit 
as part of the written permit space program required by this section.
    The proposed rule did not require an employer to have a written 
confined space program. Instead, in proposed Sec.  1926.1219(a), the 
proposed rule provided that the employer could keep either a copy of 
the standard on the worksite or a copy of a program that incorporated 
the requirements of the standard. At least one commenter recommended 
that OSHA revise proposed Sec.  1926.1219(a) so that the provision 
required employers to have a written copy of the final rule on site, 
regardless of whether the employer had a written copy of its confined 
spaces program (ID-108, p. 4). Several other commenters disagreed with 
OSHA's approach in the proposal, and urged OSHA to require a written 
confined space program as the general industry standard does. One 
commenter stated, ``For a confined space program to be effective, it 
must be easy to understand and implement. . . . Providing employees 
with the generic terms of the standard--even if they read it--would not 
provide that kind of clarity. Instead, they need information specific 
to working at the particular worksite [which a program provides]'' (ID-
220, p. 28-29). Another commenter asserted, ``Having a written program 
gives everyone a clear idea of what is required and their roles and 
responsibilities. It also is an important reference document. 
Construction contractors commonly have written safety programs, and 
many already have written confined space programs as well, so 
compliance should not be difficult'' (ID-150, p. 3). Another commenter 
asserted that the written program in the general industry standard 
contributed to employee safety, and that the lack of a written program 
in the proposal diminished employee safety and also weakened training 
because ``the vision of what is expected can not be focused'' (ID-129, 
p. 3). A different commenter stated that requiring a written plan was 
the most important provision of the standard because it ensures that 
employers plan the permit space entry carefully and are familiar with 
the hazard analysis; it also provides an important reference document 
(ID-130, p. 1). The latter two commenters also noted that the lack of a 
written program in the proposal was a step backwards from the general 
industry rule.
    OSHA wrote this final standard in performance-based language to be 
consistent with the general industry rule; consequently, this final 
standard does not provide the specific classification system and 
detailed step-by-step procedures for employers to follow found in the 
proposed rule. Therefore, this final rule is less suitable as a 
replacement for a written permit program than was the proposed rule. 
Accordingly, OSHA does not believe that maintaining a copy of this 
final rule on site, in lieu of having a written permit-space program, 
will ensure that an employer's confined space procedures will provide 
adequate employee protection. OSHA agrees with the commenters who 
supported a written program.
    The Agency believes that final Sec.  1926.1203(d) will effectively 
prevent unauthorized entry into PRCSs, and so protect employees from 
encountering PRCS hazards. The Agency also believes that it is 
necessary for employers to have a written confined space program at the 
worksite as a reference for employees involved in implementing safe 
entry procedures. A written program provides the basis for any permit-
space entry operation, as well as a reference for guiding and directing 
supervisors and employees alike. A written program also will serve to 
assign accountability for all functions related to permit-space entry, 
and will aid in avoiding mistakes and misunderstandings. Additionally, 
because of the compliance flexibility and discretion that the standard 
provides to the employer, a written plan is essential to demonstrate 
that the employer took all aspects of permit-space entry into 
consideration. For these reasons, OSHA decided to specify in the final 
rule that the permit-space program be in writing. The written plan 
must, in combination with the permit itself, address the employer's 
particular facts

[[Page 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 Sec.  1926.1203(d) explicitly requires employers to implement 
their written permit-space program at the jobsite. A program that is 
drafted but not implemented at the jobsite will not protect employees 
from the hazards of permit-space entry. This requirement is implicit in 
the general industry standard, but OSHA has made it explicit in this 
final rule. Additionally, this final provision requires employers to 
make the written program available for inspection by employees and 
their authorized representatives. The Agency believes that such access 
is essential for the successful implementation of a permit-space entry 
program. Finally, final Sec.  1926.1203(d) clarifies that the employer 
must make the program available to employees prior to, and during, 
entry operations, which are the periods that the written program is 
most important. During these periods, employees must understand the 
program to ensure their safety. The general industry rule requires that 
the program be available, and this final rule simply clarifies that it 
must be available during these critical periods.
    Paragraph (e). Final Sec.  1926.1203(e) authorizes an employer to 
use alternate procedures for permit-space operations under limited 
circumstances. The standard permits these alternative procedures when 
an employer can demonstrate that it eliminated or isolated all physical 
hazards through engineering controls and controls atmospheric hazards 
through continuous forced-air ventilation. OSHA notes that continuous 
ventilation is a control method, and not a method suitable for 
eliminating or isolating an atmospheric hazard, so final Sec.  
1926.1203(e) spaces remain permit-required spaces, but can be entered 
without a permit program under the alternate procedures specified in 
this final section. OSHA believes that in the context of construction 
work, these alternative procedures provide adequate safety measures 
while being more efficient, and less costly to implement, than 
complying with the full permit-program requirements specified by final 
rule Sec.  1926.1204. The requirements for the alternate procedures 
allowed under the final construction rule are similar to the 
corresponding provisions of the general industry confined spaces 
standard at Sec.  1910.146(c)(5), but contain some substantive 
modifications explained in the following paragraphs. OSHA also added 
the word ``only'' to the introductory provision to clarify that an 
employer cannot use these alternate procedures under any other 
circumstances. In addition, final Sec.  1926.1203(e) is similar to 
proposed Sec.  1926.1216.
    Paragraph (e)(1). Final Sec.  1926.1203(e)(1), which is 
substantively identical to Sec.  1910.146(c)(5)(i), sets forth the six 
conditions that an employer must meet before employees can enter a 
permit space under the alternative procedures specified in paragraph 
(e)(2). OSHA modified final Sec.  1926.1203(e)(1) slightly from the 
general industry rule to state explicitly that employers must meet all 
of the conditions listed in final Sec.  1926.1203(e)(1) before using 
the alternate procedures specified by final Sec.  1926.1203(e). If 
employers meet all of these conditions, the employer need not comply 
with final Sec. Sec.  1926.1204-1206 (addressing permits and permit 
programs) or final Sec. Sec.  1926.1208-1211 (setting forth specific 
duties for permit-required confined spaces). Employers in permit spaces 
qualified to use the alternate procedures, however, still must comply 
with final Sec.  1926.1207 (training requirements), final Sec. Sec.  
1926.1212-1213 (Employee participation and provision of documents to 
the Secretary), and the other provisions of final Sec.  1926.1203, 
including the information exchange requirements in final Sec.  
1926.1203(h).
    One commenter asserted that any space that requires ventilation to 
protect employees should have an attendant to monitor conditions in the 
space (ID-060, p. 3). The general industry standard does not require an 
attendant for entry under its parallel alternative entry procedures, 
and OSHA disagrees with this commenter, who offered no explanation for 
this assertion. Employers are only eligible to use the alternate 
procedures in final Sec.  1926.1203(e) when the employer can 
demonstrate that the only hazard posed by the permit space is an actual 
or potential hazardous atmosphere, can demonstrate that continuous 
forced-air ventilation alone provides adequate safety, and the employer 
continuously monitors the space during entry. These requirements make 
the eligible spaces safe for employee entry. The more extensive 
requirements of final Sec.  1926.1204 apply to those permit spaces with 
hazards that employers cannot isolate by engineering controls, or that 
the employer cannot control by ventilation. The Agency notes that the 
alternative entry procedures are only available for as long as the 
physical hazards remain isolated and the atmospheric hazards 
controlled. Employers must take care to ensure that physical hazards 
remain isolated and must exit the space and implement a full permit 
program if there is any indication that workers might be exposed.
    Another commenter requested that the final rule clarify that 
employers need not provide attendants and rescue services for final 
Sec.  1926.1203(e) spaces (ID-099, p. 3). Final Sec.  1926.1203(e)(1) 
clarifies that spaces qualifying for the alternate procedures under 
Sec.  1926.1203(e) do not need to comply with final Sec. Sec.  
1926.1204-1206 (addressing permits and permit programs) and Sec. Sec.  
1926.1208-1211 (setting forth specific duties for permit-required 
confined spaces).
    Paragraph (e)(1)(i). Final Sec.  1926.1203(e)(1)(i), which is 
similar to the general industry standard at Sec.  1910.146(c)(5)(i)(A), 
sets out the first condition that employers must meet before using the 
alternative procedures. It provides that an employer may use these 
alternate procedures only when the employer can demonstrate that it 
eliminated or isolated all physical hazards using engineering controls, 
and that the only hazard posed by the space is an actual or potential 
hazardous atmosphere. OSHA modified this provision from the general 
industry rule by adding language that an employer can use the 
alternative procedures when it can demonstrate that all physical 
hazards are ``eliminated or isolated'' by engineering controls within a 
confined space, rather than just ``eliminated.'' OSHA adopted this 
change from proposed Sec.  1926.1216(a), which provided that employers 
could use the equivalent provisions when they could demonstrate the 
isolation of physical hazards.
    One commenter supported the proposed rule's provisions for entry 
into ``controlled-atmosphere confined spaces'' in proposed Sec.  
1926.1216, which the commenter described as requiring the elimination 
of all physical hazards (ID-220, p. 6). Proposed Sec.  1926.1216 did 
not, however, specify that physical hazards must be eliminated before 
an employer could use the alternative ventilation-only procedures in 
that section; it required the employer to ``determine and implement an 
isolation method'' for each of the physical hazards identified (see 
proposed Sec.  1926.1216(a)(1); see also proposed Sec.  
1926.1216(a)(3), which required the documentation of the method for 
``isolating'' each physical hazard). The

[[Page 25400]]

final rule, which defines ``isolate or isolation'' in final Sec.  
1926.1202 to allow employers to isolate physical hazards within a 
confined space like the proposed rule, and provides for isolation using 
the same methods specified in the proposed definition, which include 
the elimination or removal of hazards. (See the discussion of this 
definition earlier in this preamble.)
    Another commenter expressed concern that, in construction work, 
employers would almost never be able to use these alternate procedures 
because the complete elimination of all physical hazards, such as an 
iron angle at head level, from such a space would, in many cases, not 
be feasible or necessary (ID-061, p. 6). OSHA believes that isolating 
physical hazards using methods such as wrapping a low-hanging pipe with 
foam or locking out pieces of equipment (see the definition of 
``isolate or isolation'' in final Sec.  1926.1202) can be sufficient to 
prevent injury from those hazards. Thus, the Agency decided that 
isolating or eliminating physical hazards is the most appropriate 
approach in the construction context where potentially isolated 
physical hazards are likely to be more prevalent because of the nature 
of construction, and adopted the proposed requirement accordingly.\14\
---------------------------------------------------------------------------

    \14\ The general industry standard does not allow employers to 
use the alternative entry procedures in Sec.  1910.146(c)(5)(ii) if 
any physical hazard remains in the space, even if that hazard is 
temporarily ``removed'' or ``isolated'' in accordance with the 
standard. See October 12, 1995, memorandum to Linda Anku. OSHA does 
not adopt that interpretation for this construction rule.
---------------------------------------------------------------------------

    Paragraph (e)(1)(ii). Final Sec.  1926.1203(e)(1)(ii), which 
corresponds to the general industry standard at Sec.  
1910.146(c)(5)(i)(B), sets out the second condition required for 
employees to use the alternative procedures: An employer must be able 
to demonstrate that continuous forced-air ventilation alone provides 
adequate safety from hazardous atmospheres and that entrants can safely 
exit the space in the event the ventilation system stops working. For 
the space to be safe under this final provision, the mechanical 
ventilation must control the hazardous atmosphere at levels that are 
below the levels at which they are harmful to entrants so that, if the 
ventilation shuts down for any reason (such as loss of power), the 
employees will have sufficient time to recognize the hazard and exit 
the space. Employers have a responsibility to specify a hazard level 
that is adequate for employees to escape the confined space before the 
hazard reaches unsafe levels. As with the general industry standard, 
employers must account for the introduction of additional hazards from 
the work conducted in the permit space, such as additional gases 
generated by painting or application of coating, and ensure that the 
ventilation is adequate to account for the introduced hazards (see 58 
FR 4462, 4488 (Jan. 14, 1993)). In addition, certain types of work are 
inherently unsuitable for entries under Sec.  1926.1203(e). In the 
preamble to Sec.  1910.146(c)(5) of the general industry standard, OSHA 
explained that ``work with hazardous quantities of flammable or toxic 
substances and hot work are not permitted'' because they would 
``introduce hazards beyond those accounted for by the determination 
that the permit space can be maintained safe for entry'' through 
mechanical ventilation alone (id). For the same reasons, OSHA does not 
permit this work for entries under Sec.  1926.1203(e).
    Final Sec.  1926.1203(e)(1)(ii) also requires that the employer be 
able to demonstrate that in the event the ventilation system stops 
working, entrants can exit the space safely. OSHA based this 
requirement on proposed Sec.  1926.1216(a)(2)(ii) which would have 
required employers to document their determination that monitoring 
procedures would give sufficient warning to allow entrants to exit. In 
the final rule, OSHA moved the monitoring requirement to 
1926.1203(e)(2)(vi). However, the Agency retained the determination 
requirement in (e)(1)(ii) to make clear that safe exit time must be 
factored into the selection of monitoring procedures, intervals, and 
detection levels, including the levels at which monitoring alarms are 
triggered. Safe exit time is a precondition for reliance on alternative 
procedures.
    One commenter asserted that determining what is a sufficient time 
to exit, as required by the proposed rule, would require an industrial 
hygienist (ID-114, p. 2). OSHA does not believe an industrial hygienist 
is the only person capable of making this determination because the 
final rule bases the time required for a safe exit on the physical 
attributes of the space. Any person trained in confined-space 
operations under final Sec.  1926.1207 should be able to use these 
attributes to determine the time needed by entrants to safely exit the 
confined space as required by Sec.  1926.1203(e)(1)(ii). For example, 
if the employer is unsure how quickly the atmosphere would return to a 
hazardous atmosphere following a ventilation failure, the employer can 
run a test by shutting off the ventilation when no one is in the space 
to determine the amount of time before the continuous monitor alarm 
sounds. The rest of the calculation would depend on the amount of time 
necessary for employees to exit the space from their work locations 
inside the permit space, which could also be tested, factoring in an 
appropriate safety buffer of time.
    Several commenters asserted that OSHA should allow an employer to 
use natural ventilation alone, or suction, to control a hazard under 
the alternate procedures specified by final Sec.  1926.1203(e). OSHA 
addressed these comments in the earlier discussion of the definition of 
``ventilate or ventilation'' in this preamble.
    There was a considerable amount of discussion in the record about 
whether the alternative procedures should be available for isolated 
spaces in sewers and other continuous spaces (see, e.g., ID-75.1, p. 4; 
-210, Tr. pp. 176-177, 185-93, 206-208; -211, Tr. pp. 144-159). For an 
employer to apply final Sec.  1926.1203(e) to a sewer, the employer 
would have to demonstrate total isolation of the section of the sewer 
from other potential sources of hazards (e.g., the sewer distribution 
system) to guard against the introduction of new hazards into the 
space; the employer then must demonstrate that the ventilation system 
is maintaining the space sufficiently below the trigger limits for the 
atmospheric hazard (e.g., below 10 percent LFL or an applicable PEL) so 
that employees would have time to escape if the ventilation failed. 
Total isolation of sewer manholes or selected sections of piping may 
not be practical or feasible to prevent hazards (e.g., flammable gases) 
from entering the space because employers normally perform entries with 
the system in service. See Aug. 15, 1996, letter to Larry Brown. Final 
Sec.  1926.1203(e)(1)(ii) includes a clear requirement that an employer 
that relies on continuous forced-air ventilation to maintain spaces 
safe for entry must be able to establish that other measures are not 
necessary to protect entrants. For additional information about 
isolating spaces within sewers and other continuous confined spaces, 
see the discussion of Sec.  1926.1204(c)(3).
    Paragraph (e)(1)(iii). Final Sec.  1926.1203(e)(1)(iii), which is 
identical to the general industry standard at Sec.  
1910.146(c)(5)(i)(C), is the third condition required before an 
employer may use the alternative procedures. It also is substantively 
similar to proposed Sec.  1926.1216(a)(2) and (a)(3), which provided 
that employers must test the atmosphere and document the results; this 
final provision, however, is less detailed than the proposed 
provisions. This final provision requires the

[[Page 25401]]

employer to develop monitoring and inspection data that supports the 
demonstrations required by paragraphs (e)(1)(i) and (e)(1)(ii), i.e., 
the elimination or isolation of physical hazards such that the only 
hazard in the space is an actual or potential hazardous atmosphere, and 
that continuous forced-air ventilation is sufficient to maintain the 
space safe for entry. The atmospheric-monitoring data must show that 
ventilation will keep the atmosphere inside the permit space safe for 
entry. In this context, the final rule uses ``monitoring'' to match the 
general industry language, but the term encompasses both the initial 
testing of atmosphere and the subsequent measurements. The data 
required by paragraph (e)(1)(iii) are essential for the employer and 
employees, as well as OSHA, to determine whether the employer can 
maintain the space safe for entry with the use of ventilation alone.
    Paragraph (e)(1)(iv). Final Sec.  1926.1203(e)(1)(iv), which is 
identical to the general industry standard at Sec.  
1910.146(c)(5)(i)(D), is the fourth criterion employers must meet to 
use the alternative procedures. This provision also is similar to 
proposed Sec.  1926.1204(b)(2). This final provisions specifies that, 
if an initial entry into the permit space is necessary to obtain the 
data required by paragraph (e)(1)(iv), the employer must perform the 
entry in compliance with final Sec. Sec.  1926.1204-1211 (i.e., the 
full permit-space program).\15\ This entry requirement, which was in 
the proposed rule, is necessary to protect employees from hazards that 
the employer did not fully identify or assess. The rule requires 
employers to obtain monitoring and inspection data without entry when 
feasible, but acknowledges that in many instances it will be necessary 
to perform an initial entry into the space to make the necessary 
determinations. This requirement will ensure that the initial entry is 
safe.
---------------------------------------------------------------------------

    \15\ OSHA recognizes that compliance with final Sec.  
1926.1204(e)(1) requires employers to test conditions in the permit 
space to determine if acceptable entry conditions exist before entry 
is authorized to begin. An employer will be in compliance if the 
employer can demonstrate that initial entry is necessary to gather 
the data to comply with Sec.  1926.1203(e)(1)(iii), and enters under 
a permit program that complies with all other provisions except the 
pre-entry testing in Sec.  1926.1204(e)(1). Note that the 
alternative entry procedures are not available if the work space is 
part of a continuous system and has not been effectively isolated.
---------------------------------------------------------------------------

    Paragraph (e)(1)(v). Final Sec.  1926.1203(e)(1)(v), which is 
identical to the general industry standard at Sec.  
1910.146(c)(5)(i)(E), sets out the fifth criterion for using the 
alternate procedures. It also is similar to proposed Sec.  
1926.1216(a)(3), though less detailed. This final provision mandates 
that employers document the determinations and supporting data required 
by paragraphs (e)(1)(i) through (e)(1)(iii) of this final rule, and 
make this documentation available to employees who enter the spaces 
under the terms of final Sec.  1926.1203(e), or to their authorized 
representatives. This documentation will enable the employer, 
employees, their authorized representatives, and OSHA to evaluate the 
validity of the determinations made under final Sec.  1926.1203(e) for 
a particular permit space.
    Paragraph (e)(1)(vi). Final Sec.  1926.1203(e)(1)(vi), which is 
identical to the general industry standard at Sec.  
1910.146(c)(5)(i)(F), is the final condition that employers must meet 
to use the alternate procedures. The section does not correspond to any 
section of the proposed rule due to the different organization of the 
proposal. It requires that employers perform entry under the alternate 
procedures specified by final Sec.  1926.1203(e) in accordance with the 
specific procedures required by final Sec.  1926.1203(e)(2).
    Paragraph (e)(2). Final Sec.  1926.1203(e)(2), which is similar to 
Sec.  1910.146(c)(5)(ii), sets forth the procedures that employers must 
follow for permit-space entries made under final Sec.  1926.1203(e)(1). 
The introductory paragraph in Sec.  1926.1203(e)(2) is identical to the 
introductory paragraph in the general industry standard. This 
introductory paragraph does not correspond to any section of the 
proposed rule due to the different organization of the proposal.
    Paragraph (e)(2)(i). Final Sec.  1926.1203(e)(2)(i), which is 
identical to the general industry standard at Sec.  
1910.146(c)(5)(ii)(A), requires that employers must, before removing an 
entrance cover, eliminate any conditions that make it unsafe to do so. 
It also is similar to proposed Sec.  1926.1216(c)(1). Some conditions 
in a permit space may make it hazardous to remove a cover from the 
space. For example, if the atmospheric hazards within the space cause 
high pressure in the space, the cover may blow off in the process of 
removing it. To protect employees from such hazards, employers must 
make a determination as to whether it is safe to remove the cover. Such 
a determination requires the employer to examine the conditions 
expected to be in the permit space. Under high-pressure conditions, 
employers must check the cover to determine if it is hot; if so, the 
employer must loosen a cover fastened in place gradually to release any 
residual pressure. The employer also must determine whether conditions 
at the site could cause a hazardous atmosphere to accumulate in the 
space, which would make it unsafe for employees to remove the cover. 
The employer must not remove the cover until it is safe to do so.
    Paragraph (e)(2)(ii). Final Sec.  1926.1203(e)(2)(ii), which is 
nearly identical to the general industry standard at Sec.  
1910.146(c)(5)(ii)(B), requires employers to guard openings to permit 
spaces after removing entrance covers to protect employees from falling 
into the space and to protect employees in the permit space from 
injuries caused by objects entering the space. It also is similar to 
proposed Sec.  1926.1216(c)(2), though less specific than the proposed 
provision. The guard could be in the form of a railing, a temporary 
cover, or any other temporary barrier that provides the required 
protection. If the opening to the space would not allow employees and 
objects to fall into the space, then no additional guarding is 
necessary. Final Sec.  1926.1203(e)(2)(ii) differs from Sec.  
1910.146(c)(5)(ii)(B) in that it requires the opening to be 
``immediately'' guarded by a railing, temporary cover, or other 
temporary barrier. The general industry rule requires employers to 
provide the guarding promptly. The Agency made this change to clarify 
that the guarding must happen as soon as possible.
    Paragraph (e)(2)(iii). Final Sec.  1926.1203(e)(2)(iii), which is 
substantively identical to the general industry standard at Sec.  
1910.146(c)(5)(ii)(C), requires the employer to test the internal 
atmosphere of the permit space with a calibrated, direct-reading 
instrument before any employee enters the space. This provision also is 
similar to proposed Sec. Sec.  1926.1216(d)(2) and 1926.1205(a)(1), 
though not as detailed as the testing required by proposed Sec.  
1926.1205(a). If the employer can demonstrate that testing prior to 
entry is infeasible, then the employer must at a minimum comply with 
permit program requirements during the testing process in accordance 
with Sec.  1926.1203(e)(1)(iv).
    The employer must test the atmosphere, in sequence, for oxygen 
content, flammable gases and vapors, and potential toxic gases and 
vapors. Employers must first perform a test for oxygen because most 
combustible gas meters are oxygen dependent and will not provide 
reliable readings in an oxygen-deficient atmosphere. Employers must 
test for combustible

[[Page 25402]]

gases next because, in most cases, the threat of fire or explosion is 
both more immediate and more life threatening than exposure to toxic 
gases. The testing must be appropriate for the space; for example, if 
there is a stratified atmosphere where gases of different densities 
layer within a confined space, the employer must perform testing at 
different depths.
    This testing is necessary to determine whether ventilation alone 
will maintain the space safe for entry. The results of this testing 
must be within the expected range for the space, based on the 
employer's determination under paragraph (e)(1)(ii), or the employer 
may not enter under the alternative procedure.
    Paragraph (e)(2)(iv). Final Sec.  1926.1203(e)(2)(iv), which is 
identical to the general industry standard at Sec.  
1910.146(c)(5)(ii)(D), prohibits employees from occupying the space 
when a hazardous atmosphere is present in the space. This provision has 
the same purpose as proposed Sec.  1926.1216(e)(2)--namely, to ensure 
that there is no hazardous atmosphere in an alternate procedures space 
during entry. However, due to the different organization of the 
proposed and final rules, the language and organization of these two 
provisions are different. To ensure that there is no hazardous 
atmosphere in a permit space when an employer enters using the 
alternate procedures, final Sec.  1926.1203(e)(2)(iv) requires 
employers conducting any entry into a permit space containing a 
hazardous atmosphere to comply with the full permit-space program 
requirements in final Sec. Sec.  1926.1204-1211. See also the 
discussion of final Sec.  1926.1203(e)(2)(vii)(A) below.
    Paragraph (e)(2)(v). Final Sec.  1926.1203(e)(2)(v), which is 
identical to the general industry standard at Sec.  
1910.146(c)(5)(ii)(E), sets out requirements for using continuous 
forced-air ventilation to maintain the permit space safe for entry. 
Final Sec.  1926.1203(e)(2)(v)(A) also is identical to Sec.  
1910.146(c)(5)(ii)(E)(1) and similar to proposed Sec.  1926.1216(d)(3). 
It requires that no employee may enter the space until the forced-air 
ventilation eliminates any hazardous atmosphere in the space. Final 
Sec.  1926.1203(e)(2)(v)(B) is identical to Sec.  
1910.146(c)(5)(ii)(E)(2), and shares the purpose of proposed Sec.  
1926.1216(e)(2) to ensure that the ventilation will continue to control 
the atmospheric hazards while the employer is conducting entry 
operations. It requires the employer to direct the ventilation so as to 
ventilate the immediate areas where an employee is, or will be, present 
in the space, and requires the ventilation to continue until all 
employees leave the space. Final Sec.  1926.1203(e)(2)(v)(C) is 
identical to Sec.  1910.146(c)(5)(ii)(E)(3), and has no corresponding 
section in the proposed rule. It requires that the air supply for the 
ventilation must be from a clean source, and must not increase the 
hazards in the space. These provisions ensure that the atmosphere in 
the permit space will remain safe during the entire entry operation.
    Paragraph (e)(2)(vi). Final Sec.  1926.1203(e)(2)(vi), which is 
similar to the general industry standard at Sec.  
1910.146(c)(5)(ii)(F), requires entry employers to continuously monitor 
the atmosphere in the permit space. Employers may use periodic 
monitoring, rather than continuous monitoring, only if the employer can 
demonstrate that the equipment for continuous monitoring is not 
commercially available or that periodic monitoring is sufficient to 
ensure that the conditions in the PRCS remain within planned limits. 
This final provision also clarifies that employers must use some form 
of monitoring during confined space operations, and that they must use 
periodic monitoring if continuous monitoring is not used to ensure that 
there is always monitoring of the space occurring.
    OSHA retained in this final rule the requirement in the proposal 
that employers use continuous monitoring (see proposed Sec.  
1926.1216(e)(2)). This requirement for continuous monitoring differs 
from the general industry rule, which requires ``periodic testing.'' In 
the typical PRCS found at construction sites, it is often difficult for 
the employer to predict with reasonable certainty the levels of 
hazardous atmospheres in a PRCS. In many instances, the employer will 
have little or no past experience with the particular PRCS, and will 
lack reliable historical data on hazardous atmosphere levels. Also, 
conditions in a PRCS may vary as construction work progresses, causing 
unexpected increases in hazardous atmosphere levels. For example, 
alterations to the wall of a PRCS may allow a hazardous gas to enter 
the PRCS, thereby increasing the level of the hazardous gas in the PRCS 
from the level measured before altering the wall. In addition, 
construction equipment in the space may not operate as expected, 
resulting in a discharge of hazardous gasses into the space at a higher 
rate than anticipated. In short, construction work tends to follow a 
somewhat unpredictable course and, thus, requires frequent atmospheric 
monitoring. Because of this high level of unpredictability, OSHA 
believes that continuous monitoring is necessary to ensure that 
affected employees, especially entrants, receive adequate protection. 
Continuous monitoring enables employers to quickly recognize 
deteriorating conditions, including the introduction of new atmospheric 
hazards into the confined space, and then to take timely actions to 
protect employees. For additional discussion of the need for continuous 
monitoring and its implementation, see the discussion of final Sec.  
1926.1204(e)(2) (discussion of continuous monitoring of permit spaces 
entered under a full permit program, rather than the alternative 
procedures).
    Final Sec.  1926.1203(e)(2)(vi) also requires the continuous-
monitoring equipment to have a functional alarm that will notify all 
entrants when an atmospheric hazard reaches a specified threshold 
designed to give entrants an opportunity to escape before a ``hazardous 
atmosphere'' develops, or check the monitor with sufficient frequency 
to alert other entrants when an atmospheric hazard reaches that 
specified threshold. The purpose of continuous monitoring is to protect 
entrants by ensuring that the atmospheric hazards remain at or below 
levels specified by final Sec.  1926.1203(e)(1)(ii), and having an 
alarm will immediately warn entrants when the atmospheric hazards reach 
those levels. The monitoring equipment serves no purpose if the 
employer does not convey the monitoring results to entrants in a timely 
manner. Requiring employers to check the monitor ``with sufficient 
frequency'' is a performance measure that means that the employer must 
demonstrate that the permit space is monitored such that a change in 
atmosphere or other potential hazard will be identified in time to 
allow entrants to exit the permit space safely. Checking the monitor 
regularly also will alert entrants if the monitor malfunctions.
    Several commenters supported the requirement for continuous 
monitoring (ID-106, p. 2; -220, p. 7; -211, Tr. pp. 44-45). However, 
some of these commenters also urged the Agency to require continuous 
monitoring without exception (ID-106, p. 3; -220, p. 7). The Agency 
recognizes that in some PRCSs, especially when an employer conducts 
numerous entry operations in the same PRCS and finds through repeated 
monitoring that the atmosphere in the PRCS is stable, the employer may 
be able to show that periodic monitoring is sufficient to ensure that 
the conditions in the PRCS remain within planned limits. Nevertheless, 
when the employer uses periodic monitoring, it must be of sufficient 
frequency to ensure the

[[Page 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 Sec.  1926.1203(e)(2)(vi), in 
combination with the continuous forced-air ventilation required by 
final Sec.  1926.1203(e)(2)(v), ensure that entrants remain protected 
the entire time they are present within the permit space.
    Finally, final Sec.  1926.1203(e)(2)(vi) specifies that the 
employer must provide any entrant, or his or her authorized 
representative, with the opportunity to observe the monitoring required 
by this paragraph. This paragraph does not require employees and their 
authorized representatives to observe the monitoring; however, it 
provides employees and their authorized representatives with the option 
of observing should they choose to do so. OSHA believes that allowing 
employees and their authorized representatives to participate in this 
manner will contribute to the successful implementation of safe entry 
operations by enhancing their awareness of the status of the hazards in 
the confined space.
    Paragraph (e)(2)(vii). Final Sec.  1926.1203(e)(2)(vii), which is 
similar to the general industry standard at Sec.  
1910.146(c)(5)(ii)(G), specifies what an employer must do if it detects 
a hazard in a space regulated by the Sec.  1926.1203(e) alternate 
procedures during entry. Final Sec.  1926.1203(e)(2)(vii) differs from 
the general industry rule in that it expressly applies to any hazard, 
not just a hazardous atmosphere. This final provision is similar to 
proposed Sec.  1926.1216(f), which also referred to physical, as well 
as atmospheric, hazards. The Agency made this change to ensure that 
this paragraph was consistent with final Sec.  1926.1203(e)(1)(i), 
which allows employers to use the alternate procedures of final Sec.  
1926.1203(e) after eliminating or isolating all physical hazards in the 
space. Thus, the employer must implement the requirements of this final 
paragraph when there is a new physical hazard, a previously recognized 
physical hazard no longer remains isolated, or there is a hazardous 
atmosphere present.
    Paragraphs (e)(2)(vii)(A)-(C). Final Sec. Sec.  
1926.1203(e)(2)(vii)(A)-(C), which are similar to general industry 
Sec. Sec.  1910.146(c)(5)(ii)(G)(1)-(3), set the requirements for what 
an employer must do after detecting a hazard in a space regulated by 
Sec.  1926.1203(e) during entry. Final Sec.  1926.1203(e)(2)(vii)(A) is 
identical to the general industry standard at Sec.  
1910.146(c)(5)(ii)(G)(1), and requires employees to exit the permit 
space immediately after detecting a hazard. Final Sec.  
1926.1203(e)(2)(vii)(B) is similar to the general industry standard at 
Sec.  1910.146(c)(5)(ii)(G)(2), except that it applies to all hazards, 
not just atmospheric hazards as the general industry requirement does. 
The final rule requires the employer to evaluate the permit space to 
determine how the hazard developed. Final Sec.  1926.1203(e)(2)(vii)(C) 
is similar to the general industry standard at Sec.  
1910.146(c)(5)(ii)(G)(3), though it too refers to all hazards (physical 
and atmospheric). It requires the employer to implement measures to 
protect employees from the hazard before reentering the space under the 
alternate procedures specified by final Sec.  1926.1203(e). Detecting a 
hazardous atmosphere during entry indicates that the employer did not 
maintain the permit space safe for entry, so before authorizing any 
subsequent entries into the space under final Sec.  1926.1203(e), the 
employer must determine what went wrong and take whatever measures are 
necessary to prevent a recurrence.
    Paragraph (e)(2)(viii). Final Sec.  1926.1203(e)(2)(viii) requires 
an employer to provide a safe means of access and egress during 
confined space entries under final Sec.  1926.1203(e). For example, 
when employees are working in an underground vault, the employer must 
provide, and ensure the use of, a safe means of entry into and exit 
from the underground vault, and ensure that the method complies with 
applicable OSHA requirements (e.g., 29 CFR part 1926, subpart X--
Stairways and Ladders). Providing proper entry and exit equipment such 
as ladders is critical under emergency-egress conditions to ensure that 
employees exit a PRCS in a timely and safe manner. Proposed Sec.  
1926.1216(c)(3) required that employers provide a safe method of entry 
and exit, and that this method comply with applicable OSHA 
requirements. This final provision retains the proposed requirement for 
a safe means of entry and exit, but did not retain the language 
requiring compliance with other ``applicable OSHA requirements'' 
because it is unnecessary: Such requirements apply regardless of 
whether this statement is included in the final rule. If another OSHA 
standard covers the means of entry and exit, the employer must comply 
with that applicable standard.
    One commenter supported the proposed rule's requirement for safe 
entry and exit (ID-220, p. 8). Two others commenters agreed that 
assuring safe entry and exit is necessary, but asserted that it is 
often infeasible to use stairways that meet the requirements for 
stairways or ladders that comply with 29 CFR part 1926, subpart X's 4:1 
ratio because of the configuration of these spaces (ID-075, p. 10; ID-
124, p. 9). Subpart X contains many requirements for safe stairways and 
ladders, including the spacing between steps and rungs, the condition 
of the ladders, and the ratio of 4:1 for the vertical angle of portable 
non-self-supporting ladders relative to the structures supporting the 
ladders (see 29 CFR 1926.1050 et seq.). These comments seem to be 
requesting a blanket exemption from these OSHA requirements, but this 
request is overly broad. Even these commenters did not argue that all 
requirements of subpart X would be infeasible, or that the requirements 
in question are always infeasible. Employers may assert on a case-by-
case basis under this standard, as they could under any other OSHA 
standard, that a requirement is infeasible in a particular situation. 
In such a situation, the employer has the burden of proving 
infeasibility. The employer also must make every effort to abate the 
hazard caused by having the ladder at a steeper angle than permitted, 
possibly by securing the top and bottom of the ladder while it is in 
use so it will not slip, and by training employees on climbing at a 
steeper angle.
    Final Sec.  1926.1203(e)(2)(viii) also requires that an employer 
use hoisting systems designed and manufactured specifically for 
personnel hoisting. This provision includes an exception to this 
requirement that allows for the use of job-made hoisting systems if a 
registered professional engineer approves these systems for personnel 
hoisting prior to use in entry operations regulated by Sec.  
1926.1203(e). Unlike the proposed rule, the final rule requires 
engineer's approval to be in writing to ensure that the specifications 
and limitations of use are conveyed accurately to the employees 
implementing the job-made

[[Page 25404]]

hoist, and that the approval can be verified. However, the final rule 
prohibits the use of commercial hoisting systems not designed and 
manufactured specifically for personnel hoisting because OSHA believes 
that employers cannot use such hoisting systems safely for this 
purpose. The requirements of final Sec.  1926.1203(e)(2)(viii) for 
hoisting systems will eliminate further injuries and deaths of 
employees that could occur from the use of a hoisting system not 
designed specifically for personnel hoisting. This final rule provides 
employers with flexibility in choosing personnel hoisting systems by 
allowing a registered professional engineer to approve a job-made 
system. OSHA believes that either option ensures that the personnel 
hoisting system will meet the design specifications needed for 
employees to safely access a space. This final provision ensures that 
authorized entrants will always have a safe and effective means of 
entering and exiting the space, including escaping during an emergency.
    There is no corresponding general industry provision that has 
requirements similar to final Sec.  1926.1203(e)(2)(viii) for the 
alternative entries regulated under Sec.  1910.146(c)(5). Section 
1910.146(d)(4)(vii) requires safe access and egress, but that provision 
does not explicitly apply to the alternate procedures used under Sec.  
1910.146(c)(5). However, hazardous conditions may still arise in these 
spaces, particularly if the ventilation system stops functioning, thus 
making safe exit of entrants necessary. None of the comments OSHA 
received on proposed Sec.  1926.1216(c)(3) provided a reason to exclude 
these requirements from the final standard. The same reasons provided 
in this preamble for requiring safe access and egress during permit-
space operations governed by final Sec.  1926.1204 also apply to the 
spaces regulated under final Sec.  1926.1203(e) and, therefore, OSHA 
adopted the proposed requirement in this final rule.
    Paragraph (e)(2)(ix). Final Sec.  1926.1203(e)(2)(ix), which is 
identical to general industry Sec.  1910.146(c)(5)(ii)(H), requires the 
employer to verify that the permit space is safe for entry and that the 
employer took the measures required by final Sec.  1926.1203(e)(2). 
This provision also is similar to proposed Sec.  1926.1216(d)(4), 
though it is less detailed than that proposed provision. The 
verification must be in the form of a certification that contains the 
date, the location of the space, and the signature of the certifying 
individual; the employer must make the certification available to 
entrants. The certification, in combination with the documentation 
required under final Sec.  1926.1203(e)(1)(v), will document the 
employer's efforts to comply with final Sec.  1926.1203(e)(2), enable 
OSHA and the employer to evaluate compliance with the standard, and, if 
permit-space incidents occur, assist OSHA and the employer in 
ascertaining the causes of those incidents.
    One commenter supported the more detailed documentation 
requirements specified by the proposed rule, and the requirement in 
proposed Sec.  1926.1216(a)(3) and (d)(1) to verify prior to entry that 
physical hazards remain isolated (ID-220, pp. 6-7). The commenter noted 
that these requirements serve as an ``important check that measures 
that may have been taken in weeks, days, or . . . a previous work shift 
are still in place and effective'' (id.). This final rule preserves the 
important check function because it also requires documentation of the 
isolation or elimination of physical hazards, in final Sec.  
1926.1203(e)(1)(v), and provides that entry under final Sec.  
1926.1203(e)(2) can occur only under the conditions set forth in final 
Sec.  1926.1203(e)(1). This final rule, however, does so with the 
flexibility of the more performance-orientated language of the general 
industry standard.
    Final Sec.  1926.1203(e)(2)(ix) also requires that the employer 
date the certification and make it available to entrants. This 
requirement ensures that the certification provides information to the 
entrants about the latest conditions in the space the entrants will 
soon be entering. One commenter complained that requiring the name and 
signature of the individual who completed the isolation work, as the 
proposed rule did, could cause unspecified logistical problems (ID-114, 
p. 2). OSHA believes that requiring the signature only of the 
individual who provides the certification, as required by the general 
industry standard, will resolve any logistical problems.
    Another commenter noted that using the term ``verification 
document'' in the proposed rule for spaces equivalent to the spaces 
regulated by final Sec.  1926.1203(e), while using the term ``entry 
permits'' for other permit spaces in the proposed rule, was confusing 
(ID-099, p. 3). The documentation requirement in proposed Sec.  
1926.1216 was more detailed than the documentation requirement in this 
final rule and, thus, more similar to an entry permit. Final Sec.  
1926.1203(e)(2)(ix) uses the term ``certification,'' and this 
certification contains much less information than the entry permits 
required for other permit spaces and, therefore, is distinct (see final 
Sec.  1926.1206). The general industry standard also uses this 
terminology, and, given the differences in documentation for the two 
types of spaces in the final rule, the Agency believes that the 
terminology is clear.
    Paragraph (f). Final Sec.  1926.1203(f), which is nearly identical 
to the general industry standard at Sec.  1910.146(c)(6), addresses the 
reevaluation of confined spaces. This final provision requires each 
entry employer to reevaluate non-permit required confined spaces when 
there is a change in use or configuration that may increase the hazards 
to entrants, and to reclassify the space as a permit space if 
necessary. The Agency believes this requirement is necessary because 
conditions around and in confined spaces may change, especially when 
multiple employers are performing various construction activities 
around or in the space. Consequently, when indications of changes in 
the previous conditions arise that may increase the likelihood for a 
hazard to develop, the employer must reevaluate the confined space to 
ensure adequate employee protection. Final Sec.  1926.1203(f) differs 
from the general industry rule in that it refers to ``each entry 
employer'' rather than ``the employer'' to emphasize that reevaluation 
is the responsibility of each employer that conducts entry operations 
in a confined space.
    Several commenters were unsure what type of new information would 
trigger reevaluation under final Sec.  1926.1203(f) (ID-098, p. 1; ID-
124, p. 8). These commenters asked, for example, whether working with 
gasoline equipment near a confined space or driving a vehicle near a 
confined space would trigger reevaluation. Whether these conditions 
would trigger a reevaluation depends on whether it is foreseeable that 
the operation of the equipment or vehicle could increase the hazards in 
the space, such as by creating emissions that could enter the space or 
sparks that could ignite a fire in the space. Indications of a need for 
reevaluation may include, but are not limited to: (1) A change in the 
configuration or use of, or in the type of work conducted or materials 
used in, the confined space; (2) new information regarding a hazard in 
or near a confined space; and (3) when an employee or authorized 
employee representative provides a reasonable basis for believing that 
a hazard determination is inadequate (see also Sec.  1926.1204(e)(5)). 
OSHA does not expect employers to reevaluate spaces when trivial 
changes occur that do not affect the

[[Page 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 Sec.  1926.1207, which 
listed conditions that would require reassessment, this final provision 
uses the more performance-oriented language of the general industry 
rule. Therefore, this final provision does not list all the conditions 
that could trigger a reevaluation of the space because the 
circumstances that could increase the hazards in a space and prompt a 
reevaluation are too numerous to list.
    One commenter was unsure how the entry employer would be able to 
detect whether changing conditions would require reevaluation (ID-086, 
p. 5). According to this commenter, the language of proposed Sec.  
1926.1204(b) did not require the employer to obtain information 
necessary to classify a space. The commenter's reading of the proposed 
rule is incorrect, and would also be incorrect of the final rule. Final 
Sec.  1926.1203(a) requires each employer that has employees who may 
work in a confined space to ensure that a competent person identifies 
all confined spaces on the site, and to determine, through initial 
testing as necessary, which of these spaces are permit spaces, and to 
consider and evaluate other elements of the confined space. Therefore, 
under Sec.  1926.1203(f) of this final rule, the entry employer must 
also ensure that a competent person compile the information necessary 
to determine whether a reevaluation is necessary, and conduct the 
reevaluation when necessary.
    Paragraph (g). Final Sec.  1926.1203(g), which is similar to the 
general industry standard at Sec.  1910.146(c)(7), allows an employer 
to reclassify a permit space as a non-permit confined space only under 
the limited circumstances set forth in final Sec.  1926.1203(g)(1)-(4). 
Final Sec.  1926.1203(g) is substantively similar to proposed Sec.  
1926.1217(a). When there is no actual or potential hazardous atmosphere 
present in the space, and the employer eliminates all physical hazards 
in a space, this section allows an employer to reclassify the space as 
a non-permit confined space. The Agency believes that, in some 
instances, the procedures specified by final Sec.  1926.1203(g) will be 
more efficient and less costly to implement than permit-space 
requirements. The Agency made three non-substantive changes from Sec.  
1910.146(c)(7) in the introductory paragraph of final Sec.  
1926.1203(g). First, OSHA added the word ``only'' to the provision. 
Second, OSHA changed ``under the following procedures'' to ``when all 
of the applicable requirements in paragraphs (g)(1) through (g)(4) have 
been met.'' OSHA made these non-substantive changes to clarify that an 
employer may use only these procedures to reclassify a permit space 
under this rule, and that the employer must comply with each of the 
provisions under final Sec.  1926.1203(g) to reclassify a permit space. 
Third, to provide consistency with the requirement that an employer use 
a competent person to conduct the initial evaluation of the space, the 
final rule specifies that a competent person must also conduct the 
reevaluation and reclassification of the space.
    One commenter requested that OSHA clarify whether employers must 
provide attendants or retrieval systems for spaces when final Sec.  
1926.1203(g) applies (ID-099, p. 4). Another commenter asserted that 
OSHA should require attendants for spaces regulated by final Sec.  
1926.1203(g) (ID-060, p. 3). Final Sec.  1926.1203(g) does not require 
compliance with the attendant or rescue provisions of this final rule 
once the space has been reclassified as a non-permit space. Prior to 
the reclassification, however, the full permit program requirements 
apply. In general, such requirements are unnecessary for a space that 
has been reclassified as a non-permit space under Sec.  1926.1203(g) 
because, to qualify as a non-permit space, there can be no actual or 
potential hazards in the space. However, an employer may elect to 
comply with the PRCS requirements, including the attendant and rescue 
provisions, even if the employer reclassifies the space as a non-permit 
space under final Sec.  1926.1203(g).
    Paragraph (g)(1). Final Sec.  1926.1203(g)(1), which is identical 
to general industry Sec.  1910.146(c)(7)(i), ensures that an employer 
may only reclassify a PRCS as a non-permit space if no actual or 
potential atmospheric hazards are present and the employer eliminates 
all other hazards in the space. This final provision also is similar to 
proposed Sec.  1926.1217(a)(1) and (d)(1). OSHA expects that this 
provision will apply primarily to spaces where the employer eliminated 
or isolated the physical hazards. While this final provision would 
allow employers flexibility in the methods and procedures they use to 
identify and eliminate physical hazards, it would not relieve them from 
conducting a thorough assessment of the space and identifying hazards 
that include: Existing or potential liquids, solid materials, and 
electricity associated with processes; the use of equipment, ductwork, 
and conduits with exposed valves or that terminate in the confined 
space; exposed and energized electrical conduits; connected rooms and 
reservoirs that present engulfment hazards; and any other recognized 
hazards covered by OSHA construction standards or the general duty 
clause, 29 U.S.C. 654(a)(1). OSHA believes that eliminating or 
isolating all physical hazards in the space protects employees who 
perform construction work in the space. For additional information 
about isolating spaces within sewers and other continuous confined 
spaces, see the discussion of Sec.  1926.1204(c)(3).
    Paragraph (g)(2). Final Sec.  1926.1203(g)(2), which is similar to 
the general industry standard at Sec.  1910.146(c)(7)(ii), requires an 
entry employer considering reclassification to eliminate or isolate 
confined space hazards, when possible, without entering the space. This 
requirement parallels the requirement in final Sec.  
1926.1203(e)(1)(iv), and OSHA is including the requirement here for the 
same reasons, although it applies to different spaces. If it is not 
possible for an entry employer to eliminate or isolate confined space 
hazards without entering the space, then final Sec.  1926.1203(g)(2) 
requires the entry employer to comply with all PRCS procedures in final 
Sec. Sec.  1926.1204-1211 until elimination or isolation of the hazards 
is complete.
    Final Sec.  1926.1203(g)(2) differs slightly from the general 
industry requirement in that it contains a new first sentence 
clarifying that the entry employer must eliminate or isolate the 
hazards without entering the space unless it is infeasible to do so. 
This slight revision, which

[[Page 25406]]

OSHA based on proposed Sec.  1926.1217(a)(3), improves employee 
protection by reducing unnecessary entry into permit spaces for 
classification purposes. OSHA received no comments on the parallel 
provision in the proposed rule.
    In the final rule, OSHA also allows employers to isolate physical 
hazards, rather than eliminate them entirely. The effect must be the 
same--employees must be effectively protected from any potential 
exposure to any hazard--and it is therefore substantively similar to 
the general industry rule. OSHA included the isolation option, however, 
in response to comments indicating that full permit program 
requirements were not necessary when employers can use engineering 
controls to prevent employee exposure to physical hazards, even if the 
item causing the hazard is not totally removed from the space (see, 
e.g., ID-210, Tr. pp. 56, 308-309, 327-328).
    For the purpose of reclassifying a permit-required confined space 
that has potential energy sources in it, the methods the employer must 
use depend on the types of energies requiring elimination or isolation. 
OSHA's lockout/tagout requirements address electro-mechanical hazards, 
but lockout/tagout will not eliminate hazards associated with flowable 
materials such as steam, natural gas, and other substances that can 
cause hazardous atmospheres or engulfment hazards in a confined space. 
See OSHA Directive CPL 02-00-147: The Control of Hazardous Energy--
Enforcement Policy and Inspection Procedures, at pp. 3-10 (Feb. 11, 
2008). Employers can isolate these hazards by using the techniques 
described in the definition of the terms ``isolate'' or ``isolation'': 
blanking, blinding, misaligning or removing sections of lines or pipes, 
and a double-block and bleed system. See also August 25, 1995, letter 
to William K. Principe.
    ``Elimination'' means no on-going measures are necessary to keep 
the space free of a hazard; if continued operation of ventilation is 
required to address a hazard, for example, then the hazard is 
controlled, not eliminated. See, e.g., September 19, 1994, letter to 
Edward Donoghue. If the employer uses ventilation to eliminate an 
atmospheric hazard from a space (as opposed to controlling the hazard), 
the employer must perform verification monitoring with the ventilation 
system off to establish the elimination of any atmospheric hazards 
before reclassifying the space. See November 11, 1993, letter to Trey 
Mayfield. Employers usually may not reclassify some confined spaces, 
such as tank containers, as non-permit spaces because residues may 
persist, resulting in potential atmospheric hazards. For example, the 
tank shell could oxidize, former contents could leach after absorption 
into the tank coating or lining, and contents trapped between the 
lining and the tank shell could leak. See September 20, 1994, letter to 
J.B. Saunders.
    OSHA notes that the elimination of a hazard as required by final 
rule Sec.  1926.1203(g)(2) will not necessarily result in the re-
classification of the space as a non-permit space. The employer must 
still ensure that a competent person performs a full reevaluation of 
the permit space before reclassifying the space. For example, if an 
employer completes an initial evaluation of a space and determines that 
there is a single electrical hazard that can be locked out, but no 
atmospheric hazards, the employer must lock out the electrical hazard, 
entering the permit space under the full permit program requirements of 
Sec.  1926.1204 if entry is necessary. Because the person who locks out 
the energy hazard may or may not be focused on the evaluation of the 
entire permit space, that employer's competent person must still verify 
that that the hazard is properly isolated, and that no other hazards 
are present, before the employer may re-classify the space as a non-
permit space.
    Final Sec.  1926.1203(g)(2) also includes the note from the general 
industry standard stating that control of atmospheric hazards through 
forced-air ventilation does not constitute elimination of the hazards. 
Final Sec.  1926.1203(e), not Sec.  1926.1203(g), covers permit-space 
entry when the employer can demonstrate that the forced-air ventilation 
alone will control any atmospheric hazards within in the space. Final 
1926.1203(g) requires the complete elimination of such hazards.
    OSHA revised ``hazards'' to ``atmospheric hazards'' in the second 
sentence to reflect the change in final Sec.  1926.1203(e)(1)(i), which 
will permit employers to use the alternative procedures if they isolate 
or eliminate all physical hazards. Employers may reclassify the space 
as a non-permit space under final Sec.  1926.1203(g) even if a physical 
hazard remains, so long as the hazard is completely isolated such that 
employees cannot be exposed to it. OSHA does not view this as a 
substantive change from the general industry standard, which allowed 
employers to treat isolation of physical hazards as elimination of 
those hazards for purposes of reclassifying a permit space. See October 
12, 1995, memorandum to Linda Anku.
    OSHA refers to ``atmospheric hazards'' in the note to Sec.  
1926.1203(g), rather than using the term ``hazardous atmosphere'' as in 
Sec.  1926.1203(e), to emphasize the distinction between control and 
elimination of airborne hazards. A ``hazardous atmosphere'' requires 
certain levels of contaminants in the air (e.g., a flammable gas over 
10 percent of its LFL or a concentration of a substance exceeding its 
PEL). The alternative procedures in final Sec.  1926.1203(e) may be 
used when the employer eliminates any ``hazardous atmosphere'' even if 
the employer anticipates some presence in the air of a hazardous 
substance that must be controlled through practices to keep the 
substance at safe levels. Therefore a Sec.  1926.1203(e) space remains 
a permit-required space that can be entered without a permit so long as 
the controls remain effective. Final Sec.  1926.1203(g), in contrast, 
requires the total elimination of ``atmospheric hazards'' prior to 
entry, which means that the breathing atmosphere contains no 
potentially hazardous substance that would make it a potentially 
hazardous atmosphere; therefore, the employer has no need to maintain 
practices to control it (hence, it is not a permit-required space). For 
example, an employer can eliminate a ``hazardous atmosphere'' of 
methane by reducing the concentration of methane in the space from 12 
percent of its LFL to 9 percent. However, the methane is still an 
``atmospheric hazard'' at the lower 9 percent concentration because, 
without the alternative procedures that include ventilation, the level 
of methane could rise and injure or kill the workers inside the space. 
To eliminate the ``atmospheric hazard'' caused by methane, the employer 
must eliminate all of the methane from the space, and maintain this 
condition without forced-air ventilation or other practices.
    Paragraph (g)(3). Final Sec.  1926.1203(g)(3), which is nearly 
identical to the general industry rule at Sec.  1910.146(c)(7)(iii), 
requires an entry employer seeking to reclassify a permit space to 
document the basis for determining that it eliminated all permit-space 
hazards through a certification that contains the date, the location of 
the space, and the signature of the certifying individual. In addition, 
the employer must make the certification available to each employee 
entering the space or his or her authorized representative. The 
employer must substantiate all determinations so that employers, 
employees, and the Agency have the means necessary to evaluate those 
determinations and

[[Page 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 Sec.  1926.1203(g), and to ensure that the space remains safe 
during entry operations. The requirement to make the certification 
available to employees or their authorized representatives ensures that 
entrants have the information necessary to detect developing hazards 
while they are working in the space.
    Proposed Sec.  1926.1219(d) provided that the employer must 
maintain an equivalent verification document until the work in the 
confined space is complete. One commenter asserted that OSHA should 
require employers to maintain records of these determinations for years 
to aid OSHA and the National Institute for Occupational Safety and 
Health (NIOSH), and to protect a company from potential litigation in 
the future; the commenter, however, did not specify exactly how OSHA 
and NIOSH would use these records (ID-060, p. 2). Another commenter 
stated that employers only need to maintain the certification until the 
completion of the project (i.e., as long as there are entrants, the 
certification must be available to those entrants) (ID-108, p. 3). 
Nevertheless, the Agency recognizes that confined spaces not classified 
as PRCSs do not involve hazards as defined in this standard. Therefore, 
unlike permit-space entry permits, the Agency believes that it is not 
necessary for entry employers to maintain the certification required 
under final Sec.  1926.1203(g)(3) for review and evaluation after 
completion of the work. The Agency agrees with the latter commenter 
that the purpose of certification is to allow employees and employers 
to detect any changes from the original entry conditions during 
confined space operations, and believes that the minimal useful 
information gained from these records likely would not justify the 
burden of maintaining them. Furthermore, no provision in this final 
rule prohibits an entry employer from maintaining this information for 
a period longer than the period required by the final rule.
    Paragraph (g)(4). Final Sec.  1926.1203(g)(4), which is similar to 
Sec.  1910.146(c)(7)(iv), requires that whenever a hazard arises in a 
space reclassified under final Sec.  1926.1203(g), employees must 
evacuate the space, and the entry employer must reevaluate the space. 
This final provision also is similar to proposed Sec.  1926.1217(e)(2). 
The Agency believes that this final provision is necessary to protect 
entrants when conditions around and in confined spaces change, 
especially when performing construction activities around or in the 
space. Having a hazard arise in a reclassified space indicates that the 
previous evaluation was insufficient or that there has been a 
significant departure from the previous conditions; therefore, a 
thorough reevaluation of the entire space is critical.
    This provision indicates clearly that entry employers retain 
responsibility for the safety of employees who enter spaces after they 
reclassify the spaces as non-permit confined spaces. The employer must 
determine if it is still appropriate, under the circumstances 
identified through the reevaluation, to classify the space where the 
hazard arose as a non-permit confined space. A reevaluation aimed at 
reestablishing compliance with final Sec.  1926.1203(g) will involve 
the demonstrations, testing, inspection, and documentation required in 
paragraphs (g)(1) through (g)(3) of this final rule. OSHA anticipates 
that some employers will seek to reestablish compliance with final 
Sec.  1926.1203(g), while others will choose to conduct the remainder 
of its entries in that space in accordance with the full permit-space 
program requirements specified by final Sec. Sec.  1926.1204-1211. The 
Agency's concern is that the approach chosen must adequately protect 
employees who enter the spaces.
    In some cases employers might need to require their employees to 
exit the space temporarily during a limited event where the hazard is 
already known and temporary, such as when an employer temporarily 
removes workers from an underground confined space while other work is 
conducted above the underground confined space. In this situation, the 
employer can allow employees to re-enter without re-classifying the 
space as a permit space after completing a reevaluation of the 
structural integrity of the space to make sure that the work above the 
underground confined space did not affect that space. In other cases, 
however, a new unanticipated hazard in the space means that the status 
of the space reverts to a permit-required confined space until the 
employer can identify and address the hazard and reclassify the space 
as a non-permit space under Sec.  1926.1203(g). As a result, all of the 
provisions of this standard applying to a permit space apply, and entry 
must be conducted in accordance with the permit program requirements of 
Sec.  1926.1204 and permitting requirements of Sec.  1926.1205. The 
fact that the spaces addressed in Sec.  1926.1203(g) were previously 
permit spaces before reclassification as non-permit spaces means that 
it is imperative for the entry employer to proceed with caution 
whenever a new hazard emerges.
Section 1926.1203(h) and (i)--Information Sharing and Coordination 
Duties at Multi-Employer Worksites
    The discussion of paragraphs (h) and (i) has three parts:
    (1) An overview of host employers and controlling contractor 
responsibilities;
    (2) OSHA's authority to require host employers and controlling 
contractors to share information to protect the employees of others; 
and
    (3) A paragraph-by-paragraph explanation of Sec.  1203(h) and (i).
(1) Overview of Host Employers and Controlling Contractor 
Responsibilities
    Timely information exchanges and coordination of work activities 
can be critical in safeguarding employees performing confined-space 
work, particularly on multi-employer worksites where one employer's 
actions can affect the health and safety of another employer's 
employees. As OSHA noted in its explanation of the proposed rule, there 
are a number of contractors and subcontractors performing jobs on most 
construction worksites, and there may be employees of different 
employers performing work within the same confined space. In many 
instances, employees of one subcontractor will enter a confined space 
after another subcontractor's employees complete their work within the 
space.
    OSHA recognizes that both the controlling contractor and the host 
employer may have crucial information about confined spaces at a 
construction worksite. Therefore, in the proposed standard, OSHA 
adopted the information-sharing duties specified for the host employer 
in the general industry standard (Sec.  1910.146(c)(8)) and proposed 
applying them to both the host employer and the controlling contractor. 
As one labor organization noted, based on the experience of its members 
in both general industry and construction settings, worker safety is 
affected by timely information sharing in both general industry work 
and construction:

    [T]he problem posed by contracting out work in both situations 
is nonetheless the same--how to ensure that subcontractors that are 
in a work location for a limited period of time have the best 
possible information to

[[Page 25408]]

identify the location of confined spaces, assess their hazards, and 
ensure that their employees can perform their assigned duties 
safely.

(220.2, pg. 10.)
    The same commenter also explained that information sharing may be 
even more critical in the construction setting because different 
workers may perform many different activities in the same space at 
different times, which can result in hidden dangers:

    Many chemical substances used in the construction industry, once 
in place, are neither detectable nor hazardous until exposed to a 
particular work process. For example, surface coatings such as 
paints and epoxies are seemingly stable--and are generally 
undetectable through air monitoring--once applied and dried. 
However, these same substances may create significant safety and 
health hazards to employees who perform welding and other processes 
involving heat while working in a confined space. A contractor that 
performs the routine assessment of physical and atmospheric hazards 
required by the standard would not necessarily identify these 
potential hazards.

(ID-213.1, pg. 1.) Similarly, polyurethane is often used for spray foam 
insulation. When welding or heating in a confined space is performed 
near spray foam insulation that contains polyurethanes, the heat could 
cause the polyurethanes to break down and produce hazardous fumes. A 
contractor may not recognize this hazard during a routine assessment of 
the space, and would rely on information from a host employer or 
controlling contract about the potential hazard.
    Hidden dangers may also arise while working with equipment in 
confined spaces. For example, operating internal combustion engines, 
such as air compressors, pressure washers, and generators in a confined 
space could lead to carbon monoxide exposure. Because carbon monoxide 
is a colorless, odorless gas, it is difficult to detect without a 
monitor or testing equipment. A host employer, controlling contractor, 
or subsequent entry employer may not realize that carbon monoxide 
levels in a confined space have changed without communicating with the 
employer who operated the engine in the space. Similarly, when working 
with live circuits, an entry employer may reenergize a once de-
energized circuit to perform work in a confined space. Communication 
about reenergized circuits will give the host employer, controlling 
contractor, and any subsequent entry employer's indication that 
conditions within the confined space may have changed.
    In this final rule, as in the proposed rule, OSHA requires 
communication and coordination among controlling contractors and 
subcontractors, and between host employers and controlling contractors. 
The coordination and information-exchange duties in the final rule are 
largely the same as the duties required by the proposed rule, although 
the final rule makes communication with entry contractors the 
responsibility of the controlling contractor rather than the host 
employer, and does not contain the proposed rule's additional 
requirements for identifying the separate classifications of spaces. 
(See proposed Sec.  1926.1204.)
    Based on the record as a whole, OSHA finds that the information-
sharing and coordination responsibilities of host employers and 
controlling contractors required by this final standard are critical 
means of identifying hidden or latent dangers in permit spaces and for 
preventing the actions of one employer from exposing another's 
employees to hazards in a permit space. These provisions will enhance 
the safety of workers in confined spaces by ensuring that all employers 
have the previously identified information at their disposal before 
entry to avoid hidden hazards and to make adequate preparations to 
protect employees entering permit spaces.
    The rule places controlling contractors at the center of this 
process. Before any employer enters a permit space, the final rule 
requires controlling contractors to obtain relevant information about 
confined spaces on the worksite from the host employer, and then to 
relay that information, along with any other relevant information, to 
each contractor that will enter the confined space or that will be 
performing work that could foreseeably result in a hazard within that 
confined space. (See Sec.  1926.1203(h)(1) and (h)(2).) The controlling 
contractor is also responsible for coordinating work in and around 
confined spaces so that no contractor working at the site will create a 
hazard inside the confined space. (See Sec.  1926.1203(h)(4).) After 
the entry employer performs entry operations, the controlling 
contractor must debrief the entry employer to gather information that 
the controlling contractor then must share with the host employer and 
other contractors who enter the space later. (See Sec.  
1926.1203(h)(5).) Section 1926.1203(i) assigns the role of the 
controlling contractor to a particular employer in the event there is 
no controlling contractor for the project. Please see the discussion of 
Sec.  1926.1203(i), below.
    Some commenters expressed concern that the final rule imposes a 
duty on controlling contractors or host employers to verify the 
accuracy of the information they receive from other employers (ID-117, 
pg. 21; ID-078, pg. 1; ID-098, pg. 1). Consequently, one commenter 
predicted that this duty would cause controlling contractors and host 
employers to spend too much time and money overseeing their 
subcontractors' work (ID-120, pg. 2). Two different commenters, 
however, indicated that a controlling contractor should have even more 
responsibility, particularly when multiple employers will be working in 
the same area. The latter commenters argued that the controlling 
contractor should ``share in'' the ``responsibility'' and costs of 
permit space entries, including verifying the training of subcontractor 
employees and communications among employers, particularly when 
multiple employers enter and work in the permit spaces at the same time 
(ID-108, pg. 4; ID-210, pg. 60). One of these latter commenters 
expressed concern that, without controlling contractor verification, 
``untrained or unqualified persons would be likely to enter the spaces 
where a self-declaring system of monitoring is employed'' (ID-108, pg. 
4).
    The final rule does not require the controlling contractor or host 
employer to verify entry-employer information (testing, monitoring, 
etc.) or to have its own employees enter any confined space or take 
other direct actions to discover new information; requiring controlling 
contractor employees to enter permit spaces might increase exposure of 
unqualified persons to the hazards of permit spaces. Unless the 
controlling or host employer allows its own employees into a permit 
space, the final rule only requires the controlling contractor or host 
employer to share information that is already in its possession or that 
it receives from other employers. OSHA agrees that it is important to 
prevent untrained or unqualified persons from entering the space. The 
type of information that the controlling contractor must share with 
subcontractors, and that the host employer must share with the 
controlling contractor, is identical to the type of information that 
the host employer must share with contractors under the general 
industry standard. (See Sec.  1910.146(c)(8).) Separately, controlling 
contractors still have the same duty they have always had to exercise 
reasonable care to ensure compliance with the requirements of other 
applicable standards (e.g., welding standard, respirator standard) in 
accordance with OSHA's multi-

[[Page 25409]]

employer citation policy. The specific communication and coordination 
requirements imposed by this rule are discussed in the paragraph-by-
paragraph explanation of Sec.  1926.1203(h) that follows the discussion 
of OSHA's authority for these requirements.
(2) OSHA's Authority To Require Host Employers and Controlling 
Contractors To Share Information To Protect the Employees of Others
    Two commenters argued that OSHA lacks the authority to impose any 
requirements on host employers or controlling contractors except with 
respect to their own employees. (112.1, p. 14-15; and 117.1, pg. 7-12.) 
One of these commenters stated that a ``controlling contractor . . . 
may not be cited if it did not create a cited hazard and it has no 
employees exposed to the hazard,'' explaining that the ``legal analysis 
supporting this point is set forth well'' in the Occupational Safety 
and Health Review Commission (OSHRC) decision in Secretary of Labor v. 
Summit Contractors, Inc., 21 BNA OSHC 2020 (No. 03-1622, 2007). (112.1, 
p. 15.) OSHA notes that both the reviewing federal court and the 
Commission itself subsequently rejected that view in Solis v. Summit 
Contractors, Inc., 558 F.3d 815 (8th Cir. 2009) and Secretary of Labor 
v. Summit Contractors, Inc., 23 BNA OSHC 1196, 1202-03 (No. 05-0839, 
2010).
    OSHA has clear authority to require host employers and controlling 
contractors to comply with the information-sharing and coordination 
provisions in the final rule. The preamble to the proposed rule 
discussed in detail OSHA's authority to impose the duties in this 
standard (see 72 FR 67358-67360, Nov. 28, 2007), and the Agency 
reasserts the same basis with respect to this final rule, along with 
the 2009 and 2010 Summit decisions. First, the plain language of the 
OSH Act and its underlying purpose support OSHA's authority to place 
requirements on employers that are necessary to protect the employees 
of others. As explained later in this section of the preamble, the 
overall sharing of information that will occur in accordance with the 
final host-contractor provisions will help protect the employees of 
both host employers and contract employers. Second, congressional 
action subsequent to passage of the OSH Act recognizes this authority. 
Third, OSHA consistently interprets its statutory authority as 
permitting it to impose obligations on employers that extend beyond 
their own employees, as evidenced by the numerous standards (including 
several construction standards) that OSHA promulgated previously with 
multiemployer provisions. OSHA provided several examples of these 
standards in the preamble to the proposed rule, and OSHA subsequently 
promulgated additional rules requiring controlling entities and 
utilities to take steps to protect other employers' employees during 
crane operations. (See 29 CFR 1926.1402(c), 1926.1402(e), 1926.1407(e), 
1926.1408(c), and 1926.1424(b).) Finally, numerous courts of appeal and 
the OSHRC have upheld OSHA's authority to place obligations on 
employers that reach beyond their own employees. In addition to the 
authorities listed in the preamble to the proposed rule, the Third 
Circuit upheld the information-sharing requirements in the Asbestos 
Standard for the construction industry, noting: ``We are not convinced 
that the Secretary is powerless to regulate in this [way], especially 
given the findings she has made regarding the importance of building 
owners in the discovery and communication of asbestos hazards.'' 
Secretary of Labor v. Trinity Indus., Inc. (Trinity), 504 F.3d 397, 402 
(3d Cir. 2007).
(3) Paragraph-by-Paragraph Explanation of Sec.  1926.1203(h) and (i)
    Final Sec.  1926.1203(h) is substantively similar to the 
corresponding provision for general industry confined spaces at Sec.  
1910.146(c)(8), but modified to include requirements for controlling 
contractors that were included in the proposed rule. The type of 
information that the controlling contractor must share with entry 
contractors, and that the host employer must share with the controlling 
contractor, is identical to the type of information that the host 
employer must share with contractors under the general industry 
standard. The primary difference in this area between this rule and the 
general industry standard is that this rule makes the controlling 
contractor the central point of the information exchange, while the 
host employer is the central point in the general industry standard. 
The final rule also structures the requirements in chronological order 
to make them easier to follow, setting out the information sharing and 
coordination duties prior to entry, and then setting out the duties 
during and after the entry. These requirements are an efficient and 
necessary way to ensure that all employers have important information 
about the confined-space hazards so each employer can provide adequate 
protection to employees it directs.
    OSHA is designating the controlling contractor, rather than the 
host employer, as the information hub for confined-spaces information-
sharing and coordination because the controlling contractor's function 
at a construction site makes it better situated than the host employer 
(assuming the host employer is not also the controlling contractor) to 
contribute to, and to facilitate, a timely and accurate information 
exchange among all employers that have employees involved in confined-
space work. General industry worksites, such as a refinery or factory, 
are likely to be stable, and owned and under the control of the host 
employer for a substantial length of time. The host employer is well 
suited in that scenario to facilitate information sharing because the 
host employer is most likely to have control of the site and 
information about it before another employer performs confined space 
work there. On a construction worksite, the controlling contractor has 
overall authority for the site and is best situated to receive and 
disseminate information about the previous and current work performed 
there. Evidence introduced at the hearing indicated that the 
controlling contractor communicates with entry employers more 
frequently than the host employer does (ID-210, pg. 315-320). In 
contrast, the record shows that host employers are not always directly 
involved in the construction process and, therefore, are often less 
well situated than controlling contractors to facilitate information-
sharing (ID-220, pg. 14-15).
    The final rule is substantively similar to the proposed rule, 
except that the proposal would have required the host employers to 
communicate directly with entry employers. For the reasons discussed in 
the prior paragraph, OSHA assigned the controlling contractor that 
function in this final rule, giving only limited information-exchange 
requirements to the host employer. In the final rule, OSHA also 
clarified the scope of the information exchanges by requiring the 
controlling contractor to coordinate and share information with 
entities whose activities could foreseeably result in a hazard in the 
confined space, as opposed to all contractors ``near'' the permit 
space. Most other differences between these requirements in the 
proposed rule and the final rule are stylistic in nature and intended 
to bring it closer to the text of general industry rule.
    In the following, more detailed discussion, paragraph (h)(1) 
contains the pre-entry duties of host employers, (h)(2) the pre-entry 
duties of controlling employers, and (h)(3) the pre-entry duties of 
entry employers. Paragraph

[[Page 25410]]

(h)(4) then describes the coordinating responsibilities of controlling 
and entry employers, and (h)(5) explains their duties during and after 
entry. Finally, paragraph (i) explains requirements when there is no 
controlling employer.
    Paragraph (h)(1)--Pre-entry duties of host employer. The host 
employer serves an important role in providing information because the 
host employer is likely to be the employer most familiar with the 
property and the most likely to retain, between separate construction 
projects, information about permit spaces on the property, particularly 
in construction involving existing facilities. (ID-141, pg. 3.) As a 
result, the host employer may have information about hidden dangers or 
other information that can help reduce employee exposure to hazards in 
permit spaces.
    Final Sec.  1926.1203(h)(1) requires the host employer to share 
information it has about the location of known permit spaces, and any 
previous steps that it took, or that other employers took, to protect 
workers from the hazards in those spaces. Telling other employers about 
each known permit space on the worksite is essential to achieving the 
purpose of the information-exchange requirements, which is to ensure 
that contractors with employees entering confined-spaces are aware of 
the type and degree of these hazards and can take necessary safety 
precautions. Having information about the previously identified hazards 
in a space, and the previous efforts to address them, will assist the 
entry employer in ascertaining if those hazards still exist, and help 
the entry employer avoid problems addressing the hazards that previous 
entry employers encountered. Final paragraph (h)(1) is similar to the 
corresponding provision for general industry confined spaces and to 
proposed Sec.  1926.1204(a), although the host employer must share the 
information with the controlling contractor instead of the entrants. 
The controlling contractor then shares it with the entry employers. 
OSHA did not receive any comments specifically opposing the inclusion 
of this information in the information-exchange requirements.
    The proposed rule provided that host employers had to share the 
information about known hazards only ``if they have it,'' and to 
identify confined spaces when the host employer or controlling 
contractor ``actually knows'' that they are confined spaces. (See 72 FR 
67407.) The purpose of including these phrases in the proposed rule was 
to clarify that the controlling contractor and host employer need not 
engage in extensive and burdensome investigations of the history of the 
worksite, and, most importantly, that these employers ``are not 
required to enter a confined space to collect the relevant 
information.'' (See 72 FR 47933.) OSHA is retaining the same approach 
in the final rule, but refers to ``known'' permit spaces instead of the 
more awkward ``space that the host actually knows is a confined 
space.'' The final rule also narrows the requirement by focusing 
specifically on known permit spaces, rather than to all confined 
spaces, because these spaces pose the greatest hazards to employees. 
Narrowing the requirement also reduces the number of information 
exchanges and matches the type of information that the host employer 
must share, which is linked to the nature of the space as a permit 
space, i.e., information about the hazards that make the space a permit 
space, and the previous efforts to address those hazards. This narrowed 
approach will appropriately focus the exchanges on those spaces with 
known hazards. In the event that an employer is both a host employer 
and the controlling contractor, the employer has the information that 
complies with the provisions of final Sec.  1926.1203(h)(1), (h)(2), 
(h)(4), and (h)(5).
    For example, a host employer hires a controlling contractor to 
build an underground storage facility and discovers during that process 
that there is an underground stream below the property. Years later the 
host employer hires a different controlling contractor to expand the 
underground storage facility in a manner that will include several 
confined spaces. In this example, the host employer must share the 
plans for the existing storage facility and identify the location of 
the underground stream so that the controlling contractor and the 
relevant subcontractors can develop a permit-space program appropriate 
to address potential engulfment hazards. The host employer also would 
be responsible for disclosing the storage of any potentially hazardous 
chemicals or other substances in the existing storage facility. 
However, the final rule would not require the host employer to drill 
for additional undiscovered underground rivers, conduct soil tests, or 
test the air in the existing storage facilities.
    Paragraph (h)(2)--Pre-entry information-sharing duties of 
controlling contractors. In paragraph (h)(2), OSHA requires controlling 
contractors to obtain the information specified in paragraph (h)(1) 
from the host employer (i.e., the location of permit spaces, the known 
hazards in those spaces, measures employed previously to protect 
employees in that space). Then, before permit space entry, it must 
relay that information to any entity entering the permit space and to 
any entity whose activities could foreseeably result in a hazard in the 
confined space. (See Sec.  1926.1203(h)(2)(ii).) The controlling 
contractor must also share any other information that it has gathered 
about the permit space, such as information received from prior 
entrants.
    The final rule varies slightly from the proposal in requiring 
controlling contractors to share the information with any ``entity,'' 
rather than other contractors or employers, to ensure that the 
controlling contractors also share this information with independent 
contractors who are not ``employers'' under the OSH Act. These 
contractors pose the same issues as do employers when working in or 
around permit spaces, i.e., they may increase hazards for others 
working in or around the space if they do not comply with the 
provisions of this standard. OSHA concludes that it is equally 
important for controlling contractors to pass along information about 
permit space hazards to independent contractors, and to coordinate 
their activities as required in this standard. Although OSHA is not 
directly requiring independent contractors to share information in 
accordance with the standard, OSHA expects that controlling contractors 
will be able to obtain the necessary information as a result of their 
control over the worksite.
    OSHA requires the controlling contractor to obtain the information 
from the host employer before entry operations begin so that the 
controlling contractor can share the information with the entities 
specified in Sec.  1926.1203(h)(2)(ii) in time to minimize potential 
employee exposure to hazards in the confined spaces. This provision was 
not in the proposal; the proposal required both the host employer and 
controlling contractor to share information directly with the entry 
employer. (See proposed Sec.  1926.1204(a).) OSHA added this provision 
to the final rule to conform to the final rule requirement that the 
host employer share information with the controlling contractor rather 
than the entry employer. The final standard makes it explicit that the 
controlling contractor and host employer have separate duties with 
respect to the same information: the controlling contractor must obtain 
it under final Sec.  1926.1203(h)(2)(i) and the host employer must 
share it under final Sec.  1926.1203(h)(1).
    These complementary duties also address the concerns of some

[[Page 25411]]

commenters that host employers are often state or local government 
entities not subject to the OSH Act. (ID-78, p. 2; ID-141, pg. 3.) The 
commenters expressed concern that it might be difficult for the 
controlling contractor to obtain the information from a government 
entity not subject to Sec.  1926.1203(h)(1), and that the host's 
failure to provide the information could subject the controlling 
contractor to heightened liability. In such cases, OSHA expects the 
controlling contractor to exercise due diligence in attempting to 
obtain the information from the host employer, and believes that most 
hosts will provide it when the controlling contractor explains that it 
needs the information in order to perform the job safely and in accord 
with law.
    Final Sec.  1926.1203(h)(2) is similar to the corresponding 
provisions for general industry confined spaces with a few 
distinctions. General industry Sec.  1910.146(c)(8)(i) requires the 
host employer to share the specified information with ``the 
contractor.'' This final rule requires an exchange of the same 
information, but Sec.  1926.1203(h)(2) requires the controlling 
contractor to exchange that information with both the entity entering 
the permit space and with other contractors working around the permit 
space.
    The general industry rule requires the host employer to inform 
other employers that they can conduct permit-space entry only by 
complying with a permit-space program meeting the requirements of the 
standard (see Sec.  1910.146(c)(8)(i)). There was no specific parallel 
in the proposed construction rule. This final rule also does not 
contain a specific parallel requirement because the entry employer's 
duty to use a valid permit program is explicit in Sec.  1926.1203(d).
    OSHA has clarified the requirements for communication with entities 
whose activities outside a confined space may affect workers inside the 
space. Many commenters found the terminology of the general industry 
rule (referring to work ``in or near permit spaces'' in Sec.  
1910.146(c)(8)(iii)) and the proposed rule (referring to ``employers'' 
in proposed Sec.  1926.1209(b)(3).) confusing in the context of a 
construction worksite.\16\ Therefore in this final rule, OSHA refines 
this requirement by requiring the controlling contractor to provide the 
information to other entities on the worksite when the activities of 
these other entities could foreseeably result in a hazard within the 
confined space. This information-exchange requirement also is similar 
to the information-exchange requirement in Sec.  1926.65(b)(1)(iv) 
(Hazardous waste operations and emergency response). Both rules require 
employers to inform contractors and subcontractors about hazards of the 
work the contractor will be performing, including hazards of the 
worksite.
---------------------------------------------------------------------------

    \16\ For a discussion of the term ``near'' see the overview of 
Sec.  1926.1205 in this preamble.
---------------------------------------------------------------------------

    OSHA designed this requirement to protect authorized entrants and 
others who are part of the permit-space entry process (e.g., the 
attendant) from a wide variety of potential activities, including those 
that may be beyond the scope of the permitting process. Therefore, the 
information-exchange requirement applies to activities outside the 
permit space that could foreseeably result in a hazard within the 
permit space, either alone or in conjunction with the activities inside 
the space. Examples include use of a heavy gas that could enter the 
space and cause oxygen deficiency or sparks from a welding operation 
outside the space that could ignite flammable gas inside a confined 
space. To prevent the creation of confined-space hazards, final Sec.  
1926.1203(h)(4) supplements this requirement by requiring the 
controlling contractor to coordinate the activities of entities either 
entering the permit space or engaged in actions that could foreseeably 
result in a hazard within the space.
    Paragraph (h)(2)(i). As noted above, final Sec.  1926.1203(h)(2)(i) 
requires the controlling contractor to obtain from the host employer, 
before permit-space entry, the host's information regarding permit-
space hazards and previous entry operations. OSHA included this 
provision in the final rule as part of the change to limit the host 
employer's involvement in the information-exchange process, and to 
centralize the role of the controlling contractor. The controlling 
contractor needs this information for dissemination to entities 
entering permit spaces (final Sec.  1926.1203(h)(2)(ii)), and to 
fulfill its duty to coordinate permit-entry activities with other work 
occurring in and around the permit space (see final Sec.  
1926.1203(h)(4)).
    Paragraph (h)(2)(ii). The final rule requires the controlling 
contractor to pass along the information it received from the host 
employer about the permit spaces on the worksite. The controlling 
contractor is at the hub of the information exchanges in the final 
rule, so this step is critical to ensuring that the host employer's 
information reaches the entities entering the permit space and others 
whose work may create hazards inside the permit space. The parallel 
provision of the proposed rule, Sec.  1926.1204(a)(1), was potentially 
duplicative and ambiguous because it required the controlling 
contractor and host employer to provide the same information to the 
same entities.
    Final Sec.  1926.1203(h)(2)(ii)(A) and (B) require the controlling 
contractor to share with the entities entering the permit space, and 
any other entity at the worksite whose activities could foreseeably 
result in a hazard in the permit space, the information that the 
controlling contractor received from the host employer, as well as any 
additional information the controlling contractor has about the topics 
listed in paragraphs (h)(1)(i) through (iii) (i.e., the location of 
permit spaces, the hazards in those spaces, and any previous efforts to 
address those hazards). These paragraphs are substantively similar to 
the general industry requirements at Sec.  1910.146(c)(8)(ii) and 
(iii). Having information about the previously identified hazards in a 
space will help the entry employer ascertain whether those hazards 
still exist.
    For employers or other entities whose activities could foreseeably 
result in a hazard in the confined space, this information will improve 
their ability to assess whether those activities will create such a 
hazard, to avoid creating the hazard or to minimize any hazard they 
create, to prevent their employees' unauthorized entry into a permit 
space, and to help them prepare for coordination of their activities 
under final Sec.  1926.1203(h)(4).
    Final Sec.  1926.1203(h)(2)(ii)(C) is similar to the general 
industry standard at Sec.  1910.146(c)(8)(iii) in that it requires the 
controlling contractor to share with each specified entity any 
precautions or procedures that the host employer, controlling 
contractor, or any entry employer implemented earlier for the 
protection of employees working in permit spaces. This provision also 
is similar to the proposed standard at Sec.  1926.1204(a)(2)(iii). This 
final provision requires the controlling contractor to notify the 
specified entity of the procedures currently used, or previously used, 
at the permit space, thereby alerting each new entering entity to 
information that it can use to improve its entry plans and permit 
program. This provision does not require the controlling contractor to 
develop entry programs for its contractors.
    One commenter urged OSHA to alter the information-exchange 
requirements in proposed Sec.  1926.1204(a) by requiring the 
controlling contractor to share all information about precautions or 
procedures implemented by any employer within a given permit space,

[[Page 25412]]

not merely the precautions and procedures the host employer or 
controlling contractor implemented for that space (ID-220, pg. 16). 
OSHA agrees, and the final rule requires controlling contractors to 
share this information because it is likely to be helpful to subsequent 
entry employers as they assess the spaces and develop their own 
procedures. This information may also reduce the amount of time it 
takes subsequent entry employers to develop their own entry procedures. 
The controlling contractor's experience with a permit space includes 
information gathered from other entry employers and other sources; the 
controlling contractor will share this information with subsequent 
entry employers. If the information about previous procedures came from 
an entry employer who worked on projects before the controlling 
contractor became involved, then the controlling contractor would 
obtain that information from the host employer. If the previous 
procedures came from an entry employer who worked under the controlling 
contractor, then the controlling contractor would have obtained the 
information pursuant to other provisions of this rule.

Examples of Pre-Entry Information-Exchange Duties of Host Employers and 
Controlling Contractors

    Example 1.  A controlling contractor is walking the worksite and 
notices a significant amount of water pooling so that it might enter 
an underground permit space. The controlling contractor must alert 
the subcontractor working in that space of the potential for water 
entering the space or weakening the structure, and must also inform 
other entities in the area whose activities could foreseeably result 
in a hazard inside the confined space (e.g., entities whose 
activities may be contributing to the pooling water, may convey an 
electric charge through the water into the confined space, or may 
weaken the structure around the confined space to allow the water to 
enter the space).
    Example 2.  The controlling contractor hires a subcontractor to 
apply a flammable epoxy coating to the walls of a confined space; 
the subcontractor does so under a permit program, and then cancels 
the permit in compliance with this final rule. The controlling 
contractor must inform subsequent employers entering the space about 
the application of that epoxy and the procedures used to address 
hazards in the space.
    Example 3.  If a host employer stored hazardous chemicals in a 
confined space during a period when leaching of the chemicals could 
occur, the host employer must disclose that previous use of the 
space.
    Example 4.  The controlling contractor hires a welder to weld a 
new structure inside a fully-enclosed above-ground permit-required 
confined space. The welder sets up a ventilation system that 
complies with all applicable OSHA requirements. The controlling 
contractor also hires a different subcontractor to perform unrelated 
excavation work 75 yards away from the permit space. The controlling 
contractor must alert the excavation contractor to the fact that a 
welder is working in the confined space, that the space has been 
designated a permit space and must not be entered by any of the 
excavation contractor's employees, and that the welder is relying on 
a ventilation system that must not be impacted by the excavation 
contractor's activities, such as by blocking the ventilation system 
or by operating heavy machinery, generators, etc. in such a way that 
their fumes could enter the confined space. In this example it is 
foreseeable that the excavator might otherwise place dirt from the 
excavation (the ``spoil pile'') in a location that could interfere 
with the welder's ventilation system, or add fumes into the confined 
space. Either action would foreseeably result in a hazard in the 
permit space. However, absent some other abnormal condition such as 
an underground gas pipeline running between the excavation site and 
the permit space, the controlling contractor would not need to 
ensure any coordination between the excavating activities and the 
welding activities because the excavation itself (aside from the 
placement of the spoil pile) is 75 yards away and would not 
foreseeably result in a hazard in the permit space.

    In example 1, the entry employer might not be aware of the hazard 
from the pooling water or of other hazards that could arise from the 
activities of others outside the site in conjunction with the pooling 
water. In examples 2 and 3, both types of information could be critical 
to employers performing subsequent welding or other tasks that might 
ignite remaining fumes or release vapors inadvertently.
    These information exchanges, in combination with separate OSHA 
requirements that entry employers share specific information about the 
permit spaces with controlling contractors, will ensure that each 
``downstream'' employer (the employer performing the permit-space 
entry) receives important information about the relevant permit space 
in time to address hazards that could endanger employees it directs.
    One commenter questioned whether the information duties would apply 
to all information--both written and oral--the host employer or 
controlling contractor may receive, rather than merely information that 
is readily available (ID-153, pg. 18). The obligations in this final 
rule apply to all information, including both written and oral 
information the host employer or controlling contractor receives about 
hazards or potential hazards in a permit space. It is the 
responsibility of the host employer and controlling contractor to 
retain this information, which protects employees who are performing 
permit-space work, and to communicate this information to entry 
employers and the others identified in the standard.
    A different commenter asserted that employers will have difficulty 
managing and recording the information they are required to communicate 
(ID-078, pg. 2). However, the record indicates that many construction 
employers already are following the general industry confined spaces 
standard, which requires host employers to share similar information 
(see Sec.  1910.146(c)(8)(ii) and (c)(8)(iii)). This final rule also 
does not prescribe how employers are to gather, record, or maintain 
this information. This commenter urged OSHA to provide a database of 
relevant information that all employers could access; however, such an 
action is beyond the scope of this rulemaking.
    The National Association of Home Builders asserted that the 
information-exchange requirements would not be beneficial in the 
context of residential construction because conditions change too 
rapidly (making it likely that the information will be inaccurate when 
exchanged), and that the ``small likelihood that the provision would 
ever be of any use to employee safety'' should not outweigh the 
``burden of compliance'' in residential construction (ID-117, pg. 20). 
This comment misses the point: this is an important safety issue 
because the information exchange protects workers from exposure to 
harmful conditions. The rapidly changing confined-space conditions on 
residential construction sites is a major reason OSHA is requiring 
these information exchanges. Moreover, only the presence of a permit-
required confined space triggers the information-sharing requirements, 
and every entry into a permit-required confined space, by definition, 
exposes the entrants to a hazardous atmosphere or other serious hazard 
absent the measures implemented through the permit program. The 
commenter offers no support for the assertion that sharing information 
to help entry employers identify these hazards as quickly as possible, 
and before employee exposure occurs, would not be of ``any use to 
employee safety.'' In light of the record as a whole, OSHA believes 
that there will be an important safety benefit, and, therefore, does 
not find the commenter's argument persuasive.
    The same commenter offers another reason for objecting to the 
information-sharing requirement: On large commercial construction 
projects, it is common to exchange information at the start of the 
project, but this information

[[Page 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 permit-space work is to occur near the 
midpoint of a project, a single conversation shortly before the 
evaluation and entry may fulfill the requirements of the final rule. 
There is no reason the controlling contractor cannot send all of the 
information at once rather than sending updated information in a 
piecemeal fashion as the commenter noted, as long as the information is 
shared with the entry employer prior to entry. The key parts of the 
provision are that the controlling contractor remains informed, and 
ensures that the information is conveyed to the entrants. Therefore, 
employers involved in permit-space entry on construction worksites have 
flexibility to decide the manner in which to exchange this information 
(e.g., whether orally or in writing, whether the entry employer or 
controlling contractor initiates the exchange); however, they all have 
a duty to ensure that they share the information.
    Paragraph (h)(3)--Pre-entry information-sharing duties of entry 
employers.
    This provision, which sets forth the information-exchange 
requirements for entry employers, is similar to the proposed provision 
and to the corresponding provision for general industry confined spaces 
standard at Sec.  1910.146(c)(9), although it uses slightly different 
terminology. Here, OSHA uses the term ``entry employer'' to clarify 
that the paragraph applies to employers who perform permit-space entry 
operations. And as in the rest of this section, the controlling 
contractor, rather than the host employer, is the focal point of the 
information exchange. OSHA believes that these requirements will 
contribute significantly to the increased safety and health of the 
employees of entry employers involved in permit-space entry operations.
    Paragraph (h)(3)(i). This provision requires an entry employer to 
obtain information about the permit-space entry operations from the 
controlling contractor, and works with final Sec.  1926.1203(h)(2), 
which requires the controlling contractor to share information about 
permit-space entry operations with the entry employer. OSHA believes 
that the reciprocal obligations in this final rule, which are 
consistent with the general industry standard, will increase the 
effectiveness of the information exchange by placing the duty to share 
this information on both parties. Both employers will now have the duty 
to exchange information, although they will likely accomplish their 
duties in a single interaction. The information exchange will ensure 
that the entry employer understands the type of space it will be 
evaluating, and will allow it to anticipate the permit-space hazards 
that may be present during entry.
    Paragraph (h)(3)(ii). The final rule requires an entry employer to 
inform the controlling contractor of the permit-space program that the 
entry employer will follow, including information about any hazards 
likely to be confronted or created in each permit space. This exchange 
must take place prior to entry to ensure that the controlling 
contractor is informed of all the hazards in a timely manner and can 
take action, if needed, to prevent an accident or injury before entry 
operations begin. OSHA expects this exchange to occur after the 
employer has completed its assessment of the permit space, which is 
generally necessary to identify the hazards in the space and ensure 
that a proper permit-space program is selected. Consistent with the 
approach in the proposed rule, separating this pre-entry exchange from 
the subsequent entry report required by Sec.  1926.1203(h)(5)(ii) 
clarifies that these two information exchanges must take place at two 
distinct stages of permit-entry operations.
    One commenter objected to the proposed requirement that the entry 
employer inform both the controlling contractor and host employer of 
the procedures the entry employer planned to use in the permit space. 
The commenter asserted that the proposed provision was ``an unnecessary 
burden [that] in some cases may be infeasible'' (ID-124, pg. 6). This 
final rule eliminates the requirement that the entry employer share 
this information with the host employer, eliminating any difficulties 
an entry employer may have communicating with a host employer, and is 
consistent with the rule's overall designation of the controlling 
contractor as the focal point of the information-exchange process. As 
explained elsewhere, the controlling contractor needs this information 
to coordinate entry as necessary, and the exchange provides the 
controlling contractor with another opportunity to inform the entry 
employer about the hazards of the permit space as required by Sec.  
1926.1203(h)(2).
    Paragraph (h)(4)--Coordination duties of controlling contractors 
and entry employers. Final Sec.  1926.1203(h)(4) requires controlling 
contractors and entry employers to coordinate permit-space entry 
operations in two circumstances: (1) When more than one entity performs 
entry operations at the same time, or (2) when permit-space entry is 
performed at the same time any activities that could foreseeably result 
in a hazard in the permit space are performed. The controlling 
contractor and each entry employer have separate duties under this 
provision, and each can be cited for failing to perform its part of the 
coordination. Similar obligations were included in the proposal, but 
were not stated as clearly as they are here, and also are present in 
the general industry standard. Minor differences between this final 
rule and the general industry and proposed rules are matters of 
terminology or reflect the key role of the controlling contractor in 
this construction rule.
    There is a need to coordinate entry operations whenever multiple 
entities are performing work simultaneously in or around a permit-space 
because of the

[[Page 25414]]

possibility that one entity's activity might create a hazard for 
workers employed by a different entity (e.g., welding next to the 
application of a flammable coating). The purpose of this provision is 
to protect employees from foreseeable hazards that could result from a 
lack of coordination between entry entities in the permit space, or 
with entities outside the space whose activities could create hazards 
inside the permit space. This paragraph works in concert with the 
requirement that entry employers inform the controlling contractor of 
the permit-space program that the employer will use and the hazards 
they are likely to encounter in the space, including hazards created 
after entry. The controlling contractor can use this information to 
coordinate the entry operations to ensure safety for all workers in the 
space.
    It is important for the controlling contractor to participate in 
each coordination effort because construction worksites are constantly 
evolving, with multiple employers performing work. Consequently, the 
controlling contractor, as the employer with overall responsibility on 
the worksite, is in the best position to coordinate the entry 
operations. This provision also requires the entry employer to 
coordinate entry with the controlling contractor because it is the 
entry employer who evaluates a confined space, who will have employees 
it directs entering the space, and who may have the most current 
information about the space.
    For example, a properly informed controlling contractor will be 
aware of excavation work on a site directly above an underground permit 
space, and will coordinate work to ensure that no employees are in the 
permit space when the excavation work could foreseeably cause part of 
the underground space to collapse. Similarly, the controlling 
contractor must ensure that, when an employer is using a crane in the 
vicinity of a permit space, lifts are planned and implemented so that 
the crane would not be carrying its load over an occupied permit space 
or its entry/exit. In those scenarios, the entry employer would be 
responsible for informing the controlling contractor when it plans to 
have employees inside the permit space. Coordination would typically 
involve the controlling contractor scheduling the activities 
appropriately, working with all of the employers involved to ensure 
that they adhere to the schedule, implementing a plan to remove the 
employees from the permit space at the appropriate times, and 
designating locations to keep the employees clear of the load during 
the lifting operation.
    This coordination requirement responds to a concern that proposed 
Sec.  1926.1204(d) did not account for the fact that work taking place 
near a permit space can create hazards that could harm other employers' 
employees inside the space (ID-210, pg. 317-18). The commenter raising 
this concern provided an example of an employer that uses gas that is 
heavier than air near a confined space; such a gas could create an 
atmospheric hazard in the space by displacing oxygen.
    OSHA agrees with this comment and the final standard requires the 
type of coordination that will address this concern. It specifically 
requires the controlling contractor to coordinate entry operations of 
any entities whose activities could foreseeably result in a hazard in 
the confined space. This requirement is consistent with the 
requirements of final Sec. Sec.  1926.1204(k) and 1926.1210(f). Final 
Sec.  1926.1204(k) requires an entry employer to account for such 
coordination as part of its permit program, while final Sec.  
1926.1210(f) requires the entry supervisor to determine, on 
transferring responsibility for permit operations, that entry 
operations remain consistent with the terms of the entry permit and 
that entry conditions are acceptable.
    Other commenters objected that controlling contractors are not in 
the best position to coordinate because they often are not on the site 
to provide coordination, do not have the knowledge or experience to 
correctly identify the hazards of a permit space, and may not know of 
the planned entry (ID-117, pg. 21; ID-075, pg. 6). These commenters 
also argued that if the final standard requires coordination, such 
coordination should be between the involved host employer and entry 
employer(s), as is the case under the general industry standard (ID-
117, pg. 22; ID-075, pg. 6).
    OSHA disagrees with these comments. An employer that meets the 
standard's definition of controlling contractor has ``overall 
responsibility for construction at the worksite.'' As noted earlier, 
other commenters agreed that controlling contractors were better suited 
than host employers to serve at the center of this process in 
construction activities. (ID-210, pg. 315-20; ID-220.2, pg. 14-15). By 
virtue of their responsibility for the entire worksite, controlling 
contractors schedule and coordinate activities among different 
subcontractors to ensure that they perform construction tasks in the 
correct sequence, in the proper manner, and with minimal delay between 
the steps on a project. The vague hypothetical scenarios presented by 
the commenters do not persuade the Agency that the coordination 
required by this final rule is a significant departure from the type of 
coordination required on a regular basis under existing work practices. 
Accordingly, OSHA concludes that controlling contractors, as the 
entities actually managing construction activities at a worksite, are 
better able than host employers to coordinate the activities of the 
other employers whose employees work in or around a permit space. 
Coordination of entry operations under final Sec.  1926.1203(h)(4) is a 
critical component of this standard.
    Nevertheless, OSHA has structured the coordination provision in the 
final rule to minimize additional responsibilities and provide 
appropriate flexibility for controlling contractors. If the controlling 
contractor's employees will not enter the permit space, the controlling 
contractor may fulfill its coordination duty by relying on information 
provided by entry employers. The controlling contractor does not 
necessarily have to be on the site at all times or have expertise on 
permit space hazards to coordinate entry operations, just as the 
controlling contractor does not need to be on site at all times to 
coordinate material deliveries or subcontractor assignments. In 
addition, the final rule does not specify how the controlling 
contractor and entry employers must coordinate entry operations. 
Controlling contractors and entry employers may coordinate entry 
operations using any method that is effective, and this coordination 
need not involve a lengthy process.
    One commenter expressed a concern that the coordination 
requirements would impose strict liability on controlling contractors 
for safe permit-space entry operations, meaning that the controlling 
contractor would be liable for another employer's breach of safety 
policy (ID-141, pg. 2). The final rule does not impose strict liability 
or any responsibility to ensure other contractors' compliance with the 
standard. Controlling contractors who are not entry employers have 
information sharing and coordination duties.
    Another commenter asserted that, in an effort to comply with this 
coordination duty, the controlling contractor may impose redundant and 
unnecessary safety measures on other employers to protect the 
controlling contractor from liability (ID-120, pg. 2). This comment is 
speculative and unsupported by specific examples, so it is difficult 
for the Agency to respond to it other than to note that the final rule 
does not impose duplicative

[[Page 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, Sec.  1926.1203(h)(5)(i) requires the 
controlling contractor to retrieve the information, and Sec.  
1926.1203(h)(5)(ii) requires the entry employer to provide the 
information. OSHA does not view this as a significant change from the 
proposed rule because the proposal also required the same debriefing to 
occur, and it required the parties to share the same information (see 
proposed rule Sec.  1926.1204(c)(2)). If no new hazards arose during 
entry and the entry employer's program did not change, the information 
exchange can be brief, just confirming that the original program was 
followed.
    The final rule contains a new requirement for the controlling 
contractor to notify the host employer of any information it receives 
from debriefing the entry employer. OSHA added this provision to close 
a potential gap in the information-exchange process that could result 
because the final rule makes the controlling employer the hub of the 
information and exchange and does not require entry employers to 
provide information directly to the host employers, as the proposed 
rule did (see proposed rule Sec.  1926.1204(c)(2)). As discussed above, 
OSHA has determined that the controlling contractor is in the best 
position to coordinate the exchange of this information. Therefore, the 
final rule shifts the duty to the controlling contractor. The host 
employer will still receive the information, but from the controlling 
contractor. OSHA expects that in many cases there will be no need for a 
separate exchange because the controlling contractor can relay this 
information as part of its regular communications with the host 
employer.
    One commenter objected to the debriefing requirement, stating that 
it was unnecessary if other employers were not already scheduled to 
enter the space. If another employer does eventually enter the space, 
the commenter asserted, the subsequent employer's independent hazard 
assessment should suffice (ID-124, pg. 6). OSHA disagrees. The 
subsequent employer must make an independent hazard assessment, but the 
rationale for requiring information exchanges in the final rule still 
applies: that assessment may not reveal previously identified hidden or 
latent dangers or conditions, and the new entry employer would be less 
prepared to protect its employees than if it obtained the information 
that the controlling contractor received from debriefing the previous 
entrant.
    A different commenter asserted that host employers have no need for 
information about newly constructed confined spaces, and that the 
requirement to provide information to the host employer is an 
unnecessary paperwork burden (ID-017, pg. 2). OSHA disagrees. It is 
important for the controlling contractor to notify the host employer of 
information about the host's property, particularly any new hazards 
identified during the entry. In many cases, the same controlling 
contractor may not be present for future construction activities 
involving the space, so the host employer's information will helpful 
for future entries.

    Note to Sec.  1926.1203(h)--host employer and controlling 
contractor not required to enter a confined space.  The final 
standard also includes the note from proposed Sec.  1926.1204(a) 
explaining that, unless a controlling contractor or host employer 
has, or will have, employees in a confined space, neither of these 
employers need to enter any confined space to collect the 
information specified in paragraph (h) of this section. This note 
applies to all of paragraph (h). This protects the employees of the 
controlling contractor and the host employer because entering 
confined spaces could expose those employees unnecessarily to the 
hazards of that space. Controlling contractors and host employers 
should not conduct such an entry unless there is a purpose to the 
entry other than just gathering information.

    Paragraph (i)--Absence of a controlling contractor. Final Sec.  
1926.1203(i) provides that, in the event no employer meets the 
definition of a controlling contractor on a particular worksite, the 
host employer or other employer that arranges for permit-space entry 
work must fulfill the information-exchange and coordination duties of a 
controlling contractor. The general industry rule does not have any 
requirements for a controlling contractor and, therefore, has no 
corresponding provision dealing with the absence of a controlling 
contractor. OSHA added this requirement in response to a comment noting 
that some construction worksites do not have an employer that meets the 
definition of a controlling contractor (ID-124, pg. 6). Because the 
controlling contractor is at the hub of the information-exchange and 
coordination requirements, failing to address this

[[Page 25416]]

issue would leave a serious gap in a critical provision of the 
standard. When no employer on a worksite meets the definition of 
controlling contractor, it is still necessary for one employer to be 
responsible for information exchange and coordination, thereby ensuring 
that entry employers are aware of the known hazards associated with the 
space, and that different entities do not create new hazards to each 
other.
    The employer that has the duty specified under final Sec.  
1926.1203(i) can be any employer that arranges for permit-space entry. 
It could be the host employer, a different contractor, or an entry 
employer that arranges for another entry employer to conduct entry 
operations. It is possible that the employer that has this duty will 
change based on the stage of construction. For example, if there is no 
controlling contractor for the project, but a contractor on the site 
arranges for entry employer A to enter a permit space, the final rule 
requires the contractor to share the information identified in final 
Sec.  1926.1203(h) with entry employer A and to fulfill the controlling 
contractor's coordination and other information sharing duties in the 
standard. If entry employer A, after completing its entry operations 
and cancelling its permit, arranges for entry employer B to enter the 
permit space, then entry employer A assumes the controlling contractor 
duties with respect to entry employer B's confined space activities.
    Requirements in Sec.  1926.1203(h) and (i) do not alter contractual 
relationships between host employers or controlling contractors and 
subcontractors. One commenter noted that subcontractors often perform 
confined-space work because of their expertise in working in those 
spaces, and asserted that OSHA should not ``force general contractors 
to interject themselves into the work tasks of their sub-contractors'' 
in a way that would ``disregard . . . both specific contractual 
responsibilities and the expertise of sub-contractors.'' (124.1, pg. 
3.) OSHA agrees, and crafted this rule to ensure that subcontractors 
have the information necessary to perform their work safely, 
particularly information about hidden or latent hazards that the 
subcontractor may not be able to discover quickly without endangering 
its entrants. A subcontractor may have expertise in welding inside a 
confined space, but that expertise will not help it avoid an invisible 
hazard it has no reason to suspect. (See ID-213.1, pg. 1, supra, for 
example of hidden dangers.) In this case, the host employer and 
controlling contractor need not develop welding expertise; instead, 
they must share information about hazards that they, or other employers 
with the appropriate expertise, previously identified.
    Several commenters asserted that ``OSHA is attempting to force 
certain employers to assume a sufficient degree of control over 
confined space entry'' to ``substantially expand'' the tort law 
exposure of those employers (ID-078, pg. 2; ID-120, pg. 2-3; 153, pgs. 
19-20). OSHA does not agree, and notes that comments urging OSHA to 
reduce potential employer liability in private rights of action are not 
relevant to OSHA's statutorily mandated obligations to promote worker 
safety.
    Congress enacted the OSH Act to ``assure so far as possible every 
working man and woman in the Nation safe and healthful working 
conditions.'' 29 U.S.C. 651(b). Congress gave the Secretary of Labor 
the authority to promulgate mandatory occupational safety and health 
standards to achieve that goal.\17\ Id. section 655. As OSHA explained 
in an October 23, 2006, letter to U.S. Congressman Cass Ballenger,
---------------------------------------------------------------------------

    \17\ The Secretary delegated those responsibilities to the 
Assistant Secretary for Occupational Safety and Health, who heads 
OSHA. See 77 FR 3912 (Jan. 25, 2012).

nothing in health or safety standards issued by OSHA . . . 
determines the tort remedies available to injured workers. That 
matter is determined by the laws of the individual states. It is not 
our role at OSHA either to foster or to foil the efforts of 
plaintiffs' lawyers in state court proceedings. It is our 
responsibility, however, to undertake reasonable efforts `` . . . to 
assure so far as possible every working man and woman in the Nation 
safe and healthful working conditions,'' and OSHA's standards are 
therefore focused on addressing workplace hazards.'' In general, 
tort law remedies present entirely separate bodies of law that are 
available at common law, or as the result of state action, to anyone 
in the general public (including workers) who might be harmed by a 
wrongful act; they are not aimed specifically at correcting 
---------------------------------------------------------------------------
workplace hazards.

    The OSH Act does not contain any private right of action allowing 
employees to recover for injuries or illnesses caused by hazardous work 
conditions. Instead, Section 4(b)(4) of the OSH Act makes clear that 
any effect of OSHA standards on state tort law is limited: ``Nothing in 
[the OSH] Act shall be construed to . . . enlarge or diminish or affect 
in any other manner the common law or statutory rights, duties, or 
liabilities of employers and employees under any law with respect to 
injuries, diseases, or death of employees arising out of, or in the 
course of, employment.'' (29 U.S.C. 653(b)(4).) The plain language of 
section 4(b)(4) thus indicates that any standard OSHA promulgates 
generally has no effect on, and certainly cannot ``substantially 
expand,'' employees' rights under the state tort system with respect to 
workplace injuries and illnesses. See, for example, Crane v. Conoco, 
Inc., 41 F.3d 547 (9th Cir. 1994) (``OSHA violations do not themselves 
constitute a private cause of action''); Atlas Roofing Co., Inc. v. 
OSHRC, 430 U.S. 442, 445 (1977) (``existing state statutory and common-
law remedies for actual injury and death remain unaffected'' by the OSH 
Act); Frohlick Crane Serv, Inc., v. OSHRC, 521 F.2d 628, 631 (10th Cir. 
1975) (``It would appear that by this particular provision [section 
4(b)(4)] Congress simply intended to preserve the existing private 
rights of an injured employee, which rights were to be unaffected by 
the various sections of the Act itself.''); Jeter v. St. Regis Paper 
Co., 507 F.2d 973, 977 (5th Cir. 1975) (``It seems clear that Congress 
did not intend [the OSH Act] to create a new private cause of action, 
but, on the contrary, intended private rights to be unaffected 
thereby.'') .
    OSHA recognizes that state courts in some circumstances use OSHA 
standards, including these final host-employer and controlling-
contractor provisions, as evidence in a negligence action. (See, for 
example, Knight v. Burns, Kirkley & Williams Constr. Co., 331 So.2d 651 
(Ala. 1976).) But when they do so, any effect on tort law is a function 
of these state court decisions and is not in any way dictated by OSHA's 
standard. See Summit Contractors, Inc. v. Sec'y of Labor, 442 Fed.Appx. 
570, 572 (D.C. Cir. 2011) (rejecting arguments that OSHA's multi-
employer duties would increase common law liability for general 
contractors because ``such liability would arise only from a court's 
(hypothetical) later action under state law--not from the OSH Act 
itself'').
    Other commenters submitted a variety of objections about the 
information-exchange provisions, including that the controlling 
contractor and host employer information-sharing requirements ``do not 
reflect an appropriate application of responsibilities, and expand the 
duties of general contractors in the residential construction 
industry'' (117.1, pg. 7), thereby requiring the host employer to 
maintain extensive files about each confined space located on its 
property, which ``would be impractical and infeasible in today's 
business context'' (153, pgs. 18-19). Commenters also complained that 
the coordination requirements were ``unworkable'' (219.2, pg. 40 
(marked as pg. 37)). However, another commenter responded:


[[Page 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 multi-employer 
provisions. And, there is nothing in the record that . . . suggested 
that the information-sharing requirements under Sec.  1910.146 have 
proven to be either burdensome or unnecessary. . . . [Based on the 
record,] the provisions requiring information sharing between the 
entity that has the greatest familiarity with the worksite and 
contractors coming into the worksite for brief, discrete periods of 
times have proven to be effective means of assuring that employees 
can work safely in confined spaces without imposing notable burdens 
or liability on the host employers.

(220.2, pg. 13-14.) OSHA agrees with this comment. There are not many 
substantive differences between the new standard and the general 
industry standard, and employers have not raised significant obstacles 
to compliance with the general industry standard during the two decades 
following OSHA's promulgation of that standard. OSHA is confident that 
the new construction standard will also be workable.

Section 1926.1204--Permit-Required Confined Space Program

    The permit-required confined space program is a critical component 
of new subpart AA. Except for ventilation-only entries conducted in 
accordance with Sec.  1926.1203(e), the Agency requires each employer 
with employees who will enter a permit space to implement a written 
permit-space program that meets the requirements set out in this 
section (see final Sec.  1926.1203(d)). Final Sec.  1926.1204 is, 
therefore, specifically tailored to work activities conducted inside a 
space that meets the definition of a ``permit-required confined space'' 
(``permit space'') in final Sec.  1926.1202. Technically, final Sec.  
1926.1204 sets out information and actions that must be included in the 
permit program, and the requirement to implement these steps is in 
final Sec.  1926.1203(d), but employers should view Sec.  1926.1204 as 
the main set of requirements for protecting their employees when 
entering a permit space.
    In the preamble to the general industry confined spaces standard, 
the Agency observed that ``an employer who waits until the last minute 
before entry operations begin to develop a permit space program is 
unlikely to have properly trained and equipped personnel available'' 
(58 FR 4495 (Jan. 14, 1993)). Accordingly, OSHA designed final Sec.  
1926.1204, which is similar to Sec.  1910.146(d), to require entry 
employers to plan the entry, and to implement the entry in accordance 
with that plan, to avoid endangering employees during the entry.
    For the reasons identified in the Background section, above, OSHA 
is conforming the language of the permit-required confined space 
provisions in Sec.  1926.1204 of the final rule to the corresponding 
provisions for general industry confined spaces at Sec.  1910.146(d). 
The substance of this section generally is the same as the general 
industry standard. OSHA explains below the differences between the 
other paragraphs of the final rule and the general industry standard, 
and the significant differences between the final rule and similar 
provisions in the proposed rule. There is no discrete section of the 
proposed rule that corresponds directly to this section of the final 
rule, but OSHA also included most of the duties imposed by this final 
rule in the proposed rule. See, e.g., proposed Sec. Sec.  1926.1205 
(atmospheric monitoring and testing); 1926.1209(c) (limiting entry) and 
(f) (safe termination procedures); 1926.1210(f) (attendant required); 
1926.1210(j) (equipment); 1926.1212(a) (safe termination procedures); 
and 1926.1218 (equipment).
    One commenter noted that a particular provision in the proposed 
rule (Sec.  1926.1218(a)(4)) referred to ``confined space operations,'' 
and suggested OSHA change that reference to ``confined space entry 
operations'' (ID-025, p. 4). The regulatory text in Sec.  1910.146 
refers to both ``permit space operations'' (Sec.  1910.146(g)(2)(iii)) 
and ``permit space entry operations'' (Sec.  1910.146(d)(3)) [emphasis 
added]. In this final rule, OSHA changed all references to confined 
space operations and permit-space operations to confined space entry 
operations or permit-space entry operations to maintain consistency. 
The terms ``confined space entry operations'' or ``permit-space entry 
operations'' refer to both actual entry into a space, and any planning 
or preparation made for the entry (i.e., an employer can be engaged in 
``entry operations'' before actually entering a confined space).
    The introductory language in final Sec.  1926.1204 provides that 
the entry employer must perform the procedures set forth in that 
section. OSHA simplified the introductory language from the language in 
Sec.  1910.146(d), and edited the language to reflect this final 
standard's use of the term ``entry employer'' when discussing an 
employer who decides that employees it directs will enter a permit 
space. OSHA made this change to clarify which employers must comply 
with these procedures on a multi-employer worksite.
    Paragraph (a). Final Sec.  1926.1204(a), which is identical to 
Sec.  1910.146(d)(1), requires an employer to implement an effective 
means of preventing all unauthorized entry into a permit space. These 
measures are necessary to prevent unauthorized entry into PRCSs, and to 
protect employees from encountering PRCS hazards. Under the final rule, 
it is the entry employer's responsibility to ensure that all 
unauthorized persons stay out of the established permit space, 
regardless of who employs them. Any unauthorized employer who enters a 
permit space could pose a danger not only to themselves, but also to 
workers already inside the space. The entry employer's duty to prevent 
unauthorized entry also extends to the prevention of unintentional 
entry, such as a person falling into a space or accidently entering a 
permit space because of confusion about where an entrance to a space 
leads. The duty also extends to members of the public passing near the 
construction site (e.g., a sewer manhole) in order to protect the 
employees in the permit space.
    This final provision makes no substantive change from the proposed 
rule. Proposed Sec.  1926.1209(c)(1)(i) provided that employers use 
barriers or high-visibility physical restrictions, such as a high-
visibility warning lines, to prevent unauthorized entry into a space. 
One commenter asserted that circumstances arise that make it unsafe to 
use the physical restrictions specified in proposed Sec.  
1926.1209(c)(1)(i) (ID-104, p. 3). For example, when employees perform 
work to rehabilitate or install a protective coating in a sewer, the 
employer must use devices such as cables and hoses that run from a 
compressor to the airless spray pump, and then into the manhole to the 
spray gun, resulting in a tripping hazard that could cause someone to 
fall into the manhole. In such situations, this commenter suggested 
that OSHA require only that the employer post danger signs. OSHA 
expects that signs by themselves will generally be inadequate to 
prevent an inadvertent fall into a manhole. Even if the employer has 
full control of the entrance to the permit space to and can guard 
against members of the public who cannot see the signs or read them, 
there are too many activities on a typical construction site for an 
employer to ensure that workers would not be distracted and fail to see 
the sign or the manhole. Manholes, like other fall hazards at a typical 
worksite, must be

[[Page 25418]]

guarded in a manner that meets the requirements of this standard and 
the applicable specifications of 29 CFR part 1926, subpart G--Signs, 
Signals, and Barricades and subpart M--Fall Protection.
    Because OSHA is duplicating the general industry standard in this 
portion of the final rule, it does not specify the particular means of 
compliance. This approach provides employers with flexibility in 
complying with this provision by not limiting the measures required 
under this provision to physical restrictions only. The employers' 
means of preventing entry will be evaluated based on its effectiveness 
at accomplishing that task. The same explanation that OSHA provided for 
the general industry rule applies in the construction context as well:

[I]f the workplace is so configured as to prevent access of 
unauthorized entrants into areas containing permit spaces, training, 
alone or in combination with signs, may prevent the unauthorized 
access to the spaces. Otherwise, covers, guardrails, fences, or 
locks will be necessary. It is the employer[']s responsibility to 
use whatever measures are necessary to prevent unauthorized entry.

58 FR 4495.
    Paragraph (b). In final Sec.  1926.1203(a), OSHA requires employers 
to identify and evaluate the hazards of permit spaces that employees 
will enter. Final Sec.  1926.1204(b), which is identical to Sec.  
1910.146(d)(2), requires an employer that authorizes employees to enter 
a permit space to first conduct a thorough evaluation of that permit 
space to identify the presence and location of all hazards within the 
permit space. This hazard evaluation is necessary to ensure that the 
spaces are correctly assessed to make the permit-space program as 
effective in protecting employees as possible. This evaluation may be 
combined with the initial evaluation required by final Sec.  
1926.1203(a), or it may be conducted separately. OSHA anticipates that 
most employers who intend to enter a space will conduct a single 
evaluation that complies with the requirements of both Sec. Sec.  
1926.1203(a) and 1926.1204(b).
    Paragraph (c). Final Sec.  1926.1204(c), which is similar to Sec.  
1910.146(d)(3), requires an employer to develop procedures needed to 
facilitate safe entry operations into most permit spaces. The paragraph 
lists eight measures that employers must take. However, this list is 
not comprehensive: Some spaces may include unique hazards, locations, 
or configurations that require additional steps to ensure the safety of 
entrants. The subparagraphs in final Sec.  1926.1204(c) provide 
specific elements of these required procedures.
    Paragraph (c)(1). Final Sec.  1926.1204(c)(1), which is identical 
to Sec.  1910.146(d)(3)(i), requires an employer to identify the entry 
conditions that employers must meet to initiate and conduct the entry 
safely. For example, when an atmospheric hazard exists in the space and 
an employer must use personal protective equipment (PPE) to protect 
employees from the hazard, the employer must include in the acceptable 
entry conditions the type of PPE employees are to use (such as type of 
respirator) and the exposure levels at which the PPE would protect the 
employees from the atmospheric hazard. If the permit space contains 
physical hazards, the entry employer must ensure that the acceptable 
entry conditions include the methods used to protect employees from the 
physical hazards. If the employer does not satisfy the conditions 
specified in either example, or in any list of acceptable conditions, 
then the result is a prohibited condition, meaning that employees must 
not enter the space and must evacuate if they are already in the space.
    When determining the acceptable entry conditions, the employer must 
consider the work employees will perform and the hazards that may 
result from that work. For example, an employer that plans to weld 
inside a confined space must account for the hazard resulting from the 
welding fumes and gases when identifying acceptable entry conditions. 
As another example, an employer who plans to introduce gases into a 
space to inert potentially flammable gases must take into consideration 
the effect of the inerting gases on the atmosphere because that process 
will generally result in an IDLH atmosphere.
    Paragraph (c)(2). Final Sec.  1926.1204(c)(2), which is identical 
to Sec.  1910.146(d)(3)(ii), requires an employer to provide each 
authorized entrant or that employee's authorized representative an 
opportunity to observe any monitoring or testing performed in a permit 
space. Final Sec.  1926.1204(c)(2) does not require employees and their 
authorized representatives to observe the specified activities; 
however, it provides employees and their authorized representatives 
with the option to observe should they choose to do so. OSHA added this 
requirement to Sec.  1910.146 in 1998, along with several other 
employee participation requirements. The Agency explained that those 
requirements would ``function to provide a `check' on human error in 
those cases where monitoring was improperly performed, and the Agency 
pointed to data demonstrating that human error in monitoring of a 
hazardous atmosphere was a critical element in many deaths in confined 
spaces (63 FR 66032 (Dec. 1, 1998)). OSHA also noted that its record 
indicated that many entrants would not choose to request to observe the 
monitoring, but stated ``it is reasonable to assume that allowing 
authorized entrants or their designated representatives to observe the 
testing of spaces will prevent a substantial portion of the accidents 
attributed . . . to human error'' (id). OSHA believes that this will 
also be the case under the final rule.
    OSHA also believes that allowing employees and their authorized 
representatives to participate in this manner will contribute to the 
successful implementation of safe entry operations by enhancing their 
awareness of the hazards present in the confined space. Moreover, as 
OSHA noted when it added these observation requirements to the general 
industry standard, the employee participation requirements are 
consistent congressional intent and with a number of OSHA health 
standards that provide employees with the opportunity to participate 
actively in protecting their own safety and health and that of their 
co-workers (see discussion at 63 FR 66020-66021).
    Paragraph (c)(3). Final Sec.  1926.1204(c)(3), which is similar to 
Sec.  1910.146(d)(3)(iii), requires an employer to include measures in 
the permit program to isolate a permit space or, where applicable, a 
physical hazard within the permit space (such as isolating mechanical 
hazards through lock out). The general industry standard refers only to 
``isolating the permit space,'' while the new final rule also addresses 
isolating physical hazards within the permit space, such as by placing 
a physical barrier inside the permit space to eliminate the potential 
for employee contact with a physical hazard inside that space, for the 
reasons provided in the explanation of Sec.  1926.1203(e)(1)(i) and 
(g)(1). It is important to isolate the entrants from the hazards that 
may exist in the continuous space, or may enter into the continuous 
space and eventually migrate to engulf the entrants. For example, if an 
entry employer has not isolated a particular area of a continuous 
system such as sewer system, then the entire continuous system is a 
confined space. If any part of that system contains material that has 
the potential for engulfing an entrant then the entire system is a 
permit space.

[[Page 25419]]

    If an employer is able to isolate all of the physical hazards, then 
the employer might be able to reclassify the space as a non-permit 
space or enter under the alternative procedures in Sec.  1926.1203(e). 
However, employers may still choose to enter under a permit program or 
may be required to do so if, for example, they isolate a physical 
hazard but cannot control an atmospheric hazard and must enter using 
respirators. The requirement to include the isolation measures in the 
permit program is critical to employee safety in those situations, as 
well when the employer is relying on isolation to prevent hazards from 
entering a space. Requiring the listing of the isolation method as part 
of the permit program is also useful to remind employers that if they 
are relying on the isolation to enter a confined space under the 
alternative procedures in Sec.  1926.1203(e) or the reclassification 
under Sec.  1926.1203(g), they must maintain that isolation or the 
permit program requirements will apply immediately.
    If the employer is using isolation to protect the employees during 
the entry, then paragraph (c)(3) requires that the program include a 
method to ensure that the hazards remain isolated for the duration of 
the entry. Isolation methods provide the highest degree of assurance 
that the hazard will be kept away from the employees in the space, 
because isolation does not generally depend on the continued, proper 
operation of machinery (such as ventilation equipment) or PPE (such as 
respirators). If the space is such that the employer can demonstrate 
that it is infeasible to isolate the hazards, the employer need not 
include isolation measures in the permit program, but must eliminate or 
control the hazards in accordance with final Sec.  1926.1204(c)(4) and 
Sec.  1926.1204(e) (see final Sec.  1926.1204(e)(1)). If the employer 
cannot maintain isolation or control the hazards, then the employer 
must terminate entry operations immediately.
    Three commenters provided examples of how they believed it was 
possible to isolate portions of a confined space from other portions of 
the space. The first commenter addressed a scenario in which the 
employer is applying a protective coating to a sewer (ID-104, pp. 2-3). 
The commenter, an association representing members who apply protective 
coatings in sewers, asserted that the employer can isolate the permit 
space from the other sections of the sewer by running a bypass line 
upstream with pneumatic pipe plugs installed that provide a tight seal 
to prevent passage of air and liquids.
    The second commenter, an association representing utility 
contractors who work regularly in sewers, noted that employers can 
sometimes block the flow of effluent into one part of a sewer system 
from a larger confined space by using pipe plugs upstream from where 
employers will conduct the work (ID-210, Tr. p. 187). In some cases, 
employers also use plugs to block off a portion of the sewer downstream 
from where an employer will conduct the work, and then purge and clean 
the workspace in between the plugs (ID-210, Tr. p. 188). In either 
scenario, the commenter stated that an employer can block the flow of 
air and effluent through the line by properly fitting pipe plugs to a 
pipe, pressurizing them with a few pounds of air, and either blocking 
in the plugs so they cannot fall out or using a ``double plug'' system 
(inserting two plugs into the same pipe ``so if one slips you will have 
a backup'') (ID-210, Tr. pp. 187, 189, and 199). The commenter 
acknowledged that there had been ``failures'' where the plugs exploded 
or did not function correctly and ``killed and injured workers,'' but 
characterized such incidents as occurring ``rarely'' and only as a 
result of incorrect installation or procedures (ID-210, Tr. p. 208). 
The commenter agreed that the proper procedures would normally include 
installing a bypass line upstream of the pipe plug to redirect any 
effluent and ensure that pressure does not build behind the pipe plug 
(ID-210, Tr. p. 208).
    A third commenter, a different sewer-services association, also 
agreed that, in many cases, employers can use pipe plugs along with 
bypass lines and ``gate valves'' to prevent effluents from entering a 
section of a sewer system, but indicated that employers rarely use pipe 
plugs on pipes greater than 10 inches in diameter for significant 
periods of time (ID-211, Tr. p. 156).\18\
---------------------------------------------------------------------------

    \18\ The same commenter also stated that most sewer manholes do 
not present an engulfment hazard because ``80 to 85 percent of all 
of the sewer manholes have pipe diameters of eight and ten inches or 
smaller entering them,'' and that it would take hours for engulfment 
to occur under these conditions because the Environmental Protection 
Agency engineering standards ``require that those pipes be sized to 
flow at 50 percent of maximum capacity during high flow periods'' 
(ID-211, Tr. p. 156). OSHA does not agree that limiting flow rate 
and capacity will eliminate the engulfment hazard; the engulfment 
would just take longer. These conditions do not isolate or eliminate 
the hazard, and the effluent could engulf or drown an employee who 
is unconscious or otherwise unable to leave the space before it 
fills the manhole, particularly if the employee is not able to keep 
his or her head above the floor. Therefore, the full permit-program 
protections in Sec.  1926.1204 apply under these conditions unless 
the employer isolates or eliminates the hazard. However, if an 
employer can demonstrate that it can limit the rate and capacity of 
the flow, the employer could factor the potential time for 
engulfment or drowning resulting from this procedure into 
determining the type and location of an early-warning system that 
would provide adequate time for employees to exit a space.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \19\ OSHA is leaving open the possibility that an employer could 
demonstrate that using pipe plugs in conjunction with bypass systems 
is an effective means of isolating a permit-required workspace from 
a continuous system. To do so, the employer must ensure that the 
procedure is appropriate for the conditions and use properly 
installed pipe plugs in conjunction with a bypass system to 
effectively isolate a workspace in a sewer system. Accordingly, the 
employer must ensure that the procedure isolates the workspace in 
fact from any engulfment hazard; OSHA would not view failure of the 
pipe plug or bypass system as an unforeseeable outcome. One of the 
commenters recommended using continuous air monitoring even if the 
space appears to be isolated (ID-210; Tr. pg. 202 (Kennedy)). OSHA 
agrees, and recommends that employers use continuous air monitoring 
under these conditions to provide early detection of any problems 
with the seal of the pipe plug.
---------------------------------------------------------------------------

    Paragraph (c)(4). Final Sec.  1926.1204(c)(4), which is identical 
to Sec.  1910.146(d)(3)(iv), applies to permit spaces with hazardous 
atmospheres and requires an employer to purge, inert, flush, or 
ventilate the permit space to eliminate or control the hazardous 
atmosphere before entry. The purpose of

[[Page 25420]]

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\
---------------------------------------------------------------------------

    \20\ This approach is consistent with longstanding industry 
safety practice and OSHA policy. Under its ``hierarchy of controls'' 
policy reflected in a number of standards, OSHA only allows 
employers to rely on respirators or other PPE to the extent that 
engineering controls to eliminate the hazard are not feasible. See, 
e.g., Sec. Sec.  1910.134(a) (respiratory protection) and 1926.103 
(respiratory protection); 1910.1000(e) (air contaminants); 
1910.95(b) (occupational noise exposure) and 1926.101 (hearing 
protection).
---------------------------------------------------------------------------

    In Sec.  1926.1204(c), OSHA requires these means of reducing 
exposure levels--purging, inerting, flushing, or ventilating--``as 
necessary'' to eliminate or control atmospheric hazards. With respect 
to the actions in paragraph (c)(4), ``as necessary'' means that an 
employer must take at least one of these actions if the permit space 
has a hazardous atmosphere. The only permit spaces where these actions 
are not necessary are those in which the space does not have a 
hazardous atmosphere, as defined in Sec.  1926.1201, but is designated 
as a permit space because it contains another hazard, such as an 
engulfment hazard, inwardly converging walls, or other recognized 
serious safety or health hazard.
    The means used to reduce risk must be appropriate to the 
characteristics of the hazardous atmosphere and it must also 
``eliminate or control'' the hazard to produce ``safe permit space 
entry operations (Sec.  1926.1204(c)). For example, inerting a space 
that already has an oxygen-deficient atmosphere would be an 
inappropriate action, whereas ventilating with additional outside air 
would help to increase oxygen levels.
    The Agency notes that it previously issued letters responding to 
questions about the conditions under which the general industry 
standard permitted employers to work in a space with flammable gas in 
concentrations greater than 10 percent of the LFL. See August 15, 1996, 
letter to Larry Brown, and September 4, 1996, letter to Macon Jones. 
OSHA subsequently clarified its position on those issues in a 2011 
response to the U.S. Chemical Safety and Hazard Investigation Board, 
stating that the general industry standard ``prohibits entry into 
atmospheres greater than 10 percent of the [LFL], unless the flammable/
explosive hazard has been controlled through inerting of the space to 
reduce the oxygen content below that needed to support combustion.'' 
(ID-223, p.3).
    OSHA takes the same approach with respect to this construction 
standard. While employers may use a variety of means to reduce the LFL 
to 10 percent or below, thus avoiding an LFL hazardous atmosphere as 
defined in Sec.  1926.1202, OSHA reiterates that this new final rule 
for confined spaces in construction prohibits employees from working in 
any atmosphere above 10 percent LFL except when the employer 
successfully inerts the space so as to effectively remove the hazard of 
an explosion. See discussion of paragraph (1) of the definition of 
``hazardous atmosphere'' in Sec.  1926.1202 of this final rule. Even 
when the space is successfully inerted, an oxygen-deficient atmosphere 
generally results such that employers must prohibit entry unless they 
provide appropriate PPE or other equipment that is capable of 
protecting the employee from the oxygen-deficient atmosphere. See 
definition of ``prohibited condition'' in final Sec.  1926.1202 and 
Sec.  1926.1204(c)(7). As of the promulgation date of this final rule, 
OSHA is unaware of PPE that could provide sufficient protection to an 
employee from an explosion involving a flammable atmosphere. OSHA notes 
that some practices such as the use of static electricity capture, non-
static footwear, non-sparking tools, explosion-proof lighting, a 
nitrogen blanket, or misting may reduce the likelihood of igniting an 
explosion, but none of these practices would eliminate the possibility 
of ignition. Another example of a practice that would not provide 
protection from a spark, fire, or explosion in an LFL atmosphere is 
using fire watch personnel who have the responsibility of looking for a 
spark, fire, or explosion and then responding under emergency 
procedures. It is unlikely that fire watch personnel could react 
quickly enough to ensure that employees would not be exposed to an 
explosion. Therefore, the employer must not rely on these methods in a 
permit program to protect employees working in a hazardous atmosphere 
in excess of 10 percent LFL. A permit program must identify the means 
of reducing the atmosphere to or below the 10 percent LFL or provide 
for inerting and all necessary PPE. OSHA added a note to Sec.  
1926.1204(c)(4) to make explicit the requirement for an employer to 
inert a space and provide appropriate PPE if employees will work in a 
space where less than 10 percent LFL cannot be achieved.
    Paragraph (c)(5). Final Sec.  1926.1204(c)(5) requires an employer 
to determine that monitoring devices will detect an increased 
atmospheric hazard level in the event that the ventilation system 
malfunctions, and to do so in adequate time for employees to safely 
exit the space. This requirement is from proposed Sec.  1926.1208(b). 
There is no corresponding provision specified in Sec.  1910.146 that 
mirrors final Sec.  1926.1204(c)(5) with respect to the use of 
ventilation to control atmospheric hazards as part of a permit program; 
however, the preamble to the alternative ``ventilation only'' 
procedures in Sec.  1910.146(c)(5)(i)(B) noted a similar requirement as 
a condition of using the ``ventilation only'' approach instead of the 
full permit program requirements:

    In order for the space to be considered safe, the atmosphere 
within the space after ventilation may not be expected to approach a 
hazardous atmosphere. This is necessary so that, if the ventilation 
shuts down for any reason (such as loss of power), the employees 
will have enough time to recognize the hazard and either exit the 
space or restore the ventilation.

58 FR 4488. OSHA is including that requirement in the final rule as a 
condition of the ``ventilation only'' alternative procedures in final 
Sec.  1926.1203(e), and OSHA is applying the same requirement to the 
use of ventilation to control atmospheric hazards under a full permit 
program because the atmospheric hazards that could be present in a PRCS 
are the same as the atmospheric hazards present in a final Sec.  
1926.1203(e) alternate-procedures space. Therefore, the need to plan 
for ventilation failure is the same: employers must have a system in 
place that quickly detects an increased atmospheric hazard in the event 
that the ventilation system stops so that employees can escape safely 
whether the entry is conducted under the permit program requirements of 
Sec.  1926.1204 or the alternative ``ventilation only'' procedure 
allowed by Sec.  1926.1203(e). As with the general industry standard 
(see explanation of Sec.  1910.146(c)(5)(i)(B) above), compliance with 
this requirement means that employers must ensure that the mechanical 
ventilation will control the atmospheric hazards at levels that are 
below the levels at which they are harmful to entrants so that if the 
ventilation fails (for example, because of a loss of power) the 
employees will have sufficient time to escape without exposure between 
detection of an increase in atmospheric level and exit.

[[Page 25421]]

    Proposed Sec.  1926.1208(b)(2) contained provisions similar to 
those in final Sec.  1926.1204(c)(5). One commenter requested that OSHA 
provide more detail as to how an employer can comply with this 
requirement, suggesting that employers take into consideration ``levels 
of detection by the monitoring system'' and ``increases in atmospheric 
hazards as workers are evacuating'' (ID-140, p. 5 (labeled p. 4)). The 
provision is performance-based, which allows each employer the 
flexibility to determine how it will use monitoring to comply with the 
requirement. As OSHA stated in the preamble to the proposed rule, 
monitoring is the primary method for detecting an increase in 
atmospheric hazard levels. OSHA therefore requires monitoring under 
this final standard to detect ventilation system failure. In addition, 
employers should be aware of other indicators of increasing atmospheric 
hazard levels, in addition to monitoring, that may be useful in 
supplementing monitoring to provide faster detection of ventilation 
failures, including changes in noise levels, air flow, or pressure, as 
well as signs, symptoms, and characteristic effects of exposure to the 
atmospheric hazard (72 FR 67365 (Nov. 28, 2007)).
    Paragraph (c)(6). Final Sec.  1926.1204(c)(6), which is identical 
to Sec.  1910.146(d)(3)(v), requires an employer to provide entrants 
protection against external hazards. This requirement is in addition to 
the provision in paragraph (c)(2) of this section that an employer must 
provide barriers as necessary to prevent unauthorized entry. This 
requirement will protect employees in and around the PRCS, such as 
attendants, or employees entering or exiting the permit space, from 
being struck by individuals or objects outside the PRCS that may fall 
into the space, or that could injure the employees when they are near 
the PRCS. In some scenarios, employers must use guardrails, covers, 
signs, barricades, or other protective measures to achieve this 
purpose. Each of these measures must comply with the applicable 
specifications of 29 CFR part 1926, subpart G--Signs, Signals, and 
Barricades) and subpart M--Fall Protection.\21\ For example, as stated 
in the preamble for the general industry rule, ``If entrants face a 
substantial risk of injury due to unauthorized entry, due to objects 
falling into the space, or due to vehicular hazards during entry into 
and exit from the space, then barriers would be required'' (58 FR 
4997).
---------------------------------------------------------------------------

    \21\ All additional requirements of subparts G and M remain in 
effect.
---------------------------------------------------------------------------

    Paragraph (c)(7). Final Sec.  1926.1204(c)(7), the first clause of 
which is identical to Sec.  1910.146(d)(3)(vi), requires an employer to 
ensure that conditions remain acceptable for entry for the full 
duration of an authorized entry. The employer will often discharge this 
duty by complying with the entry-supervisor provisions in Sec.  
1926.1210(c) of this final rule. By requiring the employer to have an 
individual on site with this authority, there is a greater likelihood 
that the employer will conduct the required monitoring and adhere to 
the acceptable entry conditions, which is critical to the successful 
implementation of safe PRCS procedures.
    OSHA also added a clarification in paragraph (c)(7) allowing 
employees to work in a permit space that contains a hazardous 
atmosphere, but only if: (1) ventilating or other measures prescribed 
in Sec.  1926.1204(c)(4) will not reduce the hazardous atmosphere 
sufficiently to allow employees to work safely within the permit-space; 
(2) the employer can demonstrate that use of PPE will protect the 
employees from that atmosphere; and (3) the employer ensures that the 
entrants use the PPE correctly. Otherwise, the entry employer must 
prohibit entry, or ensure that authorized entrants exit the space 
immediately, whenever the atmosphere inside the space meets the 
definition of a ``hazardous atmosphere'' specified in final Sec.  
1926.1202. These provisions are implicit in the general industry 
standard, but OSHA made them explicit here to avoid any suggestion that 
an employer could specify an ``acceptable'' condition that would 
include a hazardous atmosphere, absent adequate PPE.
    For example, if the employer plans to have employees in a portion 
of a storm sewer with an oxygen-deficient atmosphere, and it is not 
feasible to address the oxygen deficiency through measures prescribed 
in Sec.  1926.1204(c)(4), then the employer may allow employees to 
enter with closed-circuit respirators that would protect the employees 
from the oxygen-deficiency hazard. If, however, the employer is unable 
to protect employees from these hazards using any of these methods, 
then it must prevent the employees from entering the space. Likewise, 
if a confined space contains a flammable atmosphere exceeding 10 
percent, of the LFL, and the employer cannot feasibly reduce this level 
to the non-hazardous level (10 percent or below), then the employer 
must inert the atmosphere to address potential explosion hazards (and 
use supplied-atmosphere respirators to protect the employees from the 
oxygen-deficiency hazard), or terminate entry. See also the previous 
discussion of final Sec.  1926.1204(c)(4).
    Paragraph (c)(8). Final Sec.  1926.1204(c)(8) requires an employer, 
before removing an entrance cover, to eliminate conditions that could 
make it unsafe to remove the cover. Some examples of such conditions 
are when the cover is under pressure or when the cover is preventing 
exposure to an ignition source near a hazardous atmosphere. There is no 
corresponding general industry provision that has requirements similar 
to final Sec.  1926.1204(c)(8); it is drawn from the requirements in 
proposed Sec. Sec.  1926.1210(b), 1926.1216(c) and 1926.1217(c).
    As OSHA explained in the preamble to the proposed rule, conditions 
such as heat and pressure within the PRCS may pose a danger to 
employees removing an entrance cover. In such cases, the cover may be 
blown off in the process of removal, or superheated steam may suddenly 
escape and burn the employee. Another example involves removal of a 
sealed cover that results in the release of toxic gases (72 FR 67368).
    To protect employees from the hazards inside the PRCS as required 
by this provision, the employer must make a hazard assessment before 
removing any cover. Accordingly, the provision does not permit removal 
of the cover to the PRCS until the employer identifies all hazardous 
conditions related to the cover's removal, and then eliminates those 
hazards.
    One commenter recommended that OSHA refer to any ``hazardous'' 
condition, rather than just a ``condition,'' that could make it unsafe 
to remove the cover, and include language in the text of the final rule 
to address rescue personnel confronted with an entrance cover that is 
unsafe to open (ID-086, pp. 5-6). OSHA disagrees that adding the word 
``hazardous'' to the provision would be helpful because the sentence 
already is clear that the condition at issue is such that removing the 
cover could be unsafe. The provisions of Sec.  1926.1204 do not require 
entry employers to address in their permit programs the hazards that 
rescue personnel may face during rescue, nor do these provisions 
require the rescuers to develop separate written permit programs for 
rescue. However, Sec.  1926.1211(b) requires that rescuers be informed 
of, and trained to recognize, hazards such as entry covers that would 
be unsafe to open and might affect the

[[Page 25422]]

ability of the rescuers to perform rescues safely.
    Paragraph (d). Final Sec.  1926.1204(d), which is similar to Sec.  
1910.146(d)(4), requires each employer to provide all equipment used 
for confined-space operations at no cost to employees, maintain the 
equipment, and ensure that employees use the equipment correctly. OSHA 
believes that providing such equipment, and using it correctly, will 
prevent injuries and fatalities in permit spaces. Accordingly, the 
purpose of this paragraph is to ensure the availability and proper use 
of whatever equipment is necessary to reduce the dangers to employees 
posed by permit spaces.
    In proposed Sec.  1926.1218, OSHA required employers to provide 
several specific categories of equipment and included a catch-all ``any 
other equipment necessary for safe confined space operations.'' One 
commenter suggested that OSHA clarify that the employer must provide 
this equipment to employees at no cost (ID-211, Tr. p. 46). The Sec.  
1910.146(d)(4) language OSHA is adopting for this final rule specifies 
that employers must provide this equipment at no cost to employees. 
Final Sec.  1926.1204(d) varies from the language of the general 
industry standard only in that it specifies that the employer must 
provide the listed equipment to ``each employee,'' whereas Sec.  
1910.146(d)(4) refers generally to ``employees.'' Accordingly, in 
appropriate cases, if an employer fails to provide the necessary 
equipment as required, OSHA may issue separate citations with respect 
to each individual employee not provided with the proper equipment.
    Paragraph (d)(1). Final Sec.  1926.1204(d)(1), which is identical 
to Sec.  1910.146(d)(4)(i), requires an employer to provide necessary 
equipment for conducting adequate testing and monitoring. This 
equipment is essential for protecting employees from atmospheric 
hazards.
    Section 1926.1204(a)(4) of the NPRM proposed requiring employers to 
use a direct-reading instrument to perform required testing or 
monitoring. One commenter asserted that direct-reading instruments are 
not available for ``airborne lead dust'' or ``paint that has a 
multitude of solvents in the formula'' (ID-077, p. 1). Another 
commenter asserted that the final rule should permit alternatives to 
direct-reading instruments when such instruments are not available (ID-
025, p. 3). Final Sec.  1926.1204(d)(1) requires an employer to test or 
monitor for atmospheric hazards that exceed PELs set to protect against 
immediate injury or illness, which is not the case with lead.\22\ 
Furthermore, OSHA disagrees with the other commenters' premise that 
direct-reading instruments would be unavailable to detect solvents. It 
is the employer's responsibility to ensure that such equipment is 
available in spaces where the final rule requires such monitoring, and 
the commenter did not indicate that is infeasible to do so. For 
example, employers can use photoionization detectors for detecting 
solvents.
---------------------------------------------------------------------------

    \22\ OSHA includes identification requirements in many of its 
hazard-specific standards, and employers working in a confined space 
must still comply with those requirements absent a specific 
exception, but those requirements are separate from this confined-
space standard and are not subject to change as part of this 
rulemaking.
---------------------------------------------------------------------------

    Another commenter suggested that OSHA should require equipment 
calibration daily to avoid equipment malfunction (ID-025, p. 4). OSHA 
is not making this change because the provision as written in this 
final standard provides employers with flexibility in complying with 
the requirements to maintain testing and monitoring equipment, and to 
use it properly. For example, the employer can follow the 
manufacturer's instructions, or the recommendations of a qualified 
person, regarding the frequency of equipment calibration. The 
manufacturers' instructions are sufficient for this purpose because 
equipment manufacturers are most familiar with the components, 
configuration, and safe and healthful operation of their equipment; 
this information places them in the best position to specify the proper 
maintenance, calibration, and use of this equipment under these 
circumstances. Alternatively, an individual who meets the definition of 
a qualified person in final Sec.  1926.1202 would have, through a 
recognized degree or professional standing or through extensive 
knowledge, the demonstrated ability necessary to make decisions that 
will ensure the proper maintenance, calibration, and use of equipment 
used in confined spaces.
    Another commenter suggested that OSHA should provide a specific 
calibration standard because manufacturers are starting to distinguish 
between various types of calibrations, such as ``bump calibration'' and 
``field calibration'' (ID-028, p. 6). OSHA is not adopting this 
commenter's suggestion because developing a calibration standard is 
beyond the scope of this rulemaking.
    Paragraph (d)(2). Final Sec.  1926.1204(d)(2), which is identical 
to Sec.  1910.146(d)(4)(ii), requires an employer to provide 
ventilating equipment necessary to establish acceptable entry 
conditions. For example, the employer must provide forced-air 
mechanical-ventilation equipment when using such equipment to establish 
acceptable entry conditions for entry operations under final Sec.  
1926.1204. Use of the required equipment when appropriate is a 
significant factor in protecting the employees from hazardous 
atmospheres.
    Paragraph (d)(3). Final Sec.  1926.1204(d)(3), which is 
substantively identical to Sec.  1910.146(d)(4)(iii), requires an 
employer to provide all communications equipment necessary to ensure 
that an attendant can communicate effectively with entrants in 
accordance with Sec. Sec.  1926.1208(c) and 1209(e). Not all spaces 
require equipment for effective communication between the attendant and 
entrants, but the employer must provide it when necessary. Such 
equipment may be necessary, for example, if the entrants cannot hear an 
attendant because the permit space is sealed off.
    Another example where the employer must provide such equipment is 
when an attendant needs audio-visual equipment to perform his or her 
duties under the final confined spaces in construction rule for more 
than one permit space at a time. Examples of such equipment include 
electronic audio and video tools that enable the attendant to detect 
what is occurring inside the multiple PRCSs without the attendant 
having to, simultaneously, be physically present at each PRCS entrance. 
If an employer chooses to require an attendant to assess entrants' 
status in multiple PRCSs, the employer must provide all of the 
equipment necessary for the attendant to fulfill the required duties. 
OSHA believes that expecting an attendant to be able to adequately 
perform these duties without the equipment necessary to accomplish the 
attendant's duties under this final rule will jeopardize the health and 
safety of the entrants.
    There is no provision in Sec.  1910.146 or the proposed rule that 
explicitly requires electronic communication while attending multiple 
permit spaces, but that standard implies that such communication is 
necessary for the attendant to fulfill the required duties. In the 
proposed rule, OSHA requested comments on the means, other than 
electronic equipment, for an attendant to adequately assess entrants' 
status in multiple PRCSs. Both of the commenters who addressed this 
issue agreed that electronic equipment, either wireless or hard-wire, 
is the only means

[[Page 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 Sec.  
1926.1204(d)(3) requires the employer to ensure each attendant uses 
electronic equipment as necessary when attending to multiple PRCSs that 
are not immediately adjacent to each other. This result also is 
consistent with final Sec.  1926.1209--Attendant Duties.
    Several commenters expressed concern that communications equipment 
would unnecessarily occupy limited room in a confined space when either 
spoken communication or line-of-sight communication would suffice (ID-
033, p. 3; -061, p. 4; -077, p. 1; -101, p. 2). These comments ignore 
the premise of the requirement: final Sec.  1926.1204(d)(3) explicitly 
states that the duty to provide communications equipment arises only 
when such equipment is necessary, which means that the employer must 
provide communications equipment only when verbal communication or 
line-of-sight communication are ineffective.
    Another commenter asserted that radio communication is not always 
reliable (ID-094; p. 1). As OSHA stated in the preamble discussion of 
proposed rule Sec.  1926.1210(j)(1), such equipment may consist of a 
variety of types (for example, cell phones, two-way hand-held radios), 
so long as it is effective (72 FR 67370 (Nov. 28, 2007)). If there is 
weak or unpredictable signal strength when using the device, the device 
would not comply with final Sec.  1926.1204(d)(3) and the employer must 
remove the entrants until the attendant is situated to perform the 
required duties effectively. Effective, reliable communication 
equipment is essential in relaying information to attendants, entry 
supervisors, and other authorities regarding potentially dangerous 
changes in the PRCS conditions. Such information is critical to assess 
the hazards within the space and to provide information regarding 
methods appropriate for protecting or removing employees from those 
hazards.
    Paragraph (d)(4). Final Sec.  1926.1204(d)(4), which is identical 
to the general industry standard at Sec.  1910.146(d)(4)(iv), requires 
an employer to provide PPE when feasible engineering and work-practice 
controls do not adequately protect employees. The employer must provide 
this equipment at no cost to the employees. When the employer uses 
equipment that is subject to an OSHA requirement, such as respirators 
or ear plugs, the employer must ensure that the equipment and its use 
comply with the applicable OSHA requirements. For example, failure to 
use the appropriate filters in a respirator can render its use 
ineffective, and would be a violation of the respiratory protection 
standard (Sec.  1926.103). The Note to paragraph (d)(4), which is not 
in the general industry standard, clarifies this point with respect to 
respirators because they are commonly used in confined spaces. OSHA 
believes that providing, using, and maintaining the appropriate PPE in 
accordance with OSHA requirements that address the identified hazard 
will protect employees from serious injury or death. However, as noted 
in the discussions of Sec.  1926.1204(c)(4) and (c)(7) above, PPE 
cannot provide protection against some hazards such as explosions.
    Paragraph (d)(5). Final Sec.  1926.1204(d)(5), which is similar to 
Sec.  1910.146(d)(4)(v), requires an employer to provide lighting 
equipment that complies with the illumination standard (29 CFR 1926.56) 
and is sufficient to allow employees to work safely and exit the space 
quickly in an emergency. The corresponding provision in Sec.  
1910.146(d)(4)(v) does not explicitly note that lighting equipment must 
meet other applicable OSHA standards; however, proposed rule Sec.  
1926.1210(j)(2) explicitly noted this requirement, and OSHA concludes 
that it is appropriate to include this clarification in the rule text. 
At least one commenter indicated that OSHA should explicitly cross-
reference the applicable illumination standard (ID-011, p. 1), and OSHA 
did so here. OSHA also added language requiring approval of the 
lighting equipment for the ignitable or combustible properties of the 
specific, gases, vapors, dusts, or fibers present in the PRCS. OSHA 
took this additional language from the hazardous location requirements 
for the electrical equipment standard Sec.  1926.407(b)(2)(i); a note 
to Sec.  1926.407(b)(2)(i) references NFPA 70, the National Electric 
Code, which lists hazardous gases, vapors, and dusts by groups 
characterized by their ignitable or combustible properties. The 
additional language ensures that employees will use safe lighting 
equipment and wiring methods under the particular hazardous conditions 
present. This additional language does not increase employers' 
responsibilities under this final rule because the language merely 
reminds employers of an existing obligation they have under Sec.  
1926.407 when using lighting equipment under the specified conditions. 
As noted above, employers engaged in work covered by this standard must 
also comply with all other OSHA requirements unless specifically 
excluded.
    OSHA believes that final paragraph (d)(5) will assist employees in 
conducting safe PRCS operations, including safe escape from a PRCS if 
necessary. OSHA notes that the provision would require an employer to 
provide lighting equipment that allows an employee to quickly exit a 
PRCS in the event of an emergency: For example, the loss of the primary 
power source. In this example, there are at least two ways in which an 
employer could fulfill this duty: (1) The employer can provide a 
reliable back-up power supply, or (2) the employer can provide 
employees with adequate flashlights, headlights, or similar hand-held 
lighting equipment. Providing adequate illumination for employees to 
exit quickly from a PRCS during such an emergency will enable employees 
to safely escape from a hazardous condition.
    Paragraph (d)(6). Final Sec.  1926.1204(d)(6), which is 
substantively identical to Sec.  1910.146(d)(4)(vi), requires an 
employer to provide barriers and shields when required by this standard 
(see Sec.  1926.1204(c)(6)). OSHA believes that this proposed 
requirement is necessary to keep unauthorized employees from entering 
the PRCS and to help protect employees inside the PRCS from being 
struck by objects and individuals falling into PRCSs. When providing 
this equipment, employers must ensure that it complies with other 
applicable OSHA requirements. For example, guardrails must meet the 
requirements of 29 CFR 1926.502(b) (Guardrail systems), and covers must 
conform to 29 CFR 1926.502(i) (Covers).
    Paragraph (d)(7). Final Sec.  1926.1204(d)(7), which is identical 
to Sec.  1910.146(d)(4)(vii), requires an employer to provide equipment 
that facilitates safe entry to, and exit from, a PRCS. In doing so, 
employers must ensure that this equipment, including its use by 
employees, complies with the requirements of the applicable OSHA 
requirements (for example, 29 CFR part 1926, subpart X, for ladders and 
stairways, and 29 CFR part 1926, subpart L, for scaffolds). This 
equipment is critical under emergency-exit conditions to ensure that 
employees exit a PRCS in a timely and safe manner.

[[Page 25424]]

    Paragraph (d)(8). Final Sec.  1926.1204(d)(8), which is identical 
to Sec.  1910.146(d)(4)(viii), requires an employer to provide rescue 
and emergency equipment as needed. Final Sec.  1926.1204(d)(8) ensures 
that the proper equipment is available for rescuing authorized entrants 
in the event of an emergency in a PRCS, whether it is the employer's 
equipment or equipment belonging to a rescue service.
    Paragraph (d)(9). Final Sec.  1926.1204(d)(9), which is similar to 
Sec.  1910.146(d)(4)(ix), requires an employer to provide any other 
equipment needed to safely enter or exit the permit space or to perform 
permit-space rescue. OSHA recognizes that there is a wide variety of 
permit spaces, and believes that the requirement to provide all 
additional equipment necessary to perform permit-space entry and exit 
ensures that the appropriate equipment is available at the job site so 
employees receive adequate protection from hazards present during 
permit-space operations. Similarly, OSHA believes the requirement to 
provide additional rescue equipment as needed addresses hazards that 
may be unique to a PRCS rescue, thereby ensuring that employees receive 
adequate protection from these hazards under emergency conditions. 
Accordingly, the employer must identify this additional equipment, if 
any, after conducting an assessment of the PRCS as required by the 
applicable sections of this final rule.
    Proposed Sec.  1926.1218(a)(4) specified that an employer provide 
any other equipment necessary for safe ``confined space operations.'' 
For consistency, a commenter suggested replacing the term ``confined 
space operations'' with ``confined space entry,'' which OSHA used 
frequently in the proposed rule (ID-025, p. 4). In response to this 
comment, OSHA adopted in final Sec.  1926.1204(d)(9) the corresponding 
language in Sec.  1910.146(d)(4)(ix), which uses the term ``entry.'' 
OSHA added the phrase ``safe exit from'' to this final provision to 
clarify that employers must provide equipment needed for employee 
safety during the entire period they are involved in confined space 
operations, which includes ensuring that employees can exit safely from 
the space.
    Paragraph (e). Final Sec.  1926.1204(e), is similar to Sec.  
1910.146(d)(5), but includes language from proposed Sec.  1926.1215--
Continuous system permit spaces, as well as editorial revisions to the 
introductory text.
    Paragraph (e)(1). Final Sec.  1926.1204(e)(1) requires an employer 
to test the permit space for acceptable entry conditions. Information 
obtained from testing is vital to the identification of atmospheric 
hazards in the space. In instances when the permit space is fixed or 
isolated, the testing will be straightforward. Final Sec.  
1926.1204(e)(1), however, also acknowledges that accurately testing the 
full extent of a permit space, or even a workspace within a larger 
permit space, may be infeasible because the PRCS is large or is part of 
a continuous system. The size of the space could limit the value of the 
initial testing of entry conditions because the conditions in the work 
space could be affected by substances in the connected spaces and, 
therefore, subject to change. In such cases, employers must comply with 
the additional procedures in final Sec.  1926.1204(e)(1)(i)-(iii), 
which include pre-entry testing to the extent feasible, continuous 
monitoring if such monitoring is commercially available, and an early 
warning system that monitors continuously for non-isolated engulfment 
hazards.
    Final Sec.  1926.1204(e)(1) is similar to the corresponding 
provision for general industry confined spaces at Sec.  
1910.146(d)(5)(i), with three exceptions. First, OSHA reorganized the 
two requirements in Sec.  1910.146(d)(5)(i), pre-entry testing followed 
by continuous monitoring, into separate paragraphs in final Sec.  
1926.1204(e)(1)(i)-(ii). Second, OSHA also added the requirement for 
employers to provide an early warning system in final Sec.  
1926.1204(e)(1)(iii). OSHA separated the two paragraphs to emphasize 
that an employer performing confined-space operations under final Sec.  
1926.1204(e)(1) may be performing work under a special set of 
conditions in a portion of a large space a continuous system. As such, 
the employer must comply with the special procedures in Sec.  
1926.1204(e)(1)(i) through (iii) (testing, continuous monitoring, and 
an early warning system), as well as paragraphs (e)(2) through (6), to 
account for migrating hazards. One example of this type of confined 
space is a sewer in which a storm or other activity at another location 
could send water or hazardous materials into the space in the sewer 
where employees are working.
    Third, OSHA added language clarifying that it is the employer's 
responsibility to demonstrate that isolation of the space is 
infeasible. This requirement is implicit in Sec.  1910.146(d)(5)(i), so 
OSHA added this language to make the requirement explicit and clarify 
that an employer who determines that isolation of a space is infeasible 
is most able to provide information that supports this decision.
    Paragraph (e)(1)(i). Final Sec.  1926.1204(e)(1)(i) requires an 
employer to test to ensure that acceptable entry conditions exist 
immediately before entry occurs. The testing must occur ``to the extent 
feasible,'' meaning that even if the employer makes a determination 
that it is infeasible to isolate the space and the test results may not 
accurately reflect all potential hazards in the space, that employer 
still has a responsibility to perform normal testing in the workspace 
prior to entry to ensure that a hazardous atmosphere does not already 
exist in that workspace.
    Paragraph (e)(1)(ii). Final Sec.  1926.1204(e)(1)(ii) requires an 
employer to continuously monitor a non-isolated permit space unless the 
employer can demonstrate that the equipment needed for continuous 
monitoring is not available commercially. Note that this requirement is 
different than the monitoring requirement for isolated spaces in Sec.  
1926.1204(e)(2) because paragraph (e)(1)(ii) does not include an option 
for periodic monitoring unless continuous monitoring is not 
commercially available (paragraph (e)(2) allows for periodic monitoring 
in certain other circumstances). Non-isolated permit spaces, relative 
to other PRCSs, have an enhanced risk of unexpected changes in 
hazardous atmosphere levels because atmospheric hazards could migrate 
from other areas, so OSHA only permitted periodic monitoring in non-
isolated spaces in the absence of a viable alternative. By monitoring 
the space continuously, employers should detect rising levels of a 
hazardous atmosphere or the introduction of a new atmospheric hazard 
before it is too late to warn the authorized entrants and evacuate them 
from the space.
    Final Sec.  1926.1204(e)(1)(ii) is similar to the corresponding 
provision for general industry confined spaces at Sec.  
1910.146(d)(5)(i), except that OSHA allows for the absence of 
commercially available equipment that could make it infeasible to 
conduct continuous monitoring. In such instances, OSHA still requires 
periodic monitoring to increase the likelihood of identifying as 
quickly as possible a hazardous atmosphere migrating from another part 
of a continuous system. Several commenters were unsure what OSHA means 
by ``not commercially available'' (ID-106, p. 3; -129, p. 3; -152, p. 
3). Typically, equipment is ``commercially available'' if it is offered 
for sale to the public or to the relevant employers. As OSHA stated in 
the preamble to the proposed rule, one example of when

[[Page 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 
Sec.  1926.1204(e)(2) to inform employers of the frequency with which 
to monitor periodically for hazards if continuous monitoring is not 
commercially available.
    Several commenters asserted that OSHA should require a competent 
person to perform the testing and monitoring (ID-025, p. 3; -086, p. 
5). OSHA agrees that the tester must be competent, but is not revising 
the text of the regulation to refer to a competent person because OSHA 
believes that the existing language, taken directly from the general 
industry confined-spaces standard, adequately addresses the competency 
of the tester. In this regard, the general industry confined-spaces 
standard does not use the term ``competent person,'' but does use terms 
such as ``attendant'' and ``entry supervisor'' that require a level of 
experience and training regarding testing or monitoring equivalent to 
that of a ``competent person,'' as defined in Sec.  1926.32(f). For 
example, final Sec.  1926.1208(b) and Sec.  1910.146(h)(2) both require 
an authorized entrant to possess the necessary knowledge to properly 
test the atmosphere within a confined space (see also Sec.  
1926.1204(d)). Under the training provisions of both Sec.  1910.146(g) 
and final Sec.  1926.1207, an employer must provide specific training 
to an employee designated as an ``authorized entrant''; this training 
must establish proficiency in the duties an authorized entrant must 
fulfill under these standards. In this respect, the scheme of both 
Sec.  1910.146 and this final rule accomplish the commenters' 
objective, which is to design a procedure whereby the person performing 
the atmospheric tests has sufficient knowledge and experience to 
conduct the tests properly.
    Different commenters asserted that OSHA should identify the 
specific locations for monitoring equipment in the permit space (ID-
106, p. 2; -129, p. 2). For example, these commenters suggested that 
OSHA require an employer to place monitoring equipment at the merger 
point between the larger space and the non-isolated entry point. The 
continuous-monitoring requirement is a performance-based standard, and 
OSHA does not agree that it is necessary to specify particular 
locations for the placement of monitoring equipment, especially when 
technology and monitoring practices may evolve in the future. 
Accordingly, employers have flexibility to choose their preferred 
methods and equipment to monitor, so long as the monitoring equipment, 
when used in accordance with manufacturer requirements, detects rising 
levels of a hazardous atmosphere or the introduction of a new 
atmospheric hazard before it is too late to warn the authorized 
entrants and evacuate them from the space. For additional information 
about atmospheric monitoring, see May 12, 2009, letter to Edwin Porter, 
Jr.
    Another commenter asserted that an employer must use more than one 
piece of continuous-monitoring equipment to effectively detect hazards 
(ID-031, p. 1). Final Sec.  1926.1204(e)(1)(ii) does not require the 
use of more than one piece of continuous-monitoring equipment; however, 
the provision also does not specify that employers can accomplish 
monitoring using only one piece of equipment. The number of monitors an 
employer would need to ensure the isolation or control of atmospheric 
hazards depends on the PRCS's size, configuration, and conditions; the 
requirement here is that employers use whatever number of monitors is 
necessary to ensure the isolation or control of the atmospheric 
hazards. OSHA also selected the performance-oriented approach so that 
this standard will not become outdated through advances in monitoring 
technology.
    Paragraph (e)(1)(iii). Final Sec.  1926.1204(e)(1)(iii) requires an 
employer to provide an early warning system that will detect non-
isolated engulfment hazards. OSHA included this requirement in proposed 
Sec.  1926.1215(a)(2), but there is no corresponding Sec.  1910.146 
provision. As OSHA stated in the preamble to the proposed rule, this 
equipment addresses migrating engulfment hazards that are present in a 
non-isolated PRCS. For example, these hazards can result when runoff 
from a heavy storm upstream of a sewer flows downstream into the area 
in which employees are working. OSHA noted in the preamble of the 
proposed rule that migrating hazards, especially those hazards 
migrating from distant areas, are common in non-isolated spaces (72 FR 
67382). Accordingly, this requirement is necessary to protect 
authorized entrants from the additional hazards associated with these 
spaces, including engulfment hazards.
    One commenter suggested that the requirement for an early warning 
system will force employers to hire more employees for the purpose of 
monitoring the space (ID-059). Neither the comment nor the rest of the 
record provide support for this suggestion. To the contrary, employers 
have flexibility in determining whether to hire additional employees to 
comply with final Sec.  1926.1204(e)(1)(iii). An employer may position 
detection and monitoring devices, without the need to hire additional 
employees, to provide the early warning. A full discussion of the costs 
of early warning systems is included in the Final Economic Analysis in 
this document.
    One commenter appeared to assume that this provision required using 
equipment, not additional employees, to monitor engulfment hazards. 
This commenter asserted that such equipment is too expensive to 
maintain (ID-098, p. 1). This commenter did not provide any support for 
the assertion, or any specific information about problems associated 
with maintaining or operating such equipment. OSHA notes that the use 
of properly calibrated equipment to detect non-isolated engulfment 
hazards is a current practice by many in the industry and has been 
since before OSHA issued the proposed rule (see transcripts of 
stakeholder meetings, available at: https://www.osha.gov/doc/reference_documents.html). Without a specific reason why an early 
warning system is infeasible, OSHA retained this requirement in the 
final rule.
    Another commenter asserted that an early warning system requirement 
will require an employer to evaluate and calibrate such systems for 
each potential hazard (ID-216). It is not clear from the comment, 
however, that the commenter understood that the early warning system 
described in the proposal (and this provision) must detect only non-
isolated engulfment hazards, not each potential atmospheric hazard. 
Because engulfment hazards involve the movement of tangible substances 
(e.g., water, mud, sand), systems may detect movement of different 
substances using the same methods (e.g., a motion detector or other 
sensor triggered by the movement of water, mud, sand, or another 
substance through a particular area). The commenter did not provide any 
specific examples of equipment that would require calibration in a way 
that would be burdensome to the employer or diminish the effectiveness 
of the equipment in providing an early warning.
    The same commenter suggested as an alternative requiring employers 
to disconnect, blind, lockout, or isolate all pumps and lines that may 
cause contaminants to flow into a confined space, and then continuously 
monitor that space. The alternative approaches

[[Page 25426]]

mentioned by the commenter appear to be directed at isolating the 
hazards. If the employer effectively isolates or eliminates all 
physical hazards within the entire permit space, then it might be 
possible for the employer to avoid the permit program altogether if 
employees can enter the space through the alternative procedures in 
Sec.  1926.1203(e), or if there are no atmospheric hazards and the 
permit space is reclassified in accordance with Sec.  1926.1203(g). 
OSHA anticipates, however, that in most cases employers in non-isolated 
spaces will need to comply with Sec.  1926.1204(e)(1)(iii) because it 
may not be possible for employers to eliminate all physical hazards 
from a continuous system.
    Other commenters asserted that the requirement to use an early 
warning system exposes the individuals installing the system to hazards 
(ID-098, p. 1; -120, p. 4). OSHA disagrees with these commenters' 
assertion. There are many types of early warning systems available, 
including flow monitors that are suspended in an upstream manhole such 
that no employee needs to climb down into the confined space to place 
or retrieve the monitor. These devices are capable of detecting 
engulfment hazards approaching from upstream without exposing the 
individuals installing them to additional hazards. Employers may also 
be able to lower cameras or other devices into the space, or conduct 
visual inspections from above the space without entering at all.
    One commenter was unsure when, where, and how an employer must 
implement an early warning system (ID-124, p. 5). Another commenter 
asserted that OSHA should explicitly recognize that the use of 
electronic monitoring constitutes an acceptable early warning system 
(ID-107, p. 3). In response to these comments, OSHA notes that, once 
the employer determines that isolation of the space is infeasible, then 
the employer must implement an early warning system in accordance with 
final Sec.  1926.1204(e)(1)(iii). The employer has flexibility in 
determining what type of system to use based on information it receives 
about the space and its hazards, and based on the employer's experience 
working in similar spaces. The system can be as simple as posting 
observers with communication equipment in safe locations (e.g., outside 
an open manhole) at distances far enough upstream from the work area to 
timely communicate a warning to the entrants working downstream. 
Another method would be to use detection or monitoring devices upstream 
that will alert an attendant, or activate alarms at the entrants' work 
area, in sufficient time for the entrants to safely avoid upstream 
engulfment hazards moving in their direction. So long as the use of 
electronic monitoring alerts authorized entrants and attendants of non-
isolated engulfment hazards in sufficient time to safely exit the PRCS, 
the employer will be in compliance with final Sec.  
1926.1204(e)(1)(iii).
    Paragraph (e)(2). Final Sec.  1926.1204(e)(2) requires an employer 
to continuously monitor the space unless the employer can demonstrate 
that the equipment for continuously monitoring a hazard is not 
commercially available or that periodic monitoring is sufficient to 
ensure the control of atmospheric hazards at safe levels. Final rule 
Sec.  1926.1204(e)(2) is similar to the corresponding provision for 
general industry confined spaces at Sec.  1910.146(d)(5)(ii), except 
that final Sec.  1926.1204(e)(2) generally requires continuous 
monitoring as did the proposed rule (see proposed Sec.  
1926.1215(a)(1)). Several commenters supported the requirement to 
monitor permit spaces continuously (ID-105, p. 2; -106, p. 2). One of 
these commenters asserted that ``periodic monitoring could be difficult 
to interpret, which could potentially lead to situations where an 
employer's monitoring scheme fails to adequately monitor rapidly 
changing atmospheric conditions that could pose risks to workers who 
enter a confined space'' (ID-105, p. 2).
    In the typical PRCS in a construction setting, it is often 
difficult for the employer to predict with reasonable certainty the 
levels of hazardous atmospheres. In many instances, the employer will 
have little or no past experience with the particular PRCS, and will 
lack reliable historical data on hazard levels. Also, the PRCS may 
change as construction work progresses in ways that may cause 
unexpected increases in hazard levels. For example, changes to the wall 
of a PRCS may increase the level of hazardous gasses in the PRCS (see 
also ID-213.1, describing examples of how construction spaces can 
include hidden dangers, such as paints or sealants that can release 
toxic fumes if triggered by welding or other sources of heat.) In 
addition, construction equipment in the PRCS may discharge hazardous 
gasses into the space at a higher rate than anticipated.
    In short, construction work follows a less predictable course than 
work covered by the general industry standard and, thus, requires more 
frequent atmospheric monitoring. Because of this high level of 
unpredictability, OSHA believes, generally, that continuous monitoring 
is necessary to protect affected employees, especially the entrants. 
This provision enables the employer to recognize deteriorating 
conditions quickly, and to identify new atmospheric hazards in time to 
take the actions required to protect employees.
    However, the Agency recognizes that, for some PRCSs, especially 
those PRCSs entered and monitored repeatedly over a significant period 
of time and found to have a stable atmosphere (such as a remote 
location that is not near potential sources of atmospheric hazards), 
the employer may be able to show that periodic monitoring will be 
sufficient to ensure that the conditions in the PRCS remain within 
acceptable entry conditions. However, when the employer uses periodic 
monitoring, the monitoring must be of sufficient frequency to ensure 
the control of atmospheric hazards at planned levels, and capable of 
detecting new hazards in time to protect the employees. In some cases, 
continuous monitoring may not be possible; for example, continuous 
monitoring typically is not available when the atmospheric hazard is a 
particulate. Therefore, when the employer can show that periodic 
monitoring is adequate, or can demonstrate that the technology for 
continuous monitoring of the atmospheric hazard is not available, OSHA 
will permit the employer to use effective periodic monitoring instead 
of continuous monitoring.
    The preamble discussion of proposed Sec.  1926.1205(a)(3) provided 
the following factors that OSHA will consider in determining whether an 
employer has used an appropriate monitoring frequency: The results of 
tests allowing entry; regularity of entry (e.g., daily, weekly, 
monthly); effectiveness of previous monitoring activity; and knowledge 
of the hazards (72 FR 67362). One commenter suggested adding the 
following factors to this list: (1) The type of the work performed in 
the space (i.e., hot versus cold work); (2) the time period the 
confined space remains unmonitored (i.e., requiring monitoring every 
20-30 minutes), and; (3) lunch breaks (ID-132, p. 3). Knowledge of the 
hazards from the list in the proposed rule covers the first of these 
suggested factors (type of work), while regularity of entry from the 
proposal's list covers the third suggested factor (lunch breaks). 
Effectiveness of previous monitoring activity from the proposal's list 
addresses the second suggested factor (the time period the permit space 
remains unmonitored). Accordingly, an employer must account for the 
development of hazardous atmospheres during periods when no atmospheric 
monitoring occurs in the space to

[[Page 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 Sec.  1926.1204(e)(2) maintains 
performance-based language, which OSHA believes will provide employers 
with flexibility in complying with this final rule. Moreover, there was 
no indication in the record that the longstanding use of the term 
``periodic testing'' in Sec.  1910.146 is causing the level of 
confusion suggested by the commenters.
    Paragraph (e)(3). Final Sec.  1926.1204(e)(3), which is identical 
to Sec.  1910.146(d)(5)(iii), requires an employer to test for 
particular substances in a pre-determined order: oxygen, then 
combustible gases and vapors, and finally toxic gases and vapors. The 
preamble to the general industry confined-spaces standard noted that 
this procedure represents generally accepted safe work practices, and 
explained the specified order as follows:

    A test for oxygen must be performed first because most 
combustible gas meters are oxygen dependent and will not provide 
reliable readings in an oxygen deficient atmosphere. In fact, the 
Johnson Wax Company (Ex. 14-222) stated that `there is [a] specific 
(sensor dependent) oxygen level below which the combustible gas 
sensor will not respond at all [emphasis was supplied in original].' 
Combustible gases are tested for next because the threat of fire or 
explosion is both more immediate and more life threatening, in most 
cases, than exposure to toxic gases.

(58 FR 4499). OSHA also included this same requirement in the proposed 
Sec.  1926.1205(a)(1), and received no comments challenging the 
validity of this approach. OSHA remains convinced that the priority 
assigned to testing or monitoring atmospheric hazards by final Sec.  
1926.1204(e)(3) remains valid, and believes that this requirement is 
critical to the health and safety of employees involved in confined-
space entry.

    OSHA notes that final Sec.  1926.1204(e)(3), like the proposed 
rule, does not require an employer to test for combustible dust. There 
currently are technological limitations on testing for airborne 
combustible dust in a timely manner; in addition, unlike flammable 
vapors, in situations in which airborne combustible dust reaches a 
minimum combustible concentration, the dust cloud generally is dense 
enough to detect with the naked eye.
    Paragraph (e)(4). Final Sec.  1926.1204(e)(4), which is identical 
to Sec.  1910.146(d)(5)(iv), requires an employer to provide an 
authorized entrant or employee authorized representative with the 
opportunity to observe testing or monitoring. See the discussion of 
final Sec.  1926.1204(c)(2) for an explanation of the importance of 
providing an opportunity an opportunity for observation to entrants or 
their representatives.
    Paragraph (e)(5). Final Sec.  1926.1204(e)(5), which is similar to 
Sec.  1910.146(d)(5)(v), requires an employer to reevaluate a PRCS if 
there is ``some indication'' that the previous evaluation was 
inadequate and an authorized entrant or that entrant's authorized 
representative asks an employer to reevaluate the space. This 
requirement ensures that entrants, or their representatives, can 
provide a check on potential human error in the monitoring process 
before they are potentially exposed to harm. This requirement is 
consistent with other requirements to allow employee observation of 
testing results, the reasons for which are set forth in the explanation 
of Sec.  1926.1204(c)(2). In some cases employees who did not observe 
the initial monitoring process may notice something about the equipment 
or space that calls into doubt the initial evaluation, but in other 
cases this requirement serves as a corollary to the general observation 
requirements: an employee or employee representative who observes the 
initial evaluation of the space pursuant to Sec.  1926.1204(c)(2) and 
notes a problem with that testing may request a re-evaluation of the 
space under Sec.  1926.1204(e)(5).
    Section 1910.146(d)(5)(v) requires an employer to reevaluate when 
an authorized entrant or the entrant's authorized representative ``has 
a reason to believe'' the initial evaluation may have been inadequate. 
Otherwise, this provision of the final rule is identical to Sec.  
1910.146(d)(5)(v). Examples of indications that the evaluation of the 
permit space was inadequate include: improper use of monitoring 
equipment (e.g., monitoring devices have low battery life or noticeable 
damage; monitoring devices improperly calibrated; measurements taken in 
improper locations); employees noting physical hazards not identified 
in the evaluation; and inconsistent monitor readings without adequate 
explanation.
    Addressing an example in proposed Sec.  1926.1207(a)(3), one 
commenter was unsure who would make the final decision of whether there 
is a reasonable basis for believing that a hazard determination is 
inadequate (ID-120, p. 4). Specifically, the commenter presented a 
situation in which an employee provides an alleged basis for believing 
that a hazard determination is inadequate, but the employer finds that 
the basis is not reasonable. Under final Sec.  1926.1204(e)(5), the 
employer may repeat the test, alter the test to assess additional 
aspects of the space, or assess whether a change occurred in the use or 
configuration of the space after testing. If such a change occurred, 
then the employer must reevaluate the space. Therefore, compared to the 
more subjective language in the general industry standard (i.e., ``has 
reason to believe''), the reevaluation requirement in this final 
provision (i.e., ``some indication'') is more objective and based on 
the observable conditions, thereby reducing ambiguity.
    Paragraph (e)(6). Final Sec.  1926.1204(e)(6), which is identical 
to Sec.  1910.146(d)(5)(vi) except for non-substantive clarifications 
and grammatical changes, requires an employer to immediately provide 
the results of testing conducted in accordance with final Sec.  
1926.1204 to each authorized entrant or that employee's authorized 
representative. This requirement will ensure that employees and their 
representatives have the information necessary to identify potential 
inadequacies in the testing and take action under paragraph (e)(5) of 
this section to avoid unsafe entries. In some cases the testing may 
reveal specific conditions that fall within an employee's expertise or 
may be relevant to an individual health condition of the employee. For 
example, if an employee knows that he or she has a particular 
sensitivity to even low levels of a substance that would not otherwise 
result in a hazardous

[[Page 25428]]

atmosphere, the employee could review the test results and alert the 
employer if that substance is detected so that the employer can provide 
appropriate measures to protect the employee. See the discussion of 
final Sec.  1926.1204(c)(2) for further explanation of this 
requirement.
    Paragraph (f). The introductory text of final Sec.  1926.1204(f), 
which is identical to Sec.  1910.146(d)(6), requires an employer to 
provide at least one attendant outside a PRCS while an authorized 
entrant is performing confined-space operations. Although an attendant 
does not have the overall responsibility for employee safety and health 
assigned to the entry supervisor, the attendant is a crucial link 
between authorized entrants and the entry supervisor, and is essential 
for proper rescue operations. See the discussion in Sec.  1926.1209 of 
this final standard for further explanation of the attendant's duties 
and the importance of the attendant in confined-space operations.
    Paragraphs (f)(1) and (f)(2). In final Sec.  1926.1204(f)(1), OSHA 
authorizes the permit program to allow for an attendant to perform his 
or her required duties, including assessing authorized entrants' status 
and meeting the requirements of Sec.  1926.1209 for more than one 
permit space, similar to the requirement specified in the proposed rule 
at Sec.  1926.1210(f)(3). Under final Sec.  1926.1204(f)(2), the permit 
program may allow an attendant to fulfill his or her assessment duties 
for one or more spaces from a remote location provided the attendant is 
capable of fulfilling all attendant duties under Sec.  1926.1209 for 
all spaces to which the attendant is assigned from that remote 
location. Final Sec.  1926.1204(f)(1) and (f)(2) are similar to the 
note in the general industry confined-spaces standard at Sec.  
1910.146(d)(6). OSHA acknowledges that, although it is best to have an 
attendant outside each PRCS, there may be situations when one attendant 
can effectively fulfill the attendant duties in multiple PRCSs. The 
ability to assess entrants' status in multiple PRCS sites allows 
employers maximum flexibility in providing for the safety of employees 
when site-specific factors permit the attendant to do so. For instance, 
in some circumstances a single attendant equipped with modern 
technologies such as an automated monitor/alarm system and audio-video 
equipment may be able to assess entrants' status in multiple sites and 
react to emergency conditions as effectively as a single attendant at 
each space.
    While paragraph (f)(1) sets forth performance-based measures, OSHA 
believes that an attendant's ability to assess entrants' status in 
multiple permit spaces while adequately performing attendant duties is 
dependent on several factors, that include: (1) the number of permit 
spaces the attendant assesses simultaneously; (2) the degree and number 
of the hazards; (3) how effective the assessment technology used is at 
assessing entrants' status and the conditions in the permit space 
(i.e., is there a system in place for the attendant to track, from a 
remote location, who is coming in and out of a permit space); and (4) 
the distance between the multiple permit spaces. This provision may 
preclude a single attendant from serving as the attendant for multiple 
spaces if the employer also designated the attendant to provide non-
entry rescue service. In most cases, an attendant with non-entry rescue 
responsibility must be physically present to retrieve immediately the 
entrant absent the availability of equipment that would enable the 
attendant to perform the rescue task remotely and successfully. As 
noted in the criteria above, the degree of the hazard may affect the 
timing of entrant retrieval and, thus, the physical proximity required 
for an attendant who has non-entry rescue responsibility (e.g., if the 
permit space contains combustible gases that present a dangerous fire 
hazard, the attendant must be capable of retrieving the entrant 
immediately).
    One commenter suggested that OSHA provide a maximum distance from 
which one attendant can assess entrants' status in multiple PRCSs (ID-
059.1, p. 1). OSHA did not mandate a maximum distance because there are 
a number of factors that could influence the proper distance from which 
an attendant can assess entrants' status in multiple PRCSs while 
remaining in compliance with the applicable attendant requirements 
under this final rule. For example, some of the factors could be the 
particular circumstances at the worksite (the location and 
accessibility of the permit space), the visual acuity and observation 
skills of the attendant, and the equipment provided to the attendant. 
This approach provides the most flexibility to employers.
    Paragraph (g). Final Sec.  1926.1204(g), which is identical to 
Sec.  1910.146(d)(7), requires an employer to specify, in its permit 
program, the means and procedures it will use to ensure that a single 
attendant is capable of effectively fulfilling the attendant duties for 
multiple confined spaces if an emergency occurs in one of the spaces. 
As specified in the final preamble to Sec.  1910.146 and the note to 
proposed Sec.  1926.1210(f)(3)(ii), effective assessment procedures 
include procedures to ensure that the attendant can respond adequately 
to emergencies. If the attendant needs to devote his or her entire 
attention to one of the spaces or conduct non-entry retrieval, the 
attendant must have a backup ready to assume the attendant duties for 
the other space or order the evacuation of that space.
    A commenter asserted that paragraph (g) also should include 
requirements for: (1) testing and charging electronic equipment used to 
assess entrants' status in multiple PRCSs; (2) the use of equipment 
within acceptable limits in accordance with Federal Communications 
Commission (FCC) guidelines; and, (3) attendant training (ID-108.1, p. 
2). In response, OSHA notes, first, that final Sec.  1926.1204(d) 
requires employers to maintain equipment provided for compliance with 
this final rule, which includes properly testing and charging the 
equipment. Second, this final rule works in conjunction with other 
federal laws, and compliance with FCC guidelines is a matter best 
addressed by the FCC. Third, final Sec.  1926.1207 requires the 
employer to train all employees, including attendants assessing 
multiple permit spaces, on the provisions of the standard so that the 
employees can effectively perform their designated duties under this 
standard. Thus, OSHA concludes that the final standard already includes 
the duties requested by the commenter, and that this final standard 
provides employers with appropriate flexibility in performing these 
duties.
    Paragraph (h). Final Sec.  1926.1204(h), which is identical to 
Sec.  1910.146(d)(8) except for minor clarifications, requires each 
employer to specify the names of each person who will have a particular 
role in confined-space operations, characterize those roles, and train 
the named people accordingly. In the final rule, OSHA clarified that 
each employer must designate each and every employee assigned to a 
specific role under this final rule. This provision will enable 
employers, employees, and OSHA to identify which employees need to 
receive what training under final Sec.  1926.1207.
    One commenter was uncertain whether the attendant and the entry 
supervisor must be different employees (ID-124, p. 8). The definition 
of ``entry supervisor'' in final Sec.  1926.1202 includes a note 
explaining that an entry supervisor also may serve as an attendant or 
an authorized entrant. This note is identical to the note in the 
general industry confined-spaces standard at Sec.  1910.146(b). OSHA

[[Page 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 Sec.  1926.1210(h) 
specifically stated that an entry supervisor could serve simultaneously 
as an attendant or an authorized entrant, which is consistent with this 
final rule, and OSHA did not receive any comments indicating that this 
dual role was infeasible or inappropriate.
    Paragraph (i). Final Sec.  1926.1204(i), which is nearly identical 
to Sec.  1910.146(d)(9), requires an employer to have and implement 
effective procedures for summoning rescue services (including 
procedures for summoning emergency assistance in the event of a failed 
non-entry rescue), performing rescue, and preventing unauthorized 
personnel from attempting rescue. The only difference from the general 
industry requirement is that OSHA added a parenthetical to note that 
employers have a duty to summon emergency assistance in the event of a 
failed non-entry rescue.
    Several commenters were unsure which employer must summon rescue 
(ID-025, p. 4; -150, p. 3). Another commenter asserted that the 
attendant should summon rescue (ID-210, Tr. p. 357). Final Sec.  
1926.1204(i) applies to any employer, including a controlling 
contractor or host employer, that has its own employees performing 
confined space operations. Each such employer must designate an 
attendant, and final Sec.  1926.1209(g) requires the attendant to 
summon a rescue service when needed. When multiple employers are 
operating in the same space, the employers must coordinate the 
procedures for summoning a rescue service as part of their general 
coordination duties under Sec. Sec.  1926.1203(h)(4) and 1926.1204(k). 
This provision will ensure that procedures are in place for the timely 
and effective rescue of entrants when necessary.
    Paragraph (j). Final Sec.  1926.1204(j), which corresponds to the 
requirements in Sec.  1910.146(d)(10), requires an employer to develop 
procedures for the development, issuance, use, and cancellation of an 
entry permit; the final provision also is similar to proposed Sec.  
1926.1212(a). The permit is one of the most crucial elements of a 
permit program because it provides specific instructions for monitoring 
and addressing hazards in a particular space. See the discussion to 
final Sec. Sec.  1926.1205 and 1926.1206 for further explanation on the 
importance of developing and using entry permits for confined-space 
entry. In the final rule, OSHA added a clarification that these 
procedures must cover the safe termination of entry operations, which 
must include procedures for summoning emergency assistance in the event 
that non-entry rescue fails (see discussion of backup emergency 
assistance in final Sec.  1926.1211).
    One commenter was unsure which employers must comply with final 
Sec.  1926.1204(j) (ID-120, p. 4). Final Sec.  1926.1204(j) applies to 
any employer, including a controlling contractor or host employer, that 
has its own employees performing confined space operations.
    Paragraph (k). Final Sec.  1926.1204(k) requires an employer to 
develop and implement procedures for coordinating confined-space entry 
when multiple employers are performing work simultaneously that could 
affect conditions in a permit space, a requirement derived from 
proposed Sec.  1926.1204(d). In the general industry confined-space 
standard, Sec.  1910.146(d)(11) requires coordination procedures when 
multiple employers are working simultaneously ``as authorized 
entrants.'' This final provision differs from Sec.  1910.146(d)(11) by 
addressing the need to coordinate work activities through the 
controlling contractor, as well with employers working outside the 
permit space when their work could foreseeably affect conditions within 
a confined space. The controlling contractor (or the employer specified 
in Sec.  1926.1203(i)) and each entry employer are responsible for 
coordinating work activities among different employers to protect 
confined space entrants under final Sec.  1926.1203(h)(4), and entry 
employers must ensure that their permit programs specify when and how 
they will share information with the controlling contractor in a timely 
manner in accordance with Sec.  1926.1203(h)(4) and (h)(5)(ii). The 
permit program also must address how the entry employer's employees are 
to receive and transfer information about a confined space from the 
controlling contractor in accordance with Sec.  1926.1203(h)(2), and 
how the entry employer will ensure that it implements coordination 
instructions from the controlling contractor. In addition, the entry 
employer still has the duty of including in its permit program steps to 
ensure coordination, even absent action by the controlling contractor. 
Such steps might include evaluation of work and practices being 
performed by other employers that could affect conditions inside the 
space, and coordinating with those employers to ensure safe conditions 
inside the confined space. For example, if an entry employer sees 
another employer setting up blasting equipment next to the permit 
space, the entry employer must check with that employer to ensure that 
the blasting activity will not take place when an entrant is in the 
permit space. For additional explanation of the entry employer's 
responsibilities for coordination, see the discussion of Sec.  
1926.1203(h)(4).
    Paragraph (l). Final Sec.  1926.1204(l), which is identical to 
Sec.  1910.146(d)(12), requires an employer to develop and use 
procedures for terminating an entry permit and entry operations; the 
final provision also derived from proposed Sec. Sec.  1926.1212(a) and 
1926.1214(d). See the discussion of final Sec.  1926.1205(e) for 
further explanation of the need to develop and use procedures for 
terminating an entry permit and entry operations, including closing the 
entry portal. Also, OSHA responded to the relevant comments to proposed 
Sec.  1926.1212(a) in its discussion of final Sec.  1926.1204(j).
    Paragraph (m). Final Sec.  1926.1204(m), which is similar to Sec.  
1910.146(d)(13), requires an employer to review its permit-space 
program whenever the procedures prove inadequate, and to revise those 
procedures when necessary. Section 1910.146(d)(13) requires the 
employer to review its program when the employer has reason to believe 
that the measures taken are inadequate. OSHA revised this language in 
this final rule by clarifying that the objective circumstances, not the 
employer's belief, must be the basis of the review. See the discussion 
of final Sec.  1926.1205(f) for further explanation of the need to 
review an entry permit and to make revisions as necessary.
    In addition, OSHA modified the note under paragraph (m) from the 
language used in the corresponding note to the general industry 
standard at Sec.  1910.146(d)(13). OSHA added the phrase ``including, 
but not limited to'' in this final provision to clarify that the 
examples in the note are not an exhaustive list.
    Paragraph (n). Final Sec.  1926.1204(n) is identical to Sec.  
1910.146(d)(14) except for grammatical revisions, and requires an 
employer to review its permit-space program at least every year and 
make revisions to its procedures as necessary; this provision also 
expands upon, and clarifies, the proposed rule at Sec.  1926.1214(b). 
The Agency moved the comma that appears after ``as necessary'' in Sec.  
1910.146(d)(14) to appear after ``1926.1205(f)'' in this final rule to 
clarify that this provision requires an employer to review cancelled 
permits within one year after each entry. The

[[Page 25430]]

Agency notes that, in interpreting the same language in the general 
industry standard, OSHA permitted employers to rely on documentation of 
quarterly reviews, rather than cancelled entry permits, in conducting 
its annual review, so long as that documentation contains the same 
information required to be in the cancelled entry permits, including 
``any information regarding problems encountered during entry 
operations that was recorded to comply with paragraph (e)(6)'' and 
``any revision of the program that resulted from such problems.'' See 
October 21, 1993, letter to John Anderson. The Agency will also accept 
the equivalent documentation under this construction final rule. Some 
commenters asserted that requirements to review the program are 
pointless because they do not ensure that employers will discover 
hazards in a timely manner (i.e., they will discover any problems after 
the fact) (ID-075, p. 10;-099, p. 2;-101, p. 2). OSHA did not design 
final Sec.  1926.1204(n) to ensure that employers discover hazards 
during a particular confined-space entry operation; the Agency designed 
other sections of this final rule for that purpose, such as Sec.  
1926.1203(h) and final Sec.  1926.1204(m). As OSHA explained in 72 FR 
67381 of the preamble to the proposed rule, the purpose of this annual 
review is to evaluate the effectiveness of the permit program and the 
protection provided to employees involved in PRCS entries during this 
period. OSHA understands that some employers will use the same 
comprehensive permit program for many different spaces in conjunction 
with more specific information provided on the permits for individual 
spaces. This requirement will help ensure that employers complete 
future PRCS entries in a similar manner if the entries were successful, 
or make changes to the permit program to improve future entry 
operations if any problems or concerns occurred (72 FR 67381).
    One commenter was unsure whether OSHA based the 12-month review 
period on a calendar year or cancellation of a permit (ID-075, p. 10). 
This 12-month period is a calendar year because the purpose of final 
Sec.  1926.1204(n) is to ensure that no more than 12 months separates 
the date the employer cancels or terminates a confined-space entry and 
the date the employer reviews its confined-space entry operations for 
deficiencies. OSHA's experience with the general industry standard 
indicates that a review, conducted once per calendar year, is 
sufficient to achieve this purpose, and OSHA did not receive any 
comments to the contrary. Therefore, if an employer conducted a review 
of its permit-space program each calendar year, regardless of how many 
entries it conducted in that calendar year, it will be in compliance 
with this requirement. Employers may conduct reviews more frequently as 
appropriate, but this final provision does not require this frequency 
and, therefore, provides employers with the most flexibility in 
determining when to conduct this annual review.
    The note to paragraph (n), which is identical to the note following 
Sec.  1910.146(d)(14), clarifies that employers need not conduct 
separate reviews of each individual permit program implemented during 
the calendar year; a single review of all entries during the calendar 
year will suffice. Another commenter asserted that OSHA should require 
a similar annual review for entry operations performed under the 
alternate procedures specified by final Sec.  1926.1203(e) and 
1926.1203(g)(1) (ID-060, p. 2). Employers who complete a confined space 
entry entirely under the alternative procedures set forth in final 
Sec.  1926.1203(e) do not have to comply with the requirements of final 
Sec.  1926.1204 (see final Sec.  1926.1203(e)(1)). Employers need fewer 
precautions to ensure the safety of employees working within or near 
confined spaces when they can use the alternate procedures under final 
Sec.  1926.1203(e) or reclassify the permit space under Sec.  
1926.1203(g)(1). If there is any change to these spaces that would 
result in a hazard not addressed by these alternative procedures, then 
the full permit program and the requirements of final Sec.  1926.1204, 
including the annual review, will apply.

Section 1926.1205--Permitting Process

    Section 1205 sets forth the required process for establishing, 
suspending and cancelling entry permits. This process is important 
because it helps the employer determine if conditions in the permit 
space are safe enough for entry, and it requires the involvement of the 
entry supervisor, thereby ensuring that a person with the 
qualifications needed to identify permit-space hazards, and the 
authority to order corrective measures for their control, will oversee 
entry operations. The provisions in final Sec.  1926.1205 are similar 
to the provisions in the general industry confined spaces rule at Sec.  
1910.146(e); however, OSHA changed the title of the section from 
``permit system'' in the general industry standard to ``permitting 
process'' in the final rule to minimize the possibility for confusion 
if a permit space was established that might be referred to as a 
system, such as a sewer system.
    Paragraph (a). Final Sec.  1926.1205(a), which is almost identical 
to Sec.  1910.146(e)(1), requires each entry employer to prepare, prior 
to entry into a PRCS, an entry permit containing all of the information 
specified in Sec.  1926.1204(c) (practices and procedures for ensuring 
safe entry). This provision differs slightly from Sec.  1910.146(e)(1) 
because it refers to ``each entry employer,'' whereas Sec.  
1910.146(e)(1) refers to ``the employer.'' OSHA made this change to 
clarify which employer on a multi-employer worksite has duties under 
final Sec.  1926.1205(a).
    OSHA emphasizes that the process of preparing a permit is 
considerably more than preparing a simple checklist; it requires 
careful attention and planning. The permit must list all measures 
necessary for making the particular permit space safe for entry; if the 
permit omits some procedures, serious consequences could result. Entry 
permits are a critical component of the safety process for preparing to 
enter a confined space because they provide key information about 
hazards in the PRCS, and the methods used to protect employees from 
those hazards. The permits also specify who is authorized to perform 
work within the PRCS, their duties, and the extent of their authority 
with respect to safety in and around the PRCS. The Agency believes the 
use of this administrative tool is essential to the employer with 
employees entering a permit space to ensure that the employees will 
complete the work within a PRCS safely. The process of preparing the 
permit, as well as the permit itself, also can be useful to the 
controlling contractor and other employers working near the confined 
space because it provides a readily accessible means of identifying the 
work performed and the provisions needed to ensure worker safety. 
Making the information on the permit accessible to employers and 
employees in and around the PRCS also allows them to maintain an 
elevated awareness of the conditions within the PRCS, as well as the 
equipment and procedures necessary for safe PRCS entry operations.
    One commenter noted that multiple employers may have employees 
working in the same space, and was unsure whether each employer must 
prepare an entry permit under final Sec.  1926.1205(a) (ID-120, p. 4). 
When more than one employer is performing confined space entry, one 
permit will suffice, provided the controlling contractor and entry

[[Page 25431]]

employers properly coordinate the entry operations of the multiple 
employers as required under Sec. Sec.  1926.1203(h)(4) and 
1926.1204(k), and the permit identifies all of the hazards and safety 
measures required for all of the work conducted in that space.
    Paragraph (b). Final Sec.  1926.1205(b), which is identical to 
Sec.  1910.146(e)(2), requires the entry supervisor to sign the permit 
before entry begins. Although the employer remains ultimately liable 
for compliance with this standard, the entry supervisor's signature 
underscores to the employer and the entry supervisor the importance of 
their determination that the PRCS entry operation meets the 
prerequisites for safe entry listed in the permit. OSHA believes that 
signing the form makes it more likely that the entry supervisor and his 
or her employer will address the items listed on the form than if they 
do not have no to sign the form. Moreover, the entry supervisors may 
change during the course of the entry, so it is important to identify 
who completed each evaluation in the event that questions arise.
    Paragraph (c). Final Sec.  1926.1205(c), which is identical in 
substance to Sec.  1910.146(e)(3), requires an employer to make the 
completed entry permit available to all authorized entrants, or their 
authorized representatives, at the time each employee enters the space. 
One of the keys to protecting employees from PRCS hazards is for both 
employers and employees to know the location of the PRCSs at the job 
site, the characteristics of the hazards, and their associated dangers. 
The provisions in this paragraph are designed to achieve this goal. 
Once entrants are provided with this information, they will then be 
able to make their own judgments as to the completeness of pre-entry 
preparations and point out any deficiencies that they believe exist. 
Employees will also be more likely to bring new hazards to the 
attention of the supervisor if they are discovered while working in the 
permit space if the employees are aware of which hazards have already 
been identified and which have not. Posting the permit for employees to 
see at the entry point can also be useful when multiple employers will 
be working in the same permit space.
    Sharing this information with employee authorized representatives 
may help bring the representative's expertise to bear in identifying 
additional hazards not accounted for in the permit process. One 
commenter described a situation where he, as an authorized employee 
representative, was able to alert employees to additional atmospheric 
hazards that were generated by the adhesives used to join plastic pipe 
tubes in a room with inadequate ventilation (ID-010). Final paragraph 
(c) includes one variation from the language of the general industry 
standard. Under the general industry standard a single posting can be 
sufficient to inform multiple employees, but employers must still make 
sure that the permit is available to each entrant, or the entrant's 
representative, prior to entry into the permit space. For example, an 
employer does not fully comply with the standard by posting the permit 
after one of its employees has already entered the permit space. OSHA 
is including the same requirement in this final rule, but is also 
taking the opportunity to provide further clarification in this final 
rule that the information must be made available to ``each authorized 
entrant''; the general industry standard is less specific, referring to 
``all authorized entrants.'' In appropriate cases, if an employer fails 
to make this information available as required, OSHA may issue separate 
citations with respect to each individual employee who enters a 
confined space without having access to this information.
    Paragraph (d). Final Sec.  1926.1205(d), which is identical to 
Sec.  1910.146(e)(4), prohibits employers from making the entry 
permit's duration longer than the time needed to complete the related 
work. Otherwise, the conditions inside the space are more likely to 
change and entrants could be unnecessarily exposed to the residual 
hazards of permit spaces.
    One commenter suggested that OSHA limit the duration of the 
permit's validity to one day or one shift to ensure that someone 
inspects the confined spaces that employees are entering to discover 
changed conditions (ID-060, p. 4). OSHA does not agree that such a 
fixed limit is warranted. This process would be more burdensome because 
it would require cancellation of entry permits even when there is no 
change in conditions or hazards. Final Sec.  1926.1204(e)(2) requires 
an employer to monitor the conditions inside a confined space to 
determine if they become unacceptable. Furthermore, final Sec.  
1926.1205(e)(2) requires an employer to cancel the entry permit if an 
unacceptable condition arises. Taken together, these provisions provide 
a less burdensome, more flexible, and even more direct method of 
achieving the same safety mechanisms as the commenter's suggested 
approach. Moreover, the less limited requirements are consistent with 
the procedures required under the general industry confined spaces 
standard at Sec.  1910.146. OSHA considered and rejected a similar 
request for a per-shift permit limit when promulgating the general 
industry final rule (see 58 FR 4505, 4506 (Jan. 14, 1993)).
    Paragraph (e). Final Sec.  1926.1205(e), which corresponds to Sec.  
1910.146(e)(5), requires an employer to terminate entry and cancel the 
entry permit under two conditions: when the employer completes the 
entry operations covered by the permit (final Sec.  1926.1205(e)(1), 
which is identical to Sec.  1910.146(e)(5)(i)), or when there is a 
condition inside or near the permit space that is not acceptable under 
the permit program established for that space (final Sec.  
1926.1205(e)(3), which is identical to Sec.  1910.146(e)(5)(ii)). 
Requiring the entry supervisor to terminate the entry permit under 
either of these conditions increases the likelihood that the employees 
will exit the space before new hazards emerge, and that employees will 
avoid hazards arising from prohibited conditions within the PRCS. When 
an employer completes an entry without incident, the employer must 
cancel the permit by removing it from the entry site. If the employer 
cancels the permit in response to new hazards or changes in the 
condition of the permit space, the employer must record the reasons for 
the cancellation on the permit in accordance with Sec.  1926.1205(f).
    In response to comments, OSHA also is adding an additional 
provision in final Sec.  1926.1205(e)(2) that is not in the general 
industry standard, but would provide employers additional flexibility 
in certain situations identified by the commenters. Some commenters 
asserted that it is unnecessary to require cancellation of the entry 
permit in every instance in which reevaluation is necessary, and that 
doing so was unnecessarily burdensome (ID-107, p. 4; -116, p. 3). A 
commenter representing a client involved in sewer construction 
suggested that, in the event an unacceptable condition arises that 
necessitates temporary evacuation and reevaluation, but does not 
present a new or increased hazard for employees working within the 
confined space, OSHA should allow employers to track these events on 
the existing permit rather than cancelling the entire permit and 
filling out a new permit. For example, if there is a temporary loss of 
power for five minutes such that the entrants must exit the permit 
space because the lighting conditions are inadequate, the employer 
would normally reenter once the power returns and the conditions inside 
the permit space are the same as they were for initial entry.

[[Page 25432]]

    OSHA agrees that cancelling the permit may be unnecessary when a 
condition outside or inside the permit space requires an evacuation, 
but the permit space returns soon after to the same acceptable 
conditions specified under the permit. So long as the employer records 
on the permit the event that required evacuation, the employer conducts 
a full reassessment of the permit space that indicates restoration of 
the acceptable permit conditions before the employer permits reentry, 
there are no new gases or physical elements introduced into the space 
that are not addressed in the permit for that space, and there are no 
other significant changes to the space, OSHA believes that the employer 
can satisfy the purposes of the permit program without the additional 
burden of cancelling and replacing the entire permit. OSHA modified the 
text of the final rule accordingly by adding final Sec.  
1926.1205(e)(2) to allow for the ``suspension'' of the permit, as an 
alternative cancellation of the permit, when these criteria are met. 
During suspension, employers still must fulfill all applicable duties 
of an entry employer under the standard, such as preventing 
unauthorized entrance. An employer may temporarily suspend a permit in 
one of two ways: by removing it (leaving just the ``Do Not Enter'' sign 
or its equivalent that must be posted under Sec.  1926.1203(b)(1) and 
remain there throughout the entry), or taking other steps, such as 
covering the permit, to ensure that no one will mistakenly rely on the 
permit to enter the space. Regardless of the method of suspension, the 
employer must also record the reason for the suspension on the permit 
(see Sec.  1926.1205(f)).
    It would still be necessary, however, to cancel the permit and 
complete a new one if there is any indication that the existing permit 
may not be adequate to ensure the safety of the entrants. Cancellation 
of the permit is also necessary if the employer is unable to identify 
the cause of the change in conditions that led to the evacuation, or if 
a new substance has entered the permit space or has increased in amount 
or concentration. For example, if there is gas in a permit space in a 
concentration held below safe levels by two ventilation fans located on 
the exterior of the permit space and operated in accordance with the 
employer's permit program, and one fan stops functioning, all employees 
would need to exit the space and the employer must suspend the permit 
until the space is returned to the allowable conditions specified in 
the permit program. If the employer is able to identify the source of 
the fan failure (e.g., a burned-out motor), replace the fan, and return 
the gas in the space to a concentration below the applicable PEL, and 
nothing else has changed in the space, then the employer may permit its 
employees to re-enter after conducting a full reassessment of the space 
and noting the reason for the fan failure on the permit. Similarly, if 
the presence of a new gas is detected but the permit already 
anticipates that level of gas and includes a means of controlling that 
gas, the employer may control that gas in accordance with the existing 
permit instead of cancelling that permit and creating an entirely new 
permit. However, if the employer is unable to identify the reason for 
the fan failure, or that failure appears likely to occur again (e.g., 
flickering power source), or there has been some additional change in 
the permit space (e.g., monitoring detects the presence of a new gas 
not accounted for in the permit program, or condensation has formed 
within the space impeding entry or exit), then the employer must cancel 
the permit and develop a new permit that addresses those new 
conditions.
    The final rule, similar to the general industry standard, requires 
employers to terminate the entry if there is an unacceptable condition 
``in or near'' the permit space. Several commenters noted that the 
proposed rule included references to ``near'' in several different 
provisions and requested clarification. (See, e.g., ID-061.1; -095; -
101.1; -106.1; -120.1; -121.1; -124.1; -125.1; -131; -135; -136; -152; 
-220.) Many of these commenters, however, also urged OSHA to promulgate 
a construction standard that tracked the language of the general 
industry standard. OSHA, therefore, did not use ``near'' in this final 
rule except in Sec.  1926.1205(e), which tracks the identical use of 
``near'' in the general industry standard. The requests of numerous 
commenters urging OSHA to follow the general industry standard, and the 
absence of record evidence suggesting that employers have had 
difficulty complying with this general industry requirement, indicate 
that the use of this term in this context is sufficiently clear to 
employers engaged in permit-space work. The purpose of this provision 
remains the same in the construction context as in the general industry 
context: protection of employees working in confined spaces from 
exposure to additional hazards introduced into the permit space from 
outside. The use of ``near'' indicates a physical proximity to the 
permit space, but OSHA is not specifying a fixed distance because of 
the variety of potential hazards and the disparate distances from which 
the hazards could impact the confined space. For example, a small 
welding job may have no impact on a properly controlled permit space 15 
feet away, but a demolition blast could easily result in a significant 
hazard for employees working in an underground permit space much 
farther away.
    One commenter suggested that existing OSHA standards were already 
sufficient to protect employees from hazards near the confined space, 
while another commenter asked whether operating gasoline-powered 
equipment near the permit space would constitute a hazard, and whether 
an employer must cancel the entry permit for sewer work every time an 
automobile passed near the manhole to enter the sewer (see ID-131 and -
098.1). The examples provided by the latter commenter demonstrate the 
need to address these external hazards in the confined spaces standard: 
activities not necessarily prohibited by any other standard and that 
usually do not pose a hazard to employees when used in open spaces, 
such as operating gasoline-powered equipment, can result in hazards 
when used in close proximity to a permit space. However, because 
operating gasoline-powered equipment or automobiles near a permit space 
is not inherently hazardous to the entrants working inside that space, 
the employer would not necessarily need to cancel the permit at each 
such occurrence. Instead, the employer must assess the hazards posed in 
each scenario. If the fumes from the gasoline-powered equipment are 
spewing into the confined space, then the employer likely would need to 
remove the entrants and reassess the acceptable conditions for work 
inside the space. Likewise, if the employer did not anticipate that 
automobiles would be driving near the entry to a permit space, and did 
not guard the entrance and establish barriers to adequately protect 
employees working in the permit space, then the employer would need to 
require the entrants to leave the space in a safe manner and then 
reassess the permit program if automobile traffic develops. If, 
however, the gasoline-powered equipment was operating at such a 
distance or in such a manner that it would not foreseeably result in a 
potential hazard to the permit-entrants, or if the employer planned for 
automobile traffic near the space and provided barriers and other 
appropriate protection, then the entry could

[[Page 25433]]

continue and the permit program would remain in effect. Activities 
outside the permit space will only require entrants to leave if they 
could foreseeably result in a hazard not accounted for when the 
employer developed the permit program.
    Paragraph (f). Final Sec.  1926.1205(f), which is almost identical 
to Sec.  1910.146(e)(6), requires the entry employer to ensure that the 
cancelled entry permits are saved on file for at least a year after 
cancellation. In addition, Sec.  1926.1205(f) requires employers to 
note any problems encountered during an entry operation, particularly 
those that trigger cancellation or suspension of a permit under Sec.  
1926.1205(e), on the pertinent permit.
    This provision differs slightly from Sec.  1910.146(e)(6) because 
it clarifies that ``every entry employer'' must comply with these 
duties, whereas Sec.  1910.146(e)(6) refers generally to the duties of 
``the employer.'' OSHA made this change in recognition that there may 
be many different employers on a construction worksite, and that each 
entry employer has a responsibility to ensure that the records are 
saved. In some cases, this may involve coordination between different 
employers.
    The purpose of this document retention requirement, and of the 
requirement to note problems directly on the permit, is to facilitate 
the evaluation of the effectiveness of protection provided to employees 
involved in PRCS entries during the annual review required under Sec.  
1926.1204(n). The requirements of Sec.  1926.1205(f) help to ensure 
that employees complete future PRCS entries in a similar way if the 
previous entries were successful, or that employers improve future PRCS 
entries by resolving any problems or concerns discovered.
    One commenter asserted that the retention period should end upon 
completion of the project (ID-099, p. 4). OSHA disagrees with this 
commenter because the lack of document retention would significantly 
affect the employer's ability to complete its required annual review. 
OSHA set this minimum retention period at one year to ensure that the 
documents still would be available when employers conduct the required 
12-month review specified by final Sec.  1926.1204(n).
    As the Agency noted in the proposed rule, these document-retention 
requirements are in addition to the document-retention requirements 
required by other OSHA standards, such as the 30-year retention period 
for employee-exposure records required by 29 CFR 1910.1020(d) 
(Preservation of records) \23\ (see note to proposed Sec.  
1926.1219(b)). In some cases, entry permits may constitute employee-
exposure records. (See definition of ``employee exposure record'' at 29 
CFR 1910.1020(c)(5).)
---------------------------------------------------------------------------

    \23\ The note in 29 CFR 1926.33 makes the provisions of 29 CFR 
1910.1020 (Access to employee exposure and medical records) 
applicable to construction operations.
---------------------------------------------------------------------------

    One commenter suggested that OSHA incorporate the language in the 
general industry confined spaces directive, CPL 02-00-100: Application 
of the Permit-Required Confined Spaces (PRCS) Standard, 29 CFR 1910.146 
(May 5, 1995), to provide additional explanation of what constitutes an 
``employee exposure record.'' OSHA agrees that the term has the same 
meaning in this final rule as in the general industry standard, and 
that the guidance from CPL 02-00-100 is equally applicable: ``[R]esults 
which show the composition of an atmosphere to which an employee is 
actually exposed (even if the employee is using a respirator) are 
exposure records under 29 CFR 1910.1020(c)(5).''
    This requirement to maintain exposure records gives healthcare 
providers, in the event of an emergency, access to information about 
the substances and exposure levels the employee may have experienced 
while working within a confined space. This information will enable 
healthcare providers to administer medical care effectively to injured 
employees.

Section 1926.1206--Entry Permit

    An employer conducting a permit-space entry must post an entry 
permit outside the permit space to document the employer's efforts to 
identify and control conditions in that permit space (see Sec.  
1926.1205(c)). The purpose of the permit is to provide a concise 
summary of the permit-space entry requirements for a particular entry 
that will be useful to the personnel who are conducting the entry 
operations, to rescue personnel, to the controlling contractor, to 
other employers working near the confined space, and to any personnel 
who need to review the conduct of entry operations after the employer 
terminates the operations. Making the information on this document 
accessible to employers and employees affected by the hazards in and 
around the permit space also allows them to maintain an elevated 
awareness of the conditions within the permit space, as well as 
knowledge of the equipment and procedures necessary for safe permit-
space entry operations.
    The introductory language in final Sec.  1926.1206 requires the 
employer to include, on the entry permit, all of the information 
specified in Sec.  1926.1206(a) through (p). Most of the information 
required on the permit is substantively identical to the general 
industry confined spaces requirements at Sec.  1910.146(f). The 
exception is paragraph (e), which requires the employer to record the 
means of detecting an increase in atmospheric hazard levels if a 
required ventilation system stops working. OSHA included that 
requirement in the proposed rule and, for the reasons explained below, 
OSHA concludes that it is important to retain it in the final rule.
    Proposed Sec.  1926.1210(k) provided that the employer must 
document, on the entry permit, all ``determinations made'' and 
``actions taken'' during PRCS procedures, as required by proposed rule 
Sec.  1926.1214(a). Commenters appeared to interpret this proposed 
provision as a broad and overly burdensome requirement, which was not 
OSHA's purpose (see, e.g., ID-095, p. 4). In light of the concerns 
about the proposed language, the Agency notes that the final rule is 
not requiring employers to include on the entry permit each 
determination or action taken with respect to the permit entry. 
However, employers still must make certain demonstrations about 
hazards, ventilation, monitoring, or equipment, and document other 
determinations, as required by the final standard, and make that 
information available to employees (see, e.g., Sec.  1926.1203(e)(1), 
(g)(2), (g)(3)). Final Sec.  1926.1206 is otherwise generally 
consistent with proposed Sec.  1926.1214(a).
    Paragraph (a). Final Sec.  1926.1206(a), which is identical to 
Sec.  1910.146(f)(1), requires the employer to identify the permit 
space that workers are planning to enter. This information will ensure 
that employees use the correct permit for the permit space.
    Paragraph (b). Final Sec.  1926.1206(b), which is identical to 
Sec.  1910.146(f)(2), requires the employer to record the purpose of 
the entry. As the Agency noted in the proposed rule, this information 
must be sufficiently specific, such as identifying specific tasks or 
jobs employees are to perform within the space, to confirm that the 
employer considered performance of each specific construction activity 
in the hazard assessment of the PRCS. (See proposed Sec.  
1926.1214(a)(1)(ii).) An entry employer's failure to evaluate 
construction activities performed within the PRCS for their effect on 
the conditions within the space could result in serious injury or death 
to employees.

[[Page 25434]]

It would be sufficient, for example, to state the purpose of entry as 
``replacement of communications cable in sewer line,'' or ``welding 
upgraded component inside steel tank,'' but it would not be sufficient 
to state only ``communications work in sewer line'' or ``upgrade to 
tank.''
    Paragraph (c). Final Sec.  1926.1206(c), which is identical to 
Sec.  1910.146(f)(3), requires the employer to record the date and 
authorized duration of the planned entry. The ``date'' refers to the 
day on which authorized entrants are permitted to enter the PRCS. The 
duration of the permit may not exceed the time required to complete the 
specified tasks or jobs, including the time necessary to set up and 
dismantle any tools or equipment required to perform the tasks or jobs 
(see Sec.  1926.1205(d)). The employer need not list duration in terms 
of time, but instead may describe it in terms of the completion of 
tasks identified in the permit. For instance, the employer could 
describe the duration as ``welding and repair of water main'' or 
``upgrading equipment in an electrical vault.'' One purpose of this 
provision is to ensure that employees engaged in PRCS operations are 
informed of the period during which conditions in the PRCS must meet 
acceptable entry conditions as specified in the entry permit. A second 
purpose is to place some reasonable limit on the duration of the 
permit, because a permit of unlimited duration is not likely to account 
for changed PRCS conditions.
    Paragraph (d). Final Sec.  1926.1206(d), which is identical to 
Sec.  1910.146(f)(4), requires the employer to record the identity of 
the authorized entrants so that the attendant is capable of safely 
overseeing the entry operations. Employers can meet this requirement by 
referring in the entry permit to a system such as a roster or tracking 
system used to keep track of who is currently in the PRCS. The 
availability of this information would enable the attendant, entry 
supervisor, or rescue service to quickly and accurately account for 
entrants who might still be in the PRCS when an emergency occurs. A 
second purpose is to provide assurance that all authorized entrants 
have exited the PRCS at the end of entry operations. A third purpose 
would be to assist the attendant and entry supervisor in preventing 
unauthorized personnel from entering the space.
    It is extremely important for the employer to confirm that all 
authorized entrants have exited the PRCS during an evacuation. 
Therefore, a tracking system that lists the names of the employees who 
the employer designates as authorized entrants, but does not accurately 
account for the number of employees inside the PRCS at all times, would 
not meet the requirements of this paragraph. Merely maintaining a list 
of authorized entrants, who may or may not be at the job site or inside 
the PRCS, would not help the employer determine how many authorized 
entrants are left inside the PRCS should an evacuation be necessary. 
Likewise, a tracking system that only accounts for the number of 
authorized entrants inside the PRCS, without providing their names or 
other identifiers, also is not acceptable; knowing the name or other 
identifier of each entrant makes it easier for the rescuers to 
determine where the entrant is assigned to work in the PRCS, and 
thereby determine the entrant's probable location.
    Paragraph (e). When a permit program requires ventilation, OSHA 
requires employers to ensure that they have a monitoring system in 
place that will alert employees of increased atmospheric hazards in the 
event the ventilation system fails (see Sec.  1926.1204(c)(5)). Final 
Sec.  1926.1206(e) requires the employer to record the means of 
detecting an increase in atmospheric-hazard levels if the ventilation 
system stops working. It is important for employers to provide this 
information on the entry permit so that any new employees can easily 
access this information and respond appropriately and as quickly as 
possible to ensure the continued safety of entrants. For example, if 
the original entry supervisor is replaced by a new entry supervisor 
halfway through entry operations, the new entry supervisor can refer to 
the entry permit for this information.
    Paragraph (f). Final Sec.  1926.1206(f), which is substantively the 
same as Sec.  1910.146(f)(5), requires the employer to record the names 
of each attendant. Final Sec.  1926.1206(f) differs from Sec.  
1910.146(f)(5) only in that it clarifies that the name of ``each 
person,'' rather than ``the person,'' must be recorded on the entry 
permit. There is often more than one attendant during the course of 
entry operations, so this requirement would facilitate identifying 
attendants quickly and easily, thereby expediting communications with 
them, which is necessary for the performance of safe PRCS entry 
operations, and for the performance of specified duties during 
emergency situations. When a new attendant replaces the previous one, 
the employer must make it clear on the permit which attendant is on 
duty, such as by crossing out the previous attendant's name, so that 
there is no confusion about the identity of the current attendant 
Without this requirement, the employer could waste valuable time 
finding the attendant responsible for protecting authorized entrants 
during an emergency.
    Paragraph (g). Final Sec.  1926.1206(g), which is nearly identical 
to Sec.  1910.146(f)(6), requires the employer to record the name of 
each employee currently serving as entry supervisor. The same reasons 
for requiring the names of the attendants apply for requiring the name 
of the entry supervisor here: it provides an assured means of 
distinguishing these important individuals quickly and easily so that 
employees may alert them of a developing hazard, and it provides the 
opportunity for these individuals to review the permit and entry 
conditions to ensure that entry conditions remain safe. The general 
industry standard requires a space for each entry supervisor's name, 
which implies that the entry supervisor names will be filled in, but in 
this final rule OSHA is modifying paragraph (g) to make that 
requirement explicit: The employer must ensure that the name of each 
entry supervisor is entered into that space. As with the changes to the 
attendants, the employer must ensure that the current supervisor is 
identified as such when one supervisor replaces another.
    Paragraph (h). Final Sec.  1926.1206(h), which is identical to 
Sec.  1910.146(f)(7) and corresponds to proposed Sec.  
1926.1214(a)(2)(i)(A), requires the employer to record the hazards 
associated with the planned confined space entry operations. This list 
must include all hazards, regardless of whether the employer protects 
the authorized entrants from the hazards by isolation, control, or 
personal protective equipment. Providing this list will make it clear 
which hazards the employer already identified so that the entrants can 
confirm that they received training to work around such hazards, and 
will know to bring any other developing hazard to the attention of the 
entrance supervisor immediately.
    Paragraph (i). Final Sec.  1926.1206(i), which is identical to 
Sec.  1910.146(f)(8) and corresponds to proposed Sec.  
1926.1214(a)(2)(i)(B), requires the employer to record the procedures 
used to isolate or control the hazards prior to entry. This information 
must be consistent with the requirements specified in final Sec.  
1926.1204(c), and must include the methods used to isolate or control 
the hazards, the type of personal protective equipment provided, the 
methods used to monitor each hazard (including the use of early-warning 
systems, if required by final Sec.  1926.1204(e), and how frequently 
each hazard is to be monitored). Note that

[[Page 25435]]

under final Sec.  1926.1204(e), employers must use continuous 
monitoring of atmospheric hazards unless the employer demonstrates that 
periodic monitoring is sufficient. The permit need only refer to the 
procedures used to meet the requirements of this paragraph in 
sufficient detail to enable employees to determine what measures they 
must take, and how to perform those measures.
    One commenter urged OSHA to require employers to identify the 
name(s) of the person(s) who performed all of the hazard-isolation or 
control procedures listed on the permit pursuant to Sec.  1926.1206(i), 
such as the person(s) who operated a ventilation machine to control an 
atmosphere (ID-0625, p. 4). OSHA notes that employers must already 
include the names or initials of the person performing monitoring under 
final Sec.  1926.1206(k). To the extent that the commenter intended to 
ensure the accuracy of the tests and measurements associated with the 
isolation or control procedures, OSHA notes that the entry supervisor 
must already verify the accuracy of this information (Sec.  
1926.1210(b)). Therefore, OSHA concludes that, in the absence of 
additional evidence to indicate that these records would provide a 
discernible safety benefit, the additional records suggested by the 
commenter are not necessary.
    Paragraph (j). Final Sec.  1926.1206(j), which is identical to 
Sec.  1910.146(f)(9), requires the employer to specify the acceptable 
entry conditions. The list of acceptable entry conditions includes 
energy control considerations and conditions such as the permissible 
levels allowed for oxygen, flammable gases and vapors, other hazardous 
substances during PRCS entry. Additional information regarding PRCS 
conditions includes, for example, the methods used to maintain a water 
hazard at safe levels. Another example included in the NPRM is when an 
employer decides to use PPE to protect employees from an atmospheric 
hazard, the acceptable conditions must include, at a minimum, the type 
of PPE the employees will use (such as type of respirator), and the 
levels at which the PPE would protect the employees from the 
atmospheric hazard. OSHA requires the employer to list the acceptable 
conditions on the permit so that the authorized entrants, attendants, 
and entry supervisors have this information on hand at the worksite, 
thereby ensuring safe entry operations.
    This provision also requires employers, when applicable, to provide 
the ventilation-malfunction determinations made in paragraph (c)(5) of 
final Sec.  1926.1204. As explained in the proposed rule, and above in 
the discussion of final Sec.  1926.1204(c)(5), some permit spaces may 
require ventilation to control the atmospheric hazards at levels that 
are below the levels at which they are harmful to entrants so that 
entrants will have time to exit the PRCS safely (72 FR 67365). In these 
spaces, the employer will be responsible for identifying that level and 
monitoring the permit-space atmosphere to detect any increase of the 
potentially hazardous substance. The Agency's requirement that the 
employer include these determinations on the permit informs employees 
(for example, entry supervisors, attendants, and authorized entrants) 
about the time required for the entrants to evacuate the PRCS should 
the ventilation system fail, and allows authorized entrants, 
attendants, and entry supervisors to respond quickly to any deviations 
in these conditions, including ventilation-system failure.
    OSHA notes, as it did in the explanation of this provision in the 
general industry standard, that there is likely to be overlap between 
this requirement to list the acceptable entry conditions and the 
separate requirement in Sec.  1926.1206(i) to identify the hazard-
control or elimination measures that the employer must also list on the 
permit (58 FR 4509 (Jan. 14, 1993)). The Agency anticipates that 
employers may elect to combine these two elements when filling out the 
permit, and such an approach is permissible so long as the employer 
includes all of the relevant information in some form that the 
authorized entrant, attendant, or entry supervisor can identify 
quickly.
    Paragraph (k). Final Sec.  1926.1206(k), which is nearly identical 
to Sec.  1910.146(f)(10), requires the employer to record the dates, 
times, and results of the tests and monitoring performed, and the names 
or initials of the individuals who performed each test. Entering the 
testing and monitoring results in the permit enables the entry 
supervisor, attendants, and authorized entrants to determine readily 
whether acceptable entry conditions exist with regard to atmospheric 
hazards in the PRCS. The employer also could use this information to 
identify atmospheric conditions within the PRCS that need to be 
monitored frequently because atmospheric conditions tend to rise 
rapidly to hazardous levels. For example, if the oxygen concentration 
is 19.6 percent, the attendant and entrants should be alert for signs 
of oxygen deficiency, such as increased breathing rate, dizziness, 
rapid heartbeat, and headache. Furthermore, documentation of test 
results on the permit also facilitates the review of canceled permits 
required under paragraph (d)(14). If testing indicates that levels of 
hazardous substances are increasing, the increased hazard will be easy 
to recognize through a review of the recorded test results on the 
canceled permit.
    Listing the names of those who performed the testing identifies a 
point of contact to which entry supervisors and attendants can direct 
questions they may have regarding the results and procedures. The date 
and time (or, for continuous monitoring, a time period) would provide a 
basis for detecting dangerous trends in atmospheric conditions that may 
indicate that more frequent observation of the atmospheric data is 
necessary.
    The single difference between the final rule and Sec.  
1910.146(f)(10) is that the general industry provision requires 
documentation of ``initial and periodic testing,'' whereas final 
paragraph (k) of this final standard requires documentation of the 
results of all ``tests'' and ``monitoring.'' OSHA made these changes to 
address a significant difference between this final rule and Sec.  
1910.146: This final rule generally requires continuous monitoring, 
whereas Sec.  1910.146 only requires periodic testing. For further 
explanation of this change, see the discussion to final Sec.  
1926.1204(e).
    Consistent with data collection from continuous monitoring under 
Sec.  1910.146, the continuous monitoring values recorded on the entry 
permit are ``real time'' concentrations. See December 10, 1996, letter 
to Michael Coleman, available at www.osha.gov. Although the final 
standard does not specify the frequency with which the employer must 
record continuous monitoring measurements, from a compliance 
perspective, the quantity of data entered on the permit must indicate 
the number of times the entry supervisor or other entrant examined the 
monitoring data. These measurements must be recorded with sufficient 
frequency to demonstrate that the permit space was monitored such that 
the employee could identify a change in atmosphere or other potential 
hazard in time to allow entrants to exit the permit space safely (See 
also discussion of Sec.  1926.1203(e)(2) and 1926.1204(e)(2).) For 
continuous monitors with alarms, employers must record each time the 
alarm is triggered. Employers also must include the initial entry-
monitoring results on the entry permit for the reasons explained above; 
these results also would serve as a baseline for subsequent 
measurements.

[[Page 25436]]

See December 10, 1996, letter to Michael Coleman, available at 
www.osha.gov.
    Paragraph (l). Final Sec.  1926.1206(l), which is identical to 
Sec.  1910.146(f)(11), requires the employer to identify the rescue and 
emergency services required by this final rule, and the means by which 
these services will be summoned when needed. Identification of these 
services and the means for summoning them enables attendants to summon 
the appropriate service immediately in case of emergency. In some 
cases, an employer must include pertinent information, such as 
communication equipment and emergency telephone numbers, on the permit 
to sufficiently identify the means by which the rescue or emergency 
services will be summoned. The inclusion of this specific information 
would allow attendants to avoid errors and delays in contacting the 
rescue service.
    Paragraph (m). Final Sec.  1926.1206(m), which is identical to 
Sec.  1910.146(f)(12), requires the employer to record all of the 
methods of communication used between authorized entrants and 
attendants during entry operations. OSHA notes that establishing a 
routine for maintaining contact between attendants and authorized 
entrants would help attendants detect problems within the PRCS. OSHA 
anticipates that the method of communication chosen may vary according 
to the circumstances of the particular workplace; however, the methods 
chosen must enable the attendants and the entrants to maintain 
effective and continuous contact. OSHA notes that, while such 
communication will normally be achieved through speech, other methods, 
such as tapping on a wall, may be acceptable as long as it achieves 
effective and continuous contact. See July 30, 1993, letter to Julie 
Emmerich, available at www.osha.gov.
    Paragraph (n). Final Sec.  1926.1206(n), which is identical to 
Sec.  1910.146(f)(13), requires the employer to record the equipment it 
provides in accordance with the requirements of this final rule. This 
equipment would typically include, for example, personal protective 
equipment, testing equipment, communications equipment (including 
equipment needed to assess entrants' status in the space), alarm 
systems, rescue equipment, and other equipment that the employer would 
provide to ensure compliance with paragraph (d)(4) of final Sec.  
1926.1204 (personal protective equipment) or any other part of the 
standard. This requirement provides employees with a ready reference to 
the equipment required for safe entry operations.
    Paragraph (o). Final Sec.  1926.1206(o), which is substantively 
identical to Sec.  1910.146(f)(14), requires the employer to record any 
additional information needed to ensure safe confined space entry 
operations. OSHA amended the language in Sec.  1910.146(f)(14) slightly 
for clarity and conciseness. As OSHA explained in the preamble to the 
general industry standard, this provision is necessary for employee 
protection due to ``the wide-ranging types of hazards found in permit-
required confined spaces, there are many hazards that cannot be 
adequately addressed with any precision in a generic permit space 
standard'' (58 FR 4510 (Jan. 14, 1993)). Examples of the information 
required by paragraph (o) may include: Problems encountered in the 
PRCS; problems that an attendant, entry supervisor, or authorized 
entrant believes may be relevant to the safety of the entrants working 
in the space; or any other information that may be relevant to employee 
safety under these conditions.
    Paragraph (p). Final Sec.  1926.1206(p), which is identical to 
Sec.  1910.146(f)(15), requires the employer to record information 
about any other permits, such as for hot work, issued for work inside 
the confined space. If the employer identifies additional permits, 
these additional permits may be, but are not required to be, attached 
to the entry permit to provide information about the activity covered 
by the permit to employees involved in the entry operations so they can 
take appropriate precautions.

Section 1926.1207--Training

    Final Sec.  1926.1207 requires employers to train each employee who 
performs work regulated by this standard, and specifies the 
requirements of that training. The provisions in final Sec.  1926.1207 
are substantively similar to the provisions in the general industry 
confined spaces rule at Sec.  1910.146(g). The substance of the 
training provisions in the proposed rule was similar to, but organized 
differently than, the training provisions in the general industry rule. 
The final rule includes a few provisions from the proposed rule to 
provide clarity and to ease documentation, as explained below, but 
follows the language and organization of the general industry standard. 
Proposed Sec. Sec.  1926.1208, 1926.1213, 1926.1216, and 1926.1217 
separated the training requirements based on the type of confined space 
involved. One commenter asserted that, in general, the training 
requirements were too scattered throughout the proposed rule (ID-099, 
p. 4). By organizing the training provisions according to the training 
provisions of the general industry confined spaces standard at Sec.  
1910.146(g), OSHA placed the training requirements together in one 
section.
    Paragraph (a). Final Sec.  1926.1207(a) sets forth the requirement, 
also found in Sec.  1910.146(g)(1), that employers must train each 
employee who performs work regulated by this standard. OSHA modified 
this provision from Sec.  1910.146(g)(1) to include some language from 
the proposed rule and to clarify two aspects of this requirement: (1) 
The employer must train each employee; and (2) the employer must 
provide training at no cost to the employee. Final Sec.  
1926.1207(a)(1) refers to ``each employee'' rather than ``all 
employees'' to emphasize that an employer's responsibility in this area 
flows separately to each employee. The provision of training at no cost 
is implicit in the general industry standard, and is consistent with 
OSHA's longstanding policy regarding employer responsibility for 
training. See, e.g., 29 CFR 1926.1430(g)(3) (training under the Cranes 
& Derricks in Construction standard), Sec.  1910.1001(j)(7)(iv) 
(asbestos awareness training for employees who perform housekeeping 
operation in an area that contains asbestos), and June 25, 1991, 
Memorandum to Regional Administrators, # 20315 (training under the 
HAZWOPER standard, 1910.120), available at www.osha.gov.
    Paragraph (a) of the final rule also requires employers to provide 
training so that employees who perform work regulated by part 1926, 
subpart AA, acquire the understanding, knowledge, and skills necessary 
for the safe performance of the duties assigned under that section, 
including the safe operation of equipment and the proper use of PPE. 
Sections 1926.1208, 1926.1209, 1926.1210, and 1926.1211 of this final 
rule specify in detail the duties of authorized entrants, attendants, 
entry supervisors, and rescue service personnel. Paragraph (a) requires 
the training to impart the understanding, knowledge, and skills 
necessary for the safe performance of the duties assigned under those 
sections. OSHA believes that the training employers provide employees 
under this provision will enable the employees to understand their 
duties under this standard, as well as the hazards posed by permit 
spaces, and to properly use equipment and PPE in a PRCS. Therefore, 
this training will enable employees to safely perform their requisite 
PRCS duties.
    In this paragraph, the Agency is requiring the employer to provide 
whatever training is necessary to achieve the goal of safe performance 
of

[[Page 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 Sec.  1926.1207, and 
by specifying what those duties are in the relevant sections, the final 
rule sets forth requirements regarding whom employers train, as well as 
the content of the training.
    This paragraph also incorporates a requirement found in proposed 
Sec.  1926.1209(d)(1), which specifies that the training must result in 
an understanding of the hazards in the permit space(s), and the 
method(s) used to isolate, control, or in other ways protect employees 
from the hazards. For example, if an authorized entrant enters the 
space to isolate an identified hazard or to set up ventilation to 
control an atmospheric hazard, the employer must train the employee not 
only in accordance with the PRCS entry requirements, but also to 
perform the tasks necessary to isolate and control the specific hazards 
in accordance with other appropriate OSHA requirements applicable to 
construction. The employer also must train each employee who enters the 
space thereafter to understand how the employer isolated or controlled 
any hazards in the space. OSHA believes that the training employees 
receive under this provision will enable them to associate the signs, 
symptoms, and characteristic effects (discussed elsewhere in this 
preamble) to the failure of methods to control or isolate the hazards, 
and to alert them so that do not inadvertently disturb the isolation or 
control mechanisms. Therefore, this training will enable employees to 
safely perform their duties while working in the PRCS, and to respond 
appropriately if the hazard-protection methods fail.
    Additionally, final Sec.  1926.1207(a) includes the requirement, 
found in proposed Sec.  1926.1209(d)(2), that, for employees not 
specifically authorized to perform entry rescue, their training must 
result in an understanding of the dangers of attempting entry rescue. 
This aspect of the training need not be extensive, as its purpose is to 
prevent exposure to permit-space hazards by simply keeping all 
employees who are not authorized to perform entry rescue out of such 
spaces. OSHA prohibits such entry precisely because it is likely to 
increase the risks of further injury to both the would-be rescuer and 
the employee requiring rescue. In final Sec.  1926.1204(a) and (i), the 
Agency also requires entry employers to take action to prevent all 
unauthorized entry, but the training required by final paragraph (a) 
remains crucial to overcome the inclination of many employees to 
attempt to rescue a trapped colleague. If employees do not fully 
appreciate the dangers involved, their actions might also pose a danger 
to those employees designated to provide rescue.
    Finally, some commenters asserted that the training requirements in 
this final rule should require employers to train entrants on the use 
of gas, propane, and diesel-powered equipment and chemical-cartridge 
respirators (ID-025, p. 3; ID-095, p. 3). Final Sec.  1926.1207(a) 
requires employers to ensure that employees acquire the knowledge and 
skill to safely perform their duties, which includes training employees 
on how to use all equipment used in the PRCS.
    Paragraph (b). Final Sec.  1926.1207(b), which is substantively 
similar to Sec.  1910.146(g)(2), requires the employer to provide 
training to each employee covered by this standard, as specified by 
paragraphs (b)(1)-(b)(5). One commenter requested that OSHA clarify 
that the employer must provide this training in a language understood 
by the employee (ID-140, p. 5). OSHA designed the training requirements 
in final Sec.  1926.1207 to ensure that employees performing work 
regulated by this final rule understand the hazards so that they can 
take necessary precautions to perform their work safely. Therefore, the 
employer must provide this training in a language the employee 
understands, and ensure that the employee comprehends the training, to 
achieve the purpose of the training requirements. Final Sec.  
1926.1207(b)(1) incorporates the requirement that training be in both a 
language and vocabulary that the employee understands, which is 
consistent with OSHA's policy for all OSHA training requirements. See 
April 28, 2010, OSHA Training Standards Policy Statement, available at 
www.osha.gov. OSHA views this policy as applicable to all training 
requirements in all OSHA standards, but is adding the language in this 
standard for clarity.
    Final Sec.  1926.1207(b)(2)-(b)(4) require that the employer 
provide training before assigning the employee duties covered by this 
final standard, when there is any change in duties, and whenever there 
is a change in permit conditions that present a hazard for which the 
employee did not previously receive training. These requirements are 
substantively identical to Sec.  1910.146(g)(2)(i)-(g)(2)(iii). OSHA 
believes the requirements in final Sec.  1926.1207(b)(2)-(b)(3) are 
necessary to ensure that employers provide the training required by 
final Sec.  1926.1207(a) at the appropriate times, that is, prior to 
exposure to confined space hazards.
    Final Sec.  1926.1207(b)(2), which is identical to Sec.  
1910.146(g)(2)(i), requires employers to initially train their 
employees before assigning them to perform duties under this standard. 
Accordingly, the employer must ensure that specified employees (that 
is, entry supervisors, attendants, authorized entrants, and rescue-
service employees) receive the training required by final Sec.  
1926.1207(a) prior to performing assigned PRCS duties. This requirement 
ensures that employers train these specified employees regarding PRCS 
hazards before the employer exposes authorized entrants to these 
hazards.
    Final Sec.  1926.1207(b)(3) and (b)(4) are substantively identical 
to the general industry standard at Sec.  1910.146(g)(2)(ii) and 
(g)(2)(iii). They address the issue of refresher training. Final 
paragraph (b)(3) requires training before there is a change in assigned 
duties. Such changes could be the result of new equipment or techniques 
introduced into the entry operations, promotions, or simple 
reassignments. If an employee previously received training in the new 
duties and the employer ensures that the employee is still familiar 
with the previous training, then the employer need not conduct 
additional training under this paragraph, provided the employer has no 
evidence that there are inadequacies in the employee's knowledge or use 
of the relevant permit-space procedures. If there is evidence that such 
inadequacies exist, the employer must retrain the employee under final 
paragraph (b)(5).
    Paragraph (b)(4) similarly requires retraining if there is a change 
in permit-space entry operations that presents a hazard for which an 
employee did not previously receive training. This paragraph changes 
the phrase ``permit space operations,'' from the general industry 
standard at Sec.  1910.146(g)(2)(iii), to ``permit space entry 
operations'' for the reasons explained in the introduction to the 
discussion of final Sec.  1926.1204. One commenter was unsure whether 
minor revisions of procedures, such as an increase in the use of 
mechanical ventilation, would trigger the training requirements of 
final Sec.  1926.1207(b)(3) (ID-099, p. 3). The relative significance 
of the change in procedures does not determine the need for additional 
training; employers must ensure that employees can perform their duties 
safely, so any change in PRCS entry procedures for which an employee 
did not receive previous training would necessitate training under this 
final rule

[[Page 25438]]

to the extent it requires new knowledge or skill by the employee.
    Final Sec.  1926.1207(b)(5) provides that an employer must retrain 
an employee whenever the employer has any evidence that the employee 
has deviated from PRCS entry procedures or inadequacies in the 
employee's knowledge or use of these procedures. This provision is 
substantively identical to the general industry standard at Sec.  
1910.146(g)(2)(iv), but this final provision clarifies that retraining 
must occur when there is evidence of deviation, a change from the 
phrase ``reason to believe'' in the general industry standard. OSHA 
believes the term ``evidence'' will be clearer than the general 
industry language for both employers and OSHA inspectors. By making 
this revision, OSHA does not intend to make a substantive difference in 
the types of employee actions or other factors that would trigger the 
retraining requirement. Evidence of a need for retraining may come from 
a variety of sources, such as an employee's actions during, or prior 
to, an entry, statements made that indicate a lack of understanding of 
permit-space entry procedures, reports of other employees or third 
parties, or from other incidents.
    One commenter asserted that requiring retraining after every 
deviation is overly burdensome. (ID-120, p. 3.) This commenter 
suggested that OSHA require the employer to establish a better line of 
communication and coordination when the deviation is not too severe. 
However, the commenter did not suggest a means of identifying the 
severity of a deviation. In light of the hazards associated with 
confined spaces, and the procedures implemented to address those 
hazards, the failure of even one employee to follow the correct 
procedure can adversely affect the safety of others. OSHA, therefore, 
concludes that it is necessary to retrain any employee who deviates 
from the approved entry procedures. This retraining must provide the 
employee with the knowledge and skills necessary for safe performance 
of his or her confined space duties in accordance with final Sec.  
1926.1207(a), although the employer may restrict retraining to the 
limited aspect of the employee's overall responsibility on which the 
employee made the deviation. For example, if employee failed to use a 
piece of equipment properly, the retraining could focus on the proper 
use of that equipment, and need not focus on areas unrelated to the 
deviation, such as the hazards associated with the atmosphere in the 
space.
    Paragraph (c). Final Sec.  1926.1207(c), which is identical to the 
general industry standard at Sec.  1910.146(g)(3), requires an employer 
to establish that the employee is capable of performing his or her 
confined space duties proficiently, and to provide any supplemental 
training needed to make the employee proficient. This provision ensures 
that employees will not enter a PRCS without being able to apply the 
knowledge and procedures addressed in their training. In other words, 
the employer must determine that, for each employee, the training is 
effective and resulted in the employee being capable of performing the 
required duties proficiently.
    Some commenters were unsure how an employer can demonstrate that an 
employee is proficient under final Sec.  1926.1207(c) (ID-106, p. 2; -
120, p. 3; -152, p. 3). Final Sec.  1926.1207(c) is a performance-
oriented measure that provides employers with flexibility by not 
requiring a particular way to demonstrate proficiency. Administration 
of a test or practical examination are some examples of how an employer 
may demonstrate an employee's proficiency.
    Paragraph (d). Final Sec.  1926.1207(d), which is substantively 
similar to the general industry standard at Sec.  1910.146(g)(4), 
requires an employer to ``maintain training records,'' as opposed to 
the requirement in Sec.  1910.146(g)(4) that employers ``certify'' 
training. This final paragraph also requires employers to document the 
names of employees trained, the trainer's name, and the dates of the 
training performed, and to make these records available for inspection 
by employees and their authorized representatives. Final Sec.  
1926.1207(d) differs from the general industry standard in that it 
provides more flexibility in the documentation of training, and it 
requires the retention of this documentation.
    The training-documentation provision in final paragraph (d) 
requires only the name of the trainer, not the trainer's signature or 
initials as required in the general industry standard. Proposed Sec.  
1926.1209(d)(5) contained these more flexible requirements, and OSHA 
retained them in the final rule. This documentation can take any form 
that reasonably demonstrates the employee's completion of the training. 
Examples include a record of test scores, a photocopied card certifying 
completion of a class, or any other reasonable means. The employer may 
store these records electronically so long as they are readily 
accessible upon request. OSHA recognizes that the turnover rate for 
employees on construction sites is higher than in many other 
industries, and that employees also are likely to work at several 
different worksites based on the type of work required. For example, an 
employer could designate an employee to be an authorized entrant in 
several different confined spaces at the same worksite, which may 
require the employee to perform different assigned tasks under various 
planned conditions. In this situation, the documentation must be 
readily accessible to determine whether the employee received the 
training necessary to perform the various tasks under the planned 
conditions. Compliance with this provision will help ensure safe 
conditions within the PRCS by providing employers, and OSHA, with an 
administrative tool that they can use to confirm which employees will 
be able to perform the duties required by this standard. Section 
1926.1207(d) requires, as the general industry standard does, that 
these training records must be available for inspection by employees 
and their authorized representatives. Permit-space employees rely on 
their fellow employees for safe entry operations, and this provision 
provides that the training records that document employees' training 
status be available to those employees and their representatives. This 
requirement can be especially important in the construction industry 
due to the high level of employee turnover and multiple employers 
present at construction sites, including different employers who 
conduct simultaneous entry where one employer's lack of training for 
its employees could jeopardize the fully trained employees of a 
different employer. Consequently, making these records available for 
inspection by employees and their representatives provides an 
additional level review to ensure that the employees received the 
proper training and are ready to engage in safe entry operations.
    One commenter was unsure whether the final standard would require 
an employer to maintain the name of the person that provides general 
confined space training as well as ``for the specifics of this PCRS.'' 
(ID-098, p. 2). OSHA is uncertain of what training the commenter is 
referring to. To the extent that the commenter was referring to 
training required by this final rule, final Sec.  1926.1207(d) requires 
the employer to record the name of the person who conducted the 
training. To the extent the commenter was referring to training 
required by a different rule, the

[[Page 25439]]

comment is not applicable to this rulemaking.
    As in this final rule, proposed Sec.  1926.1219(c) required that 
employers retain these training records for the time the employee 
remains employed by them. The general industry confined spaces standard 
at Sec.  1910.146(g)(4) does not specify how long an employer must 
retain the documentation. These training records are a valuable 
resource for tracking whether an employee received the necessary 
training. If these records are to serve as a tool to confirm employee 
training, the records must be available during the period the employee 
is working for the employer. Once the employee ceases to work for the 
employer, there is no longer a significant benefit in tracking this 
information. Therefore, OSHA is keeping in the final rule the proposed 
requirement that an employer must retain training documentation until 
the employee ceases to work for the employer.
    One commenter had several concerns about the retention of training 
records. First, the commenter asserted that this retention requirement 
is an unnecessary burden on employers (ID-099, p. 4). OSHA's experience 
under the documentation requirements of other standards indicates that 
employers typically use existing training records to meet these 
documentation requirements and, as explained above, final Sec.  
1926.1207(d) allows significant flexibility in the form of the records 
and how an employer must store them. Next, the commenter was unsure 
whether final Sec.  1926.1207(d) requires an employer to maintain 
training records when the employer lays off an employee and then 
rehires him or her (id). In the event an employee ceases to work for 
the employer, final Sec.  1926.1207(d) does not necessarily require the 
employer to continue to maintain or store the training records; 
however, there is an incentive for the employer to retain these records 
if there is a possibility that the employer might re-hire the employee, 
as in the example offered by the commenter. The standard does require 
the employer to maintain a set of training records for all employees 
performing confined space work, regardless of when the employer hired 
the employee, so if the employee is rehired the employer would be 
required to produce that employee's training records or retrain the 
employee. This commenter also asserted that employers should be free to 
establish their own policy for retaining training records (id). Final 
Sec.  1926.1207(d) leaves the employer with discretion in developing 
its training-documents retention policy, and requires retention only 
until the employee ceases to work for the employer.
    Another commenter asserted that final Sec.  1926.1207(d) should 
require employers to keep these training records on site (ID-031, p. 
1). OSHA finds that such a requirement would be an unnecessary burden 
on employers. The purpose of the final requirement is to ensure that 
employers can document their employees' training in case an issue 
arises with respect to the training (e.g., whether the employee 
received training, whether the training was adequate). Though the 
training records need to be readily available, it is not necessary for 
the employer to have immediate access to these records at the site. 
Requiring the employer to maintain the records and make them readily 
accessible for inspection, even offsite and/or in electronic form, is 
sufficient to accomplish the purpose of the provision.

Section 1926.1208--Duties of Authorized Entrants

    An authorized entrant is an employee authorized by an entry 
supervisor to enter a permit space. As the Agency noted in the preamble 
to the general industry standard, ``[T]his is the person who faces the 
greatest risk of death or injury from exposure to the hazards contained 
within the space'' (58 FR 4515 (Jan. 14, 1993)). Because of the dangers 
associated with confined space work, employers must prepare the 
entrants properly to perform duties so as to assure their own safety 
and the safety of their fellow entrants. The employer accomplishes this 
purpose by means of training, communication of effective work rules, 
and internal administration.
    Final Sec.  1926.1208 is nearly identical to the general industry 
requirements in Sec.  1910.146(h), except for minor editorial revisions 
and a revision in the introductory text to improve clarity. The 
introductory language in Sec.  1910.146(h), which sets out requirements 
for authorized entrants, refers generally to the duties of ``the 
employer.'' OSHA changed the introductory language to refer to ``the 
entry employer'' to clarify how this rule applies on multi-employer 
worksites. This is a non-substantive change, however, because the 
provisions in Sec.  1926.1208 apply to each employer establishing the 
permit program for a permit space or allowing its employees to enter 
under another employer's program.
    The authorized entrant duties also are substantively the same as 
the duties specified by proposed Sec.  1926.1211(g), except as noted in 
the discussion below. The Agency did not receive any comments 
specifically addressing that provision of the proposed rule.
    Paragraph (a). Final Sec.  1926.1208(a), which is substantively 
identical to the general industry standard at Sec.  1910.146(h)(1), 
requires an employer to ensure that an authorized entrant is familiar 
with and understands the potential hazards associated with each 
particular confined space entry, including the mode, signs or symptoms, 
and the consequences of exposure to these hazards. The final rule uses 
``familiar with and understands,'' rather than the ``knows'' used in 
the general industry standard, to emphasize the employee comprehension 
required by the rule. This knowledge and understanding affords 
authorized entrants with the information they need to protect 
themselves from these hazards, including recognition of the effects of 
these hazards should exposure occur.
    Paragraph (b). Final Sec.  1926.1208(b), which is substantively 
identical to the general industry standard at Sec.  1910.146(h)(2), 
requires an employer to ensure that an authorized entrant uses required 
equipment properly. OSHA believes that proper use of such equipment is 
essential for working safely inside a PRCS and preventing any rescue 
operation from harming the incapacitated authorized entrant. Many 
employers can meet this requirement through implementation of safe work 
practices, training, and effective enforcement of those practices.
    Paragraph (c). Final Sec.  1926.1208(c), which is substantively 
identical to the general industry standard at Sec.  1910.146(h)(3), 
requires an employer to ensure that an authorized entrant communicates 
effectively with the attendant to facilitate the attendant's adequate 
assessment of the entrant's status and timely evacuation (see also the 
discussion attendant-entrant communications in the explanation of Sec.  
1926.1206(m)). The authorized entrant's communication with the 
attendant provides the attendant with information regarding any 
problems the entrant is having, which the attendant can use to 
determine whether there is a need to evacuate the PRCS.
    Paragraph (d). Final Sec.  1926.1208(d), which is similar to the 
general industry standard at Sec.  1910.146(h)(4), requires an employer 
to ensure that an authorized entrant alerts the attendant whenever one 
of the following circumstances arises: (1) There is a warning sign or 
symptom of exposure to a dangerous situation; or (2) the entrant 
recognizes a prohibited condition. In some instances, a properly 
trained authorized entrant may be able to recognize and report his

[[Page 25440]]

or her own symptoms, such as headache, dizziness, or slurred speech, 
and take the required action. In other cases, the authorized entrant, 
once the effects begin, may be unable to recognize or report them. In 
these latter cases, this provision requires that other, unimpaired, 
authorized entrants in the PRCS, who employers must properly train to 
recognize signs, symptoms, and other hazard-exposure effects in other 
authorized entrants, report these effects to the attendant. Reporting 
these effects will ensure the safety of the authorized entrants by 
removing them from the hazardous conditions in a timely manner.
    Paragraph (d)(1) differs slightly from the corresponding general 
industry provision at Sec.  1910.146(h)(4)(i). The general industry 
provision requires an employer to ensure that an authorized entrant 
alerts the attendant when ``the entrant recognizes'' a dangerous 
situation. Final Sec.  1926.1208(d)(1) requires an employer to ensure 
that an authorized entrant alerts the attendant whenever ``there is . . 
. a dangerous situation.'' OSHA made this change to make the 
requirement objective, and not contingent on the subjective belief of 
an authorized entrant about the level of danger. For example, if an 
entrant knocks over a container of sealant that was not scheduled to be 
opened until later, thereby releasing hazardous fumes into an 
inadequately ventilated permit space, the final rule makes it clear 
that the entrant has a duty to report the incident to the attendant 
immediately. The employer must ensure that the entrant is adequately 
prepared to identify such an incident as a dangerous situation, and the 
entrant's failure to do so would not excuse the entrant or employer 
from that duty.
    By using language closer to that in the general industry, OSHA has 
deviated slightly from the equivalent requirement in the proposed rule, 
Sec.  1926.1211(g)(3), which required the authorized entrant to alert 
the attendant of ``any sign, symptom, unusual behavior, or other effect 
of a hazard.'' OSHA retained the reference to a ``symptom'' from the 
proposed rule, but believes that the reference to the ``dangerous 
situation'' in the general industry standard provides slightly broader 
coverage than the proposed language. Under the general industry 
standard and this final rule, attendants would need to be aware, for 
example, of an entrant experiencing a heart attack or other condition 
unrelated to the conditions in the confined space, but which might 
nevertheless affect that entrant and/or other entrants in the space. 
However, the general industry language incorporated into the final rule 
provides sufficient specificity regarding the conditions covered by the 
provision, and employers and authorized entrants are familiar with the 
language, having used it for years in general industry work (and in 
construction work if they chose to voluntarily follow the general 
industry requirements). Other examples of exposure to a dangerous 
situation that an authorized entrant must report to the attendant under 
paragraph (d)(1) or (d)(2) include: Low measurements of supplied air in 
a closed-respirator system; fraying or snagging of a retrieval line; a 
leak allowing an unidentified substance to enter the confined space 
through the walls of the space or from a container brought into the 
space; sparks or other evidence of potential electrical malfunction 
(particularly in areas where flammable gases are present); and any 
changes identified by the entrant in his or her physical condition or 
the physical condition of another entrant (e.g., dizziness, chest 
pains, vertigo, breathing difficulty, trembling, etc.).
    Paragraph (e). The introductory language in final Sec.  
1926.1208(e), which is identical to the general industry standard at 
Sec.  1910.146(h)(5), requires an employer to ensure that an authorized 
entrant exits from the confined space whenever one of circumstances 
identified in final Sec.  1926.1208(e)(1)-(e)(4) arises.
    Final Sec.  1926.1208(e)(1), which is similar to the general 
industry standard at Sec.  1910.146(h)(5)(i), requires an employer to 
ensure that an authorized entrant exits from the confined space 
whenever the attendant or entry supervisor orders an evacuation. It is 
essential that the authorized entrants quickly comply with the command 
to evacuate, particularly because the attendant or entry supervisor may 
be aware of a hazard that the authorized entrant has not detected. Even 
when there is disagreement between the entry supervisor and attendant 
as to whether to evacuate, this provision requires the employer to 
enforce orders to evacuate given by either the entry supervisor or the 
attendant. OSHA believes this provision is necessary because 
emergencies within a confined space are time sensitive, and the entry 
supervisor and attendant may have different information regarding the 
types or severity of the hazards in the PRCS.
    Final Sec.  1926.1208(e)(2), which is similar to the general 
industry standard at Sec.  1910.146(h)(5)(ii), requires an employer to 
ensure that an authorized entrant exits from the confined space 
whenever there is a warning sign or symptom of a dangerous situation. 
The phrase ``warning sign or symptom of a dangerous situation'' has the 
same meaning as in final paragraph (d) of this section. As with final 
paragraph (d), and for the same reason, final paragraph (e)(2) differs 
slightly from the corresponding general industry provision at Sec.  
1910.146(h)(5)(ii) because final Sec.  1926.1208(e)(2) requires an 
employer to ensure that an authorized entrant exits the space whenever 
``there is . . . a dangerous situation,'' rather than whenever ``the 
entrant recognizes'' a dangerous situation. This provision requires 
authorized entrants to exit the PRCS as quickly as possible in such 
cases because the safety procedures delineated in the permit are 
designed to work in the context of clearly defined acceptable entry 
conditions, and deviations from the planned measures therefore require 
timely evacuation to ensure the health and safety of the entrants 
pending evaluation of the dangerous situation.
    Final Sec.  1926.1208(e)(3), which is identical to the general 
industry standard at Sec.  1910.146(h)(5)(iii), requires an employer to 
ensure that an authorized entrant exits from the confined space 
whenever the entrant detects a prohibited condition, as defined in 
final Sec.  1926.1201. This requirement ensures that employees exit the 
confined space if there is any prohibited condition, such as a 
hazardous atmosphere or uncontrolled physical hazard, in the space. 
Exiting the space upon detecting a prohibited condition will prevent 
serious injury or death to the entrants. Other examples of prohibited 
conditions include, but are not limited to, the emergence of a new 
hazard, a hazard level that exceeds acceptable entry conditions, or 
personal protective equipment that is not working as planned. In such 
circumstances, authorized entrants must exit the space to protect their 
health and safety.
    Final Sec.  1926.1208(e)(4), which is identical to the general 
industry standard at Sec.  1910.146(h)(5)(iv), requires an employer to 
ensure that an authorized entrant exits the confined space whenever an 
evacuation alarm sounds. Examples of these alarms include, but are not 
limited to, atmospheric or engulfment-hazard monitor alarms or alarms 
activated by an authorized entrant or other employee. This provision 
ensures that entrants in a PRCS exit the space in a timely manner upon 
activation of an evacuation alarm warning them of an impending danger, 
thereby preventing serious injury or death to the entrants.

[[Page 25441]]

Section 1926.1209--Duties of Attendants

    In final Sec.  1926.1209, OSHA sets out the duties of the attendant 
required by final Sec.  1926.1204(f) as part of every permit program. 
The general industry standard recognizes the need for an attendant 
outside permit spaces, and the preambles for final Sec.  1926.1204(f) 
and the general industry standard at 58 FR 4517 (Jan. 14, 1993), 
explain the need for these attendants. One of the major problems in 
permit space entry operations is that, if an entrant within the space 
is injured or incapacitated in the space, he or she cannot normally be 
seen from outside the space, so the attendant is critical to 
recognizing quickly any injury or incapacitation so that the employer 
can initiate the applicable rescue operation as soon as possible. The 
attendant also plays a critical role in protecting employees inside the 
confined space from unauthorized entries and potentially hazardous 
conditions outside the confined space that could affect the workers 
inside the confined space.
    The provisions in final Sec.  1926.1209 are substantively identical 
to the provisions in the general industry confined spaces rule, except 
as noted below. The introductory language to Sec.  1910.146(i) refers 
to ``the'' employer. As in the introductory language for many of the 
provisions in the final rule, OSHA refers to ``the entry employer'' in 
the introductory language of Sec.  1926.1209 to clarify how this rule 
applies on multi-employer worksites.
    The attendant duties are also similar to the duties specified in 
proposed Sec. Sec.  1926.1210(f) and 1926.1211(f). The final rule does 
not include a paragraph found in proposed Sec.  1926.1211(f)(9), which 
expressly prohibited attendants from entering a confined space to 
perform rescue. OSHA did not include this paragraph because the 
prohibition is clear from the general industry standard language 
incorporated into the final rule, i.e., employers must ensure that 
attendants never enter a confined space, whether it is to perform 
rescue or for any other purpose, unless another person assumes the 
duties of the attendant, and the attendant is properly trained for 
rescue activity. See Sec.  1926.1209(d) and its Note. In this way, the 
final rule provides more flexibility to employers than the proposal.
    Paragraph (a). Final Sec.  1926.1209(a), which is almost identical 
to the general industry standard at Sec.  1910.146(i)(1) (except for 
non-substantive clarifications), requires an employer to ensure that 
each attendant is familiar with hazards that he or she may encounter 
during entry, as well as the signs and consequences of such exposures. 
Section 1910.146(i)(1) requires an employer to ensure that each 
attendant ``knows'' the hazards that he or she may encounter during 
entry. OSHA replaced ``knows'' with ``is familiar with and 
understands'' in the final rule to emphasize that the element of 
comprehension is critical to the attendant's ability to fulfill his or 
her duties. Attendants must be able to recognize when entry conditions 
in the PRCS are unacceptable--that the system of employee protection is 
malfunctioning. Because attendants would be able to easily communicate 
with entrants and entry supervisors, their recognition of deviations 
from acceptable entry conditions, and of the signs, symptoms, and 
characteristic effects that indicate exposure to a hazard, will enable 
a timely evacuation from the PRCS. For additional information 
concerning the signs and symptoms of exposure, see the discussion of 
Sec.  1926.1208(d) in this preamble.
    Paragraph (b). Final Sec.  1926.1209(b), which is identical to the 
general industry standard at Sec.  1910.146(i)(2), requires the 
attendant to be aware of the potential behavioral effects of hazard 
exposure to authorized entrants. While there is overlap between this 
requirement and the requirement to be familiar with and understand 
signs and symptoms of exposure, the same overlap exists in the general 
industry standard and OSHA is preserving the separate requirements for 
consistency with the general industry standard and to emphasize the 
importance of recognizing behavioral changes as possible evidence of 
hazard exposure. OSHA believes this requirement is necessary because 
the attendant is likely to be in a position to quickly recognize 
deteriorating conditions within the space and readily communicate the 
need for an immediate evacuation. For instance, subtle behavioral 
changes or effects detected in an entrant's speech, or deviations in 
established communication procedures, would alert the attendant that it 
is necessary to initiate the procedure to evacuate or rescue the 
entrant from the space.
    Paragraph (c). Final Sec.  1926.1209(c), which is identical to the 
general industry standard at Sec.  1910.146(i)(3), requires the 
attendant to maintain an accurate count at all times of authorized 
entrants, and to ensure that the method used to identify entrants under 
final Sec.  1926.1206 of this section is accurate. In emergency 
situations requiring evacuation, the count and identification of 
entrants is necessary to determine whether evacuation of all authorized 
entrants from the space occurred, and that no unauthorized entrants 
remain in the space. This information can then be relayed, if 
necessary, to rescue workers.
    Paragraph (d). Final Sec.  1926.1209(d), which is identical to the 
general industry standard at Sec.  1910.146(i)(4), requires the 
attendant to stay outside of the permit space during entry operations 
until he or she is relieved by another attendant. One of the main 
duties of the attendant is to recognize hazardous conditions that are 
occurring inside the PRCS, and to communicate this information to 
rescue personnel in emergency situations. The attendant is also often 
the first (and sometimes only) person to recognize prohibited 
conditions or signs of hazardous conditions within the space. If the 
attendant was inside the space, the attendant could become 
incapacitated if an emergency occurred, or the entrants are exposed to 
prohibited conditions, and consequently rendered unable to perform the 
duties that are necessary to protect the other employees.
    OSHA included a note to final Sec.  1926.1209(d) that is 
substantively the same as the note in the general industry standard. 
OSHA reorganized the sentence structure of the note in the final rule 
to clarify that the attendant cannot attempt rescue until properly 
relieved, and then only if the attendant is permitted to do so under 
the permit program and adequately trained and equipped for entry 
rescue. However, the final rule permits the attendant to perform non-
entry rescue so long as the attendant receives proper training to do 
so. If the attendant is performing his or her duties in multiple 
spaces, the attendant also must order the entrants in those other 
spaces to exit the spaces while the attendant is involved in the 
rescue, or ensure that another person assumes the attendant duties for 
the other spaces.
    Paragraph (e). Final Sec.  1926.1209(e), which is nearly identical 
to the general industry standard at Sec.  1910.146(i)(5), requires the 
attendant to communicate with authorized entrants as necessary to keep 
track of the entrants' status and to notify entrants if evacuation 
under final Sec.  1926.1209(f) of this section is necessary. OSHA 
believes that this communication provides information that the 
attendant needs to determine if the entry can continue. For example, 
subtle behavioral changes detected in the entrant's speech, or 
deviations from set communication procedures, could alert the attendant 
that it is necessary to evacuate or rescue the entrant. This 
requirement may assist the attendant in fulfilling the duties to 
identify signs and

[[Page 25442]]

symptoms of exposure or behavioral changes (see paragraphs (a) and (b) 
of this section). In addition, if the need arises, the attendant must 
communicate to the entrants an order to evacuate because the entrants 
may not know that there is an emergency.
    In the final rule, OSHA requires the attendant to stay in 
communication to ``assess'' the entrant's status, rather than to 
``monitor'' it as required in the general industry standard. While 
there is no substantive difference between these terms, OSHA uses 
``assess'' because ``monitor,'' as defined in the final standard, 
refers to the identification and evaluation of hazards in a confined 
space. Assessment connotes an interactive duty in which the attendant 
may ask questions of the entrant, or ask the entrant to perform a task 
so the attendant can evaluate the entrant's status.
    As with the general industry standard, the attendant's 
``communication'' with the entrant may take different forms depending 
on the limitations of the particular permit space. In most instances, 
the attendant could use voice communication, including communication by 
phone, walkie talkie, or other device that provides a clear and 
continuous means of communication with the entrant. In other cases, 
alternative methods, such as tapping on the walls of the space to allow 
for assessment through a pre-arranged code, may be sufficient to 
satisfy Sec.  1926.1209(e). See, e.g., July 30, 1993, letter to Julie 
Emmerich.
    Paragraph (f). Final Sec.  1926.1209(f), which is almost identical 
to the general industry standard at Sec.  1910.146(i)(6), requires the 
attendant to assess the activities and conditions inside and outside 
the space to determine if it is safe for entrants to stay in the space. 
OSHA again uses ``assess'' instead of ``monitor'' for the same reason 
discussed above in final Sec.  1926.1209(e). OSHA refers to 
``activities and conditions'' in the final rule, as opposed to just 
``activities'' in the general industry standard, for internal 
consistency within this provision. In the same paragraph, OSHA requires 
the attendant to evacuate the permit space under any of the four 
``conditions'' listed in final Sec.  1926.1209(f)(1) through (f)(4): 
(1) The attendant notices a prohibited condition, (2) the attendant 
identifies the behavioral effects of hazard exposure in an authorized 
entrant, (3) there is a condition outside the space that could endanger 
the authorized entrants, or (4) the attendant cannot effectively and 
safely perform the duties required under final Sec.  1926.1209. Thus, 
it is necessary for the attendant to assess both the activities and 
conditions affecting the entrants.
    In the general industry standard, OSHA requires the attendant to 
order evacuation ``if the attendant detects'' a prohibited condition, 
certain behavioral effects, or a condition outside the space that could 
endanger the entrants. See Sec.  1910.146(i)(6)(i) through (i)(6)(iii). 
OSHA did not include the quoted language in the final rule because 
existing conditions, not detection by the attendant, trigger the duties 
in final Sec.  1926.1209(f)(1) through (3). OSHA believes that each of 
these conditions represents potential precursors to serious safety 
hazards that threaten the health and well-being of employees working in 
and near the PRCS, and the employer has a duty to ensure that the 
attendant detects them.
    One of the conditions that triggers evacuation is a situation that 
arises outside the permit space that could endanger the workers inside 
the space. See final Sec.  1926.1209(f)(3). This requirement also is 
specified in the general industry standard. Under final Sec.  
1926.1203(h)(4) and Sec.  1926.1204(k), the employer must develop and 
implement procedures to coordinate entry operations with other 
employers working outside the confined space when the activities of 
those employers could, either alone or in conjunction with the 
activities within a permit space, foreseeably result in a hazard within 
the confined space. In most cases, employers will perform such 
activities outside the space in close proximity to the permit space, 
and the attendant must be aware of the applicable coordination 
procedures to identify any deviation and evacuate the entrants if the 
deviation makes it unsafe for the entrants to remain in the permit 
space. While not required to do so, the attendant may take steps to 
stop activities that do not conform to those procedures, either 
directly or by notifying the entry supervisor and the controlling 
contractor, provided that doing so does not interfere with the 
attendant's ability to fulfill the duties required by Sec.  1926.1209. 
However, if the employer does not address the potentially endangering 
activities immediately, the attendant must evacuate the entrants. 
Consider, for example, a situation in which employees are working 
inside a storm-sewer permit space that is not isolated from the general 
storm sewer system. If someone within the view of the attendant is 
setting up for an activity that will discharge water into the upstream 
portion of the storm sewer system, the attendant must alert the entry 
supervisor, and may call to the person setting up the discharge system 
to request that the person not discharge water into the storm sewer 
until the employees in the storm sewer have completed their work. If 
the potential pumpers refuse to wait, then the attendant must order the 
immediate evacuation of the permit space. See Sec.  1926.1209(f)(3).
    Other examples of conditions or activities outside a permit space 
that would require the attendant's attention include the placement of 
potentially hazardous items near a ventilation intake source (e.g., an 
open container of epoxy or gasoline-powered equipment emitting 
exhaust), or physical conditions that could affect the permit space 
(e.g., heavy rains outside a below-ground permit space).
    One commenter asserted that requiring an attendant to evaluate 
confined space hazards inside and outside a ground storage tank exposes 
the attendant to both fall hazards and struck-by hazards (ID-210, Tr. 
p. 223). For example, a situation in which the tank does not have a 
ground level entrance, and the attendant must climb a vertical fixed 
ladder to gain access, exposes the attendant to a fall hazard. However, 
this comment fails to recognize that the standard would permit the 
attendant to use electronic monitoring and communications or other 
means to fulfill the duties in Sec.  1926.1209. Thus, depending on the 
circumstances of the space, the attendant might only need to physically 
approach the entrance of the permit space to perform non-entry rescue 
if non-entry rescue is appropriate (the retrieval equipment would not 
increase the overall risk of entry and would contribute to the rescue 
of the entrant), and then only when assigned and trained to do so. In 
addition, if the attendant encounters a hazard not covered by the 
confined spaces standard (e.g., a fall hazard), the employer must 
comply with the relevant OSHA requirements that address the hazard 
(e.g., 29 CFR part 1926, subpart M, for fall hazards).
    More importantly, it appears that the commenter also is challenging 
the general need for an attendant by asserting that an attendant is 
unnecessary when the employer is performing work inside an above-ground 
storage tank (ID-210, Tr. p. 223). In these situations, so long as the 
space meets the definition of a permit-required confined space, an 
attendant is necessary for safe entry operations. Although the person 
designated by the employer as attendant is not assigned the overall 
responsibility for employee safety and health assigned to the entry

[[Page 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 Sec.  1926.1209.
    It is extremely important that attendants understand their duties, 
stay in contact with the entrants, and remain alert to conditions 
inside and outside the PRCS. The attendant may be in the best position 
to warn the entrants of hazardous conditions developing outside the 
space and impending danger within the space, and to recognize physical 
and behavioral changes in the entrants that indicate that conditions 
within the space may be deteriorating. Should the entrant become 
incapacitated, the attendant often is an entrant's only contact with 
individuals outside the confined space. Therefore, the attendant is 
necessary to detect emergencies that develop in the space, and to 
summon emergency assistance before it is too late to prevent injury or 
death to the entrant.
    Another commenter suggested that OSHA make it explicit that the 
attendant must remain outside the confined space when monitoring 
atmospheric conditions of the confined space (ID-132, p. 3). This 
additional language is unnecessary because final Sec.  1926.1209(d) 
already requires attendants to remain outside the confined space while 
fulfilling all of their duties under this section, including the duties 
specified in Sec.  1926.1209(f).
    Paragraph (g). Final Sec.  1926.1209(g), which is identical to 
Sec.  1910.146(i)(7), requires the attendant to call upon rescue and 
other emergency services as soon as he or she decides that authorized 
entrants may need assistance to escape from permit space hazards. This 
provision is necessary to ensure that rescue of authorized entrants 
occurs as soon as possible to maximize their chance of survival and 
limiting their injuries, as well as minimizing risk of injury to the 
rescue-service employees. The Agency notes that in some situations, the 
attendant may be the person designated to perform non-entry rescue and, 
therefore, may simply commence that rescue. If other personnel are 
necessary for non-entry rescue, or if entry rescue is necessary, then 
the attendant must summon those personnel immediately.
    One commenter noted that the parallel language in proposed 
paragraph Sec.  1926.1211(f)(6) did not specifically require the 
attendant to ``summon'' the rescue service (only to ``inform'' them), 
and requested that OSHA insert language requiring that action (ID-210, 
Tr. p. 357). OSHA responded to this comment by adopting the language of 
the general industry standard in final Sec.  1926.1209(g).
    Paragraph (h). Final Sec.  1926.1209(h), which is identical to the 
general industry standard at Sec.  1910.146(i)(8), requires the 
attendant to take the actions specified in Sec.  1926.1209(h)(1) 
through (h)(3) to prevent unauthorized persons from entering a permit 
space while entry is taking place. OSHA recognizes that there are 
individuals who may mistakenly believe that they are to work on a task 
in the space, or who may simply wander by or attempt to enter into the 
space unaware of the dangers of the PRCS. Final Sec.  1926.1203(b) 
requires the employer to notify the controlling contractor and other 
specified employees, as well as the employees' authorized 
representatives, about the location of, and dangers posed by, the 
space. However, if someone other than an authorized entrant happens to 
approach the PRCS, Sec.  1926.1209(h)(1) specifies that the attendant 
must make that individual aware that he/she must stay away from the 
PRCS. Some construction sites may be accessible to the public, so the 
attendant also would be responsible for warning members of the public 
who may attempt to enter a permit space at the site. Should an 
unauthorized person enter the PRCS, paragraph (h)(2) of Sec.  1926.1209 
requires the attendant to advise him/her to exit the space immediately. 
This provision protects employees who enter permit spaces without 
proper authorization, training, or equipment, from the hazards of the 
permit space, and prevents injury to the entrants already in the permit 
space from the actions of unauthorized entrants and the items they may 
carry into the space.
    Because an attendant may not have supervisory authority, or because 
the errant individual may work for another employer at a multi-employer 
construction site, an attendant may not have the authority to stop 
unauthorized individuals from entering the PRCS, or to require them to 
exit once they are inside the space. Therefore, paragraph (h)(3) of 
Sec.  1926.1209 requires the attendant to notify the entry supervisor, 
along with the authorized entrants, of this situation, and to evacuate 
if necessary, as unauthorized entry will typically create a prohibited 
condition under the permit. Accordingly, OSHA does not encourage or 
require attendants to expose themselves to potential harm by physically 
preventing entry to any person.
    Paragraph (i). Final Sec.  1926.1209(i), which is identical to the 
general industry standard at Sec.  1910.146(i)(9), requires employers 
that designate attendants to perform non-entry rescues to ensure that 
the attendants perform these rescues in accordance with the employer's 
rescue procedure. When properly executed, the attendant's performance 
of non-entry rescue can be the fastest and most effective means of 
successfully rescuing an entrant, while preventing injuries and deaths 
that may result from improperly executed entry rescue operations. 
However, if the employer designates the attendant to perform non-entry 
rescue but does train the attendant to perform non-entry rescue, or if 
the attendant does not operate winching equipment or perform other 
components of the rescue in accordance with the proper procedures, then 
the result could render the rescue ineffective and endanger the 
attendant (e.g., improper line retrieval could cause the attendant to 
lose balance and fall into the permit space), delay rescue (and, 
thereby, endanger the entrant in need of rescue), or endanger other 
entrants.
    Paragraph (j). Final Sec.  1926.1209(j), which is identical to the 
general industry standard at Sec.  1910.146(i)(10), requires that the 
attendant not engage in other activities that could distract him or her 
from attending to the permit space. The attendant could endanger the 
authorized entrants if distracted from these duties. If an attendant 
performs a task that diverts his or her attention from the attendant 
duties, an emergency condition inside or outside the space could go 
undetected until it is too late to prevent injury or death to the 
attendant. However, OSHA also recognizes that the attendant can perform 
some additional tasks safely, particularly those tasks that enhance the 
attendant's knowledge of conditions in the permit space. For example, 
passing tools to authorized entrants and remote monitoring of the 
atmosphere of the PRCS are among the types of duties permitted, 
provided the attendant does not enter the PRCS. Activities requiring 
close or prolonged concentration, or those activities requiring that 
the attendant be away from a location in which he can observe the PRCS, 
would likely interfere with attendant duties. Employers must not assign 
such activities to an attendant and must ensure that an attendant not 
engage in such activities. The Agency notes that, although the employer 
may assign attendants to more than one permit space at the same time 
under Sec.  1926.1204(f), the employer must still

[[Page 25444]]

properly train and equip the attendant so that the attendant's role 
with respect to one space does not interfere with his or her duties 
with respect to other permit spaces. See also Sec.  1926.1204(f)(1). In 
other words, the attendant's duty under Sec.  1926.1209(j) applies 
separately with respect to each individual permit space.

Section 1926.1210--Duties of entry supervisors

    The duties of the entry supervisor are critical to the safety of 
entrants working in a permit space. The employer must assign an entry 
supervisor who has the responsibility to supervise testing the 
atmosphere and identifying hazards both before and during entry, 
terminating entry when necessary, removing unauthorized entrants, and 
generally ensuring that the work performed in the permit space conforms 
to the permit program and the acceptable conditions specified on the 
permit. As noted in the preamble to the general industry standard, the 
entry supervisor has ``overall accountability for confined space 
entry'' (58 FR 4523). OSHA enumerated specific responsibilities in 
Sec.  1926.1210 of the final rule, which is almost identical to Sec.  
1910.146(j) of the general industry standard. The final rule also is 
consistent with the entry supervisor requirements in the proposed rule, 
which were at proposed Sec.  1926.1210(e)(2) and Sec.  1926.1211(d)(1) 
and (d)(2).\24\
---------------------------------------------------------------------------

    \24\ OSHA specified in the proposed rule that the entry 
supervisor is responsible for evacuating employees from the permit 
space under specified conditions, and for terminating entry and 
canceling the permit. OSHA included similar requirements in final 
Sec.  1926.1205(e) (permitting process), which is a more appropriate 
location than Sec.  1926.1210 of the final rule because the 
requirements in Sec.  1926.1205(e) address the process of 
terminating and canceling the permit.
---------------------------------------------------------------------------

    The introductory language to Sec.  1910.146(j) refers to ``the 
employer.'' In this final rule, OSHA instead refers to ``the entry 
employer'' to clarify how this rule applies on multi-employer 
worksites. This revision is non-substantive; in both cases, the 
requirements apply to each employer establishing the permit program for 
a permit space.
    One commenter suggested that OSHA use ``competent person'' in place 
of ``entry supervisor'' to ``be more consistent with other construction 
standards'' (ID-124, p. 8). Although some employers in the construction 
industry may not be as familiar with the term ``entry supervisor,'' 
OSHA is retaining the language of the general industry standard because 
the term is clear and intuitive, and the majority of commenters seemed 
familiar with that terminology.
    Paragraph (a). Final Sec.  1926.1210(a), which is identical to the 
general industry standard at Sec.  1910.146(j)(1), except for a non-
substantive clarification, requires the employer to ensure that each 
entry supervisor is familiar with, and understands, the hazards that 
entrants may encounter during entry, including information on the mode, 
signs or symptoms, and the consequences of exposure to these hazards. 
Consistent with its approach in other provisions noted earlier, OSHA 
changed the use of the term ``know,'' found in corresponding Sec.  
1910.146(j)(1), to ``is familiar with and understands'' in this final 
rule to clarify that the entry supervisor must comprehend the hazards 
that entrants may encounter.
    In the discussion of the duties of the entry supervisor in the 
preamble to the general industry standard, OSHA explained that, in 
light of the overarching responsibility of the entry supervisor for the 
safety of all entrants, it is ``only reasonable that he or she be 
expected to know at least as much, if not more, than authorized 
entrants and attendants'' (58 FR 4523). That knowledge is particularly 
important in the context of construction, where high turnover of 
employees and changes to the work site may be more frequent than for 
general industry. As an individual with the authority to terminate 
entry and cancel the entry permit, it is essential that the entry 
supervisor recognize hazardous conditions and telltale indications 
(signs, symptoms, and characteristic effects) that a hazard from within 
or outside the permit space is affecting employees engaged in the PRCS 
operations. By meeting the knowledge requirements of final Sec.  
1926.1210(a), the entry supervisor will be able to effectively identify 
emergency situations by observing employees involved in entry 
operations.
    Paragraph (b). Final Sec.  1926.1210(b), which is identical to the 
general industry standard at Sec.  1910.146(j)(2), requires the entry 
supervisor to verify that the employer performed all tests specified by 
the entry permit, and that all procedures and equipment so specified 
are in place before he or she may sign the permit and allow entry. The 
paragraph also specifies that the entry supervisor must verify this 
information by checking the corresponding entries on the permit. These 
preliminary checks are necessary to ensure that the conditions in the 
space are within the acceptable entry conditions--hazard levels are as 
planned, and protective measures are in place, working properly, and 
are effective--before entry operations commence.
    Paragraph (c). Final Sec.  1926.1210(c) requires the employer, 
through the entry supervisor, to stop the entry and cancel (or suspend) 
the permit, as set forth by final Sec.  1926.1205(e), when certain 
conditions change inside the permit space. By requiring the entry 
supervisor to terminate the entry permit under the specified 
conditions, the final rule ensures that the employees will exit the 
space if there is a deviation from acceptable entry conditions and, 
therefore, avoid encountering harm arising from prohibited conditions 
within the PRCS. Final Sec.  1926.1210(c) is nearly identical to the 
general industry standard at Sec.  1910.146(j)(3), except that the new 
final provision allows for the suspension of a permit, rather than a 
cancellation, as permitted in final Sec.  1926.1205(e). For additional 
explanation of the suspension of the permit, see the explanation above 
of Sec.  1926.1205(e).
    To perform this duty effectively, an entry supervisor must be 
knowledgeable of the hazardous conditions and the tests and procedures 
used to monitor these conditions so the entry supervisor can respond in 
a timely manner to a developing hazard. While the entry supervisor need 
not personally perform the testing or monitoring (but may choose to do 
so if properly trained), the entry supervisor must possess the 
expertise necessary to oversee the testing and identify the hazards in 
the permit space, and is ultimately responsible for identifying 
deviations from acceptable entry conditions and other unsafe 
conditions. In the proposed rule, this requirement differed slightly 
from the requirements in the general industry standard and this final 
rule, but the result is the same: The entry supervisor must have all 
the information regarding the conditions and monitoring results 
required to know when it is necessary to terminate entry. This 
requirement remains in effect even if the entry supervisor assumes 
other duties, such as the duties of an entrant or attendant.
    Paragraph (d). Final Sec.  1926.1210(d), which is nearly identical 
to the general industry standard at Sec.  1910.146(j)(4), requires the 
entry supervisor to verify that rescue services are available, and that 
the means for obtaining such services are operable. Because the 
employer must assign authority for safe permit entry operations to the 
entry supervisor, it is reasonable and consistent with the rescue 
provisions to specify that the entry supervisor verify that the rescue 
service is available, and that the means of summoning it in a

[[Page 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 Sec.  1926.1211(a)(3), and is consistent with the 
proposed rule, which focused overall coordination of the permit entry 
operations on the entry supervisor (see 72 FR 67368 (Nov. 28, 2007)). 
Under both the proposed and final rules, the overall coordination 
duties include managing communications with the rescue service.
    Paragraph (e). Final Sec.  1926.1210(e), which is identical to the 
general industry standard at Sec.  1910.146(j)(5) and consistent with 
the proposed rule at Sec.  1926.1211(d)(2), requires the entry 
supervisor to remove unauthorized individuals who enter, or attempt to 
enter, the permit space during entry operations. Unauthorized entrants 
lack the safety training necessary to work in the PRCS, and the entry 
permit does not account for them. Their presence in a permit space not 
only poses a danger to them, but may also endanger the authorized 
entrants in the space.
    In the final rule, OSHA requires attendants to warn persons near a 
permit space not to enter the permit space unless they have 
authorization to do so, but the attendant is not required to physically 
prevent unauthorized entry or to remove an unauthorized entrant (final 
Sec.  1926.1209(h)). Under the final rule, as with the general industry 
standard, the entry supervisor has ultimate responsibility for 
preventing unauthorized entry and, if that fails, for removing the 
unauthorized person as quickly as possible from the permit space.
    Paragraph (f). Final Sec.  1926.1210(f) is identical to the general 
industry standard at Sec.  1910.146(j)(6) and consistent with the 
proposed rule at Sec.  1926.1211(e)(2). While paragraphs (a) and (b) of 
this section of the final rule set out the entry supervisor's 
responsibility to ensure that the permit space will be safe prior to 
entry, and paragraph (c) of this section makes it clear when the 
employer must cancel or suspend the permit, paragraph (f) requires the 
entry supervisor to ensure the maintenance of safe working conditions 
during the entry. In final Sec.  1926.1210(f), OSHA sets out the entry 
supervisor's duty to assess the space when first assigned entry 
supervisor duties for the permit space, and at regular intervals 
thereafter.
    OSHA recognizes that employers will need to replace entry 
supervisors occasionally for various reasons (for example, shift 
changes, lunch breaks, and regular rotations to other tasks at the job 
site). This final provision requires that, whenever there is a transfer 
of supervisory responsibility for a permit-space entry operation, the 
entry supervisor must assess the space and its hazards to maintain 
entry operations that are consistent with the entry permit and other 
requirements of the standard pertaining to the maintenance of 
acceptable entry conditions. This requirement ensures that the new 
entry supervisor reviews the permit and entry conditions and, 
consequently, has the information necessary for performing the duties 
enumerated in final Sec.  1926.1210.
    Final Sec.  1926.1210(f) also requires that the entry supervisor 
assess the space and its hazards at intervals dictated by the hazards 
and operations performed therein. This requirement addresses the fact 
that conditions often change over time within a permit space, while 
providing the employer some flexibility to monitor different hazards at 
different intervals of time (see 58 FR 4524). Some hazards may develop 
rapidly and require more frequent assessments, such as when employees 
are in a space with a combustible gas already at 9 percent of its LEL, 
and the employer expects the operations to generate additional gas that 
will be controlled through ventilation. Other hazards, such as a slow 
leak of water from a pipe into a permit space, are likely to develop at 
a more predictable pace that would allow for less frequent monitoring. 
The type of operation and location or characteristics of the space may 
also require more frequent assessments by the entry supervisor, such as 
demolishing an underground wall near water pipes or performing 
construction work in a sewer system where even a small leak of an 
unidentified substance or other small change in the sewer space could 
potentially place the lives of the employees in danger.
    One commenter asserted that it is not feasible for an employer to 
have only one entry supervisor because employees could perform no work 
in the permit space if the entry supervisor is absent (ID-107, p. 4). 
This commenter misunderstands the entry supervisor requirements. Final 
Sec.  1926.1210(f) permits an employer to transfer the duties of the 
entry supervisor between employees, so long as each such entry 
supervisor has the proper qualifications to perform these duties and 
receives the appropriate information about the space from the previous 
supervisor.
    Another commenter also was unsure whether the final rule requires 
the entry supervisor to be on the construction site at all times (ID-
124, p. 7). The entry supervisor is responsible for crucial duties, 
including monitoring the space, physically removing unauthorized 
entrants, and terminating entry if necessary. Therefore, it is highly 
unlikely that the entry supervisor will be able to fulfill the required 
duties from a distance. However, the standard does not foreclose the 
potential for technology advances that may allow an entry supervisor to 
perform the required functions while located away from the permit 
space. If the entry supervisor is unable to perform his or her duties, 
either because he or she is not present on the site or for another 
reason, then the employer must terminate the entry or replace that 
entry supervisor with a supervisor properly qualified under this final 
section, and who makes the determinations required by final Sec.  
1926.1210(f), or the employer will not be in compliance with this final 
rule.

Section 1211 -- Rescue and Emergency Services

    An employer conducting a permit-space entry must include procedures 
for providing rescue and emergency service as part of its permit-space 
program (final Sec.  1926.1204(i)). Final Sec.  1926.1211 specifies 
requirements for that rescue and emergency service. The requirements in 
final Sec.  1926.1211 are substantively similar to the corresponding 
provisions in the general industry confined spaces standard at Sec.  
1910.146(k). In general, the substance of the rescue provisions in the 
proposed rule was similar to that of the rescue provisions in the 
general industry rule, but the language of the general industry rule is 
more performance-oriented and includes fewer detailed requirements than 
the proposed rule.
    Final Sec.  1926.1211 uses the term ``rescue and emergency 
services.'' There are two types of rescue services addressed by this 
provision: Non-entry rescue and entry rescue, and the employer must 
determine which is appropriate. Emergency services are distinct: They 
are the services that must be used to retrieve the entrant when the 
employer's non-entry or entry rescue fails.
    OSHA notes that during the rulemaking for the general industry 
confined spaces standard, a commenter raised a question as to whether 
an entry rescue service involved only off-site

[[Page 25446]]

rescue teams (58 FR 4525). The Agency made clear in that rulemaking 
that an employer could use an on-site team as long as the employer met 
all the criteria outlined in the standard. That rationale is equally 
applicable to this final rule. Consequently, the term ``rescue 
service'' in this standard does not exclude the use of an on-site entry 
rescue service. Indeed, as OSHA noted in the preamble to final Sec.  
1910.146, the need to respond as quickly as possible to an emergency 
within a permit space indicates a preference for on-site rescue teams 
wherever it is practical.
    Some employers may prefer to establish an on-site rescue service. 
Other employers may prefer to rely on off-site rescue services, perhaps 
because they believe that they do not have the resources to train 
employees to perform rescue or because the ready availability of an 
adequate off-site rescue service makes an on-site capability 
unnecessary. The final rule allows employers to make arrangements for 
either on-site or off-site services.
    Also, the final rule's phrase ``rescue service'' refers to all 
rescue personnel provided to remove entrants from permit spaces. It 
includes situations in which one person will be responsible for the 
rescue of authorized entrants (e.g., when the employer uses non-entry 
rescue systems). In such situations, the evaluation and selection 
requirements of final Sec.  1926.1211(a) will apply. The training and 
practice requirements of final Sec.  1926.1211(b) also apply in these 
situations. Thus, OSHA is treating all rescue services alike, whether 
the service is on-site or off-site, whether the service is entry rescue 
or non-entry rescue, or whether the service consists of a multiple-
person team or a single person.
    One commenter asserted that the rescue requirements should differ 
based on the type of hazard that is present in or near the confined 
space (ID-077, p. 1). This standard does set different requirements 
based on the type of hazard in a PRCS, although the requirements in 
Sec.  1926.1211(a)(1) and (a)(3)(i) establish performance-oriented 
criteria that vary based on the hazards in the permit spaces. Final 
Sec.  1926.1203(e) allows an employer to use alternative entry 
procedures different than those required by the rest of this standard 
under certain circumstances. Final Sec.  1926.1203(g) allows an 
employer to reclassify a PRCS as a non-permit confined space when the 
employer meets the requirements of that paragraph. The rescue 
requirements in this final standard do not apply when an employer is 
using the procedures in final Sec. Sec.  1926.1203(e) or 1926.1203(g). 
When an employer is working within a PRCS that does not meet the 
criteria in one of those paragraphs, however, the rescue requirements 
are the same for all hazards severe enough to trigger the PRCS program 
required by final Sec.  1926.1204.
    Paragraph (a). The introductory text in final Sec.  1926.1211(a), 
which is identical to the general industry standard at Sec.  
1910.146(k)(1), introduces the requirements for designating rescue 
services. This paragraph emphasizes the evaluation that an employer 
must perform of available rescue and emergency service resources before 
designating a rescue provider for the purposes of this standard as 
required at Sec.  1926.1204(i) of this final rule. The requirements of 
this paragraph apply equally to both on-site (employees of the entry 
employer or controlling contractor) and third-party rescue services.
    One commenter asserted that some third-party rescue services, such 
as fire departments, are unwilling to be the designated rescue service 
due to liability concerns (ID-075, p. 8). Another commenter asserted 
that relying on local fire departments to provide third-party recue 
services can be problematic because the rescue service is not designed 
specifically to provide confined space rescue at a particular worksite 
(ID-210, Tr. p. 192). These comments imply that OSHA requires employers 
to designate the local fire department as the rescue service, which is 
not the case. In the final rule, OSHA provides employers with much 
flexibility in choosing its third-party rescue service if the employer 
elects to rely on a third-party rescue service.
    Contrary to the assertion of one commenter (ID-107 p. 4), both the 
proposed rule and the general industry standard require employers to 
provide a rescue service for entries, even if a third-party rescue 
service is not available. (See proposed Sec.  1926.1211(h) and 72 FR 
67377-78; 29 CFR 1910.146(d)(9); 58 FR 4524-27; and 63 FR 66018, 66023 
(Dec. 1, 1998).) If one third-party rescue service will not assume the 
responsibility of providing rescue under this final rule, or is not 
adequately prepared to meet these rescue requirements, then the 
employer must either find a different third-party rescue service that 
is capable of performing this service, or train and equip its own 
employees to provide adequate rescue service.
    Paragraph (a)(1). Final Sec.  1926.1211(a)(1), which is identical 
to the general industry standard at Sec.  1910.146(k)(1)(i), requires 
an employer to assess a prospective rescue service's ability to respond 
to a rescue summons in a timely manner. Final Sec.  1926.1211(a)(1) 
provides that the hazards identified in the permit space determine 
timeliness. This provision defines ``timeliness'' in terms of how 
quickly an entry rescue service needs to reach an entrant to prevent 
further serious physical damage that may result from hazards in the 
PRCS while the entrant is awaiting rescue. For example, as stated in 
the note to paragraph (a)(1), OSHA's respiratory protection standard at 
29 CFR 1910.134, made applicable to construction by 29 CFR 1926.103, 
requires standby rescue personnel equipped with respiratory protection 
when employees are working in atmospheres that require respiratory 
protection because the atmospheres are immediately dangerous to life or 
health (IDLH). Consistent with that requirement, the timeliness 
requirement in this final rule also means that employers must ensure 
that an appropriate rescue service is on site for IDLH permit entries. 
An atmosphere in a permit space where an exposed entrant could suffer 
irreversible impairment within four to six minutes would meet the 
definition of an IDLH atmosphere. However, because not all permit 
spaces pose the same immediate dangers as those spaces with IDLH 
atmospheres, employers may use a less resource-intensive and more 
measured response capability for situations in which the need for a 
nearly instant response is not present. For example, in appendix F to 
Sec.  1910.146, OSHA explained that if the danger to entrants is 
restricted to mechanical hazards that would cause injuries (e.g., 
broken bones, abrasions) a response time of 10 or 15 minutes might be 
adequate.
    At least one commenter was unsure what constitutes a response in a 
``timely manner'' (ID-121, p. 5). Another commenter suggested that OSHA 
identify the factors in Sec.  1910.146(k)(1)(i) of the general industry 
confined spaces standard that it would use to analyze whether a rescue 
response is ``timely,'' and apply them in the construction standard 
(ID-129, p. 3). The factors that apply in general industry are relevant 
in evaluating timeliness in this final rule.
    When the Agency added the parallel rescue selection requirements to 
paragraph (k) of Sec.  1910.146, it included a substantive discussion 
of ``timely'' rescue in the preamble, and concluded that the 
determination of timeliness ``will be based on the particular 
circumstances and hazards of each confined space, circumstances and 
hazards which the employer must take into account in developing a 
rescue

[[Page 25447]]

plan'' (63 FR 66023). As the note to new Sec.  1926.1211(a)(1) makes 
clear, the same approach applies in this final rule. Employers must 
consider the known hazards of in the space, the time it takes to reach 
the permit space, as well as the time it will take to enter the space 
and retrieve employees from inside the space, when determining what is 
a ``timely'' response. Several commenters acknowledged that so many 
factors could affect whether a response is ``timely'' that it is not 
practical for OSHA to adopt a bright-line timeframe that would work in 
all scenarios (ID-090, p. 1; ID-108, p. 3; ID-116, p. 4). As noted in 
the discussion above, OSHA identified some of the factors that 
determine whether an employer's response to an emergency is ``timely,'' 
but these factors are not exclusive. The standard as a whole will 
prevent employee exposure to hazards, but employers must develop rescue 
plans that anticipate and minimize potential harm to employees in the 
event an employee becomes trapped or exposed to an atmospheric hazard. 
For example, if a permit space contains a potential IDLH atmosphere 
that the employer will control through ventilation, the employer has a 
duty to ensure that the ventilation is effective, but also has a 
separate duty to plan for rescue in the event that the ventilation 
fails and an employee becomes trapped in the increasingly hazardous 
atmosphere.
    The deaths of two workers during a sewer entry illustrate the 
potential consequences of inadequate rescue planning: Not only did the 
two employees enter the space without a permit, rescue plan, or 
retrieval lines, but the employer also did not assess a potential 
rescue service. See S. J. Louis Construction, OSHRC Docket No. 12-1045 
(2013) (Welsh, ALJ). The first worker was overcome quickly by a 
hazardous atmosphere in the sewer manhole, and the second worker was 
also overcome after he entered the sewer manhole to attempt rescue. The 
firemen who responded first were not trained or equipped for permit-
space entry and had to summon a different rescue service. The first 
worker was washed down the sewer line before the second rescue service 
arrived and was trapped underwater so that it took nearly a day to 
retrieve his body.
    One commenter asserted that, when using a third-party rescue 
service, it is infeasible for the third-party rescue service to 
maintain constant contact with construction sites, and not reasonable 
for outside services to track frequent changes in a confined space's 
configuration (ID-116, p. 4). Another commenter asserted that it is too 
costly to require rescue services on site, and that OSHA should allow 
an employer to merely establish a rescue plan to address accidents (ID-
108, p. 5). Neither final Sec.  1926.1211(a)(1), nor any other 
paragraph in final Sec.  1926.1211, requires an employer's rescue 
service to be on the construction site at all times, absent an IDLH 
atmosphere or other hazard that would require immediate rescue, or to 
be in constant contact with the construction site.
    In general, final Sec.  1926.1211(a) only requires an employer to 
determine that the rescue service is capable of responding to an 
emergency in a timely manner. However, compliance may require the 
employer to communicate with an off-site rescue service immediately 
prior to each permit-space entry unless the employer has been assured 
that personnel are always available and able to respond in a timely 
manner. Section 1910.146 addresses the scenario in which the designated 
rescue service is a local fire department that cannot guarantee that 
the rescue team will available during the employer's entire permit-
space entry operations; in such a case, the employer must ensure close 
communication with the rescue service during entry operations so that, 
if the rescue service becomes unavailable while an entry is underway, 
the employer can abort the entry immediately. May 23, 2008, letter to 
Jonathan Pennington. To facilitate this communication, OSHA requires in 
final paragraph (a)(3)(iii) that the entry employer select a rescue 
provider that agrees to notify the entry employer in the event the 
rescue service is unavailable. Entry operations must not resume until 
the entry supervisor verifies that rescue services are available (final 
Sec.  1926.1210(d)).
    One commenter asserted that OSHA should focus on the capability of 
the rescue service to provide life support, and not whether the rescue 
response is ``timely'' (ID-017, p. 2). For example, the provision 
should focus on requiring someone trained in space-specific rescue 
techniques, first aid and cardiopulmonary resuscitation, who can gain 
safe access to the patient, stop the bleeding, administer CPR, and 
perhaps effect rescue. Final Sec.  1926.1211(a)(2) specifies the 
requirement to assess whether a rescue service is capable of providing 
adequate and effective rescue service. Final Sec.  1926.1211(a)(1) 
requires the employer to assess whether the rescue service is capable 
of applying such skills in a timely manner.
    Paragraph (a)(2). Final Sec.  1926.1211(a)(2), which is identical 
to the general industry standard at Sec.  1910.146(k)(1)(ii), requires 
an employer to assess a prospective rescue service's ability to provide 
adequate and effective rescue services. This requirement is necessary 
to ensure that the rescue service can perform rescue safely and 
effectively.
    Many third-party emergency responders may be able to provide proper 
permit-space rescue functions for spaces that do not require immediate, 
stand-by rescue capability, but not all responders have this ability. 
Each employer relying on these services must verify that the emergency 
responder has the training, equipment, ability, and willingness to 
perform rescue for confined spaces in its facility.
    In evaluating a prospective rescue provider's abilities, the 
employer also must consider the willingness of the service to become 
familiar with the particular hazards and circumstances faced during its 
permit-space entries. Paragraphs (a)(4) and (a)(5) of final Sec.  
1926.1211 require the employer to provide its designated rescuers with 
information about its confined spaces and access to those spaces to 
allow the rescuers to develop appropriate rescue plans and to perform 
rescue drills. A rescue service's receptiveness to this information is 
directly relevant to its ability to function appropriately during 
actual rescue operations.
    Two commenters suggested that OSHA provide additional guidance 
about how employers that use a third-party rescue service are to verify 
that they meet the requirements in final Sec.  1926.1211(a) (ID-099, p. 
3; ID-132, p. 3). OSHA has provided performance-based requirements that 
are closely aligned with the general industry standard. Therefore, OSHA 
does not believe that it will be difficult for an employer to determine 
whether the rescue service meets these requirements. However, OSHA is 
willing to provide additional guidance as necessary.
    Paragraph (a)(3). Final Sec.  1926.1211(a)(3), which is identical 
to Sec.  1910.146(k)(1)(iii) except for the addition of Sec.  
1211(a)(3)(iii), introduces the requirements that a designated rescue 
service must meet. Final Sec.  1926.1211(a)(3) requires the employer, 
after performing the evaluations required by paragraphs (a)(1) and 
(a)(2) of this section, to select a rescue provider that meets the 
requirements of this paragraph. Therefore, it is not sufficient for an 
employer simply to perform the evaluations required. The employer also 
must use the results of those evaluations to select a rescue service 
that will meet the requirements of this standard.
    Final Sec.  1926.1211(a)(3)(i), which is identical to the general 
industry

[[Page 25448]]

standard at Sec.  1910.146(k)(1)(iii)(A), requires an employer to 
designate a rescue team that is capable of reaching a victim in an 
appropriate amount of time. This requirement is an important element of 
a preplanned rescue because it eliminates further risk of injury and 
death resulting from an unnecessary lapse of time between an emergency 
and when the rescue service affects the rescue. Delays may occur for 
reasons such as: The travel distance from an off-site location is too 
far away from the permit space; time needed to gather rescue equipment 
from storage; lack of training needed to use the rescue equipment 
properly; or the rescue service is off-duty at the time of the 
emergency. As discussed above, the time required to respond to a rescue 
summons varies with the hazards posed by the permit space, and the 
entry employer must consider the hazards involved in its permit-space 
work and select an appropriate rescue service.
    Final Sec.  1926.1211(a)(3)(ii), which is identical to the general 
industry standard at Sec.  1910.146(k)(1)(iii)(B), requires an employer 
to designate a rescue team that is capable of providing proficient 
rescue service. This requirement is an important element of a 
preplanned rescue because it eliminates further risk of injury and 
death resulting from improperly equipped or untrained rescuers. At a 
minimum, the designated service must comply with final Sec.  
1926.1211(b).
    Final Sec.  1926.1211(a)(3)(iii) requires an employer to designate 
a rescue service that agrees to notify the entry employer immediately 
if it becomes unavailable during an entry operation. There is no 
corresponding provision explicitly required in Sec.  1910.146, although 
Sec.  1910.146(k)(1)(iii)(A) implies such a duty. For a rescue service 
to be effective, it must be available when the entry employer is 
conducting permit-space entry operations. This provision will promote 
employee safety by ensuring that entry employers know when their 
designated rescue services are unavailable.
    Final Sec.  1926.1211(a)(3)(iii) enhances an employer's knowledge 
about the availability of a rescue service during entry operations. 
This final provision, in combination with other provisions of this 
final standard, ensures that entry employers know that the rescue 
service is available. Final Sec.  1926.1210(d), and Sec.  
1910.146(j)(4), both require the entry supervisor to verify that the 
rescue service is available.
    Final Sec.  1926.1211(a), and Sec.  1910.146(k)(1), address the 
employer with a designated third-party rescue service that cannot 
guarantee that its rescue team will be available during the employer's 
permit-space entry operations. In such a case, the employer must 
maintain close communication with the rescue service during entry 
operations so that, if the rescue service becomes unavailable while an 
entry is underway, the employer can instruct the attendant to abort the 
entry immediately. May 23, 2008, letter to Jonathan Pennington. 
Consistent with these two provisions, the rescue service needs only to 
communicate its unavailability when the entry employer informs it that 
entry operations are underway. Although the employer is less likely to 
know exactly when a third-party service is responding to another call 
that would make the service unavailable to perform rescue from the 
PRCS, this requirement also applies to on-site rescue services if, for 
example, the on-site service members become involved in other work 
activities that prevent them from responding in a timely fashion to a 
rescue summons.
    Paragraph (a)(4). Final Sec.  1926.1211(a)(4), which is identical 
to the general industry standard at Sec.  1910.146(k)(1)(iv), requires 
an employer to inform the designated rescue service of the known 
hazards associated with the permit space in the event rescue becomes 
necessary. This provision provides the rescue service with information 
about hazards and conditions in the permit space that will protect the 
rescue-service employees who enter the permit space for rescue 
operations, training, or any other purpose.\25\ Compliance with this 
paragraph, as well as with paragraphs (a)(1) and (a)(2) of this 
section, would require the employer to provide this information to the 
rescue service prior to permit-space entry. Similarly, if an entry 
involves hazards not usually encountered by the rescue service, or 
hazards or a configuration that would require the rescue service to use 
equipment that it does not always have available, the employer would 
have to notify the rescue service of these hazards and conditions prior 
to beginning the entry operation. In most cases, this information 
exchange can be accomplished during a single conversation, but 
additional conversations would be necessary in the event of changes in 
the conditions or configuration of the space after the initial 
conversation.
---------------------------------------------------------------------------

    \25\ To meet the requirements of this provision, the employer 
would have to inform the rescue service that the employer selected 
the service to rescue its employees during entry operations, and 
that the employer is relying on the rescue services to perform these 
rescues when necessary.
---------------------------------------------------------------------------

    Paragraph (a)(5). Final Sec.  1926.1211(a)(5), which is identical 
to the general industry standard at Sec.  1910.146(k)(1)(v), requires 
an employer to provide the designated rescue service with access to all 
permit spaces from which the rescue service may need to perform a 
rescue. The purpose of the provision is to provide the rescue service 
with an opportunity to develop appropriate rescue plans and to practice 
rescue operations. OSHA believes that this provision will allow the 
rescue service to become familiar with the configuration and features 
of the permit space to which the employer may summon it to perform 
rescue operations, and thereby develop appropriate rescue plans and 
practice rescue operations.
    Access to the permit space or a simulated permit space for the 
purpose of planning and practicing rescue operations increases the 
probability that rescue operations will proceed more efficiently and 
effectively, thereby reducing the probability of serious injury or 
death to authorized entrants and rescuers during an actual entry-rescue 
operation. Note that this provision does not require the third-party 
rescue service to use the permit spaces for practice; final paragraph 
(a)(5) simply requires that the entry employer provide access to the 
space. In performing practice rescues, the third-party service may use 
any representative permit spaces that replicate the permit spaces from 
which it may perform a rescue in accordance with final Sec.  
1926.1211(b)(4).
    Paragraph (b). Final Sec.  1926.1211(b) sets forth four 
requirements for an employer that has employees designated to provide 
rescue service. Paragraph (b) is identical to the general industry 
standard at Sec.  1910.146(k)(2), except that OSHA replaced references 
to employers' responsibilities for ``employees'' collectively with 
references to employers' responsibilities to ``each employee''; this 
revision emphasizes that an employer's responsibility in this area is 
to each employee individually.
    Final Sec.  1926.1211(b) applies to the employer of the rescue 
service (including non-entry rescue personnel) when that employer also 
is the entry employer or other employer performing work integral to 
construction. When the employer is a third-party rescue service that 
does not perform work integral to construction, then the work performed 
by the rescue service is covered under the corresponding general 
industry standard at Sec.  1910.146(k)(2). OSHA believes that it is 
important to protect employees who enter permit spaces to perform 
rescue duties regardless of the

[[Page 25449]]

employer responsible for the rescue team. By making this final 
paragraph substantively identical to Sec.  1910.146(k)(2), there are no 
differences in the requirements for rescue-team employers under the 
general industry or construction confined space standards. The Agency 
determined that this requirement is necessary to provide protection for 
employees in on-site rescue teams, while employees of third-party 
rescue services will be protected under identical general industry 
requirements. This is consistent with the intent of the Agency to 
protect both on-site rescue teams and third-party rescue services in 
the general industry confined spaces standard (58 FR 4527).
    One commenter, representing a company involved in sewer work, 
asserted that it is neither practical nor feasible for employers 
performing construction to employ their own rescue personnel (ID-107, 
p. 4). However, neither proposed Sec.  1926.1213(c) nor final Sec.  
1926.1211(b) specify that entry employers must hire additional, rescue-
specific, personnel. Rather, employers that train and equip current 
employees as required by this standard may designate their own 
employees to provide permit-space rescue, just as under the general 
industry standard. Also, the commenter referred to a ``typical sewer 
construction/maintenance project,'' implying that the company it 
represents engages in maintenance projects that would be subject to the 
same requirement in the general industry standard. However, the 
commenter did not indicate that this company, or any other company, 
found it infeasible to comply with the general industry standard. The 
commenter did not provide any explanation for why compliance with the 
requirement in this final standard would be more burdensome than 
compliance with the general industry work.
    Other commenters incorrectly asserted that OSHA would require 
construction employers to become experts in rescue service (ID-126, pp. 
2-3; ID-075, pp. 8-9). Final Sec.  1926.1211(b) does not prohibit 
employers from using a third-party rescue service; it merely permits 
employers to use their own employees to provide rescue service. The 
general industry confined spaces standard at Sec.  1910.146(k) also 
provides the option of using an employer's own employees to provide 
rescue services. At least one commenter supported the provision 
permitting construction employers to use their own employees to provide 
rescue service, noting that the use of a third-party rescue service is 
not always effective because of the location of the site or the 
competency of the third-party rescuers (ID-143, p. 2).
    Paragraph (b)(1). Final Sec.  1926.1211(b)(1), which is nearly 
identical to the general industry standard at Sec.  1910.146(k)(2)(i), 
requires an employer with employees designated to provide rescue 
service to equip each affected employee with PPE and to train the 
employees, at no cost to those employees, how to use the PPE safely. 
The provisions in this paragraph will help the employer prevent 
injuries and deaths that could occur without the appropriate PPE, or 
because the employees did not receive proper training in use of such 
equipment. Employers still must select and use PPE in accordance with 
subpart E of part 1926 and all other applicable requirements. These 
requirements, which include proper selection and use of respirators in 
accordance with the requirements of the respiratory protection standard 
at Sec.  1926.103, continue to apply when workers are working in a 
permit space.
    Paragraph (b)(2). Final Sec.  1926.1211(b)(2), which is nearly 
identical to the general industry standard at Sec.  1910.146(k)(2)(ii), 
requires an employer with employees designated to provide rescue 
service to train each employee performing the rescue service, and to 
ensure that these employees successfully complete the training required 
for authorized entrants.
    This provision would ensure that rescue-service employees can 
perform their assigned duties proficiently and safely under hazardous 
permit-space conditions. Lack of such training would endanger the 
rescue-service employees, those in need of rescue, and others affected 
by the permit-space rescue operations. Training in the proper use of 
rescue equipment will help the employer eliminate injuries and deaths 
caused by the improper use of such equipment. Rescue-equipment training 
must include training on all equipment that may be used in conducting a 
rescue in the PRCS, such as the care and inspection of breathing and 
ventilation gear and emergency-evacuation equipment, and the use of 
two-way radios and fire-fighting equipment. Training in the 
requirements for authorized entrants also will protect the rescue-
service employee, those in need of rescue, and others affected by the 
rescue operations because rescue-service employees will be familiar 
with the hazards of permit spaces and the modes of communicating with 
attendants. The rescue service may need to use the same modes of 
communication to communicate with a trapped entrant.
    One commenter suggested that OSHA require an employer to train all 
of its employees, not just entry rescue-service employees, on how to 
perform rescue duties (ID-150, p. 3). OSHA disagrees with this 
commenter because, under final Sec.  1926.1211, training for employees 
not authorized to perform rescue is not necessary for an employer to be 
ready to provide effective and timely rescue service.
    Paragraph (b)(3). Final Sec.  1926.1211(b)(3), which is nearly 
identical to the general industry standard at Sec.  
1910.146(k)(2)(iii), requires an employer with employees designated to 
provide rescue service to train the employees performing both non-entry 
and entry rescue services in basic first aid and cardiopulmonary 
resuscitation (CPR). The Agency believes this requirement is necessary 
because of the hazards and resultant injuries that may occur in permit 
spaces. This requirement also will improve the probability that the 
injured employees survive until higher levels of medical treatment 
become available.
    Paragraph (b)(4). Final Sec.  1926.1211(b)(4), which, apart from an 
addition discussed below, is identical to the general industry standard 
at Sec.  1910.146(k)(2)(iv), requires an employer to ensure that the 
designated rescue service practices rescue operations at least once 
every 12 months. OSHA believes this training requirement for entry-
rescue service employees is necessary to maintain proficiency in entry-
rescue procedures and the use of rescue equipment. This training also 
will ensure that the employer trains the entry rescue-service employees 
on all revisions to entry-rescue procedures, and that the employees are 
cognizant of any other new information regarding entry rescue. 
Practicing rescues in a permit space or a representative permit space 
also highlights deficiencies in rescue procedures, and allows for 
revisions of those procedures before they can adversely affect the 
safety of rescue-service employees or employees in need of rescue 
during an actual rescue operation.
    One commenter read the proposed rule as prohibiting rescue services 
from conducting practice rescues in the actual permit space (ID-107, p. 
4). There was no such prohibition in the proposed rule, and by adopting 
the language of the general industry standard in this final rule, OSHA 
makes it clear that rescuers may practice by removing dummies or real 
persons ``from the actual permit spaces or from representative permit 
spaces.'' If the employer does not use actual permit

[[Page 25450]]

spaces for practice, representative permit spaces must simulate the 
types of permit spaces from which the rescuers may perform rescues with 
respect to opening size, configuration, and accessibility.
    Proposed Sec.  1926.1213(d) provided that this practice is not 
necessary when the affected employees properly performed rescue in the 
same, or similar, permit space during the last 12 months. This proposed 
language made explicit the existing rule under the general industry 
standard, which, in its original preamble, stated that satisfactory 
performance of one or more actual rescues in the same, or similar, 
space during the 12-month period prior to the training anniversary date 
could substitute for a practice rescue (58 FR 4528). OSHA previously 
recognized in other standards (such as in Sec.  1910.120--Hazardous 
waste operations and emergency response) that actual experience at a 
particular task can be at least as valuable as a practice session or 
other type of training. However, just as the rescue service must 
practice in the same spaces or spaces similar to the ones in which it 
is to provide rescue, for an actual rescue to take the place of a 
practice rescue, it must be in the same or similar space. Also note 
that unsatisfactory performance of a rescue indicates the need for 
further training and, therefore, cannot substitute for a practice 
rescue. This exception applies when the rescuers perform a rescue 
operation in a satisfactory manner and the entrants, through factors 
beyond the rescuers' control, do not survive. Therefore, this final 
rule incorporates the exception from the proposed rule by adopting the 
performance-based language of the general industry standard.
    One commenter asserted that the requirement to perform a simulated 
rescue is infeasible in situations where the rescue service is a small 
local fire department (ID-090, p. 2). Nevertheless, the commenter 
volunteered that performing the simulated rescue is the safest 
approach. When a third-party rescue service does not have the resources 
to perform this simulated rescue, the employer must either train its 
own employees to provide rescue or designate a third-party rescue 
service that is capable of complying with all of the rescue 
requirements in final Sec.  1926.1211(b).
    Another commenter asserted that OSHA wrote proposed Sec.  
1213(c)(6) in a manner that allowed an entry employer's employees to 
enter a confined space even when the initial practice rescue occurred 
15 years before the entry takes place (ID-013, p. 5). This commenter 
misread the requirement. Final Sec.  1926.1211(b)(4), as in the 
proposed rule, requires an employer to conduct a practice rescue at 
least once every 12 months after the initial practice rescue. 
Therefore, 12 months minus one day is the longest period allowed 
between a practice rescue and the moment the employer begins entry 
operations.
    Another commenter asked how employers who designate a third-party 
rescue service can verify that the service practices rescue every 12 
months (ID-099, p. 3). The duties in paragraph (b) apply to the 
``employer whose employees have been designated to provide permit space 
rescue.'' Therefore, if an entry employer hires a third party to 
provide rescue services, the final standard does not require the entry 
employer to verify the practice of the third party. However, paragraph 
(a), which applies to all employers that designate rescue and emergency 
services, requires those employers to evaluate the rescue proficiency 
of the rescue team, even a third-party rescue team, and select a team 
that is proficient. This commenter also asserted that it is too 
burdensome to fulfill the requirement to practice rescue operations, 
but did not provide a specific reason why compliance is infeasible 
(id.). Both the general industry confined spaces standard at Sec.  
1910.146(k)(2)(iv) and NFPA 1670, sec. 7.1.3.4 (2009 ed.) also specify 
a requirement to practice rescue operations found in final Sec.  
1926.1211(b)(4). Without a specific reason to depart from this 
established procedure, OSHA finalized this provision to be similar to 
proposed rule Sec.  1926.1213(c)(6) and the corresponding provision for 
general industry confined spaces at Sec.  1910.146(k)(2)(iv).
    Paragraph (c). Final Sec.  1926.1211(c), which is substantively 
similar to the general industry standard at Sec.  1910.146(k)(3), 
requires that an employer use non-entry rescue, instead of entry 
rescue, unless non-entry rescue is more dangerous or ineffective than 
entry rescue. The major difference between this final provision and 
Sec.  1910.146(k)(3) is that OSHA revised this final requirement to 
clarify the employer's obligation.
    If the employer determines that it will use non-entry rescue, final 
Sec.  1926.1211(c) also requires the employer to use a retrieval system 
or method. Accordingly, in general authorized entrants must wear 
retrieval devices and employers must use a retrieval system, in 
addition to confirming that emergency assistance is available in the 
event the non-entry retrieval fails.
    Retrieval lines can be highly effective in assisting in the rescue 
of an unconscious or otherwise incapacitated employee from a confined 
space. The other major advantage of using retrieval lines for rescue is 
that it is not necessary to expose a rescuer to the hazards of entering 
the permit space to help remove an injured entrant. The effectiveness 
of retrieval lines in rescue was recognized by employers using this 
equipment for confined space entries during the general industry 
standard rulemaking (see 58 FR 4530), and mandatory use of retrieval 
lines is included in both ANSI Z117.1 and the general industry 
standard. However, the Agency recognizes that many spaces do not 
readily or safely accommodate the use of retrieval lines. For example, 
obstructions can snag the retrieval line, and the air lines and 
electric cords within the space can pose entanglement hazards. In 
addition, depending on the number of entrants and how much they move 
around in the space, the retrieval lines themselves could pose an 
entanglement hazard (see final Sec.  1926.1211(c)(3)).
    To allow for the greatest degree of safety in addressing these 
problems, the final standard requires the use of retrieval systems or 
methods whenever an authorized entrant enters a permit space, except in 
situations for which the employer can demonstrate that the retrieval 
equipment would increase the overall risk of entry or would not 
contribute to the rescue. This is the approach taken in ANSI Z117.1 and 
the general industry standard, and OSHA believes that adopting this 
approach will provide the most effective protection for employees, with 
appropriate allowance for situations in which employers should not use 
retrieval systems.
    When enforcing this provision, OSHA may inspect the permit space to 
determine whether a retrieval system would contribute to a rescue 
without increasing the overall risk of entry. Although some spaces may 
have configurations or hazards that warrant a slightly different 
approach, in general, the Agency intends to use the following factors 
in determining that a permit space does not require an employer to use 
a retrieval system: (1) The permit space has obstructions or turns that 
prevent transmitting pulls on the retrieval line to the entrant; (2) 
the permit space has projections that would cause injury to an employee 
making forceful contact with the projections during rescue; and (3) 
when an entry employee enters the permit space using

[[Page 25451]]

an air-supplied respirator and the non-entry rescuers cannot control 
the retrieval line so as to prevent entanglement of the retrieval line 
with the respirator's air line.
    Section 1926.1211(h) of the proposed rule specified that employers 
must provide both entry and non-entry rescue, while proposed paragraph 
(h)(2)(i) specified that employers must summon an entry-rescue service 
whenever they initiate a non-entry rescue. One commenter was unsure 
whether employers must prepare to provide both entry and non-entry 
rescue (ID-098, p. 2). Another commenter asserted that it was too 
burdensome to require employers to prepare for both entry and non-entry 
rescue when working within or near a PRCS. (ID-120, p. 3). To address 
these concerns, OSHA based the final rule on the general industry 
confined space standard, but drafted the final rule to be more 
performance-oriented than the general industry standard.
    The final rule provides for a ``back-up'' to non-entry rescue, much 
as the proposed rule did, but in a manner that is less burdensome for 
employers. Consequently, final Sec.  1926.1211(c) requires that, if an 
entry employer determines that it will use non-entry rescue, it must 
confirm, prior to entry, that emergency assistance will be available in 
the event that non-entry rescue fails. OSHA expects this confirmation 
will typically involve a quick phone call or other communication to 
establish availability before making the first entry. The employer need 
not repeat such confirmation when there are several entries planned as 
part of the same project, provided the employer discusses during the 
initial contact with the rescue service the availability of emergency 
assistance for the expected duration of the project. This confirmation 
is especially important if the employer uses a 911 service or other 
third-party service that is small and has few teams on call because the 
service must be available to provide emergency assistance quickly when 
needed if the assistance is to be effective. In the event emergency 
assistance is summoned, OSHA anticipates that the emergency assistance 
provider will assume direction of the rescue and would request any 
other information it deems essential to effectively provide assistance, 
and notes that employers may be required by other laws to comply with 
the emergency assistance requests for information. OSHA is not 
requiring the employer to provide other specific information at the 
site out of concern that such a requirement might slow the rescue 
process if it compels the employer to provide information not needed by 
the emergency assistance provider. Note that arranging for emergency 
assistance is not the same as providing for entry rescue; emergency 
assistance is intended as the backup for the employer's rescue plan, 
whether the employer relied on entry or non-entry rescue. Entry rescue 
requires personnel trained to recognize the hazards associated with 
entry rescue and perform entry rescue duties. These personnel must be 
trained in performing entry rescues and must have practiced such a 
rescue within the past year. Employers must designate entry rescuers 
when non-entry rescue is not an appropriate option. Emergency 
assistance is intended to supplement employer rescue efforts and 
provide emergency care to employees injured on site and/or rescued from 
a confined space. Emergency assistance is required if there is a 
problem with a non-entry rescue or with an entry rescue.
    The non-entry rescue requirements are based on the general industry 
standard, but provide additional guidance. While there is no 
corresponding provision stated explicitly in the general industry 
standard at Sec.  1910.146, Sec.  1910.146(d)(9) requires employers to 
develop plans to summon emergency services and for rescuing personnel. 
In final Sec.  1926.1204(i), OSHA clarified that, if the entry employer 
uses non-entry rescue as the designated method of rescue, the employer 
must develop a procedure for summoning emergency assistance in case the 
non-entry rescue is not able to retrieve the entrant. Emergency 
assistance, such as a 911 emergency-responder service or an on-site or 
off-site entry-rescue team, may prevent such a situation from resulting 
in injury or death, so it is critical that emergency assistance be 
available to respond to the emergency.
    In final Sec.  1926.1211(c), OSHA also clarifies that, if the 
employer determines that it will use entry rescue, it must designate a 
rescue service that is capable of providing entry rescue. Additionally, 
it sets requirements for non-entry rescue systems; these requirements 
do not differ substantively from the corresponding general industry 
provision.\26\
---------------------------------------------------------------------------

    \26\ As with the general industry standard, the construction 
standard relies on existing fall-protection requirements to ensure 
the proper use of fall-protection equipment. Final Sec.  
1926.1211(c) does not address the issue of fall protection for entry 
into, and exit from, vertical type permit spaces; 29 CFR part 1926, 
subpart M, and the General Duty Clause, 29 U.S.C. 654(a)(1), govern 
fall protection in construction.
---------------------------------------------------------------------------

    Paragraph (c)(1). Final Sec.  1926.1211(c)(1), which is similar to 
the general industry standard at Sec.  1910.146(k)(3)(i), requires an 
employer to provide each employee with a chest harness or full body 
harness for most non-entry rescue, but permits use of wristlets or 
anklets if the employer can demonstrate that the chest or full body 
harness is infeasible or creates a greater hazard. A chest or full-body 
harness prevents further injury should an employee become suspended 
during a rescue; without a chest or full-body harness, injuries can 
result from the unequal distribution of force on the body during 
suspension (see the preamble to OSHA's final rule on fall protection 
for construction at 59 FR 40672, 40702-40704 (Aug. 9, 1994), for a 
detailed discussion of this issue.)
    One commenter asserted that OSHA should require the use of a full-
body harness to perform rescue in every instance because it is the most 
effective means of rescue (ID-210, Tr. p. 68). OSHA disagrees with this 
commenter. Permit spaces come in many different sizes and 
configurations, which may make a chest harness more appropriate than a 
full-body harness in some circumstances.
    This provision also provides that the employer must place the 
retrieval line attached to the harness on the entrant's back near 
shoulder level, over the entrant's head, or at another point that will 
establish a small enough profile for successful removal of the entrant 
from the permit space. One commenter agreed that it was safer to attach 
the line to the entrant's back, rather than the chest (ID-095).
    Final Sec.  1926.1211(c)(1) differs from the general industry 
standard at Sec.  1910.146(k)(3)(i) in that it includes both anklets 
and wristlets as acceptable means of retrieval in lieu of a harness in 
limited circumstances. Employers can use wristlets or anklets in lieu 
of a harness only if the employer can demonstrate that the use of a 
harness is infeasible or creates a greater hazard to the employee, and 
that the use of the wristlets or anklets is the most effective 
alternative available. Proposed Sec.  1926.1213(a)(4)(iii) permitted 
employers to use ankle straps, along with wristlets, for non-entry 
rescue under limited conditions. One commenter supported this proposed 
minor change from the general industry standard, asserting that anklets 
may be the safest alternative in horizontal entries (ID-094). However, 
because of the potential safety advantages of the chest and full-body 
harnesses, the Agency believes that it is necessary to limit the 
circumstances when employers

[[Page 25452]]

can use either wristlets or anklets to those in which the employer can 
demonstrate that use of a harness is infeasible or a greater hazard 
than wristlets or anklets because of the increased risk of employee 
injury during a rescue.
    Paragraph (c)(2). Final Sec.  1926.1211(c)(2), which is identical 
to the general industry standard at Sec.  1910.146(k)(3)(ii), requires 
an employer to use a retrieval line attached to a mechanical retrieval 
device or fixed point outside the permit space so that non-entry rescue 
can begin as soon as needed. It also requires an employer to use a 
mechanical device to retrieve personnel from spaces more than five feet 
deep. This provision reduces the elapsed time between an attendant 
determining that a rescue is necessary and commencing the PRCS rescue 
operation by requiring the essential parts of the retrieval system to 
already be in place and attached to the mechanical device or fixed 
point. This requirement will eliminate further injury or death due to 
the delay resulting from locating and attaching retrieval-system parts 
and equipment.
    The requirement to use a mechanical device for spaces more than 
five feet deep is consistent with the general industry standard and 
ANSI Z117.1. Securing the line to an anchor point or using an un-
mechanized pulley for retrievals over five feet could endanger the 
authorized entrant because designated non-entry rescuers may not have 
sufficient strength and stamina to lift a disabled entrant over a 
vertical distance of more than five feet.
    One commenter asserted that OSHA should require a mechanical 
retrieval device for all heights when the employer conducts non-entry 
rescue (ID-211, Tr. pp. 43-44). Another commenter asserted that OSHA 
should recognize that mechanical winches and pulleys are sometimes 
necessary based on job conditions (ID-108, p. 2). Neither commenter 
provided any evidence that attendants encountered difficulty retrieving 
entrants from distances of less than five feet, or pointed to any 
problems that arose in the context of the general industry standard or 
ANSI Z117.1, both of which include the same five-foot threshold. 
Without additional support for imposing this requirement, OSHA decided 
to retain the language from the general industry standard. Nothing in 
this standard, however, precludes use of mechanical retrieval devices 
for retrievals from heights of less than five feet.
    Proposed Sec.  1926.1213(a)(2)(iv)(B) also provided that movable 
equipment (for example, earth-moving equipment) that is ``sufficiently 
heavy to serve as an anchor point,'' may be used for that purpose only 
if effectively locked out or tagged out. Two commenters expressed 
concern about movable equipment as an anchor point. One commenter 
stated that many accidents occurred in the past when using a pick-up 
truck as a fixed point without notifying the driver of the truck, who 
then unexpectedly moved the truck. This commenter urged that this 
provision include ``proper protocols'' to ensure that such a situation 
did not recur (ID-025, p. 4). Another commenter noted that OSHA's 
construction standards do not include an equivalent to the Lockout/
Tagout standard for general industry. The commenter, therefore, urged 
OSHA to include a more protective requirement, asserting that a 
requirement to ``lock out'' or ``tag out'' equipment, without 
additional detail, would ``be subject to various interpretations,'' and 
could result in unexpected activation of the equipment (ID-143, p. 2).
    OSHA recognizes that on a construction site, a piece of moveable 
equipment may sometimes be the most accessible fixed point, but 
acknowledges the commenter's concern that such equipment is moveable, 
even if it has sufficient weight. Thus, under this final rule, an 
employer must ensure that any movable equipment used as a fixed point 
is ``fixed,'' meaning that it is sufficiently heavy (such as earth-
moving equipment) to prevent movement, and that it is subject to 
additional precautions to prevent unexpected movement. Accordingly, as 
in the proposed requirement, to determine whether a retrieval line that 
is attached to moveable equipment is ``attached to a . . . fixed 
point'' under final Sec.  1926.1211(c)(2), OSHA will evaluate whether 
the moveable equipment is effectively locked out or tagged out. In 
particular, OSHA will use the final rule's definitions of ``lockout'' 
and ``tagout'' in making that determination, which partially address 
the commenter's concern by bringing the lockout/tagout process closer 
to the protection offered by the general industry standard. For 
example, as part of the tagout process, an employer must ensure that 
tagout provides ``equivalent protection'' to lockout or that lockout is 
infeasible. Consequently, the employer must take whatever measures are 
necessary to prevent unexpected energization or movement of the 
equipment. Placing a ``do not move'' tag in the truck or other 
equipment would not be sufficient by itself. Typically, such measures 
include activating an emergency brake or similar device, removing the 
key from the equipment after ensuring that duplicates are not readily 
available on the site, placing a tag on the equipment to warn others 
not to start it, and informing any potential operator(s) not to move 
the equipment while it is serving as a fixed point for rescue. If the 
equipment is capable of activation by remote control, then the employer 
must secure the remote control or disable that capability to prevent 
unexpected movement.
    Final Sec.  1926.1211(c)(2) is performance oriented, and allows 
flexibility in the design specifications of the retrieval equipment, 
subject to the requirements of Sec.  1925.1211(c)(3) (equipment must be 
suitable). One commenter asserted that there are many instances when 
the use of a tripod assembly with a three-way retrieval system is 
effective (ID-060, p. 1). Final Sec.  1926.1211(c)(2) does not prohibit 
the use of such a device if it meets the requirements of this 
subparagraph. A different commenter asserted that final Sec.  
1926.1211(c)(2) should be performance based because of ongoing 
advancements in confined-space retrieval equipment, and suggested 
incorrectly that the proposed rule limited retrieval by specifying the 
use of anchor points or simple pulleys (ID-116, p. 3). The definition 
of ``retrieval system'' in final Sec.  1926.1202 is performance based, 
and allows for technological advancements in retrieval equipment. This 
definition does not limit retrieval to the use of anchor points or 
simple pulleys.
    One commenter asserted that final Sec.  1926.1211(c)(2) should 
require an employer to have the retrieval system located at the 
confined space opening (ID-025, p. 4). Final Sec.  1926.1211(c)(2) 
requires the employer to have the retrieval system available as soon as 
needed, which ensures that rescue can begin immediately. Another 
commenter asserted that the proposed language ``available as soon as 
needed'' was too vague, and that a retrieval device could satisfy this 
provision even if kept elsewhere on the worksite and not installed (ID-
095, p. 4). Final Sec.  1926.1211(c)(2) addresses this commenter's 
concern by requiring attachment of the retrieval line to the 
appropriate retrieval mechanism (a mechanical device if the depth 
exceeds five feet, or a fixed anchor point for shallower entries) ``in 
such a manner that retrieval can begin as soon as the rescuer becomes 
aware that rescue is necessary,'' thus ensuring that the line will be 
available and ready for use when needed. If the retrieval device is not 
at the opening of the permit space, then the employer is responsible 
for demonstrating that it could initiate

[[Page 25453]]

retrieval immediately as soon as the rescuer becomes aware that rescue 
is necessary.
    Paragraph (c)(3). Final Sec.  1926.1211(c)(3) prohibits an employer 
from using equipment that is unsuitable for retrieval, such as 
retrieval lines likely to become entangled or that are ineffective due 
to the configuration of the PRCS. Final Sec.  1926.1211(c)(3) is 
similar to proposed Sec.  1926.1213(a)(4). There is no corresponding 
provision in Sec.  1910.146.
    A retrieval device, for example, would not be suitable unless it is 
designed and rated for human use. The provision does not require 
certification of the retrieval system, but OSHA will accept 
certifications by manufacturers, as well as listing by a Nationally 
Recognized Testing Laboratory, as evidence of the proper design and 
rating. If the employer fabricates its own retrieval device, OSHA will 
look for evidence that the employer designed, manufactured, tested, and 
certified the retrieval device in accordance with generally accepted 
industry practices (for example, by a registered professional 
engineer).
    This final provision prohibits the use of retrieval lines that have 
a reasonable probability of becoming entangled with the retrieval lines 
used by other authorized entrants, or due to the internal configuration 
of the PRCS. The Agency believes that there are situations in which the 
retrieval lines of two or more employees can become entangled, such as 
when the employees' work requires that they move around each other. 
There are also a variety of situations in which the configuration of 
the PRCS would interfere with a non-entry rescue and cause further 
serious injury to authorized entrants in need of rescue. For example, 
the permit space may have objects or equipment protruding from its 
walls, or sharp corners that may damage rescue equipment or prevent the 
use of certain types of non-entry rescue equipment.
    Final Sec.  1926.1211(c)(3) also prohibits the use of other 
unsuitable equipment, such as equipment that increases the overall risk 
of entry or impedes rescue of an authorized entrant. Under final Sec.  
1926.1211(c)(3), the mechanical retrieval device used must be 
appropriate for rescue service. This requirement follows the general 
industry standard, which was based on the record in that rulemaking 
indicating that incapacitated entrants could easily be bounced around, 
torn apart, or impaled if too much torque was applied to the retrieval 
line or the retraction of the line was not precisely controlled (see 
the general industry preamble discussion at 58 FR 4531). Accordingly, 
the employer must not use any mechanical device, such as a fork lift or 
backhoe, that could injure the entrant during rescue. Using a material 
hoist to both haul material and to serve as a rescue retrieval system 
during an entry operation also is not acceptable. In such a situation, 
the material hoist would not be available for rescue when it is hauling 
materials; further delay would result when, during a rescue operation, 
the attendant would have to detach the retrieval line from the 
materials and attach it to the employee requiring rescue. See Oct. 6, 
1995, letter to Mr. Joseph Bouchard. The employer also must not use 
powered winches without a stop clutch or other power-limiting device. 
Such winches can cause injuries to an entrant if the entrant becomes 
entangled on an object inside the permit space, but the winch continues 
to pull the entrant (58 FR 4462, 4531 (Jan. 14, 1993)).
    Prohibiting such unsuitable equipment will reduce the injuries and 
deaths that would result from the use of unsuitable retrieval equipment 
during rescue operations. The Agency did not receive any comments 
objecting to the propriety of this approach and, therefore, finalized 
this proposed prohibition of unsuitable rescue equipment.
    Paragraph (d). Final Sec.  1926.1211(d), which is identical to 
Sec.  1910.146(k)(4), requires an employer to provide relevant 
information about a hazardous substance to a medical facility treating 
an entrant exposed to the hazardous substance if the substance is one 
for which the employer must keep a safety data sheet (SDS) or other 
similar information at the worksite. The Agency recognizes that such 
information may already be available to medical facilities from other 
sources (such as state emergency-planning commissions), and that SDS or 
similar written information may not be available in some instances. 
However, because the timely provision of this information may be 
critical to the proper medical treatment of an injured employee, and 
this final standard limits the requirement to SDS or other similar 
written information that the employer already must keep at the 
worksite, OSHA concludes that the potential significance of this 
information to the health of the employee outweighs any minimal burden 
on the employer associated with providing this information. Such 
information would aid emergency medical services and medical facilities 
in correctly diagnosing and treating the employee rescued from the 
permit space.\27\
---------------------------------------------------------------------------

    \27\ The employer must provide this information if other 
applicable Federal regulations (such as Sec.  1910.1200--Hazard 
communication) or state regulations already require the employer to 
keep the SDS or other written information at the worksite.
---------------------------------------------------------------------------

Section 1926.1212--Employee Participation

    This section provides for employee participation in confined space 
programs. The provisions in final Sec.  1926.1212 are nearly identical 
to the provisions in the general industry confined spaces rule at Sec.  
1910.146(l). Final Sec.  1926.1212 differs from Sec.  1910.146(1) in 
that it refers to ``each affected employee'' rather than ``affected 
employees,'' to emphasize that an employer's responsibility in this 
area flows separately to each employee, but the employer's obligation 
remains unchanged. In the proposed rule, employee participation was 
limited to the requirement in proposed rule Sec.  1926.1204(e) that 
employers offer entry employees the opportunity to observe the 
evaluation and monitoring of the permit space. One commenter suggested 
that OSHA restore the employee participation requirement from the 
general industry rule for the reasons OSHA added paragraph (l) to the 
general industry rule in 1998, and also noted that no commenters who 
favored using the general industry format raised any objections to its 
employee participation requirements (ID-0220 p. 26-28). OSHA agrees, 
and notes that the use of the general industry language is particularly 
warranted because the final rule requires a written permit-space 
program in final Sec.  1926.1203(d), which was not required in the 
proposed rule, so final Sec.  1926.1212(a) would ensure that employees 
bring their experience to bear regarding that program.
    Paragraph (a). Final Sec.  1926.1212(a), which is nearly identical 
to the general industry standard at Sec.  1910.146(l)(1), requires 
employers to consult with affected employees and their authorized 
representatives in the development and implementation of the permit-
space program required by final Sec.  1926.1204. Allowing employees and 
their authorized representatives to participate in this manner will 
contribute to confined space safety. Commenters on the 1998 amendments 
to the confined space standard that added Sec.  1910.146(l) noted that 
employees who work in confined spaces and their representatives are 
particularly well qualified to contribute to the task analysis that is 
a necessary step in developing a confined space program

[[Page 25454]]

(63 FR 66018 (Dec. 1, 1998)). One commenter provided an example of when 
he, as an employee representative, was able to identify dangerous 
adhesive fumes in a confined space that could have otherwise harmed the 
two employees in that space who did not identify the danger (ID-010). 
These employees are most familiar with the practices used during 
confined space entries. If those practices differ significantly from 
the practices planned by the employer, the employer needs to know of 
the differences and take appropriate steps to remedy any deficiencies 
in the permit-entry procedures. Likewise, employees may know of hazards 
within the space that non-entrants are not taking into consideration. 
This provision leaves the final contents of the confined space program 
up to the employer, but, by doing so, this provision should promote 
safety and avoid the need to develop a cumbersome procedure to resolve 
conflicts between employers and employees regarding confined space 
entries.
    Final Sec.  1926.1212(a) also is consistent with Section 2(13) of 
the OSH Act, 29 U.S.C. 652(13), which emphasizes employer-employee 
cooperation by stating that one of the purposes of the Act is to 
``encourage joint labor-management efforts to reduce injuries and 
disease arising out of employment.'' Congress reiterated this purpose 
in a directive to OSHA to promulgate a Process Safety Management (PSM) 
standard; this directive explicitly provides for employee involvement 
in the development of the process safety management programs mandated 
by that standard (see Chemical Process Safety Management, Pub. L. 101-
549, Title III, sec. 304(c)(3) (1990), reprinted at 29 U.S.C.A. 655 
note (Supp. 1991)). OSHA also has a longstanding practice of 
encouraging and promoting employer-employee cooperation as exemplified 
in its 1989 Safety and Health Program Management Guidelines (54 FR 
3904); these guidelines recognize the importance of involving employees 
in safety and health programs at the workplace. OSHA's experience in 
enforcing the employee-participation requirements under the PSM 
standard and the general industry confined spaces standard convinced 
the Agency of both the value and the utility of the provision in 
paragraph (a).
    Paragraph (b). Final Sec.  1926.1212(b), which is nearly identical 
to Sec.  1910.146(l)(2), requires that affected employees and their 
authorized representatives have access to all information developed 
under this standard, with the clarification that this obligation 
applies to each employee. Other sections of this standard, such as 
final Sec.  1926.1203(d), already require that employers make some 
information available to employees and their representatives. OSHA is 
adding this provision for purposes of emphasis and clarification. This 
provision emphasizes that employees and their representatives have a 
right to all information developed under the rule affecting their 
health and safety. Final Sec.  1926.1212(b) does not require employees 
or their authorized representatives to request or review this 
information; however, it provides them with the option of requesting 
and reviewing the information should they choose to do so. Employers 
need not provide separate copies of the information to each employee; 
employers have flexibility in determining how to distribute the 
information so long as each employee can access it.

Section 1926.1213--Provision of Documents to Secretary

    Final Sec.  1926.1213 requires each employer who must retain 
documentation under this final rule to make that documentation 
available to the Secretary of Labor, or a designee, upon request. Final 
Sec.  1926.1213 is similar to proposed rule Sec.  1925.1219(e). There 
is no corresponding provision in Sec.  1910.146. OSHA added this 
provision to enable the Agency to more accurately identify potential 
safety hazards at a worksite and to monitor compliance with the 
requirements of this standard.
    The request from the Secretary or the Secretary's designee (for 
example, OSHA) may be either oral or written. Unless another provision 
of this standard requires employers to maintain a document at the 
worksite, the employer may maintain these documents off site as long as 
the employer can produce them readily to the requesting official, such 
as through electronic transmission to the worksite where OSHA is 
conducting an inspection. These documents pertain to the determinations 
made, and actions taken, regarding hazards. They provide valuable 
information to use when inspecting the worksite, including evaluating 
any potential safety hazards.
    At least one commenter objected to this requirement, asserting that 
OSHA should have to demonstrate a need for a specific document and 
obtain a subpoena, and that this requirement is a paperwork burden and 
will not increase safety (ID-075, p. 11). Requesting such documentation 
is already part of OSHA's standard inspection practice under the 
general industry standard, as it is under many other standards. See 
CPL-02-00-100, CPL-02-00-150. This provision creates no new retention 
requirement--it merely confirms that when employers are already 
required to maintain records, they must make those records available to 
the Secretary. The provision provides employers with flexibility in 
where and how such records are maintained. Though there is a small cost 
to this provision, OSHA believes the safety benefit of identifying any 
potential safety hazards supports the inclusion of this provision.

IV. Agency Determinations

A. Legal Authority

    The purpose of the OSH Act, 29 U.S.C. 651 et seq., is ``to assure 
so far as possible every working man and woman in the Nation safe and 
healthful working conditions and to preserve our human resources.'' 29 
U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary 
of Labor to promulgate and enforce occupational safety and health 
standards. 29 U.S.C. 654, 655(b), 658.
    A safety or health standard ``requires conditions, or the adoption 
or use of one or more practices, means, methods, operations, or 
processes, reasonably necessary or appropriate to provide safe or 
healthful employment and places of employment.'' 29 U.S.C. 652(8). A 
safety standard is reasonably necessary or appropriate within the 
meaning of 29 U.S.C. 652(8) if:
    <bullet> It substantially reduces a significant risk of material 
harm in the workplace;
    <bullet> It is technologically and economically feasible;
    <bullet> It uses the most cost-effective protective measures;
    <bullet> It is consistent with, or is a justified departure from, 
prior Agency action;
    <bullet> It is supported by substantial evidence; and
    <bullet> 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

[[Page 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 information-transmittal provisions. 29 
U.S.C. 655(b)(7). Finally, the OSH Act requires that when promulgating 
a rule that differs substantially from a national consensus standard, 
OSHA must explain why the promulgated rule is a better method for 
effectuating the purposes of the Act. 29 U.S.C. 655(b)(8). OSHA 
explains deviations from relevant consensus standards elsewhere in this 
preamble.

B. Final Economic Analysis and Final Regulatory Flexibility Analysis

1. Introduction
    The Occupational Safety and Health Administration (OSHA) finalized 
its safety standard for confined spaces in construction work. When 
appropriate, this final standard aligns with the confined-spaces 
standard for general industry (29 CFR 1910.146), although it also has 
distinctive characteristics for construction worksites. The pre-
existing rule on confined spaces in construction, 29 CFR 1926.21(b)(6), 
which this final rule replaces, is merely a general training 
requirement that lacks the specificity and protections that the general 
industry rule--and this final standard--provide.
    The final standard differs from the earlier proposed standard. OSHA 
revised the proposal in response to numerous stakeholder comments, 
including those from the Office of Advocacy of the Small Business 
Administration (ID-119), which indicated that employers in construction 
in large part followed the general industry standard and, therefore, 
preferred that this final rule not depart substantially from general 
industry standard. However, this final rule includes important 
requirements (also present in the proposed rule) to address 
communication, worksite evaluation, and training, which are absent 
from, or not as clearly specified in, the general industry standard.
    The final standard establishes practices and procedures that apply 
to employers that have workers who enter confined spaces during 
construction work, including major renovation projects. The final 
standard does not apply to routine maintenance activities, which the 
general industry standard covers instead.
    Work in confined spaces involves a significant risk of death or 
serious injury, which compliance with this rule will reduce 
substantially. OSHA estimates that full compliance with this final rule 
will prevent an average of approximately 5.2 fatalities and 780 lost 
workday injuries each year. In particular, the Agency believes that 
compliance with this final rule will avert injuries and fatalities from 
causes such as asphyxiation, chemical burns, scalds, and poisonings.
    Not all confined spaces pose occupational hazards. However, there 
are spaces that employees can enter only after employers follow 
specific procedures to ensure safety. Pursuant to the final rule, 
employers must develop and implement permit programs or use specified 
alternative procedures when employees work in such spaces. The standard 
sets forth the requirements for evaluating hazards, identifying and 
classifying confined spaces, and issuing permits or implementing 
alternative procedures. When the standard requires a permit to enter a 
confined space, the employer must maintain a written program and review 
it annually, and prepare and post a permit for the space. Employers 
also must adopt a variety of safety measures, including isolation 
procedures, atmospheric testing, ventilation, monitoring, and 
arrangements for rescue and emergency assistance.
    As shown in Table IV-1 below, OSHA estimates that the final rule 
will result in yearly compliance costs of $60.3 million (using a 
discount rate of 7 percent), and yearly safety benefits, based on lives 
saved and injuries prevented, of $93.6 million. Therefore, the benefits 
of this final standard outweigh the costs of complying with its 
provisions, yielding net benefits of $33.3 million a year. Compliance 
with the final standard will result in approximately $1.55 of benefits 
for every dollar of costs.
    Based on the analysis presented in this FEA, OSHA concludes that 
this final standard is technologically and economically feasible for 
all affected industries.
    This FEA includes numerous analyses OSHA is required to perform, 
including the findings of technological and economic feasibility and 
their supporting materials required by the OSH Act as interpreted by 
the courts (in sections 5, and 7, which depend on results derived in 
sections 3 and 6); the analyses required by E.O. 12866 and E.O. 13563 
(primarily in sections 2, 4, 6, and 9, though these depend on material 
in section 3); and those required by the Regulatory Flexibility Act 
(the final regulatory flexibility analysis is presented in section 8, 
but depends on or refers to results in section 3, 6 and 7 which in turn 
depend, in part, on materials presented in other chapters). Terminology 
and analytic methods and standards appearing in a particular chapter 
correspond to the source(s) of that chapter's requirements; for 
example, the legal concept of ``economic feasibility,'' which is a key 
subject of section 7, is not recognized in E.O.s 12866 or 13563 or 
their associated guidance document, OMB Circular A-4.

                        Table IV-1--Net Benefits
                       [Millions of 2009 dollars]
------------------------------------------------------------------------
                                            7% Discount     3% Discount
                                               rate            rate
------------------------------------------------------------------------
                            Annualized Costs
------------------------------------------------------------------------
Evaluation, Classification, Information            $12.4           $12.2
 Exchange and Notification..............
Written Program, Issue Permits, Verify              $4.2            $4.2
 Safety, Review Procedures..............
Provide Ventilation and Isolate Hazards.            $2.8            $2.7
Atmospheric Monitoring..................           $11.4           $11.3
Attendant...............................            $3.6            $3.6
Rescue Capability.......................            $8.2            $7.6
Training................................           $11.3           $11.3

[[Page 25456]]

 
Other Requirements......................            $6.4            $6.3
                                         -------------------------------
    Total Annual Costs..................           $60.3           $59.2
------------------------------------------------------------------------
                             Annual Benefits
------------------------------------------------------------------------
Number of Injuries Prevented............................             780
Number of Fatalities Prevented..........................             5.2
Monetized Benefits......................................           $93.6
------------------------------------------------------------------------
           Net Annual Monetized Benefits (Benefits Less Costs)
------------------------------------------------------------------------
                                                   $33.3           $34.4
------------------------------------------------------------------------

    The remainder of this FEA contains the following chapters:

2. The Need for Regulation
3. Profile of Affected Industries
4. Benefits and Net Benefits
5. Technological Feasibility
6. Costs of Compliance
7. Economic Feasibility Analysis and Regulatory Flexibility 
Determination
8. Final Regulatory Flexibility Analysis
9. Sensitivity Analysis
10. References
2. The Need for Regulation
    OSHA previously considered non-regulatory alternatives and 
established the need for regulation of work in confined spaces when it 
promulgated the general industry standard (58 FR 4548). The Agency 
asserts that the same need for regulation applies when employers are 
entering these spaces to perform construction work. Confined spaces in 
construction expose employees to a variety of significant hazards, 
including engulfment, electric shock, burn, and atmospheric hazards 
that cause serious injury and death. Although better compliance with 
existing safety standards may prevent some of these incidents, research 
and analyses conducted by OSHA found that many preventable injuries and 
fatalities would continue to occur even if employers fully complied 
with the existing standards. Relative to full compliance with the 
existing standards, OSHA estimates, in Chapter 4 of this FEA, that full 
compliance with the final standard would prevent an estimated 
additional 780 injuries and 5.2 fatalities annually.
    Executive Order 12866 provides that ``[e]ach agency shall identify 
the problem that it intends to address [via regulation] . . . 
including, where applicable, the failures of private markets.'' 
Executive Order 13563 reiterates that requirement. In the absence of 
this regulation, many construction employees would not know about or 
recognize the hazards that confined spaces, or the procedures to follow 
to protect against such hazards. Even those employees with years of 
experience in construction work may lack training on confined spaces, 
information about specific onsite confined-space hazards, equipment 
needed to monitor and ventilate confined spaces, or rescue procedures 
and equipment.
    The final standard for confined spaces in construction addresses 
these problems. The benefits analysis presented in Chapter 4 of this 
FEA shows that many accidents are potentially preventable with better 
information on confined spaces and worksite conditions and the proper 
confined-space procedures and equipment. When employers provide 
confined-spaces training, that training may be incomplete or 
ineffective in the absence of a specific set of construction 
requirements addressing training for confined spaces.
    To better understand the market failures that make this final rule 
necessary, OSHA examined the economic incentives that underlie employer 
decisions with respect to workplace safety and health. An employee 
typically accepts the risks associated with a particular job in return 
for two forms of compensation: (1) A wage premium for assuming that 
risk; and (2) expected compensation for damages in the event of 
occupational injury or illness. The rational profit-maximizing employer 
will make investments in workplace safety to reduce the level of risk 
to employees only if such expenditures result in at least an offsetting 
reduction in the employer's payouts of wage premiums for risk and 
compensation for damages. To the extent that the sum of the costs of 
wage premiums and compensation for damages accurately represent the 
total damages associated with workplace accidents, the rational 
employer will accordingly arrive at the socially optimal level of 
accident prevention from an economic efficiency viewpoint.
    Consequently, the major possible sources of market failure, 
resulting in an ``under-provision'' of health and safety, would be 
either: (1) The existence of occupational accident costs borne neither 
by the employee nor by the employer, or (2) the wage premiums or 
compensation for damages are not fully responsive to changes in 
employer-specific workplace risk. Both cases apply here.
    In the first case, there are some non-fatal occupational injury and 
illness costs incurred by neither the employer nor the employee. For 
instance, neither employers nor employees have a vested interest in 
Federal and State taxes that go unpaid as a result of an employee 
injury. Such taxes typically represent 15 percent (for Social Security 
alone) to 26 percent of the total value of the income loss to the 
employee (IRS, 2013; Urban Institute/Brookings, 2012).\28\ Workers' 
compensation payments are not subject to Federal income or Social 
Security taxes (IRS, 2012), and many studies find that income losses 
not compensated by workers' compensation are significant (NASI, 2012).
---------------------------------------------------------------------------

    \28\ The average Federal tax rate for 2009 for the middle 
quintile of household income was 11.1 percent (Urban Institute/
Brookings, 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

[[Page 25457]]

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.
---------------------------------------------------------------------------

    \29\ Premiums due to class rating, by definition, do not vary 
with an individual employer's injury experience. There is some 
empirical evidence, using a difference in differences methodology, 
showing that (small) firms that move from class rating to experience 
rating decrease their total claims by 8 to 12 percent (Neuhauser et 
al., 2013).
---------------------------------------------------------------------------

    Furthermore, workers' compensation covers only a small fraction of 
most estimates of the willingness to pay to prevent a fatality.\30\ 
Additionally, workers' compensation payments do not fully compensate 
injuries in that workers' compensation provides no payments for pain 
and suffering, or losses other than lost wages or medical expenses 
associated with injuries. There is extensive evidence that workers' 
compensation does not even fully restore wages lost as a result of 
long-term disability (Ashford, 2006).
---------------------------------------------------------------------------

    \30\ While workers' compensation varies by state, Leigh and 
Marcin (2012) estimate that the average indemnity benefit for a 
fatality is $225,919, far less than willingness-to-pay estimates. 
For example, as explained in Chapter 4 of this FEA, OSHA uses a 
willingness-to-pay measure of $8.7 million per life saved in 2009 
dollars. Other agencies use different estimates, but all the values 
are in the millions of dollars.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \31\ Furthermore, bargaining power differences or external 
constraints must not interfere in the wage setting process as these 
factors do in circumstances such as monopsony or multiemployer 
collective-bargaining agreement.
---------------------------------------------------------------------------

    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

[[Page 25458]]

Electric Power Generation), in the industry profile, and in the 
estimation of compliance costs, for the final standard.
    For electric power-generation industries (NAICS 221111, NAICS 
221112, and NAICS 221113, in addition to NAICS 221119, in the 2007 
version of NAICS), OSHA believes that most of the confined-space 
entries performed are for maintenance and repair subject to General 
Industry requirements under Sec. Sec.  1910.146 and 1910.269. When the 
size and scope of a project involving entry into confined spaces is 
large or complex enough that the work is construction work as defined 
in Sec.  1910.12(b), electric utilities typically hire contractors in 
industries that are already included in this FEA to perform the work 
and confined-space entry. Consequently, OSHA concluded that employers 
in NAICS 221119 will themselves rarely, if ever, perform work covered 
by this final rule and, thus, will incur no direct costs or negligible 
direct costs to comply with the final standard. By the same reasoning, 
OSHA did not in the PEA, and did not in this FEA, include any other 
electric power-generation industries in its industry profile or in its 
estimation of compliance costs for the final standard.
    Other commenters, including SBA Advocacy, pointed out that OSHA did 
not include single-family housing projects in the analysis of 
compliance costs in the PEA (see ID-119 and ID-219). In its original 
analysis, the Agency excluded single-family housing projects, in part 
because the previously mentioned panel of industry experts found that 
such projects did not have entries into confined spaces covered by the 
standard (see ID-003, p. 3.54). Comments in the record generally 
indicate that there are a limited number of confined-space entries in 
these projects. For example, the National Association of Home Builders 
(NAHB) noted that ``there is very limited exposure to confined space 
hazards in residential construction'' (ID-117). In a post-hearing 
brief, NAHB explained that ``although it will happen only occasionally, 
permit spaces may arise in residential home construction, perhaps when 
a subcontractor brings certain chemicals . . . into a confined space, 
such as into a crawl space, attic, or a basement before steps are 
installed'' (ID-219). OSHA agrees that, although entry into confined 
spaces to conduct work on home-building construction sites is rare, it 
cannot rule out some potential for exposure to confined-space hazards 
for this sector of the construction industry. Therefore, OSHA included 
single-family home construction projects in this analysis by adding 
NAICS code 236115, New Single-Family Housing Construction (except 
Operative Builders), to the scope of this FEA.
    In addition, OSHA believes that some residential remodeling 
projects, such as an expansion of an apartment building or upgrading 
HVAC systems, plumbing, or electrical systems in multi-family housing, 
may constitute construction activity. Therefore, for this FEA, OSHA 
added costs for employers with confined spaces in residential 
remodeling projects to comply with the final standard.
    Another commenter stated that the CONSAD report ``specifically 
excludes gas, water, sewer and municipal work from their analysis. It 
is erroneous for . . . the entire sewer construction industry to be 
excluded from the economic analysis'' (ID-091). OSHA points out that 
the PEA did not exclude the entire sewer-construction industry. Rather, 
the PEA excluded new water- and sewer-line construction projects 
because such work typically involves smaller lines and, therefore, does 
not typically involve entries covered by the rule. However, OSHA 
included entries into existing storm sewers, sanitary sewers, and sewer 
manholes for construction work, including entries involved in storm 
sewer and flood-control projects and sewer-, water-, and waste-
treatment plants, both in the PEA and in this FEA. OSHA also discusses 
in the economic feasibility analysis the possibility that 
establishments in industries that seldom have confined space entries 
might occasionally have one.
    OSHA concludes that the final standard will affect establishments 
in 15 six-digit NAICS codes. In particular, the standard will affect 
firms that perform construction work involving buildings, highways, 
bridges, tunnels, utility lines, and other types of projects. Also 
potentially affected by the final rule are general contractors, as well 
as specialty-trade construction contractors and property owners.
    Table IV-2 provides information on the estimated number of projects 
for each type of construction activity, as well as the estimated number 
of entrants per entry, number of entries, and worker-entry hours in 
confined spaces. OSHA based this information on the estimates 
originally provided in the CONSAD report.
    Table IV-3 presents profile data on the number of establishments, 
the number of employees, and revenues and profits for each affected 
industry sector. The Agency updated this table from the PEA using the 
more recent data from the 2007 Statistics of U.S. Businesses from the 
Census Bureau adjusted to 2009 dollars using the GDP deflator. This is 
the same source of data used in the PEA. These industries contain an 
estimated combined total of over 500,000 establishments and nearly 5 
million employees. The annual combined revenues of these industries in 
2007 came to nearly $1.3 trillion (in 2009 dollars). Commercial and 
Institutional Building Construction (NAICS 236220), the largest of 
these industries in terms of annual revenue, accounted for about $393 
billion of this total. However, due to the type of the activity 
addressed by this rule, OSHA modeled only a small fraction of 
establishments in the affected industries as performing construction 
activities in confined spaces and bearing the associated compliance 
costs in a given year.\32\
---------------------------------------------------------------------------

    \32\ Only some construction projects involve entry into confined 
spaces.
---------------------------------------------------------------------------

    OSHA updated the PEA estimates of before-tax profit rates in Table 
IV-3 using more recent corporate balance-sheet data from the Internal 
Revenue Service's Corporation Source Book (IRS, 2013). This is a more 
recent edition of the same source of data used in the PEA. For each of 
the years 2003 through 2007, the Agency calculated profit rates as the 
ratio of total receipts to net income by NAICS group, and averaged 
profit rates across the five-year period (2003-2007). Since some data 
provided by the IRS were not available at disaggregated levels for all 
industries and profit rates, OSHA used data at more highly aggregated 
levels as a proxy for such industries--that is, where data were not 
available for each six-digit NAICS code, OSHA used corresponding four- 
and five-digit NAICS codes, as appropriate.
    Table IV-4 presents profile data for firms defined as small 
entities by the Small Business Administration (SBA),\33\ and Table IV-5 
presents profile data for very small entities, defined as firms with 
fewer than 20 employees. Table IV-6 presents OSHA's estimated 
compliance rates for key provisions of the final standard, which it 
discusses in Chapter 6 of this FEA. Table IV-7 presents the wage rates, 
in 2009 dollars, for the labor categories used in OSHA's cost analysis, 
while Table IV-14 in Chapter 6 of this FEA presents other unit-cost 
data used in the analysis.
---------------------------------------------------------------------------

    \33\ OSHA converted revenue cutoffs for small business 
designation to the closest employee number cutoffs so that it could 
apply available business census employment numbers.

[[Page 25459]]



                                Table IV-2--Summary Statistics on Modeled Worker Entries Into Confined Spaces, by Type of Construction Activity and Project Size
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Average number of confined spaces                                                                 Total
                                                    Total                per project                                      Number of     Total     Number of    worker     Number of
                                                  number of ------------------------------------    Total      Average     entries     entries     worker      entries     worker-      Total
                                        Total     projects                                        number of   number of     into        into       entries      into      hours in      worker
          Project category            number of     with                                          confined   workers in   confined    confined      into      confined    confined    hours all
                                      projects    confined    Existing       New         All       spaces     an entry   spaces per    spaces,    confined     spaces,   spaces per    projects
                                                   spaces                                                       team       project       all     spaces per      all       project       \a\
                                                                                                                                      projects     project    projects
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Commercial and Public Buildings:
    Small Project..................      13,931       3,483           2           2           4      13,931           2           8      27,862          16      55,724          32      111,448
    Medium Project.................       4,328       3,246           5          10          15      48,690           2          57     185,022         134     434,964         605    1,962,207
    Large Project..................         852         724           5          10          15      10,863           2          57      41,279         134      97,043         605      437,779
Warehouses:
    Small Project..................       2,609         130           2           0           2         261           2          12       1,565          18       2,348          72        9,392
    Medium Project.................       4,409         220           0           2           2         441           2           4         882           7       1,543          25        5,511
    Large Project..................         462          23           0           2           2          46           2           4          92           7         162          25          578
Health Facilities and Laboratories:
    Small Project..................       2,332         117           5           0           5         583           2          29       3,381          77       8,978         294       34,310
    Medium Project.................       4,419         442           4           4           8       3,535           2          13       5,745          22       9,722          65       28,724
    Large Project..................         643         129           4           4           8       1,029           2          13       1,672          22       2,829          65        8,359
Detention Facilities:
    New Construction...............         163         147           1          14          15       2,201           2          43       6,308          90      13,203          87       12,763
Athletic and Entertainment
 Facilities:
    All Projects...................       1,378          69           1           6           7         482           2          24       1,654          46       3,169          66        4,547
Airline Terminals:
    New Construction...............          59          53           1          14          15         797           2          43       2,283          90       4,779          87        4,620
Aircraft Service:
    All Projects...................         295          30           0           5           5         148           2          36       1,062          72       2,124          19          551
Auto, Bus, and Truck Service:
    Small Renovation...............          10           2           0           2           2           4           1           2           4           2           4           3            6
    Major Renovation...............          20          12           0           8           8          96           1          16         192          22         264          92        1,104
    New Construction...............          87          87           0          18          18       1,566           1          46       4,002          77       6,699         362       31,494
Residential Housing:
    Small Project..................   1,004,721      25,118           0           1           1      25,118           1           3         612           3         612           3          612
    Medium Project.................       3,204         801           0           2           2       1,602           2           6       4,806          10       8,010          14       11,214
    Large Project..................       2,204         882           0          10          10       8,816           2         150     132,240         280     246,848         913      805,195
Apartments, Hotels, and
 Dormitories:
    All Projects...................       4,258         426           3          12          15       6,387           2          44      18,735          74      31,509         140       59,612
Streets and Highways:
    Repair Storm Drain/Sewer Local       11,893       1,784           4           5           9      16,056           2          17      30,327          29      51,735         113      202,181
     Street........................
    Install New Storm Drain/Sewer         8,325       2,914          10           7          17      49,534           2         321     935,314         544   1,585,080       2,764    8,053,119
     System........................
    Lane Expansion on Major               3,568       1,784          15          13          28      49,952           2         721   1,286,264       1,463   2,609,992       6,765   12,068,165
     Interstate....................
Bridges:
    Small Project..................         952         952           0          46          46      43,792           3         442     420,784       1,324   1,260,448       1,988    1,892,576
    Medium Project.................       2,011       1,006           0          96          96      96,528           3         742     746,081       2,524   2,537,882       2,388    2,401,134
    Large Project..................         808         404           0         196         196      79,184           3       1,342     542,168       4,924   1,989,296       3,188    1,287,952
Dams and Reservoirs:
    Small Project..................         208          10           1           1           1          10           2           2          21           4          42          32          333
    Medium Project.................         468         164           2           0           2         328           4          40       6,552         160      26,208         640      104,832
    Large Project..................          48          24           0           3           3          72          17         810      19,440      15,300     367,200      46,800    1,123,200
Storm Sewers and Flood Control:
    Small Project..................       2,489       2,489          21           2          23      57,247           1          26      64,714          26      64,714          80      198,290
    Medium Project.................         350         350           0          59          59      20,650           1         437     152,950         460     161,000         598      209,300
    Large Project..................          59          59           0         193         193      11,387           1         446      26,314         478      28,202         666       39,294
Sewer, Water, and Waste Treatment
 Plants:
    Small Renovation...............       2,310         578           4          20          24      13,860           1          69      39,848          88      50,820         280      161,411
    Major Renovation...............       1,012         708           0          34          34      24,086           1          94      66,590         126      89,258         395      279,641
    New Construction...............       1,179       1,179           0          58          58      68,382           2         163     192,177         229     269,991         743      875,408
Tanks:
    Minor Installation/Renovation           540         216           0           6           6       1,296           1           9       1,944           9       1,944           5        1,116
     (Small Contractor)............
    Minor Installation/Renovation           294         176           0           9           9       1,588           1         139      24,520         163      28,753         340       59,888
     (Medium Contractor)...........
    New Construction/Major                  147         118           0          11          11       1,294           4         389      45,746       1,421     167,110       5,364      630,748
     Renovation (Large Contractor).
Hydro-Electric Power Plants:
    Small Project..................           7           1           5           0           5           5           1          84          88         164         172         656          689
    Medium Project.................          10           8           6           0           6          48           2          48         384          96         768         384        3,072
    Large Project..................           1           1          18           0          18          16           3         433         390       1,012         911       4,048        3,643
Other Power Plants:
    Small Project..................          49           0           0           0           0           0           0           0           0           0           0           0            0
    Medium Project.................         119          95          11           0          11       1,047           5         252      23,990       1,304     124,141       4,035      384,132
    Large Project..................          92          87           7           0           7         612          18         604      52,790       3,590     313,766      15,880    1,387,912
Electric Substations:
    Small Project..................          34          31           2           1           3          92           2          22         673          44       1,346         176        5,386
    Medium Project.................         107         102           4           3           7         712           2         138      14,028         276      28,055       1,104      112,222
    Large Project..................          13          12           4           3           7          86           2         138       1,704         276       3,409       1,104       13,634

[[Page 25460]]

 
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.


[[Page 25461]]


                           Table IV-3--Profile of Industries Affected by the Final Standard on Confined Spaces in Construction
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                             Estimated       Estimated
                                                                           Total number    Total number        Total       annual number     number of
              NAICS                               Industry                  of firms in         of         employment in    of projects   establishments
                                                                             industry     establishments     industry      with confined     affected
                                                                                            in industry                       spaces         annually
--------------------------------------------------------------------------------------------------------------------------------------------------------
221310...........................  Water Supply and Irrigation Systems..           3,579           4,068          33,017              66              65
236115...........................  New Single-Family Housing                      61,262          61,613         282,851           1,340           1,321
                                    Construction (except Operative
                                    Builders).
236116...........................  New Multifamily Housing Construction            4,319           4,373          46,634           1,482             883
                                    (except Operative Builders).
236118...........................  Residential Remodelers...............          99,592          99,791         355,134          13,542           9,602
236210...........................  Industrial Building Construction.....           3,858           3,963          96,918             107             106
236220...........................  Commercial and Institutional Building          41,282          42,369         670,043           9,021           6,408
                                    Construction.
237110...........................  Water and Sewer Line and Related               13,679          13,872         206,899           3,980           2,765
                                    Structures Construction.
237130...........................  Power and Communication Line and                5,099           5,750         196,223             341             341
                                    Related Structures Construction.
237310...........................  Highway, Street, and Bridge                    10,953          11,746         323,289           8,843           4,275
                                    Construction.
237990...........................  Other Heavy and Civil Engineering               5,200           5,392          91,545           1,598             965
                                    Construction.
238190...........................  Other Foundation, Structure, and                5,701           5,720          45,035           2,680           1,182
                                    Building Exterior Contractors.
238210...........................  Electrical Contractors and Other               79,011          80,172         825,169           2,680           2,680
                                    Wiring Installation Contractors.
238220...........................  Plumbing, Heating, and Air-                    99,374         100,806       1,012,541           2,935           2,934
                                    Conditioning Contractors.
238310...........................  Drywall and Insulation Contractors...          21,785          22,458         320,238           2,680           2,284
238910...........................  Site Preparation Contractors.........          41,251          41,517         331,237             255             255
                                                                         -------------------------------------------------------------------------------
                                      Total.............................         495,945         503,610       4,836,773          51,551          36,066
--------------------------------------------------------------------------------------------------------------------------------------------------------


 
                                                                                              Average
                                                                            Revenues ($    revenues per     Profit rate      Estimated    Average profit
              NAICS                               Industry                   thousand)        firm ($        (percent)      profits ($      per firm ($
                                                                                             thousand)                       thousand)       thousand)
--------------------------------------------------------------------------------------------------------------------------------------------------------
221310...........................  Water Supply and Irrigation Systems..      $7,999,900          $2,235            5.89        $471,431            $132
236115...........................  New Single-Family Housing                 103,600,723           1,691            4.53       4,692,648              77
                                    Construction (except Operative
                                    Builders).
236116...........................  New Multifamily Housing Construction       24,939,736           5,774            4.53       1,129,658             262
                                    (except Operative Builders).
236118...........................  Residential Remodelers...............      75,344,805             757            4.53       3,412,781              34
236210...........................  Industrial Building Construction.....      26,486,027           6,865            4.53       1,199,698             311
236220...........................  Commercial and Institutional Building     392,958,284           9,519            4.53      17,799,246             431
                                    Construction.
237110...........................  Water and Sewer Line and Related           51,808,802           3,787            5.98       3,099,719             227
                                    Structures Construction.
237130...........................  Power and Communication Line and           35,528,777           6,968            5.98       2,125,685             417
                                    Related Structures Construction.
237310...........................  Highway, Street, and Bridge               112,052,152          10,230            5.98       6,704,076             612
                                    Construction.
237990...........................  Other Heavy and Civil Engineering          24,090,901           4,633            5.98       1,441,358             277
                                    Construction.
238190...........................  Other Foundation, Structure, and            7,085,701           1,243            4.58         324,258              57
                                    Building Exterior Contractors.
238210...........................  Electrical Contractors and Other          129,184,454           1,635            4.54       5,864,637              74
                                    Wiring Installation Contractors.
238220...........................  Plumbing, Heating, and Air-               167,754,151           1,688            3.86       6,470,472              65
                                    Conditioning Contractors.
238310...........................  Drywall and Insulation Projects......      42,281,365           1,941            4.58       1,934,891              89
238910...........................  Site Preparation Contractors.........      67,939,838           1,647            4.77       3,243,144              79
                                                                         -------------------------------------------------------------------------------
                                      Total.............................   1,269,055,615           2,559            4.72      59,913,701             121
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety.


[[Page 25462]]


          Table IV-4--Profile of SBA-Defined Small Entities Within Industries Affected by the Final Standard on Confined Spaces in Construction
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Total number                      Estimated       Estimated
                                                                           Total number         of             Total       annual number     number of
              NAICS                               Industry                  of firms in   establishments   employment in    of projects   establishments
                                                                           industry-size   in industry-    industry-size   with confined     affected
                                                                             grouping      size grouping     grouping         spaces         annually
--------------------------------------------------------------------------------------------------------------------------------------------------------
221310...........................  Water Supply and Irrigation Systems..           3,579           4,068          33,017              66              18
236115...........................  New Single-Family Housing                      61,065          61,125         241,095             953             953
                                    Construction (except Operative
                                    Builders).
236116...........................  New Multifamily Housing Construction            4,208           4,218          31,694             828             728
                                    (except Operative Builders).
236118...........................  Residential Remodelers...............          99,571          99,657         347,579          12,848           9,468
236210...........................  Industrial Building Construction.....           3,687           3,699          33,998              24              24
236220...........................  Commercial and Institutional Building          40,279          40,424         415,362           4,463           4,463
                                    Construction.
237110...........................  Water and Sewer Line and Related               13,348          13,379         140,854           2,272           2,272
                                    Structures Construction.
237130...........................  Power and Communication Line and                5,012           5,121          84,488             112             112
                                    Related Structures Construction.
237310...........................  Highway, Street, and Bridge                    10,205          10,255         134,875           2,784           2,784
                                    Construction.
237990...........................  Other Heavy and Civil Engineering               5,001           5,011          45,364             584             584
                                    Construction.
238190...........................  Other Foundation, Structure, and                5,638           5,650          35,003           1,763           1,112
                                    Building Exterior Contractors.
238210...........................  Electrical Contractors and Other               77,933          78,115         558,977           1,446           1,446
                                    Wiring Installation Contractors.
238220...........................  Plumbing, Heating, and Air-                    98,267          98,468         727,726           1,722           1,722
                                    Conditioning Contractors.
238310...........................  Drywall and Insulation Projects......          21,264          21,304         176,689           1,130           1,130
238910...........................  Site Preparation Contractors.........          40,840          40,900         257,517             169             169
                                                                         -------------------------------------------------------------------------------
                                      Total.............................         489,841         496,340       3,247,574          31,116          26,985
--------------------------------------------------------------------------------------------------------------------------------------------------------


 
                                                                                              Average
                                                                            Revenues ($    revenues per     Profit rate      Estimated    Average profit
              NAICS                               Industry                   Thousand)        firm ($           (%)         profits ($      per firm ($
                                                                                             Thousand)                       Thousand)       Thousand)
--------------------------------------------------------------------------------------------------------------------------------------------------------
221310...........................  Water Supply and Irrigation Systems..      $2,510,882            $713            5.89        $147,965            $ 42
236115...........................  New Single-Family Housing                  76,651,638           1,255            4.53       3,471,975              57
                                    Construction (except Operative
                                    Builders).
236116...........................  New Multifamily Housing Construction       15,147,671           3,600            4.53         686,122             163
                                    (except Operative Builders).
236118...........................  Residential Remodelers...............      73,283,645             736            4.53       3,319,420              33
236210...........................  Industrial Building Construction.....      10,421,351           2,827            4.53         472,040             128
236220...........................  Commercial and Institutional Building     199,388,653           4,950            4.53       9,031,411             224
                                    Construction.
237110...........................  Water and Sewer Line and Related           32,860,609           2,462            5.98       1,966,049             147
                                    Structures Construction.
237130...........................  Power and Communication Line and           15,098,169           3,012            5.98         903,323             180
                                    Related Structures Construction.
237310...........................  Highway, Street, and Bridge                43,921,533           4,304            5.98       2,627,824             258
                                    Construction.
237990...........................  Other Heavy and Civil Engineering          10,427,684           2,085            5.98         623,888             125
                                    Construction.
238190...........................  Other Foundation, Structure, and            5,277,635             936            4.58         241,517              43
                                    Building Exterior Contractors.
238210...........................  Electrical Contractors and Other           80,826,690           1,037            4.54       3,669,320              47
                                    Wiring Installation Contractors.
238220...........................  Plumbing, Heating, and Air-               111,089,247           1,130            3.86       4,284,841              44
                                    Conditioning Contractors.
238310...........................  Drywall and Insulation Contractors...      23,969,602           1,127            4.58       1,096,903              52
238910...........................  Site Preparation Contractors.........      49,943,011           1,223            4.77       2,384,056              58
                                                                         -------------------------------------------------------------------------------
                                      Total.............................     750,818,022           1,533            4.74      35,447,057              72
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety.


[[Page 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Total number                      Estimated       Estimated
                                                                           Total number         of             Total       annual number     number of
              NAICS                               Industry                  of firms in   establishments   employment in    of projects   establishments
                                                                           industry-size   in  industry-   industry-size   with confined     affected
                                                                             grouping      size grouping     grouping         spaces         annually
--------------------------------------------------------------------------------------------------------------------------------------------------------
221310...........................  Water Supply and Irrigation Systems..           3,413           3,428          12,676              11              11
236115...........................  New Single-Family Housing                      59,376          59,385         185,153             580             580
                                    Construction (except Operative
                                    Builders).
236116...........................  New Multifamily Housing Construction            3,760           3,761          15,035             271             271
                                    (except Operative Builders).
236118...........................  Residential Remodelers...............          97,291          97,294         258,012           7,105           7,105
236210...........................  Industrial Building Construction.....           3,225           3,227          16,136               8               8
236220...........................  Commercial and Institutional Building          33,977          33,992         174,975           1,329           1,329
                                    Construction.
237110...........................  Water and Sewer Line and Related               11,242          11,242          57,685             642             642
                                    Structures Construction.
237130...........................  Power and Communication Line and                3,973           3,976          21,403              17              17
                                    Related Structures Construction.
237310...........................  Highway, Street, and Bridge                     8,011           8,014          42,634             601             601
                                    Construction.
237990...........................  Other Heavy and Civil Engineering               4,321           4,323          18,871             166             166
                                    Construction.
238190...........................  Other Foundation, Structure, and                5,244           5,244          19,607             706             706
                                    Building Exterior Contractors.
238210...........................  Electrical Contractors and Other               71,144          71,156         297,375             544             544
                                    Wiring Installation Contractors.
238220...........................  Plumbing, Heating, and Air-                    89,245          89,255         388,409             655             655
                                    Conditioning Contractors.
238310...........................  Drywall and Insulation Projects......          18,832          18,837          77,284             336             336
238910...........................  Site Preparation Contractors.........          37,690          37,691         139,196              64              64
                                                                         -------------------------------------------------------------------------------
                                      Total.............................         450,744         450,825       1,724,451          13,035          13,032
--------------------------------------------------------------------------------------------------------------------------------------------------------


 
                                                                                              Average
                                                                            Revenues ($    revenues per     Profit rate      Estimated    Average profit
              NAICS                               Industry                   Thousand)        firm ($        (percent)      profits ($      per firm ($
                                                                                             Thousand)                       Thousand)       Thousand)
--------------------------------------------------------------------------------------------------------------------------------------------------------
221310...........................  Water Supply and Irrigation Systems..      $1,814,859            $532            5.89        $106,949             $31
236115...........................  New Single-Family Housing                  58,016,827             977            4.53       2,627,902              44
                                    Construction (except Operative
                                    Builders).
236116...........................  New Multifamily Housing Construction        6,202,571           1,650            4.53         280,949              75
                                    (except Operative Builders).
236118...........................  Residential Remodelers...............      53,069,089             545            4.53       2,403,792              25
236210...........................  Industrial Building Construction.....       4,744,855           1,471            4.53         214,921              67
236220...........................  Commercial and Institutional Building      77,231,171           2,273            4.53       3,498,225             103
                                    Construction.
237110...........................  Water and Sewer Line and Related           12,423,307           1,105            5.98         743,286              66
                                    Structures Construction.
237130...........................  Power and Communication Line and            3,755,169             945            5.98         224,672              57
                                    Related Structures Construction.
237310...........................  Highway, Street, and Bridge                14,530,558           1,814            5.98         869,363             109
                                    Construction.
237990...........................  Other Heavy and Civil Engineering           4,349,517           1,007            5.98         260,231              60
                                    Construction.
238190...........................  Other Foundation, Structure, and            2,892,942             552            4.58         132,388              25
                                    Building Exterior Contractors.
238210...........................  Electrical Contractors and Other           40,914,727             575            4.54       1,857,422              26
                                    Wiring Installation Contractors.
238220...........................  Plumbing, Heating, and Air-                55,526,805             622            3.86       2,141,733              24
                                    Conditioning Contractors.
238310...........................  Drywall and Insulation Projects......      11,280,100             599            4.58         516,203              27
238910...........................  Site Preparation Contractors.........      25,679,366             681            4.77       1,225,818              33
                                                                         -------------------------------------------------------------------------------
                                      Total.............................     372,431,864             826            4.72      17,582,974              39
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety.


[[Page 25464]]


         Table IV-6--Estimated Compliance Rates for Construction Projects Affected by OSHA's Final Standard for Confined Spaces in Construction
                                                                  [By project category]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Written
                                                    Entrant                   programs     Classify
                                                    training   Information  (and formal   spaces and    Lockout/    Mechanical   Attendants     Rescue
                Project category                      (a)        exchange      annual       issue        tagout    ventilation   (percent)    capability
                                                   (percent)    (percent)     review)      permits     (percent)    (percent)                 (percent)
                                                                             (percent)    (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Commercial and Public Buildings:
    Small Project...............................           65           75           50           83           83           86           83          N/A
    Medium Project..............................           83           75           70           93           86           90           86           79
    Large Project...............................           86           80           80           97           93           93           93           86
Warehouses:
    Small Project...............................           62           50           50           69           65           48          100          N/A
    Medium Project..............................           62           50           50           69           86           48          100          N/A
    Large Project...............................           62           50           50           69           86           48          100          N/A
Health Facilities and Laboratories:
    Small Project...............................           58           65           25           58           58           58          100          N/A
    Medium Project..............................           58           65           25           58           58           58          100          N/A
    Large Project...............................           58           65           25           58           58           58          100          N/A
Detention Facilities:
    New Construction............................          100           20            0           45          N/A           93           65           86
Athletic and Entertainment Facilities:
    All Projects................................           33           75           20           47           37           47          N/A          N/A
Airline Terminals:
    New Construction............................          100           20            0           45          N/A           93           65           86
Aircraft Service:
    All Projects................................           34           75           20           48          N/A           48          N/A          N/A
Auto, Bus, and Truck Service:
    Small Renovation............................           38           20           10           65          N/A           31          N/A           72
    Major Renovation............................           38           20           10           65          N/A           31          N/A           72
    New Construction............................          100           80           80           65          N/A          100          N/A          N/A
Residential Housing:
    Small Project...............................           38            0            0           31           45           83           93          N/A
    Medium Project..............................           45            5            0           45           58           83           93          N/A
    Large Project...............................           65           30           10           72           83           83           93          N/A
Apartments, Hotels, and Dormitories:
    All Projects................................           38           75           20           51           41           51          N/A          N/A
Streets and Highways:
    Repair Storm Drain/Sewer-Local Street.......           82           80           75           96           96           94           97           97
    Install New Storm Drain/Sewer System........           89           85           85           96           98           96           98           98
    Lane Expansion on Major Interstate..........           93           90           90           96           99           96           99           99
Bridges:
    Small Project...............................           82            0            5          100          N/A          100          100          100
    Medium Project..............................           82            0           80          100          N/A          100          100          100
    Large Project...............................           82            5            5          100          N/A          100          100          100
Dams and Reservoirs:
    Small Project...............................           52           50           60           72           68           52          100          100
    Medium Project..............................           72           50           70           84           76           60          100          N/A
    Large Project...............................           88           95          100          100          N/A          100          100          N/A
Storm Sewers and Flood Control:
    Small Project...............................           63           50           50          100          N/A           56          N/A          N/A
    Medium Project..............................           93           80           80          100          N/A          100          N/A          N/A
    Large Project...............................           93           80           80          100          N/A          100          N/A          N/A
Sewer, Water, and Waste Treatment Plants:
    Small Renovation............................           63           50           30           93          N/A           63          N/A           85
    Major Renovation............................           63           50           30           93          N/A           63          N/A           85
    New Construction............................           63           50           30           93          N/A           63          N/A           85
Tanks:
    Minor Installation/Renovation (Small                   60           45           40           85           64           71           67           71
     Contractor)................................
    Minor Installation/Renovation (Medium                  71           60           60           93           71           78           82           78
     Contractor)................................
    New Construction/Major Renovation (Large               85           80           80           96           82           85           89           85
     Contractor)................................
Hydroelectric Power Plants:
    Small Project...............................           64           90           95           96          100           71           86          N/A
    Medium Project..............................           82           95          100          100          N/A           78          100          N/A
    Large Project...............................           89           95          100          100          N/A           86          100          N/A
Other Power Plants:
    Medium Project..............................           70           95           80           85          N/A           78           78           74
    Large Project...............................           96           95           95          100          N/A           96          100           96
Electric Substations:
    Small Project...............................           96           95           95           96          N/A           96           96           96
    Medium Project..............................           96           95           95           96          N/A           96           96           96
    Large Project...............................           96           95           95           96          N/A           96           96           96
Natural Gas Plants:
    Small Upgrade...............................           55           40           40           93          100           78           55           55
    Major Renovation............................           70           60           50          100          100           93          N/A          N/A
    New Construction............................           93           90           90          100          N/A           93          100          100
Space Facilities:
    Small Project...............................           93           90           90          100          N/A           93          N/A          N/A

[[Page 25465]]

 
    Medium Project..............................           93           90           90          100          N/A           93          N/A          N/A
    Large Project...............................           93           90           90          100          N/A           93          N/A          N/A
Manufacturing Facilities:
    New Construction............................           43           50           50           86          N/A           65           43           43
--------------------------------------------------------------------------------------------------------------------------------------------------------
(a) Current compliance rates for attendant training are nearly identical to the rates for entry training, but may be somewhat lower for some project
  categories based on estimates provided by CONSAD's 1995 industry expert panel. See CONSAD report (2005) for details.
N/A = Not Applicable (treated as ``0%'' in calculations).
Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety.


Table IV-7--Loaded Hourly Labor Rates Applied in OSHA's Cost Analysis of
         the Final Standard for Confined Spaces in Construction
                             [2009 dollars]
------------------------------------------------------------------------
                     Labor category                          Wage rate
------------------------------------------------------------------------
Construction supervisor.................................          $42.16
Skilled worker..........................................           29.60
General construction employee...........................           24.93
Clerical employee.......................................           22.53
Unskilled worker........................................           22.67
------------------------------------------------------------------------
Source: Department of Labor, OSHA, Directorate of Standards and
  Guidance, Office of Regulatory Analysis-Safety, based on data from
  Bureau of Labor Statistics 2009 Occupational Employment Statistics
  (OES) Survey.

4. Benefits and Net Benefits
Introduction
    The final standard will improve the safety of workers who encounter 
confined spaces in construction. Confined spaces represent special 
safety problems because it can be difficult to exit them and it may be 
difficult to provide aid if an incident occurs in a confined space. 
There are also certain types of hazards, such as low oxygen levels, 
accumulations of dangerous gases, and engulfment by water that are 
particularly likely to be found in confined spaces. As a result, OSHA 
developed a programmatic approach to assure the safety of workers who 
must work in the vicinity of confined spaces. This programmatic 
approach includes provisions for identifying confined spaces and the 
hazards they may contain; removing the hazards if possible; restricting 
entry through a permit system where employers cannot remove the hazard; 
providing appropriate testing and equipment when employees must enter a 
space; providing for attendants; and arranging for rescue services when 
emergencies occur in a confined space.
    Independent researchers found that a similar system in general 
industry significantly reduced confined-spaces incidents (Seong and 
Mendeloff, Assessing the Accuracy of OSHA's Projections of the benefits 
of New Safety Standards, 2004). The Seong and Mendeloff paper estimates 
at least a fifty percent reduction in total deaths in two BLS fatality 
categories: ``inhalation in enclosed, restricted, or confined spaces,'' 
and ``depletion of oxygen in enclosed, restricted, or confined 
spaces,'' following the implementation of the general industry rule. 
These two categories would include a number of kinds of events not 
covered by the general industry confined space standard, such as 
inhalation of toxic substances in a room (for example, there are some 
fatalities every year from using paint or paint strippers in ordinary 
rooms not adequately ventilated for the purposes of heavy chemical use 
that nevertheless would not be confined spaces). These kinds of events 
would be included in the denominator of Seong and Mendeloff analysis 
but would not be affected by the general industry confined space rule. 
The Seong and Mendeloff analysis does not attempt to determine if the 
incidents included in its analysis occurred in a confined space, much 
less whether the confined spaces rule was being followed. OSHA believes 
that most of the remaining confined space incidents in general industry 
are the result of failure to follow that standard. Compliance with the 
provisions of this standard will reduce accidents, injuries, and 
fatalities in confined spaces in construction. In particular, the 
number of injuries and fatalities from causes such as asphyxiation, 
lethal gas, chemical burns, explosions, drowning, and failed rescue 
attempts will decline.
    For the Preliminary Economic Analysis (PEA), OSHA developed 
estimates of the benefits associated with the proposed standard by 
estimating the numbers of fatalities and injuries likely prevented by 
full compliance, and then applied monetary values to them. Table IV-8 
shows the Agency's estimate of the annualized monetary benefits 
associated with the final standard. The remainder of this section 
details OSHA's methodology for estimating those benefits.

          Table IV-8--Estimated Value of Annualized Benefits *
------------------------------------------------------------------------
             Benefits                Number         Monetized value
------------------------------------------------------------------------
Fatalities Avoided................       5.2  $45.2 million. \a\
Injuries Avoided..................       780  $48.4 million. \b\
                                   -------------------------------------
  Total...........................  ........  $93.6 million.
------------------------------------------------------------------------
* In 2009 dollars.
\a\ Based on an estimated value of $8.7 million per fatality avoided.
\b\ Based on an estimated value of $62,000 per injury avoided.

Estimation of Prevented Fatalities
    In the analysis CONSAD Research Corporation (CONSAD) submitted to 
OSHA and which OSHA reviewed and approved for use in the PEA, the 
CONSAD researchers used OSHA's Integrated Management Information System 
(IMIS) and the Bureau of Labor Statistics (BLS) Census of Fatal 
Occupational Injuries (CFOI) to develop the estimated safety benefits 
or the number of fatalities and injuries potentially avoided as a 
result of this standard. Using these sources, CONSAD gathered data on 
the number of fatal and non-fatal construction-related accidents 
involving the entry of a confined space by applying a search criterion 
relevant to both confined spaces and construction work. For data 
collected from the IMIS database, CONSAD searched for accident reports 
with construction industry SIC codes of 15, 16, and 17, and then 
manually reviewed those reports and the narratives of the accidents for 
factors indicative of an enclosed or confined space-related injury. 
Such factors included specific

[[Page 25466]]

types of environmental hazards, certain events and human errors, as 
well as the type and source of an injury (see Section 4.1.1 of the 
CONSAD Report for a detailed list of the factors; Docket ID: OSHA-2007-
0026-0003). Outside of the search criteria, CONSAD also reviewed 
incident reports where the Agency cited employers for violations of 
other OSHA standards involving constructions hazards similar to those 
hazards found in confined spaces; however, OSHA assured that the 
analysis excluded any cases involving a confined-space entry or cases 
largely involving work activity covered by OSHA standards--subpart P, 
subpart S, subpart V or any General Industry standard.
    For data collected from CFOI, BLS provided CONSAD with a research 
data file, procured under a confidentiality agreement, which contained 
detailed information about work-related fatalities such as employee 
occupation, industry, worker activity, the type and source of the 
injury, the event, the location of the accident, as well as a narrative 
description as to how the injury occurred. CONSAD used the BLS Confined 
Space Fatality Study--1992 (BLS, 1992b) as a reference guide for 
developing the screening criteria used to identify fatal confined-space 
accidents in the CFOI file since the BLS study also used CFOI data and 
defined a confined space similar to OSHA's General Industry confined-
spaces standard. Figure 4.1 of the CONSAD Report shows a detailed list 
of the factors used to screen the CFOI data file for confined-space 
accidents. Like the data used from the IMIS database, CONSAD manually 
reviewed each CFOI record and eliminated any accident that did not 
involve a confined space or that involved work activity covered by 
another OSHA standard.
    From the IMIS database, CONSAD reviewed fatality and injury cases 
that occurred during the period of April 1984 to October 2001, and 
identified a total of 102 accidents related to confined spaces in 
construction. These accidents resulted in 84 fatalities and 88 
injuries. The complete list of these accidents, along with their 
narratives, is available in Appendix C.1 of the CONSAD Report. Since 
the CFOI program did not begin collecting work-related fatality data 
from all 50 states and the District of Columbia until 1992, any data 
prior to 1992 was incomplete and, therefore, eliminated from further 
analysis. As a result, CONSAD only reviewed cases from the CFOI 
research data file that occurred during the period of 1992 to 2000, 
identifying a total of 21 accidents related to confined spaces in 
construction that resulted in a total of 24 fatalities. Due to the 
confidentiality agreement made between CONSAD and BLS, the details of 
these cases were not made available for public viewing. In an effort to 
be consistent with the data-collection process used with the CFOI data, 
CONSAD limited its analysis of the IMIS fatality and injury data to the 
period of 1992 to 2000. Using this constraint, the IMIS data yielded a 
total of 44 accidents related to confined spaces in construction that 
resulted in 34 fatalities and 39 injuries. Collectively from these two 
data sources, CONSAD was able to identify a total of 65 accidents 
related to confined spaces in construction during the period of 1992 to 
2000 in which 58 fatalities and 39 injuries occurred.\34\
---------------------------------------------------------------------------

    \34\ While there is overlap between fatalities and injuries 
reported in OSHA IMIS and BLS CFOI, using information such as date, 
time, place, and names of affected individuals and firms allowed the 
contractor to find the unique incidents reported in each database.
---------------------------------------------------------------------------

    For the PEA, OSHA used the 58 selected fatalities from the 9-year 
period of 1992 to 2000 as a baseline to develop an estimate of the 
number of fatalities and injuries that this standard would potentially 
prevent. At that time, OSHA estimated that there was an average of 6.44 
\35\ confined-spaces-in-construction fatalities per year. In Section 
4.3 of the CONSAD Report, CONSAD, with the assistance of its safety 
professional, did a further analysis of the fatality data used to 
estimate the safety benefits in the PEA and developed a methodology for 
determining the likelihood of preventing an accident with full 
compliance with the provisions of this standard. Using the expertise of 
CONSAD's safety engineer, CONSAD assigned each accident used in the 
analysis a ranking of 1 to 4, with 1 meaning that it was highly 
unlikely that the standard would prevent the victim's fatality or 
injury, and 4 meaning that is was highly likely that the standard would 
prevent the victim's fatality or injury. CONSAD then translated these 
rankings into probabilities that the standard would prevent each 
fatality or injury, using percentages of 5 percent for a ranking of 1, 
35 percent for a ranking of 2, 65 percent for a ranking of 3, and 95 
percent for a ranking of 4.\36\ CONSAD subsequently aggregated the data 
and drew the conclusion that full compliance with the standard would 
prevent, on average, 91 percent of the fatalities and injuries.\37\ 
OSHA reviewed and approved the CONSAD analysis and applied this 
probability prevention rate to the fatality estimate of 6.44 fatalities 
per year, and estimated in the PEA that full compliance with the 
provisions of this standard would prevent an estimated 5.9 (rounded to 
6) confined-spaces-in-construction fatalities per year.
---------------------------------------------------------------------------

    \35\ A commenter stated that ``it is unknown and not reported 
how OSHA has determined these figures. Practically, it is unknown 
how there could be a .44 fatality'' (ID-0100). OSHA notes that the 
estimated number of preventable fatalities can take on decimal 
values since it is an average value.
    \36\ CONSAD estimated a maximum effectiveness in preventing 
fatalities of 95 percent because the researchers believed that even 
a reasonable effort at compliance would not result in perfect 
compliance. OSHA believes that this percentage is very conservative 
as the standard has multiple layers of protection that assure that 
even fail to comply with some requirements, there are further 
protections to preventing fatalities and for reducing fatalities to 
injuries. The standard is unlikely to prevent any fatalities only 
when the employer completely fails to identify a space as a confined 
space and, thus, fails to take any of the appropriate measures. 
However, if there is a complete failure to identify a confined 
space, the employer will incur no costs.
    \37\ Thus, the vast majority of the accidents had a rating of 4 
and a 95 percent probability of prevention.
---------------------------------------------------------------------------

    One commenter, Associated General Contractors of America (AGCA), 
commissioned a report by Dr. N. Mike Helvacian (ID-222) that made 
several criticisms of the methodology for estimating prevented 
fatalities and injuries in the PEA. The report characterized the 
approach to assigning prevention probabilities to accidents as ``a 
subjective assessment that cannot be reproduced by other safety 
professionals'' (p. 57). Another commenter stated that there was no 
basis for the estimate that full compliance with the final standard 
would eliminate 90 percent of fatalities and injuries (ID-100).
    In light of such comments, as well as other comments received on 
the proposed rule and the PEA, OSHA reevaluated the original fatalities 
used to develop the benefits estimates and revised its values 
accordingly, as shown in Table IV-8. Based on the IMIS data, the CONSAD 
analysis showed 44 accidents during the period of 1992 to 2000 (listed 
in Appendix C.1 of the CONSAD Report, beginning at CONSAD Accident 
Number 57 and ending with CONSAD Accident Number 100), of which 34 
fatalities and 39 injuries were reported.\38\ Of those 44 accidents, 27 
of them included fatalities listed, along with their narratives, in 
Table IV-9 below.\39\
---------------------------------------------------------------------------

    \38\ Note that an accident could involve several workers, with 
some injured and some killed.
    \39\ Table IV-9 only provides the narratives of the fatalities 
(with injuries omitted) shown in Appendix C.1 of the CONSAD Report; 
the CONSAD accident number listed for each accident in the table 
refers to the location of the narrative for that accident in the 
report.
---------------------------------------------------------------------------

    Due to a confidentiality agreement made with the Bureau of Labor 
Statistics, OSHA did not include details

[[Page 25467]]

of the accidents gathered from the CFOI database in the PEA or this 
FEA. However, the CONSAD report provides a detailed description of the 
methodology used to collect construction-related accidents involving 
confined-space entries from the CFOI database; OSHA made this 
description available for public viewing and commenting in the docket 
under Docket ID: OSHA-2007-0026-003.
    OSHA still believes that CONSAD's analysis of the number of 
accidents that would be prevented by the standard given full compliance 
is reasonable. First, no existing standard provides a comprehensive 
approach to confined spaces in construction. There is an existing 
construction standard requiring employers to train employees in 
confined-space hazards. However, this existing standard does not 
specify what constitutes a confined space, nor does it specify the 
contents of the training that would serve to prevent fatalities or 
injuries due to confined-space hazards. There are also rules governing 
specific hazards, such as immediately dangerous to life and health 
(IDLH) atmospheres and hazardous gases, but OSHA did not adapt these 
rules to the specific circumstances of confined spaces; therefore, 
these rules are unlikely to provide adequate protection to workers when 
they encounter the hazards within a confined space. As demonstrated by 
the number of fatalities and injuries between 1992 and 2000, and 
confirmed by the supplemental data indicating that the fatalities and 
injuries continued to mount in more recent years, the existing rules 
have not been effective in preventing confined-space fatalities in 
construction. OSHA shares the belief of the ACCSH, as well as the other 
industry representatives who recommended that OSHA conduct this 
rulemaking, that a rule specific to confined spaces in construction 
could prevent these fatalities in a way that existing rules do not.
    Table IV-9 shows fatalities occurring as a result largely of 
atmospheric hazards--either insufficient oxygen or the presence of 
lethal gases, particularly carbon monoxide or hydrogen sulfide--all of 
which this standard would prevent. This standard also could prevent 
fatalities that resulted from construction-related explosions or fires. 
In addition, a number of the fatalities were the result of would-be 
rescuers entering a confined space to assist another employee and 
succumbing to the same hazard, a result this standard would prevent.
    Perfect compliance with the final standard would prevent all of 
these fatalities in several ways. First, identification of confined 
spaces would trigger the need for analysis and testing for possible 
hazards, as well as restrictions to prevent unauthorized entry. To the 
extent employers find hazards but cannot remove them, a system of 
controls would go into place. This system would prevent casual entry 
into confined spaces, such as occurred in CONSAD accident number 76 and 
entry by an employee working alone as occurred in the accidents with 
CONSAD accident numbers 72 and 84.\40\ When entry was necessary, there 
would need to be appropriate and continuous testing, and employers 
would have to install ventilation to remove the atmospheric, or 
explosion and fire, hazards, or provide appropriate PPE. Better data 
sharing also may prevent some accidents, such as accident number 92. 
These factors would prevent most fatalities resulting from to 
atmospheric or explosion hazards.
---------------------------------------------------------------------------

    \40\ Hereafter, this discussion will refer to all incidents by 
their CONSAD accident numbers.
---------------------------------------------------------------------------

    To the extent these measures failed, the final standard also 
includes provisions for rescue, and prohibitions against unauthorized 
rescue entries. Rescue provisions may not prevent all fatalities that 
result from hazards such as explosions, but they can be crucial when 
atmospheric hazards are present. Adequate rescue might prevent 
fatalities that do not result in instant death. For example, quick 
withdrawal of workers from an explosive atmosphere or workers suffering 
from asphyxiation (followed by adequate first-aid measures) could 
prevent many fatalities. The rescue provisions would also prevent 
fatalities due to entry of inadequately equipped rescuers, either by 
removing the need for entry (providing non-entry rescue capability) or 
by assuring that the rescuers have adequate equipment for entry. Such 
rescue-related fatalities occurred in accidents 72, 84, and 97, and 
nearly occurred in several other accidents such as accident number 92.
    In addition to atmospheric hazards, Table IV-9 shows a few other 
types of hazards. These include drowning and physical hazards such as 
dislodged plugs. The provisions for upstream-warning systems might 
prevent some of these drownings. Several of the accidents involved 
physical hazards posed by pipe plugs (or exposure to the physical 
hazards only temporarily restrained by the pipe plug); the requirements 
in the final standard to remove or isolate physical hazards through 
physical barriers or other means, rather than temporarily controlling 
the physical hazards, would eliminate employee exposure to such hazards 
during a confined-space entry and prevent some of these drownings. For 
example, having water bypass an area, rather than relying on a plug to 
hold the water, would prevent some of these accidents. The ability to 
quickly remove an injured employee with a retrieval line would also 
prevent a fatal accident in some cases. In many cases, better hazard 
awareness, compliance with permit-program requirements that prohibit 
entry when hazards are present, and the use of retrieval lines and 
other rescue procedures would make a difference.
    Based on this review, OSHA believes that CONSAD's estimate that the 
standard would prevent 91 percent of the confined-space fatalities in 
their database seems reasonable. In almost all cases, multiple 
provisions would, if fully followed, completely prevent the fatalities. 
However, this estimate is in some senses a maximum estimate of the 
effectiveness of the standard. The estimate assumes full compliance, 
and OSHA's experience in general industry shows that perfect compliance 
with a similar standard was not achieved.\41\ It is also possible, 
though none of the accidents examined illustrate this phenomenon, that 
an employer might have confined space incident even when in compliance 
with the standard due to an unanticipated equipment failure (such as an 
air hose developing leaks) or gross human error (such as an attendant 
falling asleep). However, not a single incident OSHA has examined 
occurred in a situation in which an employer was in compliance with the 
provisions of the standard.
---------------------------------------------------------------------------

    \41\ Seong and Mendeloff (2004) have found that past OSHA safety 
regulations' effectiveness at reducing occupational hazard-related 
mortality has been substantially lower than estimated by OSHA. It 
should be noted that (1) OSHA is forecasting effectiveness with full 
compliance and Seong and Mendeloff measured effectiveness given 
actual compliance, and (2) OSHA uses a fundamentally different 
approach to estimating benefits to this (and most other) safety 
standards than was used in the analyses the Seong and Mendeloff 
study reviewed. Nevertheless, this study potentially provides 
empirical support for the characterization of 91 percent as an upper 
bound in terms of the benefits that will actually be realized.
---------------------------------------------------------------------------

    In this Final Economic Analysis (FEA), OSHA revised its estimates 
with the same methodology used in the PEA, but also added supplementary 
data (i.e., Table IV-10, described later in this section) whereby the 
Agency used new data to address a commenter's point and to confirm the 
continuing validity of the original data.
    Several commenters questioned generally whether OSHA properly 
included the accidents used to estimate benefits in the PEA, but did 
not point

[[Page 25468]]

to any specific accidents that they would remove from the list of IMIS 
fatalities provided in the public record for this rulemaking. One of 
these commenters, the Associated General Contractors of Texas--Highway, 
Heavy, Utilities and Industrial Branch (AGCT), stated that OSHA did not 
specify the industry sectors in which the fatalities and injuries 
occurred (ID-0124).
    AGCT also asserted that ``most potential exposures to confined 
space hazards in the construction industry occur in connection with 
excavation operations,'' and that other standards adequately address 
these hazards (ID-124). Another commenter stated that the PEA included 
accidents in trenches, while the proposed standard excluded trenching 
work (ID-035). In response, OSHA notes that the proposed standard did 
not apply to non-sewer construction work regulated by 29 CFR part 1926, 
subpart P--Excavations. However, the proposed standard applied to sewer 
work that fell under subpart P and, therefore, the inclusion of some 
accidents in trenches was consistent with the scope of the proposed 
rule. Final Sec.  1926.1201(b) eliminates the distinction between non-
sewer construction work and other construction work; the final standard 
clearly states that it does not apply to work regulated by 29 CFR part 
1926, subpart P. As a result, the FEA does not include the costs and 
benefits associated with accidents occurring in trench-related 
activities unless they also involve confined spaces other than the 
trench (e.g., a pipe placed inside the trench).
    In addition, AGCT asserted, without support, ``Most sewer related 
fatalities involve municipal workers who are not covered by OSHA 
standards'' and expressed concern that it would be unfair and improper 
for OSHA to include benefits to municipal workers not covered by OSHA 
standards (ID-124). AGCT did not, however, point to any examples in the 
IMIS fatality data on the record that involved municipal workers. OSHA 
reexamined the 1992-2000 IMIS data and did not find any indication that 
these examples involved fatalities of municipal workers. Moreover, 
while AGCT's assertion may hold true with respect to the normal 
maintenance activities in sewers typically performed by municipal 
workers, AGCT did not distinguish in its comments between municipal-
worker fatalities resulting from sewer work performed as part of 
construction and normal maintenance activities. To the contrary, it is 
OSHA's understanding that private contractors perform most sewer-
construction activities.
    Another commenter, Edison Electric Institute, stated that the 
analysis did not explain the basis for determining how the included 
accidents involved construction work, and that the analysis should 
exclude ``public sector'' work (ID-210, Tr. pp. 98-100). OSHA limited 
the accidents that served as the basis of the benefits analysis in the 
PEA to construction work based on the industry code of the employer of 
the worker involved in the accident. The final standard covers 
employers subject to OSHA enforcement authority and engaged in 
construction activity not covered by 29 CFR part 1926, subparts Y--
Commercial Driving Operations, P--Excavations, or S--Underground 
Construction, Caissons, Cofferdams, and Compressed Air, so the final 
standard covers ``public sector'' work only to the extent that such 
work is within OSHA's enforcement authority. To the extent that 
``public sector'' work means work conducted by municipal employees, 
OSHA refers to its response in the previous paragraph.
    In response to these criticisms, OSHA reviewed the fatalities in 
the CONSAD IMIS database with respect to the issue of whether a 
construction standard would cover those accidents. First, the standard 
would cover municipal workers in state-plan states. However, there is 
not a single instance in Table IV-9 that identifies a municipal worker 
as a fatality. As CONSAD reported, all fatalities were for firms in a 
construction SIC code, and not for firms in a local government SIC 
code. Some commenters may believe, incorrectly, that contracted 
construction work funded by a municipality in a non-state plan state is 
not subject to OSHA standards; if the work involves an employee of a 
private-sector employer, that employer is subject to OSHA standards 
regardless of whether or not a local government funds the work.
    OSHA then examined whether the general industry standard or any 
other OSHA standards covered the fatalities. It is difficult to 
determine coverage from the IMIS descriptions alone, so OSHA examined 
what standards it cited at the time of the fatality investigation. Even 
this approach may be unreliable because there may be a citation for a 
violation associated with a fatality inspection that did not involve a 
violation that directly contributed to the fatality. OSHA found that 
only two fatality accidents (89 and 99) had any citations under general 
industry standards. Absent a clear indication of a causal link between 
the general industry work cited and the fatality, OSHA is reluctant to 
remove these accidents. Moreover, even if these fatalities were the 
result of general industry activity, OSHA believes that it should 
include these two fatalities as prevented by the construction standard 
because it is possible that the employer believed the activities 
constituted construction work and, therefore, not covered by the 
general industry standard. With the promulgation of this final rule, it 
will now be clear that all confined spaces are subject to an OSHA 
standard, and that similar precautions apply to these spaces.
    With respect to excavations, OSHA found only three accidents in 
which it cited the excavation standard (66, 80, and 86). However, OSHA 
believes that in all three cases, the fatality occurred in a confined 
space. The accident investigator identified the worksite in Accident 66 
as a confined space. Accident 80 describes an entry into a manhole, 
which normally means a confined space. Accident 86 describes the 
activities as ``finish up work,'' implying the excavation phase of the 
project was complete when the accident occurred.
    Several of the accidents involved underground activities, so OSHA 
examined the accidents for citations to subpart S, OSHA's underground 
construction standards. OSHA did not find any such citations and, 
therefore, did not exclude any accidents on that basis.
    As a result of the decision, discussed in the cost analysis in this 
FEA, to exclude costs in state-plan states that adopted some provisions 
of a confined-spaces standard for construction, OSHA examined whether 
any of the fatalities involved citations to a state confined-spaces-in-
construction standard. OSHA found two such cases--Accidents 67 and 82. 
Accident 67 occurred in Alaska, which has a comprehensive confined-
space-in-construction standard that included almost all of the 
provisions in this final confined-space standard. OSHA decided not to 
include this fatality in the list of fatalities that this standard 
would prevent given full compliance with the rule. Accident 82, 
however, occurred in a state that required only mechanical ventilation 
of confined spaces, and no other provisions of this OSHA standard. OSHA 
believes that a full confined-space program compliant with this 
standard would prevent this accident, while a simple ventilation 
requirement would not.

[[Page 25469]]



                            Table IV-9--Confined Spaces in the Construction Industry
                                     Fatal Accidents and Injuries--1992-2000
                                        [As listed in the Consad report]
----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
      Consad accident No.           Year      Industry SIC     Type of confined      reported       Inspection/
                                                  code              space           fatalities     activity No.
----------------------------------------------------------------------------------------------------------------
57............................         1992            1623  sewer/pipe/manhole.               1       109472456
----------------------------------------------------------------------------------------------------------------
Description of Accident:
At approximately 11:30 a.m. on April 16, 1992, Employee #1 entered a 15 ft. 9 in. deep manhole that was part of
 a new sewer line installation project in order to plug two sewer lines with wing nut plugs. Employee #2 and a
 third employee were at the top of the manhole watching as Employee #1 entered the hole and inserted one plug
 near the top, then proceeded down the ladder to the bottom to install the second plug, which took approximately
 4 minutes to install. Employee #1 then stated he was hot, started up the ladder, and fell unconscious to the
 floor. Employee #2 entered the manhole and attempted to sit Employee #1 upright. Employee #2 then began feeling
 faint and started up the ladder to exit. A little more than halfway up he passed out and was left hanging from
 the ladder. The third employee then ran for help. A superintendent tied a rope around himself, held his breath,
 and rescued Employee #2, who was transported to the hospital, where, after undergoing a blood gas test, he was
 treated for carbon monoxide exposure. Employee # 1 died from acute carbon monoxide poisoning before he was
 retrieved from the manhole. The company had no confined space entry procedure in place for this particular job
 site because they did not consider new manholes to reasonably pose a risk to workers. No measuring equipment
 was used to detect toxic or combustible gases and oxygen levels. No mechanical ventilation was used. No rescue
 equipment was available.
----------------------------------------------------------------------------------------------------------------
61............................         1992            1799  Other..............               1       115562290
----------------------------------------------------------------------------------------------------------------
Description of Accident:
At approximately 7:45 a.m. on October 27, 1992, Employee #1 was preparing to fiberglass the interior surface of
 a swimming pool that measured 30 ft long and 16 ft wide with a depth of 4 ft at the shallow end and 9 ft at the
 deep end. Overnight, a water faucet adjacent to the pool had leaked water into the pool. Employee #1 was
 removing the standing water in the bowl of the deep end. Initially, he used a sponge and bucket to remove the
 water. Later, he used about 2 gal of acetone to help accelerate evaporation of the remaining water. He then
 used a non-explosion-proof shop vacuum to vacuum the remaining water-acetone mixture. Switching on the vacuum
 created a spark that ignited the acetone vapor in the bowl of the pool. The resulting explosion and fire caused
 second- and third-degree burns on 70 percent of his body. Employee #1 was hospitalized until November 12, 1992,
 when he died of complications.
----------------------------------------------------------------------------------------------------------------
64............................         1993            1623  sewer/pipe/manhole.               1       114834930
----------------------------------------------------------------------------------------------------------------
Description of Accident:
On September 17, 1993, Employee #1, of Dan's Excavating Inc., a laborer on a sewer construction crew, entered a
 26 ft deep manhole to check the line sight glass for water levels. After he had climbed to the bottom of the
 manhole, Employee #1 made a noise as if he were clearing his throat and then started climbing back out. When
 Employee #1 was 6 to 8 ft from the top he looked up, let go of the ladder, and fell backward to the bottom of
 the manhole. Employee #1 died of asphyxia. The atmosphere had not been tested before he entered the manhole.
 When it was later tested at the manhole level from which Employee #1 fell, an oxygen deficiency was found.
 Citations were issued for serious violations of R408.40121(1), R408.40121(2), and R408.41115(8).
----------------------------------------------------------------------------------------------------------------
65............................         1994            1771  sewer/pipe/manhole.               1       124771049
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 was applying grout in a manhole. There had been a 20 to 36 in. rubber plug installed into a 36 in.
 sewer line that entered the manhole in which Employee #1 was working. For some unexplained reason, the rubber
 plug exploded, hitting Employee #1 and forcing him down the downflow side of the sewer line. Employee #1 died
 at the scene of severe head injuries.
----------------------------------------------------------------------------------------------------------------
66............................         1994            1629  Undetermined.......               1       107232167
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 entered a confined space with a lighted torch. The atmosphere was not tested and contained an
 explosive concentration of propane gas. The propane gas exploded, sending the employee approximately 20 feet in
 the air, and igniting his clothing. Employee #1 sustained 2nd- and 3rd-degree burns over 70 percent of his
 body. He died of respiratory arrest two days later. A propane torch had been left on in the space overnight and
 the flame had gone out, allowing propane to accumulate. Citations were issued.
----------------------------------------------------------------------------------------------------------------
67............................         1994            1623  Undetermined.......               1       124078163
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 died of asphyxia when he was directed to enter a confined space without full compliance with
 confined space standards and associated procedures.
----------------------------------------------------------------------------------------------------------------
68............................         1994            1623  sewer/pipe/manhole.               1       109054866
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employees #1, #2, and #3 were in a dry well modifying sewer mains. Fluids left in the pipe for three months
 flowed into the work area. The fermenting fluids released hydrogen sulfide gas. Employees #1 and #2 were
 hospitalized. Employee #1 died of asphyxiation. Employee #2 is in a long term health care facility in
 Westchester, NY. Employee #3 was treated and released.
 
 
 
 
 
 
[[Page 25470]]

 
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.
 
 
 
 
 
----------------------------------------------------------------------------------------------------------------

[[Page 25471]]

 
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.
----------------------------------------------------------------------------------------------------------------
 
 
 
 
 
 
[[Page 25472]]

 
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

[[Page 25473]]

 
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

[[Page 25474]]

standard assigns to the host employer to the controlling employer. This 
difference is important in the many situations, of which there are 
several reported in the database, involving host employers who need 
construction work but may not directly run the confined-space program.
    This final rule for construction also requires continuous 
monitoring for atmospheric hazards during permit entries and during 
entries under the alternative procedures specified in Sec.  
1926.1203(e). With the improved technology available today, continuous 
monitoring involves few costs beyond the cost of the regular monitoring 
required by the general industry standard. Further, such monitoring is 
necessary in confined spaces where conditions change as the work 
progresses, either through the introduction of an unexpected substance 
into the permit space, as in accidents number 68 and 78, or the 
substances used as part of the work result in new hazards as in 
accidents number 89 and 90.
    To further evaluate and confirm its finding that this final 
standard would reduce the number of fatalities and injuries when 
entering construction-related confined spaces, OSHA added a 
supplemental table (Table IV-10 shown below) using more recent accident 
data, and modified its methodology for selecting relevant confined-
space fatalities. The Agency did not rely on this data in reaching any 
of the findings legally required to support this rulemaking, but the 
Agency concludes that this supplemental analysis confirms the overall 
validity of the data on which it based those findings.
    The Agency examined selected narratives of fatal accidents that 
occurred in the years 2006 through 2009 and recorded in OSHA's IMIS 
database. To identify fatal accidents in confined spaces, OSHA 
conducted a terminology search of fatal accident narratives using a 
list of several terms appearing in confined-spaces-in-construction 
work.\42\ To limit the analysis to accidents related to construction 
activities, OSHA identified construction-related accidents by those 
employers classified under the two-digit Standard Industrial 
Classification codes of 15, 16, and 17. As with the older data, OSHA 
also screened the accidents for citations to subparts P (Excavations) 
and S (Underground Construction). OSHA reviewed the cases and selected 
only those cases covered by this final standard and that the final 
standard would, with reasonable certainty, prevent if employer complied 
fully with its provisions. In sum, OSHA identified 23 records involving 
31 fatalities from 2006 through 2009 that met all of the above criteria 
(construction-related activities; in SIC 15, 16, or 17; involved a 
confined space covered by this final standard; and were preventable by 
compliance with the provisions of the final standard). Table IV-10 
presents these cases, along with a brief narrative for each case taken 
verbatim from the IMIS records.
---------------------------------------------------------------------------

    \42\ The list of search terms included the following: Confined 
space, hole, pit, bin, boiler, manhole, tank, incinerator, scrubber, 
pier, sewer, transformer, vault, duct, storm drain, water main, 
drilled shaft, enclosed, enclosed beam, crawlspace, trench, tunnel, 
vessel, digester, lift station, cesspool, silo, air receiver, sludge 
gate, air preheater, step up transformer, turbine, chiller, bag 
house, mixer, reactor, and cofferdam.
---------------------------------------------------------------------------

    As the narratives demonstrate, these accidents usually resulted 
from a failure to follow multiple provisions in the final standard. For 
example, in several of the accidents listed in Table IV-10, workers 
died or received injuries after entering confined spaces to attempt 
rescue. These accidents were preventable had employers followed 
appropriate rescue procedures, provided proper training, posted an 
attendant to prevent unauthorized entry, or through a combination of 
these steps, all prescribed by this final standard. In most other 
examples, the prohibition on entry without a permit program in place 
would prevent employee exposure to the hazard.
    For the purposes of determining how the different provisions of the 
standard prevent the accidents identified in the supplemental analysis, 
OSHA grouped the provisions by general purpose. For example, OSHA 
grouped all provisions related to evaluation and classification of 
standards into one heading called ``Classification and Evaluation,'' 
and grouped all of the provisions related to setting up and 
implementing a permit system under the heading of ``Permit System''. 
OSHA used these headings to avoid a confusing list of overlapping and 
interdependent provisions, and to compare benefits to costs later in 
this section.
    The Agency sometimes attributed an accident to a set of provisions 
even though it was unclear from the accident abstract whether the 
employer followed that provision on a voluntary basis. Therefore, 
although OSHA accounts for baseline compliance in terms of costs, it 
does not account for baseline compliance in terms of potential 
monetized benefits. OSHA believes from the descriptions of the 
fatalities and injuries presented in Table IV-10 that baseline 
compliance with most provisions, though high when examining compliance 
across all affected industries, was minimal in the situations in which 
these accidents occurred. It is unlikely that the accidents detailed in 
this chapter would occur had the affected firms had a proper confined-
spaces program in place. Following some groups of provisions, such as 
ventilation and hazard isolation, would have assured that the accidents 
could not have possibly happened.
    OSHA also used the term ``potentially'' in this analysis to 
describe the prevention of some accidents because, as noted above, some 
accident descriptions are unclear. The Agency also used the term 
because some provisions, such as the training and information-exchange 
provisions, do not directly and automatically prevent accidents, but 
instead contribute to the likelihood that employers will correctly 
follow other provisions and, therefore, prevent accidents. In the final 
section of this chapter, OSHA presents a break-even sensitivity 
analysis to examine further the number of injuries and fatalities that 
would need to be prevented for the benefits of this standard to equal 
its costs.
    In some cases, a state had a confined-spaces rule in place at the 
time the accident occurred. In one accident, the state rule was a 
comprehensive rule similar to this final rule. OSHA removed this 
accident from the database. In other cases, the state rule included 
only some of the provisions in OSHA's final standard. In these cases, 
OSHA did not list provisions in the OSHA standard that are also 
mirrored in the state rule, but listed the OSHA provisions not mirrored 
in the state rule.
    In the remainder of this section, OSHA describes the groups of 
provisions that it used in analyzing accidents, and the criteria for 
determining whether the provision could potentially prevent the 
accident. Some accidents involved more than one fatality, and, in these 
cases, different sets of provisions might be relevant to different 
fatalities.
    Evaluation, Classification, and Notification Provisions: This group 
includes all provisions related to requirements to identify and 
classify confined spaces, such as Sec. Sec.  1926.1203(a) and 
1926.1203(b). The evaluation and classification provisions can trigger 
other employer duties, such as an employer duty to prevent entry under 
Sec.  1926.1203(c), or to condition entry in accordance with Sec.  
1926.1203(d). For the purposes of this analysis, this group includes 
the provisions of Sec.  1926.1203(c) that require employers to use 
barriers or other means

[[Page 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 Sec.  
1926.1203(h). The accident descriptions are unclear regarding 
information-exchange activities. OSHA classified an accident as 
potentially prevented by these provisions if the description indicated 
the presence of more than one contractor or if the accident took place 
in an existing structure (mainly sewers) where information about the 
existing structure would almost certainly be known beforehand. OSHA did 
not consider the accident potentially prevented by this provision if it 
took place in a home or in new construction projects, unless there was 
an indication of multiple contractors present. In those cases, there is 
not typically a host employer with relevant knowledge about hidden 
hazards available, but there may be multiple employers present. Because 
the accident descriptions do not typically indicate whether there were 
multiple employers on a site, this approach may underestimate the 
number of multi-contractor sites.
    Permit-Program Provisions: This group includes the provisions 
requiring a permit program or alternative procedures for entry, as well 
as the requirements for setting up and implementing systems, such as 
Sec. Sec.  1926.1203(d), 1926.1203(e), and 1926.1204(a). OSHA 
determined that these provisions could have a role in potentially 
preventing accidents in all situations except where the entry took 
place by explicit orders of a supervisor or where the entry was for 
rescue purposes. (These two exceptions might be violations of these 
requirements, but it is unlikely that a permit system could prevent 
casualties related to rescue entry (though they might prevent the need 
for such entry) or entries explicitly approved by supervisors.) OSHA 
also noted situations in which an entry seemed to be unnecessary (such 
as entries to retrieve dropped items) and, therefore, was extremely 
unlikely to take place under a permit system with clear prohibitions on 
unauthorized entry. OSHA determined that all such accidents involving 
unnecessary entries would be preventable had employers complied with 
these provisions.
    Early-Warning-System and Atmospheric-Testing or -Monitoring 
Provisions: This group includes all provisions that require or imply 
the need for atmospheric testing or monitoring, including Sec.  
1926.1203(a) (when monitoring is necessary for identification), 
Sec. Sec.  1926.1204(b), 1926.1204(c), and 1926.1204(e). OSHA 
determined that these provisions could have a role in preventing 
accidents in all situations involving asphyxiation (whether due to lack 
of oxygen or toxic gasses) or a build-up of explosive vapors. This 
group also includes the requirement in Sec.  1926.1204(e)(1)(iii) to 
monitor for non-isolated engulfment hazards, such as liquids flowing 
through a sewer system. OSHA determined that this provision could 
prevent accidents in which employees drown or asphyxiate when liquids 
or other flowables that were not previously in the confined space 
entered the space in the absence of barriers or other isolation methods 
designed to contain such hazards.
    Ventilation and Hazard-Isolation Provisions: This group includes 
all provisions that require or imply the need for ventilation, as well 
as isolation of physical hazards, such as parts of Sec.  1926.1203(e) 
and portions of Sec.  1926.1204. OSHA included an accident as 
potentially preventable by these provisions whenever the accident 
occurred as a result of a hazard inside the confined space. For most of 
these accidents, either ventilation or hazard-isolation measures, such 
as disabling and locking out electrical hazards temporarily, could 
prevent the accident. For other accidents, such as some drownings, 
arranging for the bypass of water or other liquid solutions might have 
been possible, thereby preventing the accident.
    Provisions Requiring an Attendant: This group includes all 
provisions that require or imply the need for an attendant when someone 
is inside the confined space. The attendant in most cases has two 
duties: (1) Assuring that continuous monitoring takes place (if it is 
appropriate) and warning the person to exit the space if necessary; and 
(2) conducting an appropriate non-entry rescue. For the purposes of 
this analysis, OSHA listed an accident as potentially preventable had 
an attendant been present if there was no notation of another person 
present when someone entered the confined space. There are many other 
situations in which the lack of an attendant may have been responsible 
for the accident because the person present was not continually 
assessing the conditions inside the permit space or was incapable of 
conducting a non-entry rescue or summoning rescue or emergency 
services; however, other provisions are more likely to potentially 
prevent such accidents.
    Rescue-Capability Provisions: This group includes all provisions, 
such as Sec. Sec.  1926.1204(i) and 1926.1211, that require the 
development and implementation of a plan addressing rescue capability 
and summoning emergency services, with the plan involving non-entry 
rescue when feasible. For the purposes of this analysis, OSHA listed an 
accident as potentially preventable by improved rescue capability for 
(1) all cases of asphyxiation when quick removal of endangered workers 
from the confined space and prompt treatment were necessary to prevent 
the fatality, and (2) for other accidents, such as drowning and 
electroshock, when timely removal and treatment might have an effect. 
OSHA did not consider this provision to have the potential to prevent 
deaths resulting from burns, even though it is possible that more 
immediate treatment or rescue before combustion occurred would mediate 
or prevent the accident. OSHA also noted under this provision the 
special, and all too numerous, cases when the rescuer(s) became a 
fatality.
    Training Provisions: This group includes all provisions that 
require employers to develop and implement training, such as Sec. Sec.  
1926.1207 and 1926.1208. OSHA found that better training could 
potentially prevent all of the accidents, except for one accident that 
was preventable using only appropriate physical barriers.
    Equipment Provisions: This group includes all provisions that 
require the employer to (1) provide necessary equipment, such as 
communication equipment, necessary for attendants to perform their 
duties (Sec.  1926.1203(d)(3)), or (2) develop appropriate lighting 
(Sec.  1926.1204(d)(5)). For the purposes of this analysis, OSHA listed 
an accident as potentially preventable by these provisions when 
employees working together had difficulties communicating or there was 
an indication of inadequate lighting or general difficulty locating 
physical hazards before contacting them. There are some provisions in 
this group that OSHA did not analyze in terms of their potential to 
prevent accidents. These provisions include requirements for barriers 
and disposable coveralls. However, OSHA's methods of searching for 
confined-space accidents could not identify the accidents that these 
provisions would prevent.

[[Page 25476]]



                            Table IV-10--Confined Spaces in the Construction Industry
                                     Fatal Accidents and Injuries--2006-2009
----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                 Year                     Industry      Type of confined space       reported     Activity No. 1
                                            SIC                                     fatalities
----------------------------------------------------------------------------------------------------------------
2006..................................         1611  sewer......................               2       309775443
----------------------------------------------------------------------------------------------------------------
Description of Accident:
An employee climbed down into a sewer vault to retrieve a tool he dropped and lost consciousness. A second
 employee entered the sewer vault in an attempt to rescue his co-worker and also lost consciousness. Both
 employees died.
 
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Information Exchange
Permit Program (1 of 2 fatalities)
(Not Ventilation and Hazard Isolation; Early Warning System and Atmospheric Testing or Monitoring; or Rescue
 Capacity because these were already required in the State where the accident took place)
Training
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                 Year                     Industry      Type of confined space       reported     Activity No. 2
                                            SIC                                     fatalities
----------------------------------------------------------------------------------------------------------------
2006..................................         1623  storm drain................               1       308437631
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 and his crew were installing storm drainage pipes in an older neighborhood. During the installation
 of the drainage pipes, damage had been caused on the existing natural gas pipe lines in the neighborhood. The
 odor of gas was present prior to the day of the installation, and the local gas company had been contacted to
 identify and repair the leaks. The smell of gas was still present and noticed by the supervisor, employees and
 others; however, the supervisor did not contact the gas company to investigate the odor, and to locate the
 leak. The supervisor also did not remove the employees from the excavation where the gas odor existed, and did
 not test the atmosphere of the excavation to determine if there was a hazardous atmosphere or condition in the
 excavation. The supervisor directed Employee #1 to enter the 48-inch diameter drainage pipe line to retrieve a
 laser surveying machine that was located approximately 90 feet within the pipe line. Natural gas that had
 escaped from two breaks in the gas line had accumulated within the storm drain pipe line. While Employee #1 was
 in the pipe line, the natural gas within it ignited. The specific ignition source was not identified. Even
 though severely burned, Employee #1 was able to exit the storm drain pipe line, and was taken to the hospital.
 Six days later, he died as a result of his injuries.
 
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Information Exchange
Ventilation and Hazard Isolation
Early Warning System and Atmospheric Testing or Monitoring
Attendant
Training
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                 Year                     Industry      Type of confined space       reported     Activity No. 3
                                            SIC                                     fatalities
----------------------------------------------------------------------------------------------------------------
2006..................................         1623  sewer......................               1       310350418
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Three employees were working on a sewer system that was newly installed and not yet in use. A section of the
 line had been plugged and tested for leakage. Employee #1 entered the sewer vault, which was approximately 15
 to 20 feet deep, to remove a plug. Employee #1 collapsed into approximately 6 inches of unidentified liquid at
 the bottom of the sewer vault. Employee #2 entered the sewer vault to assist Employee #1. Employee #2 also
 collapsed at the bottom of the sewer vault. Employee #3 attempted to provide assistance to Employees #1 and #2.
 Employee #3 began to feel ill about halfway down and then decided to emerge from the sewer vault. Fire/EMS
 Department responded to the scene. Co-workers of the employees attached a hose approximately 19 feet long to an
 air compressor and used it to blow air into the sewer vault. Employee #2 regained consciousness and was able to
 assist in rescuing Employee #1 and himself from the sewer vault. All three employees were transported to area
 hospitals. Employee #1 later died at the hospital. Employees #2 and #3 were treated, hospitalized, and released
 in the following days.
 
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Information Exchange
Permit Program
(Not Ventilation and Hazard Isolation, Atmospheric Monitoring, or Rescue capacity because these were already
 required in the State where the accident took place)
Training
----------------------------------------------------------------------------------------------------------------


[[Page 25477]]


----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                 Year                     Industry      Type of confined space       reported     Activity No. 4
                                            SIC                                     fatalities
----------------------------------------------------------------------------------------------------------------
2007..................................         1541  manhole....................               1       311032809
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1, while doing an elevation survey of the invert of a storm water pipe in a manhole, entered the
 manhole to find the bottom of the pipe. While in the manhole, Employee #1 was overcome due to a lack of oxygen
 and died. Employee #2 entered the same manhole, and was also overcome. Employee #2 was hospitalized and
 released the next day.
 
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Information Exchange
Permit Program (Entry very preventable)
Ventilation and Hazard Isolation
Early Warning System and Atmospheric Testing or Monitoring Attendant
Rescue Capacity
Training
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                 Year                     Industry      Type of confined space       reported     Activity No. 5
                                            SIC                                     fatalities
----------------------------------------------------------------------------------------------------------------
2007..................................         1623  lift station...............               4       307043844
----------------------------------------------------------------------------------------------------------------
Description of Accident:
The victim was in the process of assisting another company with the replacement of a sump pump in an underground
 lift station which collected draining and leached water from a construction debris landfill. Three employees of
 the other company entered the lift station and succumbed to exposure to hydrogen sulfide gas. The victim had
 entered the lift station in an attempt to assist/rescue the three victims from the other company, and also
 succumbed to hydrogen sulfide gas. Rescue services arrived at the scene and performed air quality monitoring
 which revealed that the victim and the three victims from the other company were exposed to concentrations of
 up to 200 PPM of hydrogen sulfide gas. Body retrievals were initiated at that point. The lift station was
 determined to be a permit-required confined space. The other company (host employer) had not evaluated the lift
 station to determine that it was a permit-required space. Both companies had not developed and implemented a
 written permit space program.
 
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Information Exchange
Permit Program (3 of 4 fatalities)
Ventilation and Hazard Isolation
Early Warning System and Atmospheric Testing or Monitoring
Rescue Capacity (Attempted rescue resulted in a fatality)
Training
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                 Year                     Industry      Type of confined space       reported     Activity No. 6
                                            SIC                                     fatalities
----------------------------------------------------------------------------------------------------------------
2007..................................         1623  manhole....................               2       310177456
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employees #1 and #2 were working in an approximately 7 ft diameter water vault located about 16 ft underground.
 The vault contained a 12 in. water main and a 4 in. water main that was equipped with a water meter. The vault
 had been constructed approximately ten days earlier and had sat undisturbed until the day of the accident, when
 the employees were scheduled to conduct a pressure test of the system. Employee #1, the foreman, went down into
 the vault to read the meter. When he did not return, Employee #2, a laborer, looked down through the manhole
 cover and saw Employee #1 laying on the ground. Employee #2 called out to a coworker that Employee #1 was down
 and then entered the vault through the manhole and climb down the ladder. The coworker came over to the manhole
 and saw Employee #1 on the ground and Employee #2 hanging upside down, with his leg caught between the ladder
 rungs. Neither employee responded to the coworker's calls. The coworker also started down the manhole but
 noticed an overpowering musty odor and abruptly stopped and exited. The Fire Department and paramedics
 responded to the job site and retrieved Employees #1 and #2, both of whom had died. At the time of rescue the
 Fire Department's four gas meters measured the oxygen level in the vault at approximately 9.2 ppm. In its
 referral to OSHA, the Fire Department referenced two workers who succumbed to an IDLH atmosphere.
 
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Information Exchange
Permit Program (1 of 2 fatalities)
Ventilation and Hazard Isolation
Early Warning System and Atmospheric Testing or Monitoring
Rescue Capacity (Attempted rescue resulted in a fatality)
Training
----------------------------------------------------------------------------------------------------------------


[[Page 25478]]


----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                 Year                     Industry      Type of confined space       reported     Activity No. 7
                                            SIC                                     fatalities
----------------------------------------------------------------------------------------------------------------
2007..................................         1623  manhole....................               2       310253398
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 and Employee #2 were both asphyxiated when they entered a 12 ft manhole to perform grouting work.
 Employee #1 entered the 12 ft manhole and collapsed. Employee #2 entered the manhole to help Employee #1 and
 then Employee #2 collapsed. This was the company's first time performing sewer line work and Employee #1 and #2
 entered the space without required testing. The employer did provide a tripod winch system over the manhole
 with cable attached to rescue harness. In addition, a scott gas detector was used to detect any gases in hole;
 none was detected. The oxygen level however was 8 near the top of the hole and 3 at or near the bottom of the
 hole.
 
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Information Exchange
Permit program (1 of 2 fatalities)
Ventilation and Hazard Isolation
Early Warning System and Atmospheric Testing or Monitoring Provisions
Rescue Capacity (Attempted rescue resulted in a fatality)
Training
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                 Year                     Industry      Type of confined space       reported     Activity No. 8
                                            SIC                                     fatalities
----------------------------------------------------------------------------------------------------------------
2007..................................         1623  manhole....................               1       311354807
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 entered manhole to remove line plugs to activate a manhole sewer system, the manhole was 10.5 ft
 deep. The probable cause of death was H2S poisoning as a result of employee working in a sewer manhole; this is
 according to the county's forensic science department. The manhole had not been entered and was not monitored
 for toxicity, oxygen level or explosive levels. No tripod was in-place for emergency retrieval of Employee #1.
 
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Information Exchange
Permit Program
Ventilation and Hazard Isolation
Early Warning System and Atmospheric Testing or Monitoring Provisions
Attendant
Rescue Capacity
Training
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                 Year                     Industry      Type of confined space       reported     Activity No. 9
                                            SIC                                     fatalities
----------------------------------------------------------------------------------------------------------------
2007..................................         1721  crawl space................               2       126192012
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1, a painting contractor, was hired by the property owner to apply primer over the creosote floor
 joists. Employee #1 and #2 were working in a crawl space under the bedroom of the residence applying primer to
 the floor joists. The incandescent work lamp or a broken light bulb ignited the vapors from the primer. The two
 employees were burned and died. The other employees suffered minor burn injuries. The contributing causal
 factors: The air in the crawl space was not flushed or purged of flammable vapors and no air testing to
 determine whether dangerous air contamination or oxygen deficiency existed. Arson and homicide investigators
 were called to the scene and were investigating the cause of the accident, which appeared to be accidental. The
 crawlspace was located underneath one of the bedrooms and was measured between 21 in. to 22 in. from the
 foundation to the floor of the bedroom.
 
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Permit Program
(Not Ventilation and Hazard Isolation because this was already required in the State where the accident took
 place)
(Not Early Warning System and Atmospheric Testing or Monitoring because this was already required in the State
 where the accident took place)
Attendant
Training
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                 Year                     Industry      Type of confined space       reported      Activity No.
                                            SIC                                     fatalities          10
----------------------------------------------------------------------------------------------------------------
2008..................................         1711  lift station...............               2       312320666
----------------------------------------------------------------------------------------------------------------
Description of Accident:

[[Page 25479]]

 
Employee #1 entered a sewer lift station to check for leaks in the line. Employee #1 was overcome by hydrogen
 sulfide gas. A second employee entered the station to retrieve Employee #1, and also was overcome by the gas.
 Both employees died from overexposure to hydrogen sulfide gas.
 
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Information Exchange
Permit Program
Ventilation and Hazard Isolation
Early Warning System and Atmospheric Testing or Monitoring Provisions
Rescue Capacity (Attempted rescue resulted in a fatality)
Training
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                 Year                     Industry      Type of confined space       reported      Activity No.
                                            SIC                                     fatalities          11
----------------------------------------------------------------------------------------------------------------
2009..................................         1623  manhole....................               1       313122616
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #3 fell into a manhole and suffered a head injury and was life-flighted to the hospital. Employee #2
 became unconscious in a manhole and was rescued and life-flighted to the hospital. Employee #1 entered the
 manhole to attempt rescue of employee #2 and became unconscious and died before he could be rescued.
 
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Ventilation and Hazard Isolation
Early Warning System and Atmospheric Testing or Monitoring Provisions
Rescue Capacity (Attempted rescue resulted in a fatality)
Training
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                 Year                     Industry      Type of confined space       reported      Activity No.
                                            SIC                                     fatalities          12
----------------------------------------------------------------------------------------------------------------
2009..................................         1791  tank.......................               1       311964886
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 was found unresponsive on scaffolding in the residential water tank in which he was performing stick
 welding on the interior overhead of the tank. He was removed from the tank, and emergency services summoned. He
 could not be revived. The medical examiner determined that core body temperature of employee #1 exceeded 109
 degrees Fahrenheit, indicating that the preliminary cause of death was hyperthermia.
 
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Permit Program
Ventilation and Hazard Isolation (ventilation required beyond the amount needed to address welding fumes)
Attendant
Training
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                 Year                     Industry      Type of confined space       reported      Activity No.
                                            SIC                                     fatalities          13
----------------------------------------------------------------------------------------------------------------
2009..................................         1794  manhole....................               1       309620219
----------------------------------------------------------------------------------------------------------------
Description of Accident:
An employee entered into 18-in. manhole to retrieve part of laser equipment and was overcome by methane and lack
 of oxygen. He died of asphyxiation.
 
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Information Exchange
Permit Program (Entry very preventable)
Ventilation and Hazard Isolation
Early Warning System and Atmospheric Testing or Monitoring Provisions
Attendant
Rescue Capacity
Training
----------------------------------------------------------------------------------------------------------------


[[Page 25480]]


----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                 Year                     Industry      Type of confined space       reported      Activity No.
                                            SIC                                     fatalities          14
----------------------------------------------------------------------------------------------------------------
2009..................................         1794  tunnel.....................               1       313553604
----------------------------------------------------------------------------------------------------------------
Description of Accident:
Employee #1 was inside a 24 inch pipe that ran through a tunnel underneath a highway. Employee #1 was
 approximately 140 feet inside the pipe when a rain storm flooded the pipe drowning the employee.
 
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Information Exchange
Permit Program
Attendant
Rescue Capacity
Training
Early Warning System
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                 Year                     Industry      Type of confined space       reported      Activity No.
                                            SIC                                     fatalities          15
----------------------------------------------------------------------------------------------------------------
2006..................................         1711  Crawl space................               1       309539559
----------------------------------------------------------------------------------------------------------------
Description of Accident:
On August 7, 2006, Employee #1, of Mesquite Plumbing Company, entered the crawl space of a house undergoing
 renovations to insulate a new plumbing fixture that a coworker had installed. During the course of his work he
 contacted a live wire and was electrocuted.
 
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Permit program
Ventilation and Hazard Isolation
Attendant
Rescue Capacity
Training
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                 Year                     Industry      Type of confined space       reported      Activity No.
                                            SIC                                     fatalities          16
----------------------------------------------------------------------------------------------------------------
2006..................................         1623  manhole....................               1       310345053
----------------------------------------------------------------------------------------------------------------
Description of Accident:
On September 28, 2006, Employee #1, a construction worker, fell into a concrete manhole structure. He suffered a
 fractured neck and back. Employee #1 was flown by helicopter to the hospital, where he died.
 
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Equipment (lack of cover or methods of assuring safety when a cover is removed)
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                 Year                     Industry      Type of confined space       reported      Activity No.
                                            SIC                                     fatalities          17
----------------------------------------------------------------------------------------------------------------
2007..................................         1521  crawl space................               1       120205794
----------------------------------------------------------------------------------------------------------------
Description of Accident:
On July 23, 2007, Employee #1, age 19, and a coworker were reinstalling an electrical outlet into a new bathroom
 wall after it had been removed from the pre-existing wall. The 120-volt outlet electrical box was energized and
 lying on the floor. Employee #1 went into a crawl space under the house while the coworker went to the
 electrical panel and shut off the power to the home. Employee #1 was having trouble seeing in the darkness of
 the crawl space, and he asked the coworker to turn on the power so he could use a halogen lamp that had a cord
 running up through the floor and into an outlet in the kitchen. When the coworker turned on the power, this
 also energized the electric conductors that Employee #1 was wiring in the junction box. He was lying on his
 back under the floor, on top of the water line for the home. This pipe had been used to ground the electrical
 system of the house when it was built and Employee #1 was electrocuted when he connected the wires. The
 coworker, hearing a noise, tried to communicate with Employee #1. When he did not get a response, he again
 turned off the electricity to the house. The coworker alerted the owner and tried to call 911 on his cell
 phone, but could not get through. He and the owner tried to call 911 on the house's land line, but it was
 electrically-based, and so they once again turned on the power to place the call. The owner then cut a hole in
 the floor, removed Employee #1 from the crawl space, and attempted CPR until paramedics arrived. The coroner
 stated cause of death was low voltage electrocution.
 
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Permit Program
Ventilation and Hazard Isolation
Attendant
Training

[[Page 25481]]

 
Equipment (lighting)
Rescue Capacity
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                 Year                     Industry      Type of confined space       reported      Activity No.
                                            SIC                                     fatalities          18
----------------------------------------------------------------------------------------------------------------
2007..................................         1741  boiler.....................               1       311213326
----------------------------------------------------------------------------------------------------------------
Description of Accident:
On December 11, 2007, Employee #1 was part of a crew engaged in stone work at a residential site. To complete
 the job, they covered the chimney with plastic. Once the plastic was in place, the coworkers went to put away
 the tools for the night, and left Employee #1 to stitch close [ ] any openings in the plastic covering. The
 chimney housed the vent for an Ultra 310 boiler system. When the coworkers returned, they found Employee #1,
 unconscious, in the plastic enclosure. He died of carbon monoxide poisoning.
 
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Permit Program (Entry very preventable)
(Not Ventilation and Hazard Isolation or Rescue Capacity because this was already required in the State where
 the accident took place)
Attendant
Training
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                 Year                     Industry      Type of confined space       reported      Activity No.
                                            SIC                                     fatalities          19
----------------------------------------------------------------------------------------------------------------
2008..................................         1711  crawl space................               1       311794093
----------------------------------------------------------------------------------------------------------------
Description of Accident:
On or about 3:30 p.m. on November 6, 2008, Employee #1, a 31 year-old-male working for Atm Plumbing, was working
 in a crawl space under a private house. The crawl space was wet from recent rains. Employee #1 was using a
 manual operated pipe cutter to cut a water pipe when he received an electrical shock and became unconscious.
 Employee #2 was also under the house using a trouble light to illuminate the work area was not using a GFCI.
 Unbeknown to Employee #1 the water pipe that he was working on was also used for the electrical grounding
 system for the house. Employee #2 pulled him out of the crawl space. Paramedics transported Employee #1 to a
 local hospital where he was pronounced dead.
 
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Permit Program
Ventilation and Hazard Isolation
Attendant
Training
Equipment
Rescue Capacity
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                 Year                     Industry      Type of confined space       reported      Activity No.
                                            SIC                                     fatalities          20
----------------------------------------------------------------------------------------------------------------
2008..................................         1711  duct.......................               1       311815492
----------------------------------------------------------------------------------------------------------------
Description of Accident:
On May 21, 2008, Employee #1 was with a crew installing a steel security grate inside the duct system of a 10-
 ton Trane air conditioning system (Model Number THC120A4RGAOW2B, Serial Number 8044100711L) that was located on
 a roof. As he crawled into the duct to weld the grate into place, the back of his head contacted an energized
 heat strip on the air conditioning unit coil. Employee #1 was electrocuted. The electrical power to the air
 conditioning unit had not been deenergized and locked or tagged out.
 
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Permit Program
Ventilation and Hazard Isolation
Rescue Capacity
Training
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                 Year                     Industry      Type of confined space       reported      Activity No.
                                            SIC                                     fatalities          21
----------------------------------------------------------------------------------------------------------------
2008..................................         1742  attic......................               1       312098551
----------------------------------------------------------------------------------------------------------------
Description of Accident:

[[Page 25482]]

 
On May 17, 2008, Employee #1 was spraying foam insulation in the enclosed attic space of a two story, single-
 family home that was undergoing renovations. He had accessed the attic via an aluminum ladder through a hole in
 the second floor ceiling. A flash fire occurred, killing Employee #1. Inadequate ventilation contributed to the
 buildup of vapors. The ignition source was not determined.
 
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Permit Program
Ventilation and Hazard Isolation
Early Warning System and Atmospheric Testing or Monitoring (Work may have caused build-up of vapors)
Attendant
Training
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                 Year                     Industry      Type of confined space       reported      Activity No.
                                            SIC                                     fatalities          22
----------------------------------------------------------------------------------------------------------------
2009..................................         1731  crawl space................               1       313555591
----------------------------------------------------------------------------------------------------------------
Description of Accident:
On August 18, 2009, Employee #1 was installing a new direct TV cable. Employee #1 was crawling under the house
 and came into contact with an energized wire. He was electrocuted.
 
Provisions That Could Potentially Have Prevented the Fatality:
Evaluation and Classification
Permit Program
Ventilation and Hazard Isolation
Rescue Capacity
Attendant
Training
Total Number of Fatalities: 30
----------------------------------------------------------------------------------------------------------------
Source: OSHA IMIS database, analyzed by OSHA, Directorate of Standards and Guidance and Directorate of
  Construction.

    For the FEA's supplemental data as shown in Table IV-10, OSHA, as 
previously noted, carefully reviewed and selected from the IMIS 
database only those cases determined preventable by full compliance 
with the provisions of the final standard. As a result, OSHA did not 
need to apply a probability prevention rate to estimate the number of 
preventable fatalities. As itemized above, OSHA identified 30 
preventable fatalities over the four-year period, 2006-2009, for an 
average of 7.5 fatalities prevented annually by full compliance with 
this final standard. This supplemental analysis supports OSHA's 
conclusions that the problem of confined-space fatalities did not 
diminish in the construction industry over this period, and that the 
regulated community still needs the final standard. OSHA does not 
believe this supplemental analysis is necessary, but believes that it 
will aid the public in understanding OSHA's conclusions.
    It is important to note that the approach used in this estimation 
is conservative in that there are other fatal events that were likely 
preventable but not included in the IMIS database. For example, the 
Bureau of Labor Statistics' Census of Fatal Occupational Injuries for 
2011 showed 111 fatalities in construction from exposure to harmful 
substances or environments, and 123 fatalities from contact with 
objects and equipment (these numbers include 4 fatalities in new 
single-family housing construction from contact with objects and 10 
fatalities in residential remodeling from exposure to harmful 
substances or environments). Some fatal injuries that are preventable 
by the final standard may not appear in the IMIS database because the 
database only includes accidents involving a fatality or a catastrophe 
with three or more injuries that result in hospitalization.
Estimation of Averted Injuries
    In a 1994 report to OSHA, the Confined Spaces Work Group of the 
Advisory Committee on Construction Safety and Health (ACCSH) estimated 
that the ratio of lost time injuries (LTI) to fatalities in confined 
spaces was approximately 100:1 for general industry and 200:1 for 
construction (see ACCSH, 1994, pg. 6). In the PEA, OSHA used this range 
of 100 to 200 LTIs per fatality to estimate the number of injuries 
prevented by the proposed rule. At the public hearing on the proposed 
rule, the Edison Electric Institute's representative noted, ``There's 
no explanation or support for the assertion that there has been under-
counting of injuries, however, and we cannot discern any basis for 
multiplying these numbers by 100 and 200'' (ID-210, Tr. p.99). As noted 
above, OSHA explained that those estimates came from the ACCSH report, 
which was the best available evidence. The commenter did not dispute 
those numbers or, more importantly, provide any alternatives numbers as 
its best evidence. Perhaps the commenter mistakenly concluded that OSHA 
multiplied the IMIS injury numbers by 100 and 200; however, the 
multiplication applied to the numbers of fatalities, because OSHA does 
not have data on the number of non-fatal injuries.
    In this FEA, OSHA provided updated estimates of the number of non-
fatal injuries involving confined spaces in construction and further 
clarified the basis for its estimates. As a preliminary matter, the 
Agency notes again that OSHA's IMIS database, which is the source of 
information about fatal accidents, does not report most injuries. As 
noted above, the IMIS database includes only accidents involving a 
fatality or a catastrophe with three or more injuries that result in 
hospitalization. Therefore, the IMIS database seldom captures injuries 
involving accidents that do not result either in a fatality or 
hospitalization of three or more workers.\43\ Because OSHA

[[Page 25483]]

could not find a data source for reliable estimates of non-fatal 
injuries in confined spaces in construction,\44\ OSHA again relied on 
the expertise of ACCSH for these estimates.
---------------------------------------------------------------------------

    \43\ The Survey of Occupational Injuries and Illnesses (SOII) 
produces annual estimates of counts and rates of new workplace 
injuries and illnesses, but also is subject to under-reporting for a 
variety of reasons, including missing cases, the reporting of sample 
cases from large establishments, timeliness of updates to the logs 
and data collection, and employer doubts about the recordability of 
some cases (see Ruser, 2008). Furthermore, OSHA is unable to confirm 
the determination of accidents in ``confined spaces'' as defined by 
SOII and, therefore, relied on OSHA's IMIS database.
    \44\ OSHA takes note of the AGCA survey finding of only 2 
confined-space injuries among the 74 responding employers (ID-0222, 
p. 29). However, this finding does not furnish a basis for 
estimating the number of injuries preventable with full compliance 
with this rule due to its lack of representativeness. Not all of the 
respondents even had confined spaces on their job sites. Moreover, 
AGCA designed the survey explicitly not to learn about injuries in 
confined spaces, but ``to determine the impact of compliance costs 
for contractors under OSHA's Proposed Rule on Confined Space [sic]. 
. . . '' It instructed respondents to ``carefully review the 
background information detailed below . . . before submitting your 
information. OSHA's proposed rule for confined space [sic] in 
construction is complicated, costly to implement, and does not 
provide significant increases in safety above the existing general 
industry standard.'' The survey did not provide a definition of a 
confined space or otherwise seek to ensure that the person filling 
out the survey was familiar with the appropriate definition.
---------------------------------------------------------------------------

    Recognizing the age of the ACCSH Work Groups' LTI estimates of 
100:1 and 200:1, OSHA attempted to corroborate these estimates using 
data from the BLS CFOI and the BLS Survey of Occupational Injuries and 
Illnesses (SOII). According to BLS,\45\ in 2009, there were a total of 
4,090 occupational fatalities and 3,277,700 nonfatal occupational 
injuries for private industry overall, and 834 fatalities and 251,000 
nonfatal injuries for the construction industry. Using these estimates 
of fatalities and injuries, the ratio of injuries to fatalities is 
800:1 for all private industries, and 300:1 for the construction 
industry.
---------------------------------------------------------------------------

    \45\ Table A-1, Fatal Occupational Injuries by Industry, Event 
and Exposure, available at http://www.bls.gov/iif/oshwc/cfoi/cftb0241.pdf, and Table 2, Number of Nonfatal Occupational Injuries 
and Illnesses by Case Type and Ownership for Selected Industries, 
2009 News Release USDL 10-1451, available at http://www.bls.gov/news.release/pdf/osh.pdf.
---------------------------------------------------------------------------

    In light of the large injury-to-fatality ratios apparent in the 
recent CFOI and SOII data, OSHA confirmed that the ratios recommended 
by the expert ACCSH Confined Spaces Work Group are reasonable and 
conservative, and used the average of the two ratios (150 injuries per 
fatality) in this FEA to estimate the number of non-fatal injuries. 
Calculations relating publicly reported injury-to-fatality statistical 
data in construction also confirm the reasonableness of the estimates 
OSHA used.\46\
---------------------------------------------------------------------------

    \46\ See, for example, Dong, X., et al. (2011).
---------------------------------------------------------------------------

    Based on OSHA's annual estimate of 5.2 confined-spaces-in-
construction fatalities avoided when fully complying with the 
provisions of this standard, and the 91 percent preventability rate, 
OSHA estimated that there would have been a total of between 520 and 
1,040 confined-spaces-in-construction non-fatal injuries during the 
period of 1992 to 2000, with a midpoint of 780 as the total number of 
non-fatal injuries avoided each year when fully complying to the 
provisions of this standard. Applying a similar methodology of a 100:1 
to 200:1 fatality-to-injuries ratio to the supplemental data in Table 
IV-10, OSHA estimates that, given 30 fatalities between the period of 
2006 to 2009, there would be a total of 3,000 and 6,000 non-fatal 
injuries prevented by the final standard in that time period, or an 
average of 750 and 1,500 (with a midpoint of 1,125) injuries prevented 
per year.
Assignment of Monetary Values to Avoided Injuries and Fatalities
    In the PEA, OSHA used a willingness-to-pay approach to estimate a 
monetary value of $50,000 for each prevented injury and $6.8 million 
for each prevented fatality. One commenter stated that the estimated 
value of $50,000 per prevented injury had ``absolutely no foundation or 
source for accuracy'' and was ``substantially inflated,'' but did not 
provide any specifics or suggest an alternative (ID-100). The AGCA 
report suggested that OSHA instead use workers' compensation claims, 
which it estimated to be $242,770 per fatality and $31,664 per injury 
(ID-222).
    Workers' compensation claims do not reflect a willingness-to-pay 
approach or represent the full costs associated with workplace 
fatalities and injuries. Workers' compensation systems cover medical 
expenses and partial payment of wages lost as a result of workplace 
accidents, or, in the case of fatalities, burial costs and part of lost 
future wages. However, workers' compensation does not cover other costs 
resulting from fatalities and injuries, such as pain and suffering. 
Therefore, it would be inaccurate to base estimates of total societal 
costs of injuries and illnesses on workers' compensation claims.
    As in the PEA, and following the approach recommended by OMB 
Circular A-4 (OMB, 2003) and common analytic practice, OSHA developed 
estimates of the benefits of avoided injuries and fatalities in this 
FEA based on the willingness-to-pay to avoid a marginal increase in the 
risk of a fatality or injury, as explained below. In addition, in this 
FEA, OSHA updated the estimated monetary value of reductions in 
fatalities and injuries presented in the PEA from 2002 to 2009 dollars. 
While a willingness-to-pay (WTP) approach clearly has theoretical 
merit, an individual's willingness to pay to reduce the risk of 
fatality may underestimate the total willingness to pay, which could 
include the willingness of others--particularly the immediate family--
to pay to reduce that individual's risk of fatality.\47\
---------------------------------------------------------------------------

    \47\ See, for example, Thaler and Rosen (1976), pp. 265-266; 
Sunstein (2004), p. 433; or Viscusi, Magat and Forrest (1988), the 
last of whom write that benefits from improvement in public health 
``consist of two components, the private valuation consumers attach 
to their own health, plus the altruistic valuation other members of 
society place on their health.'' This paper uses contingent 
valuation methods to suggest that the effect of altruism could 
significantly alter willingness-to pay estimates for some kinds of 
health improvement. There are, however, many questions concerning 
how to measure this and the conditions under which it might matter.
---------------------------------------------------------------------------

    For estimates using the willingness-to-pay concept, OSHA relied on 
existing studies of the imputed value of fatalities avoided based on 
the theory of compensating wage differentials in the labor market. 
These studies rely on certain critical assumptions for their accuracy, 
particularly that workers understand the risks to which they are 
exposed and that workers have legitimate choices between high- and low-
risk jobs. These assumptions are far from realized in actual labor 
markets.\48\ A number of academic studies, as summarized in Viscusi & 
Aldy (2003), show a correlation between higher job risk and higher 
wages, suggesting that employees demand monetary compensation in return 
for a greater risk of injury or fatality. The estimated trade-off 
between lower wages and marginal reductions in fatal occupational 
risk--that is, workers' willingness to pay for marginal reductions in 
such risk--yields an imputed value of an avoided fatality: The 
willingness-to-pay amount for a reduction in risk divided by the 
reduction in risk.\49\ OSHA used this approach in many recent proposed 
and final rules. (See, for example, 69 FR 59305, 59429 (Oct. 4, 2004) 
and 71 FR

[[Page 25484]]

10099 (Feb. 28, 2006), the preambles for the proposed and final 
hexavalent chromium rule, and 78 FR 56274, 56388 (Sept. 12, 2013), the 
preamble for the proposed respirable crystalline silica rule.) The 
Agency views the WTP approach as the best available, and relied on it 
to monetize benefits. Viscusi & Aldy (2003) conducted a meta-analysis 
of studies in the economics literature that use a willingness-to-pay 
methodology to estimate the imputed value of life-saving programs and 
found that each fatality avoided valued at approximately $7 million in 
2000 dollars. Using the GDP Deflator (U.S. BEA, 2010), this $7 million 
base number in 2000 dollars yields an estimate of $8.7 million in 2010 
dollars for each fatality avoided.<SUP>50 51</SUP>
---------------------------------------------------------------------------

    \48\ See, for example, the discussion of wage compensation for 
risk for union versus nonunion workers in Dorman and Hagstrom 
(1998).
    \49\ For example, if workers are willing to pay $90 each for a 
\1/100,000\ reduction in the probability of dying on the job, then 
the imputed value of an avoided fatality would be $90 divided by \1/
100,000\, or $9,000,000. Another way to consider this result would 
be to assume that 100,000 workers made this trade-off. On average, 
one life would be saved at a cost of $9,000,000.
    \50\ The Agency notes that two recent studies mentioned in this 
chapter--Kniesner et al. (2010) and Kniesner et al. (2012)--report 
similar estimates. The median quintile estimate of the imputed value 
of an avoided fatality in Kniesner et al. (2010) is $9.2 million in 
2010 dollars, while Kniesner et al. (2012) provide a range of 
estimates between approximately $5 million and $12 million in 2012 
dollars. For the purpose of this PEA, OSHA chose to rely on the 
Viscusi and Aldy (2003) meta-analysis rather than the two more 
recent individual studies.
    \51\ An alternative approach to valuing an avoided fatality is 
to monetize, for each year added to a life, an estimate from the 
economics literature of the value of that statistical life-year 
(VSLY). See, for instance, Aldy and Viscusi (2007) for a discussion 
of VSLY theory and FDA (2003), pp. 41488-9, for an application of 
VSLY in rulemaking. OSHA did not investigate this approach.
---------------------------------------------------------------------------

    OSHA views these estimates as the best estimates currently 
available, and will use them to monetize avoided fatalities and 
injuries resulting from this final standard.
Net Benefits
    Table IV-11, which repeats Table IV-1 for the convenience of the 
reader, provides a summary of the estimated costs, benefits, and net 
benefits of the final standard, using discount rates of 7 percent and, 
alternatively, 3 percent, as recommended by OMB Circular A-4. OSHA 
estimated the total benefits of the final standard to be $93.6 million 
annually--of which $45.2 million come from prevented fatalities and 
$48.4 million from prevented injuries. OSHA took the annualized costs 
of $60.3 million, using a 7 percent discount rate, from Table IV-13 in 
Chapter 6 of this FEA. OSHA estimated net benefits of the final rule to 
be $33.3 million annually, using a 7 percent discount rate. OSHA 
estimated that compliance with the final standard will provide $1.55 of 
benefits per dollar of cost.

                        Table IV-11--Net Benefits
                       [Millions of 2009 dollars]
------------------------------------------------------------------------
                                            7% Discount     3% Discount
                                               rate            rate
------------------------------------------------------------------------
                            Annualized Costs
------------------------------------------------------------------------
Evaluation, Classification, Information            $12.4           $12.2
 Exchange, and Notification.............
Written Program, Issue Permits, Verify               4.2             4.2
 Safety, Review Procedures..............
Provide Ventilation and Isolate Hazards.             2.8             2.7
Early Warning System and Atmospheric                11.4            11.3
 Testing or Monitoring..................
Attendant...............................             3.6             3.6
Rescue Capability.......................             8.2             7.6
Training Provisions.....................            11.3            11.3
Other Requirements......................             6.4             6.3
                                         -------------------------------
    Total Annual Costs..................            60.3            59.2
------------------------------------------------------------------------
                             Annual Benefits
------------------------------------------------------------------------
Number of Injuries Prevented............                     780
Number of Fatalities Prevented..........                     5.2
Monetized Benefits......................                   $93.6
------------------------------------------------------------------------
                      Net Annual Monetized Benefits
                          (Benefits Less Costs)
------------------------------------------------------------------------
                                                   $33.3           $34.4
------------------------------------------------------------------------

Potential Net Benefits of the Individual Provisions of the Rule
    As indicated in Table IV-11, the estimated benefits of the final 
standard are nearly 50 percent larger than the estimated costs. 
Nevertheless, it is possible that the costs of particular provisions 
could exceed their benefits. To address this possibility, OSHA 
conducted a supplemental analysis of the net benefits of the individual 
provisions of the final rule that have associated costs.
    Because the final rule contains jointly interacting and overlapping 
provisions, there are two logistical issues with performing a 
provision-by-provision sensitivity analysis of whether benefits exceed 
costs in this case: (1) The available data do not permit OSHA to 
determine the numbers of accidents that every combination of provisions 
could prevent; and (2) a simple marginal analysis will not fully 
address the question of whether benefits exceed costs for the rule as a 
whole. It might, for example, take two or more provisions to prevent a 
class of accident: An analysis of the effects of a requirement to do x 
if situation y is the case would be dependent on not only the 
requirement to do x if situation y is the case, but also a requirement 
to train workers to do x, as well as a requirement to inform workers of 
when y is the case. In such circumstances, while each provision alone 
might pass a marginal benefit-cost test, all of the provisions together 
might not pass a benefit-cost test because the provisions would prevent 
the same accidents. The three provisions, each costing $5 million (for 
a total cost of $15 million), might prevent only $12 million worth of 
accidents because the three provisions would prevent the exact same 
accidents. Thus, even if a provision-by-provision sensitivity analysis 
were possible for

[[Page 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-in-
construction fatalities and injuries for the period 2006-2009 presented 
in Table IV-10, OSHA listed the sets of provisions of the final rule 
that, if followed, would potentially prevent the fatalities. For some 
provisions, such as requirements to evaluate and classify spaces and to 
develop and implement permit systems, the narratives do not clearly 
state whether or not employers met these requirements. In these cases, 
OSHA listed those provisions as being among those that would 
potentially prevent the fatality, even though it is possible that the 
employer took steps to implement the required provisions. For other 
provisions, such as those for early warning system and atmospheric 
testing or monitoring, the narratives do not clearly state that there 
was such monitoring, but it seems unlikely that someone would enter 
some of these extremely dangerous atmospheres had information on that 
danger been available as a result of an early warning system and 
atmospheric testing or monitoring. Finally, it is clear from the 
descriptions that employers simply did not follow provisions relating 
to ventilation and hazard isolation. Table IV-12 shows the aggregate 
results for each set of provisions organized according to the 
organization of costs provided in Chapter 5. Table IV-12 then monetizes 
the prevented fatalities and injuries associated with each cost 
category and compares that monetized total to the estimated costs for 
each cost category. Finally, OSHA estimated the percentage of benefits 
that a given provision needs to produce zero net benefits (that is, 
when the estimated value of the prevented injuries and fatalities 
equals the estimated cost of the related provision). Any percentage 
greater than zero net benefits will produce positive net benefits. 
Table IV-12 also shows the results of this analysis.
    Before examining the benefits attributable to the provisions of the 
final standard, OSHA examined the break-even sensitivity of the 
standard as a whole and found that if compliance with the standard 
prevented 45 percent of the fatalities recorded, then the benefits 
would equal the costs; with any higher percentage prevention, benefits 
would exceed the costs. OSHA considers it a near certainty that 
compliance with the final standard would achieve this level of 
benefits. For example, full compliance with the final standard would 
avoid almost all fatalities involving asphyxiation, and 60 percent of 
the accidents involved asphyxiation. Thus, if full compliance with the 
final standard prevents just one class of accidents, the standard would 
result in benefits that exceed costs.
    To discuss the results shown in Table IV-12, OSHA will consider the 
results for each provision in turn, as described in the following 
paragraphs.
    Evaluation and Classification: The portions of the standard covered 
by this cost category are only effective if combined with other 
measures. Evaluation and classification alone, without taking the 
further steps needed to ameliorate the hazards, would be largely 
pointless. The need for this provision, in the context of benefit-cost 
analysis, is to assure that employers do not have to treat every 
confined space as containing hazards; rather, it allows employers to 
simply restrict entry or to implement the subsequent parts of their 
confined-spaces program only when a hazard exists within a given 
confined space.
    This set of provisions is critical to reducing the costs of all 
other provisions more than directly preventing fatalities. If the 
evaluation and classification provisions reduce the costs of the 
standard as a whole by 5 percent ($3.1 million costs of this provision 
divided by $60.3 million costs of the remaining provisions), then these 
provisions will be useful. Given the vast number of confined spaces 
that do not require the ensuing steps, these provisions are almost 
certainly cost effective, and are necessary given the standard as a 
whole has positive net benefits--as was shown above.
    To further evaluate the necessity and benefit of the evaluation and 
classification provisions, it is necessary to examine state programs. 
Only two of the accidents examined from 1992-2000 and 2006-2009 
occurred in states with comprehensive programs similar to what OSHA is 
proposing. Five accidents occurred in states that required some 
provisions included in OSHA's confined-spaces-in-construction rule, 
such as ventilation and atmospheric monitoring, but did not require 
evaluation or permit systems. This result may suggest that there may be 
advantages to a full, comprehensive program that explicitly requires 
evaluation and classification. However, OSHA has not been able to do 
any quantitative analysis of the rates of confined space fatalities in 
these states as against other regulatory regimes.
    Information Exchange: The exact economic benefits of information 
exchanges are particularly difficult to pinpoint. Nevertheless, the 
benefits of these provisions will exceed the cost if the final standard 
prevents 10 percent of the potentially affected accidents.
    Permit Programs: Table IV-12 shows that if these provisions prevent 
4 percent of the accidents where they are potentially relevant, then 
the benefits will equal the costs, and if they prevent more than 4 
percent, the benefits will exceed the costs. A system of permits might 
prevent, or have been a key part of preventing, many fatalities. As a 
result, achieving a 4 percent prevention rate seems reasonable. 
Further, at least 12 percent of the accidents potentially prevented by 
this provision (Incidents 2 and 13) involved casual entry (e.g., to 
retrieve a dropped item), or entry prior to testing, that a proper 
permit system would completely prevent. Preventing these two accidents 
alone would assure that the benefits of the provision exceed the costs.
    Early Warning Systems, and Atmospheric Testing and Monitoring: 
Early warning systems, and atmospheric testing and monitoring, can 
prevent accidents that result in asphyxiation or caused by explosive 
gases, or where early warning of oncoming liquids would prevent 
drowning. The presence of atmospheric testing or monitoring data would 
prevent most of these accidents because it is unlikely that anyone 
would knowingly enter a space with a lethal or explosive atmosphere, 
especially when provisions are in place to assure against unauthorized 
entry. Table IV-12 shows that if these provisions prevent 14 percent of 
the accidents for which they are potentially

[[Page 25486]]

relevant, then the benefits will equal the costs, and if they prevent 
more than 14 percent of the accident, the benefits will exceed the 
costs. OSHA believes that it is likely that atmospheric monitoring 
could prevent a much higher percentage of these accidents. In addition, 
there is one accident potentially prevented by an early warning system.
    Requirement for an Attendant: This heading includes the provisions 
that require an attendant whenever an employee enters a permit-required 
confined space, such as Sec. Sec.  1926.1204(f), 1926.1209(f) and 
1926.1209(h). These provisions function in conjunction with the 
requirements for adequate rescue capacity. In the absence of 
appropriate rescue capacity, persons standing by a confined space may 
attempt a rescue that exposes them to the hazard. Table IV-12 shows 
that if these provisions prevent 6 percent of the accidents in which 
the person who died entered a confined space completely alone, then the 
benefits will equal the costs, and if the provisions prevent more than 
6 percent of the accidents, the benefits will exceed the costs. OSHA 
believes that it is reasonable that appropriately trained and equipped 
attendants could prevent this percentage of accidents.
    Ventilation and Hazard Isolation: The standard generally requires 
the use of ventilation when possible to address atmospheric hazards, 
but it can be difficult for the purposes of this sensitivity analysis 
to determine in which situations ventilation, rather than PPE, might be 
sufficient. It is clear, however, that when ventilation is appropriate, 
assuring its effectiveness would completely prevent ventilation-related 
fatalities. The same is true for hazard-isolation methods such as 
deactivating and locking out electrical sources and creating by-passes 
for water around confined spaces. Table IV-12 shows that if these 
provisions prevent 3 percent of the accidents for which they are 
potentially relevant, then the benefits will equal the costs, and if 
they prevent more than 3 percent of these accidents, the benefits will 
exceed the costs. Therefore, even if proper ventilation or isolation 
prevented one in five of the fatalities identified as potentially 
avoidable with proper ventilation or isolation, then the benefits of 
these provisions would exceed the costs. While the exact number of 
situations in which ventilation or isolation would have been the 
hazard-reducing measure of choice is uncertain, OSHA is confident that 
at least 3 percent of those identified would require ventilation or 
isolation.
    Rescue Capacity: These provisions include all requirements related 
to rescue, including the requirement for non-entry rescue whenever 
feasible. Table IV-12 shows that if these provisions prevent 9 percent 
of the accidents for which they are potentially relevant, then the 
benefits will equal the costs, and if they prevent more than 9 percent 
of the accidents, the benefits will exceed the costs. Given that 15 
percent of the accidents for which OSHA identified inadequate rescue 
capacity as a factor in a fatality involved deaths of additional 
workers during an attempted rescue, then following provisions for non-
entry rescue would reasonably prevent more than 9 percent of all 
accidents involving inadequate rescue capacity. However, if employers 
follow all other provisions of the rule, then there will be less need 
for rescue. As a result, this set of provisions will be necessary if 
other provisions are not available or are not followed 9 percent of the 
time, or if conditions change after the confined-space entry in ways 
that result in a need for rescue.
    Equipment: These provisions cover the requirement that employers 
provide adequate lighting and other equipment needed for confined-
spaces work as specified in Sec.  1926.1204(d). Table IV-12 shows that 
if these provisions prevent 47 percent of the accidents for which they 
are potentially relevant, then the benefits will equal the costs, and 
if they prevent more than 47 percent of the accidents, the benefits 
will exceed the costs. However, as noted above, OSHA did not include 
many of the accidents that proper equipment would prevent, such as 
accidents caused by vehicles hitting persons working near a confined 
space or illnesses caused by improper clothing. As a result, it is 
likely that OSHA underestimated the number of fatalities and injuries 
prevented by proper equipment.

                               Table IV-12--Comparison of Benefits Associated With Individual Cost Categories and Costs *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                              Percentage
                                                    Estimated                 Estimated                                                           of
                                       Number of    number of    Monetized    number of                 Total monetized value                 potential
                                       fatalities   fatalities    value of     injuries    Monetized     of annual fatalities                  benefits
           Cost provision             potentially    per year      annual      per year     value of         and injuries         Costs of    needed to
                                      affected by  potentially   fatalities  potentially    injuries   potentially affected by   provision    break even
                                       provision   affected by      \a\      affected by      \b\           the provision                     with costs
                                      (2006-2009)   provision                 provision                                                          \c\
                                                                                                                                              (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
All.................................           30          7.5  $65,250,000         1125  $69,750,000             $135,000,000  $60,300,000           45
Evaluation and Classification.......           30          7.5   65,250,000         1125   69,750,000              135,000,000    3,100,000            2
Information Exchange................           18          4.5   39,150,000          675   41,850,000               81,000,000    9,300,000           11
Permit System.......................           22          5.5   47,850,000          825   51,150,000               99,000,000    4,200,000            4
Early Warning System and Atmospheric           18          4.5   39,150,000          675   41,850,000               81,000,000   11,300,000           14
 Testing or Monitoring..............
Ventilation and Hazard Isolation....           22          5.5   47,850,000        487.5   51,500,000               99,000,000    2,800,000            3
Attendant...........................           13         3.25   28,275,000        487.5   30,225,000               58,500,000    3,600,000            6
Rescue Capability...................           20            5   43,500,000          750   46,500,000               90,000,000    8,200,000            9
Training............................           29         7.25   63,075,000       1087.5   67,425,000              130,500,000   11,300,000            9
Equipment...........................            3         0.75    4,350,000        112.5    6,975,000               13,500,000   6,3000,000           47
--------------------------------------------------------------------------------------------------------------------------------------------------------
* In 2009 dollars.
\a\ Based on an estimated value of $8.7 million per fatality avoided.
\b\ Based on an estimated value of $62,000 per injury avoided.
\c\ Costs of provision divided by total monetized value of fatalities potentially prevented by the provision.
* Note: OSHA did not apportion the benefits of a prevented fatality among the provisions that could prevent the fatality; instead, the Agency attributed
  the entirety of the benefits of a prevented fatality to each provision that could prevent the fatality.
Source: OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.

5. Technological Feasibility
    In accordance with the OSH Act, OSHA must demonstrate that 
occupational safety and health standards promulgated by the Agency are 
technologically feasible. OSHA demonstrates that a standard is 
technologically feasible ``by pointing to technology that is either 
already in use or has been conceived and is reasonably capable of 
experimental refinement and distribution within the standards 
deadlines.'' American Iron and Steel Inst. v. OSHA (Lead II), 939 F.2d 
975,

[[Page 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 Sec.  1910.146 was technologically feasible 
when it promulgated those standards in 1993 (58 FR 4539), and that 
conclusion held true over OSHA's two decades of experience with that 
standard. Likewise, this conclusion holds true with respect to 
provisions in the final rule that OSHA based on the existing general 
industry standard. A number of commenters stated that they are 
complying with the general industry standard in construction 
operations, which also supports a finding of technological feasibility. 
(See e.g., ID-047, -075, -086, -092, -120, -124, -180).
    Second, the provisions in the standard not based on the existing 
standard are also technologically feasible. The new standard requires 
employers to identify confined spaces at their worksites, establish a 
written program and issue permits for qualifying confined spaces, 
exchange information on the hazards of permit spaces with other 
affected employers, train affected employees, provide for rescue and 
emergency services, and assign duties to authorized entrants, 
attendants, and supervisors. None of these requirements, including the 
new requirements not in Sec.  1910.146, present any technological 
feasibility concerns. These provisions simply require observation of 
hazards, training, and communication among all parties, including 
employees and all employers at a worksite--all of which are clearly 
feasible.
    In Section III of the preamble to the final rule, ``Summary and 
Explanation of the Final Rule,'' OSHA responded to issues associated 
with the technological feasibility of specific provisions. In that 
section of the preamble, OSHA discussed technological feasibility 
concerns raised by rulemaking participants and the technological 
feasibility of provisions that differ from the general industry rule, 
including the requirement for continuous monitoring of atmospheric 
hazards in final Sec.  1926.1203(e)(2)(vi) and Sec.  
1926.1204(e)(1)(ii). In addressing potential concerns about the 
technological feasibility of continuous monitors that would be capable 
of identifying various types of atmospheric hazards, OSHA included an 
exception that applies if the employer can demonstrate that the 
appropriate devices are not commercially available for this purpose.
    One commenter suggested that requirements to exchange information 
and coordinate entry operations represent ``an unnecessary burden'' and 
``in some cases may be infeasible,'' which OSHA takes to mean 
technologically infeasible, for the homebuilding industry (ID-124). 
Although this commenter cited industry statistics indicating that 
homebuilders tend to be small businesses that rely on subcontractors to 
handle specialized tasks, the commenter failed to show how this 
situation renders multi-employer communication requirements of the rule 
technologically infeasible for that industry. OSHA does not mandate any 
particular equipment for coordinating communications, and the Agency 
did not find evidence in the record suggesting that the exchange of 
information and entry coordination, which OSHA believes already occurs 
in the course of regular communications conducted by employers on 
construction worksites, is infeasible. At a time when most individuals 
have mobile phones, remote communication should be possible in most 
locations. In any case, in construction work, home-building contractors 
are able to successfully communicate with a variety of specialists 
about what work needs to be done and at what time. Therefore, there 
should be no feasibility problems in communicating essential safety 
information in the same way.
    There was only one other provision of the proposed standard that 
elicited concerns from industry stakeholders about technological 
feasibility. That provision, which appears as Sec.  
1926.1204(e)(1)(iii) of the final standard, requires that employers 
provide an early warning system that will detect non-isolated 
engulfment hazards as a part of the permit-required confined space 
program. Such hazards can result, for example, when runoff from a heavy 
storm upstream in a sewer flows downstream into the work area. As noted 
in the IMIS reports, an employee died in 2009 when a rainstorm sent 
water rushing into a 24-inch pipe inside which the employee was 
working. Other examples would be if sewage, sand, grain, or other 
``flowable'' solid substances flow into the area in which an employee 
is working.
    Two commenters questioned the availability of early warning system 
technology (ID-059 and -098). A third commenter (ID-216) raised similar 
objections and, in particular, expressed concerns about the technical 
demands imposed on the employer to account for all of the factors 
involved in properly positioning the system.
    In response to these comments, OSHA observes that manufacturers 
have designed early warning systems for years to alert workers to 
migrating engulfment hazards, including migrating engulfment hazards 
present in a space subject to final Sec.  1926.1204(e)(1) (see, for 
example, http://www.memecosales.com/products/level/blok-aid/ or http://www.flygt.com/en-us/Pumping/Products/Monitoring-and-Control-equipment/Pages/Alarm-telemetry.aspx). The range of available early warning 
systems runs from customized high-flow warning devices to simple fluid-
level meters with audible alarms. The wide availability and application 
of such systems attest to their affordability and practicability under 
a range of circumstances. OSHA also notes that, in a series of 
stakeholder meetings in October 2000, various participants discussed 
the range of early warning systems, including monitors, cameras, and 
attendants positioned upstream outside confined spaces (see transcripts 
of stakeholder meetings, available at https://www.osha.gov/doc/reference_documents.html). The commenters generally characterized the 
systems as easy to implement and commonly used.
    Even though this technology is clearly available, the standard does 
not require employers to use a device such as the early warning system. 
An employer may determine that an effective compliance solution would 
simply be to position detection and monitoring devices to provide early 
warning, or to station an employee to accomplish that function. In any 
case, given the option of using an employee to provide direct 
observation as one potential method of fulfilling the requirement, 
there is no doubt that the requirement may be accomplished with 
existing technology.
    In conclusion, employers can achieve compliance with all of the 
requirements of the final standard with readily and widely available 
technologies or through the use of human observers. To demonstrate 
technological feasibility, OSHA must establish a ``reasonable 
possibility that the typical firm will be able to . . . meet the 
[standard's

[[Page 25488]]

requirement] in most of its operations.'' Lead II, 939 F.2d at 980 
(internal citation omitted). Given the wide availability of options for 
early warning systems, the final rule meets this legal test.
6. Costs of Compliance
Introduction
    In this chapter, OSHA presents the estimated costs of the final 
rule for confined spaces in construction. These are the costs that 
employers would incur to achieve full compliance with the final rule, 
relative to the current baseline. They do not include costs employers 
incurred to achieve current compliance with the existing requirements.
    Table IV-13 presents OSHA's estimate of the total annualized costs 
of the final rule by provision and by industry sector, expressed in 
2009 dollars. As OSHA typically does, it annualized capital costs over 
the estimated useful life of the equipment, and annualized one-time 
costs over 10 years. Consistent with OMB's Circular A-4 (OMB, 2003), 
OSHA calculated annualized costs using two alternative discount rates: 
7 Percent and 3 percent. As shown, OSHA estimated the total annualized 
cost of the final rule to be about $60.3 million using a discount rate 
of 7 percent, and $59.2 million using a discount rate of 3 percent.

  Table IV-13--Annualized Compliance Costs of OSHA's Final Standard for
              Confined Spaces in Construction, by Provision
------------------------------------------------------------------------
       Provision or hazard control        7 Percent rate  3 Percent rate
------------------------------------------------------------------------
Evaluation, Classification, and              $12,363,600     $12,208,018
 Notification...........................
    Classify............................         948,249         948,249
    Notice..............................       2,091,862       1,936,279
    Information Exchange................       9,323,489       9,323,489
Issue Permits, Verify Safety, Review           4,196,574       4,190,373
 Procedures.............................
    Annual Review.......................         154,746         154,746
    Issue Permits.......................       2,710,594       2,710,594
    Written Program.....................       1,331,234       1,325,033
Ventilation and Hazard Isolation........       2,830,611       2,748,652
    Isolation...........................         784,364         771,079
    Vent................................       2,046,247       1,977,573
Atmospheric Monitoring..................      11,395,322      11,282,168
    Test Prior/During...................      10,661,160      10,551,394
    Calibrate...........................         734,162         730,773
Standby Person..........................       3,623,866       3,623,866
Rescue Capability.......................       8,157,084       7,576,244
    Rescue..............................       5,745,876       5,379,002
    Retrieval...........................       2,411,208       2,197,241
Training................................      11,340,155      11,296,556
    Training............................       5,696,017       5,676,653
    Supervisor Training.................       5,644,139       5,619,903
Other Requirements......................       6,402,728       6,269,690
    Clothing............................       2,744,697       2,744,697
    Barriers............................       2,801,408       2,723,063
    Communication Equipment.............         624,044         584,200
    Lighting............................         183,363         171,656
    Alarms..............................          61,252          57,644
                                         -------------------------------
        Total Compliance Costs..........      60,321,976      59,207,135
------------------------------------------------------------------------
Source: U.S. Department of Labor, OSHA, Directorate of Standards and
  Guidance, Office of Regulatory Analysis-Safety.

    The structure of the equations which calculate the costs is the 
following equation:
[GRAPHIC] [TIFF OMITTED] TR04MY15.000

Where TC = Total Cost, k subscripts each cost category, j subscripts 
each industry type, i subscripts the project size, NP is the number 
of projects in that size category, NC is the current non-compliance 
rate, H is the number of hours, and UC is the unit cost.

    Using a discount rate of 7 percent, OSHA estimates that the 
annualized compliance costs for the major provisions of the final 
standard are as follows: Evaluation and classification of enclosed 
spaces, information exchange, and notification ($12.4 million); 
developing and reviewing written programs, issuing entry permits, and 
verifying the safety of confined spaces ($4.2 million); isolating 
hazards and providing sufficient ventilation ($2.8 million); conducting 
atmospheric monitoring ($11.4 million); having an attendant ($3.6 
million); planning and providing rescue capability ($8.2 million); 
providing training ($11.3 million); and other requirements ($6.4 
million).
Estimating Compliance Costs
    The approach to compliance-cost estimation in this FEA follows the 
approach in the PEA and in the CONSAD analysis. However, the cost

[[Page 25489]]

estimates in this FEA changed relative to the PEA to reflect changing 
construction practices over time, changes from the proposed to the 
final rule (including more closely aligning the final rule with the 
confined-spaces rule for general industry), and OSHA's responses to 
comments on the proposal and on the PEA.
    For each type of construction activity identified by the CONSAD 
expert panel, OSHA took an estimate of the total number of construction 
projects from the F.W. Dodge data (the same source used for the PEA) 
and applied a category-specific number of confined spaces per project 
to derive the number of confined spaces. OSHA then used the number of 
confined spaces along with other pertinent estimates to determine the 
number of affected workers, and applied unit-cost estimates to 
calculate the costs of each provision of the standard, taking into 
account current compliance. OSHA derived many of the costs of this 
final rule by multiplying hourly wages by the labor hours required to 
fulfill a given requirement. As previously noted, OSHA annualized 
equipment purchase costs based on the estimated useful life of the 
equipment, and annualized one-time expenditures over a 10-year period.
    AGCA presented an alternative economic analysis, prepared by Dr. 
Helvacian, of the compliance costs of the proposed rule, stating that 
the analysis in the PEA ``must be updated for the most recent data on 
establishments, employees, wages and benefits, and for prices for 
construction machinery and equipment'' (ID-222). In this FEA, OSHA 
updated its analysis of compliance costs to reflect more recent data, 
when these data were available. Specifically, to account for changes in 
wages and prices over time, OSHA updated the wages and capital and 
equipment costs presented in the PEA to 2009 dollars based on the 
percentage change in the GDP price deflator from 2002 to 2009, 
published by the U.S. Commerce Department, Bureau of Economic 
Analysis.\52\ Dr. Helvacian's economic analysis was based partially on 
a survey of AGCA's member employers. The survey respondents have an 
average of 98.8 confined spaces per job, with a median of 3 spaces per 
job. This large disparity between the average and the median suggests 
the possibility that there was widespread misunderstanding among the 
respondents regarding what constitutes a confined space. By comparison, 
the average number of confined spaces per project based on the CONSAD 
report is 5.7, with an average of 193 entries per project.\53\ OSHA 
believes that it would be unsound to extrapolate the commenter's survey 
results, based on only 74 respondents and 5 categories of construction 
projects, to the entire construction industry. In contrast, CONSAD 
based its estimates on results stratified by 25 project categories 
organized by project size. Furthermore, OSHA notes that adjusting the 
estimated average number of confined spaces and entries to reflect the 
commenter's reported median estimate would reduce OSHA's estimated 
compliance costs.
---------------------------------------------------------------------------

    \52\ Source: http://www.bea.gov/iTable/iTable.cfm?ReqID=9&step=1#reqid=9&step=3&isuri=1&903=13.
    \53\ This estimate excludes single-family housing projects. OSHA 
added these projects to the analysis in this FEA.
---------------------------------------------------------------------------

    OSHA chooses not to adopt the commenter's estimated number of 
confined spaces. OSHA believes that the research conducted by CONSAD 
continues to provide detailed information that is not available 
elsewhere (for example, information related to entries into confined 
spaces and the distribution of confined spaces across construction 
projects). Therefore, OSHA finds that the CONSAD report, with 
appropriate updates and adjustments for the changing rule provisions 
and industry practices, provides the best available data related to 
entries into confined spaces in construction, and continues to rely on 
data published in that report to estimate compliance costs.
    Dr. Helvacian's analysis also suggested that the number of hours 
required to comply with the proposed rule was greater than that 
estimated in the PEA (ID-222). However, although the report provided 
some aggregate time estimates, they were not sufficiently detailed for 
OSHA to analyze the estimates by specific requirements. Furthermore, 
OSHA notes that Dr. Helvacian based the survey results on the AGCA 
members' understanding of the proposed rule rather than the final rule, 
which the survey's introduction described as ``complicated, costly to 
implement, and does not provide significant increases in safety above 
the existing general industry standard'' (ID-222). For these reasons, 
OSHA is not adjusting its time estimates based on the AGCA survey 
results.
    OSHA received a number of comments stating that many construction 
contractors were already complying with the general industry standard. 
For example, an association of utility contractors commented that its 
members ``enter into confined spaces on a regular basis in the course 
of their construction operations. They have been using the General 
Industry Standard (29 CFR 1926.146) since it was issued in 1993 and 
have customized their confined space programs and training to comply 
with that standard'' (ID-075). Another commenter, a construction-safety 
consultant, stated that employers were already complying with a state 
standard on confined spaces, which the state based on OSHA's general 
industry standard (ID-047). Tom Skaggs, representing the Mechanical 
Contractors Association of America, testified that the industry was 
successfully protecting workers ``through voluntary compliance with 
OSHA's general industry standard'' (ID-210, Tr. p. 278; see also ID-180 
for his written testimony). Other commenters also stated that much of 
the construction industry adheres to the general industry standard 
(e.g., ID-086, -092, -120, -124).
    Based on these comments, and in light of the changes from the 
proposed rule to the final rule that more closely align the final rule 
with the general industry rule, OSHA revised its estimated rates of 
current industry compliance upward in this FEA for many of the 
provisions of the final rule. Table IV-6, introduced earlier in Chapter 
3 of this FEA, presents these revised compliance rates. Because the 
final rule requirements concerning information exchange, continuous 
monitoring, and early warning systems and rescue vary from the general 
industry rule, the Agency did not adjust the estimated compliance rates 
related to these provisions in this FEA.
    To adjust compliance rates, OSHA used information on state 
confined-space standards for construction. The states that have 
confined space standards for construction are: California, Kentucky, 
Maryland, Michigan, Minnesota, Virginia, Washington, and Alaska. These 
eight states have different confined-space requirements that comply 
with some or all of the OSHA requirements in the final rule, depending 
on the state. OSHA assumed that the original CONSAD compliance rate 
would be applicable in states without state standards, and assumed full 
compliance with the provisions of the standards specific to each of 
these eight states. The content of the state construction standards 
varies by state, so OSHA calculated weighted average compliance rates 
for each provision of the standard based on the proportion of 
establishments in each state having that provision. As the record 
shows, this approach may underestimate the actual compliance rates 
since many construction employers have come into compliance with the 
general industry

[[Page 25490]]

standard, and, therefore, with provisions of this final rule, whether 
or not they are located in the states with confined-space standards for 
construction. These employers come into compliance with the general 
industry standard because, in part, they perform both general industry 
and construction work. OSHA also modified some compliance rates from 
the CONSAD report to account for large projects having greater 
compliance rates than smaller projects within the same activity type.
    Table IV-14 presents the estimated unit costs associated with each 
requirement in the final rule. Following this table is a discussion of 
OSHA's estimated compliance costs by requirement.

   Table IV-14--Unit-Cost Estimates for Controls Necessary To Achieve
                   Compliance With the Final Standard
------------------------------------------------------------------------
         Activity or equipment                Unit cost/useful life
------------------------------------------------------------------------
Construction supervisor wage (including  $42.16 per hour.
 benefits).
Skilled worker wage (including           $29.60 per hour.
 benefits).
General construction employee wage       $24.93 per hour.
 (including benefits).
Clerical employee wage (including        $22.53 per hour.
 benefits).
Unskilled worker wage (including         $22.67 per hour.
 benefits).
Confined-space notification signs......  $18.92/5 years.
Host employer/controlling contractor     8 minutes of supervisor time.
 information exchange.
Controlling contractor/entry employer    20 minutes of supervisor time
 information exchange.                    for each entity involved.
Controlling contractor/other worksite    5 minutes of supervisor time
 employer information exchange.           for 10 percent of employers.
Entry coordination.....................  10 minutes of supervisor time
                                          for 3 supervisors per
                                          coordinated entry.
Written program........................  1 hour per project.
Issue permits/maintain records/review    10 minutes of supervisor time
 procedures.                              and 5 minutes of clerical time
                                          per permit issued.
Implement and verify alternative entry   5 minutes of supervisor time
 procedures.                              and 5 minutes of clerical time
                                          per non-permitted space entry.
Time to isolate a hazard (e.g., with     5 minutes skilled employee
 double block and bleed method, lockout/  time.
 tagout system, etc.).
Lock...................................  $13.80/2 years.
Tag....................................  $1.61 each.
Portable ventilation system............  $1,332/5 years.
Operation and maintenance costs for      Add 10% per year to cost of
 ventilation system.                      system.
Set up ventilation system..............  10 minutes skilled employee
                                          time.
Ventilate confined space prior to entry  45 minutes skilled employee
                                          time.
Set up atmospheric monitoring equipment  20 minutes skilled employee
                                          time per entry.
Atmospheric-monitoring equipment (three- $1,000/5 years.
 gas monitor).
Atmospheric-monitor calibration test...  1 calibration per 160 hours of
                                          use.
Attendant..............................  1 additional construction
                                          employee for duration of entry
                                          for anywhere from 3 hours to
                                          3,400 hours.
Establish rescue procedures............  1 hour supervisor time per
                                          project.
Entry rescue equipment.................  $5,328.56 per set/5 years.
Non-entry rescue equipment.............  $3,248.54/20 years.
Rescue team training...................  For each team of 4 employees:
                                          16 hours skilled worker time
                                          (4 hours per employee) plus 4
                                          hours supervisor time; plus
                                          for 1 employee: 4 hours
                                          skilled worker time for CPR
                                          training.
Training for entrants and attendants...  Entrants (3-75 workers per
                                          project): 0.25 hours
                                          construction worker time;
                                          attendants (2-6 workers per
                                          project): 0.25 hours
                                          construction worker time; plus
                                          1.5 minutes supervisor time
                                          per trained worker and 1.5
                                          minutes clerical time per
                                          worker.
Training program development...........  4 hours supervisor time plus 1
                                          hour clerical time for program
                                          development plus 6 hours
                                          supervisor time for training
                                          plus 1 hour clerical time per
                                          project.
Disposable coveralls...................  $8.94 per set.
Traffic barricades (pair)..............  $165.64/3 years.
Barricade tape.........................  $2.12 per 100 feet.
Sign...................................  $18.92/5 years.
Installation of sign or barricade......  5 minutes per sign or
                                          barricade.
Two-way radios.........................  $214.13/3 years.
Safety lantern for emergency lighting..  $19.04/3 years.
Air horn for emergency evacuation......  $23.79/3 years.
------------------------------------------------------------------------
Sources: Wage data from Bureau of Labor Statistics. Other data from
  CONSAD report, Tables 6.1, 6.2, D.1, and D.2; and OSHA, Directorate of
  Standards and Guidance, Office of Regulatory Analysis-Safety.

Evaluation and Identification, Information Exchange, and Notification
    The proposed standard required employers to evaluate confined 
spaces and their hazards, and to classify them as one of several types 
of confined spaces. In the PEA, OSHA estimated that compliance with the 
requirements would primarily involve a supervisor's time to categorize 
the confined space and evaluate its hazards.
    Many commenters found the proposed multiple classification system 
for confined spaces unnecessarily burdensome. One commenter stated that 
``[t]he four new classifications . . . will require drastic changes to 
existing confined space programs at great financial expense to the 
construction industry'' (ID-124). Another commenter objected to ``the 
cost to the contractor for re-educating employees in the new 
terminology,'' and supported the continued use of the ``the existing

[[Page 25491]]

process'' in Sec.  1910.146, the general industry standard (ID-035).
    In contrast to the proposed standard, the final rule requires 
employers to evaluate confined spaces and their hazards (i.e., 
determine whether a workspace is a confined space and identify the 
types of hazards that workers may encounter), and to identify those 
confined spaces that are permit spaces or covered by alternate 
procedures. This simplified requirement mirrors the requirements of 
OSHA's general industry standard for confined spaces. OSHA estimates 
that the time required to evaluate confined spaces as permit-required 
spaces would be substantially less than the time required to comply 
with the more complex proposed classification system, and, therefore, 
the Agency estimated an average time of about 12 minutes to evaluate a 
permit space and identify hazards. OSHA believes this estimate is 
appropriate given the many comments indicating that employers are 
already familiar with the general industry rule and its required 
classification process. For example, one commenter, which surveyed its 
members about the proposed standard, reported that ``identifying 
confined spaces [is] currently performed as part of normal business 
activities,'' and that ``within the past 15 years, many contractors 
have become accustomed to 29 CFR 1910.146 and have adjusted their 
safety programs to comply with this standard'' (ID-222).
    For purposes of estimating the extent of current compliance, OSHA 
considers that projects in compliance with the proposed requirements to 
issue entry permits would also be in compliance with the final 
requirements for evaluating spaces as permit-required or not. 
Therefore, OSHA bases its compliance rates for these provisions on the 
compliance rates estimated for the provisions related to issuing entry 
permits. OSHA calculated the annual compliance cost for evaluating and 
classifying confined spaces by multiplying the supervisor's hourly wage 
rate by the number of hours per project required to identify and 
evaluate confined spaces, which can vary by project type. OSHA applied 
this total to the percentage of projects not already in compliance and 
summed across all projects. Using this approach, OSHA estimates an 
annualized cost of about $948,249 to comply with this requirement.
    For example, to see how OSHA determined the cost of classification, 
we will examine one of the 25 types of projects: Construction on 
warehouses. Within this category there were 130 small projects, 220 
medium projects, and 23 large projects.
    The total cost for the large projects was derived by taking the 
number of projects (23) times the current non-compliance rate (42%) 
times the number of hours per project (1.5). This calculation yields a 
product of 14.49 hours. Multiplying that number by the unit cost 
($42.16 per hour)--the cost of an hour of supervisor's time--yields 
$610.90, the cost of classification of large warehouse construction 
project confined spaces.
    To determine the total cost of classification of all permit 
required confined spaces, the costs of all types of projects (small, 
medium, and large) for all 25 types of construction, weighted by each 
project-cell-types current non-compliance rate, are summed up. A total 
of 94 cells are added up to produce the total cost of classification.
    The final rule includes specific requirements for employers at 
worksites with confined spaces to share information they may have about 
the hazards confronting their workers or other workers. One commenter 
stated that ``[i]t is essential to add in the costs to implement this 
proposed rule by all the employers on each construction site . . . , '' 
and that the ``estimated time necessary to attend to each confined 
space on each construction project by the proposed controlling 
contractor is 6 to 8 hours'' (ID-100). In providing this estimate, the 
commenter delineates several requirements that fall under the duties of 
entry employers and host employers. The commenter correctly notes the 
requirement that the controlling contractor exchange information with 
other worksite employers; however, by counting requirements for entry 
employers with the requirements for controlling contractors, the 
commenter overstates the time burden on controlling contractors. 
Another comment, in the report prepared by Dr. Helvacian, noted that 
employers had concerns about the costs of complying with requirements 
for ``information gathering'' and ``information sharing and 
coordination'' (ID-222). Although OSHA believes that employers on 
construction sites currently conduct the information exchange described 
in this chapter as part of their usual and customary business 
practices, in this FEA (unlike in the PEA) the Agency included 
estimated costs for information-exchange requirements, as follows.
    Under final Sec.  1926.1203(h)(1) and (h)(2), the host employer and 
the controlling contractor must exchange information about known permit 
spaces, such as location, past experiences with hazards in the spaces, 
and other pertinent information. Neither the host employer nor the 
controlling contractor has to enter the confined spaces to obtain this 
information. OSHA estimates that supervisors for the host employer and 
the controlling contractor will engage in eight minutes of conversation 
per project to fulfill this information-exchange requirement.
    Under final Sec.  1926.1203(b)(2), (h)(2), (h)(3), (h)(5), and (i), 
controlling contractors and entry employers must exchange information 
about permit spaces and their hazards. They also must share most of 
this information with employee representatives. OSHA estimates the 
information exchange requirement can be fulfilled with an average of 20 
minutes of communication (one pre-entry and one post-entry 
conversation, each lasting 10 minutes) per project between a supervisor 
for the controlling contractor and an entry employer plus a worker-
authorized representative of that entry employer
    Under final Sec.  1926.1203(h)(2), before entry operations begin, 
the controlling contractor must provide information about the permit-
required spaces to employers with employees whose activities could 
foreseeably expose them to a hazard in the permit-required space. OSHA 
expects that employers on a worksite will not usually have employees 
engaged in work that could foreseeably expose them to such a hazard. To 
estimate the cost of compliance with this provision, OSHA anticipates 
that the controlling contractor's supervisor will engage in one 5-
minute conversation with 10 percent of all non-entry employers on a 
worksite. OSHA calculated the number of non-entry employers on a 
worksite from estimates made by CONSAD of the number of non-entry 
workers on projects, assuming an average employer size of 20 employees.
    Under final Sec.  1926.1203(h)(4), the controlling contractor must 
coordinate entry operations when multiple employers enter 
simultaneously or when an employer makes an entry while other work 
performed at the site (outside the confined space) may result in a 
hazard in the confined space. To obtain the cost of compliance with 
this information-exchange provision, OSHA estimates that the 
controlling contractor and two employers will engage in one 10-minute 
conversation per coordinated entry. To estimate the number of 
coordinated entries, OSHA used estimates in the CONSAD report on the 
number of simultaneous entries per project. OSHA assumes that all 
estimated simultaneous entries will require coordination, and estimates 
that

[[Page 25492]]

10 percent of all entries will be subject to hazards as a result of 
work outside the confined space.
    Although the CONSAD report did not provide direct estimates of 
compliance rates for the information-exchange requirements, OSHA 
believes that these compliance rates are similar to the compliance 
rates associated with the requirements for notification to non-entrant 
employees (ID-003, Table D.2). OSHA also believes it is reasonable to 
assume that projects in compliance with requirements addressing 
notification to non-entrant employees would also be in compliance with 
requirements addressing employer-to-employer communication.
    OSHA calculated the annual compliance cost for information exchange 
on each project by multiplying the supervisor's hourly wage rate by the 
number of hours per project for each type of required information 
exchange. To estimate the cost of information exchange between host 
employers and controlling contractors, OSHA modeled eight minutes of 
three supervisors' time per project. Similarly, to estimate the cost of 
information exchange between controlling contractors and entry 
employers, OSHA modeled 20 minutes of supervisor time for the 
controlling contractor, a worker-authorized representative, and each of 
the entry employers on the project. To estimate the cost of information 
exchange between the controlling contractor and employers on the 
worksite having employees whose work may result in a hazard in the 
confined space, OSHA modeled five minutes of supervisor time for the 
controlling contractor and 10 percent of non-entry employers present. 
Finally, to estimate the cost of coordinating simultaneous entries, 
OSHA modeled 10 minutes for 3 supervisors (i.e., the controlling 
contractor and two entry employers) for each such entry. For all of 
these calculations, OSHA applied the totals to the percentage of 
projects not already in compliance (i.e., 1 minus the compliance rate) 
and summed these values across all projects. Using this approach, OSHA 
estimates an annual cost of approximately $9.3 million to comply with 
the information-exchange requirements in the final rule.
    One commenter stated that the requirements to exchange information 
and coordinate entry operations represent ``an unnecessary burden'' and 
``in some cases may be infeasible'' (ID-124). OSHA addresses this 
comment as a technological-feasibility issue in the section on 
technological feasibility, but the commenter's unsupported argument 
also would fail if directed at economic infeasibility. Although this 
commenter cited home-building industry statistics indicating that 
homebuilders tend to be small businesses that rely on subcontractors to 
handle specialized tasks, the comment did not explain how this 
condition renders the multi-employer and communication requirements of 
the rule economically infeasible for that industry.
    Under final Sec.  1926.1203(b) and (c), employers must inform 
exposed employees of the existence of permit spaces and the dangers 
they pose. In the PEA, OSHA estimated that complying with this 
requirement involved an average of five minutes per notified worker. In 
the FEA, the Agency no longer includes such notification costs. Rather, 
OSHA followed the PEA in assuming that employers will achieve 
compliance with the notification requirement by posting a sign at each 
confined space. OSHA estimates that signs have a five-year life, and 
that installation takes five minutes per sign. The Agency calculates 
the cost of signs as the unit cost of one sign times the number of 
signs per project, and calculates the installation costs as five 
minutes (\1/12\ of an hour) times the unskilled worker's hourly wage 
times the number of signs per project. OSHA applies these totals to the 
percentage of projects not already in compliance, summed across all 
projects. Treating the installation cost as a recurring cost, and 
treating signs as a capital cost with a useful life of five years, OSHA 
estimates that the annualized cost of signs, including materials and 
labor, to be $2.0 million.
    Two stakeholders representing utility contractors, in similarly 
worded comments, stated that notifying non-authorized entrants ``could 
mean informing 25-100 or more employees on the jobsite, which would be 
extremely time consuming'' (ID-124 and ID-075). However, OSHA believes 
that, beyond posting the signs, there should be no additional costs 
associated with the requirement to inform exposed employees of the 
existence of permit spaces and the danger posed by unauthorized entry. 
OSHA notes that, under 29 CFR 1926.21(b)(2), employers must already 
provide general training to employees engaged in construction work to 
ensure that they recognize the hazards on the worksite, including 
applicable signage warning of hazards. As one commenter stated, ``In 
reference to warning employees not to attempt an unauthorized rescue, 
it should be part of every construction employee's training . . . 
because this warning applies to all construction rescue operations'' 
(ID-075).
    In summary, OSHA estimates the total annualized costs related to 
the final requirements for evaluation and classification, information 
exchange, and notice to employees to be $12.1 million.
Written Program, Permit Issuance, and Annual Review
    The proposed standard required that employers on worksites with 
confined spaces either develop a confined-space program and maintain a 
copy of the written program, or, alternatively, maintain a copy of the 
standard at the site. For analytical purposes, OSHA assumed that 
employers would choose the least-cost alternative and maintain a copy 
of the standard at the site in lieu of developing a written program. In 
contrast, final Sec.  1926.1203(d) is similar to the general industry 
provision in that it requires entry employers to develop and implement 
a written permit-space program, and final Sec.  1926.1204(n) requires 
employers to review the permit-space program.
    In this FEA, OSHA estimates one hour of supervisor time per project 
to write a program. OSHA based this estimate on the paperwork-burden 
determination made in the proposed rule for developing such a program, 
which no commenter disputed. OSHA also notes the wide availability of 
written model permit-space programs provided by government entities, 
trade associations, and others, that employers could adapt with a 
limited number of revisions to comply with the new standard (see, for 
example, http://www.purdue.edu/rem/home/booklets/ConSpProg.pdf). OSHA 
calculated compliance costs associated with the requirement to develop 
a written program as a one-time cost consisting of one hour times the 
supervisor's hourly wage times the number of projects. OSHA applied 
this total to the percentage of projects not already in compliance, and 
annualized the costs using assumptions on the share of projects that 
are new to a contractor each year--yielding a total annualized cost of 
approximately $1.3 million. OSHA notes that, in practice, an employer 
is likely to develop one, somewhat generic, program, and then apply it 
later to other projects. Given the ready availability of model programs 
online and elsewhere, adapting one with limited revisions to a 
company's particular needs is not especially difficult or time 
consuming. In addition, following the PEA, OSHA estimates five minutes 
of supervisor time per program for the annual review, and computes the 
cost for this review as five minutes (\1/12\ of an hour) times the 
supervisor's hourly wage times the number of

[[Page 25493]]

projects not already in compliance--yielding an estimated annual 
compliance cost of about $155,000.
    Final Sec.  1926.1205 requires employers to issue entry permits, 
and final Sec.  1926.1206 specifies the information employers must 
include in the permits. In the PEA, OSHA estimated that compliance with 
the requirements to issue written entry permits when necessary, and to 
review procedures periodically, would primarily involve supervisor 
time; OSHA estimated that 15 minutes of supervisor time per permit 
issued was sufficient for this purpose. For this FEA, OSHA estimated 
compliance costs associated with issuing permits separately from the 
compliance costs associated with the annual review of the permit-space 
program. Following the analysis by CONSAD, OSHA estimates that 
compliance with these provisions will involve 10 minutes of supervisor 
time to issue a permit, 5 minutes of clerical time to write the permit, 
as well as 5 minutes of supervisor time to provide written verification 
regarding the safety of non-permit spaces, and 5 minutes of clerical 
time for recordkeeping for non-permit spaces. The total estimated 
annual costs in this final standard associated with issuing entry 
permits and written verifications of safety are $2.7 million.
    In summary, OSHA estimates that the annualized costs of the final 
requirements to provide a written program, issue written permits, and 
conduct an annual review of the program total to $4.2 million.
    One commenter stated that the requirement to develop a confined-
space program might require the assistance of a third party, and 
asserted that program development could cost contractors $10,000 (ID-
112). However, the commenter did not explain the basis for the $10,000 
estimated cost of program development, and did not specify which 
elements of ``program development'' were in its estimate. For example, 
OSHA separately estimated the costs of providing a written confined-
space program and developing a training program. Furthermore, OSHA 
notes that the final rule does not require employers to engage a third 
party in the development of a confined-space program. Indeed, a variety 
of examples of confined-space programs are widely available on the 
Internet, which employers may adapt for their needs; in addition, OSHA 
will provide a small entity compliance guide to aid employers in 
developing such programs.
Isolating Hazards and Providing Ventilation
    Final Sec. Sec.  1926.1203(e) and 1926.1204 refer to isolating 
hazards and providing ventilation to ensure safe entry conditions for 
permit-required spaces and confined spaces covered by alternate 
procedures. As in the PEA, OSHA estimates that isolating hazards and 
providing ventilation would require the time of a skilled construction 
employee, additional costs for locks and/or tags, 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 Sec. Sec.  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 Sec.  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 per-instance 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

[[Page 25494]]

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 Sec.  1926.1204(f) requires employers to post an attendant 
outside the permit space for the duration of authorized entry 
operations, and final Sec.  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 non-entry 
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 air-supplied 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 Sec.  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 Sec.  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 non-entry rescue; rescuing entrants from permit spaces; 
providing necessary emergency services to rescued employees; and 
preventing unauthorized personnel from attempting a rescue. Paragraph 
(a) of Sec.  1926.1211 specifies the criteria according to which 
employers can choose rescue and emergency services; Sec.  1926.1211(b) 
specifies requirements for employers who choose to designate their own 
employees as the rescue service; and Sec.  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

[[Page 25495]]

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 Sec.  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 non-entry 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 
non-entry 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, full-body 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.
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    \54\ See http://www.majorsafety.com/index.cfm/product/450_105/confined-space-tripod-rescue-system-with-bw-gasalert-max-xt-and-blower.cfm; http://www.rocknrescue.com/acatalog/Con-Space-Rescue-Kit-3.html#aCSI_2dRES_2dKIT3; http://www.rocknrescue.com/acatalog/Skedco-Evac-Confined-Space-Rescue-Kit.html.
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    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 Sec.  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 per-project basis to be consistent with the rest of the CONSAD-
derived analysis. This assumption, along with the unit-

[[Page 25496]]

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 work-practice 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).
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    \55\ The 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.
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    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

[[Page 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 respirator-protection 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 respiratory-protection 
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 Confined-Space
                    Standard for All Establishments, Small Entities, and Very Small Entities
----------------------------------------------------------------------------------------------------------------
                                                                                                   Very small
          NAICS                      Industry                   All           Small entities     entities  (<20
                                                           establishments     (SBA-defined)        employees)
----------------------------------------------------------------------------------------------------------------
221310...................  Water Supply and Irrigation             $51,635            $14,299             $8,738
                            Systems.
236115...................  New Single-Family Housing               813,505            578,128            351,852
                            Construction (except
                            Operative Builders).
236116...................  New Multifamily Housing                 955,662            533,573            174,635
                            Construction (except
                            Operative Builders).
236118...................  Residential Remodelers......          8,277,207          7,853,017          4,342,753
236210...................  Industrial Building                   2,331,853            527,967            175,989
                            Construction.
236220...................  Commercial and Institutional         11,862,610          5,868,843          1,747,634
                            Building Construction.
237110...................  Water and Sewer Line and              8,687,099          4,956,577          1,400,582
                            Related Structures
                            Construction.
237130...................  Power and Communication Line          2,125,111            697,984            105,944
                            and Related Structures
                            Construction.
237310...................  Highway, Street, and Bridge          15,614,845          4,915,948          1,061,237
                            Construction.
237990...................  Other Heavy and Civil                 1,405,363            513,278            145,898
                            Engineering Construction.
238190...................  Other Foundation, Structure,          1,627,010          1,069,906            428,448
                            and Building Exterior
                            Contractors.
238210...................  Electrical Contractors and            1,627,010            877,857            330,259
                            Other Wiring Installation
                            Contractors.
238220...................  Plumbing, Heating, and Air-           2,471,532          1,450,572            551,757
                            Conditioning Contractors.
238310...................  Drywall and Insulation                1,627,010            686,015            203,983
                            Projects.
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.


[[Page 25498]]

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:
---------------------------------------------------------------------------

    \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.

    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\

    \59\ Id.
---------------------------------------------------------------------------

    Thus, according to the court, OSHA standards would satisfy the 
economic-feasibility 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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \61\ See OSHA's Web page, http://www.osha.gov/dea/lookback.html#Completed, for a link to all completed OSHA lookback 
reviews.
---------------------------------------------------------------------------

    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 below-average, 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

[[Page 25499]]

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\
---------------------------------------------------------------------------

    \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.

                 Table IV-16--Potential Economic Impacts for Entities Affected by the Final Standard for Confined Spaces in Construction
                                                                     [2009 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Affected                                                                Annualized   Annualized
                                               ----------------------------   Affected    Annualized    Average                  costs as a   costs as a
                                                                             firms as a   compliance   revenues      Average     percentage   percentage
 NAICS industry code        Industry name                                    percentage   costs per    per firm    profits per  of affected  of affected
                                                  Firms     Establishments    of total     affected       ($         firm ($        firm         firm
                                                                             (percent)       firm     thousands)   thousands)     revenues     profits
                                                                                                                                 (percent)    (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
221310..............  Water Supply and                 22               65         0.61       $2,347      $2,235          $132         0.11         1.78
                       Irrigation Systems.
236115..............  New Single-Family             1,075            1,321         1.75          757       1,691            77         0.04         0.99
                       Housing Construction
                       (except Operative
                       Builders).
236116..............  New Multifamily Housing         830              883        19.22        1,151       5,774           262         0.02         0.44
                       Construction (except
                       Operative Builders).
236118..............  Residential Remodelers..      9,405            9,602         9.44          880         757            34         0.12         2.57
236210..............  Industrial Building              71              106         1.84       32,843       6,865           311         0.48        10.56
                       Construction.
236220..............  Commercial and                5,401            6,408        13.08        2,196       9,519           431         0.02         0.51
                       Institutional Building.
237110..............  Water and Sewer Line and      2,579            2,765        18.85        3,368       3,787           227         0.09         1.49
                       Related Structures
                       Construction.
237130..............  Power and Communication         127              341         2.49       16,733       6,968           417         0.24         4.01
                       Line and Related
                       Structures Construction.
237310..............  Highway, Street, and          3,486            4,275        31.83        4,479      10,230           612         0.04         0.73
                       Bridge Construction.
237990..............  Other Heavy and Civil           778              965        14.96        1,806       4,633           277         0.04         0.65
                       Engineering
                       Construction.
238190..............  Other Foundation,             1,163            1,182        20.40        1,399       1,243            57         0.11         2.46
                       Structure, and Building
                       Exterior Contractors.
238210..............  Electrical Contractors..      2,046            2,680         2.59          795       1,635            74         0.05         1.07
238220..............  Plumbing, Heating, and        2,264            2,934         2.28        1,092       1,688            65         0.06         1.68
                       Air-Conditioning
                       Contractors.
238310..............  Drywall and Insulation        1,640            2,284         7.53          992       1,941            89         0.05         1.12
                       Projects.
238910..............  Site Preparation                225              255         0.55        3,753       1,647            79         0.23         4.77
                       Contractors.
                                               ---------------------------------------------------------------------------------------------------------

[[Page 25500]]

 
                        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]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                 Cost as a    Costs as a
                                                          Average         Average         Average      Costs as a   Costs as a   percentage   percentage
 NAICS industry                            Affected     compliance     revenues per     profits per    percentage   percentage   of overall   of overall
      code            Industry name         firms        costs per        firm ($         firm ($     of affected  of affected    category     category
                                                       affected firm     thousand)       thousand)        firm         firm         firm         firm
                                                            ($)                                         revenues     profits      revenues     profits
--------------------------------------------------------------------------------------------------------------------------------------------------------
221310..........  Water Supply and                16             894             713              42         0.13         2.13         0.00         0.01
                   Irrigation Systems.
236115..........  New Single-Family              942             614           1,255              57         0.05         1.08         0.00         0.02
                   Housing Construction
                   (except Operative
                   Builders).
236116..........  New Multifamily                719             742           3,600             163         0.02         0.46         0.00         0.08
                   Housing Construction
                   (except Operative
                   Builders).
236118..........  Residential                  9,384             837             736              33         0.11         2.51         0.01         0.24
                   Remodelers.
236210..........  Industrial Building             24          21,999           2,827             128         0.78        17.18         0.01         0.11
                   Construction.
236220..........  Commercial and               4,398           1,334           4,950             224         0.03         0.60         0.00         0.06
                   Institutional
                   Building.
237110..........  Water and Sewer Line         2,248           2,203           2,462             147         0.09         1.50         0.02         0.25
                   and Related
                   Structures
                   Construction.
237130..........  Power and                       95           7,347           3,012             180         0.24         4.08         0.00         0.08
                   Communication Line
                   and Related
                   Structures
                   Construction.
237310..........  Highway, Street, and         2,738           1,795           4,304             258         0.04         0.70         0.01         0.19
                   Bridge Construction.
237990..........  Other Heavy and Civil          579             884           2,085             125         0.04         0.71         0.00         0.08
                   Engineering
                   Construction.
238190..........  Other Foundation,            1,100             973             936              43         0.10         2.27         0.02         0.44
                   Structure, and
                   Building Exterior
                   Contractors.
238210..........  Electrical                   1,424             616           1,037              47         0.06         1.31         0.00         0.02
                   Contractors.
238220..........  Plumbing, Heating,           1,700             853           1,130              44         0.08         1.96         0.00         0.03
                   and Air-Conditioning
                   Contractors.
238310..........  Drywall and                  1,119             613           1,127              52         0.05         1.19         0.00         0.06
                   Insulation Projects.

[[Page 25501]]

 
238910..........  Site Preparation               167           3,352           1,223              58         0.27         5.74         0.00         0.02
                   Contractors.
                                        ----------------------------------------------------------------------------------------------------------------
                     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]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                 Cost as a    Costs as a
                                            Annual        Average         Average         Average      Costs as a   Costs as a   percentage   percentage
                                          number of     compliance     revenues per     profits per    percentage   percentage   of overall   of overall
NAICS industry code     Industry name      affected      costs per     affected firm   affected firm  of affected  of affected    category     category
                                            firms      affected firm   ($ thousand)    ($ thousand)       firm         firm         firm         firm
                                                            ($)                                         revenues     profits      revenues     profits
--------------------------------------------------------------------------------------------------------------------------------------------------------
221310.............  Water Supply and             11             794             532              31         0.15         2.54         0.00         0.01
                      Irrigation
                      Systems.
236115.............  New Single-Family           580             607             977              44         0.06         1.37         0.00         0.01
                      Housing
                      Construction
                      (except Operative
                      Builders).
236116.............  New Multifamily             271             644           1,650              75         0.04         0.86         0.00         0.06
                      Housing
                      Construction
                      (except Operative
                      Builders).
236118.............  Residential               7,104             611             545              25         0.11         2.47         0.01         0.18
                      Remodelers.
236210.............  Industrial                    8          21,999           1,471              67         1.45        31.92         0.00         0.08
                      Building
                      Construction.
236220.............  Commercial and            1,327           1,317           2,273             103         0.06         1.28         0.00         0.05
                      Institutional
                      Building.
237110.............  Water and Sewer             642           2,182           1,105              66         0.20         3.30         0.01         0.19
                      Line and Related
                      Structures
                      Construction.
237130.............  Power and                    17           6,232             945              57         0.66        11.02         0.00         0.05
                      Communication
                      Line and Related
                      Structures
                      Construction.
237310.............  Highway, Street,            601           1,766           1,814             109         0.10         1.63         0.01         0.12
                      and Bridge
                      Construction.
237990.............  Other Heavy and             166             879           1,007              60         0.09         1.46         0.00         0.06
                      Civil Engineering
                      Construction.
238190.............  Other Foundation,           706             607             552              25         0.11         2.40         0.01         0.32
                      Structure, and
                      Building Exterior
                      Contractors.
238210.............  Electrical                  544             607             575              26         0.11         2.33         0.00         0.02
                      Contractors.
238220.............  Plumbing, Heating,          655             842             622              24         0.14         3.51         0.00         0.03
                      and Air-
                      Conditioning
                      Contractors.
238310.............  Drywall and                 336             607             599              27         0.10         2.21         0.00         0.04
                      Installation
                      Projects.
238910.............  Site Preparation             64           3,312             681              33         0.49        10.18         0.00         0.02
                      Contractors.
                                        ----------------------------------------------------------------------------------------------------------------
                       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

[[Page 25502]]

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]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                     Affected firms
                                                                                      Affected       as a percentage     Annualized
     NAICS industry code                 Industry name            Affected firms   establishments       of total      compliance costs    Cost per firm
                                                                                                        (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
221310.......................  Water Supply and Irrigation                    16                18               0.5           $14,299              $894
                                Systems.
236115.......................  New Single-Family Housing                     942               953               1.5           578,128               614
                                Construction.
236116.......................  New Multifamily Housing                       719               728              17.1           533,573               742
                                Construction.
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                4,398             4,463              10.9         5,868,843             1,334
                                Building.
237110.......................  Water and Sewer Line and Related            2,248             2,272              16.8         4,956,577             2,205
                                Structures Construction.

[[Page 25503]]

 
237130.......................  Power and Communication Line and               95               112               1.9           697,984             7,347
                                Related Structures Construction.
237310.......................  Highway, Street, and Bridge                 2,738             2,784              26.8         4,915,948             1,795
                                Construction.
237990.......................  Other Heavy and Civil Engineering             579               584              11.6           513,278               886
                                Const..
238190.......................  Other Foundation, Structure, and            1,100             1,112              19.5         1,069,906               973
                                Building Exterior Contractors.
238210.......................  Electrical Contractors...........           1,424             1,446               1.8           877,857               616
238220.......................  Plumbing, Heating, and Air-                 1,700             1,722               1.7         1,450,572               853
                                Conditioning Contractors.
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]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                 Affected firms as      Annualized
     NAICS industry code                  Industry name             Affected       Affected       a percentage of    compliance costs  Cost per firm ($)
                                                                     firms      establishments         total               ($)
--------------------------------------------------------------------------------------------------------------------------------------------------------
221310.......................  Water Supply and Irrigation                11                 11                0.3              8,738                794
                                Systems.
236115.......................  New Single-Family Housing                 580                580                1.0            351,851                607
                                Construction.
236116.......................  New Multifamily Housing                   271                271                7.2            174,635                644
                                Construction.
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            1,327              1,329                3.9          1,747,634              1,317
                                Building.
237110.......................  Water and Sewer Line and Related          642                642                5.7          1,400,582              2,182
                                Structures Construction.
237130.......................  Power and Communication Line and           17                 17                0.4            105,944              6,232
                                Related Structures Construction.
237310.......................  Highway, Street, and Bridge               601                601                7.5          1,061,237              1,766
                                Construction.
237990.......................  Other Heavy and Civil Engineering         166                166                3.8            145,898                879
                                Const.
238190.......................  Other Foundation, Structure, and          706                706               13.5            428,448                607
                                Building Exterior Contractors.
238210.......................  Electrical Contractors............        544                544                0.8            330,259                607
238220.......................  Plumbing, Heating, and Air-               655                655                0.7            551,757                842
                                Conditioning Contractors.
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

[[Page 25504]]

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, Sec.  1926.1205, Permitting process, in 
the final standard contains provisions virtually identical to those in 
Sec.  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:
    <bullet> Advances in safety systems (for example, monitoring 
procedures that detect increases in atmospheric hazards, as required in 
Sec.  1926.1204(c)(5));
    <bullet> 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;
    <bullet> 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 
Sec.  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;
    <bullet> 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

[[Page 25505]]

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 multi-employer 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 Sec.  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.
---------------------------------------------------------------------------

    \63\ Available online at: http://www.dol.gov/dol/regs/appendix.htm.
---------------------------------------------------------------------------

    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 Sec.  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 permit-required 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

[[Page 25506]]

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 Sec.  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 single-family 
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, Sec.  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 Sec.  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      The Agency relied, in part, on
 OSHA had underestimated the costs of     the comments and alternative
 the draft proposed standard. The Panel   cost estimates from the SERs
 recommended that OSHA revise its         to help ensure that the
 economic and regulatory flexibility      estimated costs of compliance
 analysis as appropriate to reflect the   with the final standard would
 SERs' comments on underestimation of     reflect the actual costs that
 costs, and that the Agency compare       businesses might incur when
 OSHA's revised estimates to              complying with the
 alternative estimates provided by the    requirements specified by the
 SERs. For those SER estimates that       standard. OSHA reduced or
 OSHA did not adopt, OSHA should          eliminated some requirements
 explain its reasons for preferring an    altogether (such as those
 alternative estimate, and solicit        addressing hazardous-enclosed
 comment on the issue.                    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.

[[Page 25507]]

 
2. Many SERs observed that OSHA had      The Agency reviewed its
 underestimated the cost of training.     estimates of the costs of
 They were concerned particularly about   complying with the training
 the length of time required for          requirements in the proposed
 training, training the trainers,         standard in light of the
 renewal training, and multilingual       additional information
 training. The SERs also noted that       provided by the SERs. OSHA
 much retraining could be avoided if      understands that many
 OSHA adopted the general industry rule   businesses would have to
 because most firms already have          comply with both the general
 trained their employees on that rule.    industry and the construction
 Some SERs also noted that they still     industry versions of the OSHA
 need to train employees on the general   confined-spaces standards,
 industry standard because some of        depending on the
 their work would come under the          circumstances. Under the final
 general industry standard. In these      standard, OSHA decided not to
 situations, they would need to           allow compliance with the
 continue training on the general         general industry standard in
 industry standard while adding           lieu of compliance with this
 training on the construction standard,   final standard for
 and on how employees should determine    construction projects because
 which standard applies. Because OSHA's   there are situations where the
 economic analysis examined training on   general industry standard
 a project basis, it is difficult to      would not adequately protect
 compare OSHA's cost estimates to the     construction employees because
 estimates provided by the SERs. The      of the unique characteristics
 Panel recommends that OSHA carefully     of construction work (see
 analyze the SERs' comments on training   section II.B. (``History'') of
 costs by developing methods for          this document for a discussion
 comparing these cost estimates to        of this issue). However, to
 those estimates provided in OSHA's       simplify the process for
 economic analysis. OSHA then should      employers in confined spaces
 compare these costs to its present       where both general industry
 cost estimates, and revise its           and construction work is
 training costs as necessary based on     ongoing, OSHA provided a
 all of the available information.        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        The Agency reviewed its
 neglected some elements of monitoring    estimates of the costs of
 costs, such as the need for a            complying with the atmospheric-
 competent person to conduct the          monitoring requirements in the
 monitoring, the need for the entire      proposed standard in light of
 crew to wait while a supervisor          the additional information
 performs the monitoring, the short       provided by the SERs. The
 life span in the field of monitoring     Agency decided not to revise
 equipment, and costs associated with     the use of a five-year useful
 calibrating the equipment. Those SERs    life of monitoring equipment
 affected by the hazardous-enclosed       absent additional evidence
 spaces portion of the draft proposed     demonstrating that a shorter
 rule were concerned particularly about   span was more appropriate. In
 increased monitoring costs. The Panel    any case, the effect on total
 notes that if the SERs' views about      costs of minor variances in
 the life of equipment and the need for   the life of equipment would be
 the entire crew to suspend work during   small. OSHA increased the
 monitoring are correct, and no other     costs associated with setting
 assumptions are changed, the costs of    up monitoring equipment to 20
 monitoring would be three to five        minutes (instead of 10
 times higher than OSHA estimated,        minutes) to reflect the
 adding $6 to $12 million to the cost     possibility of additional
 of the draft proposed standard. The      losses of productive work time
 Panel recommends that OSHA consider      by other employees. OSHA also
 these factors and revise its             doubled the costs associated
 monitoring cost estimates accordingly,   with periodic calibration of
 and that monitoring costs reflect the    the equipment to reflect
 total actual costs associated with       possible additional time,
 conducting monitoring, including the     costs associated with the
 cost of transporting and maintaining     transportation of equipment,
 equipment, and the costs associated      and other incidental expenses.
 with crew members waiting for the
 completion of monitoring activities.
4. Many SERs were concerned that the     As recommended by the Panel,
 hazardous enclosed spaces provisions     OSHA carefully examined the
 of the draft proposed rule would         hazardous-enclosed space
 result in extensive costs with few       portion of the draft proposed
 benefits. Some SERs thought the          standard. OSHA also reexamined
 provisions required little               applicable existing
 recordkeeping beyond what they           requirements, the extent of
 currently do. Also, some SERs noted      occupational risks involved,
 that OSHA had underestimated the costs   and the potential for risk
 associated with recordkeeping. The       reduction with the
 Panel is concerned that the hazardous    promulgation of additional
 enclosed spaces provision would          regulatory requirements for
 require major atmospheric testing and    hazardous-enclosed spaces.
 monitoring burdens not identified in     Based on this reexamination,
 the cost analysis. The Panel             the Agency decided not to
 recommends that OSHA carefully examine   promulgate any new or
 the benefits and costs of this portion   additional requirements for
 of the rule and compare these            hazardous-enclosed spaces.
 requirements carefully to what is        OSHA believes that other
 required under other existing            existing standards adequately
 regulations, and to existing             cover potential hazards
 construction industry practice.          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     The Agency clarified the duties
 treatment of controlling employers in    of the controlling employer in
 the draft proposed standard would        Sec.   1926.1203 of the final
 result in additional costs for           standard (General
 controlling employers in the form of     requirements). In its
 increased monitoring and supervision     explanation of paragraph (h)
 of subcontractor activities. SERs also   of this section, OSHA provided
 were concerned with the costs and time   additional information about
 required to meet the coordination and    the type of information that
 communication requirements of the        the controlling employer must
 draft proposed standard. The Panel       share with its subcontractors,
 recommends that, if OSHA does not        and OSHA further clarified in
 clarify these provisions, then it        a note to this paragraph that
 should examine further the possible      the controlling or host
 costs of the controlling-employer        employer do not have to enter
 provisions in the draft proposed rule.   a confined space to collect
 Also, OSHA should be certain that it     the specified information for
 has accounted for all of the burdens     its subcontractors. Therefore,
 associated with this provision.          the Agency believes that
                                          compliance with final Sec.
                                          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     The Agency revised the
 increased complexity of the              classification system in the
 classification system would add not      final standard to clarify and
 only to the training costs but also to   simplify the classification of
 the costs associated with classifying    confined spaces. The Agency
 confined spaces. The Panel recommends    believes this system reflects
 that, if the classification process is   current practice under the
 not simplified, OSHA should further      general industry standard when
 analyze the costs associated with        employers apply it to
 classifying confined spaces.             construction work, thereby
                                          reducing the compliance burden
                                          for employers.

[[Page 25508]]

 
7. OSHA estimated that the draft         As noted in the response to
 proposed standard potentially affects    item 4 above, OSHA did not
 small entities performing construction   include the requirements
 work in confined and enclosed spaces.    addressing hazardous-enclosed
 Small entities in eight specific         spaces that the Panel believed
 construction industry classifications    may impose a burden on the
 were identified as being potentially     industrial sector for General
 affected by the draft proposed           Contractors for Single Family
 standard. These classifications          Homes in the final standard.
 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.
8. Almost all of the SERs found the      In the final standard, OSHA
 draft proposed standard difficult to     addressed the concerns of the
 follow. The SERs stated that they        SERs about the difficulty in
 currently were using the general         following the text of the
 industry standard and were familiar      proposed standard. OSHA
 with it. A few SERs saw some             reorganized the regulatory
 advantages to the differences between    text to follow more closely
 the draft proposed standard and the      the general industry structure
 general industry standard, but even      preferred by the SERs. The
 these SERs did not believe that these    final standard specifies the
 advantages were sufficient to justify    general duties, the standards
 the amount of training the draft         pertaining to permit-required
 proposed standard would require. The     confined spaces, the
 Panel recommends that OSHA either make   permitting process, entry
 the standard easier to follow,           permits, training, rescue
 consider a standard closer to the        services, and specific duties
 general industry standard, or develop    assigned to entrants,
 a standard in which the classification   attendants, and supervisors.
 provisions that provide greater          OSHA recognized and addressed
 flexibility to employers are optional    problematic situations common
 rather than required.                    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        In the final standard, OSHA
 distinctions between types of confined   greatly simplified the system
 spaces. One SER referred to the          for classifying confined
 distinctions as ``metaphysical.'' The    spaces (relative to that in
 Panel recommends that if these           the proposed standard) by
 distinctions are retained, they should   removing the series of
 be made clearer, or OSHA should          classifications in the
 consider making such classifications     proposed rule and simply
 optional.                                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 Sec.
                                          Sec.   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-  See the Agency's response to
 enclosed spaces requirements would       item 4 above.
 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 Sec.
 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.

[[Page 25509]]

 
11. SERs were concerned that the         As stated above, OSHA clarified
 provisions addressing controlling        the responsibilities of
 employers would require general          controlling employers in final
 contractors to develop confined-space    Sec.   1926.1203. In addition
 expertise and provide confined-space     to sharing specific
 supervision. OSHA's intent with these    information that it may have
 provisions was not to change existing    about the space with its
 relations between general contractors    affected subcontractors, the
 and their subcontractors, but rather     note to that section clearly
 to assure that general contractors       states that employers do not
 provide subcontractors with the          have to enter a confined space
 information they possess relevant to     to gather such information for
 confined spaces. Some SERs agreed that   its subcontractors. The
 additional information could be          purpose of this section is not
 useful. The Panel recommends that OSHA   to change existing relations
 clarify this requirement to indicate     between general contractors
 that the role of the controlling         and their subcontractors, but
 employer is only to provide any          rather to assure that general
 information they possess concerning      contractors provide
 confined spaces.                         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          OSHA recognized that the
 standard also provides guidance to       confined spaces standard may
 employers on the use of certain          overlap with provisions in
 chemicals in the workplace. However,     other part 1926 standards. In
 OSHA does not see any conflict between   the preamble discussion of
 this standard and the draft proposed     this final rule, OSHA
 standard. The Hazard Communication       clarified the relationship
 standard provides general                between this standard and
 precautionary information regarding      other pre-existing
 the use of certain chemicals and         construction standards which
 products; the draft proposed standard    may be applicable in a
 provides more explicit requirements      confined space. In Sec.
 for conditions specific to confined      1926.1201(c) of the final
 and enclosed spaces. Also, many          standard, OSHA explains how
 construction contractors still will      overlapping standards would
 need to follow the general industry      interact with each other, and
 standard [for confined spaces] in some   the obligations of an employer
 types of work, and thus need to train    in such situations. OSHA also
 their workers in using two different     explains in the preamble of
 standards, and when to apply each        the final rule how employers
 standard. The SERs identified other      would evaluate practical
 federal standards that they believe      situations under the
 address the hazards associated with      requirements of the final
 confined and enclosed spaces,            standard when it overlaps with
 including OSHA standards for             another OSHA requirement. In
 Ventilation (Sec.   1926.57) and for     its explanation of the scope
 Gases, Vapors, Fumes, Dusts, and Mists   of the final rule, OSHA also
 (Sec.   1926.55), and EPA and HUD        provided additional guidance
 rules on abatement work. Accordingly,    about the potential overlap
 the Panel recommends that OSHA clarify   with part 1926, subparts J, P,
 the exact relation between the draft     S, and Y. In addition, OSHA
 proposed standard and other standards    made a minor modification to
 affecting work by construction           29 CFR part 1926, subpart V,
 employers in confined or enclosed        to ensure that it provides
 spaces, including the Hazard             clear guidance to employers
 Communication standard, the general      about the interaction of that
 industry standard, the Permissible       standard with the confined
 Exposure Limit standards, the            spaces in construction
 Ventilation standard, the Gases,         standard. OSHA is currently
 Vapors, Fumes, Dusts, and Mists          unaware of any other Federal
 standard, and applicable EPA and HUD     agency standards that overlap
 standards.                               or conflict with the final
                                          OSHA standard.
13. Alternatives to adopting the draft   OSHA considered alternatives to
 proposed standard developed by OSHA      drafting its own confined
 include adopting the draft proposed      space standard for
 standard developed by the Advisory       construction. The Agency
 Committee for Construction Safety and    considered the general
 Health, the industry consensus           industry standard for confined
 standard developed by the American       spaces, but found it to be
 National Standards Institute, or the     unsuitable for the
 existing OSHA general industry           construction industry. OSHA
 standard [for confined spaces].          believes that the general
 Additional alternatives include          industry standard does not
 modifying the OSHA draft proposed        adequately address some
 standard by removing provisions          problematic situations common
 addressing hazardous-enclosed spaces,    on construction sites. These
 removing the requirement to classify     concerns include multiple
 spaces in the least hazardous            subcontractors working within
 category, revising requirements for      one space, and hazards created
 atmospheric monitoring to allow          by a confined space built
 periodic monitoring instead of           around employees. OSHA drafted
 continuous monitoring, and/or reducing   the final standard to be
 or eliminating recordkeeping             similar to the general
 requirements. The Panel recommends       industry standard in terms of
 that OSHA continue to consider these     organization and most of the
 alternatives, and discuss and solicit    requirements. ANSI is
 comment on them in the proposed rule.    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 non-permit
                                          required. Finally, OSHA
                                          reduced employers'
                                          recordkeeping requirements by
                                          minimizing the time necessary
                                          for employers to maintain
                                          documentation. For example, in
                                          Sec.   1926.1205 of the final
                                          standard, an employer will
                                          only have to maintain entry
                                          permits for one year.

[[Page 25510]]

 
14. Most SERs indicated a preference     As stated before, the draft
 for using the general industry           proposed confined-spaces
 standard for construction work, as       standard for construction
 opposed to the draft proposed            addresses some concerns that
 standard. OSHA is concerned that not     are unique to the construction
 all construction employers are as        industry. OSHA believes that
 familiar with the general industry       the reorganization of the
 standard as the SERs are, and that       proposed standard and the
 some employers might benefit from a      elimination of the section on
 standard designed to provide greater     hazardous-enclosed spaces will
 compliance flexibility. The Panel        make the final standard easier
 recommends that OSHA consider the        to read than the general
 alternative of adopting the general      industry standard for confined
 industry standard and, if this           spaces, thereby expediting
 alternative is not adopted, discuss      employer compliance. OSHA
 and solicit comment on this              requested that the public
 alternative in the proposed rule. If     submit comments regarding the
 OSHA does not adopt a standard closer    degree of flexibility granted
 to the general industry standard, the    to employers in classifying
 Panel recommends that OSHA revise its    confined spaces, as well as
 comparative cost analysis of the         other alternatives to the
 general industry rule and the draft      proposed rule in general. In
 proposed standard to take account of     the final standard, OSHA
 SERs' concerns about the increased       adopted a classification
 training, communication, and             system based on identifying
 classification costs associated with     permit-required spaces (i.e.,
 the draft proposed standard. The Panel   permit spaces). This system
 also recommends that OSHA solicit        reflects the classification
 comment on how an alternative standard   system used widely under the
 similar to the general industry          general industry standard.
 standard could be adapted to the         OSHA rejected the alternative
 construction sector. In addition, the    of not issuing a final
 Panel recommends that OSHA analyze and   standard because the record
 solicit comment on the non-regulatory    demonstrates that the existing
 alternative of not issuing a final       standards, even with improved
 standard, relying instead on existing    outreach, would be inadequate
 standards and improved outreach.         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        In the proposed rule, the
 variety of distinctions among confined   Agency reduced the number of
 spaces, and generally believed that      classifications by removing
 the training required by these           the classification for
 provisions negated any advantages that   hazardous-enclosed spaces. In
 might arise from the flexibility of      the proposed rule, OSHA
 different types of confined spaces.      further clarified the four
 The Panel recommends that OSHA examine   remaining categories by
 and solicit comment on alternatives      reorganizing the text of the
 that reduce the number of types of       proposed standard to ensure
 confined spaces, and that OSHA           that all requirements for each
 consider alternatives that would allow   classification type were
 employers the choice of using or         available in one section. OSHA
 ignoring these provisions.               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    As recommended by the Panel,
 for hazardous-enclosed spaces as         OSHA removed the provisions
 highly burdensome. The Panel             for hazardous-enclosed spaces.
 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.
17. Most SERs were concerned that the    As stated previously, Sec.
 provisions for controlling contractors   1926.1203(h), and the note to
 would alter the existing relationship    that section, clarify the
 between contractors and subcontractors   duties of the controlling
 with little gain in reduced risk to      contractor and explain that a
 employees. OSHA notes that the purpose   controlling contractor will
 of this provision was only to ensure     not have to enter a confined
 that contractors share available         space to gather the specified
 information at multi-employer            information for the
 worksites. Some SERs agreed that         subcontractor.
 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.
------------------------------------------------------------------------

    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

[[Page 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 information-exchange 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 permit-required 
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 Sec.  1926.1203(e) if an employer is able to isolate all physical

[[Page 25512]]

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 Sec. Sec.  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 benefit-input parameters to determine their 
effects on the Agency's estimates of annualized costs, benefits, and 
net benefits. In the second set of tests--a so-called ``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.

[[Page 25513]]



                                                             Table IV-22--Sensitivity Tests
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                Percentage
                                                          Change in     Change in annualized     change in
           Variable             OSHA's Best estimate      variable              costs           annualized      Annualized  costs        Net benefit
                                                                                                   costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Cost Parameters
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               OSHA's Best Estimate of Total Annualized Costs                                 $60.3 million.......  $33.3 million.
--------------------------------------------------------------------------------------------------------------------------------------------------------
s,s,s,s,nSupervisor Time to    Average of 12 minutes  Increase by 100   $0.7 million........               1  $61 million.........  $32.6 million.
 Evaluate and Classify          per confined space.    percent.
 Confined Spaces.
--------------------------------------------------------------------------------------------------------------------------------------------------------
s,s,s,nTime for Information    Per project: 8         Increase by 100   $9.3 million........              17  $69.6 million.......  $24 million.
 Exchange on a Multi-employer   minutes of             percent.
 Project.                       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.
Time to Issue Entry Permits    Per permit issued: 10  Increase by 100   $2.3 million........               4  $62.6 million.......  $31 million.
 and Verify Safety of Entries.  minutes of             percent.
                                supervisor time and
                                5 minutes of
                                clerical time.
                               Per entry not
                                requiring a permit:
                                5 minutes of
                                supervisor time and
                                5 minutes of
                                clerical time.
Employee Training............  Per project: 15        Increase by 100   $1.5 million........               3  $61.8 million.......  $31.8 million.
                                minutes of worker      percent.
                                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.
Discount Rate................  7 percent............  Change to 3       -$1 million.........              -2  $59.2 million.......  $34.3 million.
                                                       percent.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Benefit Parameter
--------------------------------------------------------------------------------------------------------------------------------------------------------
                              OSHA's Best Estimate of Total Annualized Benefits                               $93.6 million.......  $33.3 million.
--------------------------------------------------------------------------------------------------------------------------------------------------------
s,s,s,s,nNumber of injuries    150..................  100.............  -$15.6 million......             -17  $78 million.........  $17.7 million.
 per fatality.
--------------------------------------------------------------------------------------------------------------------------------------------------------

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).

[[Page 25514]]

    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 
non-quantifiable, 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/report-workers-compensation-benefits-coverage-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-Stats-Corporation-Source-Book:-U.S.-Total-and-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/a-4.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

[[Page 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 job-made 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 permit-required 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),     If an employer decides that employees it
 and 29 CFR 1926.1212(a).                                           directs will enter a PRCS, the employer must
                                                                    have and implement a written permit-space
                                                                    program at the construction site that
                                                                    complies with Sec.   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
                                                                    Sec.   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.

[[Page 25516]]

 
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),     The host employer and controlling contractor
 and (i).                                                           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)-       The controlling contractor and the entry
 (h)(5)(ii), and (i).                                               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 Sec.   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 Sec.   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 Sec.
                                                                    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 Sec.
                                                                    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 Sec.
                                                                    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
                                                                    Sec.   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 Sec.   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 construction-employment 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.

[[Page 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 State-Plan 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 State-Plan 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

[[Page 25518]]

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 standards-development 
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

0
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.


Sec.  1926.21  [Amended]

0
2. In Sec.  1926.21, paragraph (b)(6) is removed.

Subpart V--Electric Power Transmission and Distribution

0
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.



0
4. Amend Sec.  1926.953 by revising paragraphs (a) and (g) and the note 
at the end of the section to read as follows:


Sec.  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 Sec.  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 permit-space entry requirements contained in 
Sec. Sec.  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 Sec.  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.


0
5. Amend Sec.  1926.968 by adding a note to the definition for 
``Enclosed spaces'' to read as follows:


Sec.  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.

* * * * *

0
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.

[[Page 25519]]

Sec.  1926.1200  [Reserved]


Sec.  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.


Sec.  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 Sec.  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 in-line 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 Sec.  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.


[[Page 25520]]


    (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, Sec.  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 Sec.  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 oxygen-deficient 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 cross-section; 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 Sec.  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

[[Page 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 Sec.  1926.57 (Ventilation).


Sec.  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 Sec.  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 Sec. Sec.  1926.1204 through 1206 and Sec. Sec.  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 Sec. Sec.  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

[[Page 25522]]

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 pre-entry 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 Sec. Sec.  
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.


[[Page 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.


Sec.  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 
Sec. Sec.  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 Sec.  1926.103 (Respiratory 
protection) must be met.

    (5) Lighting equipment that meets the minimum illumination 
requirements in Sec.  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 non-isolated 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 Sec.  1926.1209 can be effectively 
performed for each permit space.

[[Page 25524]]

    (2) Attendants may be stationed at any location outside the permit 
space as long as the duties described in Sec.  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 Sec.  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 Sec.  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 non-entry 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 near-miss 
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 Sec.  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.

Sec.  1926.1205  Permitting process.

    (a) Before entry is authorized, each entry employer must document 
the completion of measures required by Sec.  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 Sec.  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 Sec.  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.


Sec.  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 Sec.  
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

[[Page 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.


Sec.  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 Sec.  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.


Sec.  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 Sec.  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 Sec.  
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.


Sec.  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 Sec.  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 Sec.  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 Sec.  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.


Sec.  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 Sec.  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

[[Page 25526]]

operations remain consistent with terms of the entry permit and that 
acceptable entry conditions are maintained.


Sec.  1926.1211  Rescue and emergency services.

    (a) An employer who designates rescue and emergency services, 
pursuant to Sec.  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, Sec.  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 Sec. Sec.  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.


Sec.  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 Sec.  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.


Sec.  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


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