Confined Spaces in Construction

Vol.
80 Monday,
No. 85 May 4, 2015
Part II
Department of Labor
Occupational Safety and Health Administration
29 CFR Part 1926
Confined Spaces in Construction; Final Rule
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25366 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations
DEPARTMENT OF LABOR document are available at http:// training provision, issued in 1979,
www.regulations.gov. Electronic copies applies to confined space work in
Occupational Safety and Health of this Federal Register document, as construction. Following the
Administration well as news releases and other relevant promulgation of the general industry
documents, are available at OSHA’s rule, OSHA agreed to propose a
29 CFR Part 1926 Web page at http://www.osha.gov. standard for confined spaces in
[Docket ID–OSHA–2007–0026] SUPPLEMENTARY INFORMATION: construction as part of a settlement of a
legal challenge filed by the United
RIN 1218–AB47 Table of Contents
Steelworkers of America. After
I. Executive Summary consulting with the Advisory
Confined Spaces in Construction A. Introduction Committee for Construction Safety and
AGENCY: Occupational Safety and Health B. Need for Regulation
Health (ACCSH) on a draft, and holding
C. Affected Establishments
Administration (OSHA), Labor. D. Benefits, Net Benefits, and Cost several stakeholder meetings in
ACTION: Final rule. Effectiveness locations across the country, OSHA
E. Compliance Costs developed a draft and conducted a
SUMMARY: OSHA is adding a new F. Economic Impacts Small Business Advocacy Review Panel
subpart to provide protections to G. Final Regulatory Flexibility Analysis (SBAR Panel) in 2003. The Agency
employees working in confined spaces II. Background published its proposed rule for confined
in construction. This new subpart A. Record Citations
spaces in construction on November 28,
replaces OSHA’s one training B. History
C. Need for a Rule Regulating Confined 2007 (72 FR 67351). The proposal
requirement for confined space work
Spaces in Construction incorporated feedback from ACCSH, the
with a comprehensive standard that
III. Summary and Explanation of the Final stakeholder meetings, and the SBAR
includes a permit program designed to Standard Panel, and addressed issues unique to
protect employees from exposure to 1926.1201—Scope the construction industry, such as
many hazards associated with work in 1926.1202—Definitions higher employee turnover rates,
confined spaces, including atmospheric 1926.1203—General Requirements
worksites that change frequently, and
and physical hazards. The final rule is 1926.1204—Permit Required Confined
similar in content and organization to Space Program the multi-employer business model that
the general industry confined spaces 1926.1205—Permitting process is common on construction worksites.
standard, but also incorporates several 1926.1206—Entry permit During the SBAR Panel, some small
1926.1207—Training entity representatives expressed a
provisions from the proposed rule to 1926.1208—Duties of Authorized Entrants
address construction-specific hazards, 1926.1209—Duties of Attendants
preference for the general industry rule
accounts for advancements in 1926.1210—Duties of Entry Supervisors and requested that OSHA consider
technology, and improves enforceability 1926.1211—Rescue adopting that rule for the construction
of the requirements. 1926.1212—Employee Participation industry. When the proposed rule was
DATES: The final rule becomes effective 1926.1213—Provision of Documents to the published, OSHA requested comment
on August 3, 2015. Secretary on how the Agency could adapt a
IV. Agency Determinations standard similar to the general industry
ADDRESSES: In accordance with 28 A. Legal Authority
U.S.C. 2112(a), the Agency designates rule for the construction sector.
B. Final Economic Analysis and Regulatory
Ms. Ann Rosenthal, the Associate Flexibility Analysis Commenters indicated that they had
Solicitor of Labor for Occupational 1. Introduction been following the general industry rule
Safety and Health, Office of the Solicitor 2. Need for Regulation for quite some time and suggested
of Labor, Room S4004, U.S. Department 3. Profile of Affected Industries adopting that standard with some
4. Benefits and Net Benefits modifications for the construction
of Labor, 200 Constitution Avenue NW.,
5. Technological Feasibility industry. OSHA considered the unique
Washington, DC 20210, to receive 6. Costs of Compliance
petitions for review of the final rule. challenges faced by the construction
7. Economic Feasibility and Regulatory
FOR FURTHER INFORMATION CONTACT: Flexibility Determination industry as well as the requests by
General information and press 8. Final Regulatory Flexibility Analysis commenters for more consistency
inquiries: Mr. Frank Meilinger, Office of 9. Sensitivity Analysis between the general industry and
Communications, Room N3647, OSHA, 10. References construction standards. The final rule
U.S. Department of Labor, 200 C. Office of Management and Budget reflects the organization, language, and
Review Under the Paperwork Reduction most of the substantive requirements of
Constitution Avenue NW., Washington,
Act of 1995 the general industry rule. Some of the
DC 20210; telephone (202) 693–1999; D. Federalism
email meilinger.francis2@dol.gov. aspects of the construction industry that
E. State-Plan States
Technical information: Ms. Jessica L. F. Unfunded Mandates Reform Act
are not present in general industry work
Douma, Directorate of Construction, G. Consultation and Coordination With are addressed by modifications such as
Room N–3468, OSHA, U.S. Department Indian Tribal Governments information exchange requirements to
of Labor, 200 Constitution Avenue NW., H. Applicability of Existing Consensus ensure that multiple employers have
Washington, DC 20210; telephone (202) Standards shared vital safety information. OSHA
693–2020 or fax (202) 693–1689; email V. Authority and Signature also adjusted the construction rule to
douma.jessica@dol.gov. VI. Amendments to Standards account for advances in technology and
For additional copies of this Federal I. Executive Summary equipment that allow for continuous
Register document, contact: OSHA, monitoring of hazards. Other differences
Office of Publications, U.S. Department A. Introduction between the regulatory text of the
of Labor, Room N3101, 200 Constitution OSHA last issued rules addressing general industry rule and this standard
Avenue NW, Washington, DC, 20210; work in confined spaces in 1993; reflect improvements in clarity of
telephone (202) 693–1888. Electronic however, those provisions applied only language and enforcement
copies of this Federal Register to general industry work. A single considerations that have been addressed
Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations 25367
in interpretations of the general industry utility lines, and other types of projects. An estimated 6 fatalities and 812
rule. Also potentially affected are general injuries occur annually among
contractors, as well as specialty-trade employees involved in construction
B. Need for Regulation
construction contractors and employers work in confined spaces addressed by
Prior to the promulgation of this rule, engaged in some types of residential the provisions of this rulemaking. Based
OSHA had one provision in its construction work. on a review and analysis of the incident
construction standards for a general reports associated with the reported
training requirement when employees D. Benefits, Net Benefits, and Cost injuries and fatalities, OSHA expects
work in confined spaces. This provision Effectiveness full compliance with the final rule to
at 29 CFR 1926.21(b)(6) provided prevent 96 percent of the relevant
OSHA expects the final rule to
limited guidance, instructing employers injuries and fatalities. Thus, OSHA
improve the safety of workers who
to train employees as to the nature of estimates that the final rule will prevent
encounter confined spaces in approximately 5.2 fatalities and 780
the hazards involved, the necessary
precautions to be taken, and in the use construction. The programmatic additional injuries annually. Applying
of protective emergency equipment approach of the final rule includes an average monetary value of $62,000
required. OSHA has determined that provisions for: Identifying confined per prevented injury and a value of $8.7
this final rule, which provides a higher spaces and the hazards they may million per prevented fatality (value of
level of guidance and safety information contain; allowing employers to organize statistical life) results in estimated
to employers engaged in this kind of the work to avoid entry into a monetized benefits of $93.6 million
work, will reduce the average number of potentially hazardous space; removing annually.
fatalities and injuries in confined spaces hazards prior to entry to avoid employee OSHA estimated the net monetized
covered by this standard by 96 percent. exposure; restricting entry through a benefits of the final rule to be about $33
permit system where employers cannot million annually when costs are
C. Affected Establishments remove the hazard; providing annualized at 7 percent ($93.6 million
The final rule affects establishments appropriate testing and equipment in benefits minus $60.3 million in
in several sectors of the construction when entry is required; and arranging costs). Table IV–1 summarizes the costs,
industry, including work involving for rescue services to remove entrants benefits, net benefits, and cost
buildings, highways, bridges, tunnels, from a confined space when necessary. 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 Exchange and Notification ......................................................................... $12.4 $12.2

Written Program, Issue Permits, Verify Safety, Review Procedures ...................................................................... 4.2 4.2
Provide Ventilation and Isolate Hazards ................................................................................................................. 2.8 2.7
Atmospheric Monitoring ........................................................................................................................................... 11.4 11.3
Attendant .................................................................................................................................................................. 3.6 3.6
Rescue Capability .................................................................................................................................................... 8.2 7.6
Training .................................................................................................................................................................... 11.3 11.3
Other Requirements ................................................................................................................................................ 6.4 6.3
Total Annual Costs ........................................................................................................................................... 60.3 59.2
Annual Benefits
Number of Injuries Prevented .............................................................................................................................................................. 780

Number of Fatalities Prevented ........................................................................................................................................................... 5.2
Monetized Benefits .............................................................................................................................................................................. 93.6
Net Annual Monetized Benefits (Benefits Less Costs)
33.3 34.4
Totals may not equal the sum of the components due to rounding.
Source: Office of Regulatory Analysis, OSHA. Details provided in text.
E. Compliance Costs achieve full compliance with existing contract to OSHA. For the final
applicable requirements. economic analysis (FEA), OSHA
The estimated costs of compliance updated data on establishments,
OSHA based the Preliminary
with this rule represent the additional employment, wages, and revenues, and
Economic Analysis and Initial
costs necessary for employers to achieve updated the analyses in the final rule
Regulatory Flexibility Analysis for the
full compliance. They do not include with these new cost inputs. OSHA
proposed rule, in part, on a report
costs for employers that are already in prepared by CONSAD Corp. [2] 1 under estimated the total annualized cost of
compliance with the new requirements compliance with the present rulemaking
imposed by the final rule; nor do they 1 References are available at the end of this to be between about $59.2 million
include costs employers must incur to section of the preamble. (when costs are annualized at 3 percent)
and $60.3 million (when costs are growth for the United States are II. Background
annualized at 7 percent). The final rule’s negligible.
A. Record Citations
requirements for employers to evaluate,
classify, and exchange information G. Final Regulatory Flexibility Analysis References in parentheses are to
account for the largest component of the exhibits or transcripts in the docket for
The Regulatory Flexibility Act, as
total compliance costs, at approximately this rulemaking. Documents from the
amended in 1996 by the Small Business subpart AA rulemaking record are
$12.2 million to $12.4 million (when
Regulatory Enforcement Fairness Act, available under Docket OSHA–2007–
costs are annualized at 3 and 7 percent,
requires the preparation of a Final 0026 on the Federal eRulemaking Portal
respectively). Other compliance costs
associated with the final rule include Regulatory Flexibility Analysis for at http://www.regulations.gov or in the
costs related to atmospheric certain rules promulgated by agencies (5 OSHA Docket Office. The term ‘‘ID’’
monitoring—($11.3 million to $11.4 U.S.C. 601–612). Under the provisions refers to the column labeled ‘‘ID’’ under
million), training ($11.3 million), rescue of the law, each such analysis must Docket No. OSHA–2007–0026 on http://
capability ($7.6 million to $8.2 million), contain: (1) A statement of the need for, www.regulations.gov. This column lists
written programs, permits, and review and objectives of, the rule; (2) a individual records in the docket. This
procedures ($4.2 million), attendants statement of the significant issues raised document will identify each of these
($3.6 million),—and ventilation and by the public comments in response to records only by the last three digits of
hazard isolation ($2.7 million to $2.8 the initial regulatory flexibility analysis, the record, such as ‘‘ID–032’’ for OSHA–
million). a statement of the assessment of the 2007–0026–0032. Identification of
agency of such issues, and a statement records from dockets other than records
F. Economic Impacts in OSHA–2007–0026 will be by their
of any changes made in the final rule as
To assess the economic impacts a result of such comments; (3) a full ID number. In addition, the
associated with compliance with the response to any comments filed by the transcripts for the public hearings
final rule, OSHA developed quantitative OSHA held on July 22–23, 2008 are
Chief Counsel for Advocacy of the Small
estimates of the potential economic identified by the docket number in the
Business Administration, and a detailed
impact of the requirements in this rule record under Docket No. OSHA–2007–
on entities in each affected industry. statement of any change made to the 0026–0210 and –0211. To aid readers in
OSHA compared the estimated costs of proposed rule in the final rule as a locating citations to the transcripts, this
compliance with industry revenues and result of those comments; (4) a document refers to these citations using
profits to provide an assessment of description and an estimate of the the abbreviation ‘‘Tr.’’ and the
potential economic impacts. number of small entities to which the corresponding page numbers, such as
The costs of compliance for the final rule will apply or an explanation of why ID–201, Tr. pp. 10–15.
rule are not large in relation to the no such estimate is available; (5) a
corresponding annual financial flows description of the projected reporting, B. History
associated with the regulated activities. recordkeeping, and other compliance On March 25, 1980, OSHA published
The estimated costs of compliance requirements of the rule, including an an Advanced Notice of Proposed
(when annualized at 7 percent) estimate of the classes of small entities Rulemaking (ANPR) on confined spaces
represent about 0.08 percent (less than that will be subject to the requirement, for the construction industry (45 FR
1 percent) of revenues and 1.6 percent and the type of professional skills 19266). The ANPR posed 31 questions
of profits, on average, across all entities. necessary for preparation of the report concerning confined-space hazards in
One industry, NACIS 23621 Industrial or record; and (6) a description of the the construction industry, and the
Building Construction, showed the steps the agency took to minimize the Agency received 75 comments in
potential for compliance costs to exceed significant economic impact on small response to these questions. However,
10 percent of annual profits (10.5 OSHA took no further action on this
entities consistent with the stated
percent), but the Agency concludes that regulatory initiative at the time.
objectives of applicable statutes, The Agency subsequently published a
the final standard is still feasible for this
industry because it affects less than 2 including a statement of the factual, Notice of Proposed Rulemaking (NPRM)
percent of all firms in that industry policy, and legal reasons for selecting for a general industry confined spaces
sector each year, and OSHA believes the alternative adopted in the final rule, rule on June 5, 1989 (54 FR 24080).
that firms engaged in confined spaces and why the agency rejected each one OSHA issued the general industry
work are larger and more profitable than of the other significant alternatives to confined spaces rule (29 CFR 1910.146)
average. Moreover, OSHA does not the rule considered by the agency which on January 14, 1993 (58 FR 4462).
believe that industries will absorb all or affect the impact on small entities. The general industry standard
most of the final standard costs in lost OSHA analyzed the potential impact requires employers to classify hazardous
profits, as the price elasticity of demand of the final rule on small and very small confined spaces as ‘‘permit-required
in construction is sufficiently inelastic entities, as described further under the confined spaces’’ and to implement
for minor price increases to offset heading ‘‘Final Regulatory Flexibility specific procedures to ensure the safety
costs—here, a price increase of less than Analysis,’’ later in this preamble (see of employees who enter them. It
0.5 percent (or one-half of 1 percent). contains detailed procedures for
Section IV). OSHA concludes that the
OSHA concludes that compliance developing a written confined-space
compliance costs are equivalent to
with the requirements of the final rule program, monitoring atmospheric
approximately 1.64 percent of profits for
is economically feasible in every hazards, isolating physical hazards
affected small entities generally, and through lock out tag out procedures,
affected industry sector.
In addition, based on an analysis of less than approximately 0.10 percent training employees, preventing
the costs and economic impacts (less than 1 percent) of annual revenues unauthorized employees from entering
associated with this rulemaking, OSHA for very small industries, though the these spaces, providing rescue (both non
concludes that the effects of the final inelasticity of demand in construction entry and entry rescue), and
rule on international trade, would allow the costs to be offset by maintaining records. The general
employment, wages, and economic price increases in most industries. industry standard specifies a limited
exception from some of the permit- ACCSH recommended that OSHA use hazardous atmosphere), which small
required confined-space requirements the draft as a proposed confined spaces business entities participating in the
when the only hazard in a confined standard. OSHA determined that the SBREFA review process considered
space is an atmospheric hazard and ACCSH draft proposed standard needed burdensome and unnecessary; OSHA
ventilation equipment will control the revision to make it easier to understand, removed this provision because it
atmospheric hazard at safe levels. It also especially for small employers that do believes that existing construction
provides protection to employees from not employ a separate safety staff. The standards (for example, 29 CFR 1926.55)
non-atmospheric hazards (for example, Agency also determined that the draft adequately address these hazards. The
physical hazards) in confined spaces. proposed standard did not address proposed standard used a confined-
However, the general industry standard adequately certain hazards, such as space classification approach consistent
does not apply to construction hazards encountered in sewer- with the ACCSH recommendations.
employers, and, as such, does not construction work. Consequently, OSHA organized the proposed standard
specify the appropriate level of OSHA determined that it was necessary chronologically to guide the employer
employee protection based on the to develop a new draft proposed from its initial encounter with a
hazards created by construction standard. potential confined space through the
activities performed in confined spaces. In 1998, OSHA completed a new draft steps necessary to ensure adequate
In 1993, as part of the litigation proposed standard, but discovered that protection for employees. In addition, it
activity associated with the newly there were several issues that the addressed the need for coordination and
promulgated general industry standard, Agency needed to resolve before it information exchange at construction
OSHA agreed in a settlement with the could finalize the draft proposed sites, which typically have multiple
United Steel Workers of America to standard. To get feedback from the employers.
issue a proposed rule to extend construction community, OSHA held The Agency recognized that a number
confined-space protection to three stakeholders meetings in October of requirements in the proposed
construction employees. On February of 2000 across the country. The topics standard for confined spaces in
18, 1994, OSHA submitted a draft discussed at the stakeholder meetings construction duplicated, or were similar
proposed standard for confined spaces were: (1) Typical confined spaces to, the provisions of the general industry
in construction to the Advisory encountered in construction; (2) standard for permit-required confined
Committee for Construction Safety and whether the proposed standard should spaces. Nevertheless, OSHA had
Health (ACCSH) for comment. ACCSH require an early-warning system for concerns about whether the general
established a work group on March 22, spaces in which the employer could not industry standard adequately addressed
1994, to address the OSHA draft isolate an engulfment hazard (such as in the unique characteristics of confined
proposed standard and report its some sewer situations); (3) the need for, spaces in construction. The feedback
findings to the full committee. ACCSH and cost of, continuous monitoring for that OSHA received from ACCSH,
adopted the work group report on May atmospheric hazards; (4) how a confined stakeholders, and the SBREFA process
17, 1994 and recommended that OSHA spaces standard for construction could indicated that, compared to general
incorporate it into a rulemaking docket. accommodate the needs of small industry, the construction industry
In this report, ACCSH noted that the businesses; and (5) whether the experiences higher employee turnover
general industry standard did not meet proposed standard should permit an rates because construction employees
the needs of the construction industry. attendant to perform his or her duties often work at multiple worksites
ACCSH found that employers often do for more than one confined space at a performing short-term tasks. Unlike
not identify or classify confined spaces time. most general industry worksites,
encountered or generated at In late 2003, OSHA completed construction worksites are continually
construction worksites prior to the drafting the proposed standard and evolving, with the number and
beginning of a construction project, and convened a panel under the Small characteristics of confined spaces
noted the difficulties faced by Business Regulatory Enforcement changing as work progresses. Also,
employers generally on construction Fairness Act (SBREFA) to solicit multiple contractors and controlling
worksites, where conditions often comments on the proposal from small contractors are more common on
change rapidly and many different business entities. The SBREFA panel construction worksites than general
subcontractors may perform work conducted two conference-call industry worksites. Therefore, a
simultaneously. discussions, which were open to the construction standard for confined
Consequently, ACCSH established a public, in which small entity spaces, even more so than the general
work group to draft a proposed standard representatives expressed their concerns industry standard for confined spaces,
that would meet the unique needs of the about the draft proposed standard; these must emphasize training, continuous
construction industry. The draft representatives also submitted written worksite evaluation, and
proposed standard emphasized comments to the record that covered the communication requirements
identifying different types of confined issues. The SBREFA panel then Decision to abandon the proposed
spaces encountered in construction (for submitted its recommendations to the new classification system and adapt an
example, spaces in which the employer Agency in November 2003. alternative that is more similar to the
isolates all hazards or controls The Agency published a proposed general industry standard.
atmospheric hazards at safe levels, and rule for confined spaces in construction During the SBREFA review process,
spaces that are permit-required spaces), on November 28, 2007 (72 FR 67351). some small entity representatives urged
as well as inter-contractor information The proposed confined spaces standard OSHA to consider adopting the general
exchange and the detailed protections for construction reflected input from industry standard for construction, and
necessary to eliminate or control stakeholder meetings, ACCSH, and the to solicit comment on how the Agency
specific hazards. SBREFA review process. For example, could adapt an alternative standard
As the result of the ACCSH work OSHA removed a provision that similar to the general industry standard
group review, ACCSH submitted a draft addressed working in hazardous to the construction sector. When the
proposed standard for confined spaces enclosed spaces (i.e., spaces designed Agency published the proposed
in construction to OSHA in 1996. for human occupancy but subject to a construction standard, it requested
public comments on how to adapt an industry standard’s broad, performance- must so differ when the record evidence
alternative standard similar to the based requirements, and defined a larger warrants the change. . . . Where the
general industry standard for the number of confined-space change between proposed and final rule
construction industry (72 FR 67352, classifications. is important, the question for the court
67401 (Nov. 28, 2007)). During the Nevertheless, in recognition of the is whether the final rule is a ‘logical
comment period and the public hearings commenter requests for more outgrowth’ of the rulemaking
OSHA held on July 22–23, 2008, OSHA consistency between the two standards, proceeding’’). The resulting final
received many comments and much OSHA is using the organization, standard is a logical outgrowth of the
testimony regarding the issue of using language, and most of the substantive proposal, and the number of comments
an adapted version of the general requirements in the general industry urging an adapted version of the general
industry standard as the basis for the confined spaces standard as the basis for industry standard provides a clear
final rule rather than the new the final confined spaces in indication that the affected members of
classification systems proposed in the construction rule. However, differences the public are not only familiar with the
NPRM. A clear majority of comments in employee and worksite general industry standard, but also
were in favor of finalizing a confined characteristics between the construction viewed the inclusion of part or all of the
spaces in construction standard that industry and general industry, as well as general industry standard’s structure
more closely resembles the general the comments and testimony of the and language as a potential outcome of
industry standard for confined spaces. regulated community indicating the this rulemaking. The confined-space
(See, e.g., ID–032; –047; –075; –088; need for consistency and continuity in issues the Agency addresses in the final
–092; –095; –105; –106; –115; –117; OSHA requirements, prompted OSHA rule are the same as in the proposed
–118; –119; –120; –121; –125; 150; –152; to develop a final rule for confined rule, and the Agency addressed the
–153; 185; –189; –210, Tr. pp. 54–60, spaces in the construction industry that criticisms and suggestions made by
74–76, 174–175, 282–284; –211, Tr. pp. contains important requirements from interested parties in response to the
73, 172, and 238–239.) Several the proposed rule and some additional proposed rule. In short, the combination
commenters proposed adopting the changes. Many of these changes, such as of OSHA’s request for comment on the
general industry standard with some the information exchange requirements, approach that it ultimately adopted in
adaptations for the construction context, are designed to address the heightened the final rule, the explanation of the
though not all of these commenters need, on constantly evolving hazards it sought to address in proposal,
specified, or agreed on, what specific construction worksites for and the comments and testimony
adaptations were appropriate (see, e.g., communication, worksite evaluation, received in response to the proposal
ID–092; –117; –125). The Agency and training for confined spaces in provided the regulated community with
received a number of comments construction. In addition, several adequate notice regarding the outcome
suggesting that many construction regulatory provisions in the general of the rulemaking. Therefore, the
employers were currently following the industry rule differ from the regulatory Agency concludes that there is no basis
general industry confined spaces provisions of this final rule because the for further delaying promulgation of the
standard (see, e.g., ID–075; –085; –088; provisions of this final rule: (1) Address standard to obtain comment on the
–092; –095; –112; –117; –118; –120; construction-specific issues; (2) account approach adopted in this final rule.
–121; –125; –147). for advancements in technology; (3) Many of the comments OSHA
For the reasons discussed in the address concerns raised by the regulated received on the proposal related to
preamble to the proposed rule, and in community through comment and at the specific requirements included in the
light of the comments and testimony the hearing; or (4) reflect improvements in detailed procedures of the proposed
Agency received, OSHA remains language for modern regulatory drafting standard. As a result of finalizing a
convinced that the general industry (‘‘must’’ in place of ‘‘shall’’), clarity and confined spaces in construction
standard does not adequately address enforcement considerations. In most standard that closely resembles the
confined-space hazards as these hazards cases, the preamble that follows this general industry standard, much of this
arise in the construction industry. introductory section explains the detailed language does not appear in
Moreover, the 19 years of experience differences between the provisions of this final rule. In some cases, OSHA
that employers have working with the the final rule and the general industry addressed the substance of the comment
general industry rule, and that OSHA rule. in the discussion of the most relevant
has enforcing the general industry rule, The Agency believes that it provided preamble section in this final rule. In
highlight several areas in which adequate notice of the substantive terms other instances, the issue raised in the
additional clarification in the language of the final rule, as well as an extensive comment became moot as a result of
of the general industry standard could description of the subjects and issues OSHA’s decision not to include the
improve the effectiveness of a new involved. Accordingly, the Agency proposed text in the final rule.
construction standard. Therefore, OSHA fairly apprised interested persons of the Therefore, OSHA is not directly
is not simply incorporating the general content of the rulemaking, and the responding to each of these particular
standard by reference into the comments and hearing testimony comments in the summary and
construction standards. provide ample evidence that interested explanation of the final rule.
OSHA believes that the particular parties to the rulemaking understood OSHA considered, but ultimately
duties and obligations in the general the issues and potential outcomes of the rejected, several other regulatory
industry standard and the proposed rulemaking. See, e.g., Nat’l Mining Ass’n alternatives based on the comments
construction standard are similar, and v. Mine Safety & Health Admin., 512 submitted to the Agency. For example,
that the public’s confusion over the re- F.3d 696, 699 (D.C. Cir. 2008); Miami- some commenters suggested that
organized structure in the proposed rule Dade County v. U.S. E.P.A., 529 F.3d employers should have the option of
is the result of the degree of detail in the 1049, 1059 (11th Cir. 2008); United following either 29 CFR 1910.146 or this
proposed rule, as well as its Steelworkers of America, AFL–CIO–CLC final rule (ID–089, p. 2; –147, p. 4). This
organization. Most notably, compared to v. Marshall, 647 F.2d 1189, 1221 (D.C. suggestion relates to some commenters’
the general industry rule, the proposed Cir. 1980) (‘‘a final rule may properly concern that having separate rules for
rule added specificity to the general differ from a proposed rule and indeed confined spaces in construction and
general industry makes it confusing for A similar comment discussed Virginia’s such spaces, nor did it address the
employers that perform both confined spaces rule, but did not actions of employers outside the spaces
construction and maintenance inside a suggest OSHA adopt that rule (ID–047, engaged in activities that might harm
confined space to comply with the p. 1). Another commenter suggested employees inside the spaces. For
different requirements of each rule OSHA adopt the majority of California’s situations in which none of the
based on the type of the work they are confined spaces rule (ID–077, p. 1). construction standards apply, the
performing (see, e.g., ID–119, p. 3). OSHA notes that the Occupational employer was still required to comply
OSHA developed this standard because Safety and Health Act of 1970 (OSH with the general-duty requirement of the
of the unique hazards of confined-space Act) allows for different regulatory OSH Act to ‘‘furnish to each of [its]
work in construction and, although this schemes to address the hazards of employees employment and a place of
final rule is similar to § 1910.146, there confined-space work provided those employment which are free from
are differences when certain procedures standards are at least as effective as the recognized hazards that are causing or
are necessary to protect employees from Federal OSHA standard. The record are likely to cause death or serious
the unique hazards of construction indicates that, by issuing a final rule physical harm to [its] employees’’ (29
confined-space work. Therefore, an that is similar to § 1910.146, OSHA is U.S.C. 654), but this ‘‘general duty’’ is
employer does not have the option of not drastically changing industry often more difficult for OSHA to enforce
bypassing the procedures that are practice for addressing confined-space and does not provide the same level of
unique to this final rule by complying hazards. (See, e.g., ID–047; –075; –085; guidance and safety information
instead with § 1910.146. Such a policy –088; –092; –095; –112; –117; –118; provided in a standard.
would severely undermine OSHA’s –120; –121; –125; –147; –189.) As noted in the economic analysis
effort to protect employees from the Therefore, OSHA believes that State- section of the preamble to this final rule,
unique hazards present during Plan States that have standards OSHA determined that employees in the
confined-space operations in applicable to construction work in construction industry who perform
construction. confined spaces that are similar to work in confined spaces face a
OSHA recognizes that the differences § 1910.146 will not have to make major significant risk of death or serious
between § 1910.146 and this final rule changes to their existing rules to ensure injury, and that this final rule would
can make it more complicated for that these rules are at least as effective substantially reduce that risk. At
employers to comply with two different as this final rule. When a State-Plan present, OSHA estimates that 20,479
sets of procedures if they perform State’s confined spaces rule is not as establishments annually have
maintenance and construction work at effective as this final rule, OSHA employees entering at least one
the same time in the same confined believes that the record warrants a confined space as defined by this final
space. In order to ease the compliance change in the State-Plan State’s rule so rule. OSHA estimates that, each year, 6
burden on these employers, OSHA will that it will provide construction fatalities and 900 injuries occur among
consider compliance with this final rule employees with the same level of employees working in confined spaces
as compliance with § 1910.146. This protection afforded to them by this final covered by this final rule. OSHA
enforcement policy was suggested by at rule. For a full discussion of State-Plan determined that the final rule, when
least one commenter (ID–211, Tr. p. States, see Section IV.E (‘‘State-Plan implemented properly by employers,
303). States’’) later in this preamble. will reduce the average number of
Another commenter suggested that fatalities and injuries in confined spaces
OSHA issue a directive on confined- C. Need for a Rule Regulating Confined
Spaces in Construction covered by this standard by 96 percent
space work in construction instead of a
(5.2 fatalities prevented annually, and
final rule (ID–100, p. 5). OSHA Before promulgating this final rule,
780 injuries prevented annually). (For
generally issues a directive on a OSHA had one existing provision in its
further explanation of the significant-
particular work practice after the construction standards that included a
risk calculations, see section V.B.
Agency issues a rule, not in lieu of a general training requirement for
(‘‘Final Economic Analysis and
rule; accordingly, the directive provides employers working in confined spaces.
Regulatory Flexibility Analysis’’) of this
guidance as to how the Agency will A broad ‘‘safety and training’’
requirement in 29 CFR 1926.21(b)(6), document.)
enforce a standard. The rulemaking
process, on the other hand, provides the adopted by the Agency in 1979, III. Summary and Explanation of the
public with notice and an opportunity provided limited guidance: Under this Final Standard
to comment on the Agency’s proposed provision, employers were only
required to instruct employees required Explanation of Changes to Subpart V—
action, and the Agency may use the
to enter into confined or enclosed Power Transmission and Distribution
information gathered during this
process to impose substantive duties on spaces as to the nature of the hazards Subpart V of part 1926 governs
employers, such as employers engaged involved, the necessary precautions to construction work involving power
in confined-space construction work. be taken, and in the use of protective transmission, generation, and
The information gathered by the Agency and emergency equipment required. distribution. OSHA recently updated
during the rulemaking process for this Fatality and injury data, OSHA subpart V (79 FR 20316 (April 11, 2014).
final rule supports issuing a final rule enforcement experience, and advice When it did so, OSHA required
for confined-space work in construction. from ACCSH indicate that compliance with the general industry
Therefore, OSHA rejects the alternative § 1926.21(b)(6) did not adequately confined-spaces standard at § 1910.146
approach suggested by the commenter. protect construction employees in in several provisions of subpart V.
A different set of commenters focused confined spaces from atmospheric, OSHA did so because at that time there
on individual states’ confined spaces physical, and other hazards. Even when was no comprehensive confined-spaces
standards. One commenter asserted that § 1926.21(b)(6) applied, it required standard for construction, but the
several State-Plan States have effective employers only to train employees who Agency explained in the subpart V
confined space standards and that this work in confined spaces—it did not preamble that ‘‘the references to the
rule will unnecessarily force those states address how to protect trained general industry standard in final
to change these standards (ID–135, p. 3). employees while they are working in § 1926.953 are included as a placeholder
pending the promulgation of the spaces construction standard to the new sentence in § 1926.1953(a) only
confined spaces in construction reference in place of § 1910.146, but exempts employers from compliance
standard. OSHA intends to change these OSHA intended to add a corresponding with some, but not all, of subpart AA’s
references to refer to the construction note to § 1926.268 when it promulgated requirements. In the ‘‘in lieu of’’
standard when it promulgates that the new construction confined spaces sentence in § 1910.269, OSHA only
standard.’’ (79 FR 20376) OSHA is, standard (see 79 FR 20376–20377). As excuses employers from compliance
therefore, amending subpart V in this part of this rulemaking, OSHA is with § 1910.146(d) through (k) for these
rulemaking to replace references to the therefore adding a note to the definition routine entries, but employers must still
general industry confined spaces of ‘‘enclosed space’’ in § 1926.968 that comply with the requirements in
standard with references to this final corresponds to the note in § 1910.269(x), § 1910.146(c) and (l), including the
construction rule, because OSHA replacing the reference to § 1910.146 requirements to assess the space,
specifically tailored this final rule to with a reference to subpart AA. prevent unauthorized entry,
construction work, making the confined communicate with and coordinate with
Amendments to § 1926.953
spaces in construction rule more the host employer when applicable, and
appropriate than the general industry Prior to this rulemaking, § 1926.953(a) to involve entrants and their
standard for construction work in subpart V, as amended in 2014, representatives in the process. Likewise,
addressed by subpart V. required that entry into an enclosed in § 1926.953(a), the enclosed spaces
space to perform construction work requirements apply in lieu of the permit
Amendments to Definition of ‘‘Enclosed meet the permit-space entry requirements in § 1926.1204 through
Space’’ in § 1926.968 requirements of paragraphs (d) through § 1211, but employers still need to
An ‘‘enclosed space’’ is a term of art (k) of § 1910.146 when the precautions comply with subpart AA’s
under subpart V and the corresponding taken under §§ 1926.953 and 1926.965 corresponding requirements in
general industry standard for electric were insufficient to eliminate hazards in § 1926.1203 to assess the space, prevent
power generation, transmission, and the enclosed space that could endanger unauthorized entry, and coordinate with
distribution (§ 1910.269) describing a the life of an entrant or interfere with and communicate with the controlling
workspace such as a manhole or vault escape from the space. Similarly, contractor, in addition to the
that is designed for periodic employee § 1926.953(g) stated that employees may requirements in § 1211 to involve
entry under normal operating not enter any enclosed space while it entrants and their representatives in the
conditions, and that, under normal contains a hazardous atmosphere, process.
conditions, does not contain a unless the entry conforms to the permit- Finally, in addition to some minor,
hazardous atmosphere, but may contain required confined spaces standard in non-substantive grammatical changes to
a hazardous atmosphere under § 1910.146. OSHA is amending improve the paragraph, OSHA is also
abnormal conditions (§ 1910.269(x) and §§ 1926.953(a) and 1926.953(g) by revising the note to paragraph
§ 1926.968). There is overlap between replacing each reference to § 1910.146 § 1926.953, which appears at the end of
an enclosed space and a ‘‘permit- with a reference to subpart AA so that the section, by replacing its reference to
required confined space’’ (permit space) the appropriate construction standard, § 1910.146 with a reference to new
as defined in the confined spaces rather than a general industry standard, subpart AA. The note clarifies that
standards for general industry will apply. OSHA considers employers who comply
(§ 1910.146) and construction (new OSHA is also adding a sentence to with new subpart AA when entering an
subpart AA): An enclosed space meets § 1926.953(a) to clarify that employers enclosed space as in compliance with
the definition of a permit space—while may comply with the requirements of § 1926.353(a). Some employers may
it is not expected to contain a hazardous § 1926.953 ‘‘in lieu of’’ most of the prefer to comply with new subpart AA
atmosphere, it has the potential to requirements in new subpart AA when rather than § 1926.353(a), and subpart
contain one—but the definition of the entry into the enclosed space is a AA protects employees entering
permit-space is broader than the routine entry for subpart V work and enclosed spaces at least as effectively as
definition of enclosed space. For there is no hazardous atmosphere in the the provisions in § 1926.353.
instance, if a space contains a hazardous space. Without this clarifying sentence,
atmosphere under normal conditions, employers could have been confused Section 1926.1201—Scope
that space is a permit space under about which standard applied. OSHA The scope of new 29 CFR part 1926,
§ 1910.146 or new subpart AA, but it is determined that § 1926.953 provides subpart AA—Confined Spaces in
not an enclosed space under final adequate protection to employees in Construction is set forth in 29 CFR
§ 1910.269 or subpart V. that situation and announced in the 1926.1201. This subpart provides
The note to the definition of subpart V preamble that it intended to minimum safety and health
‘‘enclosed space’’ in § 1910.269(x) states add the sentence when it issued this requirements and procedures to protect
that enclosed spaces expected to contain final rule (see 79 FR 20376). employees who work in confined
a hazardous atmosphere meet the The new ‘‘in lieu of’’ sentence in spaces. It addresses how to protect
definition of permit spaces in § 1926.953(a) corresponds to a similar employees from confined-space hazards.
§ 1910.146, and entry into them must sentence in § 1910.269(e) specifying that The final rule includes requirements for
conform to that standard. Subpart V, employers are not required to comply training, identification and assessment
however, did not have any definition of with § 1910.146(d) through (k) for the of confined spaces, hazard analysis,
‘‘enclosed space’’ until OSHA amended same type of routine entries into entering, working, exiting, and rescue
it in 2014 by adding a definition that enclosed spaces. OSHA has used for confined spaces containing a variety
matched the general industry definition slightly different wording from the of different hazards.
in § 1910.269(x) except that it did not language in § 1910.269 to emphasize The proposed rule contained an
include the note. OSHA explained in that ‘‘in lieu of’’ language is only ‘‘Introduction’’ section that provided a
the preamble to the subpart V applicable where the entry is routine general overview of the standard and
amendments that it did not include the and the space does not contain hazards stated that the proposed standard would
note at that time because there was no that could cause death or impede exit. cover ‘‘working within or near a
comprehensive corresponding confined As with the general industry standard, confined space that is subject to a
hazard’’ (see proposed § 1926.1201(a)). which is similar to the language of the typically have sufficient natural
OSHA removed the ‘‘Introduction’’ proposed rule except that it avoids the ventilation to prevent a hazardous
section to make this final rule similar to reference to ‘‘their job site.’’ The atmosphere from forming. The final
§ 1910.146, and to avoid confusion language in final § 1926.1201(a) phase is typically conducted without
caused by potential overlap with the incorporates a bright-line test (whether any employees inside the tank (ID–210,
‘‘Scope’’ provisions. Section 1926.1201 or not the worksite has a confined Tr. p. 5).
in the final rule is the scope section. space) to underscore two important Whether a confined space exists is a
Paragraph (a). Although many points in the final rule that also are true separate analysis from whether a hazard
commenters urged OSHA to conform for the general industry standard and exists, unless the hazard prevents
this final rule to the general industry the proposed rule: First, all employers unrestricted egress from the space. A
standard as much as possible, the scope engaged in construction have a duty steel tank is a confined space at any
section for confined spaces in general under the final standard to ensure that stage of construction when it has
industry at § 1910.146(a) expressly their employees do not enter a confined limited or restricted means for entry and
excludes construction work. Therefore, space except in accordance with the exit (see the definition of a confined
it is impractical for OSHA to change the requirements of the standard, and the space in § 1926.1202, which is
language in final rule § 1926.1201 to presence of a confined space on the discussed later in this preamble).
mirror § 1910.146(a). Instead, OSHA worksite triggers this duty rather than However, OSHA recognizes that a
structured the scope section in final rule the type of work the employer is significant portion of steel-tank
§ 1926.1201 in a manner that draws performing. Second, there are critical construction activity may not result in
from the language in the scope sections components of this standard, such as work inside a confined space if
of the general industry standard and the information sharing and coordination of contractors generally do not assemble
proposed rule. As with the scope of the work, that apply to certain employers the tank sections in a manner that
general industry standard, which states that, regardless of whether their would place an employee inside a space
that it protects employees from the employees are authorized to enter a with limited egress. Even when
hazards of entry in permit-required confined space, have information construction of the tank results in such
confined spaces (§ 1910.146(a)), OSHA necessary for the protection of a space, the space may not contain a
phrased final § 1926.1201(a) in terms of employees working inside confined hazard that would render it a permit-
the employees protected by the final spaces, or are engaged in activities that required confined space. If the space is
standard. In contrast, the scope of the could, either alone or in conjunction not a permit-required confined space,
proposed rule focused on employers with activities inside the confined then the employer’s duties are very
(see proposed § 1926.1202(a)). While the space, endanger the employees working limited. In such spaces, the employer’s
final standard necessarily imposes the inside a confined space. Final responsibility under this standard
duties exclusively on employers, OSHA § 1926.1201(a) makes it clear that the would be limited to verifying what the
concluded that phrasing the scope in focus of the final standard is on the type commenter asserts is true: There is no
terms of employers ‘‘who have confined of work performed, and whether that atmospheric hazard or other hazard.
spaces at their job site’’ was potentially work could produce, and expose Nevertheless, the commenter
more problematic than the general employees to, confined space hazards. acknowledged that welding activities in
industry approach because the regulated Although final § 1926.1201(a) differs some steel tank construction,
community could misinterpret the slightly from proposed § 1926.1202(a), particularly for relatively small tanks,
proposed language as requiring some this difference does not affect the scope could produce the types of hazardous
analysis of the extent to which the of the final rule; it merely makes the atmospheres this standard is intended to
employer exercised control over a scope more precise than the scope of the address (ID–210, Tr. pp. 228–229).
particular part of a construction site. proposed rule. This change also is Thus, OSHA is not categorically
A number of commenters expressed consistent with the proposed excluding steel tanks from coverage
confusion about the description of the ‘‘Introduction’’ section in proposed under this standard and continues to
standard included in the proposed § 1926.1201(a). include steel tanks in the list of
introduction, which appeared to Final § 1926.1201(a) includes a note potential confined spaces to alert
function as an additional statement with a non-exhaustive list of potential employers that the process of steel-tank
about the scope of the rule (see, e.g., ID– confined spaces that commonly occur construction could place employees in a
032.0; –100.1; –105.1; –114.1; –119.1; on a construction worksite. This list space that meets the definition of a
–120.1; –125.1; –135.0.) In particular, provides examples for employers who permit-required confined space.
many commenters asserted that the may be unfamiliar with confined spaces Another commenter asserted that the
reference to work ‘‘within or near a in construction. The note to final note did not include wind turbines (ID–
confined space,’’ as used in the § 1926.1201(a) is identical to the note to 210, Tr. p. 154). This commenter
proposed description of the standard, proposed § 1926.1202(a). misunderstood the reference to
was too vague, and requested that One commenter asserted that OSHA ‘‘turbines’’ in the note in the proposed
OSHA clarify its meaning. (See, e.g., ID– should exclude steel tanks, which and final rules. The reference to
031, p. 4; –061, p. 7; –095, p. 1; –101, OSHA included in the list of examples ‘‘turbines’’ is general, and applies to all
p. 2; p. 1; –106, p. 1; –117, p. 7; –120, of confined spaces in construction in turbines that meet the definition of a
p. 2; –121, p. 8; –124, p. 4; p.–125, p. the proposed rule, from the new confined space.
5.) In response, OSHA did not include standard when the tanks are under It is important to note that only the
the phrase ‘‘within or near a confined construction because this activity does presence of a hazard inside a confined
space’’ in the scope section in this final not produce an atmospheric hazard (ID– space will trigger the majority of
rule. Instead, in final § 1926.1201(a), 138, p. 2; –214.1, p. 4; –210, Tr. p. 217). procedures required by this final rule.
OSHA describes the scope in more In particular, the commenter asserted One commenter asserted that limited
definite terms by stating that the new that contractors typically do not close egress is a continual hazard to every
standard protects employees engaged in entirely steel tanks under construction employee in a confined space,
construction activities at a worksite until the final phase of construction and regardless of whether any other hazards
with one or more confined spaces, that, prior to the final phase, the tanks exist (ID–060, p. 3). Therefore, the
commenter argued that the permit standard at 29 CFR part 1915, subpart § 1926.1201(b)(1) and (b)(2), OSHA
requirements of this final rule, B—Confined and Enclosed Spaces and exempted construction activities
including the requirement to have a Other Dangerous Atmospheres in covered by subparts P and S. In its
rescue service available, should apply to Shipyard Employment would cover explanation in the proposed rule, the
all confined spaces, even those spaces such work. Agency noted that subparts P and S
in which another hazard does not exist. Paragraph (b) Exceptions. This generally provide adequate protections
This approach would apparently treat paragraph explicitly excludes against hazards in excavations and
all confined spaces as permit spaces, construction work regulated by 29 CFR underground work (72 FR 67356 (Nov.
which would be a radical departure part 1926, subpart Y—Diving, 28, 2007)). In light of the additional
from OSHA’s longstanding treatment of construction work regulated by 29 CFR hazards associated with sewers as
confined spaces in the general industry. part 1926, subpart P—Excavation, and continuous systems that often have
OSHA does not agree that such a construction work regulated by 29 CFR hazardous atmospheres and engulfment
departure, or the additional costs that part 1926, subpart S—Underground hazards, the Agency proposed limiting
employers would incur because of such Construction, Caissons, Cofferdams and
the Excavations, and Underground
departure, are warranted in the absence Compressed Air from the scope of this
Construction exemptions to ‘‘non-
of employee exposure to some hazard final rule. Accordingly, this provision
sewer’’ work, which would have the
inside the confined space. Limited exempts employers operating under one
of the three listed exemptions from effect of applying this final standard, in
egress in a confined space is a safety
complying with this final rule for work addition to subpart P or subpart S,
concern only when an employee cannot
within a confined space, so long as that whenever an employer performed
readily exit a confined space to avoid
being exposed to a hazard within the work falls within the scope of one of the excavation or trenching construction
space. Limited egress, by itself, is listed subparts. work related to a sewer system. One
unlikely to injure or kill an employee. The Agency exempted each type of commenter urged OSHA to limit the
If limited egress is the only safety work covered by the listed subparts exemption further, characterizing
concern, then OSHA concludes that it is from the requirements of this standard subpart P as ‘‘insufficient for addressing
not reasonable to require employers to because OSHA specifically tailored the potential worker exposures to hazardous
comply with the provisions of this final existing requirements in these subparts atmospheres,’’ and asserting that this
rule that pertain to permit spaces. In to protect employees from the hazards final rule should apply to excavations
such a circumstance, employers already associated with confined spaces. In where a hazardous atmosphere exists
must follow existing construction addition, OSHA believes that because the confined spaces standard
standards that apply to work in an overlapping standards covering these would provide more comprehensive
enclosed space (for example, activities could be unnecessarily protection for employees than the
§ 1926.353—Ventilation and protection burdensome to employers, or cause excavation standard (ID–105, p. 5). The
in welding, cutting, and heating at, and some confusion about the appropriate commenter did not, however, provide
§ 1926.55—Gases, vapors, fumes, dusts, procedures to use. any basis for this assessment. Two
and mists). Under § 1926.1201(b)(3), this confined commenters emphasized the
Another commenter noted that the spaces standard does not apply to significance of the hazards posed by
shipyard employment standard at 29 construction activities covered by 29 excavation, and urged OSHA to protect
CFR part 1915 includes confined spaces CFR part 1926, subpart Y, which employees from those hazards; however,
requirements and was unsure whether encompasses diving and related support they did not discuss subpart P—
this new construction standard will operations conducted in connection Excavations and did not provide a clear
apply to confined space construction with all types of work and rationale for why those standards do not
work performed in a shipyard (ID–028, employments, including construction provide adequate protection for
p. 1). It will. OSHA focuses on the type (29 CFR 1926.701, referencing 29 CFR employees working in excavations (ID–
of work activity, not necessarily the 1910.401). As defined in subpart Y, a 032, p. 4; –034, p. 1).
location of the work activity, in ‘‘diver’’ is an employee working in
water using underwater apparatus A different commenter asserted that
determining whether this confined
which supplies compressed breathing OSHA should apply the confined spaces
spaces in construction standard or the
gas at the ambient pressure (§ 1926.701, standard to hazards in excavation work
shipyard employment standard, part
referencing § 1910.402). The Agency not covered by the excavation
1915, applies. See, e.g., Feb. 9, 2004,
letter to Jack Swarthout.2 The shipyard notes that, if a diver engages in requirements (ID–025, p. 2). In other
employment standards apply to ship construction activity in an area that words, OSHA should exempt excavation
repairing, shipbuilding, ship breaking, meets the definition of a confined space work unless there is a hazard present
and related employment. This confined under this final rule, and is not working not addressed by subpart P—
spaces in construction standard covers in water or removes his/her underwater Excavations, but addressed by this
confined space work in shipyards to the breathing apparatus, then, in most cases, confined spaces standard, in which case
extent that it is construction work and the activity is outside the scope of the confined-space requirements
is not ship repairing, shipbuilding, ship subpart Y because the employee is no applicable to addressing that specific
breaking, or related employment. An longer a ‘‘diver’’; in such a case, the hazard would apply. The commenter
example in which this confined spaces requirements of this confined spaces did not provide an example of a hazard
in construction standard applies is the standard apply instead. that could be present in excavations but
The other exemptions set forth in not addressed by subpart P. Also, OSHA
construction of a building on the

grounds of a shipyard. Non-construction final § 1926.1201(b) are identical to the believes that the approach advocated by
work performed in a shipyard is not proposed exemptions except that OSHA the commenter would lead to confusion,
subject to this final rule; either removed the ‘‘non-sewer’’ limitation for and may not promote safety. OSHA
§ 1910.146 or the shipyard employment the exemption that applies to 29 CFR designed the confined spaces standard
part 1926, subpart P—Excavations and to work as a comprehensive system, not
2 All of the letters and memoranda included in 29 CFR part 1926, subpart S— through piecemeal application.
this preamble are available at www.osha.gov. Underground Construction. Under Therefore, OSHA concludes that it is
not appropriate to limit the exemption including the difficulties in isolating that employees are removed from the
as requested by the commenter. hazards in a contiguous system, and the excavation.
Another commenter asserted that the extremely hazardous atmospheres that Based on the record, OSHA concludes
excavation standards in subpart P do can develop in sewers and quickly that subparts P and S are also sufficient
not provide protection against hazards cause fatalities. These dangers, however, to address the hazards associated with
associated with applying waterproofing primarily involve existing sewer excavation work around sewers and the
products on building foundations below structures, rather than construction of construction of new sewers, while the
grade level (ID–106). OSHA disagrees new sewer systems; new systems would confined spaces standard will address
with this commenter. Even assuming not necessarily present such hazards the work inside the sewer pipes where
that the particular waterproofing until connected to an existing sewer the atmospheric and physical hazards
product used would constitute an system. Under this final rule, the are greatest.
atmospheric hazard, 29 CFR 1926.651(g) limitations on the scope of subparts P Clarification of the Scope of Subparts P
requires an employer to test for and S will ensure that the confined- and S
atmospheric hazards and to take
space requirements apply to most OSHA does not intend for this final
adequate precautions to protect
construction work within existing sewer standard to overlap with 29 CFR part
employees accordingly.
Most of the commenters who structures, as explained in the following 1926, subpart P or 29 CFR part 1926,
addressed the issue of the potential discussion of the interaction between subpart S. Each of these standards
overlap between this final standard and this confined spaces standard and contains specific provisions addressing
the excavation and underground subparts P and S. In the context of sewer many of the same hazards that could
construction requirements in subparts P work, the principal hazards associated arise in the same space. The Agency is,
and S, respectively, requested that with the excavation work around the therefore, taking this opportunity to
OSHA expand the exemption to exclude sewer lines are likely to be atmospheric clarify the scope of subparts P and S
all work subject to those standards from hazards that arise from the soil relative to the scope of this final
the scope of the final rule, regardless of surrounding an existing sewer pipe confined spaces standard, thereby
whether the excavation or underground (from leaching or other sources), as well simplifying the regulatory scheme for
work connects to a sewer, because other as potential hazards associated with the employers working in these spaces.
OSHA standards, primarily subpart P, release of hazardous substances from Subpart P applies to ‘‘all open
adequately cover such work (ID–060, p. the sewer pipe. These hazards are excavations made in the earth’s
1; –108, p. 2; –117, p. 6; –124, p. 3; similar to the hazards encountered surface,’’ including trenches
–140, p. 6; –143, p. 1). One of these during excavation and underground (§ 1926.650(a)). For example, the work
commenters noted that subpart P’s work near landfills and water mains that of digging trenches, shoring up the
requirements ‘‘include testing the OSHA exempted from coverage in the trenches, and placing a sewer pipe or
trench/excavation(s) before workers proposed rule because OSHA regarded other materials into the trenches are
enter them when a hazardous the protections of subparts P and S as subject to subpart P. When an employer
atmosphere exists or could reasonably sufficient (see 72 FR 67356). is excavating a trench to install a new
be expected to exist (e.g. excavations storm drain, subpart P applies to all
OSHA considered the common excavation and trenching activities. The
near landfills or in areas where scenario in which an employer digs
hazardous substances may be stored) final confined spaces standard applies,
down to an existing sewer line, then however, to non-excavation work within
and providing proper respiratory excavates a new trench in which it lays
protection or ventilation to prevent a confined space located in an
new sewer pipe and connects it to an excavation, as this work would expose
exposure to harmful levels of
existing sewer line. During the ‘‘tie in’’ employees to additional hazards besides
atmospheric contaminants and to assure
process of connecting the new sewer excavation-related hazards. For
acceptable atmospheric conditions,’’
pipe to the existing sewer line, example, this final standard covers
and also include appropriate rescue
employees could potentially be exposed entry into a prefabricated storm drain,
provisions (ID–117, pp. 6 and 7).
Furthermore, several of the commenters to atmospheric hazards and physical other pipe, or manhole even if located
asserted that applying both this final hazards emanating from the existing at the bottom of an open excavation.
rule and the excavation standards to sewer line. While any entry into the Subpart S applies to the construction
work inside all excavations would result existing sewer line, including placing of underground tunnels, shafts,
in a confusing and disjointed regulatory any part of the body inside existing line chambers, and passageways and cut-
scheme that could reduce employee (see definition of ‘‘entry’’ in and-cover excavations which are both
safety (ID–060, p. 1; –108, p. 2; –117, p. § 1926.1202), would be governed by the physically connected to ongoing
6; –140, p. 6). OSHA agrees with these confined spaces standard, OSHA does underground construction operations
comments and, therefore, the Agency not believe that hazards from the within the scope of the subpart, and
excluded all excavation work from the existing sewer line should subject the covered in such a manner as to create
scope of the final rule (see entire excavation project to the confined conditions characteristic of
§ 1926.1201(b)(1)). spaces standard. Employers already underground construction
Although the exemption in the final have a duty under subpart P to address (§ 1926.800(a)(1)). For subpart S to
rule may be broader than the proposed the atmospheric and physical hazards in apply, ‘‘the tunnel or other underground
exemption because the final rule does the excavation, and employers must structure must be under ‘construction.’ ’’
not cover underground sewer work and anticipate and address the hazards that See October 1, 2010, letter #20061017–
sewer excavation work, the expanded might come from the existing sewer 7300. For example, the construction of
exemption is still consistent with line. Employers must use extreme an underground structure by boring a
OSHA’s intent in the proposed rule. In caution in unsealing the existing sewer tunnel through soil and providing the
proposing to apply the confined spaces line. Before opening the existing line, concrete or metal supports necessary to
standard to all sewer work, the Agency employers must, whenever possible, preserve the opening is subject to
emphasized the extraordinary dangers isolate the existing line to be opened subpart S, as are structural
associated with sewer systems, from the rest of the sewer and ensure modifications such as upgrading a
tunnel wall to construct a new structure could potentially cause confusion and areas are inherently free of the
following a collapse.3 OSHA developed extra burdens by forcing employers to identified hazards, and OSHA does not
subpart S to protect employees from the switch back and forth between different agree that these spaces are always
hazards associated with the standards during the same general inherently free from such hazards.
construction of underground structures, tunnel-construction project, OSHA will Hazardous gases or other substances
and OSHA concludes that the subpart S treat non-structural work performed in may occur in almost any confined
standard provides more appropriate conjunction with initial construction of space. For example, one employee may
protections in these situations than this an underground space as covered by store or apply an epoxy or other
final confined spaces standard. subpart S. For example, if employees chemical in a crawl space, which could
In the context of underground work, install a cable as part of the initial sewer expose that employee or a subsequent
this final standard applies mainly to tunnel-construction project, subpart S entrant to a hazardous atmosphere. A
construction activities inside an existing would cover both the employees different commenter noted that surface
underground confined space, as engaged in tunnel construction and coatings such as paints and epoxies are
opposed to the initial construction of those engaged in cable installation. seemingly stable, and, while generally
that underground space.4 Examples of Otherwise, the result would be different undetectable through air monitoring
activities covered by this confined employees working on the same once applied and dried, could result in
spaces standard include: installing a construction project in the same space, significant safety and health hazards to
structure within an existing tunnel, but under different standards with employees who are welding or involved
working inside a large pipe or vault significantly different requirements. in other hot work in a confined space
located within an existing sewer tunnel, One commenter representing (ID–213.1, pp. 6 and 7).
laying a new cable inside an existing homebuilders asserted that house Moreover, hazardous atmospheres
sewer tunnel, upgrading a grate in an foundations and basement excavations and engulfment hazards are only two
existing sewer system, installing a new become ‘‘trenches’’ when contractors types of hazards that could cause death
lining in a sewer pipe, adding tile or construct formwork, foundations, or or serious injury to employees in a
grout or other sealant to an existing walls, and, therefore, subpart P, rather confined space. The commenter
concrete tunnel, or attaching equipment than the final confined spaces standard, requesting the exemption did not
to the walls of an existing tunnel.5 should cover these work areas (ID–117, provide any indication that the spaces
OSHA recognizes that, in large pp. 6 and 7). According to the would be free of physical hazards that
underground construction projects, the commenter, OSHA should not consider could trap, kill, or seriously injure the
distinction between an existing portion this type of work area a confined space employees. In fact, the final economic
of a tunnel and the construction of a because it is subject to natural analysis for this rule cites several
new tunnel might not be clear when the ventilation. Whether a work area is fatalities that resulted from exposure to
same employees are working to subject to natural ventilation is not physical hazards (generally electrical) in
construct a tunnel, or employees add dispositive in determining whether the crawlspaces under homes. Therefore, a
equipment or structures to tunnel walls area meets the definition of a confined categorical exemption for these types of
at the same time they are digging the space in final § 1926.1202. However, if spaces is inappropriate, and would be
tunnel. To avoid requirements that the work is ‘‘excavation’’ work or inconsistent with the purpose of the
‘‘trench’’ work under subpart P, then standard.
3 OSHA previously determined that the
this final rule would not apply. OSHA However, while a categorical
underground construction requirements in subpart exemption is not appropriate, OSHA
S also apply to tunnels placed underwater. See agrees that subpart P, and not this
anticipates that, in new construction,
August 8, 2002, memorandum to K. Frank Gravitt. confined spaces standard, would apply
This new confined spaces standard does not affect employers may be able to organize work
to the construction of most house
that previous determination. However, this practices to avoid placing workers in
confined spaces standard does cover construction foundations in an excavated area until
areas that meet the definition of a
work that occurs inside an underwater tunnel the contractor backfills the area adjacent
confined space (for example, complete
following the initial construction of that tunnel. to the foundation or otherwise covers
4 Note that the distinctions discussed here are work in what will eventually become a
the foundation or the other areas.
solely for the purposes of determining which crawl space before constructing the
However, depending on the particular
construction standard applies. This discussion does overhead portion of the crawl space,
not impact OSHA’s analysis of whether an activity circumstances at the worksite, once the
apply insulation to an attic floor before
constitutes construction work as opposed to backfill or other covering occurs, the
maintenance work. the underlying ceiling below it is
area inside the foundation space could
5 OSHA notes that in a 1991 memorandum the installed, complete basement work
be a confined space subject to this final
Agency applied subpart S to the ‘‘rehabilitation’’ of before the overhead structure is
a sewer tunnel originally completed in 1932. rule if it meets all of the criteria in the
installed or after stairways are in place).
January 21, 1991, memorandum to Michael definition of a confined space in
Furthermore, if the commenter is correct
Connors. OSHA issued the memorandum before it § 1926.1201.
issued either this standard or the general industry that the majority of the spaces it
standard for confined spaces, and, thus, before it Other Requests for Exemptions identified do not contain a hazardous
had reason to consider potential overlap between a atmosphere or other hazards, then the
confined spaces standard and other construction 1. Home Construction
standards, or could point to any other employee
employer would have only a limited
protections. Depending on the extent of the
One commenter requested that OSHA duty under this standard because a
‘‘rehabilitation’’ and the activities involved, the exempt the following areas from permit program would not be necessary
new confined spaces standard may apply instead to coverage under this standard: attics, if the spaces do not contain such
such projects in the future. For example, subpart S crawl spaces, basements, cabinets, and hazards. Accordingly, employers would
would cover the ‘‘rehabilitation’’ of an existing

tunnel that involves expansion of the existing sewer
‘‘similar areas in home building’’ (ID– only need to identify the spaces and
or an improvement of a collapsed wall. However, 117, pp. 6 and 7). The commenter’s ensure that the confined spaces remain
this final confined spaces standard would cover rationale for these exemptions was that free of hazards.
‘‘rehabilitation’’ that consists of adding sealant to these spaces ‘‘do not contain hazardous
the existing tunnel structure, or attaching
atmospheres or engulfment hazards’’ 2. 29 CFR Part 1926, Subpart V Work
equipment or new materials to the tunnel walls. To
the extent that the 1991 memorandum requires a (id). The commenter did not provide Commenters representing the electric
different result, this final standard supersedes it. any basis for the assertion that these utilities asserted that OSHA should not
require employers engaged in 29 CFR OSHA explained that the enclosed address hazards that may arise when
part 1926, subpart V work to follow two spaces provisions in § 1926.953(a) are employees are working in or near a
different confined spaces standards (ID– only intended to address routine entries confined space. No requirement in this
112, pp. 3 and 4; –134, p. 2; –210, Tr. with a limited type of hazard, while the confined spaces final rule supplants or
pp. 106–108, 142). These commenters general industry confined spaces diminishes employer duties imposed by
stated that general industry electric- standard (which the Agency noted it any other OSHA standard, and the
utility work practices are similar to intended replace with the construction Agency included § 1926.1201(c) in this
construction electric-utility work version in this final rule) applies to all final standard to emphasize that point.
practices. OSHA addresses the other entries into enclosed spaces. The When both the scope of final
commenters’ preference to have confined space standard ‘‘ensures that § 1926.1201 and the provisions in
identical confined-space provisions employees working in enclosed spaces another OSHA construction standard
applicable to both general industry and will be afforded protection in related to confined-space hazards cover
construction earlier in this preamble circumstances in which the Subpart V an activity, OSHA requires employers to
where the Agency explains why it chose provisions are insufficiently protective’’ comply with both provisions
to adopt a modified version of the (79 FR 20376). If OSHA exempts (§ 1926.1201(c)). For example, while 29
general industry standard as the employers engaged in subpart V work CFR part 1926, subpart D—
confined spaces in construction final from the confined spaces standard, it Occupational Health and Environmental
rule. As discussed there, OSHA will would be creating a regulatory gap that Controls contains requirements for
also treat compliance with this new rule is not present in the general industry ventilation when working in potentially
as compliance with the general industry context. hazardous atmospheric conditions, it
confined spaces rule when one or more The commenter asserted that electric does not address other equipment or
employers are engaged in both general utility work in ‘‘power generation workplace conditions covered by this
industry work and construction work at facilities and other electric utility final rule. Therefore, where a potential
the same time in the same space. installations’’ is sufficiently similar that hazardous atmosphere exists and this
To the extent that the commenters OSHA has previously acknowledged it final confined spaces rule requires
were requesting that OSHA exempt all should be regulated in the same manner, ventilation to control that hazard, the
subpart V work from all of the new regardless of whether the employer is employer must ventilate in accordance
confined-space requirements in final engaged in construction or general with § 1926.57. However, the remaining
subpart AA, OSHA declines to do so. industry activity (ID–112.1, p. 4–5). To provisions of this confined spaces rule
First, the general industry standard the extent that this commenter is will still apply: for example, if the
includes no such broad exemption, and requesting greater consistency between situation requires rescue, the employer
the record does not indicate why the construction rule and the general must provide rescue in accordance with
electric-utility industry work in industry rule, OSHA has provided that this final rule.
confined spaces is less hazardous or in this final rule. To the extent that this In the preamble to the proposal,
otherwise less suitable for coverage by commenter is requesting an exemption OSHA also discussed the overlap of the
a confined spaces standard than the from the construction standard so that it confined-spaces standard with its
work of any other industry. The general could comply instead with the general construction welding standard in
industry electric power generation, industry standard, OSHA disagrees subpart J of 29 CFR part 1926. The
transmission, and distribution rule, because such an approach would result Agency explained that both standards
§ 1910.269, does not exempt that in a regulatory gap. Section 1910.146 is would apply, noting for example that
industry from the general industry a general industry standard that, by its subpart J sets criteria for the use of a
confined-space requirements at own terms, could not apply to lifeline system in the confined space,
§ 1910.146: to the contrary, the construction activities beyond the scope but does not set criteria for the use of
‘‘enclosed spaces’’ provision in of the previous § 1926.953 rescue services or provide the same
§ 1910.269(e) expressly requires incorporation, but that incorporation of level of procedures and controls for
employers to comply with the § 1910.146 was limited: it only applied permit-required confined spaces (72 FR
requirements in § 1910.146 when the to routine entries into enclosed spaces. 67356 (Nov. 28, 2007)). OSHA designed
enclosed-space entry will not be routine Not all enclosed spaces are permit- the welding standard to protect
in nature or the space contains a required confined spaces and not all employees solely from the hazards of
hazardous atmosphere that cannot be entries are routine. Further, while in welding, which include metal fume,
controlled through the steps specified in general industry, ‘‘routine’’ entries for gases, and smoke hazards associated
§ 1910.269(e). maintenance work covers a relatively with the welding process, physical
As explained earlier in this preamble, broad range of activities, in the context hazards from the welding device or
OSHA anticipated in its recent of construction work a ‘‘routine’’ entry contact with the hot welding surface,
amendments to the corresponding would be much narrower. In practice, a potential explosion of the gas tanks, and
construction rule, 29 CFR part 1926, complete exemption from the new hazards from working with specific
subpart V—Electric Power Generation, construction rule for confined spaces materials. The confined-spaces
Transmission, and Distribution; would leave many subpart V workers standard, however, addresses a wider
Electrical Protective Equipment, that the completely unprotected from the range of hazards than the welding
confined spaces in construction hazards in many confined spaces. standard, and OSHA considers the
standard would provide the parallel Paragraph (c)—Other Standards. This confined-spaces standard more detailed
integral protections to employers final rule replaces the confined spaces
and comprehensive than the welding

engaged in construction work that training requirement previously
standard in its protection of employees
involves conducting non-routine entries specified in § 1926.21(b), but does not
from those other hazards for purposes of
into enclosed spaces, or where the replace any other construction
29 CFR 1910.5(c).6 Although the
enclosed spaces contain hazards that are standards. Rather, OSHA developed this
not controlled by the enclosed spaces final rule to work in conjunction with 6 The OSHA regulation addressing the overlap of
requirement (see § 1926.953(a) and its other construction standards to provide different standards is in 29 CFR 1910.5. Paragraph
explanation at 79 FR 20375–20376).). additional protections needed to Continued
welding standard has a section designed as the requirement to make Safety Data exposing employers under OSHA’s
to address the hazards of welding in a Sheets available to the medical facility multi-employer citation policy.
confined space, the Agency is applying treating any entrant exposed to Second, OSHA is concerned that the
the provisions of the confined-spaces hazardous substance (§ 1926.1211(d)), regulated community will view the
standard to all other hazards associated and the employee-participation inclusion of such a statement in this
with confined-spaces work to the extent requirements in § 1926.1212. standard as implying that standards
these provisions of the confined-spaces Subpart D—Occupational Health and without the same statement preempt
standard do not conflict with employee Environmental Controls, at other potentially applicable standards or
protections in subpart J. Therefore, as § 1926.64(f)(4) and (j), discussed above, policies. OSHA did not intend such an
OSHA explained in the proposal, the and in subpart V—Power Distribution implication, and it does not have the
rescue service and entry procedures and Transmission, at § 1926.950(a), time or resources to revise all of its
must meet the requirements of this provide other examples of potential standards to include this statement.
confined-spaces standard, while the overlap with existing standards. In Third, several commenters found fault
employer must use a lifeline system as general, the final confined-spaces with the statement in the proposed rule.
required to meet the criteria in subpart standard applies to hazards not One commenter noted the statement
J. Specifically, employers must comply addressed by subpart V. Subpart V was incomplete because it addressed
with the requirements of § 1926.1203(c) generally protects employees from controlling contractors, not host
to prevent unauthorized entry, and the electrical hazards but does not employers (ID–117, p. 19). Another
subpart AA requirements to implement necessarily address a hazardous commenter implied that the statement
a permit program (including posting a atmosphere or other physical hazards in would not be helpful unless it listed all
permit) to provide for entry in the confined space; the requirements of of the other potential duties to which
accordance with §§ 1926.1203(d), the confined-spaces standard address controlling contractors could be subject
1926.1204, 1926.1205, and 1926.1206. those hazards, and employers must (ID–211, Tr. p. 76).
Employers must comply with the comply with these requirements during 1926.1202—Definitions
ventilation requirements in confined-spaces operations. For
§ 1926.353(a) of subpart J to address example, in § 1926.953 of subpart V Final rule § 1926.1202 provides
atmospheric hazards produced by OSHA specifically addresses the overlap definitions for key words used to
welding fumes, but employers also must between the ‘‘enclosed spaces’’ describe the requirements of this final
comply with § 1926.1204(c), which requirements of subpart V and the rule. OSHA adopted most of the
requires ventilation as necessary to confined spaces standard, mandating definitions from its general industry
control any atmospheric hazards beyond compliance with the confined-spaces confined spaces standard (29 CFR
those generated by welding because the requirements when hazards remain even 1910.146); most definitions also are
welding standard does not address those after an employer has complied with all generally consistent with the voluntary
hazards. Employers also must comply of the measures described in subpart V. consensus standard on confined spaces,
with the identification, assessment, and Language in proposed § 1926.1202(d) ANSI Z117.1–2003. Unless otherwise
information-exchange and coordination not included—Statement on other noted, these definitions are applicable
requirements in § 1926.1203(a), (b), and duties of controlling contractors. only to this confined spaces in
(h), and the relevant training required Proposed § 1926.1202(d) contained a construction standard; OSHA added an
by § 1926.1207. Employers must statement that the information-sharing introductory statement to that effect in
develop a rescue plan in accordance requirements in the rule do not limit a § 1926.1202 of the final rule. OSHA took
with § 1926.353(b)(3) of subpart J, but controlling contractor’s responsibilities many of the definitions of the terms
also must assess and select a rescue under any other provisions of the rule used in final rule § 1926.1202 from
service in accordance with or the OSH Act, including those other OSHA construction standards; the
§§ 1926.1204(i) and 1926.1211(a) and responsibilities described in OSHA Agency included these definitions in
(c), and equip and train its in-house Directive CPL 02–00–124: Multi- this final rule to minimize the need to
rescue services pursuant to Employer Citation Policy (Dec. 10, reference those other standards.
§ 1926.1211(a) and (b). Finally, 1999). The proposed rule text listed Several commenters objected that
employers must comply with additional several specific examples of controlling some of the definitions of terms used in
confined-spaces requirements not contractor duties. the proposed confined spaces in
addressed in the welding standard, such OSHA is not including that statement construction standard were different
or any equivalent statement in the final than the definitions for identical terms
(c)(1) of that regulation states that if a particular rule for several reasons. First, such a in the general industry confined spaces
standard is specifically applicable to a condition, statement is unnecessary because it is standard at § 1910.146(b) (ID–086, p. 3;
practice, means, method, operation, or process, it only a reminder that OSHA has a wide –112, p. 7; –147, pp. 2–3). For the
shall prevail over any different general standard
which might otherwise be applicable to the same
variety of health and safety standards reasons set forth in section II.B (History)
condition, practice, means, method, operation, or that could apply to various activities of of this preamble, in the final rule OSHA
process. Paragraph (c)(2), however, provides that controlling contractors and host revised many of these definitions so that
any standard shall apply according to its terms even employers, depending on their activities the terms are consistent with the general
though particular standards are also prescribed for
the industry to the extent that none of such
and responsibilities. OSHA does not industry terms defined at § 1910.146(b):
particular standards applies. The Agency interprets typically include such a reminder in the entry, entry supervisor, hazardous
this regulation in this context to mean that the regulatory text of its standards. For atmosphere, immediately dangerous to
welding standard is the more specific standard example, OSHA does not include a life and health, permit-required
addressing welding hazards and, therefore, applies

to welding activities even when conducted in
similar statement in the general industry confined space, rescue service, retrieval
confined spaces; however, several provisions of the confined spaces standard even though system, and testing.
confined-spaces standard apply to confined-space that standard includes specific duties In addition, OSHA included some
hazards not addressed by the welding standard (see for host employers, and the host terms in the Definitions section of this
examples later in this paragraph), and employers
must comply with these provisions when their
employers could also have additional final rule not defined in the proposed
employees are exposed to these hazards during duties under other standards or if they rule, but defined in the general industry
confined-space operations. qualify as controlling employers or confined spaces standard at
§ 1910.146(b), including: acceptable when the Agency revises a definition a confined space when identifying
entry conditions, hot work, inerting, from the proposed definition, it explains ‘‘acceptable entry conditions.’’) In the
line-breaking, non-permit confined the reasons for its decision below in the NPRM, OSHA defined ‘‘planned
space, and prohibited condition. Again, discussion accompanying that condition’’ in a similar manner. In the
for the reasons explained in preamble definition. final rule, OSHA uses and defines the
section II.B (History), OSHA made OSHA also decided not to include term in the same manner as the general
definitions of these terms in this final several of the proposed definitions, such industry standard to provide
rule consistent with § 1910.146(b). In as definitions of contractor, controlled consistency between the two standards.
general, OSHA defined the terms atmosphere confined space, and Attendant means an individual
identically to the general industry isolated hazard confined space in this stationed outside one or more permit
standard or revised the definition final rule because OSHA did not use spaces who assesses the status of
slightly to make grammatical these terms in this final rule. In authorized entrants and who must
improvements or to clarify the meaning addition, the final rule does not include perform the duties specified in
of the term. When OSHA deviated a definition of ‘‘protect’’ or ‘‘protection’’ § 1926.1209—Duties of Attendants. The
substantively in the final definition because the Agency believes these general industry definition of
from the term as defined in terms, as used in this final rule, are ‘‘attendant’’ refers to an attendant who
§ 1910.146(b), the Agency explains its sufficiently clear from their ordinary performs ‘‘all attendant duties
reasons for doing so in the individual use. The general industry standard uses assigned. . ..’’ In the final construction
preamble paragraph addressing that these terms without definition. In rule, the attendant’s duties are specified
definition. addition, the general industry standard in § 1926.1209—Duties of Attendants.
One commenter urged OSHA to does not include a definition of OSHA refers to an attendant’s
define certain terms exactly as ANSI Z– ‘‘control,’’ but OSHA is including a responsibility to ‘‘assess,’’ rather than
117.1–.2003 defines the terms (ID–086, definition of this term in this final rule ‘‘monitor’’ as in the general industry
p. 3). The Agency does not agree that to clarify that ventilation and other standard, because ‘‘monitor’’ is a term of
such an approach is appropriate. The atmospheric controls provide some level art in the new standard (but not under
commenter did not explain why the of worker protection, even if such the general industry standard).
definitions as proposed were measure are not fully protective. However, there is no substantive
inappropriate, how the change would OSHA believes that the construction difference from the definition in the
improve safety, or why the consensus industry readily understands most of general industry standard.
standard was preferable to the the defined terms in the final rule Authorized entrant means an
longstanding definitions in the general because these terms are self-explanatory employee who is authorized by the
industry standard that most commenters or are consistent with the definitions entry supervisor to enter a permit space.
supported. OSHA selected the used in § 1910.146 and ANSI 117.1– The general industry rule defines
definitions in this final rule specifically 2003. Nevertheless, OSHA includes an ‘‘authorized entrant’’ based on who the
for the activities and equipment covered expanded discussion for several of the employer authorizes to enter the permit
by this final rule and, to the extent defined terms, and, when necessary, space. OSHA shifted the focus to who
possible, to be consistent with the explains differences between the the entry supervisor authorizes to enter
definitions in § 1910.146(b) so as to definition in the final rule and the the space to avoid confusion about who
reduce confusion among the regulated definitions contained in either the the authorizing employer is on a multi-
community and facilitate compliance. In proposed rule or § 1910.146(b). The employer worksite. This revision
many cases, the ANSI standards were Agency also addresses comments on clarifies that an entry supervisor has the
not as clear or comprehensive as the terminology received during the duty to identify the authorized entrants
final language, and therefore less SBREFA process and the public on the entry permit, regardless of
preferable for a mandatory and legally comment period, including comments whether or not they are employees of
enforceable standard. made through testimony during the another employer.
Some commenters also noted that public hearing. Barrier means a physical obstruction
OSHA proposed definitions for many that blocks or limits access. One
1. Defined Terms commenter suggested that OSHA place
terms not defined in § 1910.146(b) (ID–
112, p. 9; –147, pp. 2–3). These Acceptable entry conditions means a note under the definition of ‘‘barrier’’
commenters did not, however, the conditions that must exist in a explaining that a barrier does not block
specifically object to these definitions, permit space, before an employee may or limit egress (ID–025, p. 2). This
identify errors, suggest improvements, enter that space, to ensure that revision is unnecessary because there
or otherwise give a reason why OSHA employees can safely enter into, and are provisions in the final rule that
should not include these definitions in safely work within, the space. The require employers to provide
the final rule. In this regard, the final definition differs slightly from the unobstructed egress when employees
standard uses some terms, such as early definition of the term in § 1910.146(b). are inside a confined space. For
warning system and controlling OSHA added ‘‘before an employee may example, final rule § 1926.1204(d)(7)
contractor, not used in the general enter that space’’ to clarify that requires an employer to provide
industry confined spaces standard. The employers are to measure and determine equipment needed for safe egress from
general industry confined spaces ‘‘acceptable entry conditions’’ before a Permit-Required Confined Space
standard uses other terms not defined in entry. Once entry occurs, the employer (‘‘PRCS’’ or ‘‘permit space’’), and final
§ 1910.146(b). In general, for definitions must continue to monitor the permit rule § 1926.1208(e) requires the
in either of these categories, OSHA space and terminate the entry if a authorized entrant to exit a PRCS as
made the definition in this final rule prohibited condition (i.e., a condition quickly as possible under certain
identical to the definition in the that is not an ‘‘acceptable entry circumstances. Therefore, an employer
proposed rule. When the Agency condition’’) arises. (See the discussion would be in violation of this final rule
includes in the final rule a definition of final § 1926.1204(c)(1) for an when a barrier that prohibits or limits
that does not have a parallel definition explanation of how an employer must persons from entering a PRCS from
in the general industry standard, and consider the work it will perform inside outside the space also prohibits or limits
egress for authorized entrants seeking to Second, there is limited or restricted is intended to address.’’ (ID–117, p. 5).
exit the permit space, even though the entry or exit from the space. Third, the Although some of these spaces could
definition of ‘‘barrier’’ does not address space is not designed for continuous meet the definition of a confined space,
egress explicitly. Locking a bolt on a employee occupancy. the Agency does not agree that this
door that is the only means of egress OSHA is not including in the definition is too broad. As noted earlier
from a permit space, for example, could definition of ‘‘confined space’’ in the when OSHA rejected the same
constitute a prohibited barrier that final rule the requirement that commenter’s request for a complete
would interfere with egress from the employees be able to ‘‘perform assigned exemption from the standard, the
permit space. work,’’ which it included in the general commenter provides no support for the
Blanking or blinding means the industry definition in § 1910.146(b). assertion that these spaces do not
absolute closure of a pipe, line, or duct OSHA did not include this phrase in present the kind of risks this standard
by fastening a solid plate (such as a this final standard because it was is addressed and the crawl-space
spectacle blind or a skillet blind) that superfluous, and to avoid arguments fatalities included in the final economic
completely covers the bore, and that is that it added ambiguity. Some in the analysis clearly demonstrate that these
capable of withstanding the maximum regulated community might attempt to spaces are not inherently safe. OSHA
pressure of the pipe, line, or duct with interpret the phrase incorrectly to defined the term broadly to ensure that
no leakage beyond the plate. OSHA took suggest that this final standard, and the employers perform the requisite
this definition directly from § 1910.146, majority of the protections provided by evaluation to determine whether a
and uses this term the same way in this the standard, would not apply if the known or potential hazard exists in
final rule as in the general industry entrant did not have an assignment to those spaces. The majority of the
standard. perform on entering the space, or if the requirements of this final rule would
Competent person means a person employee was unable to perform work apply only if a known or potential
capable of identifying existing and inside the space. Therefore, this final hazard is found to exist in the confined
predictable hazardous conditions, and rule addresses confined spaces in terms space, but the initial assessment
who has the authority to address them of the hazards present, rather than the required by this standard is crucial to
promptly. Section 1926.1203 of the purpose for entering the space. By discovering whether such hazards are
proposed rule did not use or define removing the unnecessary language present. Therefore, an employer
‘‘competent person,’’ but required the from the proposed definition of performing construction work inside
employer to identify and assess ‘‘confined space,’’ OSHA makes it clear attics or any of the other spaces noted
confined spaces. Several commenters that this final standard covers any entry by this commenter must comply with
suggested that OSHA clarify that a into a confined space. This does not only the reevaluation provisions in this
competent person make these imply that ‘‘performed assigned work’’ final rule when no atmospheric or
determinations, and to include in the has a substantive meaning in the general physical hazard exists in a confined
final rule the same definition for industry standard; OSHA is simply space. If an employer does not wish to
‘‘competent person’’ as the one taking the opportunity to improve the conduct an evaluation, then the
contained in other OSHA construction language of the definition as it employer can either prevent its
standards (ID–025, p. 2; –028, p. 4; proposed. OSHA did not include the employees from entering the space or
–095, p. 2; –124, p. 7; –150, p. 3). OSHA ‘‘perform assigned work’’ language in design the construction process to avoid
agrees with these commenters and, the proposed definition of ‘‘confined the need for entry into a confined space.
therefore, added its customary space’’ adopted in this final rule, and One commenter expressed confusion
definition to the final rule. OSHA uses received no comment on the absence of as to the meaning of the third element
this well-known definition in several of that language. of the confined space definition: ‘‘not
its construction standards. See, e.g., The final definition also includes an designed for continuous employee
§§ 1926.32(f), 1926.450(b), 1926.650(b), additional change from the general occupancy’’ (ID–119, p. 5). The third
1926.751, and 1926.1401; see also the industry standard. The definition of element captures all spaces where
discussion of final § 1926.1203(a) for a ‘‘confined space’’ in § 1910.146(b) conditions are such that employees
further explanation of why OSHA contains examples of different types of would normally exit the space relatively
included a competent person confined spaces in a parenthetical to the soon after entering, absent the
requirement in this final rule. second part of the definition. OSHA did construction activity. When determining
Confined space means a space that: not include this parenthetical in this whether a space is designed for
(1) Is large enough and so configured final rule to avoid confusing these continuous occupancy, it is appropriate
that an employee can bodily enter it; (2) examples with a note to § 1926.1201(a) to focus on the design of the space and
has limited or restricted means for entry that provides a more comprehensive, whether that space is still configured as
and exit; and (3) is not designed for but not exclusive, list of examples of designed. See October 22, 1993, letter to
continuous employee occupancy. OSHA confined spaces. Robert Bee; December 20, 1994, letter to
based the definition of ‘‘confined space’’ One commenter asserted that the Edward Donoghue; June 22, 1995, letter
on the definition of ‘‘confined space’’ in proposed definition of a confined space to Dan Freeman (noting difference
the general industry confined spaces is too broad because it includes attics, between the ‘‘primary function’’ and
standard at § 1910.146(b). It describes a crawlspaces, cabinets, unfinished ‘‘design’’ of a confined space). For
space where three elements exist. First, basements, swimming pools, window example, if a space that meets the
the configuration of the space is such wells or utility closets that contain definition of a confined space has a
that a person can enter into it with his/ water heaters in single-family powered ventilation system that allows
her entire body (although the ‘‘entry’’ residential homes, but those spaces ‘‘do for continuous occupancy, but that
occurs as soon as any part of the body not present the kind of risk the standard system is not functional or the
crosses into the confined space).7
construction activity would interfere
1995, letter to Charles M. Bessey (entry occurs
7 See March 5, 2008, letter to Andrew Lewis (no when any part of the body breaks the plane of the
with the proper function of that system,
confined space where it is impossible for employee opening of a space large enough to allow full entry, then the space would be a confined
to fit his entire body into the space); October 18, regardless of intent to fully enter). space subject to this final standard. See
October 27, 1995, letter to William 67398 (Nov. 28, 2007)). Consequently, A space has limited or restricted means of
Taylor. the Agency decided not to include any entry or exit if an entrant’s ability to escape
The same commenter also asked for new or additional requirements for in an emergency would be hindered. The
additional examples of confined spaces dimensions of a door and its location are
hazardous-enclosed spaces in the final
factors in determining whether an entrant
(ID–119, p. 5). The note in final rule rule. Instead, OSHA relies on existing can easily escape; however, the presence of
§ 1926.1201(a) provides examples of standards, such as § 1926.55—Gases, a door does not in and of itself mean that the
locations where confined spaces may vapors, fumes, dusts, and mists, to space is not a confined space. For example,
occur. In addition, OSHA notes that address the hazards of working inside a space such as a bag house or crawl space
numerous letters of interpretation are enclosed spaces. OSHA Technical that has a door leading into it, but also has
available providing additional guidance Information Bulletin 02–05–30 is pipes, conduits, ducts, or equipment or
as to the meaning of a ‘‘confined space’’ available to employers who are looking materials that an employee would be
in the context of the general industry required to crawl over or under or squeeze
for guidance on the particular hazards of
around in order to escape, has limited or
standard. OSHA is adopting into its working in enclosed spaces. For restricted means of exit. A piece of
construction rule the guidance regarding example, this bulletin states that the equipment with an access door, such as a
the definition of a confined space OSHA respirator standard may apply conveyor feed, a drying oven, or a paint spray
provided by the letters of interpretation when employees are working in enclosure, will also be considered to have
referenced in the previous paragraph. In enclosures that do not meet the restricted means of entry or exit if an
addition, the following letters apply definition of ‘‘confined space.’’ employee has to crawl to gain access to his
with respect to the definition of a Another commenter questioned the or her intended work location. Similarly, an
confined space in this final standard as inclusion of spaces equipped with access door or portal which is too small to
they did to the general industry allow an employee to walk upright and
ladders or stairways for employee entry
unimpeded through it will be considered to
standard: September 19, 1994, letter to or exit in the proposed definition of restrict an employee’s ability to escape.
Edward Donoghue Associates, Inc. ‘‘confined space’’ (ID–013, p. 5). Both
(elevator pit can be a confined space); the proposed and final definitions of OSHA Directive CPL 02–00–100:
June 15, 1992, letter to George Kennedy ‘‘confined space’’ include ‘‘limited or Application of the Permit-Required
(storm sewer manhole entrance can be restricted’’ entry or exit. A space where Confined Spaces (PRCS) Standards, 29
a confined space); July 11, 1995, letter an employee can enter or exit only with CFR 1910.146 (May 5, 1995), Appendix
to Alan Sefton (entry by a robot does not the use of a stairway or a ladder, like an E.
trigger the standard); October 23, 1995, attic, generally meets this definition of Another commenter asked OSHA to
letter to Mark Arriens (roll off container, a confined space. See, e.g., October 27, clarify whether a space that is
dump truck bed, and truck trailer can be 1995, letter to James Sharpe. The temporary can still meet the definition
confined spaces); October 27, 1995, following guidance provided earlier by of a confined space in the final rule (ID–
letter to James Sharpe (entry limited if OSHA with respect to the general 136, p. 2). For example, the commenter
employee must bend down to avoid industry standard definition of this term asserted that a space constructed for the
striking the top of an opening or step also is applicable to this construction sole purpose of allowing employees to
over a raised threshold); February 8, standard: temporarily work over the end of a large
1996, letter to Remi Morrissette open gas pipe could qualify as a
Ladders, and temporary, movable, spiral, confined space. In this particular
(personnel airlock can be a confined or articulated stairs will usually be
space when both sets of doors cannot considered a limited or restricted means of
example, the commenter emphasized
open at the same time); April 24, 1998, egress. Fixed industrial stairs that meet the need for an employer to address the
letter to Gregory Faeth (30-inch deep OSHA standards will be considered a limited hazard of establishing an oxygen-
chest-type freezer not a confined space or restricted means of egress when the deficient atmosphere as a result of
when person can simply stand up to get conditions or physical characteristics of the purging the pipe with nitrogen.
out); December 2, 2002, letter to Art space, in light of the hazards present in it, OSHA agrees that a temporary space,
would interfere with the entrant’s ability to including the temporary space provided
Varga (dock leveler pit can be a
exit or be rescued in a hazardous situation. in the commenter’s example, can be a
confined space); March 8, 2005, letter to
Ron Sands (box van of truck is not a OSHA Directive CPL 02–00–100: ‘‘confined space.’’ The fact that the
confined space as normally used and Application of the Permit-Required space described by the commenter is
configured). The Agency notes, Confined Spaces (PRCS) Standards, 29 temporary does not prevent the space
however, that any guidance previously CFR 1910.146 (May 5, 1995), Appendix from meeting the definition of a
provided with respect to its previous E. confined space in this final rule. The
confined spaces in construction OSHA also clarified in the context of temporary character of the space may be
standard, 29 CFR 1926.21, is no longer the general industry confined spaces the most readily apparent factor in
applicable or in effect. See, e.g., July 10, standard that, although the Agency does determining whether a temporary space
2006, letter to John Williams II. not generally consider doorways and would permit continuous employee
One commenter requested that OSHA other portals through which a person occupancy.
clarify the distinction between an can walk to be limited means of entry OHSA did not define the term
‘‘enclosed space’’ and a ‘‘confined or exit, it may deem a space containing ‘‘contractor’’ in the final rule, as it did
space,’’ and another commenter such a door or portal to be a confined in the proposed rule. One commenter
suggested that OSHA provide additional space if the door or portal hinders an recognized that OSHA’s proposed
discussion of the hazards of an entrant’s ability to escape from the definition of ‘‘contractor’’ excluded
‘‘enclosed space’’ in this final rule (ID– confined space in an emergency (see 59 controlling contractors (ID–099, p. 1).
119, p. 6; –140, p. 4). As OSHA stated FR 55208 (Nov. 4, 1994)). The same To simplify the terminology used
in the preamble to the proposed rule, interpretation applies in the throughout the standard, to address the
the Small Business Advocacy Review construction context. OSHA provided inconsistency identified by the
Panel recommended that OSHA the following explanation in its commenter, and to avoid other
examine the benefits and costs compliance directive on the general confusion with the term ‘‘controlling
associated with provisions addressing industry rule, which also applies in the contractor,’’ OSHA is using terms more
hazardous-enclosed spaces (72 FR construction context: precisely in the final rule. OSHA uses
the term ‘‘employer’’ to refer generically 29 CFR part 1926, subpart R. The now a defined term under the standard.
to employers, including employers that definition reflects the core principle of Although § 1910.146 does not explicitly
meet the final rule’s definitions of general supervisory control over the include the ‘‘early warning system’’, the
‘‘controlling contractor’’ or ‘‘host construction site. Under this final rule, Agency included the term in the final
employers.’’ OSHA also added the term OSHA clarified the responsibilities of rule to ensure that the regulated
‘‘entry employer’’ to refer to employers different employers on the site and community understands that these
performing confined-space entry. As assigned specific duties to the systems must provide an effective
discussed elsewhere in this preamble controlling contractor, as distinguished means of warning attendants and
the Agency also is using ‘‘controlling from the host employer and the other authorized entrants that a non-isolated
contractor’’ and ‘‘host employer’’ to employers (see final § 1926.1203(h)). engulfment hazard may be developing
refer to other specific types of Consequently, there is a need to define in an area where it could flow into the
employers when necessary. the term ‘‘controlling contractor.’’ work area. A clear understanding of this
Control, as defined in this final Some commenters were unsure term will help employers ensure that
standard, is an action taken, through whether an employer with no authorized entrants have sufficient time
engineering methods, to reduce the contractual authority for the overall to safely exit the space (see explanation
hazard level inside a confined space, safety of a project could qualify as a of § 1926.1204(e)(1) below in this
including the maintenance of this ‘‘controlling contractor’’ (ID–106, p. 2; preamble). As illustrated by the non-
reduced hazard level. This definition is –129, p. 2). Another commenter asserted exhaustive list of examples of early-
consistent with the use of the term in that an employer will have extreme warning systems in this definition,
the general industry confined spaces difficulty exercising the control required employers have flexibility regarding the
standard, although OSHA did not define by the standard without explicit type of early-warning system to use for
the term in § 1910.146(b). The proposed contractual authority to do so (ID–120, continuously monitoring engulfment
rule’s definition of ‘‘control’’ provided p. 2). The facts and circumstances hazards. However, as stated in final rule
isolation as an example of a control present at the job site determine § 1926.1204(e)(1)(iii), whatever warning
action. However, controlling a hazard whether an employer is a controlling system an employer selects, it must alert
provides less protection to an employee contractor under this final rule: explicit authorized entrants and attendants in
than isolating the hazard because it does contractual authority is sufficient to sufficient time for the authorized
not result in the elimination or removal indicate a controlling contractor, but the entrants to safely exit the space.
of the hazard. For example, ventilation absence of contractual authority is not Emergency means any occurrence
is a control method that merely reduces definitive. In this regard, OSHA intends inside or outside a space that could
the hazard level below its Permissible the controlling contractor’s authority to endanger an entrant. The definition is
Exposure Limit (PEL) or Lower be established in the same manner that similar to the definition in the general
Explosive Limit (LEL) for the duration a controlling employer’s authority is industry standard, and is not
needed to protect employees in or near established under OSHA’s Multi- substantively different from the
a confined space. Therefore, OSHA Employer Citation Policy. For more definition provided in the proposed
deleted the reference to isolation from information about the role of the rule. The only distinction between the
the final standard to clarify the controlling employer, see OSHA general industry standard and the final
distinction between control and Directive CPL 02–00–124: Multi- rule is that the final rule includes a loss
isolation. Otherwise, the final standard Employer Citation Policy. of power in the non-exhaustive list of
defines the term as proposed. Double block and bleed means the examples of emergencies. OSHA is
Controlling contractor is the employer closure of a line, duct, or pipe by specifying power loss to make it clear
that has overall responsibility for closing and locking or tagging two in- that unexpected loss of power can
construction at the worksite. In line valves and by opening and locking endanger entrants, particularly if the
addition, the note to this definition or tagging a drain or vent valve in the permit plan relied on the use of
explains that, if a host employer has line between the two closed valves. This ventilation, monitoring, controls,
overall responsibility for construction at can be done to eliminate the potential communication with the attendant, or
the worksite, then the host employer for substances in the sections of the egress that would be affected by the loss
also is the controlling contractor under pipes to enter the space. OSHA took this of power. The definition is important
this final rule. The final rule’s definition term directly from § 1910.146. The because 1204(d)(5) requires employers
of ‘‘controlling contractor’’ is identical proposed definition was different to provide adequate lighting for egress
to the proposed rule’s definition. The grammatically, and also specified the in an emergency.
general industry confined spaces exact position in which the closures One commenter urged OSHA to
standard does not use the term were to be locked or tagged, but there clarify that an occurrence constituting
‘‘controlling contractor’’ and, therefore, is no substantive difference between the the emergency must involve the work
§ 1910.146(b) does not define the term. final language and the language in the performed in the confined space (ID–
OSHA included a definition of proposed rule. 099, p. 1). For example, in this
‘‘controlling contractor’’ in this final Early-warning system is the method commenter’s view a heart attack that
rule because it is a common practice in used to alert attendants, as well as does not involve the working conditions
construction work for a number of authorized entrants in a permit space, in a confined space, but occurs while an
employers to be working at a that an engulfment hazard may be employee is working in or near a
construction site at the same time. Also, developing. Examples of early-warning confined space, would not qualify as an
there often is one employer that has systems include: alarms activated by ‘‘emergency’’ under § 1926.1202. OSHA
overall authority over the construction remote sensors and lookouts with disagrees with this comment, and is not
site, including the authority to change equipment for immediately making this revision because the final
worksite conditions, set schedules, and communicating with the authorized standard uses the term ‘‘emergency’’
alter work practices with regard to entrants and attendants. OSHA did not with respect to the provision of rescue
safety. This definition is nearly identical revise the definition from the proposed services. (See, e.g., final § 1926.1204(i),
to the definition of the term as used in rule, other than to use ‘‘assess’’ rather which requires the employer to develop
the OSHA’s Steel Erection standard at than ‘‘monitor’’ because the latter is and implement procedures for
responding to emergencies.) The Agency employee entered the space at the ‘‘entry employer’’; instead, the general
believes that an emergency occurs instant the first part of the employee’s industry standard refers generally to
regardless of whether or not it is body crosses the plane of the confined ‘‘employer.’’ In general the term ‘‘entry
foreseeable based on the work the space. This clarification is consistent employer’’ in this final rule and the
employee is performing within or near with OSHA’s longstanding term ‘‘employer’’ in § 1910.146(b) are
the confined space. Under the rescue interpretation of the general industry synonymous because both terms
provisions of this final standard, standard. See October 18, 1995, letter to identify the employer who must follow
emergencies, regardless of their cause, Charles Bessey. As a result, an entry the accompanying confined-space
require employers to initiate rescue of employer’s duty to prevent procedures for employers that plan to
the affected employees working inside unauthorized entry under enter a permit space. However, OSHA
the confined space because of restricted § 1926.1204(a) means that the employer uses this term in this final rule to clarify
access to, and egress from, the confined must take the necessary steps, such as that not all employers on a multi-
space. installing barriers when appropriate, to employer worksite have duties
Engulfment refers to the surrounding prevent both intentional and associated with entering a permit space.
and effective capture of a person by a unintentional entries. On a multi-employer worksite, each
liquid or finely divided (flowable) solid As noted in the explanation for the employer has a duty under this new
substance, such as water, dirt, sand, definition of ‘‘confined space,’’ a space standard to ensure that a competent
sawdust, or rocks. Any solid or liquid must be large enough to fit the entering person identifies all confined spaces in
that can flow into a confined space and employee’s entire body to constitute a which any employee it directs may
that can drown, suffocate, or crush an confined space. However, if the space is work (§ 1926.1203(a)). Each employer
employee can be an engulfing medium. large enough to qualify as a confined must then prevent the employees it
This definition is nearly identical to the space, any entry into that space directs from entering permit spaces or
definition of the same term in constitutes an entry, even if the limit access to those spaces in
§ 1910.146, except that it also includes employee’s entire body does not enter accordance with the permit procedure
‘‘or suffocation’’ at the end of the the space. This application is consistent (or alternatives) specified in this
definition, paraphrasing the following with OSHA’s design of this final standard (see § 1926.1203(a) and (c)–
additional language from the proposed standard: to ensure that this (e)). Under the standard, an entry
rule: ‘‘or the substance suffocates the construction rule is enforceable. employer has a number of important
individual.’’ This additional language Therefore, OSHA declines to duties that must be performed prior to
clarifies that the definition includes incorporate into this final rule its anyone physically entering a permit
suffocation that does not result from previous guidance offered with respect space, such as the requirements for pre-
strangulation, constriction, or the to the general industry rule to the extent entry information exchanges in
blockage of any respiratory mechanism. that the guidance indicated that entry § 1926.1203(h) and the duty to develop
For example, the definition includes would not take place if only part of the and implement a permit program to
surrounding an employee with a body, and not the whole body, crossed restrict access under § 1926.1204.
flowable material even if personal the plane of the confined space. See July Therefore, under the definition, an
protective equipment or some other 13, 1993, letter to Dean Davenport (no employer becomes an entry employer
barrier (for example. a person trapped in entry into water pipe when employee when it ‘‘decides that’’ an employee it
sand while wearing respirator mask stuck in an arm, but not the whole directs will enter, rather than at the later
with an enclosed air source) delays body). Absent some safeguard to ensure point when the employee actually
immediate drowning or suffocation. The that the rest of the employee’s body enters. An employer can be an entry
final definition does not differ could not cross the threshold into the employer regardless of whether that
substantively from the definition in the confined space, the likelihood of employer has completed any of the
proposed rule, and OSHA received no inadvertent entry into a space in the steps of instituting a permit program or
comments on the proposed definition. context of construction warrants a strict an employee has actually entered the
Entry means the action by which any approach that differs from the more space.
part of a person passes through an routine entries often associated with However, OSHA does not intend for
opening into a permit-required confined maintenance under the general industry the ‘‘decides that’’ language in the
space. Entry includes ensuing work standard. For example, an employee definition to narrow the meaning of
activities in that space, and occurs as who sticks his/her head into a new ‘‘employer’’ in any way or to focus on
soon as any part of the entrant’s body space established during construction any deliberative or procedural process.
breaks the plane of an opening into the may be overcome by fumes and fall into OSHA has added a note to the definition
space, whether or not such action is the space or be rendered unable to of ‘‘entry employer’’ to emphasize that
intentional or the person performs any remove his or her head from the space an employer cannot avoid the duties of
work activities in the space. This and avoid further exposure to the the standard merely by refusing to
definition is similar to the definition of hazards. decide whether its employees will enter
‘‘entry’’ in § 1910.146(b), except OSHA The definition of ‘‘entry’’ in this final a permit space, and OSHA will consider
added the last clause to clarify that this rule is slightly different than the the failure to so decide to be an implicit
is a bright-line definition: entry occurs proposed definition, but the differences decision to allow employees to enter
under all circumstances in which the do not change the substantive meaning those spaces if they are working in the
entrant’s body breaks the physical of the term as proposed. OSHA made proximity of the space.
threshold of the opening, regardless of these changes to the proposed definition The ‘‘an employee it directs’’ language
the events or actions that caused entry. to make the final definition of ‘‘entry’’ encompasses temporary workers,
For example, when an employer assigns similar to the definition of the term in permanent employees, and all other
an employee a task that would not § 1910.146(b). workers who are under the direction of
ordinarily involve entry into a confined Entry employer means an employer the employer at the worksite, whether
space, and the employee inadvertently who decides that an employee it directs they are contracted directly or through
falls into the confined space and does will enter a permit space. Paragraph (b) a third party such as a staffing agency.
not perform any work in that space, the of § 1910.146 does not use the term For example, when a general contractor
contracts with a third party to bring on requirements are met, is identical to the mixture of different flammable
a temporary worker and assigns the note in the general industry definition. elements, not just the presence of a
worker to work in a permit space, the Hazard means a ‘‘physical hazard’’ or single element that could lead to an
general contractor is an entry employer. ‘‘hazardous atmosphere’’ as defined by explosion. Therefore, for the reasons
However, if the temporary employee is this standard. The proposed rule explained below, OSHA has defined
assigned to a welding subcontractor, defined this term, and OSHA is hazardous atmosphere as any
and the welding contractor makes the including it here to clarify that atmosphere at or above 10 percent of a
determination of where the temporary references to a ‘‘hazard’’ or ‘‘hazards’’ detected substance’s LFL (10 percent
employee will work without direction can mean either physical or atmospheric LFL) to provide an adequate safety
from the general contractor, then the hazards, or both. margin, and to ensure that an
welding subcontractor would be the Hazardous atmosphere refers to the atmosphere does not exceed the LFL if
entry employer. The general contractor five enumerated atmospheres, any one one of a combination of substances goes
would not be an entry employer in the of which may expose employees to the undetected.
latter example. risk of death, incapacitation, OSHA specifically asked for public
Entry permit means the document, impairment of ability to self-rescue (that comment on the propriety of defining a
provided by the entry employer, which is, unaided escape from a permit space), hazardous atmosphere for purposes of
allows and controls entry into a permit injury, or acute illness. The proposed the confined spaces in construction
space. Section 1926.1206—Entry Permit definition of ‘‘hazardous atmosphere’’ standard at 10 LFL when
of this final standard specifies the varied slightly from the definition in § 1926.651(g)(1)(iii) prohibits exposure
contents of the permit. As part of its § 1910.146(b), and several commenters to atmospheres in excavations
effort to specify the duties and requested that OSHA make the exceeding 20 percent of the LFL (20
responsibilities of different employers definition in this final rule more similar percent LFL). Some commenters urged
on a multi-employer worksite, OSHA to the definition in § 1910.146(b) (ID– OSHA to permit 20 percent LFL in this
specifies that the employer ‘‘who 017, p. 1; –132, p. 2; –138, p. 3; –153, final rule for the sake of uniformity,
designated the space a permit space,’’ p. 12). OSHA did so, as explained while another commenter favored this
must prepare the permit, rather than just below, and the final definition is change only if credible data justifies this
‘‘the employer’’ as in § 1910.146. This substantively identical to the definition uniform LFL (ID–090, p. 1 and ID–108,
definition is otherwise identical to the in the general industry standard. p. 6; ID–060, p. 1, respectively). Other
definition in § 1910.146(b). In a typical One commenter noted that the commenters, however, indicated that 10
multi-employer worksite, all employers proposed definition included ‘‘existing percent LFL was more appropriate, and
would have the duty to identify or potential’’ atmospheres, and argued recommended that OSHA revise the
confined spaces that their employees that this language, combined with subpart P LFL to 10 percent LFL to
might enter, but only some employers OSHA’s failure to include a note that is provide adequate safety to employees
must establish a permit program and part of the general industry definition of working in excavations (ID–132, p. 3;
complete permits. ‘‘hazardous atmosphere,’’ constituted an –140, p. 6). This last group of
Entry rescue means rescue that occurs inappropriate expansion of the scope of commenters noted that using 10 percent
when a rescue service enters a PRCS to this final standard compared to the LFL would align the definition of
rescue one or more employees. This general industry standard (ID–219.2, p. ‘‘hazardous atmosphere’’ in this final
definition is identical to the proposed 72). OSHA addressed this commenter’s rule with the general industry confined
definition of ‘‘entry rescue,’’ except that concerns by adopting the general spaces rule at § 1910.146(b) and ANSI
the Agency clarifies that the term industry language, which does not refer Z–117.1. One commenter also noted that
includes a rescue of a single employee. to ‘‘existing or potential’’ atmospheres, because the LFL of many common
Section 1910.146(b) does not define and also included the note favored by petroleum based materials is
‘‘entry rescue’’ because the general the commenter. See the note after the approximately 1 percent of the total
industry standard does not use the term. fourth enumerated paragraph in the volume of the atmosphere, which would
The term is included in this final rule definition, which is substantively convert to 10,000 parts per million
to make the requirements for each type identical to the note in the general (ppm), 10 percent of that LFL is 1,000
of rescue more clear. industry standard. ppm, which approaches the
Entry supervisor means the qualified The five enumerated paragraphs or immediately dangerous to life or health
person (such as the employer, foreman, conditions in the definition address four (IDLH) (see below) level for many
or crew chief) assigned by the employer specific types of hazardous atmospheres materials (ID–132, p. 3).
to determine if acceptable entry and a broad condition that encompasses OSHA selected the 10 percent LFL in
conditions are present at a permit space any other atmosphere that is the final rule to match the general
where entry is planned, to authorize immediately dangerous to life or health. industry standard. As the Agency
entry and oversee entry operations, and The first enumerated condition explained when selecting the 10 percent
to terminate entry as required by the addresses an atmospheric condition that LFL in § 1910.146(b), the 10 percent
final standard. This definition is consists of a flammable gas, vapor, or level is ‘‘widely recognized as being the
identical to the definition provided in mist in excess of 10 percent of its lower threshold value for a hazardous
§ 1910.146(b), except that OSHA flammable limit (LFL). OSHA set this atmosphere’’ (58 FR 4473). The record
replaced ‘‘person’’ with ‘‘qualified level to account for the difficulty indicates that this lower level continues
person’’ as in the proposed rule (the employers have in detecting each and to be more widely used and more
proposed rule used ‘‘qualified every flammable gas vapor, or mist. The appropriate than the 20 percent LFL
individual’’), to clarify that the LFL, as it is defined by the confined suggested by the commenter,
individual must meet the requirements spaces in construction standard, refers particularly now that the general
for ‘‘qualified person’’ as defined later to the minimum concentration of a industry standard is nearly 20 years old.
in this section. The note to this substance in air needed for an ignition (See also ANSI Z–117.1 (setting the
definition, which clarifies that the entry source to cause a flame or explosion. maximum level at 10 percent LFL);
supervisor may enter the permit space The LFL of the atmosphere is a ANSI 6.3.1.12 (setting the maximum
or serve as an attendant if the applicable cumulative measure that represents the level at less than 10 percent LFL.))
Moreover, the record does not include to 22 percent, which they noted is the Agency believes that most confined-
credible data to justify why the 20 level set by the National Fire Protection space work takes place at altitudes
percent LFL would be more appropriate Association (NFPA) 8 (ID–25, p. 2; –27, lower than 5,000 ft. above sea level, and
for a confined space. OSHA may p. 6; –28, p. 4; 95, p. 1). Two retains the 19.5 percent oxygen deficient
consider amending subpart P to a commenters suggested that increases in limit in this final rule. However, the
similar level in the future, but that oxygen levels due to leaks of Agency notes that to the extent a high
decision is outside the scope of this compressed oxygen used in ‘‘hot work’’ altitude causes an otherwise permissible
rulemaking. would more easily be detected if the oxygen concentration to become IDLH,
The second enumerated condition in maximum acceptable oxygen level was such circumstances may also result in a
the final definition addresses 22 percent instead of 23.5 percent (ID– ‘‘hazardous atmosphere’’ as set forth in
‘‘hazardous atmosphere’’ consisting of 95, p.1), as it is in the rules for maritime the fifth condition in OSHA’s definition,
an airborne combustible dust at a work. The commenters did not, which defines a ‘‘hazardous
concentration that meets or exceeds its however, provide any data or other atmosphere’’ to include any other
lower flammable limit (LFL). One information supporting the suggestion atmospheric condition that is IDLH.
commenter asked why OSHA did not that the proposed level, which is The fourth condition in the definition
propose a 10 percent LFL for identical to the level in the general of ‘‘hazardous atmosphere’’ addresses
combustible dust, similar to OSHA’s industry standard, is not sufficiently an airborne concentration of a substance
approach for flammable gas, vapor, or protective. The absence of such that exceeds the permissible dose or
mist in the first condition under this information, the lack of incidents exposure limit specified by OSHA. The
definition (ID–112, p. 6). OSHA did not caused by oxygen levels between 22 and final definition includes cross-
propose a percentage of the LFL in 23.5 percent lead OSHA to conclude references to the applicable PELs in
defining a hazardous airborne that the difference is not significant. In subparts D—Occupational Health and
combustible-dust concentration level for addition, this consistency benefits Environmental Controls and Z—Toxic
several reasons. Employers usually can employers that engage in both general and Hazardous Substances of 29 CFR
visually judge the flammability hazard industry and construction work. OSHA part 1926, rather than the general
posed by airborne dust. Moreover, as finalized the level at 23.5 percent so that reference to PELs specified in ‘‘any
OSHA noted in the preamble to the it is consistent with the general industry OSHA requirement’’ contained in the
general industry standard, it is difficult confined spaces standard at proposed rule. The form of the
at present to measure airborne § 1910.146(b), as well as the definition definition now duplicates the form
concentrations of combustible dust of ‘‘enriched oxygen’’ in OSHA’s found in the general industry standard.
reliably at a site, so there likely would Respiratory Protection standard. This In addition, removing the reference to
be significant delays in determining oxygen-enriched level also is the same ‘‘any OSHA requirement’’ avoids the
whether the level of combustible dust as the level in the proposed definition implication that PELs in general
meets the LFL at a particular site. of ‘‘hazardous atmosphere.’’ OSHA industry standards would apply to
Therefore, LFL determinations would continues to believe that the 23.5 construction work.
appear to be unnecessarily burdensome One commenter requested that OSHA
percent level provides a sufficient
with regard to combustible dust. OSHA insert a note under this fourth condition
amount of time for employers to detect
concludes that the final rule will protect explaining that the PELs in § 1910.1000
a hazardous oxygen-enriched
employees adequately so long as also would apply under this condition
atmosphere, and to exit the space safely,
employers train their employees in the (ID–028, p. 5). OSHA did not include a
before the oxygen level gets so high that
recognition of combustible dust, and reference to § 1910.1000 because those
it begins to have adverse effects on the
ensure that the concentration of general industry PELs do not apply to
exposed employees. Other standards,
combustible dust remains below its LFL. construction work. Section 1926.55
For this reason, OSHA has such as Subpart J—Welding and Subpart
establishes the relevant PELs for
incorporated the note for this condition V—Electronic Transmission and
construction.
from § 1910.146(b), except that it has Distribution, set forth protective
OSHA did, however, include a note to
added the word ‘‘combustible’’ before requirements for employees engaged in
the fourth condition of the definition
‘‘dust’’ to clarify the meaning of the ‘‘hot work’’ that address the
that is substantively identical to the
note, and made a minor additional commenters’ concerns.
note to the fourth subheading of the
change from the proposed rule to make Additionally, OSHA recognizes that
§ 1910.146(b) definition of ‘‘hazardous
the final definition identical to safe levels of oxygen vary with altitude,
atmosphere,’’ except that OSHA
§ 1910.146(b). OSHA used LFL in this and that concentrations of oxygen at or
changed the word ‘‘provision’’ to
final rule definition, rather than ‘‘lower above the oxygen deficient limit of 19.5
‘‘definition’’ to make it clear that the
explosive limit (LEL),’’ which OSHA percent in this final rule may still pose
note applies to the types of hazards
used in the proposed definition. OSHA atmospheric hazards at very high
covered by the definition of ‘‘hazardous
notes, however, that the Agency uses altitudes. For example, ANSI/ASSE
atmosphere.’’ OSHA sets its
these terms interchangeably. (See, e.g., Z88.2–1992 recognizes an IDLH
construction PELs at different levels for
proposed definition of ‘‘lower circumstance at altitudes of 5,000 ft.
different reasons; some of these PELs
flammable limit or lower explosive above sea level or higher, if the oxygen
prevent harm from substances that
limit’’ at 72 FR 67406.) concentration is at 19.5 percent.9 The
manifest quickly in the human body,
The third condition of a hazardous such as [hydrogen sulfide and carbon
8 NFPA 53 defines ‘‘oxygen-enriched
atmosphere in this definition addresses
atmosphere’’ as one in which the concentration of monoxide, among others], while OSHA
the conditions of an atmospheric oxygen oxygen exceeds 21 percent by volume or its partial sets other PELs prevent harm from
concentration below 19.5 percent pressure exceeds 21.3 kPa. (See NFPA 53, substances that produce long-term
(‘‘oxygen deficient’’) or above 23.5 Recommended Practice on Materials, Equipment,
health effects but do not produce any
percent (‘‘oxygen enriched’’) in a and Systems Used in Oxygen-Enriched
Atmospheres, 2011 Edition at 3.3.25). acute effect on employees. The note
confined space. Four commenters 9 The Agency also notes that an updated revision
suggested that OSHA change the of ANSI/ASSE Z88.2–1992 was forthcoming at the of the updated standard appeared to be consistent
oxygen-enriched level from 23.5 percent time of its development of this final rule. The draft with the 1992 version on this issue.
makes clear that, for the purposes of in § 1910.146(b), including the order of initial management company would
determining whether a hazardous the listed conditions. return the information to the owner, and
atmosphere exists under this final rule Host employer means the employer the host employer duties would revert
as the result of a concentration of a that owns or manages the property to the property owner until discharged
substance in excess of its PEL, where the construction work is taking to the new management company). The
employers need to address only the place. As explained in the definition of note also clarifies that only one of these
substances with PELs that could result ‘‘controlling contractor,’’ OSHA added entities will serve as a host employer. If
in immediate harm or impairment of the this definition to clarify the distinction a property owner contracts with a third
employee’s ability to perform self- between a host employer, a controlling party to manage the property, turns over
rescue. See also the discussion in the contractor, and an employer performing all relevant information about the
general industry preamble at 58 FR confined space entry because each of property that it has (the locations of
4474. For example, a short-term these entities has specific obligations permit space the hazards they contain,
exposure to silica is unlikely to cause under this final rule. (See the discussion and the previous precautions used to
immediate injury. Likewise, nitrogen under ‘‘controlling contractor’’ above.) address them) to the management
and carbon dioxide will not impair self- OSHA used the term ‘‘host employer’’ in company, then OSHA will treat the
rescue unless their levels are so high the general industry standard without management company (not the property
that they replace significant oxygen, so defining it, but the definition in this owner) as the ‘‘host employer’’ under
that they act as an asphyxiant. The same final rule is consistent with the use of this standard. That management
is true for any inert gases, for example the term in that general industry company, rather than the owner, must
argon, neon and helium. Most of the standard. It is also substantively the then maintain the relevant information
substances with an OSHA PEL (in same as the proposed definition. about the property and fulfill the duties
subparts D and Z of the construction One commenter asserted that an of the host employer under this
standards) are based on long-term, employer should never meet the standard (e.g., share that information
chronic risks to health. Presumably, definition of ‘‘host employer’’ if the with the controlling contractor). For
most of these substances do not pose a employer ‘‘had no employees at all (a example, if the owner transfers its
risk of an acute health effect or of self- home owner, for example, might fit this records to the management company,
rescue at exposure levels near the PEL. category) or had no employees ‘engaged including a map of the property
However, if extremely high levels of in construction work’ (an owner of an showing a confined space marked for
exposure far above a PEL occurred, one office building might fit this category)’’ storage of containers of flammable
of these substances could potentially (ID–117, p. 5). OSHA notes that it has liquids, then the management company
pose a risk to self-rescue, which would already addressed the commenter’s first must relay to the controlling contractor
concern because an entity only meets hired to oversee welding operations the
in turn trigger the fourth condition of
the definition of a ‘‘host employer’’
hazardous atmosphere. location of that space, its contents, and
under the final rule if it is ‘‘an
The note also addresses a comment any previous measures used to address
employer.’’ OSHA disagrees with the
that PELs regulating substances with them (e.g., ‘‘when the painters came,
commenter’s second assertion, and has
long-term effects, such as iron oxide they tried to move the containers but the
addressed the propriety of placing
emitted during welding or xylene containers began to leak and soaked into
duties on the host employer, and
emitted when painting, should not the floors so the painters had to
OSHA’s authority for doing so, in the
automatically trigger the PRCS continuously ventilate the whole area
discussion of § 1926.1203(h) later in this
requirements (ID–028). While OSHA during their entry.’’) The property
preamble.
agrees that iron oxide by itself would OSHA also added a note to the owners would not have a separate duty
not trigger permit restrictions because definition of ‘‘host employer’’ to address to relay that information to the
the symptoms of iron oxide exposure situations in which the owner of the controlling contractor. In another
would generally not prevent an entrant property contracts with a management example, the owner of a commercial
from exiting a confined space, xylene is company to manage the property. OSHA property hires a professional property
highly flammable and would therefore understands that this type of management company to manage a
present a hazard if the potential exists arrangement is somewhat common with property. The property owner turns over
for the concentration of xylene to commercial properties, and that in all relevant information to the
exceed the LFL. many cases the management company management company. The
A different commenter suggested that will be the principal custodian of management company contracts with a
OSHA avoid potential confusion by blueprints and other information about general contractor to oversee
rearranging the order in which the the property that identifies confined renovations in a furnace room and
subparagraphs in the definition of spaces on the property or is otherwise boilers on the property, and the general
‘‘hazardous atmosphere’’ are presented relevant to confined spaces work on that contractor hires a subcontractor to
to reflect the order in which OSHA property. Because the host-employer perform the construction work inside
requires atmospheric testing and requirements in final § 1926.1203(h)(1) the boilers, which are activated through
monitoring (oxygen content, are designed to ensure that relevant an electrical system. Under this
flammability, then toxicity—see information about the property and standard, the management company has
§ 1926.1204(e)(3) of the final rule) (ID– known hazards therein is conveyed to a duty to notify the controlling
132, p. 2). OSHA does not agree that the employers who will be performing work contractor that the boiler tanks are
order of presentation in this definition in confined spaces, OSHA clarifies in connected to the electrical system, the
is likely to cause confusion, particularly the note that the entity that possesses way in which that electrical hazard is
when the actual order of testing is that information, either the owner or the normally addressed (e.g., isolating the
spelled out in § 1926.1203(e). OSHA did management company, will serve as the electrical hazards by disconnecting, and
not make this change in the final rule so host employer for the purposes of this locking out, the power source).
that it could to keep the definition of standard for as long as the company Hot work means operations capable of
‘‘hazardous atmosphere’’ in this final manages the property (if there is a providing a source of ignition, such as
rule similar to the definition of that term change in management companies, the riveting, welding, cutting, burning, and
heating. In § 1910.146(b), OSHA defined conditions which would impair an employer to treat the entire space as a
‘‘hot work permit’’ to describe the same entrant’s ability to self-rescue and either permit space even after the employer
activity, but focused on the permit pose a threat to life or have the capacity has taken steps to ensure that employees
rather than the work. OSHA did not to cause irreversible adverse health could not come in contact with the
include the word ‘‘permit’’ in the effects, and notes that all other OSHA physical hazard. OSHA has reached a
definition in this final rule because the standards regarding exposure to similar result in most circumstances by
final regulatory text uses only the term hazardous substances continue to apply. interpreting the general industry
‘‘hot work,’’ and does not use the term Inerting means displacing the standard to allow employers to
‘‘hot work permit.’’ atmosphere in a permit space by adding ‘‘eliminate’’ hazards in a similar manner
Immediately dangerous to life or a noncombustible gas (such as nitrogen) without necessarily deeming it
health (IDLH) means any condition that to such an extent that the resulting isolation. See, e.g., October 27, 1995,
could cause a threat to life, cause atmosphere is noncombustible. The letter to William Taylor (temporary floor
irreversible health effects, or otherwise definition is identical to the general could be used to eliminate fall hazard
inhibit an employee’s ability to escape industry definition, except for a minor from inwardly converging walls). But in
from a permit space. The proposed grammatical change. OSHA also the construction context the addition to
definition of ‘‘IDLH’’ also included included a note from the general the definition of isolation addresses the
separately any condition that exposes an industry standard to remind employers issue directly and provides more
employee to ‘‘serious physical harm,’’ that the inerting process results in an flexibility for employers to address
which some commenters opposed. (ID– atmosphere that is oxygen deficient; physical hazards for the purpose of
0013, p. 2; ID–219.2, p. 74; ID–0147, p. oxygen deficiency is a separate alternative entries under § 1926.1203(e)
3.) In particular, one commenter noted atmospheric hazard identified in the (see the discussion of § 1926.1203(e) for
that the definition of ‘‘IDLH’’ in third subparagraph of ‘‘hazardous additional explanation on the difference
§ 1910.146(b) does not include every atmosphere.’’ Accordingly, the final rule between the general industry standard
condition that could cause ‘‘serious prohibits employees from working in and this final rule regarding alternative
physical harm,’’ and asserted that the that space without a permit program procedures for addressing permit spaces
use of this term makes it less clear that which includes use of necessary PPE. with hazardous atmospheres and
an IDLH condition is one associated Isolate or Isolation means the physical hazards).
with urgent danger. (ID–0013, p. 2) For process—such as misaligning or A different commenter suggested that
example, the commenter asserted that, removing sections of lines, pipes or using the term ‘‘isolation’’ to refer to the
under the proposed definition, an IDLH ducts; a double block and bleed system; elimination of a physical or atmospheric
condition would be present when an lockout or tagout of all sources of hazard will be confusing since industry
employee breaks his/her nose. energy; or blocking or disconnecting all generally uses the term ‘‘isolation’’ to
Another commenter asserted that mechanical linkages—that an employer refer to the control of a hazard and not
‘‘irreversible adverse health effects’’ uses to completely protect entrants from to the elimination of the hazard (ID–
should not be an element of the IDLH the release of energy or other hazard 098.1). OSHA agrees that the terms are
definition unless OSHA adds language into a confined space. This definition is not interchangeable, and has tailored
tying those effects to an impairment of based on the definition in § 1910.146(b) the definition of isolation accordingly.
the ability for self-rescue (ID–0219.2, p. and the proposed rule, but OSHA made While eliminating a hazard or removing
74.). OSHA notes that the revised two minor adjustments to the definition it altogether from a confined space
definition of IDLH is applied in this in this final rule and added a would constitute means of isolating a
standard through the definition of clarification regarding isolation of a hazard, isolating the hazard in the
hazardous atmosphere, and excludes portion of a contiguous space such as a context of this rule does not necessarily
‘‘an atmospheric concentration of any sewer system. First, OSHA clarified that eliminate it from the space altogether in
substance that is not capable of causing the purpose of isolation is to protect the sense that the physical item may
death, incapacitation, impairment of employees, rather than the space itself, remain in the space and that it might
ability to self-rescue, injury, or acute from the release of hazards into the still pose a hazard absent the isolation
illness’’ (see Note to the definition of space. In most cases this involves measures. For example, if exposed rebar
‘‘hazardous atmosphere’’). Thus, the isolating the entire space from a hazard, is sticking out of a wall in a confined
standard follows the general industry such as isolating a room from a potential space, the employer may eliminate the
standard and is as appropriately focused source of flooding. However, in some hazard by pounding the rebar into the
on conditions that would impair the cases employers may be able to isolate wall so that it does not protrude in any
ability to self-rescue as is the definition a hazard inside a confined space, and way; it may remove the hazard by
in the general industry standard. In a the final rule’s emphasis on protecting cutting out the rebar and carrying it out
comment submitted after the hearing for employees, rather than the space, allows of the space; or it may isolate the rebar
this rulemaking, the same commenter for that type of isolation. To that end, by erecting a barrier in a manner that
did not object to the inclusion of the second difference from the general effectively prevents the possibility of
‘‘irreversible adverse health effects’’ in industry definition is that in the final anyone coming into contact with the
the general industry standard, asserting rule OSHA defines ‘‘isolate’’ to include rebar.
that the general industry standard ‘‘does employers’ use of physical barriers to Both of the definitions in the general
not regulate non-acute hazards’’ (ID– eliminate the opportunity for contact industry rule and this final rule permit
219.2, p. and 71.) However, OSHA finds between an employee and a physical ‘‘tagout’’ in addition to ‘‘lockout’’ as a
no evidence in the record, even after 20 hazard inside a confined space, as means of isolating a hazard, but in both
years of experience with the general requested by a commenter (ID–061, p. cases the tagout process involves more
industry standard, that this ‘‘irreversible 6). This addresses commenter concerns than the placement of a tag on
adverse health effects’’ component of that a single physical hazard such as equipment because tagging equipment
the IDLH definition would be less low-hanging pipe or a sharp object does not prevent the release of a hazard
appropriate for the construction would unnecessarily foreclose into the space. As discussed below,
industry. OSHA has thus modified the alternative entries under § 1926.1203(e) OSHA has added definitions of
definition of IDLH to focus on (discussed below) and require an ‘‘lockout’’ and ‘‘tagout’’ to ensure that
the regulatory text of this final rule discussion of ladders). The proposed Lockout refers to a means of isolating
reflects these critical elements of the construction rule, but not the general a physical hazard (typically an electric-
general industry standard. industry standard, defined this term. powered device) by placing a lockout
Several commenters asserted that the The proposed definition referred to device on an energy isolating device in
definition of ‘‘isolation’’ should not ‘‘hazards’’ rather than ‘‘trip hazards.’’ accordance with established procedures
include misaligning or removing OSHA did not include in this final to ensure that the equipment which
sections of lines, pipes, or ducts, but did standard the reference to all ‘‘hazards’’ poses a hazard and the energy isolating
not provide a reason for this assertion because the Agency believes that term device cannot be operated or
(ID–025, p.2; –027, p. 4; –095, p. 2). The was potentially too broad, and that its inadvertently energized until the
general industry confined spaces inclusion in this final standard would lockout device is removed. This
standard at § 1910.146(b) includes render all the other examples definition is identical to the definition
misaligning or removing sections of redundant. Instead, the final definition in the general industry standard (see
lines, pipes, or ducts in its definition of refers to ‘‘trip hazards,’’ which is a § 1910.147(b)). OSHA has included it to
‘‘isolation.’’ Without a clear reason to condition that is similar to the other maintain consistency with the general
depart from this established examples, and provides a greater degree industry approach to lockout in
understanding of the term ‘‘isolation,’’ of guidance than the term ‘‘hazards.’’ confined spaces. As discussed in the
OSHA continues to include the One commenter objected to the explanation for ‘‘Isolate or isolation’’,
misalignment or removal of sections of inclusion of ‘‘poor illumination and above, lockout is one method of
lines, pipes, or ducts as a form of slippery floors’’ in the definition, isolating a physical hazard in a confined
‘‘isolation’’ to match the definition of arguing that the regulated community space.
the term in § 1910.146(b). To the extent does not generally understand these Lower flammable limit (LFL) or lower
that the commenters were concerned conditions as ‘‘limited or restricted explosive limit (LEL) means the
that removing a section of pipe within means for entry and exit’’ as used in the minimum concentration of a substance
a space would not isolate employees general industry confined spaces in air needed for an ignition source to
from a hazard entering the space, such standard at § 1910.146(b) (ID–153, p. cause a flame or explosion. The
an action would not meet the definition 14). The commenter did not explain measurement is usually expressed in
of ‘‘isolation’’ if it does not effectively why poor illumination and slippery terms of percentage by volume of gas or
and completely prevent employee floors would not limit or restrict means vapor in air. When more than one type
exposure to the hazard. The removal of for entry or exit. The same commenter of flammable substance is present in the
a section of a water pipe that would acknowledged that § 1910.146 does not air, the LFL is derived from the
effectively divert water away from a define this term, but nevertheless combined sum of all flammable
confined space could be a form of accused OSHA of ‘‘changing the substances as a percentage of the total
isolating the employees in that space meaning of the term.’’ OSHA disagrees, atmosphere. The definition is identical
from the water hazard; disconnecting a and is retaining the list of examples in to the proposed definition and is
sewer pipe in a location where fumes or the final rule. The Agency previously consistent with the use of the term in
physical hazards could still enter a explained in its compliance directive on the general industry standard. The
confined space and affect employers general industry confined spaces, OSHA Agency did not receive any comments
(such as disconnecting the pipe at a Directive CPL 02–00–100: Application on this definition.
location inside the confined space or of the Permit-Required Confined Spaces Monitor or monitoring means the
immediately adjacent to the space (PRCS) Standards, 29 CFR 1910.146 process used to identify and evaluate
where the remainder of the pipe (May 5, 1995), that a ‘‘space has limited the hazards after an authorized entrant
entering the confined space is not or restricted means of entry or exit if an enters the space. This is a process of
sealed) does not meet the definition of entrant’s ability to escape in an checking for changes that the employer
‘‘isolation.’’ emergency would be hindered.’’ must perform in a periodic or
Another commenter asserted that Therefore, OSHA concludes that the continuous manner after the completion
defining ‘‘isolation’’ differently from meaning of ‘‘limited or restricted means of the initial testing or evaluation of that
‘‘control’’ could cause confusion (ID– for entry and exit’’ as used in the space.10 The proposed rule included a
025, p. 2). This comment highlights the general industry standard already definition this term. OSHA included the
need to have a separate definition: encompasses these conditions, and that definition in this final rule, but revised
‘‘Isolate or isolation’’ is distinct from the Agency is simply providing the it slightly to make it clear that
‘‘control’’ in this final rule because the same guidance more explicitly in this monitoring does not apply solely to
former term requires the elimination or final standard. atmospheric hazards.
removal of the hazard. Control, on the Line breaking refers to the process of Non-entry rescue means a rescue,
other hand, merely entails a reduction opening a pipe or duct when the usually by the attendant, that retrieves
in the degree of a hazard or a reduction substance inside could injure an employees in a permit space without the
in the risk that the hazard will cause an employee because of the characteristics rescuer entering the permit space. While
injury or death. For example, an of the substance or the manner in which the general industry standard does not
employer can control an atmosphere it is released from the conductor. This include a definition of this term, the
through ventilation, but it cannot use definition is identical to the proposed rule did include such a
ventilation to isolate a space from a corresponding definition in the general definition. OSHA included the
hazard. industry standard. Although the term is definition in this final rule, but clarified
Limited or restricted means for entry not otherwise used in the text of this
the distinction between entry rescue, as

or exit means a condition that may final standard (or in the text of the defined above, and rescue that does not
obstruct an employee’s ability to exit or general industry standard), OSHA involve entering the permit space.
enter a confined space, including trip included it for parallelism with the Non-permit confined space means a
hazards, poor illumination, slippery general industry standard and to inform confined space that meets the definition
floors, inclining surfaces and ladders construction employers of the hazards
(see the earlier discussion of the that may be associated with opening an 10 OSHA uses ‘‘periodic testing’’ and ‘‘periodic
definition of ‘‘confined space’’ for a existing pipe or duct. monitoring’’ interchangeably in this standard.
of a confined space, but does not meet atmosphere can trigger a permit space, or detects such a gas near a ventilation
the requirements for a permit-required and separated the third and fourth source for that space, then the space
confined space, as defined in this characteristics from the proposed would have the potential to contain a
subpart. This term, as defined in the definition (‘‘an engulfment hazard or hazardous atmosphere when the PEL or
general industry standard at other physical hazard’’) so that LEL are below the ‘‘hazardous
§ 1910.146(b), requires a separate engulfment hazards addressed in the atmosphere’’ levels. The potential for a
analysis of hazards or potential hazards. second characteristic in the final hazardous atmosphere remains until the
OSHA revised the general industry definition while some physical hazards employer confirms that the space is
definition in the final rule to make it are encompassed by ‘‘other recognized completely free of the toxic gas or the
clear that a non-permit confined space serious safety or health hazard’’ in the gas level rises to a hazardous level.
is simply the inverse of a permit- fourth characteristic; there was not a As OSHA stated in a December 2,
required space: It meets all of the fourth characteristic in the proposed 2005, letter to Ms. Laura Johnson, a
requirements to be a confined space, but definition. Otherwise, this definition is potential hazard exists if the employer
does not meet the criteria to be a permit- the same as the definition in the does not entirely remove the source of
required confined space (see the proposed rule. the hazard. For example, a space will
discussion of the definition of ‘‘permit- Several commenters noted that the have the potential to contain a
required confined space’’ below in this proposed definition of ‘‘permit-required flammable atmosphere if any piping,
preamble). A confined space in which confined space’’ included any ‘‘physical containers, materials brought into the
all physical hazards are isolated or hazard,’’ and asserted that the definition space, or residual contamination of the
eliminated and in which there are no of ‘‘permit space’’ would, therefore, space brings combustible dust or
actual or potential hazardous include non-serious hazards in a flammable gas, vapor, or mist into the
atmospheres is a non-permit confined confined space (ID–013, p. 3; –147, pp. space. Employers can refer to a
space. 2–4). In the proposed rule, OSHA substance’s Safety Data Sheet (SDS) as
Oxygen deficient atmosphere means addressed this concern in the definition one indicator of the hazards the
an atmosphere containing less than 19.5 of ‘‘physical hazard,’’ which limited the employer should reasonably anticipate
percent oxygen by volume. This final definition to hazards that were capable as a result of using a particular
standard defines the term exactly as it of causing ‘‘death or serious physical substance. Testing and monitoring are
is in § 1910.146(b). harm.’’ In this final rule, OSHA defined some other methods of identifying
Oxygen enriched atmosphere means the term to match the definition in potentially flammable atmospheres.
an atmosphere containing more than § 1910.146(b), which specifies that the
OSHA also previously clarified that an
23.5 percent oxygen by volume. The phrase ‘‘contains any other recognized
appropriate lockout procedure that
final standard also defines this term serious safety or health hazard’’ applies
exactly as it is in § 1910.146(b). blocks a potentially hazardous
only to serious hazards, and the
OSHA based the general industry atmosphere does not eliminate the
definition of serious physical harm
definitions for ‘‘oxygen deficient potential for a hazardous atmosphere, so
(now ‘‘serious physical damage’’ in the
atmosphere’’ and ‘‘oxygen enriched the space cannot be classified as a non-
final rule) excludes injuries that could
atmosphere’’ on levels set by the permit-required space. See August 28,
not impair the ability of an entrant to
National Institute for Safety and Health 1995 letter to William K. Principe.
escape the space without assistance. As
(NIOSH) (see 58 FR 4474 and 4476). The Under this final rule, however,
noted in the explanation of the
proposed rule did not include separate definition of hazardous atmosphere, this employers who can effectively isolate a
definitions of these terms, but did standard is focused on hazards that potential hazardous atmosphere by
incorporate the same levels into the could impair the ability of an entrant to using one of the other techniques
definition of ‘‘hazardous atmosphere.’’ self-rescue. described in the definition of the term
As discussed in the explanation above The proposed definition of permit- ‘‘isolation’’ in § 1926.1202 (excluding
of ‘‘hazardous atmosphere,’’ OSHA does required confined space referred to a lockout/tagout) may be able to re-
not agree with several commenters’ ‘‘hazardous atmosphere,’’ which OSHA classify the space.
suggestions for an alternative oxygen defined to include an existing or Permit-required confined space
level. OSHA did not receive any other ‘‘potential’’ atmosphere. One program (permit space program) means
comments disputing that the commenter urged OSHA to clarify that the employer’s overall program for
construction industry generally accepts a ‘‘potential hazardous atmosphere’’ is a regulating employee entry into permit
these definitions of the terms. hazardous atmosphere that an employer spaces and protecting employees from
Permit-required confined space could anticipate, as opposed to a permit space hazards. This definition of
(permit space) means a confined space hazardous atmosphere that is ‘‘remotely this term in the final standard
that has at least one of the following possible under unforeseen conditions,’’ duplicates the term’s definition in
characteristics: (1) Contains or has the such as a train carrying chlorine § 1910.146(b). An employer need not
potential to contain a hazardous crashing and causing a toxic cloud of tailor a confined space program
atmosphere; (2) contains an engulfment chlorine that engulfs an entire worksite. specifically to each space entered. If the
hazard; (3) is configured so that it poses (ID–0138, p. 4.) The phrase ‘‘potential to permit contains most of the relevant
a risk of entrapment or asphyxiation; or contain a hazardous atmosphere’’ in the information required by this final rule,
(4) any other recognized serious context of this final rule refers to the the program may be general and
hazards. OSHA revised this definition existing conditions affecting the designate the particular permit that the
in final rule § 1926.1202 to make it confined space at the time of entry and employer developed earlier for such
identical to the definition in the general any changes to those conditions over the work, along with any other testing
industry confined spaces standard at duration of the entry, and limits hazards procedures, PPE, or other information
§ 1910.146(b). Consequently, the final to those hazards that a qualified person normally required in response to the
rule diverges from the proposed rule in should anticipate would affect that types of hazard present in the space.
that OSHA revised the order of the space. If an employer becomes aware (or Accordingly, the employer is still
characteristics from the proposed rule, should be aware) of the release of a toxic responsible for developing the
clarified that a potential hazardous gas that could enter the confined space, appropriate plans and other information
required by this standard to address the § 1910.146 and this final rule use the hazard, or there is enough room in the
unique conditions of each space. term ‘‘potential hazard’’ throughout the confined space to barricade the
In the general industry standard, standard, so OSHA is using the term hazardous condition and prevent
OSHA uses the term ‘‘permit system’’ as with which the industry is already employee exposure to the hazard posed
the heading for § 1910.146(e), and familiar. by the pipe, OSHA would consider the
defines it in § 1910.146(b). In the final One commenter noted that, in the physical hazard isolated within the
rule, OSHA uses the term ‘‘permitting proposed rule, OSHA defined ‘‘physical meaning of that term in this final
process’’ as the heading of the parallel hazard’’ to encompass not only hazards standard. If there are no other physical
requirement at § 1926.1205, but does not that could cause death or serious hazards in the space, and the employer
employ the term anywhere else in the physical harm, but also ‘‘a hazard that can demonstrate that it satisfied the
text of the final rule. OSHA, therefore, has a reasonable probability of occurring other conditions of § 1926.1203(e), then
chooses not to provide a separate in or near a confined space’’ (ID–219.2, the employer may use the ventilation
definition of ‘‘permitting system’’ in p. 75). The latter part of the definition alternative procedure in that space.
§ 1926.1205 because such a definition is did not require the hazard to result in If, however, there is a piece of
unnecessary; the ‘‘permitting system’’ is death or serious physical harm, so the equipment or other physical object
comprised of the requirements of commenter objected on the grounds that inside a confined space that could cause
§ 1926.1205. the definition of ‘‘hazard’’ would be serious physical damage to an employee
Physical hazard means an existing or unnecessarily broad because it would upon impact, and the employer does not
potential hazard that can cause death or cover minor hazards (i.e., ‘‘a stubbed eliminate or isolate that hazard, then the
serious physical damage. Examples pinky finger or toe’’) that would, in turn, employer must follow all of the PRCS
include: Explosives (see paragraph (n) of trigger the permit restriction in the procedures set forth in § 1926.1204. The
§ 1926.914 for the definition of proposed standard (id). This final commenter did not provide any
‘‘explosive’’); mechanical, electrical, definition does not encompass stubbed evidence of why an ‘‘impact hazard’’ is
hydraulic, and pneumatic energy; fingers or toes or other minor injuries; different than any other type of physical
radiation; temperature extremes; therefore, the Agency did not include hazard, nor did the commenter indicate
engulfment; noise; and inwardly the extra component of the proposed any inherent restrictions on physical
converging surfaces. The term ‘‘physical definition in the final rule. The movement that would necessarily limit
hazard’’ also includes chemicals that definition duplicates the general the force of the impact to a level not
can cause death or serious physical industry standard in this regard, and it capable of causing serious physical
damage through skin or eye contact also limits coverage to hazards that can damage. In the absence of such
(rather than through inhalation). The cause death or ‘‘serious physical evidence, OSHA believes that an object
general industry confined space damage,’’ which OSHA has defined to such as a low hanging pipe or angle-iron
standard does not define the term clarify the differences between ‘‘serious strut has the same potential to impair
‘‘physical hazard.’’ OSHA uses the term physical damage’’ in this standard and the ability of an entrant to exit the
‘‘physical hazard’’ throughout this final ‘‘serious physical harm’’ as it is used in confined space unaided as other
rule, however, and defined this term in other OSHA standards. For additional physical hazards. For example, an
the proposed rule to clarify its meaning. information, see the explanation for the entrant could walk into a low-hanging
The proposed definition of ‘‘physical definition of ‘‘serious physical damage’’ pipe and receive a head injury that
hazard’’ referred to a hazard that can below in this preamble. could render the entrant unconscious,
cause harm ‘‘in or near a confined Another commenter asserted that the or the entrant could receive some other
space,’’ or a hazard that might ‘‘occur’’ definition of ‘‘physical hazard’’ should form of serious injury to another part of
in or near the confined space. OSHA not encompass equipment or material the body that could render the entrant
deleted the language tying the location inside a confined space that could cause immobile.
of where the harm could occur to the an ‘‘impact hazard’’ (e.g., ‘‘a low Two commenters suggested that the
meaning of ‘‘physical hazard’’ because a hanging pipe or angle iron strut’’) examples in the definition should
condition establishing a physical hazard simply because it is present inside a include both fire and crush hazards (ID–
can exist wherever it is regardless of confined space and could injure an 025, p. 2; –095, p. 2). Another
proximity to a confined space (e.g., employee who comes into contact with commenter suggested that the final rule
exploding dynamite is a physical hazard it (ID–061, p. 7). The commenter definition should include falls as an
whether or not it is in or near a confined expressed concern that if OSHA example (ID–211, Tr. p. 42.) OSHA
space, and an engulfment hazard may included these types of equipment or agrees that each of these is an example
originate in a sewer far upstream from materials, the alternate procedures set of a physical hazard, but notes that the
where employees are located). OSHA forth in § 1926.1203(e) of the final rule list of examples provided in the
provides appropriate guidance in the would almost never be available definition is not an exhaustive list.
implementing requirements of the final because such spaces must be free of Therefore, OSHA concludes that it is
standard to ensure that the standard physical hazards. In response, OSHA not necessary to add to this non-
focuses on physical hazards related to modified the definition of ‘‘isolation’’ exhaustive list.
confined spaces. See discussion of final and the ventilation alternative The Agency included ‘‘noise’’ in the
§§ 1926.1203 and 1926.1204 in this procedure in § 1926.1203(e) to make it proposed definition of ‘‘physical
preamble. clear that this alternative procedure hazard’’ as one example of such a
The proposed definition of ‘‘physical remains an option for employers if the hazard because sound waves constitute
hazard’’ also referred to a hazard that employer protects entrants sufficiently a physical disturbance of the air that
has a ‘‘reasonable probability’’ of from the impact hazards by eliminating results in a physical impact on the
occurring, and referred to the same list them or isolating them through the use human ear. Several commenters
of examples now incorporated into the of engineering controls. For example, if asserted that excessive noise should not
text of the final rule. OSHA has replaced a low-hanging pipe does not obstruct trigger the application of PRCS
that phrase with ‘‘potential hazard’’ to the entrance or egress of the space and procedures when no other hazard exists
keep the terminology consistent with is adequately padded to prevent (ID–112, p. 17; –114, p. 2; –138, p. 4).
the general industry standard. Both potential employee exposure to the These commenters indicated that the
final standard should not treat noise as Two of these commenters asserted constitute a control, OSHA is permitting
a physical hazard if the noise did not that the use of personal protective employers to use appropriate hearing-
rise to the level of impairing the ability equipment can protect employees protection equipment as a means of
of an entrant to exit the space without effectively from noise hazards, but addressing a noise hazard in a permit
aid; however, these commenters did not expressed concern that OSHA would space when the PPE attenuates the noise
assert, or provide any evidence prohibit employers from working in a to acceptable levels. However, if the
supporting the view, that noise alone is confined space with excessive noise employer is unable to reduce an
incapable of such impairment or because the definition of ‘‘control’’ employee’s exposure to noise to a level
otherwise causing serious physical provides explicitly that ‘‘personal where it does not constitute a threat of
damage, as OSHA defines it in this final protective equipment is not a control’’ death or serious physical damage, then
rule. Therefore, OSHA is retaining the (ID–114, p. 2.) As another commenter the employer must not permit
term ‘‘noise’’ as an example of a noted, OSHA would treat earplugs as employees to enter any portion of the
physical hazard in this final definition. protection from a hazard, but not permit space that would expose the
One of the commenters questioned control of the hazard, and, therefore, employee to such a noise level.
whether noise levels exceeding the would prohibit work in an area with an Prohibited condition means any
decibel levels specified in § 1926.52, uncontrolled noise hazard (ID–112, p. condition in a permit space not allowed
OSHA’s construction noise standard, 17). by the permit during the period of
would trigger the permit-space The final rule will not prevent work authorized entry. This portion of the
requirements. The final construction definition is identical to the definition
in a noisy confined space if employees
confined spaces standard does not in § 1910.146(b), and is similar to the
are properly protected. In the final rule,
specify this threshold, and OSHA notes definition of ‘‘unplanned condition’’ in
OSHA requires employers to protect
that noise will only trigger PRCS the proposal. In addition, the Agency
their employees adequately from
procedures if it reaches a level at which added a sentence to the definition in the
confined-space hazards; in protecting
it can cause death or serious physical final standard to clarify that a hazardous
employees, other construction standards
damage. For example, noise would atmosphere is always a prohibited
also would apply. Therefore, if the noise
constitute a physical hazard if it is loud condition, unless the employer can
is above the decibel levels specified in
enough to substantially reduce the demonstrate that use of appropriate PPE
29 CFR 1926.52, employers must protect
will effectively protect entrants; this
efficiency of the entrant’s ears to process their employers in accordance with that added condition means that employees
communications from the attendant or section, regardless of whether the noise cannot work in a hazardous atmosphere
entry supervisor regarding exit conditions trigger the permit-space without the appropriate PPE. The
instructions or other emergency requirements of this final standard. definition of hazardous atmosphere in
information, thereby impairing the OSHA’s Field Operations Manual the general industry standard implies
ability of the employee in the permit provides that employers may ‘‘rely on this condition, which the Agency made
space to exit the space safely (see the personal protective equipment and a explicit in this final rule for
definition of ‘‘serious physical damage,’’ hearing conservation program, rather construction.
which includes ‘‘an impairment . . . in than engineering and/or administrative Qualified person means one who
which a body part is made functionally controls, when hearing protectors will successfully demonstrates his/her
useless or is substantially reduced in effectively attenuate the noise to which ability to solve or resolve problems
efficiency’’ and specifically mentions employees are exposed to acceptable relating to the subject matter, the work,
disorientation). OSHA has previously levels.’’ (CPL 02–00–150 at Ch. 4, XI.B). or the project. While the general
recognized the capacity of noise to However, feasible administrative and/or industry does not include this term in
create a hazardous situation by masking engineering controls must be used when the definition of ‘‘entry supervisor,’’ the
warning shouts or signals (see, e.g., personal protective equipment may not proposed rule did, and OSHA retained
OSHA’s preamble to § 1910.95, the reliably reduce noise levels received to this term in the final standard. While
general industry noise exposure the levels specified in the standard or the proposal did not define ‘‘qualified
standard, at 46 FR 4080 (Jan. 16, 1981). when those controls are less expensive person,’’ the final rule’s definition is
Employers generally can address these than an effective hearing conservation similar to definitions of the term found
types of noise hazards by implementing program. Employers choosing to rely on in § 1926.32(m) and other subparts of
a permit program that uses non-auditory personal protective equipment instead OSHA’s construction safety standards
cues, such as flashing lights, to resolve of administrative or engineering (see, e.g., § 1926.1401—Cranes and
communication issues. controls must ensure that employees derricks in construction). In this way
In some cases, the sound waves from will be aware of continuous monitoring the final rule clarifies that an ‘‘entry
an explosion or other air disturbance alarms and other hazard alerts in a supervisor’’ clarifies that the employer
may be so intense that it might cause timely manner regardless of PPE use. must ensure that the entry supervisor
physical pain or disorient an entrant to Therefore, to promote consistency with has sufficient experience to properly
the extent that it could impair the OSHA’s treatment of noise hazards conduct identification, testing, and
ability of the entrant to exit the space under § 1926.52, OSHA permits planning for the type of confined space
unaided. See, e.g., Stephen A. Fausti, employers to use these same methods to involved.
Ph.D., et al., Auditory and vestibular address the noise hazards in a permit Representative permit space means a
dysfunction associated with blast- space so long as the administrative and confined space, or mock-up of a
related traumatic brain injury, Journal engineering controls, or the personal confined space, that has entrance
of Rehabilitation Research and protective equipment, do not interfere openings that are similar to, and is of
Development, Vol. 46, No. 6 (2009) pp. with the ability of the entrant to similar size, configuration, and
797–810 (discussing the impacts of maintain effective communication with accessibility to, the permit space that
excessive noise exposure, such as the the attendant and other workers. authorized entrants enter. OSHA
noise caused by a blast or explosion, Notwithstanding the general statement simplified this definition from the
including immediate temporary hearing in the definition of ‘‘control’’ that definition included in the proposed
loss and sensory damage). personal protective equipment does not rule, but the simplification is a non-
substantive change that clarifies the certain cases, and at least one construction industry sectors’’ (ID–
criteria for a representative permit commenter supported this option in 219.2, p. 72). In addition, OSHA
space. OSHA changed the term from limited circumstances such as some recognizes that a similar issue exists
‘‘simulated permit-required confined horizontal entries (ID–94, p. 1) (see also with the reference to illness. The
space’’ to ‘‘representative permit space’’ the discussion of the requirements proposed definition included ‘‘illnesses
because the Agency used the latter term retrieval lines in § 1926.1211(c)(1)). that could shorten life or substantially
in the general industry confined spaces Serious physical damage refers to an reduce physical or mental efficiency by
standard at § 1910.146; however, impairment or illness in which a body impairing a normal functioning body
changing the terminology has no effect part becomes functionally useless or part.’’ This language could be read as
on the meaning of the term and the substantially reduced in efficiency. including chronic illnesses that do not
requirements relating to it. OSHA One commenter noted that the limit the ability to self-rescue. For the
changed this terminology to make this proposed definition (‘‘serious physical purposes of this standard only, OSHA
final rule more consistent with harm’’ in the proposed rule) included intends the reference to illness to
§ 1910.146, for the reasons set forth impairments that are ‘‘chronic,’’ in encompass only those illnesses that
above in the section, ‘‘Decision to addition to impairments that are could interfere with the entrant’s ability
abandon the proposed new ‘‘acute,’’ and asserted that this to exit the confined space. Therefore,
classification system.’’ definition is, therefore, too broad the final rule deleted this language, and
Rescue means retrieving, and because it would apply on exposing an inserted ‘‘illness’’ after ‘‘impairment’’ to
providing medical assistance to, one or employee to a minor hazard that would make clear that only illnesses that could
more employees who are in a permit not interfere with the ability to self- impede self-rescue are covered in the
space. OSHA defined this term in the rescue (ID–219.2, p. 76). meaning of serious physical damage.
proposed rule, and included the term in The term ‘‘serious physical harm’’ has
Nevertheless, the Agency does not
the final rule unchanged except for a longstanding meaning within the OSH
believe that these distinctions make a
addition of the phrase ‘‘one or more’’ to Act that developed over many years
through litigation and many meaningful difference in employer
clarify that a rescue can involve the duties because the majority of hazards
retrieval of a single employee. rulemakings. When developing the
definition used in the final rule, OSHA in a confined space that could cause a
Rescue service means the personnel
used the Agency’s common serious physical injury are also likely to
designated to rescue employees from
understanding of ‘‘serious physical have the potential to impair the
permit spaces. This definition
harm,’’ as provided in the Agency’s entrant’s ability to exit the space
duplicates the definition of the term in
Field Operations Manual (FOM), which without aid. As OSHA stated in the
the general industry standard at
provides guidance to OSHA personnel FOM in a note explaining the term
§ 1910.146. In the proposed rule, OSHA
included specific statements that the conducting inspections and other ‘‘serious physical harm’’: ‘‘The key
term applied to both onsite and offsite activities in the field.11 The Agency determination is the likelihood that
personnel, and to personnel designated acknowledges that the FOM, compared death or serious harm will result IF an
by the employer for either non-entry or to the final rule, has a broader purpose accident or exposure occurs’’ (Emphasis
entry rescue (or both). In the final of providing guidance for the in the original).
standard, OSHA elected to use the enforcement of the OSH Act as a whole, Although one commenter belittled the
broader language of the general industry and that the inclusion of the phrase proposed definition of ‘‘serious physical
standard for consistency; however, the ‘‘acute or chronic’’ from the FOM in the harm’’ as encompaasing a ‘‘stubbed
Agency believes that there is no definition may not provide meaningful pinky finger or toe’’ criticized the
substantive difference between the guidance in the context of this final potentially broad scope of ‘‘serious
proposed and final standards in the rule. Therefore, OSHA changed the term physical harm’’ by suggesting that it
meaning of these statements. to ‘‘serious physical damage’’ to would include ‘‘a stubbed pinky finger
Retrieval system means the distinguish it from the broader term or toe’’ (ID–219.2, p. 75), such an
equipment used for non-entry rescue of used in the FOM and other contexts, argument improperly shifts the focus of
persons from permit spaces. The and also did not include the phrase ‘‘or the standard away from the hazard
purpose of the retrieval system is to acute or chronic’’ in this definition. By requiring protection and to the potential
provide a means of removing an entrant doing so, OSHA addressed the outcome of employee exposure to that
from a space quickly without exposing commenter’s concern that the reference hazard. If, for example, there is a
any additional employees to the hazards to ‘‘chronic’’ impairments would ‘‘cause physical obstruction in a confined space
of permit-space entry. This equipment the standard to apply to conditions that that is only capable of inflicting, as a
typically includes a retrieval line cannot pose a significant risk of harm maximum injury, a stubbed toe or
attached around the chest of the entrant from the entry’’ and thereby ‘‘increase finger, then OSHA agrees with the
or to a full-body harness worn by the the cost of the standard so drastically as commenter that such an obstruction
entrant, with the other end of the line to render it infeasible for all would not trigger any permit space
attached to a lifting device or anchor. requirements under this final standard.
Alternatively, the retrieval system may 11 OSHA based the definition in the proposed rule However, if it is reasonably foreseeable
consist of a retrieval line attached to on the Field Inspection Reference Manual, chapter that an obstruction could cause the
III, section C.2.b(2)(c). See 72 FR 67358. OSHA
wristlets or anklets when this method of subsequently published the Field Operations entrant to trip and either strike his/her
pulling the entrant from the confined Manual and updated it in April, 2011, but the head and lose consciousness, or fall and
space would be safer than using a body definition of ‘‘serious physical harm’’ remains break his/her arm or leg thereby
unchanged from the previous version: ‘‘Impairment impairing the entrant’s ability to exit the
harness. of the body in which part of the body is made
The definition of this term in the final functionally useless or is substantially reduced in space, then the presence of this hazard
standard duplicates the definition found efficiency on or off the job. Such impairment may would trigger the permit-space
in § 1910.146 except that it allows for be permanent or temporary, chronic or acute. requirements of this standard, and the
Injuries involving such impairment would usually
the use of anklets. In proposed require treatment by a medical doctor or other
entry employer would need to address
§ 1926.1213(a)(4), OSHA permitted the licensed health care professional.’’ See CPL 02–00– the hazard to protect employees it
use of ‘‘ankle straps’’ for retrieval in 150 II.C.3. at p. 4–11. directs.
Tagout, as used in this confined to ensure the same level of safety if they including the proposed definition of
spaces standard, is a two-step process use tagout when lockout is feasible. ‘‘ventilate’’ in the final rule.
that follows the general industry Second, the general industry standard Another commenter requested
approach: First, a tagout device must be provides examples safety measures clarification regarding how an employer
placed on a circuit or equipment that employers may use as a part of the can use forced air to ‘‘ventilate’’ while
has been deenergized, in accordance tagout process to reduce the likelihood also complying with OSHA’s welding
with an established procedure, to of inadvertent energization: Removal of requirements at § 1926.353(a) through
indicate that circuit or equipment being an isolating circuit element, blocking of (e) (ID–061.1, p. 2). Section
controlled may not be operated until the a controlling switch, opening of an extra 1926.353(a)(3) requires local exhaust
tagout device is removed. Second, the disconnecting device, or the removal of ventilation (LEV) when general
employer must ensure that the tagout a valve handle (§ 1910.147(c)(3)(ii)). mechanical ventilation does not provide
provides equivalent protection to Under the final rule, employers may sufficient protection. In addition,
lockout, or that lockout is infeasible. If also use these methods, when § 1926.351(a)(1) authorizes the use of
lockout is infeasible, the employer must applicable to their work, as part of their general mechanical ventilation. The
tag the equipment and also provide process for fulfilling their obligation to overlap of the welding standard and this
protection from stored (residual) energy. ensure that tagout provides equivalent confined spaces standard is addressed
This ensures that the final rule is more protection to lockout. Finally, even earlier in the explanation of
closely aligned with the full protections when tagout is used alone, the general § 1926.1201(c). Both of these practices
required for general industry work. industry standard requires the employer are consistent with the requirement in
Both the general industry rule and to relieve, disconnect, restrain and this final rule that employers use
this final rule permit ‘‘tagout,’’ in otherwise render safe stored (residual) ventilation that consists of continuous
addition to ‘‘lockout,’’ as a means of energy (see § 1910.147(d)(5)). forced-air. Accordingly, this confined
isolating some hazards. The Agency This same requirement applies in this spaces standard requires that employers
added a definition of ‘‘tagout’’ to the final rule to the use of tagout alone. use continuous forced-air ventilation to
construction standard because OSHA ventilate confined spaces. When an
Test or testing means the process by
intends the tagout process under this employee is welding inside a confined
which employers identify and evaluate
construction rule to parallel the process space, § 1926.353(a)(3) may require the
the hazards that may confront entrants
under the general industry rule, which employer to also implement LEV. In
of a permit space. Testing includes
requires compliance with § 1910.147— conclusion, OSHA believes that LEV
specifying the identification and
The control of hazardous energy alone is not sufficient for the purposes
evaluation processes the employer will
(lockout/tagout) (see § 1910.146(b); of providing general ventilation of a
perform in the permit space. This
§ 1910.147(a)(3)(ii)).12 That tagout confined space because LEV might not
definition is similar to the definition
process involves more than the eliminate all of the toxic material from
found in § 1910.146, except that OSHA the area, and any residual fumes would
placement of a tag on equipment, and added the word ‘‘test’’ to clarify that the
the final rule’s definition of ‘‘tagout’’ be more likely to build up and create a
definition applies to both words. OSHA potential or actual hazardous
ensures that the regulatory text of this is also including a note identical to the
final rule reflects the critical additional atmosphere in a confined space.
note to this definition on the general
elements of the general industry industry standard. The note emphasizes Section 1926.1203—General
standard. the importance of testing as the basis for Requirements
First, tagging equipment does not, by
developing and implementing adequate Final § 1926.1203 sets forth general
itself, prevent the release of a hazard
control measures. requirements for employers that have
into the space. Therefore, under
Ventilate or ventilation means operations within the scope of this
§ 1910.147(c)(2), an employer may use
controlling a hazardous atmosphere standard. This section establishes a
tagout alone (i.e., not in conjunction
using continuous forced-air mechanical comprehensive regulatory framework
with lockout) only if an energy isolating
systems that meet the requirements of under which employers must identify
device is not capable of being locked out
29 CFR 1926.57—Ventilation. This any permit spaces at their workplaces
or the employer can demonstrate that
definition is identical to the definition and take appropriate measures for the
the utilization of a tagout system will
of these terms in the proposed rule. protection of affected employees. It is
provide full employee protection. The
Some commenters asserted that the final similar to the general industry rule at
standard specifies that ‘‘full employee
definition should allow for the use of § 1910.146(c). The corresponding
protection’’ means that the employer
suction as a form of ventilation (ID– requirements in the proposed rule also
shall demonstrate that the tagout
061.1, p. 1; –210, Tr. p. 289). Although were similar to the requirements in this
program will provide a level of safety
the final rule does not prohibit the use final rule, but this final rule organizes
equivalent to that obtained by using a
of suction, suction is not an adequate the requirements differently.
lockout program (§ 1910.147(c)(3)).
means of providing the general Paragraph (a). Final § 1926.1203(a) is
Paragraph (2) of the final rule’s
ventilation required by this final rule. similar to the corresponding provision
definition of tagout requires employers
The general industry standard does not for general industry confined spaces at
12 OSHA did not include a definition of ‘‘tagout’’ include a definition of ‘‘ventilation,’’ § 1910.146(c)(1), with some minor
in the NPRM, though the preamble noted the but OSHA interpreted that standard as modifications. Final § 1926.1203(a)
Agency’s intent that ‘‘appropriate lockout/tagout precluding the use of ‘‘negative’’ suction requires an employer to have a
procedures’’ were required for isolation of physical ventilation to meet the requirements of competent person evaluate the spaces in
hazards (72 FR 67386). As explained earlier in this

preamble, OSHA is tailoring the final rule to follow
the standard. See April 24, 1996, letter which employees it directs may work,
the general industry rule more closely in response to Verne Brown. Suction may be and requires a two-step process for the
to numerous requests by commenters. If OSHA had appropriate to remove contaminants evaluation: (1) The competent person
allowed the use of tags without more, it would have from a specific operation close to the must evaluate whether a space meets
been a key distinction from the general industry
standard and would have allowed employers to
source of the contaminant, but not for the definition of a confined space, and
circumvent most of the permit-space requirements general ventilation of the entire if so, (2) the competent person must
involving physical hazards. confined space. OSHA is, therefore, identify, in accordance with other
provisions of this final rule, any The testing required by final determine whether a space meets the
confined spaces that are PRCSs through § 1926.1203(a) is only initial testing; definition of a confined space. If the
consideration and evaluation of the final § 1926.1204(b) addresses the employer determines that there is a
space, including testing of the space as detailed evaluation and identification of confined space on the worksite, the
necessary. The final construction rule hazards found within the space (see second step requires the employer to
specifies both the two-step approach discussion later in this preamble). The evaluate, in accordance with other
and the competent-person requirement primary purpose of the assessment provisions of this final rule, whether
more explicitly than in the general required by § 1926.1203(a) is to there are any actual or potential hazards
industry standard. determine whether the space is a permit in the confined space. Actual or
OSHA added the competent-person space so that this information can be potential hazards the employer must
requirement in response to several conveyed to employees, the controlling consider include atmospheric,
comments noting that the analysis contractor, and other employers at the engulfment, physical, or any other type
required for these evaluations site in order to prohibit unauthorized of hazard. Both stages of the initial
necessitated some level of expertise. entry. In some cases employers may evaluation are crucial, as correctly
(See ID–025, p. 2; –028, p. 4; –095, p. discover that the space is a permit space identifying both confined spaces and
2; –097, p. 3; –140, p. 3; –150, p. 2.) A after only limited testing and decide not the conditions or potential conditions
‘‘competent person,’’ which § 1926.1202 to allow their employees to enter the that would make a confined space a
defines under this standard, must be space at that point rather than fully permit-required confined space
capable of identifying the hazards of assessing the space. Employers who determines how the employer and
permit spaces and have the authority to intend to enter, however, may choose to employees will perform in and around
eliminate them promptly. Because final conduct more thorough testing that the space thereafter. Though the general
§ 1926.1203(a) requires the competent satisfies the requirements of both industry rule at § 1910.146(c)(1) does
person to conduct initial testing as § 1926.1203(a) and § 1926.1204(b) at the not explicitly identify the two steps,
necessary, the competent person also same time, so long as it does not delay they are implicit in § 1910.146(c)(1)
must be knowledgeable about their notification of their employees and because an employer cannot evaluate
appropriate testing. The correct initial the controlling contractor of the the hazards of a confined space without
identification of permit spaces is an existence of the permit space. first evaluating whether there are
important part of preventing Final § 1926.1203(a) also requires the confined spaces on the worksite, as well
unauthorized entry into those spaces competent person to consider and as the location of these confined spaces.
and ensuring that authorized entrants evaluate other elements of the confined This clarification that an employer must
have adequate protection. space to determine if it is a permit- first consider whether there are
As discussed in the explanation of the required confined space. Such elements confined spaces at a worksite also was
definition of ‘‘entry employer,’’ each include the configuration of the space in proposed § 1926.1204(b). The Agency
employer has a responsibility to protect and any physical hazards or obstacles to believes that making this requirement
all the employees that it directs, egress from the space. Both the testing explicit is necessary to ensure that
including employees hired directly by and consideration of the space are employers correctly assess the spaces so
that employer as well as other essential in making an initial that they can adequately protect
employees, such as temporary workers, determination whether a confined space employees from the hazards present in
who are under its the control at the is a permit-required space; the Agency the confined spaces.
worksite. Thus, each employer who believes that requiring these basic steps
directs a temporary worker to a work will ensure that employers correctly One commenter requested that OSHA
area must ensure that a competent identify PRCSs. clarify which employer has the
person evaluates that area for confined OSHA determined that employers responsibility to evaluate hazards in
spaces and permit spaces. must identify confined spaces that meet confined spaces (ID–086, p. 4). Final
Final § 1926.1203(a) also differs from the definition of a permit space at the § 1926.1203(a) clarifies the requirement
the general industry rule in that it time their work begins on a worksite by specifying that each employer that
explicitly specifies that the competent rather than when an employer decides directs employees who may work in a
person must identify confined and that employees will enter a confined confined space must perform the
permit spaces through consideration space. The Agency believes that the requisite evaluation. As in both the
and evaluation of other elements of the initial workplace survey is essential general industry standard and the
confined space, and testing as because it alerts employers to the need proposed rule, this evaluation provision
necessary. The atmospheric-testing to take measures to prevent applies to a group of employers larger
requirement in this final rule is less unauthorized entry into these spaces. than just entry employers. The general
specific than the atmospheric-testing OSHA further notes that while it may industry standard requires each
requirement in proposed § 1926.1204(b), not always be feasible for employers to employer to evaluate the workspace and
which would have required employers create and follow a full permit program determine if any confined spaces are
to test for atmospheric hazards using the before assessing an previously permit spaces (§ 1910.146(c)(1)). On a
procedures in proposed unexplored confined space, when it is construction worksite, there typically
§ 1926.1204(b)(3). However, final feasible employers must treat any entry are many more employers than at
§ 1926.1203(a) is more specific than the into a confined space as if the space was general industry worksites. Therefore,
corresponding provision in the general a permit space and eliminate or isolate under final § 1926.1203(a), each
industry rule, which states that the hazards before entry (see employer that directs employees who
employers must ‘‘evaluate the § 1926.1203(d) and (g)(2); may work in a confined space must
workplace’’ to determine if any spaces § 1926.1204(b)(2)). This applies to identify all such spaces, and also
are permit-required spaces. entries performed to determine whether identify each space that is a permit
Accordingly, this final provision or not that space is a permit space. space. The term ‘‘may work’’ means that
explicitly requires testing if necessary to Final § 1926.1203(a) states that there this requirement applies to any
assess whether a confined space is a are two steps to be followed. The first employer (not just entry employers) at a
permit-required confined space. step in the evaluation process is to construction worksite who should
reasonably anticipate employee permit spaces early in the work at the exception for spaces where it is
exposure to confined spaces; the focus site, and because the requirement to infeasible to isolate the space). Only
is on whether the employee might enter evaluate spaces also applies to after the employer completes this initial
the space, with the assumption that employers who are not entry employers evaluation, and the other required steps
entry would constitute ‘‘work.’’ and who are, thus, not covered under of its permit-space program, may it
Accordingly, these employers must the permit-space requirements of this perform the construction work
determine whether employees they final rule. permitted under the rest of this final
direct could foreseeably work in areas at One commenter suggested that OSHA rule (e.g., abrasive blasting with the dust
a worksite having confined spaces and add a note in the standard to inform the collector turned on); however, the
whether any of these confined spaces regulated community that Material employer must consider this work and
are permit spaces. Safety Data sheets (now called Safety the types of hazards it might create
Employers may cooperate in Data sheets) may be helpful in when conducting the initial evaluation
identifying the confined spaces and evaluating confined space hazards (ID– and when developing its permit-space
permit-required confined spaces on a 140, p. 4). OSHA agrees that this is program.
worksite, but each employer remains useful information, but observes that a Paragraph (b). Final § 1926.1203(b)
responsible for identifying spaces that note under the definition of ‘‘hazardous requires an employer that identifies one
could affect employees it directs, atmosphere’’ in final § 1926.1202 or more permit spaces on a worksite to
including temporary workers. For provides similar information and inform exposed employees, employees’
example, several different employers achieves the commenter’s stated result. authorized representatives, and
could work with a single competent The same commenter also expressed controlling contractors of the existence
person designated by one of them, or by concern that an employer, when and location of those permit spaces and
the controlling contractor, to identify identifying confined space hazards, the known dangers inside. This duty
the confined and permit spaces on a does not have to consider the work it applies to the employer that identifies a
site, but each employer must still ensure plans on performing inside the confined permit space under final § 1926.1203(a),
compliance with the requirements of space, which may create a hazard (e.g., as opposed to the general industry
this standard. welding or painting) (ID–140, p. 5). The language, which refers to ‘‘the
The commenter who requested commenter based this assertion on employer.’’ One of the keys to protecting
clarification about evaluating hazards proposed § 1926.1204(b)(1), which employees from PRCS hazards is for
also asked why the controlling provided that an employer must identify both employers and employees to know
contractor or host employer did not confined space hazards without entering the location of the PRCSs at the job site,
have the responsibility to evaluate the the space and, thus, without first the characteristics of the hazards, and
confined spaces, and asserted that entry performing the work that could their associated dangers. The provisions
employers did not have the information potentially create a hazard. OSHA in this paragraph will achieve this goal.
necessary to classify a space (ID–086, p. drafted final § 1926.1203(a) broadly, so The introductory language in
4). The final rule follows the general it is not as specific as proposed paragraph (b) follows the general
industry standard, which assigns § 1926.1204(b)(1). An employer who is industry standard except that the new
employers the responsibility to evaluate planning to conduct entry operations rule specifies that the employer’s duty
the spaces, and it is appropriate that the must develop and implement a written is triggered when the workplace has
employers who direct employees who permit-space program under final rule ‘‘one or more’’ permit spaces, whereas
may be exposed to the hazards of permit § 1926.1203(d). Furthermore, under the general industry standard just refers
spaces are responsible for classifying the final § 1926.1205(c)(1), these employers to ‘‘spaces’’ in the plural. A single
space. Further, prior to entry into a must specify acceptable entry permit space triggers the employer’s
permit space, controlling contractors conditions. Taken together, these duty under both the general industry
and entry employers have duties under provisions require an employer that will standard and this final rule, and OSHA
final §§ 1926.1203(h) and (i) to exchange conduct entry operations to consider the is making this point explicit in the new
information about the permit space. work it is planning to perform and the rule.
Some commenters also suggested hazards that may result from this work Paragraph (b)(1). Final
requiring a competent person to perform when conducting the initial evaluation § 1926.1203(b)(1) requires the employer
additional duties specified by this under final § 1926.1203(a). to inform exposed employees of the
standard, such as monitoring or One commenter asserted that the existence and location of, and the
calibration of equipment (ID–025, p. 3; proposed prohibition on the use of danger posed by, the permit spaces by
–028, pp. 3–4; –150, p. 2). However, mechanical ventilation or changing the posting danger signs or by any other
final § 1926.1204(h) requires employers space’s natural ventilation during equally effective means. Final
to properly train employees who atmospheric testing would make some § 1926.1203(b)(1) is similar to both the
perform these duties during entry confined space work dangerous (ID–077, general industry rule at § 1910.146(c)(2)
operations. This final standard also p. 1). This commenter asserted that and proposed § 1926.1209(a)(2). As
includes training and knowledge when an employer is performing OSHA noted in the preamble to the
requirements for entry supervisors, abrasive blasting on a tank interior, it is general industry standard, many
attendants, and other specific positions unsafe to perform the abrasive blasting confined space accidents occur when an
set forth in this standard to ensure that with the dust collector turned off just to employee fails to recognize the hazards
the employees filling those positions get a baseline reading. This commenter present when entering a permit-required
have the knowledge and capabilities to misunderstands the purpose of this confined space that the employer failed
perform the specified duties once a requirement. Under final § 1926.1203(a), to mark as such. (58 FR 4462, 4483 (Dec.
permit space is identified (see final an employer’s evaluation is the first step 17, 1993)). Therefore, OSHA determined
§§ 1926.1207–1210). The initial for any confined space work. This that it is important to identify permit
evaluation of spaces under final evaluation must occur before the spaces and to inform exposed
§ 1926.1203(a) includes a competent- employer performs either ventilation or employees of their presence and the
person requirement because of the construction in the confined space (see hazards involved. The Agency believes
critical need to identify confined and § 1203(a) and § 1204(e)(1) (allows an that employees need this information to
understand the seriousness of potential If an employer uses a warning sign, space. Barricading the confined space in
hazards in PRCSs. To recognize all the sign must convey that entering the a manner that prevents easy entry by
methods of informing employees and to space is dangerous and that only unauthorized employees (for example,
clarify the purpose of the rule, OSHA is authorized employees may enter the by using a barricade that requires a key
adopting a performance-oriented space. In this final provision, OSHA to gain entry) would be an equally
requirement in the final rule. included the note from § 1910.146(c)(2) effective means of informing employees
Accordingly, the employer must post a that a sign reading ‘‘DANGER— under § 1926.1203(b)(1), provided the
danger sign at or near PRCS entrances, PERMIT-REQUIRED CONFINED employer ensures that all affected
which the Agency believes is an SPACE, DO NOT ENTER’’ or similar employees receive information about
effective way to ensure that employees language would satisfy the requirement such spaces and know that they must
receive proper warning of the hazards in for a sign.13 This language is familiar to not enter the spaces without
a PRCS, or adequately inform exposed employers and employees under the authorization and without taking proper
employees through another equally general industry standard, and is a clear precautions This means of compliance
effective means. Compliance with this warning not to enter the space. The is consistent with the general industry
requirement will ensure that exposed Agency believes that, when properly standard. See OSHA Directive CPL 02–
employees who are not authorized warned, employees who are not 00–100: Application of the Permit-
entrants receive the information authorized to enter the space would Required Confined Spaces (PRCS)
necessary to prevent them from entering avoid entering the PRCS, thereby Standard, Appendix E, Section (c)(4),
the spaces. Whatever method the preventing harm that could result from and July 22, 1998, letter to Mr. Black.
employer uses, the standard requires the the PRCS hazards. This commenter, as well as another,
employer to inform employees exposed Proposed § 1926.1209(a) specified a asked which employer has the
to the hazards posed by permit-required two-step process that involved notifying responsibility to post the warning sign
confined spaces of the existence, employees who would be in or near the if the space is a pre-existing one or there
location, and danger of those spaces. permit space, and then posting a sign. are multiple entry employers (ID–099, p.
Everyone at the construction site One commenter asserted that limiting 3; –133, p. 2). Each employer that
benefits from this information even if notification to employees who the entry identifies that space, or receives notice
they do not engage in construction employer anticipates will be in or near of it, has a duty to inform exposed
activity (e.g., designers or architects). the PRCS, as provided in proposed employees about a permit space (see
However, OSHA notes that only § 1926.1209(a)(1), would allow entry § 1926.1203(b) and (c)). Each employer
employees who work in PRCSs need to employers to avoid this requirement by also has a responsibility to identify
know the details about the potential claiming they did not anticipate a permit spaces in which one or more of
hazards. Final § 1926.1205(c) provides particular employee was going to be in employees it directs may work (see
that employers post the entry permit, or near the PRCS (ID–086, p. 5). Final § 1926.1203(a)). However, if there
which contains information about the § 1926.1203(b)(1) requires notification to already is a warning sign posted at the
hazards of the PRCS and the measures exposed employees, which addresses permit space, then the employer does
used to address those hazards, at the this commenter’s concern. not need to post an additional sign.
entry portal or make this information Other commenters argued that Rather, an employer that relies on a
available by any other equally effective notifying employees near a PRCS, or preexisting sign to identify a space must
means at the time of entry. Final employees on the jobsite, was ensure that the sign remains posted for
§ 1926.1212 provides that employers burdensome, and that posting a warning the duration of the potential exposure to
must make available to each affected sign would be sufficient to notify the permit space of employees it directs.
employee and his/her authorized employees of the PRCSs and their One of those commenters also
representatives all information required hazards (ID–124, pp. 6–7; ID–133, p. 2). asserted that the controlling contractor
by this standard. Therefore, final At least one other commenter argued or host employer should post the
§ 1926.1203(b) does not require that the barriers required by proposed warning sign because of their
employers to list specific PRCS hazards § 1926.1209(b) would not always be responsibility to ensure safe confined
on each sign. feasible, and that posting warning signs space entry operations. Final
In enforcing this provision, OSHA would be sufficient (ID–104, p. 3). § 1926.1203(b)(1) requires the
will make determinations about whether OSHA agrees with these commenters, ‘‘employer who identifies a permit
methods other than warning signs used and drafted final § 1926.1203(b)(1) to space’’ to post the warning sign. For the
by employers to notify employees about specify that notification by posting a purposes of this standard, such
the spaces are truly as effective in warning sign would provide adequate employers include the controlling
imparting the required information to notice to employees of the existence, contractor, the host employer, and the
employees. Such methods must go location, and hazards of the PRCSs. entry employer if these employers have
beyond just the generic training Another commenter was unsure employees who could be exposed to
required by this standard, for example, whether the posting requirement applies permit-space hazards. The standard
since generic training would not when employers physically barricade merely requires that an employer post
identify the location of permit spaces at the space (ID–099, p. 3). It does. Final the sign, thereby retaining flexibility
a specific worksite. Therefore, an § 1926.1203(b)(1) requires posting a among these entities to determine which
equally effective means would identify warning sign or using another equally employer is in the best position to post
the PRCS locations so that employees at effective means of informing exposed the sign. When multiple employers will
the job site who may work near the be working in the same space, each
employer about the hazards of the

PRCSs would be aware of these permit space, and final § 1926.1203(c) employer has a separate duty to post the
locations and would understand the requires an employer to comply with warning sign. If an employer decides to
importance of not entering them. The final § 1926.1203(b)(1) when the enter the space, then this subject must
final rule places on employers, not employer prohibits entry into a confined be resolved between the controlling
employees, the burden of using an contractor and the entry employers as
effective means of identifying the spaces 13 OSHA’s requirements for accident prevention part of the coordination discussion
and controlling the associated hazards. signs in § 1926.200 also apply. required by final § 1926.1203(h)(4).
Paragraph (b)(2). Final potential for permit entry operations. prohibiting entry when that employer
§ 1926.1203(b)(2) requires each Final § 1926.1203(b)(2) also will decides employees it directs will not
employer to notify its employees’ facilitate the effective sharing of this enter permit spaces, and to comply with
representatives and the controlling important information among other the rest of the standard as applicable.
contractor, in a manner other than employers at the site whose activities This provision applies to all employers
posting, of the hazards of permit spaces may impact the PRCS, as well as the that: Identify permit spaces under final
and the location of those spaces. This employees of those other employers. § 1926.1203(a); receive notification from
requirement follows proposed In some cases, an authorized the controlling contractor of the
§ 1926.1209(a)(1). The primary purpose representative of employees may have presence of a permit space under final
of this provision is to ensure that the more extensive knowledge than the § 1926.1203(h)(2); receive notification of
employer who identifies a permit space employee about particular hazards, or the permit space from a danger sign
conveys the location and general may be in a better position than the posted at a permit space; or receive
characteristics of the space to the employee to assess the safety of the notification of the permit space from
designated recipients as soon as project site based on past experience at any other means. While proposed
possible. Later, in accordance with similar sites; therefore, OSHA sees no § 1926.1209(b) required employers not
§ 1926.1203(h)(3), the entry employer reason to deviate from the accepted conducting confined space operations to
must provide to the controlling general industry practice of information take specific steps to prohibit entry by
contractor a more thorough assessment sharing with the employee’s authorized employees, final § 1926.1203(c) follows
of the space, the hazards it expects to representatives. Final § 1926.1203(b)(2) the performance-oriented language of
encounter, and the permit program limits this notification requirement to the general industry rule.
measures it intends to use to address only the representatives of the The effective measures to prohibit
those hazards. It is important for employer’s employees. Also, while entry could include permanently
employers to provide the controlling employers must notify these closing the space and providing barriers,
contractor with this information because representatives in a timely manner to supplemented by training employees
the controlling contractor is in the best ensure that the information is available and the posted danger signs required
position to convey the employer’s to the employee representatives and under § 1926.1203(b). In any event, the
information to other employers at the controlling contractor in sufficient time steps taken by the employer must be
site, and later share this information for it to be useful, this notification may effective in preventing employee entry
with entry employers under final be by any means normally used for into permit spaces. In OSHA’s
§ 1926.1203(h). Final § 1926.1203(b)(2) communication with the employee experience, posting signs without
is also important because it applies to representative or agreed upon in barriers is generally less effective than
employers who identify a permit space, advance, including telephonic or with barriers, so employers who choose
even if they choose not to allow their electronic communication. If there are the former method must take special
employees to enter it, thereby ensuring no authorized representatives of care to ensure that employees they
that the location of all permit spaces employees, the employer must still direct recognize and understand permit-
will be conveyed to the controlling notify employees under final space warning signs, that they are
contractor. Otherwise, the information § 1926.1203(b)(1), and the controlling knowledgeable regarding the hazards
exchange in § 1926.1203(h)(3) would contractor under final § 1926.1203(b)(2). associated with these spaces, and that
Another commenter asserted that they understand that entry into the
only apply if the employer chooses to
notifying the controlling contractor of spaces is not authorized. This reinforces
enter the space and become an ‘‘entry
the existence of every PRCS was the employer’s existing obligation under
employer.’’ unnecessary because posting would § 1926.21(b)(2) to instruct each
One commenter questioned the provide adequate notification (ID–090, employee in the recognition and
necessity of notifying authorized p. 2). With respect to employees avoidance of unsafe conditions. OSHA
representatives, particularly if no such exposed to confined space hazards, believes that these provisions in the
representatives are on the project site OSHA agrees with this commenter that final rule will protect employees from
(ID–099, p. 2). Both the general industry posting will provide these employees unauthorized entry into permit spaces.
standard and this final standard with adequate notification because of Final § 1926.1203(c) also requires
typically require information sharing the proximity of the danger sign to the employers covered by this provision to
between employers and employees and PRCS. Therefore, final § 1926.1203(b)(1) comply with the rest of the confined
the employees’ authorized requires only posting to notify spaces in construction standard, as
representatives (see, e.g., § 1910.146(l) employees of confined space hazards, applicable. The parallel provision in the
and the discussion of § 1926.1212 later similar to the general industry standard general industry standard requires
in this document). OSHA believes that at § 1910.146(c)(2). However, with employers to comply with specific
notifying employees and their respect to the controlling contractor and provisions of that standard, which
authorized representatives of the the employees’ authorized correspond to the following provisions
presence of confined spaces on a representatives, a separate notification in this final rule: § 1926.1203(a), relating
worksite will contribute to the requirement is necessary to ensure a to identification of permit spaces in the
successful implementation of safe entry timely and efficient information workplace; § 1926.1203(b)(1), relating to
operations, and the prevention of exchange, rather than relying on the informing employees of the presence of
unauthorized entry, by ensuring that controlling contractor and employees’ permit spaces; § 1926.1203(f), relating to
they have knowledge of the hazards authorized representatives to explore changes in confined spaces; and
present in the confined space. Sharing the worksite and discover each danger § 1926.1203(h), relating to the
this information with employees’ sign. controlling contractor’s information
authorized representatives provides an Paragraph (c). Final § 1926.1203(c), exchange with employers. Employers
additional way to ensure that this which is similar to § 1910.146(c)(3), must comply with those provisions that
information reaches the employer’s requires an employer that identifies, or are applicable. For example, under final
employees, and alerts the authorized has notification of, a permit space to § 1926.1203(h)(2) and (h)(4), controlling
representatives that there is the take measures that are effective in contractors must inform and coordinate
with employers that direct employees However, if there are several similar tanks, program in the general industry
(including employees not involved with the same conditions and hazards, the standard contributed to employee
directly in the confined space same means, procedures and practices could safety, and that the lack of a written
be used for this similar group of tanks.
operations) whose activities could, program in the proposal diminished
either alone or in conjunction with the September 21, 2006, letter to Fred employee safety and also weakened
activities performed in the confined Rubel. OSHA anticipates that, in training because ‘‘the vision of what is
space, foreseeably result in a hazard to practice, some employers in expected can not be focused’’ (ID–129,
employees in the confined space. construction may operate with a general p. 3). A different commenter stated that
Additional provisions of this standard permit-space program that covers requiring a written plan was the most
may apply as well, depending on the numerous types of permit spaces and important provision of the standard
activities of the employer in question. hazards, along with a specific permit because it ensures that employers plan
For these reasons, in final that includes the unique hazards and the permit space entry carefully and are
§ 1926.1203(c), OSHA used the general practices applicable to each of those familiar with the hazard analysis; it also
language ‘‘all other applicable spaces. The Agency has no objection to provides an important reference
requirements’’ rather than specifying this approach, provided the permit document (ID–130, p. 1). The latter two
different sections of the final standard conveys all of the applicable commenters also noted that the lack of
that may be applicable. information to employees at the a written program in the proposal was
Paragraph (d). Final § 1926.1203(d) required times, this information is a step backwards from the general
requires any employer that has readily available to the employees for industry rule.
employees who will enter a confined reference during entry operations, and OSHA wrote this final standard in
space to have and implement a written employees receive the training performance-based language to be
permit-space program that meets the necessary for them to refer to the consistent with the general industry
requirements of this final standard, and appropriate document for the required rule; consequently, this final standard
to make the program available for information. Therefore, for this purpose, does not provide the specific
inspection by employees and their OSHA allows employers to treat the classification system and detailed step-
representatives. Final § 1926.1203(d) is permit as part of the written permit by-step procedures for employers to
similar to the corresponding provision space program required by this section. follow found in the proposed rule.
for general industry confined spaces at The proposed rule did not require an Therefore, this final rule is less suitable
§ 1910.146(c)(4), with slight employer to have a written confined as a replacement for a written permit
modifications. OSHA modified the space program. Instead, in proposed program than was the proposed rule.
language of this final provision slightly § 1926.1219(a), the proposed rule Accordingly, OSHA does not believe
to clarify that entry employers do not provided that the employer could keep that maintaining a copy of this final rule
necessarily have to develop a separate either a copy of the standard on the on site, in lieu of having a written
written program for each individual worksite or a copy of a program that permit-space program, will ensure that
entry. Rather, an entry employer may incorporated the requirements of the an employer’s confined space
reuse a program it developed standard. At least one commenter procedures will provide adequate
previously, or a program developed by recommended that OSHA revise employee protection. OSHA agrees with
proposed § 1926.1219(a) so that the the commenters who supported a
another employer, an industry
provision required employers to have a written program.
association, or other entity, so long as
written copy of the final rule on site, The Agency believes that final
the program is appropriate for the
regardless of whether the employer had § 1926.1203(d) will effectively prevent
specific entry operations and the type of
a written copy of its confined spaces unauthorized entry into PRCSs, and so
work involved, and that the program
program (ID–108, p. 4). Several other protect employees from encountering
meets the requirements set forth in final
commenters disagreed with OSHA’s PRCS hazards. The Agency also believes
§ 1926.1204. OSHA anticipates that in
approach in the proposal, and urged that it is necessary for employers to
most cases employers will be able to use
OSHA to require a written confined have a written confined space program
or modify an existing program and will
space program as the general industry at the worksite as a reference for
not need to develop an entirely new standard does. One commenter stated, employees involved in implementing
program. ‘‘For a confined space program to be safe entry procedures. A written
Although the final rule requires the
effective, it must be easy to understand program provides the basis for any
permit program to meet the
and implement. . . . Providing permit-space entry operation, as well as
requirements of final § 1926.1204,
employees with the generic terms of the a reference for guiding and directing
OSHA will allow employers to fulfill
standard—even if they read it—would supervisors and employees alike. A
this obligation through a combination of
not provide that kind of clarity. Instead, written program also will serve to assign
the permit program and the entry permit
they need information specific to accountability for all functions related
itself. In a 2006 interpretation of the working at the particular worksite to permit-space entry, and will aid in
general industry standard, the Agency [which a program provides]’’ (ID–220, avoiding mistakes and
noted that employers could use the p. 28–29). Another commenter asserted, misunderstandings. Additionally,
same permit program to cover multiple ‘‘Having a written program gives because of the compliance flexibility
spaces: everyone a clear idea of what is required and discretion that the standard
If employees will enter a permit space, an and their roles and responsibilities. It provides to the employer, a written plan
employer must develop and implement the also is an important reference is essential to demonstrate that the
means, procedures and practices necessary document. Construction contractors employer took all aspects of permit-
for safe permit space entry operations in
commonly have written safety space entry into consideration. For these
accordance with § 1910.146(d)(3). Before a
specific permit space is entered, the programs, and many already have reasons, OSHA decided to specify in the
employer must document the completion of written confined space programs as final rule that the permit-space program
the measures required by § 1910.146(d)(3) by well, so compliance should not be be in writing. The written plan must, in
preparing an entry permit. A specific permit difficult’’ (ID–150, p. 3). Another combination with the permit itself,
must be completed prior to each entry. commenter asserted that the written address the employer’s particular facts
and circumstances to ensure that the standard at § 1910.146(c)(5), but contain alternative entry procedures are only
procedures will protect employees’ some substantive modifications available for as long as the physical
safety. For all of the reasons above, explained in the following paragraphs. hazards remain isolated and the
requiring an employer to have and OSHA also added the word ‘‘only’’ to atmospheric hazards controlled.
implement a written permit-space the introductory provision to clarify that Employers must take care to ensure that
program, rather than simply relying on an employer cannot use these alternate physical hazards remain isolated and
a copy this final rule, will enhance the procedures under any other must exit the space and implement a
protection afforded to employees from circumstances. In addition, final full permit program if there is any
confined space hazards. § 1926.1203(e) is similar to proposed indication that workers might be
Final § 1926.1203(d) explicitly § 1926.1216. exposed.
requires employers to implement their Paragraph (e)(1). Final Another commenter requested that
written permit-space program at the § 1926.1203(e)(1), which is the final rule clarify that employers
jobsite. A program that is drafted but not substantively identical to need not provide attendants and rescue
implemented at the jobsite will not § 1910.146(c)(5)(i), sets forth the six services for final § 1926.1203(e) spaces
protect employees from the hazards of conditions that an employer must meet (ID–099, p. 3). Final § 1926.1203(e)(1)
permit-space entry. This requirement is before employees can enter a permit clarifies that spaces qualifying for the
implicit in the general industry space under the alternative procedures alternate procedures under
standard, but OSHA has made it explicit specified in paragraph (e)(2). OSHA § 1926.1203(e) do not need to comply
in this final rule. Additionally, this final modified final § 1926.1203(e)(1) slightly with final §§ 1926.1204–1206
provision requires employers to make from the general industry rule to state (addressing permits and permit
the written program available for explicitly that employers must meet all programs) and §§ 1926.1208–1211
inspection by employees and their of the conditions listed in final (setting forth specific duties for permit-
authorized representatives. The Agency § 1926.1203(e)(1) before using the required confined spaces).
believes that such access is essential for alternate procedures specified by final Paragraph (e)(1)(i). Final
the successful implementation of a § 1926.1203(e). If employers meet all of § 1926.1203(e)(1)(i), which is similar to
permit-space entry program. Finally, these conditions, the employer need not the general industry standard at
final § 1926.1203(d) clarifies that the comply with final §§ 1926.1204–1206 § 1910.146(c)(5)(i)(A), sets out the first
employer must make the program (addressing permits and permit condition that employers must meet
available to employees prior to, and programs) or final §§ 1926.1208–1211 before using the alternative procedures.
during, entry operations, which are the (setting forth specific duties for permit- It provides that an employer may use
periods that the written program is most required confined spaces). Employers in these alternate procedures only when
important. During these periods, permit spaces qualified to use the the employer can demonstrate that it
employees must understand the alternate procedures, however, still eliminated or isolated all physical
program to ensure their safety. The must comply with final § 1926.1207 hazards using engineering controls, and
general industry rule requires that the (training requirements), final that the only hazard posed by the space
program be available, and this final rule §§ 1926.1212–1213 (Employee is an actual or potential hazardous
simply clarifies that it must be available participation and provision of atmosphere. OSHA modified this
during these critical periods. documents to the Secretary), and the provision from the general industry rule
Paragraph (e). Final § 1926.1203(e) other provisions of final § 1926.1203, by adding language that an employer
authorizes an employer to use alternate including the information exchange can use the alternative procedures when
procedures for permit-space operations requirements in final § 1926.1203(h). it can demonstrate that all physical
under limited circumstances. The One commenter asserted that any hazards are ‘‘eliminated or isolated’’ by
standard permits these alternative space that requires ventilation to protect engineering controls within a confined
procedures when an employer can employees should have an attendant to space, rather than just ‘‘eliminated.’’
demonstrate that it eliminated or monitor conditions in the space (ID– OSHA adopted this change from
isolated all physical hazards through 060, p. 3). The general industry standard proposed § 1926.1216(a), which
engineering controls and controls does not require an attendant for entry provided that employers could use the
atmospheric hazards through under its parallel alternative entry equivalent provisions when they could
continuous forced-air ventilation. OSHA procedures, and OSHA disagrees with demonstrate the isolation of physical
notes that continuous ventilation is a this commenter, who offered no hazards.
control method, and not a method explanation for this assertion. One commenter supported the
suitable for eliminating or isolating an Employers are only eligible to use the proposed rule’s provisions for entry into
atmospheric hazard, so final alternate procedures in final ‘‘controlled-atmosphere confined
§ 1926.1203(e) spaces remain permit- § 1926.1203(e) when the employer can spaces’’ in proposed § 1926.1216, which
required spaces, but can be entered demonstrate that the only hazard posed the commenter described as requiring
without a permit program under the by the permit space is an actual or the elimination of all physical hazards
alternate procedures specified in this potential hazardous atmosphere, can (ID–220, p. 6). Proposed § 1926.1216 did
final section. OSHA believes that in the demonstrate that continuous forced-air not, however, specify that physical
context of construction work, these ventilation alone provides adequate hazards must be eliminated before an
alternative procedures provide adequate safety, and the employer continuously employer could use the alternative
safety measures while being more monitors the space during entry. These ventilation-only procedures in that
efficient, and less costly to implement, requirements make the eligible spaces section; it required the employer to
than complying with the full permit- safe for employee entry. The more ‘‘determine and implement an isolation
program requirements specified by final extensive requirements of final method’’ for each of the physical
rule § 1926.1204. The requirements for § 1926.1204 apply to those permit hazards identified (see proposed
the alternate procedures allowed under spaces with hazards that employers § 1926.1216(a)(1); see also proposed
the final construction rule are similar to cannot isolate by engineering controls, § 1926.1216(a)(3), which required the
the corresponding provisions of the or that the employer cannot control by documentation of the method for
general industry confined spaces ventilation. The Agency notes that the ‘‘isolating’’ each physical hazard). The
final rule, which defines ‘‘isolate or general industry standard, employers continuous monitor alarm sounds. The
isolation’’ in final § 1926.1202 to allow must account for the introduction of rest of the calculation would depend on
employers to isolate physical hazards additional hazards from the work the amount of time necessary for
within a confined space like the conducted in the permit space, such as employees to exit the space from their
proposed rule, and provides for additional gases generated by painting work locations inside the permit space,
isolation using the same methods or application of coating, and ensure which could also be tested, factoring in
specified in the proposed definition, that the ventilation is adequate to an appropriate safety buffer of time.
which include the elimination or account for the introduced hazards (see Several commenters asserted that
removal of hazards. (See the discussion 58 FR 4462, 4488 (Jan. 14, 1993)). In OSHA should allow an employer to use
of this definition earlier in this addition, certain types of work are natural ventilation alone, or suction, to
preamble.) inherently unsuitable for entries under control a hazard under the alternate
Another commenter expressed § 1926.1203(e). In the preamble to procedures specified by final
concern that, in construction work, § 1910.146(c)(5) of the general industry § 1926.1203(e). OSHA addressed these
employers would almost never be able standard, OSHA explained that ‘‘work comments in the earlier discussion of
to use these alternate procedures with hazardous quantities of flammable the definition of ‘‘ventilate or
because the complete elimination of all or toxic substances and hot work are not ventilation’’ in this preamble.
physical hazards, such as an iron angle permitted’’ because they would There was a considerable amount of
at head level, from such a space would, ‘‘introduce hazards beyond those discussion in the record about whether
in many cases, not be feasible or accounted for by the determination that the alternative procedures should be
necessary (ID–061, p. 6). OSHA believes the permit space can be maintained safe available for isolated spaces in sewers
that isolating physical hazards using for entry’’ through mechanical and other continuous spaces (see, e.g.,
methods such as wrapping a low- ventilation alone (id). For the same ID–75.1, p. 4; –210, Tr. pp. 176–177,
hanging pipe with foam or locking out reasons, OSHA does not permit this 185–93, 206–208; –211, Tr. pp. 144–
pieces of equipment (see the definition work for entries under § 1926.1203(e). 159). For an employer to apply final
of ‘‘isolate or isolation’’ in final Final § 1926.1203(e)(1)(ii) also § 1926.1203(e) to a sewer, the employer
§ 1926.1202) can be sufficient to prevent requires that the employer be able to would have to demonstrate total
injury from those hazards. Thus, the demonstrate that in the event the isolation of the section of the sewer
Agency decided that isolating or ventilation system stops working, from other potential sources of hazards
eliminating physical hazards is the most entrants can exit the space safely. OSHA (e.g., the sewer distribution system) to
appropriate approach in the based this requirement on proposed guard against the introduction of new
construction context where potentially § 1926.1216(a)(2)(ii) which would have hazards into the space; the employer
isolated physical hazards are likely to be required employers to document their then must demonstrate that the
more prevalent because of the nature of determination that monitoring ventilation system is maintaining the
construction, and adopted the proposed procedures would give sufficient space sufficiently below the trigger
requirement accordingly.14 warning to allow entrants to exit. In the limits for the atmospheric hazard (e.g.,
Paragraph (e)(1)(ii). Final final rule, OSHA moved the monitoring below 10 percent LFL or an applicable
§ 1926.1203(e)(1)(ii), which corresponds requirement to 1926.1203(e)(2)(vi). PEL) so that employees would have time
to the general industry standard at However, the Agency retained the to escape if the ventilation failed. Total
§ 1910.146(c)(5)(i)(B), sets out the determination requirement in (e)(1)(ii) isolation of sewer manholes or selected
second condition required for to make clear that safe exit time must be sections of piping may not be practical
employees to use the alternative factored into the selection of monitoring or feasible to prevent hazards (e.g.,
procedures: An employer must be able procedures, intervals, and detection flammable gases) from entering the
to demonstrate that continuous forced- levels, including the levels at which space because employers normally
air ventilation alone provides adequate monitoring alarms are triggered. Safe perform entries with the system in
safety from hazardous atmospheres and exit time is a precondition for reliance service. See Aug. 15, 1996, letter to
that entrants can safely exit the space in on alternative procedures. Larry Brown. Final § 1926.1203(e)(1)(ii)
the event the ventilation system stops One commenter asserted that includes a clear requirement that an
working. For the space to be safe under determining what is a sufficient time to employer that relies on continuous
this final provision, the mechanical exit, as required by the proposed rule, forced-air ventilation to maintain spaces
ventilation must control the hazardous would require an industrial hygienist safe for entry must be able to establish
atmosphere at levels that are below the (ID–114, p. 2). OSHA does not believe that other measures are not necessary to
levels at which they are harmful to an industrial hygienist is the only protect entrants. For additional
entrants so that, if the ventilation shuts person capable of making this information about isolating spaces
down for any reason (such as loss of determination because the final rule within sewers and other continuous
power), the employees will have bases the time required for a safe exit on confined spaces, see the discussion of
sufficient time to recognize the hazard the physical attributes of the space. Any § 1926.1204(c)(3).
and exit the space. Employers have a person trained in confined-space Paragraph (e)(1)(iii). Final
responsibility to specify a hazard level operations under final § 1926.1207 § 1926.1203(e)(1)(iii), which is identical
that is adequate for employees to escape should be able to use these attributes to to the general industry standard at
determine the time needed by entrants § 1910.146(c)(5)(i)(C), is the third
the confined space before the hazard
to safely exit the confined space as condition required before an employer
reaches unsafe levels. As with the
required by § 1926.1203(e)(1)(ii). For may use the alternative procedures. It
14 The general industry standard does not allow example, if the employer is unsure how also is substantively similar to proposed
employers to use the alternative entry procedures quickly the atmosphere would return to § 1926.1216(a)(2) and (a)(3), which
in § 1910.146(c)(5)(ii) if any physical hazard a hazardous atmosphere following a provided that employers must test the
remains in the space, even if that hazard is ventilation failure, the employer can run atmosphere and document the results;
temporarily ‘‘removed’’ or ‘‘isolated’’ in accordance
with the standard. See October 12, 1995,
a test by shutting off the ventilation this final provision, however, is less
memorandum to Linda Anku. OSHA does not adopt when no one is in the space to detailed than the proposed provisions.
that interpretation for this construction rule. determine the amount of time before the This final provision requires the
employer to develop monitoring and criterion for using the alternate must loosen a cover fastened in place
inspection data that supports the procedures. It also is similar to gradually to release any residual
demonstrations required by paragraphs proposed § 1926.1216(a)(3), though less pressure. The employer also must
(e)(1)(i) and (e)(1)(ii), i.e., the detailed. This final provision mandates determine whether conditions at the site
elimination or isolation of physical that employers document the could cause a hazardous atmosphere to
hazards such that the only hazard in the determinations and supporting data accumulate in the space, which would
space is an actual or potential hazardous required by paragraphs (e)(1)(i) through make it unsafe for employees to remove
atmosphere, and that continuous forced- (e)(1)(iii) of this final rule, and make the cover. The employer must not
air ventilation is sufficient to maintain this documentation available to remove the cover until it is safe to do
the space safe for entry. The employees who enter the spaces under so.
atmospheric-monitoring data must show the terms of final § 1926.1203(e), or to Paragraph (e)(2)(ii). Final
that ventilation will keep the their authorized representatives. This § 1926.1203(e)(2)(ii), which is nearly
atmosphere inside the permit space safe documentation will enable the identical to the general industry
for entry. In this context, the final rule employer, employees, their authorized standard at § 1910.146(c)(5)(ii)(B),
uses ‘‘monitoring’’ to match the general representatives, and OSHA to evaluate requires employers to guard openings to
industry language, but the term the validity of the determinations made permit spaces after removing entrance
encompasses both the initial testing of under final § 1926.1203(e) for a covers to protect employees from falling
atmosphere and the subsequent particular permit space. into the space and to protect employees
measurements. The data required by Paragraph (e)(1)(vi). Final in the permit space from injuries caused
paragraph (e)(1)(iii) are essential for the § 1926.1203(e)(1)(vi), which is identical by objects entering the space. It also is
employer and employees, as well as to the general industry standard at similar to proposed § 1926.1216(c)(2),
OSHA, to determine whether the § 1910.146(c)(5)(i)(F), is the final though less specific than the proposed
employer can maintain the space safe condition that employers must meet to provision. The guard could be in the
for entry with the use of ventilation use the alternate procedures. The form of a railing, a temporary cover, or
alone. section does not correspond to any any other temporary barrier that
Paragraph (e)(1)(iv). Final section of the proposed rule due to the provides the required protection. If the
§ 1926.1203(e)(1)(iv), which is identical different organization of the proposal. It opening to the space would not allow
to the general industry standard at requires that employers perform entry employees and objects to fall into the
§ 1910.146(c)(5)(i)(D), is the fourth under the alternate procedures specified space, then no additional guarding is
criterion employers must meet to use by final § 1926.1203(e) in accordance necessary. Final § 1926.1203(e)(2)(ii)
the alternative procedures. This with the specific procedures required by differs from § 1910.146(c)(5)(ii)(B) in
provision also is similar to proposed final § 1926.1203(e)(2). that it requires the opening to be
§ 1926.1204(b)(2). This final provisions Paragraph (e)(2). Final ‘‘immediately’’ guarded by a railing,
specifies that, if an initial entry into the § 1926.1203(e)(2), which is similar to temporary cover, or other temporary
permit space is necessary to obtain the § 1910.146(c)(5)(ii), sets forth the barrier. The general industry rule
data required by paragraph (e)(1)(iv), the procedures that employers must follow requires employers to provide the
employer must perform the entry in for permit-space entries made under guarding promptly. The Agency made
compliance with final §§ 1926.1204– final § 1926.1203(e)(1). The introductory this change to clarify that the guarding
1211 (i.e., the full permit-space paragraph in § 1926.1203(e)(2) is must happen as soon as possible.
program).15 This entry requirement, identical to the introductory paragraph Paragraph (e)(2)(iii). Final
in the general industry standard. This § 1926.1203(e)(2)(iii), which is
which was in the proposed rule, is
introductory paragraph does not substantively identical to the general
necessary to protect employees from
correspond to any section of the industry standard at
hazards that the employer did not fully
proposed rule due to the different § 1910.146(c)(5)(ii)(C), requires the
identify or assess. The rule requires
organization of the proposal. employer to test the internal atmosphere
employers to obtain monitoring and Paragraph (e)(2)(i). Final of the permit space with a calibrated,
inspection data without entry when § 1926.1203(e)(2)(i), which is identical direct-reading instrument before any
feasible, but acknowledges that in many to the general industry standard at employee enters the space. This
instances it will be necessary to perform § 1910.146(c)(5)(ii)(A), requires that provision also is similar to proposed
an initial entry into the space to make employers must, before removing an §§ 1926.1216(d)(2) and 1926.1205(a)(1),
the necessary determinations. This entrance cover, eliminate any though not as detailed as the testing
requirement will ensure that the initial conditions that make it unsafe to do so. required by proposed § 1926.1205(a). If
entry is safe. It also is similar to proposed the employer can demonstrate that
Paragraph (e)(1)(v). Final § 1926.1216(c)(1). Some conditions in a testing prior to entry is infeasible, then
§ 1926.1203(e)(1)(v), which is identical permit space may make it hazardous to the employer must at a minimum
to the general industry standard at remove a cover from the space. For comply with permit program
§ 1910.146(c)(5)(i)(E), sets out the fifth example, if the atmospheric hazards requirements during the testing process
15 OSHA recognizes that compliance with final
within the space cause high pressure in in accordance with
§ 1926.1204(e)(1) requires employers to test
the space, the cover may blow off in the § 1926.1203(e)(1)(iv).
conditions in the permit space to determine if process of removing it. To protect The employer must test the
acceptable entry conditions exist before entry is employees from such hazards, atmosphere, in sequence, for oxygen
authorized to begin. An employer will be in employers must make a determination content, flammable gases and vapors,
compliance if the employer can demonstrate that

initial entry is necessary to gather the data to
as to whether it is safe to remove the and potential toxic gases and vapors.
comply with § 1926.1203(e)(1)(iii), and enters under cover. Such a determination requires the Employers must first perform a test for
a permit program that complies with all other employer to examine the conditions oxygen because most combustible gas
provisions except the pre-entry testing in expected to be in the permit space. meters are oxygen dependent and will
§ 1926.1204(e)(1). Note that the alternative entry
procedures are not available if the work space is
Under high-pressure conditions, not provide reliable readings in an
part of a continuous system and has not been employers must check the cover to oxygen-deficient atmosphere.
effectively isolated. determine if it is hot; if so, the employer Employers must test for combustible
gases next because, in most cases, the requires the ventilation to continue continuous monitoring is necessary to
threat of fire or explosion is both more until all employees leave the space. ensure that affected employees,
immediate and more life threatening Final § 1926.1203(e)(2)(v)(C) is identical especially entrants, receive adequate
than exposure to toxic gases. The testing to § 1910.146(c)(5)(ii)(E)(3), and has no protection. Continuous monitoring
must be appropriate for the space; for corresponding section in the proposed enables employers to quickly recognize
example, if there is a stratified rule. It requires that the air supply for deteriorating conditions, including the
atmosphere where gases of different the ventilation must be from a clean introduction of new atmospheric
densities layer within a confined space, source, and must not increase the hazards into the confined space, and
the employer must perform testing at hazards in the space. These provisions then to take timely actions to protect
different depths. ensure that the atmosphere in the employees. For additional discussion of
This testing is necessary to determine permit space will remain safe during the the need for continuous monitoring and
whether ventilation alone will maintain entire entry operation. its implementation, see the discussion
the space safe for entry. The results of Paragraph (e)(2)(vi). Final of final § 1926.1204(e)(2) (discussion of
this testing must be within the expected § 1926.1203(e)(2)(vi), which is similar to continuous monitoring of permit spaces
range for the space, based on the the general industry standard at entered under a full permit program,
employer’s determination under § 1910.146(c)(5)(ii)(F), requires entry rather than the alternative procedures).
paragraph (e)(1)(ii), or the employer may employers to continuously monitor the Final § 1926.1203(e)(2)(vi) also
not enter under the alternative atmosphere in the permit space. requires the continuous-monitoring
procedure. Employers may use periodic equipment to have a functional alarm
Paragraph (e)(2)(iv). Final monitoring, rather than continuous that will notify all entrants when an
§ 1926.1203(e)(2)(iv), which is identical monitoring, only if the employer can atmospheric hazard reaches a specified
to the general industry standard at demonstrate that the equipment for threshold designed to give entrants an
§ 1910.146(c)(5)(ii)(D), prohibits continuous monitoring is not opportunity to escape before a
employees from occupying the space commercially available or that periodic ‘‘hazardous atmosphere’’ develops, or
when a hazardous atmosphere is present monitoring is sufficient to ensure that check the monitor with sufficient
in the space. This provision has the the conditions in the PRCS remain frequency to alert other entrants when
same purpose as proposed within planned limits. This final an atmospheric hazard reaches that
§ 1926.1216(e)(2)—namely, to ensure provision also clarifies that employers specified threshold. The purpose of
that there is no hazardous atmosphere must use some form of monitoring continuous monitoring is to protect
in an alternate procedures space during during confined space operations, and entrants by ensuring that the
entry. However, due to the different that they must use periodic monitoring atmospheric hazards remain at or below
organization of the proposed and final if continuous monitoring is not used to levels specified by final
rules, the language and organization of ensure that there is always monitoring § 1926.1203(e)(1)(ii), and having an
these two provisions are different. To of the space occurring. alarm will immediately warn entrants
ensure that there is no hazardous OSHA retained in this final rule the when the atmospheric hazards reach
atmosphere in a permit space when an requirement in the proposal that those levels. The monitoring equipment
employer enters using the alternate employers use continuous monitoring serves no purpose if the employer does
procedures, final § 1926.1203(e)(2)(iv) (see proposed § 1926.1216(e)(2)). This not convey the monitoring results to
requires employers conducting any requirement for continuous monitoring entrants in a timely manner. Requiring
entry into a permit space containing a differs from the general industry rule, employers to check the monitor ‘‘with
hazardous atmosphere to comply with which requires ‘‘periodic testing.’’ In the sufficient frequency’’ is a performance
the full permit-space program typical PRCS found at construction measure that means that the employer
requirements in final §§ 1926.1204– sites, it is often difficult for the must demonstrate that the permit space
1211. See also the discussion of final employer to predict with reasonable is monitored such that a change in
§ 1926.1203(e)(2)(vii)(A) below. certainty the levels of hazardous atmosphere or other potential hazard
Paragraph (e)(2)(v). Final atmospheres in a PRCS. In many will be identified in time to allow
§ 1926.1203(e)(2)(v), which is identical instances, the employer will have little entrants to exit the permit space safely.
to the general industry standard at or no past experience with the Checking the monitor regularly also will
§ 1910.146(c)(5)(ii)(E), sets out particular PRCS, and will lack reliable alert entrants if the monitor
requirements for using continuous historical data on hazardous atmosphere malfunctions.
forced-air ventilation to maintain the levels. Also, conditions in a PRCS may Several commenters supported the
permit space safe for entry. Final vary as construction work progresses, requirement for continuous monitoring
§ 1926.1203(e)(2)(v)(A) also is identical causing unexpected increases in (ID–106, p. 2; –220, p. 7; –211, Tr. pp.
to § 1910.146(c)(5)(ii)(E)(1) and similar hazardous atmosphere levels. For 44–45). However, some of these
to proposed § 1926.1216(d)(3). It example, alterations to the wall of a commenters also urged the Agency to
requires that no employee may enter the PRCS may allow a hazardous gas to require continuous monitoring without
space until the forced-air ventilation enter the PRCS, thereby increasing the exception (ID–106, p. 3; –220, p. 7). The
eliminates any hazardous atmosphere in level of the hazardous gas in the PRCS Agency recognizes that in some PRCSs,
the space. Final § 1926.1203(e)(2)(v)(B) from the level measured before altering especially when an employer conducts
is identical to § 1910.146(c)(5)(ii)(E)(2), the wall. In addition, construction numerous entry operations in the same
and shares the purpose of proposed equipment in the space may not operate PRCS and finds through repeated
§ 1926.1216(e)(2) to ensure that the as expected, resulting in a discharge of monitoring that the atmosphere in the
ventilation will continue to control the hazardous gasses into the space at a PRCS is stable, the employer may be
atmospheric hazards while the higher rate than anticipated. In short, able to show that periodic monitoring is
employer is conducting entry construction work tends to follow a sufficient to ensure that the conditions
operations. It requires the employer to somewhat unpredictable course and, in the PRCS remain within planned
direct the ventilation so as to ventilate thus, requires frequent atmospheric limits. Nevertheless, when the employer
the immediate areas where an employee monitoring. Because of this high level of uses periodic monitoring, it must be of
is, or will be, present in the space, and unpredictability, OSHA believes that sufficient frequency to ensure the
control of atmospheric hazards as eliminating or isolating all physical comply with applicable OSHA
planned and must be able to detect new hazards in the space. Thus, the requirements. This final provision
hazards in time to protect employees. In employer must implement the retains the proposed requirement for a
some cases, continuous monitoring may requirements of this final paragraph safe means of entry and exit, but did not
not be possible; for example, continuous when there is a new physical hazard, a retain the language requiring
monitoring may not be available when previously recognized physical hazard compliance with other ‘‘applicable
the atmospheric hazard is a particulate. no longer remains isolated, or there is a OSHA requirements’’ because it is
Therefore, when the employer shows hazardous atmosphere present. unnecessary: Such requirements apply
that periodic monitoring is adequate, or Paragraphs (e)(2)(vii)(A)–(C). Final regardless of whether this statement is
demonstrates that the technology for §§ 1926.1203(e)(2)(vii)(A)–(C), which included in the final rule. If another
continuous monitoring is not available, are similar to general industry OSHA standard covers the means of
this final provision permits the §§ 1910.146(c)(5)(ii)(G)(1)–(3), set the entry and exit, the employer must
employer to use effective periodic requirements for what an employer comply with that applicable standard.
monitoring instead of continuous must do after detecting a hazard in a One commenter supported the
monitoring. The proposed rule space regulated by § 1926.1203(e) proposed rule’s requirement for safe
contained the same exceptions. during entry. Final entry and exit (ID–220, p. 8). Two others
The Agency also retained the § 1926.1203(e)(2)(vii)(A) is identical to commenters agreed that assuring safe
language from the general industry rule the general industry standard at entry and exit is necessary, but asserted
that the monitoring must ensure that the § 1910.146(c)(5)(ii)(G)(1), and requires that it is often infeasible to use
continuous forced-air ventilation is employees to exit the permit space stairways that meet the requirements for
preventing the accumulation of a immediately after detecting a hazard. stairways or ladders that comply with
hazardous atmosphere. The monitoring Final § 1926.1203(e)(2)(vii)(B) is similar 29 CFR part 1926, subpart X’s 4:1 ratio
required by final § 1926.1203(e)(2)(vi), to the general industry standard at because of the configuration of these
in combination with the continuous § 1910.146(c)(5)(ii)(G)(2), except that it spaces (ID–075, p. 10; ID–124, p. 9).
forced-air ventilation required by final applies to all hazards, not just Subpart X contains many requirements
§ 1926.1203(e)(2)(v), ensure that atmospheric hazards as the general for safe stairways and ladders, including
entrants remain protected the entire industry requirement does. The final the spacing between steps and rungs,
time they are present within the permit rule requires the employer to evaluate the condition of the ladders, and the
space. the permit space to determine how the ratio of 4:1 for the vertical angle of
Finally, final § 1926.1203(e)(2)(vi) hazard developed. Final portable non-self-supporting ladders
specifies that the employer must § 1926.1203(e)(2)(vii)(C) is similar to the relative to the structures supporting the
provide any entrant, or his or her general industry standard at ladders (see 29 CFR 1926.1050 et seq.).
authorized representative, with the § 1910.146(c)(5)(ii)(G)(3), though it too These comments seem to be requesting
opportunity to observe the monitoring refers to all hazards (physical and a blanket exemption from these OSHA
required by this paragraph. This atmospheric). It requires the employer requirements, but this request is overly
paragraph does not require employees to implement measures to protect broad. Even these commenters did not
and their authorized representatives to employees from the hazard before argue that all requirements of subpart X
observe the monitoring; however, it reentering the space under the alternate would be infeasible, or that the
provides employees and their procedures specified by final requirements in question are always
authorized representatives with the § 1926.1203(e). Detecting a hazardous infeasible. Employers may assert on a
option of observing should they choose atmosphere during entry indicates that case-by-case basis under this standard,
to do so. OSHA believes that allowing the employer did not maintain the as they could under any other OSHA
employees and their authorized permit space safe for entry, so before standard, that a requirement is
representatives to participate in this authorizing any subsequent entries into infeasible in a particular situation. In
manner will contribute to the successful the space under final § 1926.1203(e), the such a situation, the employer has the
implementation of safe entry operations employer must determine what went burden of proving infeasibility. The
by enhancing their awareness of the wrong and take whatever measures are employer also must make every effort to
status of the hazards in the confined necessary to prevent a recurrence. abate the hazard caused by having the
space. Paragraph (e)(2)(viii). Final ladder at a steeper angle than permitted,
Paragraph (e)(2)(vii). Final § 1926.1203(e)(2)(viii) requires an possibly by securing the top and bottom
§ 1926.1203(e)(2)(vii), which is similar employer to provide a safe means of of the ladder while it is in use so it will
to the general industry standard at access and egress during confined space not slip, and by training employees on
§ 1910.146(c)(5)(ii)(G), specifies what an entries under final § 1926.1203(e). For climbing at a steeper angle.
employer must do if it detects a hazard example, when employees are working Final § 1926.1203(e)(2)(viii) also
in a space regulated by the in an underground vault, the employer requires that an employer use hoisting
§ 1926.1203(e) alternate procedures must provide, and ensure the use of, a systems designed and manufactured
during entry. Final § 1926.1203(e)(2)(vii) safe means of entry into and exit from specifically for personnel hoisting. This
differs from the general industry rule in the underground vault, and ensure that provision includes an exception to this
that it expressly applies to any hazard, the method complies with applicable requirement that allows for the use of
not just a hazardous atmosphere. This OSHA requirements (e.g., 29 CFR part job-made hoisting systems if a registered
final provision is similar to proposed 1926, subpart X—Stairways and professional engineer approves these
§ 1926.1216(f), which also referred to Ladders). Providing proper entry and systems for personnel hoisting prior to
physical, as well as atmospheric, exit equipment such as ladders is use in entry operations regulated by
hazards. The Agency made this change critical under emergency-egress § 1926.1203(e). Unlike the proposed
to ensure that this paragraph was conditions to ensure that employees exit rule, the final rule requires engineer’s
consistent with final a PRCS in a timely and safe manner. approval to be in writing to ensure that
§ 1926.1203(e)(1)(i), which allows Proposed § 1926.1216(c)(3) required that the specifications and limitations of use
employers to use the alternate employers provide a safe method of are conveyed accurately to the
procedures of final § 1926.1203(e) after entry and exit, and that this method employees implementing the job-made
hoist, and that the approval can be combination with the documentation required for other permit spaces and,
verified. However, the final rule required under final therefore, is distinct (see final
prohibits the use of commercial hoisting § 1926.1203(e)(1)(v), will document the § 1926.1206). The general industry
systems not designed and manufactured employer’s efforts to comply with final standard also uses this terminology,
specifically for personnel hoisting § 1926.1203(e)(2), enable OSHA and the and, given the differences in
because OSHA believes that employers employer to evaluate compliance with documentation for the two types of
cannot use such hoisting systems safely the standard, and, if permit-space spaces in the final rule, the Agency
for this purpose. The requirements of incidents occur, assist OSHA and the believes that the terminology is clear.
final § 1926.1203(e)(2)(viii) for hoisting employer in ascertaining the causes of Paragraph (f). Final § 1926.1203(f),
systems will eliminate further injuries those incidents. which is nearly identical to the general
and deaths of employees that could One commenter supported the more industry standard at § 1910.146(c)(6),
occur from the use of a hoisting system detailed documentation requirements addresses the reevaluation of confined
not designed specifically for personnel specified by the proposed rule, and the spaces. This final provision requires
hoisting. This final rule provides requirement in proposed each entry employer to reevaluate non-
employers with flexibility in choosing § 1926.1216(a)(3) and (d)(1) to verify permit required confined spaces when
personnel hoisting systems by allowing prior to entry that physical hazards there is a change in use or configuration
a registered professional engineer to remain isolated (ID–220, pp. 6–7). The that may increase the hazards to
approve a job-made system. OSHA commenter noted that these entrants, and to reclassify the space as
believes that either option ensures that requirements serve as an ‘‘important a permit space if necessary. The Agency
the personnel hoisting system will meet check that measures that may have been believes this requirement is necessary
the design specifications needed for taken in weeks, days, or . . . a previous because conditions around and in
employees to safely access a space. This work shift are still in place and confined spaces may change, especially
final provision ensures that authorized effective’’ (id.). This final rule preserves when multiple employers are
entrants will always have a safe and the important check function because it performing various construction
effective means of entering and exiting also requires documentation of the activities around or in the space.
the space, including escaping during an isolation or elimination of physical Consequently, when indications of
emergency. hazards, in final § 1926.1203(e)(1)(v), changes in the previous conditions arise
There is no corresponding general and provides that entry under final that may increase the likelihood for a
industry provision that has § 1926.1203(e)(2) can occur only under hazard to develop, the employer must
requirements similar to final the conditions set forth in final reevaluate the confined space to ensure
§ 1926.1203(e)(2)(viii) for the alternative § 1926.1203(e)(1). This final rule, adequate employee protection. Final
entries regulated under § 1910.146(c)(5). however, does so with the flexibility of § 1926.1203(f) differs from the general
Section 1910.146(d)(4)(vii) requires safe the more performance-orientated industry rule in that it refers to ‘‘each
access and egress, but that provision language of the general industry entry employer’’ rather than ‘‘the
does not explicitly apply to the alternate standard. employer’’ to emphasize that
procedures used under § 1910.146(c)(5). Final § 1926.1203(e)(2)(ix) also reevaluation is the responsibility of each
However, hazardous conditions may requires that the employer date the employer that conducts entry operations
still arise in these spaces, particularly if certification and make it available to in a confined space.
the ventilation system stops entrants. This requirement ensures that Several commenters were unsure
functioning, thus making safe exit of the certification provides information to what type of new information would
entrants necessary. None of the the entrants about the latest conditions trigger reevaluation under final
comments OSHA received on proposed in the space the entrants will soon be § 1926.1203(f) (ID–098, p. 1; ID–124,
§ 1926.1216(c)(3) provided a reason to entering. One commenter complained p. 8). These commenters asked, for
exclude these requirements from the that requiring the name and signature of example, whether working with
final standard. The same reasons the individual who completed the gasoline equipment near a confined
provided in this preamble for requiring isolation work, as the proposed rule did, space or driving a vehicle near a
safe access and egress during permit- could cause unspecified logistical confined space would trigger
space operations governed by final problems (ID–114, p. 2). OSHA believes reevaluation. Whether these conditions
§ 1926.1204 also apply to the spaces that requiring the signature only of the would trigger a reevaluation depends on
regulated under final § 1926.1203(e) individual who provides the whether it is foreseeable that the
and, therefore, OSHA adopted the certification, as required by the general operation of the equipment or vehicle
proposed requirement in this final rule. industry standard, will resolve any could increase the hazards in the space,
Paragraph (e)(2)(ix). Final logistical problems. such as by creating emissions that could
§ 1926.1203(e)(2)(ix), which is identical Another commenter noted that using enter the space or sparks that could
to general industry the term ‘‘verification document’’ in the ignite a fire in the space. Indications of
§ 1910.146(c)(5)(ii)(H), requires the proposed rule for spaces equivalent to a need for reevaluation may include, but
employer to verify that the permit space the spaces regulated by final are not limited to: (1) A change in the
is safe for entry and that the employer § 1926.1203(e), while using the term configuration or use of, or in the type of
took the measures required by final ‘‘entry permits’’ for other permit spaces work conducted or materials used in,
§ 1926.1203(e)(2). This provision also is in the proposed rule, was confusing (ID– the confined space; (2) new information
similar to proposed § 1926.1216(d)(4), 099, p. 3). The documentation regarding a hazard in or near a confined
though it is less detailed than that requirement in proposed § 1926.1216 space; and (3) when an employee or
proposed provision. The verification was more detailed than the authorized employee representative
must be in the form of a certification documentation requirement in this final provides a reasonable basis for believing
that contains the date, the location of rule and, thus, more similar to an entry that a hazard determination is
the space, and the signature of the permit. Final § 1926.1203(e)(2)(ix) uses inadequate (see also § 1926.1204(e)(5)).
certifying individual; the employer must the term ‘‘certification,’’ and this OSHA does not expect employers to
make the certification available to certification contains much less reevaluate spaces when trivial changes
entrants. The certification, in information than the entry permits occur that do not affect the
characteristics of the space or the work Paragraph (g). Final § 1926.1203(g), non-permit space under final
performed in the space. which is similar to the general industry § 1926.1203(g).
One commenter suggested that OSHA standard at § 1910.146(c)(7), allows an Paragraph (g)(1). Final
include the time lapse since the initial employer to reclassify a permit space as § 1926.1203(g)(1), which is identical to
evaluation as an indication of the need a non-permit confined space only under general industry § 1910.146(c)(7)(i),
for a reevaluation (ID–013, p. 4). This the limited circumstances set forth in ensures that an employer may only
commenter seems to be addressing final § 1926.1203(g)(1)–(4). Final reclassify a PRCS as a non-permit space
situations in which several days or § 1926.1203(g) is substantively similar if no actual or potential atmospheric
weeks could elapse between entries into to proposed § 1926.1217(a). When there hazards are present and the employer
a confined space, during which changes is no actual or potential hazardous eliminates all other hazards in the
in environmental conditions and other atmosphere present in the space, and space. This final provision also is
conditions could occur that may the employer eliminates all physical similar to proposed § 1926.1217(a)(1)
increase hazards in the confined space. hazards in a space, this section allows and (d)(1). OSHA expects that this
For example, a container of coating an employer to reclassify the space as a provision will apply primarily to spaces
chemicals left slightly ajar in a space, or non-permit confined space. The Agency where the employer eliminated or
a substance that is leaching slowly believes that, in some instances, the isolated the physical hazards. While this
through the soil into a new construction procedures specified by final final provision would allow employers
space, might release fumes at a slow rate § 1926.1203(g) will be more efficient flexibility in the methods and
so that they would not become and less costly to implement than procedures they use to identify and
concentrated or hazardous over the permit-space requirements. The Agency eliminate physical hazards, it would not
course of a single day if the space has made three non-substantive changes relieve them from conducting a
some ventilation, but could create a from § 1910.146(c)(7) in the thorough assessment of the space and
hazardous atmosphere if left in a closed introductory paragraph of final identifying hazards that include:
and non-ventilated confined space for a § 1926.1203(g). First, OSHA added the Existing or potential liquids, solid
longer period of time. OSHA agrees that word ‘‘only’’ to the provision. Second, materials, and electricity associated
employers should consider elapsed time OSHA changed ‘‘under the following with processes; the use of equipment,
since the last evaluation in determining procedures’’ to ‘‘when all of the ductwork, and conduits with exposed
applicable requirements in paragraphs valves or that terminate in the confined
when to reevaluate a confined space
(g)(1) through (g)(4) have been met.’’ space; exposed and energized electrical
because of the possibility that hazards
OSHA made these non-substantive conduits; connected rooms and
may increase during this period. Unlike
changes to clarify that an employer may reservoirs that present engulfment
proposed § 1926.1207, which listed
use only these procedures to reclassify hazards; and any other recognized
conditions that would require
a permit space under this rule, and that hazards covered by OSHA construction
reassessment, this final provision uses
the employer must comply with each of standards or the general duty clause, 29
the more performance-oriented language
the provisions under final U.S.C. 654(a)(1). OSHA believes that
of the general industry rule. Therefore,
§ 1926.1203(g) to reclassify a permit eliminating or isolating all physical
this final provision does not list all the
space. Third, to provide consistency hazards in the space protects employees
conditions that could trigger a who perform construction work in the
reevaluation of the space because the with the requirement that an employer
space. For additional information about
circumstances that could increase the use a competent person to conduct the
isolating spaces within sewers and other
hazards in a space and prompt a initial evaluation of the space, the final
continuous confined spaces, see the
reevaluation are too numerous to list. rule specifies that a competent person
discussion of § 1926.1204(c)(3).
One commenter was unsure how the must also conduct the reevaluation and Paragraph (g)(2). Final
entry employer would be able to detect reclassification of the space. § 1926.1203(g)(2), which is similar to
whether changing conditions would One commenter requested that OSHA the general industry standard at
require reevaluation (ID–086, p. 5). clarify whether employers must provide § 1910.146(c)(7)(ii), requires an entry
According to this commenter, the attendants or retrieval systems for employer considering reclassification to
language of proposed § 1926.1204(b) did spaces when final § 1926.1203(g) eliminate or isolate confined space
not require the employer to obtain applies (ID–099, p. 4). Another hazards, when possible, without
information necessary to classify a commenter asserted that OSHA should entering the space. This requirement
space. The commenter’s reading of the require attendants for spaces regulated parallels the requirement in final
proposed rule is incorrect, and would by final § 1926.1203(g) (ID–060, p. 3). § 1926.1203(e)(1)(iv), and OSHA is
also be incorrect of the final rule. Final Final § 1926.1203(g) does not require including the requirement here for the
§ 1926.1203(a) requires each employer compliance with the attendant or rescue same reasons, although it applies to
that has employees who may work in a provisions of this final rule once the different spaces. If it is not possible for
confined space to ensure that a space has been reclassified as a non- an entry employer to eliminate or isolate
competent person identifies all confined permit space. Prior to the confined space hazards without entering
spaces on the site, and to determine, reclassification, however, the full permit the space, then final § 1926.1203(g)(2)
through initial testing as necessary, program requirements apply. In general, requires the entry employer to comply
which of these spaces are permit spaces, such requirements are unnecessary for a with all PRCS procedures in final
and to consider and evaluate other space that has been reclassified as a §§ 1926.1204–1211 until elimination or
elements of the confined space. non-permit space under § 1926.1203(g) isolation of the hazards is complete.
Therefore, under § 1926.1203(f) of this because, to qualify as a non-permit Final § 1926.1203(g)(2) differs slightly
final rule, the entry employer must also space, there can be no actual or from the general industry requirement
ensure that a competent person compile potential hazards in the space. However, in that it contains a new first sentence
the information necessary to determine an employer may elect to comply with clarifying that the entry employer must
whether a reevaluation is necessary, and the PRCS requirements, including the eliminate or isolate the hazards without
conduct the reevaluation when attendant and rescue provisions, even if entering the space unless it is infeasible
necessary. the employer reclassifies the space as a to do so. This slight revision, which
OSHA based on proposed spaces, such as tank containers, as non- OSHA refers to ‘‘atmospheric
§ 1926.1217(a)(3), improves employee permit spaces because residues may hazards’’ in the note to § 1926.1203(g),
protection by reducing unnecessary persist, resulting in potential rather than using the term ‘‘hazardous
entry into permit spaces for atmospheric hazards. For example, the atmosphere’’ as in § 1926.1203(e), to
classification purposes. OSHA received tank shell could oxidize, former emphasize the distinction between
no comments on the parallel provision contents could leach after absorption control and elimination of airborne
in the proposed rule. into the tank coating or lining, and hazards. A ‘‘hazardous atmosphere’’
In the final rule, OSHA also allows contents trapped between the lining and requires certain levels of contaminants
employers to isolate physical hazards, the tank shell could leak. See September in the air (e.g., a flammable gas over 10
rather than eliminate them entirely. The 20, 1994, letter to J.B. Saunders. percent of its LFL or a concentration of
effect must be the same—employees OSHA notes that the elimination of a a substance exceeding its PEL). The
must be effectively protected from any hazard as required by final rule alternative procedures in final
potential exposure to any hazard—and § 1926.1203(g)(2) will not necessarily § 1926.1203(e) may be used when the
it is therefore substantively similar to result in the re-classification of the employer eliminates any ‘‘hazardous
the general industry rule. OSHA space as a non-permit space. The atmosphere’’ even if the employer
included the isolation option, however, employer must still ensure that a anticipates some presence in the air of
in response to comments indicating that competent person performs a full a hazardous substance that must be
full permit program requirements were reevaluation of the permit space before controlled through practices to keep the
not necessary when employers can use reclassifying the space. For example, if substance at safe levels. Therefore a
engineering controls to prevent an employer completes an initial § 1926.1203(e) space remains a permit-
employee exposure to physical hazards, evaluation of a space and determines required space that can be entered
even if the item causing the hazard is that there is a single electrical hazard without a permit so long as the controls
not totally removed from the space (see, that can be locked out, but no remain effective. Final § 1926.1203(g),
e.g., ID–210, Tr. pp. 56, 308–309, 327– atmospheric hazards, the employer must in contrast, requires the total
328). lock out the electrical hazard, entering elimination of ‘‘atmospheric hazards’’
For the purpose of reclassifying a the permit space under the full permit prior to entry, which means that the
permit-required confined space that has program requirements of § 1926.1204 if breathing atmosphere contains no
potential energy sources in it, the entry is necessary. Because the person potentially hazardous substance that
methods the employer must use depend who locks out the energy hazard may or would make it a potentially hazardous
on the types of energies requiring may not be focused on the evaluation of atmosphere; therefore, the employer has
elimination or isolation. OSHA’s the entire permit space, that employer’s no need to maintain practices to control
lockout/tagout requirements address competent person must still verify that it (hence, it is not a permit-required
electro-mechanical hazards, but that the hazard is properly isolated, and space). For example, an employer can
lockout/tagout will not eliminate that no other hazards are present, before eliminate a ‘‘hazardous atmosphere’’ of
hazards associated with flowable the employer may re-classify the space methane by reducing the concentration
materials such as steam, natural gas, and as a non-permit space. of methane in the space from 12 percent
other substances that can cause Final § 1926.1203(g)(2) also includes
of its LFL to 9 percent. However, the
hazardous atmospheres or engulfment the note from the general industry
methane is still an ‘‘atmospheric
hazards in a confined space. See OSHA standard stating that control of
hazard’’ at the lower 9 percent
Directive CPL 02–00–147: The Control atmospheric hazards through forced-air
concentration because, without the
of Hazardous Energy—Enforcement ventilation does not constitute
alternative procedures that include
Policy and Inspection Procedures, at pp. elimination of the hazards. Final
3–10 (Feb. 11, 2008). Employers can § 1926.1203(e), not § 1926.1203(g), ventilation, the level of methane could
isolate these hazards by using the covers permit-space entry when the rise and injure or kill the workers inside
techniques described in the definition of employer can demonstrate that the the space. To eliminate the
the terms ‘‘isolate’’ or ‘‘isolation’’: forced-air ventilation alone will control ‘‘atmospheric hazard’’ caused by
blanking, blinding, misaligning or any atmospheric hazards within in the methane, the employer must eliminate
removing sections of lines or pipes, and space. Final 1926.1203(g) requires the all of the methane from the space, and
a double-block and bleed system. See complete elimination of such hazards. maintain this condition without forced-
also August 25, 1995, letter to William OSHA revised ‘‘hazards’’ to air ventilation or other practices.
K. Principe. ‘‘atmospheric hazards’’ in the second Paragraph (g)(3). Final
‘‘Elimination’’ means no on-going sentence to reflect the change in final § 1926.1203(g)(3), which is nearly
measures are necessary to keep the § 1926.1203(e)(1)(i), which will permit identical to the general industry rule at
space free of a hazard; if continued employers to use the alternative § 1910.146(c)(7)(iii), requires an entry
operation of ventilation is required to procedures if they isolate or eliminate employer seeking to reclassify a permit
address a hazard, for example, then the all physical hazards. Employers may space to document the basis for
hazard is controlled, not eliminated. reclassify the space as a non-permit determining that it eliminated all
See, e.g., September 19, 1994, letter to space under final § 1926.1203(g) even if permit-space hazards through a
Edward Donoghue. If the employer uses a physical hazard remains, so long as certification that contains the date, the
ventilation to eliminate an atmospheric the hazard is completely isolated such location of the space, and the signature
hazard from a space (as opposed to that employees cannot be exposed to it. of the certifying individual. In addition,
controlling the hazard), the employer OSHA does not view this as a the employer must make the
must perform verification monitoring substantive change from the general certification available to each employee
with the ventilation system off to industry standard, which allowed entering the space or his or her
establish the elimination of any employers to treat isolation of physical authorized representative. The employer
atmospheric hazards before reclassifying hazards as elimination of those hazards must substantiate all determinations so
the space. See November 11, 1993, letter for purposes of reclassifying a permit that employers, employees, and the
to Trey Mayfield. Employers usually space. See October 12, 1995, Agency have the means necessary to
may not reclassify some confined memorandum to Linda Anku. evaluate those determinations and
ensure compliance with the conditions space. This final provision also is of § 1926.1204 and permitting
that would enable the employer to similar to proposed § 1926.1217(e)(2). requirements of § 1926.1205. The fact
conduct entry operations using the The Agency believes that this final that the spaces addressed in
alternate procedures following provision is necessary to protect § 1926.1203(g) were previously permit
reclassification. entrants when conditions around and in spaces before reclassification as non-
This final provision is necessary to confined spaces change, especially permit spaces means that it is
protect employees from physical or when performing construction activities imperative for the entry employer to
atmospheric hazards on initial entry around or in the space. Having a hazard proceed with caution whenever a new
into the space under final arise in a reclassified space indicates hazard emerges.
§ 1926.1203(g), and to ensure that the that the previous evaluation was
space remains safe during entry insufficient or that there has been a Section 1926.1203(h) and (i)—
operations. The requirement to make the significant departure from the previous Information Sharing and Coordination
certification available to employees or conditions; therefore, a thorough Duties at Multi-Employer Worksites
their authorized representatives ensures reevaluation of the entire space is The discussion of paragraphs (h) and
that entrants have the information critical. (i) has three parts:
necessary to detect developing hazards This provision indicates clearly that (1) An overview of host employers
while they are working in the space. entry employers retain responsibility for and controlling contractor
Proposed § 1926.1219(d) provided the safety of employees who enter responsibilities;
that the employer must maintain an spaces after they reclassify the spaces as (2) OSHA’s authority to require host
equivalent verification document until non-permit confined spaces. The employers and controlling contractors to
the work in the confined space is employer must determine if it is still share information to protect the
complete. One commenter asserted that appropriate, under the circumstances employees of others; and
OSHA should require employers to identified through the reevaluation, to (3) A paragraph-by-paragraph
maintain records of these classify the space where the hazard explanation of § 1203(h) and (i).
determinations for years to aid OSHA arose as a non-permit confined space. A (1) Overview of Host Employers and
and the National Institute for reevaluation aimed at reestablishing Controlling Contractor Responsibilities
Occupational Safety and Health compliance with final § 1926.1203(g)
(NIOSH), and to protect a company from will involve the demonstrations, testing, Timely information exchanges and
potential litigation in the future; the inspection, and documentation required coordination of work activities can be
commenter, however, did not specify in paragraphs (g)(1) through (g)(3) of this critical in safeguarding employees
exactly how OSHA and NIOSH would final rule. OSHA anticipates that some performing confined-space work,
use these records (ID–060, p. 2). employers will seek to reestablish particularly on multi-employer
Another commenter stated that compliance with final § 1926.1203(g), worksites where one employer’s actions
employers only need to maintain the while others will choose to conduct the can affect the health and safety of
certification until the completion of the remainder of its entries in that space in another employer’s employees. As
project (i.e., as long as there are entrants, accordance with the full permit-space OSHA noted in its explanation of the
the certification must be available to program requirements specified by final proposed rule, there are a number of
those entrants) (ID–108, p. 3). §§ 1926.1204–1211. The Agency’s contractors and subcontractors
Nevertheless, the Agency recognizes concern is that the approach chosen performing jobs on most construction
that confined spaces not classified as must adequately protect employees who worksites, and there may be employees
PRCSs do not involve hazards as enter the spaces. of different employers performing work
defined in this standard. Therefore, In some cases employers might need within the same confined space. In
unlike permit-space entry permits, the to require their employees to exit the many instances, employees of one
Agency believes that it is not necessary space temporarily during a limited subcontractor will enter a confined
for entry employers to maintain the event where the hazard is already space after another subcontractor’s
certification required under final known and temporary, such as when an employees complete their work within
§ 1926.1203(g)(3) for review and employer temporarily removes workers the space.
evaluation after completion of the work. from an underground confined space OSHA recognizes that both the
The Agency agrees with the latter while other work is conducted above controlling contractor and the host
commenter that the purpose of the underground confined space. In this employer may have crucial information
certification is to allow employees and situation, the employer can allow about confined spaces at a construction
employers to detect any changes from employees to re-enter without re- worksite. Therefore, in the proposed
the original entry conditions during classifying the space as a permit space standard, OSHA adopted the
confined space operations, and believes after completing a reevaluation of the information-sharing duties specified for
that the minimal useful information structural integrity of the space to make the host employer in the general
gained from these records likely would sure that the work above the industry standard (§ 1910.146(c)(8)) and
not justify the burden of maintaining underground confined space did not proposed applying them to both the host
them. Furthermore, no provision in this affect that space. In other cases, employer and the controlling contractor.
final rule prohibits an entry employer however, a new unanticipated hazard in As one labor organization noted, based
from maintaining this information for a the space means that the status of the on the experience of its members in
period longer than the period required space reverts to a permit-required both general industry and construction
by the final rule. confined space until the employer can settings, worker safety is affected by
Paragraph (g)(4). Final identify and address the hazard and timely information sharing in both
§ 1926.1203(g)(4), which is similar to reclassify the space as a non-permit general industry work and construction:
§ 1910.146(c)(7)(iv), requires that space under § 1926.1203(g). As a result, [T]he problem posed by contracting out
whenever a hazard arises in a space all of the provisions of this standard work in both situations is nonetheless the
reclassified under final § 1926.1203(g), applying to a permit space apply, and same—how to ensure that subcontractors that
employees must evacuate the space, and entry must be conducted in accordance are in a work location for a limited period of
the entry employer must reevaluate the with the permit program requirements time have the best possible information to
identify the location of confined spaces, and coordination among controlling controlling contractors or host
assess their hazards, and ensure that their contractors and subcontractors, and employers to verify the accuracy of the
employees can perform their assigned duties between host employers and controlling information they receive from other
safely.
contractors. The coordination and employers (ID–117, pg. 21; ID–078, pg.
(220.2, pg. 10.) information-exchange duties in the final 1; ID–098, pg. 1). Consequently, one
The same commenter also explained rule are largely the same as the duties commenter predicted that this duty
that information sharing may be even required by the proposed rule, although would cause controlling contractors and
more critical in the construction setting the final rule makes communication host employers to spend too much time
because different workers may perform with entry contractors the responsibility and money overseeing their
many different activities in the same of the controlling contractor rather than subcontractors’ work (ID–120, pg. 2).
space at different times, which can the host employer, and does not contain Two different commenters, however,
result in hidden dangers: the proposed rule’s additional indicated that a controlling contractor
Many chemical substances used in the requirements for identifying the should have even more responsibility,
construction industry, once in place, are separate classifications of spaces. (See particularly when multiple employers
neither detectable nor hazardous until proposed § 1926.1204.) will be working in the same area. The
exposed to a particular work process. For Based on the record as a whole, latter commenters argued that the
example, surface coatings such as paints and OSHA finds that the information- controlling contractor should ‘‘share in’’
epoxies are seemingly stable—and are sharing and coordination
generally undetectable through air the ‘‘responsibility’’ and costs of permit
responsibilities of host employers and space entries, including verifying the
monitoring—once applied and dried.
However, these same substances may create controlling contractors required by this training of subcontractor employees and
significant safety and health hazards to final standard are critical means of communications among employers,
employees who perform welding and other identifying hidden or latent dangers in particularly when multiple employers
processes involving heat while working in a permit spaces and for preventing the enter and work in the permit spaces at
confined space. A contractor that performs actions of one employer from exposing the same time (ID–108, pg. 4; ID–210,
the routine assessment of physical and another’s employees to hazards in a pg. 60). One of these latter commenters
atmospheric hazards required by the permit space. These provisions will
standard would not necessarily identify these expressed concern that, without
enhance the safety of workers in controlling contractor verification,
potential hazards.
confined spaces by ensuring that all ‘‘untrained or unqualified persons
(ID–213.1, pg. 1.) Similarly, employers have the previously
polyurethane is often used for spray would be likely to enter the spaces
identified information at their disposal where a self-declaring system of
foam insulation. When welding or before entry to avoid hidden hazards
heating in a confined space is performed monitoring is employed’’ (ID–108, pg.
and to make adequate preparations to 4).
near spray foam insulation that contains protect employees entering permit
polyurethanes, the heat could cause the spaces. The final rule does not require the
polyurethanes to break down and The rule places controlling controlling contractor or host employer
produce hazardous fumes. A contractor contractors at the center of this process. to verify entry-employer information
may not recognize this hazard during a Before any employer enters a permit (testing, monitoring, etc.) or to have its
routine assessment of the space, and space, the final rule requires controlling own employees enter any confined
would rely on information from a host contractors to obtain relevant space or take other direct actions to
employer or controlling contract about information about confined spaces on discover new information; requiring
the potential hazard. the worksite from the host employer, controlling contractor employees to
Hidden dangers may also arise while and then to relay that information, along enter permit spaces might increase
working with equipment in confined with any other relevant information, to exposure of unqualified persons to the
spaces. For example, operating internal each contractor that will enter the hazards of permit spaces. Unless the
combustion engines, such as air confined space or that will be controlling or host employer allows its
compressors, pressure washers, and performing work that could foreseeably own employees into a permit space, the
generators in a confined space could result in a hazard within that confined final rule only requires the controlling
lead to carbon monoxide exposure. space. (See § 1926.1203(h)(1) and (h)(2).) contractor or host employer to share
Because carbon monoxide is a colorless, The controlling contractor is also information that is already in its
odorless gas, it is difficult to detect responsible for coordinating work in possession or that it receives from other
without a monitor or testing equipment. and around confined spaces so that no employers. OSHA agrees that it is
A host employer, controlling contractor, contractor working at the site will create important to prevent untrained or
or subsequent entry employer may not a hazard inside the confined space. (See unqualified persons from entering the
realize that carbon monoxide levels in a § 1926.1203(h)(4).) After the entry space. The type of information that the
confined space have changed without employer performs entry operations, the controlling contractor must share with
communicating with the employer who controlling contractor must debrief the subcontractors, and that the host
operated the engine in the space. entry employer to gather information employer must share with the
Similarly, when working with live that the controlling contractor then must controlling contractor, is identical to the
circuits, an entry employer may share with the host employer and other type of information that the host
reenergize a once de-energized circuit to contractors who enter the space later. employer must share with contractors
perform work in a confined space. (See § 1926.1203(h)(5).) Section under the general industry standard.
Communication about reenergized 1926.1203(i) assigns the role of the (See § 1910.146(c)(8).) Separately,
circuits will give the host employer, controlling contractor to a particular controlling contractors still have the
controlling contractor, and any employer in the event there is no same duty they have always had to
subsequent entry employer’s indication controlling contractor for the project. exercise reasonable care to ensure
that conditions within the confined Please see the discussion of compliance with the requirements of
space may have changed. § 1926.1203(i), below. other applicable standards (e.g., welding
In this final rule, as in the proposed Some commenters expressed concern standard, respirator standard) in
rule, OSHA requires communication that the final rule imposes a duty on accordance with OSHA’s multi-
employer citation policy. The specific promulgated previously with employer, as the information hub for
communication and coordination multiemployer provisions. OSHA confined-spaces information-sharing
requirements imposed by this rule are provided several examples of these and coordination because the
discussed in the paragraph-by- standards in the preamble to the controlling contractor’s function at a
paragraph explanation of § 1926.1203(h) proposed rule, and OSHA subsequently construction site makes it better situated
that follows the discussion of OSHA’s promulgated additional rules requiring than the host employer (assuming the
authority for these requirements. controlling entities and utilities to take host employer is not also the controlling
steps to protect other employers’ contractor) to contribute to, and to
(2) OSHA’s Authority To Require Host
employees during crane operations. (See facilitate, a timely and accurate
Employers and Controlling Contractors
29 CFR 1926.1402(c), 1926.1402(e), information exchange among all
To Share Information To Protect the
1926.1407(e), 1926.1408(c), and employers that have employees
Employees of Others
1926.1424(b).) Finally, numerous courts involved in confined-space work.
Two commenters argued that OSHA of appeal and the OSHRC have upheld General industry worksites, such as a
lacks the authority to impose any OSHA’s authority to place obligations refinery or factory, are likely to be
requirements on host employers or on employers that reach beyond their stable, and owned and under the control
controlling contractors except with own employees. In addition to the of the host employer for a substantial
respect to their own employees. (112.1, authorities listed in the preamble to the length of time. The host employer is
p. 14–15; and 117.1, pg. 7–12.) One of proposed rule, the Third Circuit upheld well suited in that scenario to facilitate
these commenters stated that a the information-sharing requirements in information sharing because the host
‘‘controlling contractor . . . may not be the Asbestos Standard for the employer is most likely to have control
cited if it did not create a cited hazard construction industry, noting: ‘‘We are of the site and information about it
and it has no employees exposed to the not convinced that the Secretary is before another employer performs
hazard,’’ explaining that the ‘‘legal powerless to regulate in this [way], confined space work there. On a
analysis supporting this point is set especially given the findings she has construction worksite, the controlling
forth well’’ in the Occupational Safety made regarding the importance of contractor has overall authority for the
and Health Review Commission building owners in the discovery and site and is best situated to receive and
(OSHRC) decision in Secretary of Labor communication of asbestos hazards.’’ disseminate information about the
v. Summit Contractors, Inc., 21 BNA Secretary of Labor v. Trinity Indus., Inc. previous and current work performed
OSHC 2020 (No. 03–1622, 2007). (112.1, (Trinity), 504 F.3d 397, 402 (3d Cir. there. Evidence introduced at the
p. 15.) OSHA notes that both the 2007). hearing indicated that the controlling
reviewing federal court and the contractor communicates with entry
Commission itself subsequently rejected (3) Paragraph-by-Paragraph Explanation
employers more frequently than the host
that view in Solis v. Summit of § 1926.1203(h) and (i)
employer does (ID–210, pg. 315–320). In
Contractors, Inc., 558 F.3d 815 (8th Cir. Final § 1926.1203(h) is substantively contrast, the record shows that host
2009) and Secretary of Labor v. Summit similar to the corresponding provision employers are not always directly
Contractors, Inc., 23 BNA OSHC 1196, for general industry confined spaces at involved in the construction process
1202–03 (No. 05–0839, 2010). § 1910.146(c)(8), but modified to and, therefore, are often less well
OSHA has clear authority to require include requirements for controlling situated than controlling contractors to
host employers and controlling contractors that were included in the facilitate information-sharing (ID–220,
contractors to comply with the proposed rule. The type of information pg. 14–15).
information-sharing and coordination that the controlling contractor must The final rule is substantively similar
provisions in the final rule. The share with entry contractors, and that to the proposed rule, except that the
preamble to the proposed rule discussed the host employer must share with the proposal would have required the host
in detail OSHA’s authority to impose controlling contractor, is identical to the employers to communicate directly with
the duties in this standard (see 72 FR type of information that the host entry employers. For the reasons
67358–67360, Nov. 28, 2007), and the employer must share with contractors discussed in the prior paragraph, OSHA
Agency reasserts the same basis with under the general industry standard. assigned the controlling contractor that
respect to this final rule, along with the The primary difference in this area function in this final rule, giving only
2009 and 2010 Summit decisions. First, between this rule and the general limited information-exchange
the plain language of the OSH Act and industry standard is that this rule makes requirements to the host employer. In
its underlying purpose support OSHA’s the controlling contractor the central the final rule, OSHA also clarified the
authority to place requirements on point of the information exchange, scope of the information exchanges by
employers that are necessary to protect while the host employer is the central requiring the controlling contractor to
the employees of others. As explained point in the general industry standard. coordinate and share information with
later in this section of the preamble, the The final rule also structures the entities whose activities could
overall sharing of information that will requirements in chronological order to foreseeably result in a hazard in the
occur in accordance with the final host- make them easier to follow, setting out confined space, as opposed to all
contractor provisions will help protect the information sharing and contractors ‘‘near’’ the permit space.
the employees of both host employers coordination duties prior to entry, and Most other differences between these
and contract employers. Second, then setting out the duties during and requirements in the proposed rule and
congressional action subsequent to after the entry. These requirements are the final rule are stylistic in nature and
passage of the OSH Act recognizes this an efficient and necessary way to ensure intended to bring it closer to the text of
authority. Third, OSHA consistently that all employers have important general industry rule.
interprets its statutory authority as information about the confined-space In the following, more detailed
permitting it to impose obligations on hazards so each employer can provide discussion, paragraph (h)(1) contains
employers that extend beyond their own adequate protection to employees it the pre-entry duties of host employers,
employees, as evidenced by the directs. (h)(2) the pre-entry duties of controlling
numerous standards (including several OSHA is designating the controlling employers, and (h)(3) the pre-entry
construction standards) that OSHA contractor, rather than the host duties of entry employers. Paragraph
(h)(4) then describes the coordinating and burdensome investigations of the space). Then, before permit space entry,
responsibilities of controlling and entry history of the worksite, and, most it must relay that information to any
employers, and (h)(5) explains their importantly, that these employers ‘‘are entity entering the permit space and to
duties during and after entry. Finally, not required to enter a confined space any entity whose activities could
paragraph (i) explains requirements to collect the relevant information.’’ foreseeably result in a hazard in the
when there is no controlling employer. (See 72 FR 47933.) OSHA is retaining confined space. (See
Paragraph (h)(1)—Pre-entry duties of the same approach in the final rule, but § 1926.1203(h)(2)(ii).) The controlling
host employer. The host employer refers to ‘‘known’’ permit spaces instead contractor must also share any other
serves an important role in providing of the more awkward ‘‘space that the information that it has gathered about
information because the host employer host actually knows is a confined the permit space, such as information
is likely to be the employer most space.’’ The final rule also narrows the received from prior entrants.
familiar with the property and the most requirement by focusing specifically on The final rule varies slightly from the
likely to retain, between separate known permit spaces, rather than to all proposal in requiring controlling
construction projects, information about confined spaces, because these spaces contractors to share the information
permit spaces on the property, pose the greatest hazards to employees. with any ‘‘entity,’’ rather than other
particularly in construction involving Narrowing the requirement also reduces contractors or employers, to ensure that
existing facilities. (ID–141, pg. 3.) As a the number of information exchanges the controlling contractors also share
result, the host employer may have and matches the type of information this information with independent
information about hidden dangers or that the host employer must share, contractors who are not ‘‘employers’’
other information that can help reduce which is linked to the nature of the under the OSH Act. These contractors
employee exposure to hazards in permit space as a permit space, i.e., information pose the same issues as do employers
spaces. about the hazards that make the space when working in or around permit
Final § 1926.1203(h)(1) requires the a permit space, and the previous efforts spaces, i.e., they may increase hazards
host employer to share information it to address those hazards. This narrowed for others working in or around the
has about the location of known permit approach will appropriately focus the space if they do not comply with the
spaces, and any previous steps that it exchanges on those spaces with known provisions of this standard. OSHA
took, or that other employers took, to hazards. In the event that an employer concludes that it is equally important
protect workers from the hazards in is both a host employer and the for controlling contractors to pass along
those spaces. Telling other employers controlling contractor, the employer has information about permit space hazards
about each known permit space on the the information that complies with the to independent contractors, and to
worksite is essential to achieving the provisions of final § 1926.1203(h)(1), coordinate their activities as required in
purpose of the information-exchange (h)(2), (h)(4), and (h)(5). this standard. Although OSHA is not
requirements, which is to ensure that For example, a host employer hires a directly requiring independent
contractors with employees entering controlling contractor to build an contractors to share information in
confined-spaces are aware of the type underground storage facility and accordance with the standard, OSHA
and degree of these hazards and can discovers during that process that there expects that controlling contractors will
take necessary safety precautions. is an underground stream below the be able to obtain the necessary
Having information about the property. Years later the host employer information as a result of their control
previously identified hazards in a space, hires a different controlling contractor over the worksite.
and the previous efforts to address to expand the underground storage OSHA requires the controlling
them, will assist the entry employer in facility in a manner that will include contractor to obtain the information
ascertaining if those hazards still exist, several confined spaces. In this from the host employer before entry
and help the entry employer avoid example, the host employer must share operations begin so that the controlling
problems addressing the hazards that the plans for the existing storage facility contractor can share the information
previous entry employers encountered. and identify the location of the with the entities specified in
Final paragraph (h)(1) is similar to the underground stream so that the § 1926.1203(h)(2)(ii) in time to minimize
corresponding provision for general controlling contractor and the relevant potential employee exposure to hazards
industry confined spaces and to subcontractors can develop a permit- in the confined spaces. This provision
proposed § 1926.1204(a), although the space program appropriate to address was not in the proposal; the proposal
host employer must share the potential engulfment hazards. The host required both the host employer and
information with the controlling employer also would be responsible for controlling contractor to share
contractor instead of the entrants. The disclosing the storage of any potentially information directly with the entry
controlling contractor then shares it hazardous chemicals or other employer. (See proposed
with the entry employers. OSHA did not substances in the existing storage § 1926.1204(a).) OSHA added this
receive any comments specifically facility. However, the final rule would provision to the final rule to conform to
opposing the inclusion of this not require the host employer to drill for the final rule requirement that the host
information in the information- additional undiscovered underground employer share information with the
exchange requirements. rivers, conduct soil tests, or test the air controlling contractor rather than the
The proposed rule provided that host in the existing storage facilities. entry employer. The final standard
employers had to share the information Paragraph (h)(2)—Pre-entry makes it explicit that the controlling
about known hazards only ‘‘if they have information-sharing duties of contractor and host employer have
it,’’ and to identify confined spaces controlling contractors. In paragraph separate duties with respect to the same
when the host employer or controlling (h)(2), OSHA requires controlling information: the controlling contractor
contractor ‘‘actually knows’’ that they contractors to obtain the information must obtain it under final
are confined spaces. (See 72 FR 67407.) specified in paragraph (h)(1) from the § 1926.1203(h)(2)(i) and the host
The purpose of including these phrases host employer (i.e., the location of employer must share it under final
in the proposed rule was to clarify that permit spaces, the known hazards in § 1926.1203(h)(1).
the controlling contractor and host those spaces, measures employed These complementary duties also
employer need not engage in extensive previously to protect employees in that address the concerns of some
commenters that host employers are requirement also is similar to the § 1926.1204(a)(1), was potentially
often state or local government entities information-exchange requirement in duplicative and ambiguous because it
not subject to the OSH Act. (ID–78, p. § 1926.65(b)(1)(iv) (Hazardous waste required the controlling contractor and
2; ID–141, pg. 3.) The commenters operations and emergency response). host employer to provide the same
expressed concern that it might be Both rules require employers to inform information to the same entities.
difficult for the controlling contractor to contractors and subcontractors about Final § 1926.1203(h)(2)(ii)(A) and (B)
obtain the information from a hazards of the work the contractor will require the controlling contractor to
government entity not subject to be performing, including hazards of the share with the entities entering the
§ 1926.1203(h)(1), and that the host’s worksite. permit space, and any other entity at the
failure to provide the information could OSHA designed this requirement to worksite whose activities could
subject the controlling contractor to protect authorized entrants and others foreseeably result in a hazard in the
heightened liability. In such cases, who are part of the permit-space entry permit space, the information that the
OSHA expects the controlling contractor process (e.g., the attendant) from a wide controlling contractor received from the
to exercise due diligence in attempting variety of potential activities, including host employer, as well as any additional
to obtain the information from the host those that may be beyond the scope of information the controlling contractor
employer, and believes that most hosts the permitting process. Therefore, the has about the topics listed in paragraphs
will provide it when the controlling information-exchange requirement (h)(1)(i) through (iii) (i.e., the location of
contractor explains that it needs the applies to activities outside the permit permit spaces, the hazards in those
information in order to perform the job space that could foreseeably result in a spaces, and any previous efforts to
safely and in accord with law. hazard within the permit space, either address those hazards). These
Final § 1926.1203(h)(2) is similar to alone or in conjunction with the paragraphs are substantively similar to
the corresponding provisions for general activities inside the space. Examples the general industry requirements at
industry confined spaces with a few include use of a heavy gas that could § 1910.146(c)(8)(ii) and (iii). Having
distinctions. General industry enter the space and cause oxygen information about the previously
§ 1910.146(c)(8)(i) requires the host deficiency or sparks from a welding identified hazards in a space will help
employer to share the specified operation outside the space that could the entry employer ascertain whether
information with ‘‘the contractor.’’ This ignite flammable gas inside a confined those hazards still exist.
final rule requires an exchange of the space. To prevent the creation of For employers or other entities whose
same information, but § 1926.1203(h)(2) confined-space hazards, final activities could foreseeably result in a
requires the controlling contractor to § 1926.1203(h)(4) supplements this hazard in the confined space, this
exchange that information with both the requirement by requiring the controlling information will improve their ability to
entity entering the permit space and contractor to coordinate the activities of assess whether those activities will
with other contractors working around entities either entering the permit space create such a hazard, to avoid creating
the permit space. or engaged in actions that could the hazard or to minimize any hazard
The general industry rule requires the foreseeably result in a hazard within the they create, to prevent their employees’
host employer to inform other space. unauthorized entry into a permit space,
employers that they can conduct permit- Paragraph (h)(2)(i). As noted above, and to help them prepare for
space entry only by complying with a final § 1926.1203(h)(2)(i) requires the coordination of their activities under
permit-space program meeting the controlling contractor to obtain from the final § 1926.1203(h)(4).
requirements of the standard (see host employer, before permit-space Final § 1926.1203(h)(2)(ii)(C) is
§ 1910.146(c)(8)(i)). There was no entry, the host’s information regarding similar to the general industry standard
specific parallel in the proposed permit-space hazards and previous at § 1910.146(c)(8)(iii) in that it requires
construction rule. This final rule also entry operations. OSHA included this the controlling contractor to share with
does not contain a specific parallel provision in the final rule as part of the each specified entity any precautions or
requirement because the entry change to limit the host employer’s procedures that the host employer,
employer’s duty to use a valid permit involvement in the information- controlling contractor, or any entry
program is explicit in § 1926.1203(d). exchange process, and to centralize the employer implemented earlier for the
OSHA has clarified the requirements role of the controlling contractor. The protection of employees working in
for communication with entities whose controlling contractor needs this permit spaces. This provision also is
activities outside a confined space may information for dissemination to entities similar to the proposed standard at
affect workers inside the space. Many entering permit spaces (final § 1926.1204(a)(2)(iii). This final
commenters found the terminology of § 1926.1203(h)(2)(ii)), and to fulfill its provision requires the controlling
the general industry rule (referring to duty to coordinate permit-entry contractor to notify the specified entity
work ‘‘in or near permit spaces’’ in activities with other work occurring in of the procedures currently used, or
§ 1910.146(c)(8)(iii)) and the proposed and around the permit space (see final previously used, at the permit space,
rule (referring to ‘‘employers’’ in § 1926.1203(h)(4)). thereby alerting each new entering
proposed § 1926.1209(b)(3).) confusing Paragraph (h)(2)(ii). The final rule entity to information that it can use to
in the context of a construction requires the controlling contractor to improve its entry plans and permit
worksite.16 Therefore in this final rule, pass along the information it received program. This provision does not
OSHA refines this requirement by from the host employer about the permit require the controlling contractor to
requiring the controlling contractor to spaces on the worksite. The controlling develop entry programs for its
contractor is at the hub of the contractors.
provide the information to other entities

on the worksite when the activities of information exchanges in the final rule, One commenter urged OSHA to alter
these other entities could foreseeably so this step is critical to ensuring that the information-exchange requirements
result in a hazard within the confined the host employer’s information reaches in proposed § 1926.1204(a) by requiring
space. This information-exchange the entities entering the permit space the controlling contractor to share all
and others whose work may create information about precautions or
16 For a discussion of the term ‘‘near’’ see the hazards inside the permit space. The procedures implemented by any
overview of § 1926.1205 in this preamble. parallel provision of the proposed rule, employer within a given permit space,
not merely the precautions and required confined space. The welder sets up retain this information, which protects
procedures the host employer or a ventilation system that complies with all employees who are performing permit-
controlling contractor implemented for applicable OSHA requirements. The space work, and to communicate this
controlling contractor also hires a different
that space (ID–220, pg. 16). OSHA information to entry employers and the
subcontractor to perform unrelated
agrees, and the final rule requires excavation work 75 yards away from the others identified in the standard.
controlling contractors to share this permit space. The controlling contractor A different commenter asserted that
information because it is likely to be must alert the excavation contractor to the employers will have difficulty managing
helpful to subsequent entry employers fact that a welder is working in the confined and recording the information they are
as they assess the spaces and develop space, that the space has been designated a required to communicate (ID–078, pg.
their own procedures. This information permit space and must not be entered by any 2). However, the record indicates that
may also reduce the amount of time it of the excavation contractor’s employees, and many construction employers already
that the welder is relying on a ventilation are following the general industry
takes subsequent entry employers to system that must not be impacted by the
develop their own entry procedures. confined spaces standard, which
excavation contractor’s activities, such as by
The controlling contractor’s experience blocking the ventilation system or by
requires host employers to share similar
with a permit space includes operating heavy machinery, generators, etc. information (see § 1910.146(c)(8)(ii) and
information gathered from other entry in such a way that their fumes could enter (c)(8)(iii)). This final rule also does not
employers and other sources; the the confined space. In this example it is prescribe how employers are to gather,
controlling contractor will share this foreseeable that the excavator might record, or maintain this information.
information with subsequent entry otherwise place dirt from the excavation (the This commenter urged OSHA to provide
‘‘spoil pile’’) in a location that could interfere a database of relevant information that
employers. If the information about
with the welder’s ventilation system, or add all employers could access; however,
previous procedures came from an entry fumes into the confined space. Either action
employer who worked on projects such an action is beyond the scope of
would foreseeably result in a hazard in the
before the controlling contractor became permit space. However, absent some other
this rulemaking.
involved, then the controlling contractor abnormal condition such as an underground The National Association of Home
would obtain that information from the gas pipeline running between the excavation Builders asserted that the information-
host employer. If the previous site and the permit space, the controlling exchange requirements would not be
procedures came from an entry contractor would not need to ensure any beneficial in the context of residential
employer who worked under the coordination between the excavating construction because conditions change
activities and the welding activities because too rapidly (making it likely that the
controlling contractor, then the the excavation itself (aside from the
controlling contractor would have information will be inaccurate when
placement of the spoil pile) is 75 yards away exchanged), and that the ‘‘small
obtained the information pursuant to and would not foreseeably result in a hazard
likelihood that the provision would ever
other provisions of this rule. in the permit space.
be of any use to employee safety’’
Examples of Pre-Entry Information- In example 1, the entry employer should not outweigh the ‘‘burden of
Exchange Duties of Host Employers and might not be aware of the hazard from compliance’’ in residential construction
Controlling Contractors the pooling water or of other hazards (ID–117, pg. 20). This comment misses
that could arise from the activities of the point: this is an important safety
Example 1. A controlling contractor is
walking the worksite and notices a
others outside the site in conjunction issue because the information exchange
significant amount of water pooling so that with the pooling water. In examples 2 protects workers from exposure to
it might enter an underground permit space. and 3, both types of information could harmful conditions. The rapidly
The controlling contractor must alert the be critical to employers performing changing confined-space conditions on
subcontractor working in that space of the subsequent welding or other tasks that residential construction sites is a major
potential for water entering the space or might ignite remaining fumes or release reason OSHA is requiring these
weakening the structure, and must also vapors inadvertently. information exchanges. Moreover, only
inform other entities in the area whose These information exchanges, in the presence of a permit-required
activities could foreseeably result in a hazard combination with separate OSHA
inside the confined space (e.g., entities confined space triggers the information-
whose activities may be contributing to the requirements that entry employers share sharing requirements, and every entry
pooling water, may convey an electric charge specific information about the permit into a permit-required confined space,
through the water into the confined space, or spaces with controlling contractors, will by definition, exposes the entrants to a
may weaken the structure around the ensure that each ‘‘downstream’’ hazardous atmosphere or other serious
confined space to allow the water to enter the employer (the employer performing the hazard absent the measures
space). permit-space entry) receives important implemented through the permit
Example 2. The controlling contractor information about the relevant permit program. The commenter offers no
hires a subcontractor to apply a flammable space in time to address hazards that support for the assertion that sharing
epoxy coating to the walls of a confined
space; the subcontractor does so under a
could endanger employees it directs. information to help entry employers
permit program, and then cancels the permit One commenter questioned whether identify these hazards as quickly as
in compliance with this final rule. The the information duties would apply to possible, and before employee exposure
controlling contractor must inform all information—both written and oral— occurs, would not be of ‘‘any use to
subsequent employers entering the space the host employer or controlling employee safety.’’ In light of the record
about the application of that epoxy and the contractor may receive, rather than as a whole, OSHA believes that there
procedures used to address hazards in the merely information that is readily will be an important safety benefit, and,
space. available (ID–153, pg. 18). The therefore, does not find the commenter’s
Example 3. If a host employer stored obligations in this final rule apply to all argument persuasive.
hazardous chemicals in a confined space
information, including both written and The same commenter offers another
during a period when leaching of the
chemicals could occur, the host employer oral information the host employer or reason for objecting to the information-
must disclose that previous use of the space. controlling contractor receives about sharing requirement: On large
Example 4. The controlling contractor hazards or potential hazards in a permit commercial construction projects, it is
hires a welder to weld a new structure inside space. It is the responsibility of the host common to exchange information at the
a fully-enclosed above-ground permit- employer and controlling contractor to start of the project, but this information
may be incomplete or partial (ID–117, which to exchange this information employer has completed its assessment
pg. 20). In some cases, as construction (e.g., whether orally or in writing, of the permit space, which is generally
progresses, the controlling contractor whether the entry employer or necessary to identify the hazards in the
obtains more information as it becomes controlling contractor initiates the space and ensure that a proper permit-
available. Consequently, this commenter exchange); however, they all have a space program is selected. Consistent
asserted that the controlling contractor duty to ensure that they share the with the approach in the proposed rule,
or host employer will exchange information. separating this pre-entry exchange from
information with the entry contractor in Paragraph (h)(3)—Pre-entry the subsequent entry report required by
a piecemeal fashion unless OSHA information-sharing duties of entry § 1926.1203(h)(5)(ii) clarifies that these
requires the entry employer to request employers. two information exchanges must take
all of the information available (See also This provision, which sets forth the place at two distinct stages of permit-
ID–219.2, pg. 37 (marked as pg. 34)). information-exchange requirements for entry operations.
The commenter’s suggested approach to entry employers, is similar to the One commenter objected to the
avoiding piecemeal information proposed provision and to the proposed requirement that the entry
exchanges is to have the controlling corresponding provision for general employer inform both the controlling
contractor or host employer withhold industry confined spaces standard at contractor and host employer of the
relevant information if the contractor § 1910.146(c)(9), although it uses procedures the entry employer planned
does not request it. This approach is slightly different terminology. Here, to use in the permit space. The
contrary to the purpose of this OSHA uses the term ‘‘entry employer’’ commenter asserted that the proposed
paragraph: To ensure that employers to clarify that the paragraph applies to provision was ‘‘an unnecessary burden
have as much information as possible, employers who perform permit-space [that] in some cases may be infeasible’’
and in a timely manner, when preparing entry operations. And as in the rest of (ID–124, pg. 6). This final rule
to work safely in a confined space. this section, the controlling contractor, eliminates the requirement that the
Subcontractors are not likely to be rather than the host employer, is the entry employer share this information
aware of hidden dangers, and are, focal point of the information exchange. with the host employer, eliminating any
therefore, unlikely to request OSHA believes that these requirements difficulties an entry employer may have
information about them. To protect their will contribute significantly to the communicating with a host employer,
employees working inside a confined increased safety and health of the and is consistent with the rule’s overall
space, subcontractors would likely employees of entry employers involved designation of the controlling contractor
submit a pro forma request for in permit-space entry operations. as the focal point of the information-
Paragraph (h)(3)(i). This provision exchange process. As explained
information to the controlling contractor
requires an entry employer to obtain elsewhere, the controlling contractor
and host when they initially begin work
information about the permit-space needs this information to coordinate
at any site, but it is not clear that such
entry operations from the controlling entry as necessary, and the exchange
a process would be substantively contractor, and works with final
different from the approach specified in provides the controlling contractor with
§ 1926.1203(h)(2), which requires the another opportunity to inform the entry
this final rule, except that it would be controlling contractor to share
involve an extra step. employer about the hazards of the
information about permit-space entry permit space as required by
In any event, OSHA has specified operations with the entry employer. § 1926.1203(h)(2).
when the controlling contractor must OSHA believes that the reciprocal Paragraph (h)(4)—Coordination duties
share the information: ‘‘before entry obligations in this final rule, which are of controlling contractors and entry
operations begin.’’ The controlling consistent with the general industry employers. Final § 1926.1203(h)(4)
contractor must share the information standard, will increase the effectiveness requires controlling contractors and
obtained from the host employer, and of the information exchange by placing entry employers to coordinate permit-
any other information that the the duty to share this information on space entry operations in two
controlling contractor gathered from both parties. Both employers will now circumstances: (1) When more than one
other sources (e.g., previous entries into have the duty to exchange information, entity performs entry operations at the
the same space as part of the same although they will likely accomplish same time, or (2) when permit-space
construction project), with the entry their duties in a single interaction. The entry is performed at the same time any
employer before entry. If such permit- information exchange will ensure that activities that could foreseeably result in
space work is to occur near the the entry employer understands the type a hazard in the permit space are
midpoint of a project, a single of space it will be evaluating, and will performed. The controlling contractor
conversation shortly before the allow it to anticipate the permit-space and each entry employer have separate
evaluation and entry may fulfill the hazards that may be present during duties under this provision, and each
requirements of the final rule. There is entry. can be cited for failing to perform its
no reason the controlling contractor Paragraph (h)(3)(ii). The final rule part of the coordination. Similar
cannot send all of the information at requires an entry employer to inform the obligations were included in the
once rather than sending updated controlling contractor of the permit- proposal, but were not stated as clearly
information in a piecemeal fashion as space program that the entry employer as they are here, and also are present in
the commenter noted, as long as the will follow, including information about the general industry standard. Minor
information is shared with the entry any hazards likely to be confronted or differences between this final rule and
employer prior to entry. The key parts created in each permit space. This the general industry and proposed rules
of the provision are that the controlling exchange must take place prior to entry are matters of terminology or reflect the
contractor remains informed, and to ensure that the controlling contractor key role of the controlling contractor in
ensures that the information is is informed of all the hazards in a timely this construction rule.
conveyed to the entrants. Therefore, manner and can take action, if needed, There is a need to coordinate entry
employers involved in permit-space to prevent an accident or injury before operations whenever multiple entities
entry on construction worksites have entry operations begin. OSHA expects are performing work simultaneously in
flexibility to decide the manner in this exchange to occur after the or around a permit-space because of the
possibility that one entity’s activity This coordination requirement by the commenters do not persuade the
might create a hazard for workers responds to a concern that proposed Agency that the coordination required
employed by a different entity (e.g., § 1926.1204(d) did not account for the by this final rule is a significant
welding next to the application of a fact that work taking place near a permit departure from the type of coordination
flammable coating). The purpose of this space can create hazards that could required on a regular basis under
provision is to protect employees from harm other employers’ employees inside existing work practices. Accordingly,
foreseeable hazards that could result the space (ID–210, pg. 317–18). The OSHA concludes that controlling
from a lack of coordination between commenter raising this concern contractors, as the entities actually
entry entities in the permit space, or provided an example of an employer managing construction activities at a
with entities outside the space whose that uses gas that is heavier than air near worksite, are better able than host
activities could create hazards inside a confined space; such a gas could employers to coordinate the activities of
the permit space. This paragraph works create an atmospheric hazard in the the other employers whose employees
in concert with the requirement that space by displacing oxygen. work in or around a permit space.
entry employers inform the controlling OSHA agrees with this comment and Coordination of entry operations under
contractor of the permit-space program the final standard requires the type of final § 1926.1203(h)(4) is a critical
that the employer will use and the coordination that will address this component of this standard.
hazards they are likely to encounter in concern. It specifically requires the Nevertheless, OSHA has structured
the space, including hazards created controlling contractor to coordinate the coordination provision in the final
after entry. The controlling contractor entry operations of any entities whose rule to minimize additional
can use this information to coordinate activities could foreseeably result in a responsibilities and provide appropriate
the entry operations to ensure safety for hazard in the confined space. This flexibility for controlling contractors. If
all workers in the space. requirement is consistent with the the controlling contractor’s employees
It is important for the controlling requirements of final §§ 1926.1204(k) will not enter the permit space, the
contractor to participate in each and 1926.1210(f). Final § 1926.1204(k) controlling contractor may fulfill its
coordination effort because construction requires an entry employer to account coordination duty by relying on
worksites are constantly evolving, with for such coordination as part of its information provided by entry
multiple employers performing work. permit program, while final employers. The controlling contractor
Consequently, the controlling § 1926.1210(f) requires the entry does not necessarily have to be on the
supervisor to determine, on transferring site at all times or have expertise on
contractor, as the employer with overall
responsibility for permit operations, that permit space hazards to coordinate
responsibility on the worksite, is in the
entry operations remain consistent with entry operations, just as the controlling
best position to coordinate the entry
the terms of the entry permit and that contractor does not need to be on site
operations. This provision also requires
entry conditions are acceptable. at all times to coordinate material
the entry employer to coordinate entry Other commenters objected that deliveries or subcontractor assignments.
with the controlling contractor because controlling contractors are not in the In addition, the final rule does not
it is the entry employer who evaluates best position to coordinate because they specify how the controlling contractor
a confined space, who will have often are not on the site to provide and entry employers must coordinate
employees it directs entering the space, coordination, do not have the entry operations. Controlling contractors
and who may have the most current knowledge or experience to correctly and entry employers may coordinate
information about the space. identify the hazards of a permit space, entry operations using any method that
For example, a properly informed and may not know of the planned entry is effective, and this coordination need
controlling contractor will be aware of (ID–117, pg. 21; ID–075, pg. 6). These not involve a lengthy process.
excavation work on a site directly above commenters also argued that if the final One commenter expressed a concern
an underground permit space, and will standard requires coordination, such that the coordination requirements
coordinate work to ensure that no coordination should be between the would impose strict liability on
employees are in the permit space when involved host employer and entry controlling contractors for safe permit-
the excavation work could foreseeably employer(s), as is the case under the space entry operations, meaning that the
cause part of the underground space to general industry standard (ID–117, pg. controlling contractor would be liable
collapse. Similarly, the controlling 22; ID–075, pg. 6). for another employer’s breach of safety
contractor must ensure that, when an OSHA disagrees with these policy (ID–141, pg. 2). The final rule
employer is using a crane in the vicinity comments. An employer that meets the does not impose strict liability or any
of a permit space, lifts are planned and standard’s definition of controlling responsibility to ensure other
implemented so that the crane would contractor has ‘‘overall responsibility for contractors’ compliance with the
not be carrying its load over an construction at the worksite.’’ As noted standard. Controlling contractors who
occupied permit space or its entry/exit. earlier, other commenters agreed that are not entry employers have
In those scenarios, the entry employer controlling contractors were better information sharing and coordination
would be responsible for informing the suited than host employers to serve at duties.
controlling contractor when it plans to the center of this process in Another commenter asserted that, in
have employees inside the permit space. construction activities. (ID–210, pg. an effort to comply with this
Coordination would typically involve 315–20; ID–220.2, pg. 14–15). By virtue coordination duty, the controlling
the controlling contractor scheduling of their responsibility for the entire contractor may impose redundant and
the activities appropriately, working worksite, controlling contractors unnecessary safety measures on other
with all of the employers involved to schedule and coordinate activities employers to protect the controlling
ensure that they adhere to the schedule, among different subcontractors to contractor from liability (ID–120, pg. 2).
implementing a plan to remove the ensure that they perform construction This comment is speculative and
employees from the permit space at the tasks in the correct sequence, in the unsupported by specific examples, so it
appropriate times, and designating proper manner, and with minimal delay is difficult for the Agency to respond to
locations to keep the employees clear of between the steps on a project. The it other than to note that the final rule
the load during the lifting operation. vague hypothetical scenarios presented does not impose duplicative
requirements on employers, nor does reciprocal in the final rule, and removed hazard assessment, but the rationale for
the final rule require the controlling the duty for the entry employer to requiring information exchanges in the
contractor to do so. OSHA believes that provide information to the host final rule still applies: that assessment
the final rule provides employers with employer to keep the rule internally may not reveal previously identified
sufficient flexibility in discharging their consistent and consistent with the hidden or latent dangers or conditions,
coordination duties. This flexibility general industry standard, and to and the new entry employer would be
should reduce duplication of effort and increase the effectiveness of the less prepared to protect its employees
any associated costs. information exchange by placing the than if it obtained the information that
Lastly, this commenter asserted that it duty to share this information on both the controlling contractor received from
would be difficult for a controlling parties to the exchange, thereby debriefing the previous entrant.
contractor to fulfill the coordination ensuring that both the controlling A different commenter asserted that
duties absent explicit contractual contractor and entry supervisor host employers have no need for
authority to do so. Id. But under this exchange the specified information. information about newly constructed
final rule, controlling contractors are the Accordingly, § 1926.1203(h)(5)(i) confined spaces, and that the
only employers at a worksite that ‘‘have requires the controlling contractor to requirement to provide information to
overall responsibility’’ for the site, so retrieve the information, and the host employer is an unnecessary
they are in the best position to § 1926.1203(h)(5)(ii) requires the entry paperwork burden (ID–017, pg. 2).
coordinate the work schedule. If employer to provide the information. OSHA disagrees. It is important for the
controlling contractors prefer to OSHA does not view this as a controlling contractor to notify the host
augment their authority through significant change from the proposed employer of information about the
contractual provisions with rule because the proposal also required host’s property, particularly any new
subcontractors or host employers, this the same debriefing to occur, and it hazards identified during the entry. In
final rule does not prevent them from required the parties to share the same many cases, the same controlling
doing so. information (see proposed rule contractor may not be present for future
Paragraph (h)(5)—Post-entry duties of § 1926.1204(c)(2)). If no new hazards construction activities involving the
controlling contractors and entry arose during entry and the entry space, so the host employer’s
employers. This paragraph, which employer’s program did not change, the information will helpful for future
imposes obligations similar to those in information exchange can be brief, just entries.
the general industry standard, requires confirming that the original program Note to § 1926.1203(h)—host employer and
the controlling contractor to debrief an was followed. controlling contractor not required to enter
entry employer at the end of entry The final rule contains a new a confined space. The final standard also
operations about the permit-space requirement for the controlling includes the note from proposed
program followed and any hazards contractor to notify the host employer of § 1926.1204(a) explaining that, unless a
confronted or created during entry any information it receives from controlling contractor or host employer has,
operations, and then relay appropriate debriefing the entry employer. OSHA or will have, employees in a confined space,
information to the host employer. It also added this provision to close a potential neither of these employers need to enter any
confined space to collect the information
requires the entry employer to share the gap in the information-exchange process specified in paragraph (h) of this section.
same information with the controlling that could result because the final rule This note applies to all of paragraph (h). This
contractor. These requirements serve makes the controlling employer the hub protects the employees of the controlling
three purposes. First, they ensure that of the information and exchange and contractor and the host employer because
the controlling contractor requests the does not require entry employers to entering confined spaces could expose those
information. Second, they establish an provide information directly to the host employees unnecessarily to the hazards of
affirmative duty for the entry employer employers, as the proposed rule did (see that space. Controlling contractors and host
to provide this information. Third, they proposed rule § 1926.1204(c)(2)). As employers should not conduct such an entry
unless there is a purpose to the entry other
ensure that the host employer will discussed above, OSHA has determined than just gathering information.
receive information relevant to future that the controlling contractor is in the
permit-space entries. The intent is for best position to coordinate the exchange Paragraph (i)—Absence of a
entry employers to identify and share of this information. Therefore, the final controlling contractor. Final
information about additional hazards, rule shifts the duty to the controlling § 1926.1203(i) provides that, in the
new procedures, or other new contractor. The host employer will still event no employer meets the definition
information not previously identified in receive the information, but from the of a controlling contractor on a
the required pre-entry information controlling contractor. OSHA expects particular worksite, the host employer
exchange. that in many cases there will be no need or other employer that arranges for
OSHA believes it is appropriate to for a separate exchange because the permit-space entry work must fulfill the
place the duty on the entry employer to controlling contractor can relay this information-exchange and coordination
provide this information, as well as to information as part of its regular duties of a controlling contractor. The
require the controlling contractor to communications with the host general industry rule does not have any
request it. The entry employer, by virtue employer. requirements for a controlling contractor
of performing permit-space entry One commenter objected to the and, therefore, has no corresponding
operations, will be the first employer to debriefing requirement, stating that it provision dealing with the absence of a
have access to new information. If the was unnecessary if other employers controlling contractor. OSHA added this
entry employer fails to communicate the were not already scheduled to enter the requirement in response to a comment
information to the controlling contractor space. If another employer does noting that some construction worksites
during the course of entry operations, eventually enter the space, the do not have an employer that meets the
the information transfer will occur commenter asserted, the subsequent definition of a controlling contractor
during the entry employer debriefing. employer’s independent hazard (ID–124, pg. 6). Because the controlling
There were no comments indicating assessment should suffice (ID–124, pg. contractor is at the hub of the
the debriefing is unworkable or overly 6). OSHA disagrees. The subsequent information-exchange and coordination
burdensome. OSHA made this duty employer must make an independent requirements, failing to address this
issue would leave a serious gap in a they, or other employers with the effect on, and certainly cannot
critical provision of the standard. When appropriate expertise, previously ‘‘substantially expand,’’ employees’
no employer on a worksite meets the identified. rights under the state tort system with
definition of controlling contractor, it is Several commenters asserted that respect to workplace injuries and
still necessary for one employer to be ‘‘OSHA is attempting to force certain illnesses. See, for example, Crane v.
responsible for information exchange employers to assume a sufficient degree Conoco, Inc., 41 F.3d 547 (9th Cir. 1994)
and coordination, thereby ensuring that of control over confined space entry’’ to (‘‘OSHA violations do not themselves
entry employers are aware of the known ‘‘substantially expand’’ the tort law constitute a private cause of action’’);
hazards associated with the space, and exposure of those employers (ID–078, Atlas Roofing Co., Inc. v. OSHRC, 430
that different entities do not create new pg. 2; ID–120, pg. 2–3; 153, pgs. 19–20). U.S. 442, 445 (1977) (‘‘existing state
hazards to each other. OSHA does not agree, and notes that statutory and common-law remedies for
The employer that has the duty comments urging OSHA to reduce actual injury and death remain
specified under final § 1926.1203(i) can potential employer liability in private unaffected’’ by the OSH Act); Frohlick
be any employer that arranges for rights of action are not relevant to Crane Serv, Inc., v. OSHRC, 521 F.2d
permit-space entry. It could be the host OSHA’s statutorily mandated 628, 631 (10th Cir. 1975) (‘‘It would
employer, a different contractor, or an obligations to promote worker safety. appear that by this particular provision
entry employer that arranges for another Congress enacted the OSH Act to [section 4(b)(4)] Congress simply
entry employer to conduct entry ‘‘assure so far as possible every working intended to preserve the existing private
operations. It is possible that the man and woman in the Nation safe and rights of an injured employee, which
employer that has this duty will change healthful working conditions.’’ 29 rights were to be unaffected by the
based on the stage of construction. For U.S.C. 651(b). Congress gave the various sections of the Act itself.’’); Jeter
example, if there is no controlling Secretary of Labor the authority to v. St. Regis Paper Co., 507 F.2d 973, 977
contractor for the project, but a promulgate mandatory occupational (5th Cir. 1975) (‘‘It seems clear that
contractor on the site arranges for entry safety and health standards to achieve Congress did not intend [the OSH Act]
employer A to enter a permit space, the that goal.17 Id. section 655. As OSHA to create a new private cause of action,
final rule requires the contractor to explained in an October 23, 2006, letter but, on the contrary, intended private
share the information identified in final to U.S. Congressman Cass Ballenger, rights to be unaffected thereby.’’) .
§ 1926.1203(h) with entry employer A nothing in health or safety standards issued OSHA recognizes that state courts in
and to fulfill the controlling contractor’s by OSHA . . . determines the tort remedies some circumstances use OSHA
coordination and other information available to injured workers. That matter is standards, including these final host-
sharing duties in the standard. If entry determined by the laws of the individual employer and controlling-contractor
employer A, after completing its entry states. It is not our role at OSHA either to provisions, as evidence in a negligence
operations and cancelling its permit, foster or to foil the efforts of plaintiffs’ action. (See, for example, Knight v.
lawyers in state court proceedings. It is our
arranges for entry employer B to enter responsibility, however, to undertake
Burns, Kirkley & Williams Constr. Co.,
the permit space, then entry employer A reasonable efforts ‘‘ . . . to assure so far as 331 So.2d 651 (Ala. 1976).) But when
assumes the controlling contractor possible every working man and woman in they do so, any effect on tort law is a
duties with respect to entry employer the Nation safe and healthful working function of these state court decisions
B’s confined space activities. conditions,’’ and OSHA’s standards are and is not in any way dictated by
Requirements in § 1926.1203(h) and therefore focused on addressing workplace OSHA’s standard. See Summit
(i) do not alter contractual relationships hazards.’’ In general, tort law remedies Contractors, Inc. v. Sec’y of Labor, 442
between host employers or controlling present entirely separate bodies of law that Fed.Appx. 570, 572 (D.C. Cir. 2011)
contractors and subcontractors. One are available at common law, or as the result
of state action, to anyone in the general
(rejecting arguments that OSHA’s multi-
commenter noted that subcontractors public (including workers) who might be employer duties would increase
often perform confined-space work harmed by a wrongful act; they are not aimed common law liability for general
because of their expertise in working in specifically at correcting workplace hazards. contractors because ‘‘such liability
those spaces, and asserted that OSHA would arise only from a court’s
The OSH Act does not contain any
should not ‘‘force general contractors to (hypothetical) later action under state
private right of action allowing
interject themselves into the work tasks law—not from the OSH Act itself’’).
employees to recover for injuries or
of their sub-contractors’’ in a way that Other commenters submitted a variety
illnesses caused by hazardous work
would ‘‘disregard . . . both specific of objections about the information-
conditions. Instead, Section 4(b)(4) of
contractual responsibilities and the exchange provisions, including that the
the OSH Act makes clear that any effect
expertise of sub-contractors.’’ (124.1, pg. controlling contractor and host
of OSHA standards on state tort law is
3.) OSHA agrees, and crafted this rule to employer information-sharing
limited: ‘‘Nothing in [the OSH] Act shall
ensure that subcontractors have the requirements ‘‘do not reflect an
be construed to . . . enlarge or diminish
information necessary to perform their appropriate application of
or affect in any other manner the
work safely, particularly information responsibilities, and expand the duties
about hidden or latent hazards that the common law or statutory rights, duties, of general contractors in the residential
subcontractor may not be able to or liabilities of employers and construction industry’’ (117.1, pg. 7),
discover quickly without endangering employees under any law with respect thereby requiring the host employer to
its entrants. A subcontractor may have to injuries, diseases, or death of maintain extensive files about each
expertise in welding inside a confined employees arising out of, or in the confined space located on its property,
space, but that expertise will not help it course of, employment.’’ (29 U.S.C. which ‘‘would be impractical and
avoid an invisible hazard it has no 653(b)(4).) The plain language of section infeasible in today’s business context’’
reason to suspect. (See ID–213.1, pg. 1, 4(b)(4) thus indicates that any standard (153, pgs. 18–19). Commenters also
supra, for example of hidden dangers.) OSHA promulgates generally has no complained that the coordination
In this case, the host employer and 17 The Secretary delegated those responsibilities
requirements were ‘‘unworkable’’
controlling contractor need not develop to the Assistant Secretary for Occupational Safety
(219.2, pg. 40 (marked as pg. 37)).
welding expertise; instead, they must and Health, who heads OSHA. See 77 FR 3912 (Jan. However, another commenter
share information about hazards that 25, 2012). responded:
Throughout the hearings, participants § 1910.146(d), to require entry made this change to clarify which
argued, on the one hand, that OSHA should employers to plan the entry, and to employers must comply with these
simply extend the general industry standard implement the entry in accordance with procedures on a multi-employer
to construction and, on the other, that the
that plan, to avoid endangering worksite.
proposed standard would impose
unprecedented and unwarranted burdens on employees during the entry. Paragraph (a). Final § 1926.1204(a),
controlling contractors, which would expose For the reasons identified in the which is identical to § 1910.146(d)(1),
them to substantial liability. . . . [T]here is, Background section, above, OSHA is requires an employer to implement an
in fact, little new in the proposed multi- conforming the language of the permit- effective means of preventing all
employer provisions. And, there is nothing in required confined space provisions in unauthorized entry into a permit space.
the record that . . . suggested that the § 1926.1204 of the final rule to the These measures are necessary to prevent
information-sharing requirements under corresponding provisions for general unauthorized entry into PRCSs, and to
§ 1910.146 have proven to be either industry confined spaces at protect employees from encountering
burdensome or unnecessary. . . . [Based on
the record,] the provisions requiring
§ 1910.146(d). The substance of this PRCS hazards. Under the final rule, it is
information sharing between the entity that section generally is the same as the the entry employer’s responsibility to
has the greatest familiarity with the worksite general industry standard. OSHA ensure that all unauthorized persons
and contractors coming into the worksite for explains below the differences between stay out of the established permit space,
brief, discrete periods of times have proven the other paragraphs of the final rule regardless of who employs them. Any
to be effective means of assuring that and the general industry standard, and unauthorized employer who enters a
employees can work safely in confined the significant differences between the permit space could pose a danger not
spaces without imposing notable burdens or final rule and similar provisions in the only to themselves, but also to workers
liability on the host employers.
proposed rule. There is no discrete already inside the space. The entry
(220.2, pg. 13–14.) OSHA agrees with section of the proposed rule that employer’s duty to prevent
this comment. There are not many corresponds directly to this section of unauthorized entry also extends to the
substantive differences between the new the final rule, but OSHA also included prevention of unintentional entry, such
standard and the general industry most of the duties imposed by this final as a person falling into a space or
standard, and employers have not raised rule in the proposed rule. See, e.g., accidently entering a permit space
significant obstacles to compliance with proposed §§ 1926.1205 (atmospheric because of confusion about where an
the general industry standard during the monitoring and testing); 1926.1209(c) entrance to a space leads. The duty also
two decades following OSHA’s (limiting entry) and (f) (safe termination extends to members of the public
promulgation of that standard. OSHA is procedures); 1926.1210(f) (attendant passing near the construction site (e.g.,
confident that the new construction required); 1926.1210(j) (equipment); a sewer manhole) in order to protect the
standard will also be workable. 1926.1212(a) (safe termination employees in the permit space.
Section 1926.1204—Permit-Required procedures); and 1926.1218 This final provision makes no
Confined Space Program (equipment). substantive change from the proposed
One commenter noted that a rule. Proposed § 1926.1209(c)(1)(i)
The permit-required confined space particular provision in the proposed provided that employers use barriers or
program is a critical component of new rule (§ 1926.1218(a)(4)) referred to high-visibility physical restrictions,
subpart AA. Except for ventilation-only ‘‘confined space operations,’’ and such as a high-visibility warning lines,
entries conducted in accordance with suggested OSHA change that reference to prevent unauthorized entry into a
§ 1926.1203(e), the Agency requires to ‘‘confined space entry operations’’ space. One commenter asserted that
each employer with employees who will (ID–025, p. 4). The regulatory text in circumstances arise that make it unsafe
enter a permit space to implement a § 1910.146 refers to both ‘‘permit space to use the physical restrictions specified
written permit-space program that meets operations’’ (§ 1910.146(g)(2)(iii)) and in proposed § 1926.1209(c)(1)(i) (ID–
the requirements set out in this section ‘‘permit space entry operations’’ 104, p. 3). For example, when
(see final § 1926.1203(d)). Final (§ 1910.146(d)(3)) [emphasis added]. In employees perform work to rehabilitate
§ 1926.1204 is, therefore, specifically this final rule, OSHA changed all or install a protective coating in a sewer,
tailored to work activities conducted references to confined space operations the employer must use devices such as
inside a space that meets the definition and permit-space operations to confined cables and hoses that run from a
of a ‘‘permit-required confined space’’ space entry operations or permit-space compressor to the airless spray pump,
(‘‘permit space’’) in final § 1926.1202. entry operations to maintain and then into the manhole to the spray
Technically, final § 1926.1204 sets out consistency. The terms ‘‘confined space gun, resulting in a tripping hazard that
information and actions that must be entry operations’’ or ‘‘permit-space could cause someone to fall into the
included in the permit program, and the entry operations’’ refer to both actual manhole. In such situations, this
requirement to implement these steps is entry into a space, and any planning or commenter suggested that OSHA
in final § 1926.1203(d), but employers preparation made for the entry (i.e., an require only that the employer post
should view § 1926.1204 as the main set employer can be engaged in ‘‘entry danger signs. OSHA expects that signs
of requirements for protecting their operations’’ before actually entering a by themselves will generally be
employees when entering a permit confined space). inadequate to prevent an inadvertent
space. The introductory language in final fall into a manhole. Even if the
In the preamble to the general § 1926.1204 provides that the entry employer has full control of the
industry confined spaces standard, the employer must perform the procedures entrance to the permit space to and can
Agency observed that ‘‘an employer set forth in that section. OSHA guard against members of the public
who waits until the last minute before simplified the introductory language who cannot see the signs or read them,
entry operations begin to develop a from the language in § 1910.146(d), and there are too many activities on a typical
permit space program is unlikely to edited the language to reflect this final construction site for an employer to
have properly trained and equipped standard’s use of the term ‘‘entry ensure that workers would not be
personnel available’’ (58 FR 4495 (Jan. employer’’ when discussing an distracted and fail to see the sign or the
14, 1993)). Accordingly, OSHA designed employer who decides that employees it manhole. Manholes, like other fall
final § 1926.1204, which is similar to directs will enter a permit space. OSHA hazards at a typical worksite, must be
guarded in a manner that meets the subparagraphs in final § 1926.1204(c) error in those cases where monitoring
requirements of this standard and the provide specific elements of these was improperly performed, and the
applicable specifications of 29 CFR part required procedures. Agency pointed to data demonstrating
1926, subpart G—Signs, Signals, and Paragraph (c)(1). Final that human error in monitoring of a
Barricades and subpart M—Fall § 1926.1204(c)(1), which is identical to hazardous atmosphere was a critical
Protection. § 1910.146(d)(3)(i), requires an employer element in many deaths in confined
Because OSHA is duplicating the to identify the entry conditions that spaces (63 FR 66032 (Dec. 1, 1998)).
general industry standard in this portion employers must meet to initiate and OSHA also noted that its record
of the final rule, it does not specify the conduct the entry safely. For example, indicated that many entrants would not
particular means of compliance. This when an atmospheric hazard exists in choose to request to observe the
approach provides employers with the space and an employer must use monitoring, but stated ‘‘it is reasonable
flexibility in complying with this personal protective equipment (PPE) to to assume that allowing authorized
provision by not limiting the measures protect employees from the hazard, the entrants or their designated
required under this provision to employer must include in the representatives to observe the testing of
physical restrictions only. The acceptable entry conditions the type of spaces will prevent a substantial portion
employers’ means of preventing entry PPE employees are to use (such as type of the accidents attributed . . . to
will be evaluated based on its of respirator) and the exposure levels at human error’’ (id). OSHA believes that
effectiveness at accomplishing that task. which the PPE would protect the this will also be the case under the final
The same explanation that OSHA employees from the atmospheric hazard. rule.
provided for the general industry rule If the permit space contains physical OSHA also believes that allowing
applies in the construction context as hazards, the entry employer must employees and their authorized
well: ensure that the acceptable entry representatives to participate in this
[I]f the workplace is so configured as to
conditions include the methods used to manner will contribute to the successful
prevent access of unauthorized entrants into protect employees from the physical implementation of safe entry operations
areas containing permit spaces, training, hazards. If the employer does not satisfy by enhancing their awareness of the
alone or in combination with signs, may the conditions specified in either hazards present in the confined space.
prevent the unauthorized access to the example, or in any list of acceptable Moreover, as OSHA noted when it
spaces. Otherwise, covers, guardrails, fences, conditions, then the result is a added these observation requirements to
or locks will be necessary. It is the prohibited condition, meaning that the general industry standard, the
employer[’]s responsibility to use whatever employees must not enter the space and employee participation requirements are
measures are necessary to prevent
unauthorized entry.
must evacuate if they are already in the consistent congressional intent and with
space. a number of OSHA health standards that
58 FR 4495. When determining the acceptable provide employees with the opportunity
Paragraph (b). In final § 1926.1203(a), entry conditions, the employer must to participate actively in protecting their
OSHA requires employers to identify consider the work employees will own safety and health and that of their
and evaluate the hazards of permit perform and the hazards that may result co-workers (see discussion at 63 FR
spaces that employees will enter. Final from that work. For example, an 66020–66021).
§ 1926.1204(b), which is identical to employer that plans to weld inside a Paragraph (c)(3). Final
§ 1910.146(d)(2), requires an employer confined space must account for the § 1926.1204(c)(3), which is similar to
that authorizes employees to enter a hazard resulting from the welding fumes § 1910.146(d)(3)(iii), requires an
permit space to first conduct a thorough and gases when identifying acceptable employer to include measures in the
evaluation of that permit space to entry conditions. As another example, permit program to isolate a permit space
identify the presence and location of all an employer who plans to introduce or, where applicable, a physical hazard
hazards within the permit space. This gases into a space to inert potentially within the permit space (such as
hazard evaluation is necessary to ensure flammable gases must take into isolating mechanical hazards through
that the spaces are correctly assessed to consideration the effect of the inerting lock out). The general industry standard
make the permit-space program as gases on the atmosphere because that refers only to ‘‘isolating the permit
effective in protecting employees as process will generally result in an IDLH space,’’ while the new final rule also
possible. This evaluation may be atmosphere. addresses isolating physical hazards
combined with the initial evaluation Paragraph (c)(2). Final within the permit space, such as by
required by final § 1926.1203(a), or it § 1926.1204(c)(2), which is identical to placing a physical barrier inside the
may be conducted separately. OSHA § 1910.146(d)(3)(ii), requires an permit space to eliminate the potential
anticipates that most employers who employer to provide each authorized for employee contact with a physical
intend to enter a space will conduct a entrant or that employee’s authorized hazard inside that space, for the reasons
single evaluation that complies with the representative an opportunity to observe provided in the explanation of
requirements of both §§ 1926.1203(a) any monitoring or testing performed in § 1926.1203(e)(1)(i) and (g)(1). It is
and 1926.1204(b). a permit space. Final § 1926.1204(c)(2) important to isolate the entrants from
Paragraph (c). Final § 1926.1204(c), does not require employees and their the hazards that may exist in the
which is similar to § 1910.146(d)(3), authorized representatives to observe continuous space, or may enter into the
requires an employer to develop the specified activities; however, it continuous space and eventually
procedures needed to facilitate safe provides employees and their migrate to engulf the entrants. For
entry operations into most permit authorized representatives with the example, if an entry employer has not
spaces. The paragraph lists eight option to observe should they choose to isolated a particular area of a
measures that employers must take. do so. OSHA added this requirement to continuous system such as sewer
However, this list is not comprehensive: § 1910.146 in 1998, along with several system, then the entire continuous
Some spaces may include unique other employee participation system is a confined space. If any part
hazards, locations, or configurations requirements. The Agency explained of that system contains material that has
that require additional steps to ensure that those requirements would the potential for engulfing an entrant
the safety of entrants. The ‘‘function to provide a ‘check’ on human then the entire system is a permit space.
If an employer is able to isolate all of contractors who work regularly in OSHA finds that the record is not
the physical hazards, then the employer sewers, noted that employers can conclusive as to whether pipe plugs,
might be able to reclassify the space as sometimes block the flow of effluent with or without bypass systems, are a
a non-permit space or enter under the into one part of a sewer system from a reliable and effective means of isolating
alternative procedures in § 1926.1203(e). larger confined space by using pipe a sewer space to protect workers from
However, employers may still choose to plugs upstream from where employers engulfment and atmospheric hazards
enter under a permit program or may be will conduct the work (ID–210, Tr. p. moving through a continuous system.
required to do so if, for example, they 187). In some cases, employers also use The record, which also includes a
isolate a physical hazard but cannot plugs to block off a portion of the sewer number of fatalities and injuries
control an atmospheric hazard and must downstream from where an employer associated with the use of pipe plugs
enter using respirators. The requirement will conduct the work, and then purge (see the Final Economic Analysis),
to include the isolation measures in the and clean the workspace in between the indicates that these plugs may fail as a
permit program is critical to employee plugs (ID–210, Tr. p. 188). In either result of improper installation and may
safety in those situations, as well when scenario, the commenter stated that an not be appropriate for extended use in
the employer is relying on isolation to employer can block the flow of air and larger pipes, and that bypass systems are
prevent hazards from entering a space. effluent through the line by properly sometimes required to relieve the
Requiring the listing of the isolation fitting pipe plugs to a pipe, pressurizing buildup of pressure that could dislodge
method as part of the permit program is them with a few pounds of air, and the plugs. There is no evidence that the
also useful to remind employers that if either blocking in the plugs so they pipe-plug failures that occurred, even if
they are relying on the isolation to enter cannot fall out or using a ‘‘double plug’’ the failures were purely the result of
a confined space under the alternative system (inserting two plugs into the improper installation, would not occur
procedures in § 1926.1203(e) or the same pipe ‘‘so if one slips you will have again in the future for the same reason.
reclassification under § 1926.1203(g), a backup’’) (ID–210, Tr. pp. 187, 189, Moreover, it is not clear from the record
they must maintain that isolation or the and 199). The commenter acknowledged that a significant force such as a storm
permit program requirements will apply that there had been ‘‘failures’’ where the surge could not dislodge the pipe plugs,
immediately. plugs exploded or did not function or that the failure of a bypass system
If the employer is using isolation to correctly and ‘‘killed and injured could not lead to pressure building
protect the employees during the entry, workers,’’ but characterized such behind a pipe plug and dislodging it.
then paragraph (c)(3) requires that the incidents as occurring ‘‘rarely’’ and only Isolation through a bypass system,
program include a method to ensure as a result of incorrect installation or unlike the other examples of methods
that the hazards remain isolated for the procedures (ID–210, Tr. p. 208). The used to isolate hazards listed in the
duration of the entry. Isolation methods commenter agreed that the proper general industry standard and this final
provide the highest degree of assurance procedures would normally include rule, would depend on the continuous
that the hazard will be kept away from installing a bypass line upstream of the operation of machinery. The pipe plugs
the employees in the space, because pipe plug to redirect any effluent and and bypass systems may, therefore,
isolation does not generally depend on ensure that pressure does not build merely be a means of controlling the
the continued, proper operation of behind the pipe plug (ID–210, Tr. p. hazards, rather than isolating them,
machinery (such as ventilation 208). because it is not clear that they would
equipment) or PPE (such as respirators). A third commenter, a different sewer- completely protect workers from
If the space is such that the employer services association, also agreed that, in exposure to these hazards.19
can demonstrate that it is infeasible to many cases, employers can use pipe Paragraph (c)(4). Final
isolate the hazards, the employer need plugs along with bypass lines and ‘‘gate § 1926.1204(c)(4), which is identical to
not include isolation measures in the valves’’ to prevent effluents from § 1910.146(d)(3)(iv), applies to permit
permit program, but must eliminate or entering a section of a sewer system, but spaces with hazardous atmospheres and
control the hazards in accordance with indicated that employers rarely use pipe requires an employer to purge, inert,
final § 1926.1204(c)(4) and plugs on pipes greater than 10 inches in flush, or ventilate the permit space to
§ 1926.1204(e) (see final diameter for significant periods of time eliminate or control the hazardous
§ 1926.1204(e)(1)). If the employer (ID–211, Tr. p. 156).18 atmosphere before entry. The purpose of
cannot maintain isolation or control the
hazards, then the employer must 18 The same commenter also stated that most time for engulfment or drowning resulting from this
terminate entry operations immediately. sewer manholes do not present an engulfment procedure into determining the type and location of
Three commenters provided examples hazard because ‘‘80 to 85 percent of all of the sewer an early-warning system that would provide
of how they believed it was possible to manholes have pipe diameters of eight and ten adequate time for employees to exit a space.
isolate portions of a confined space from inches or smaller entering them,’’ and that it would 19 OSHA is leaving open the possibility that an
take hours for engulfment to occur under these employer could demonstrate that using pipe plugs
other portions of the space. The first conditions because the Environmental Protection in conjunction with bypass systems is an effective
commenter addressed a scenario in Agency engineering standards ‘‘require that those means of isolating a permit-required workspace
which the employer is applying a pipes be sized to flow at 50 percent of maximum from a continuous system. To do so, the employer
protective coating to a sewer (ID–104, capacity during high flow periods’’ (ID–211, Tr. p. must ensure that the procedure is appropriate for
156). OSHA does not agree that limiting flow rate the conditions and use properly installed pipe
pp. 2–3). The commenter, an association and capacity will eliminate the engulfment hazard; plugs in conjunction with a bypass system to
representing members who apply the engulfment would just take longer. These effectively isolate a workspace in a sewer system.
protective coatings in sewers, asserted conditions do not isolate or eliminate the hazard, Accordingly, the employer must ensure that the
that the employer can isolate the permit and the effluent could engulf or drown an employee procedure isolates the workspace in fact from any
who is unconscious or otherwise unable to leave engulfment hazard; OSHA would not view failure
space from the other sections of the the space before it fills the manhole, particularly if of the pipe plug or bypass system as an
sewer by running a bypass line the employee is not able to keep his or her head unforeseeable outcome. One of the commenters
upstream with pneumatic pipe plugs above the floor. Therefore, the full permit-program recommended using continuous air monitoring
installed that provide a tight seal to protections in § 1926.1204 apply under these even if the space appears to be isolated (ID–210; Tr.
conditions unless the employer isolates or pg. 202 (Kennedy)). OSHA agrees, and recommends
prevent passage of air and liquids. eliminates the hazard. However, if an employer can that employers use continuous air monitoring under
The second commenter, an demonstrate that it can limit the rate and capacity these conditions to provide early detection of any
association representing utility of the flow, the employer could factor the potential problems with the seal of the pipe plug.
this provision is to reduce employee unless the flammable/explosive hazard less than 10 percent LFL cannot be
exposure to atmosphere hazards in the has been controlled through inerting of achieved.
permit space. Reducing exposure to the space to reduce the oxygen content Paragraph (c)(5). Final
hazards in the permit space through below that needed to support § 1926.1204(c)(5) requires an employer
engineering practices, rather than combustion.’’ (ID–223, p.3). to determine that monitoring devices
relying on PPE as the primary protection OSHA takes the same approach with will detect an increased atmospheric
for employees, is the most direct and hazard level in the event that the
respect to this construction standard.
effective means to reduce risk to the ventilation system malfunctions, and to
While employers may use a variety of
employee, whether the airborne do so in adequate time for employees to
means to reduce the LFL to 10 percent
substances pose a health risk of safely exit the space. This requirement
inhalation or a safety risk of fire or or below, thus avoiding an LFL
hazardous atmosphere as defined in is from proposed § 1926.1208(b). There
explosion.20 is no corresponding provision specified
In § 1926.1204(c), OSHA requires § 1926.1202, OSHA reiterates that this
new final rule for confined spaces in in § 1910.146 that mirrors final
these means of reducing exposure § 1926.1204(c)(5) with respect to the use
levels—purging, inerting, flushing, or construction prohibits employees from
working in any atmosphere above 10 of ventilation to control atmospheric
ventilating—‘‘as necessary’’ to eliminate hazards as part of a permit program;
or control atmospheric hazards. With percent LFL except when the employer
however, the preamble to the alternative
respect to the actions in paragraph successfully inerts the space so as to
‘‘ventilation only’’ procedures in
(c)(4), ‘‘as necessary’’ means that an effectively remove the hazard of an
§ 1910.146(c)(5)(i)(B) noted a similar
employer must take at least one of these explosion. See discussion of paragraph
requirement as a condition of using the
actions if the permit space has a (1) of the definition of ‘‘hazardous
‘‘ventilation only’’ approach instead of
hazardous atmosphere. The only permit atmosphere’’ in § 1926.1202 of this final the full permit program requirements:
spaces where these actions are not rule. Even when the space is
necessary are those in which the space successfully inerted, an oxygen- In order for the space to be considered safe,
does not have a hazardous atmosphere, the atmosphere within the space after
deficient atmosphere generally results
ventilation may not be expected to approach
as defined in § 1926.1201, but is such that employers must prohibit entry a hazardous atmosphere. This is necessary so
designated as a permit space because it unless they provide appropriate PPE or that, if the ventilation shuts down for any
contains another hazard, such as an other equipment that is capable of reason (such as loss of power), the employees
engulfment hazard, inwardly converging protecting the employee from the will have enough time to recognize the
walls, or other recognized serious safety oxygen-deficient atmosphere. See hazard and either exit the space or restore the
or health hazard. definition of ‘‘prohibited condition’’ in ventilation.
The means used to reduce risk must final § 1926.1202 and § 1926.1204(c)(7).
be appropriate to the characteristics of 58 FR 4488. OSHA is including that
As of the promulgation date of this final requirement in the final rule as a
the hazardous atmosphere and it must rule, OSHA is unaware of PPE that
also ‘‘eliminate or control’’ the hazard to condition of the ‘‘ventilation only’’
could provide sufficient protection to an alternative procedures in final
produce ‘‘safe permit space entry employee from an explosion involving a
operations (§ 1926.1204(c)). For § 1926.1203(e), and OSHA is applying
flammable atmosphere. OSHA notes the same requirement to the use of
example, inerting a space that already that some practices such as the use of
has an oxygen-deficient atmosphere ventilation to control atmospheric
static electricity capture, non-static hazards under a full permit program
would be an inappropriate action, footwear, non-sparking tools, explosion-
whereas ventilating with additional because the atmospheric hazards that
proof lighting, a nitrogen blanket, or could be present in a PRCS are the same
outside air would help to increase
misting may reduce the likelihood of as the atmospheric hazards present in a
oxygen levels.
The Agency notes that it previously igniting an explosion, but none of these final § 1926.1203(e) alternate-
issued letters responding to questions practices would eliminate the procedures space. Therefore, the need to
about the conditions under which the possibility of ignition. Another example plan for ventilation failure is the same:
general industry standard permitted of a practice that would not provide employers must have a system in place
employers to work in a space with protection from a spark, fire, or that quickly detects an increased
flammable gas in concentrations greater explosion in an LFL atmosphere is using atmospheric hazard in the event that the
than 10 percent of the LFL. See August fire watch personnel who have the ventilation system stops so that
15, 1996, letter to Larry Brown, and responsibility of looking for a spark, employees can escape safely whether
September 4, 1996, letter to Macon fire, or explosion and then responding the entry is conducted under the permit
Jones. OSHA subsequently clarified its under emergency procedures. It is program requirements of § 1926.1204 or
position on those issues in a 2011 unlikely that fire watch personnel could the alternative ‘‘ventilation only’’
response to the U.S. Chemical Safety react quickly enough to ensure that procedure allowed by § 1926.1203(e). As
and Hazard Investigation Board, stating employees would not be exposed to an with the general industry standard (see
that the general industry standard explosion. Therefore, the employer must explanation of § 1910.146(c)(5)(i)(B)
‘‘prohibits entry into atmospheres not rely on these methods in a permit above), compliance with this
greater than 10 percent of the [LFL], program to protect employees working requirement means that employers must
in a hazardous atmosphere in excess of ensure that the mechanical ventilation
20 This approach is consistent with longstanding 10 percent LFL. A permit program must will control the atmospheric hazards at
industry safety practice and OSHA policy. Under its identify the means of reducing the levels that are below the levels at which
‘‘hierarchy of controls’’ policy reflected in a number atmosphere to or below the 10 percent

of standards, OSHA only allows employers to rely
they are harmful to entrants so that if
on respirators or other PPE to the extent that LFL or provide for inerting and all the ventilation fails (for example,
engineering controls to eliminate the hazard are not necessary PPE. OSHA added a note to because of a loss of power) the
feasible. See, e.g., §§ 1910.134(a) (respiratory § 1926.1204(c)(4) to make explicit the employees will have sufficient time to
protection) and 1926.103 (respiratory protection);
1910.1000(e) (air contaminants); 1910.95(b)
requirement for an employer to inert a escape without exposure between
(occupational noise exposure) and 1926.101 space and provide appropriate PPE if detection of an increase in atmospheric
(hearing protection). employees will work in a space where level and exit.
Proposed § 1926.1208(b)(2) contained and exit from the space, then barriers the atmosphere to address potential
provisions similar to those in final would be required’’ (58 FR 4997). explosion hazards (and use supplied-
§ 1926.1204(c)(5). One commenter Paragraph (c)(7). Final atmosphere respirators to protect the
requested that OSHA provide more § 1926.1204(c)(7), the first clause of employees from the oxygen-deficiency
detail as to how an employer can which is identical to hazard), or terminate entry. See also the
comply with this requirement, § 1910.146(d)(3)(vi), requires an previous discussion of final
suggesting that employers take into employer to ensure that conditions § 1926.1204(c)(4).
consideration ‘‘levels of detection by the remain acceptable for entry for the full Paragraph (c)(8). Final
monitoring system’’ and ‘‘increases in duration of an authorized entry. The § 1926.1204(c)(8) requires an employer,
atmospheric hazards as workers are employer will often discharge this duty before removing an entrance cover, to
evacuating’’ (ID–140, p. 5 (labeled p. 4)). by complying with the entry-supervisor eliminate conditions that could make it
The provision is performance-based, provisions in § 1926.1210(c) of this final unsafe to remove the cover. Some
which allows each employer the rule. By requiring the employer to have examples of such conditions are when
an individual on site with this the cover is under pressure or when the
flexibility to determine how it will use
authority, there is a greater likelihood cover is preventing exposure to an
monitoring to comply with the
that the employer will conduct the ignition source near a hazardous
requirement. As OSHA stated in the
required monitoring and adhere to the atmosphere. There is no corresponding
preamble to the proposed rule, acceptable entry conditions, which is general industry provision that has
monitoring is the primary method for critical to the successful requirements similar to final
detecting an increase in atmospheric implementation of safe PRCS § 1926.1204(c)(8); it is drawn from the
hazard levels. OSHA therefore requires procedures. requirements in proposed
monitoring under this final standard to OSHA also added a clarification in §§ 1926.1210(b), 1926.1216(c) and
detect ventilation system failure. In paragraph (c)(7) allowing employees to 1926.1217(c).
addition, employers should be aware of work in a permit space that contains a As OSHA explained in the preamble
other indicators of increasing hazardous atmosphere, but only if: (1) to the proposed rule, conditions such as
atmospheric hazard levels, in addition ventilating or other measures prescribed heat and pressure within the PRCS may
to monitoring, that may be useful in in § 1926.1204(c)(4) will not reduce the pose a danger to employees removing an
supplementing monitoring to provide hazardous atmosphere sufficiently to entrance cover. In such cases, the cover
faster detection of ventilation failures, allow employees to work safely within may be blown off in the process of
including changes in noise levels, air the permit-space; (2) the employer can removal, or superheated steam may
flow, or pressure, as well as signs, demonstrate that use of PPE will protect suddenly escape and burn the
symptoms, and characteristic effects of the employees from that atmosphere; employee. Another example involves
exposure to the atmospheric hazard (72 and (3) the employer ensures that the removal of a sealed cover that results in
FR 67365 (Nov. 28, 2007)). entrants use the PPE correctly. the release of toxic gases (72 FR 67368).
Otherwise, the entry employer must To protect employees from the
Paragraph (c)(6). Final
prohibit entry, or ensure that authorized hazards inside the PRCS as required by
§ 1926.1204(c)(6), which is identical to
entrants exit the space immediately, this provision, the employer must make
§ 1910.146(d)(3)(v), requires an a hazard assessment before removing
whenever the atmosphere inside the
employer to provide entrants protection any cover. Accordingly, the provision
space meets the definition of a
against external hazards. This ‘‘hazardous atmosphere’’ specified in does not permit removal of the cover to
requirement is in addition to the final § 1926.1202. These provisions are the PRCS until the employer identifies
provision in paragraph (c)(2) of this implicit in the general industry all hazardous conditions related to the
section that an employer must provide standard, but OSHA made them explicit cover’s removal, and then eliminates
barriers as necessary to prevent here to avoid any suggestion that an those hazards.
unauthorized entry. This requirement employer could specify an ‘‘acceptable’’ One commenter recommended that
will protect employees in and around condition that would include a OSHA refer to any ‘‘hazardous’’
the PRCS, such as attendants, or hazardous atmosphere, absent adequate condition, rather than just a
employees entering or exiting the permit PPE. ‘‘condition,’’ that could make it unsafe
space, from being struck by individuals For example, if the employer plans to to remove the cover, and include
or objects outside the PRCS that may fall have employees in a portion of a storm language in the text of the final rule to
into the space, or that could injure the sewer with an oxygen-deficient address rescue personnel confronted
employees when they are near the atmosphere, and it is not feasible to with an entrance cover that is unsafe to
PRCS. In some scenarios, employers address the oxygen deficiency through open (ID–086, pp. 5–6). OSHA disagrees
must use guardrails, covers, signs, measures prescribed in that adding the word ‘‘hazardous’’ to the
barricades, or other protective measures § 1926.1204(c)(4), then the employer provision would be helpful because the
to achieve this purpose. Each of these may allow employees to enter with sentence already is clear that the
measures must comply with the closed-circuit respirators that would condition at issue is such that removing
applicable specifications of 29 CFR part protect the employees from the oxygen- the cover could be unsafe. The
1926, subpart G—Signs, Signals, and deficiency hazard. If, however, the provisions of § 1926.1204 do not require
Barricades) and subpart M—Fall employer is unable to protect employees entry employers to address in their
Protection.21 For example, as stated in from these hazards using any of these permit programs the hazards that rescue
the preamble for the general industry methods, then it must prevent the personnel may face during rescue, nor
rule, ‘‘If entrants face a substantial risk employees from entering the space. do these provisions require the rescuers
of injury due to unauthorized entry, due Likewise, if a confined space contains a to develop separate written permit
to objects falling into the space, or due flammable atmosphere exceeding 10 programs for rescue. However,
to vehicular hazards during entry into percent, of the LFL, and the employer § 1926.1211(b) requires that rescuers be
cannot feasibly reduce this level to the informed of, and trained to recognize,
21 All additional requirements of subparts G and non-hazardous level (10 percent or hazards such as entry covers that would
M remain in effect. below), then the employer must inert be unsafe to open and might affect the
ability of the rescuers to perform rescues which is not the case with lead.22 employer to provide ventilating
safely. Furthermore, OSHA disagrees with the equipment necessary to establish
Paragraph (d). Final § 1926.1204(d), other commenters’ premise that direct- acceptable entry conditions. For
which is similar to § 1910.146(d)(4), reading instruments would be example, the employer must provide
requires each employer to provide all unavailable to detect solvents. It is the forced-air mechanical-ventilation
equipment used for confined-space employer’s responsibility to ensure that equipment when using such equipment
operations at no cost to employees, such equipment is available in spaces to establish acceptable entry conditions
maintain the equipment, and ensure where the final rule requires such for entry operations under final
that employees use the equipment monitoring, and the commenter did not § 1926.1204. Use of the required
correctly. OSHA believes that providing indicate that is infeasible to do so. For equipment when appropriate is a
such equipment, and using it correctly, example, employers can use significant factor in protecting the
will prevent injuries and fatalities in photoionization detectors for detecting employees from hazardous atmospheres.
permit spaces. Accordingly, the purpose solvents. Paragraph (d)(3). Final
of this paragraph is to ensure the Another commenter suggested that § 1926.1204(d)(3), which is
availability and proper use of whatever OSHA should require equipment substantively identical to
equipment is necessary to reduce the calibration daily to avoid equipment § 1910.146(d)(4)(iii), requires an
dangers to employees posed by permit malfunction (ID–025, p. 4). OSHA is not employer to provide all
spaces. making this change because the communications equipment necessary
In proposed § 1926.1218, OSHA provision as written in this final to ensure that an attendant can
required employers to provide several standard provides employers with communicate effectively with entrants
specific categories of equipment and flexibility in complying with the in accordance with §§ 1926.1208(c) and
included a catch-all ‘‘any other requirements to maintain testing and 1209(e). Not all spaces require
equipment necessary for safe confined monitoring equipment, and to use it equipment for effective communication
space operations.’’ One commenter properly. For example, the employer between the attendant and entrants, but
suggested that OSHA clarify that the can follow the manufacturer’s the employer must provide it when
employer must provide this equipment instructions, or the recommendations of necessary. Such equipment may be
to employees at no cost (ID–211, Tr. p. a qualified person, regarding the necessary, for example, if the entrants
46). The § 1910.146(d)(4) language frequency of equipment calibration. The cannot hear an attendant because the
OSHA is adopting for this final rule manufacturers’ instructions are permit space is sealed off.
specifies that employers must provide sufficient for this purpose because Another example where the employer
this equipment at no cost to employees. equipment manufacturers are most must provide such equipment is when
Final § 1926.1204(d) varies from the familiar with the components, an attendant needs audio-visual
language of the general industry configuration, and safe and healthful equipment to perform his or her duties
standard only in that it specifies that the operation of their equipment; this under the final confined spaces in
employer must provide the listed information places them in the best construction rule for more than one
equipment to ‘‘each employee,’’ whereas position to specify the proper permit space at a time. Examples of
§ 1910.146(d)(4) refers generally to maintenance, calibration, and use of this such equipment include electronic
‘‘employees.’’ Accordingly, in equipment under these circumstances. audio and video tools that enable the
appropriate cases, if an employer fails to Alternatively, an individual who meets attendant to detect what is occurring
provide the necessary equipment as the definition of a qualified person in inside the multiple PRCSs without the
required, OSHA may issue separate final § 1926.1202 would have, through a attendant having to, simultaneously, be
citations with respect to each individual recognized degree or professional physically present at each PRCS
employee not provided with the proper standing or through extensive entrance. If an employer chooses to
equipment. knowledge, the demonstrated ability require an attendant to assess entrants’
Paragraph (d)(1). Final necessary to make decisions that will status in multiple PRCSs, the employer
§ 1926.1204(d)(1), which is identical to ensure the proper maintenance, must provide all of the equipment
§ 1910.146(d)(4)(i), requires an employer calibration, and use of equipment used necessary for the attendant to fulfill the
to provide necessary equipment for in confined spaces. required duties. OSHA believes that
conducting adequate testing and Another commenter suggested that expecting an attendant to be able to
monitoring. This equipment is essential OSHA should provide a specific adequately perform these duties without
for protecting employees from calibration standard because the equipment necessary to accomplish
atmospheric hazards. manufacturers are starting to distinguish the attendant’s duties under this final
Section 1926.1204(a)(4) of the NPRM between various types of calibrations, rule will jeopardize the health and
proposed requiring employers to use a such as ‘‘bump calibration’’ and ‘‘field safety of the entrants.
direct-reading instrument to perform calibration’’ (ID–028, p. 6). OSHA is not There is no provision in § 1910.146 or
required testing or monitoring. One adopting this commenter’s suggestion the proposed rule that explicitly
commenter asserted that direct-reading because developing a calibration requires electronic communication
instruments are not available for standard is beyond the scope of this while attending multiple permit spaces,
‘‘airborne lead dust’’ or ‘‘paint that has rulemaking. but that standard implies that such
a multitude of solvents in the formula’’ Paragraph (d)(2). Final communication is necessary for the
(ID–077, p. 1). Another commenter § 1926.1204(d)(2), which is identical to attendant to fulfill the required duties.
asserted that the final rule should In the proposed rule, OSHA requested
§ 1910.146(d)(4)(ii), requires an
permit alternatives to direct-reading comments on the means, other than
instruments when such instruments are 22 OSHA includes identification requirements in electronic equipment, for an attendant
not available (ID–025, p. 3). Final many of its hazard-specific standards, and to adequately assess entrants’ status in
§ 1926.1204(d)(1) requires an employer employers working in a confined space must still multiple PRCSs. Both of the
comply with those requirements absent a specific
to test or monitor for atmospheric exception, but those requirements are separate from
commenters who addressed this issue
hazards that exceed PELs set to protect this confined-space standard and are not subject to agreed that electronic equipment, either
against immediate injury or illness, change as part of this rulemaking. wireless or hard-wire, is the only means
of accomplishing this duty, and there is engineering and work-practice controls under this final rule because the
no contrary information elsewhere in do not adequately protect employees. language merely reminds employers of
the record (ID–108, p. 2; –116, p. 3). The The employer must provide this an existing obligation they have under
lone exception could be when an equipment at no cost to the employees. § 1926.407 when using lighting
attendant is assessing entrants’ status in When the employer uses equipment that equipment under the specified
two separate spaces that are is subject to an OSHA requirement, such conditions. As noted above, employers
immediately adjacent such that the as respirators or ear plugs, the employer engaged in work covered by this
employer can ensure assessment of both must ensure that the equipment and its standard must also comply with all
spaces with a single attendant use comply with the applicable OSHA other OSHA requirements unless
positioned to fulfill the required duties requirements. For example, failure to specifically excluded.
without using observation equipment. use the appropriate filters in a respirator OSHA believes that final paragraph
Based on the information in the record can render its use ineffective, and (d)(5) will assist employees in
as a whole, final § 1926.1204(d)(3) would be a violation of the respiratory conducting safe PRCS operations,
requires the employer to ensure each protection standard (§ 1926.103). The including safe escape from a PRCS if
attendant uses electronic equipment as Note to paragraph (d)(4), which is not in necessary. OSHA notes that the
necessary when attending to multiple the general industry standard, clarifies provision would require an employer to
PRCSs that are not immediately adjacent this point with respect to respirators provide lighting equipment that allows
to each other. This result also is because they are commonly used in an employee to quickly exit a PRCS in
consistent with final § 1926.1209— confined spaces. OSHA believes that the event of an emergency: For example,
Attendant Duties. providing, using, and maintaining the the loss of the primary power source. In
Several commenters expressed appropriate PPE in accordance with this example, there are at least two ways
concern that communications OSHA requirements that address the in which an employer could fulfill this
equipment would unnecessarily occupy identified hazard will protect employees duty: (1) The employer can provide a
limited room in a confined space when from serious injury or death. However, reliable back-up power supply, or (2)
either spoken communication or line– as noted in the discussions of the employer can provide employees
of–sight communication would suffice § 1926.1204(c)(4) and (c)(7) above, PPE with adequate flashlights, headlights, or
(ID–033, p. 3; –061, p. 4; –077, p. 1; cannot provide protection against some similar hand-held lighting equipment.
–101, p. 2). These comments ignore the hazards such as explosions. Providing adequate illumination for
premise of the requirement: final employees to exit quickly from a PRCS
§ 1926.1204(d)(3) explicitly states that Paragraph (d)(5). Final
§ 1926.1204(d)(5), which is similar to during such an emergency will enable
the duty to provide communications employees to safely escape from a
equipment arises only when such § 1910.146(d)(4)(v), requires an
employer to provide lighting equipment hazardous condition.
equipment is necessary, which means
that complies with the illumination Paragraph (d)(6). Final
that the employer must provide
standard (29 CFR 1926.56) and is § 1926.1204(d)(6), which is
communications equipment only when
sufficient to allow employees to work substantively identical to
verbal communication or line-of-sight
communication are ineffective. safely and exit the space quickly in an § 1910.146(d)(4)(vi), requires an
Another commenter asserted that emergency. The corresponding employer to provide barriers and shields
radio communication is not always provision in § 1910.146(d)(4)(v) does not when required by this standard (see
reliable (ID–094; p. 1). As OSHA stated explicitly note that lighting equipment § 1926.1204(c)(6)). OSHA believes that
in the preamble discussion of proposed must meet other applicable OSHA this proposed requirement is necessary
rule § 1926.1210(j)(1), such equipment standards; however, proposed rule to keep unauthorized employees from
may consist of a variety of types (for § 1926.1210(j)(2) explicitly noted this entering the PRCS and to help protect
example, cell phones, two-way hand- requirement, and OSHA concludes that employees inside the PRCS from being
held radios), so long as it is effective (72 it is appropriate to include this struck by objects and individuals falling
FR 67370 (Nov. 28, 2007)). If there is clarification in the rule text. At least one into PRCSs. When providing this
weak or unpredictable signal strength commenter indicated that OSHA should equipment, employers must ensure that
when using the device, the device explicitly cross-reference the applicable it complies with other applicable OSHA
would not comply with final illumination standard (ID–011, p. 1), requirements. For example, guardrails
§ 1926.1204(d)(3) and the employer and OSHA did so here. OSHA also must meet the requirements of 29 CFR
must remove the entrants until the added language requiring approval of 1926.502(b) (Guardrail systems), and
attendant is situated to perform the the lighting equipment for the ignitable covers must conform to 29 CFR
required duties effectively. Effective, or combustible properties of the 1926.502(i) (Covers).
reliable communication equipment is specific, gases, vapors, dusts, or fibers Paragraph (d)(7). Final
essential in relaying information to present in the PRCS. OSHA took this § 1926.1204(d)(7), which is identical to
attendants, entry supervisors, and other additional language from the hazardous § 1910.146(d)(4)(vii), requires an
authorities regarding potentially location requirements for the electrical employer to provide equipment that
dangerous changes in the PRCS equipment standard § 1926.407(b)(2)(i); facilitates safe entry to, and exit from, a
conditions. Such information is critical a note to § 1926.407(b)(2)(i) references PRCS. In doing so, employers must
to assess the hazards within the space NFPA 70, the National Electric Code, ensure that this equipment, including
and to provide information regarding which lists hazardous gases, vapors, and its use by employees, complies with the
methods appropriate for protecting or dusts by groups characterized by their requirements of the applicable OSHA
removing employees from those ignitable or combustible properties. The requirements (for example, 29 CFR part
hazards. additional language ensures that 1926, subpart X, for ladders and
Paragraph (d)(4). Final employees will use safe lighting stairways, and 29 CFR part 1926,
§ 1926.1204(d)(4), which is identical to equipment and wiring methods under subpart L, for scaffolds). This equipment
the general industry standard at the particular hazardous conditions is critical under emergency-exit
§ 1910.146(d)(4)(iv), requires an present. This additional language does conditions to ensure that employees exit
employer to provide PPE when feasible not increase employers’ responsibilities a PRCS in a timely and safe manner.
Paragraph (d)(8). Final from testing is vital to the identification Paragraph (e)(1)(i). Final
§ 1926.1204(d)(8), which is identical to of atmospheric hazards in the space. In § 1926.1204(e)(1)(i) requires an
§ 1910.146(d)(4)(viii), requires an instances when the permit space is fixed employer to test to ensure that
employer to provide rescue and or isolated, the testing will be acceptable entry conditions exist
emergency equipment as needed. Final straightforward. Final § 1926.1204(e)(1), immediately before entry occurs. The
§ 1926.1204(d)(8) ensures that the however, also acknowledges that testing must occur ‘‘to the extent
proper equipment is available for accurately testing the full extent of a feasible,’’ meaning that even if the
rescuing authorized entrants in the permit space, or even a workspace employer makes a determination that it
event of an emergency in a PRCS, within a larger permit space, may be is infeasible to isolate the space and the
whether it is the employer’s equipment infeasible because the PRCS is large or test results may not accurately reflect all
or equipment belonging to a rescue is part of a continuous system. The size potential hazards in the space, that
service. of the space could limit the value of the employer still has a responsibility to
Paragraph (d)(9). Final initial testing of entry conditions perform normal testing in the workspace
§ 1926.1204(d)(9), which is similar to because the conditions in the work prior to entry to ensure that a hazardous
§ 1910.146(d)(4)(ix), requires an space could be affected by substances in atmosphere does not already exist in
employer to provide any other the connected spaces and, therefore, that workspace.
equipment needed to safely enter or exit subject to change. In such cases, Paragraph (e)(1)(ii). Final
the permit space or to perform permit- employers must comply with the § 1926.1204(e)(1)(ii) requires an
space rescue. OSHA recognizes that additional procedures in final employer to continuously monitor a
there is a wide variety of permit spaces, § 1926.1204(e)(1)(i)–(iii), which include non-isolated permit space unless the
and believes that the requirement to pre-entry testing to the extent feasible, employer can demonstrate that the
provide all additional equipment continuous monitoring if such equipment needed for continuous
necessary to perform permit-space entry monitoring is commercially available, monitoring is not available
and exit ensures that the appropriate and an early warning system that commercially. Note that this
equipment is available at the job site so monitors continuously for non-isolated requirement is different than the
employees receive adequate protection engulfment hazards. monitoring requirement for isolated
from hazards present during permit- Final § 1926.1204(e)(1) is similar to spaces in § 1926.1204(e)(2) because
space operations. Similarly, OSHA the corresponding provision for general paragraph (e)(1)(ii) does not include an
believes the requirement to provide option for periodic monitoring unless
industry confined spaces at
additional rescue equipment as needed continuous monitoring is not
§ 1910.146(d)(5)(i), with three
addresses hazards that may be unique to commercially available (paragraph (e)(2)
exceptions. First, OSHA reorganized the
a PRCS rescue, thereby ensuring that allows for periodic monitoring in
two requirements in § 1910.146(d)(5)(i),
employees receive adequate protection certain other circumstances). Non-
pre-entry testing followed by
from these hazards under emergency isolated permit spaces, relative to other
continuous monitoring, into separate
conditions. Accordingly, the employer PRCSs, have an enhanced risk of
paragraphs in final § 1926.1204(e)(1)(i)–
must identify this additional equipment, unexpected changes in hazardous
(ii). Second, OSHA also added the
if any, after conducting an assessment of atmosphere levels because atmospheric
requirement for employers to provide an
the PRCS as required by the applicable hazards could migrate from other areas,
early warning system in final so OSHA only permitted periodic
sections of this final rule.
Proposed § 1926.1218(a)(4) specified § 1926.1204(e)(1)(iii). OSHA separated monitoring in non-isolated spaces in the
that an employer provide any other the two paragraphs to emphasize that an absence of a viable alternative. By
equipment necessary for safe ‘‘confined employer performing confined-space monitoring the space continuously,
space operations.’’ For consistency, a operations under final § 1926.1204(e)(1) employers should detect rising levels of
commenter suggested replacing the term may be performing work under a special a hazardous atmosphere or the
‘‘confined space operations’’ with set of conditions in a portion of a large introduction of a new atmospheric
‘‘confined space entry,’’ which OSHA space a continuous system. As such, the hazard before it is too late to warn the
used frequently in the proposed rule employer must comply with the special authorized entrants and evacuate them
(ID–025, p. 4). In response to this procedures in § 1926.1204(e)(1)(i) from the space.
comment, OSHA adopted in final through (iii) (testing, continuous Final § 1926.1204(e)(1)(ii) is similar to
§ 1926.1204(d)(9) the corresponding monitoring, and an early warning the corresponding provision for general
language in § 1910.146(d)(4)(ix), which system), as well as paragraphs (e)(2) industry confined spaces at
uses the term ‘‘entry.’’ OSHA added the through (6), to account for migrating § 1910.146(d)(5)(i), except that OSHA
phrase ‘‘safe exit from’’ to this final hazards. One example of this type of allows for the absence of commercially
provision to clarify that employers must confined space is a sewer in which a available equipment that could make it
provide equipment needed for employee storm or other activity at another infeasible to conduct continuous
safety during the entire period they are location could send water or hazardous monitoring. In such instances, OSHA
involved in confined space operations, materials into the space in the sewer still requires periodic monitoring to
which includes ensuring that employees where employees are working. increase the likelihood of identifying as
can exit safely from the space. Third, OSHA added language quickly as possible a hazardous
Paragraph (e). Final § 1926.1204(e), is clarifying that it is the employer’s atmosphere migrating from another part
similar to § 1910.146(d)(5), but includes responsibility to demonstrate that of a continuous system. Several
language from proposed § 1926.1215— isolation of the space is infeasible. This commenters were unsure what OSHA
Continuous system permit spaces, as requirement is implicit in means by ‘‘not commercially available’’
well as editorial revisions to the § 1910.146(d)(5)(i), so OSHA added this (ID–106, p. 3; –129, p. 3; –152, p. 3).
introductory text. language to make the requirement Typically, equipment is ‘‘commercially
Paragraph (e)(1). Final explicit and clarify that an employer available’’ if it is offered for sale to the
§ 1926.1204(e)(1) requires an employer who determines that isolation of a space public or to the relevant employers. As
to test the permit space for acceptable is infeasible is most able to provide OSHA stated in the preamble to the
entry conditions. Information obtained information that supports this decision. proposed rule, one example of when
continuous monitoring may not be monitoring equipment, especially when the comment nor the rest of the record
commercially available involves technology and monitoring practices provide support for this suggestion. To
particulate atmospheric hazards (72 FR may evolve in the future. Accordingly, the contrary, employers have flexibility
67381). In these cases, the employer employers have flexibility to choose in determining whether to hire
must be able to demonstrate that their preferred methods and equipment additional employees to comply with
periodic monitoring is of sufficient to monitor, so long as the monitoring final § 1926.1204(e)(1)(iii). An employer
frequency to ensure that the equipment, when used in accordance may position detection and monitoring
atmospheric hazard remains at a safe with manufacturer requirements, detects devices, without the need to hire
level, as planned (id). OSHA added a rising levels of a hazardous atmosphere additional employees, to provide the
cross-reference to final § 1926.1204(e)(2) or the introduction of a new early warning. A full discussion of the
to inform employers of the frequency atmospheric hazard before it is too late costs of early warning systems is
with which to monitor periodically for to warn the authorized entrants and included in the Final Economic
hazards if continuous monitoring is not evacuate them from the space. For Analysis in this document.
commercially available. additional information about One commenter appeared to assume
Several commenters asserted that atmospheric monitoring, see May 12, that this provision required using
OSHA should require a competent 2009, letter to Edwin Porter, Jr. equipment, not additional employees, to
person to perform the testing and Another commenter asserted that an monitor engulfment hazards. This
monitoring (ID–025, p. 3; –086, p. 5). employer must use more than one piece commenter asserted that such
OSHA agrees that the tester must be of continuous-monitoring equipment to equipment is too expensive to maintain
competent, but is not revising the text effectively detect hazards (ID–031, p. 1). (ID–098, p. 1). This commenter did not
of the regulation to refer to a competent Final § 1926.1204(e)(1)(ii) does not provide any support for the assertion, or
person because OSHA believes that the require the use of more than one piece any specific information about problems
existing language, taken directly from of continuous-monitoring equipment; associated with maintaining or
the general industry confined-spaces however, the provision also does not operating such equipment. OSHA notes
standard, adequately addresses the specify that employers can accomplish that the use of properly calibrated
competency of the tester. In this regard, monitoring using only one piece of equipment to detect non-isolated
the general industry confined-spaces equipment. The number of monitors an engulfment hazards is a current practice
standard does not use the term employer would need to ensure the by many in the industry and has been
‘‘competent person,’’ but does use terms isolation or control of atmospheric since before OSHA issued the proposed
such as ‘‘attendant’’ and ‘‘entry hazards depends on the PRCS’s size, rule (see transcripts of stakeholder
supervisor’’ that require a level of configuration, and conditions; the meetings, available at: https://
experience and training regarding requirement here is that employers use www.osha.gov/doc/reference_
testing or monitoring equivalent to that whatever number of monitors is documents.html). Without a specific
of a ‘‘competent person,’’ as defined in necessary to ensure the isolation or reason why an early warning system is
§ 1926.32(f). For example, final control of the atmospheric hazards. infeasible, OSHA retained this
§ 1926.1208(b) and § 1910.146(h)(2) both OSHA also selected the performance- requirement in the final rule.
require an authorized entrant to possess oriented approach so that this standard Another commenter asserted that an
the necessary knowledge to properly will not become outdated through early warning system requirement will
test the atmosphere within a confined advances in monitoring technology. require an employer to evaluate and
space (see also § 1926.1204(d)). Under Paragraph (e)(1)(iii). Final calibrate such systems for each potential
the training provisions of both § 1926.1204(e)(1)(iii) requires an hazard (ID–216). It is not clear from the
§ 1910.146(g) and final § 1926.1207, an employer to provide an early warning comment, however, that the commenter
employer must provide specific training system that will detect non-isolated understood that the early warning
to an employee designated as an engulfment hazards. OSHA included system described in the proposal (and
‘‘authorized entrant’’; this training must this requirement in proposed this provision) must detect only non-
establish proficiency in the duties an § 1926.1215(a)(2), but there is no isolated engulfment hazards, not each
authorized entrant must fulfill under corresponding § 1910.146 provision. As potential atmospheric hazard. Because
these standards. In this respect, the OSHA stated in the preamble to the engulfment hazards involve the
scheme of both § 1910.146 and this final proposed rule, this equipment addresses movement of tangible substances (e.g.,
rule accomplish the commenters’ migrating engulfment hazards that are water, mud, sand), systems may detect
objective, which is to design a present in a non-isolated PRCS. For movement of different substances using
procedure whereby the person example, these hazards can result when the same methods (e.g., a motion
performing the atmospheric tests has runoff from a heavy storm upstream of detector or other sensor triggered by the
sufficient knowledge and experience to a sewer flows downstream into the area movement of water, mud, sand, or
conduct the tests properly. in which employees are working. OSHA another substance through a particular
Different commenters asserted that noted in the preamble of the proposed area). The commenter did not provide
OSHA should identify the specific rule that migrating hazards, especially any specific examples of equipment that
locations for monitoring equipment in those hazards migrating from distant would require calibration in a way that
the permit space (ID–106, p. 2; –129, p. areas, are common in non-isolated would be burdensome to the employer
2). For example, these commenters spaces (72 FR 67382). Accordingly, this or diminish the effectiveness of the
suggested that OSHA require an requirement is necessary to protect equipment in providing an early
employer to place monitoring authorized entrants from the additional warning.
equipment at the merger point between hazards associated with these spaces, The same commenter suggested as an
the larger space and the non-isolated including engulfment hazards. alternative requiring employers to
entry point. The continuous-monitoring One commenter suggested that the disconnect, blind, lockout, or isolate all
requirement is a performance-based requirement for an early warning system pumps and lines that may cause
standard, and OSHA does not agree that will force employers to hire more contaminants to flow into a confined
it is necessary to specify particular employees for the purpose of space, and then continuously monitor
locations for the placement of monitoring the space (ID–059). Neither that space. The alternative approaches
mentioned by the commenter appear to for the entrants to safely avoid upstream especially the entrants. This provision
be directed at isolating the hazards. If engulfment hazards moving in their enables the employer to recognize
the employer effectively isolates or direction. So long as the use of deteriorating conditions quickly, and to
eliminates all physical hazards within electronic monitoring alerts authorized identify new atmospheric hazards in
the entire permit space, then it might be entrants and attendants of non-isolated time to take the actions required to
possible for the employer to avoid the engulfment hazards in sufficient time to protect employees.
permit program altogether if employees safely exit the PRCS, the employer will However, the Agency recognizes that,
can enter the space through the be in compliance with final for some PRCSs, especially those PRCSs
alternative procedures in § 1926.1203(e), § 1926.1204(e)(1)(iii). entered and monitored repeatedly over
or if there are no atmospheric hazards Paragraph (e)(2). Final a significant period of time and found
and the permit space is reclassified in § 1926.1204(e)(2) requires an employer to have a stable atmosphere (such as a
accordance with § 1926.1203(g). OSHA to continuously monitor the space remote location that is not near
anticipates, however, that in most cases unless the employer can demonstrate potential sources of atmospheric
employers in non-isolated spaces will that the equipment for continuously hazards), the employer may be able to
need to comply with monitoring a hazard is not commercially show that periodic monitoring will be
§ 1926.1204(e)(1)(iii) because it may not available or that periodic monitoring is sufficient to ensure that the conditions
be possible for employers to eliminate sufficient to ensure the control of in the PRCS remain within acceptable
all physical hazards from a continuous atmospheric hazards at safe levels. Final entry conditions. However, when the
system. rule § 1926.1204(e)(2) is similar to the employer uses periodic monitoring, the
Other commenters asserted that the corresponding provision for general monitoring must be of sufficient
requirement to use an early warning industry confined spaces at frequency to ensure the control of
system exposes the individuals § 1910.146(d)(5)(ii), except that final atmospheric hazards at planned levels,
installing the system to hazards (ID–098, § 1926.1204(e)(2) generally requires and capable of detecting new hazards in
p. 1; –120, p. 4). OSHA disagrees with continuous monitoring as did the time to protect the employees. In some
these commenters’ assertion. There are proposed rule (see proposed cases, continuous monitoring may not
many types of early warning systems § 1926.1215(a)(1)). Several commenters be possible; for example, continuous
available, including flow monitors that supported the requirement to monitor monitoring typically is not available
are suspended in an upstream manhole permit spaces continuously (ID–105, p. when the atmospheric hazard is a
such that no employee needs to climb 2; –106, p. 2). One of these commenters particulate. Therefore, when the
down into the confined space to place asserted that ‘‘periodic monitoring employer can show that periodic
or retrieve the monitor. These devices could be difficult to interpret, which monitoring is adequate, or can
are capable of detecting engulfment could potentially lead to situations demonstrate that the technology for
hazards approaching from upstream where an employer’s monitoring scheme continuous monitoring of the
without exposing the individuals fails to adequately monitor rapidly atmospheric hazard is not available,
installing them to additional hazards. changing atmospheric conditions that OSHA will permit the employer to use
Employers may also be able to lower could pose risks to workers who enter effective periodic monitoring instead of
cameras or other devices into the space, a confined space’’ (ID–105, p. 2). continuous monitoring.
or conduct visual inspections from In the typical PRCS in a construction The preamble discussion of proposed
above the space without entering at all. setting, it is often difficult for the § 1926.1205(a)(3) provided the following
One commenter was unsure when, employer to predict with reasonable factors that OSHA will consider in
where, and how an employer must certainty the levels of hazardous determining whether an employer has
implement an early warning system (ID– atmospheres. In many instances, the used an appropriate monitoring
124, p. 5). Another commenter asserted employer will have little or no past frequency: The results of tests allowing
that OSHA should explicitly recognize experience with the particular PRCS, entry; regularity of entry (e.g., daily,
that the use of electronic monitoring and will lack reliable historical data on weekly, monthly); effectiveness of
constitutes an acceptable early warning hazard levels. Also, the PRCS may previous monitoring activity; and
system (ID–107, p. 3). In response to change as construction work progresses knowledge of the hazards (72 FR 67362).
these comments, OSHA notes that, once in ways that may cause unexpected One commenter suggested adding the
the employer determines that isolation increases in hazard levels. For example, following factors to this list: (1) The
of the space is infeasible, then the changes to the wall of a PRCS may type of the work performed in the space
employer must implement an early increase the level of hazardous gasses in (i.e., hot versus cold work); (2) the time
warning system in accordance with final the PRCS (see also ID–213.1, describing period the confined space remains
§ 1926.1204(e)(1)(iii). The employer has examples of how construction spaces unmonitored (i.e., requiring monitoring
flexibility in determining what type of can include hidden dangers, such as every 20–30 minutes), and; (3) lunch
system to use based on information it paints or sealants that can release toxic breaks (ID–132, p. 3). Knowledge of the
receives about the space and its hazards, fumes if triggered by welding or other hazards from the list in the proposed
and based on the employer’s experience sources of heat.) In addition, rule covers the first of these suggested
working in similar spaces. The system construction equipment in the PRCS factors (type of work), while regularity
can be as simple as posting observers may discharge hazardous gasses into the of entry from the proposal’s list covers
with communication equipment in safe space at a higher rate than anticipated. the third suggested factor (lunch
locations (e.g., outside an open In short, construction work follows a breaks). Effectiveness of previous
manhole) at distances far enough less predictable course than work monitoring activity from the proposal’s
upstream from the work area to timely covered by the general industry list addresses the second suggested
communicate a warning to the entrants standard and, thus, requires more factor (the time period the permit space
working downstream. Another method frequent atmospheric monitoring. remains unmonitored). Accordingly, an
would be to use detection or monitoring Because of this high level of employer must account for the
devices upstream that will alert an unpredictability, OSHA believes, development of hazardous atmospheres
attendant, or activate alarms at the generally, that continuous monitoring is during periods when no atmospheric
entrants’ work area, in sufficient time necessary to protect affected employees, monitoring occurs in the space to
determine whether entry conditions comments challenging the validity of authorized entrant or the entrant’s
remain at safe levels over these periods. this approach. OSHA remains authorized representative ‘‘has a reason
For example, if the space remains convinced that the priority assigned to to believe’’ the initial evaluation may
unmonitored for just a few minutes testing or monitoring atmospheric have been inadequate. Otherwise, this
prior to reentry, and previous hazards by final § 1926.1204(e)(3) provision of the final rule is identical to
monitoring regularly indicates that remains valid, and believes that this § 1910.146(d)(5)(v). Examples of
acceptable entry conditions continued requirement is critical to the health and indications that the evaluation of the
to exist over this period, then an safety of employees involved in permit space was inadequate include:
employer may conclude that it is not confined-space entry. improper use of monitoring equipment
necessary to monitor again prior to OSHA notes that final (e.g., monitoring devices have low
reentering the space. However, if the § 1926.1204(e)(3), like the proposed battery life or noticeable damage;
space remains unmonitored for a longer rule, does not require an employer to monitoring devices improperly
time and previous monitoring indicates test for combustible dust. There calibrated; measurements taken in
that atmospheric hazard levels increase currently are technological limitations improper locations); employees noting
over this period, then an employer must on testing for airborne combustible dust physical hazards not identified in the
evaluate and monitor the space again in a timely manner; in addition, unlike evaluation; and inconsistent monitor
before reentering it. flammable vapors, in situations in readings without adequate explanation.
Some commenters asserted that which airborne combustible dust Addressing an example in proposed
OSHA must define the term ‘‘periodic § 1926.1207(a)(3), one commenter was
reaches a minimum combustible
monitoring’’ to avoid confusion among unsure who would make the final
concentration, the dust cloud generally
the regulated community (ID–075, p. 10; decision of whether there is a
is dense enough to detect with the
–129, p. 2;–152, p. 2). The frequency reasonable basis for believing that a
naked eye.
with which it is necessary to monitor a hazard determination is inadequate (ID–
Paragraph (e)(4). Final
confined space differs based on the 120, p. 4). Specifically, the commenter
§ 1926.1204(e)(4), which is identical to
particular facts and circumstances. presented a situation in which an
§ 1910.146(d)(5)(iv), requires an
OSHA provided the factors listed in the employee provides an alleged basis for
employer to provide an authorized
previous paragraph to assist employers believing that a hazard determination is
entrant or employee authorized
in determining when periodic inadequate, but the employer finds that
representative with the opportunity to the basis is not reasonable. Under final
monitoring is necessary; however, final observe testing or monitoring. See the
§ 1926.1204(e)(2) maintains § 1926.1204(e)(5), the employer may
discussion of final § 1926.1204(c)(2) for repeat the test, alter the test to assess
performance-based language, which an explanation of the importance of
OSHA believes will provide employers additional aspects of the space, or assess
providing an opportunity an whether a change occurred in the use or
with flexibility in complying with this opportunity for observation to entrants
final rule. Moreover, there was no configuration of the space after testing.
or their representatives. If such a change occurred, then the
indication in the record that the Paragraph (e)(5). Final
longstanding use of the term ‘‘periodic employer must reevaluate the space.
§ 1926.1204(e)(5), which is similar to Therefore, compared to the more
testing’’ in § 1910.146 is causing the § 1910.146(d)(5)(v), requires an
level of confusion suggested by the subjective language in the general
employer to reevaluate a PRCS if there industry standard (i.e., ‘‘has reason to
commenters. is ‘‘some indication’’ that the previous
Paragraph (e)(3). Final believe’’), the reevaluation requirement
evaluation was inadequate and an in this final provision (i.e., ‘‘some
§ 1926.1204(e)(3), which is identical to authorized entrant or that entrant’s
§ 1910.146(d)(5)(iii), requires an indication’’) is more objective and based
authorized representative asks an on the observable conditions, thereby
employer to test for particular employer to reevaluate the space. This
substances in a pre-determined order: reducing ambiguity.
requirement ensures that entrants, or Paragraph (e)(6). Final
oxygen, then combustible gases and their representatives, can provide a § 1926.1204(e)(6), which is identical to
vapors, and finally toxic gases and check on potential human error in the § 1910.146(d)(5)(vi) except for non-
vapors. The preamble to the general monitoring process before they are substantive clarifications and
industry confined-spaces standard potentially exposed to harm. This grammatical changes, requires an
noted that this procedure represents requirement is consistent with other employer to immediately provide the
generally accepted safe work practices, requirements to allow employee results of testing conducted in
and explained the specified order as observation of testing results, the accordance with final § 1926.1204 to
follows: reasons for which are set forth in the each authorized entrant or that
A test for oxygen must be performed first explanation of § 1926.1204(c)(2). In employee’s authorized representative.
because most combustible gas meters are some cases employees who did not This requirement will ensure that
oxygen dependent and will not provide observe the initial monitoring process employees and their representatives
reliable readings in an oxygen deficient may notice something about the have the information necessary to
atmosphere. In fact, the Johnson Wax
equipment or space that calls into doubt identify potential inadequacies in the
Company (Ex. 14–222) stated that ‘there is [a]
specific (sensor dependent) oxygen level the initial evaluation, but in other cases testing and take action under paragraph
below which the combustible gas sensor will this requirement serves as a corollary to (e)(5) of this section to avoid unsafe
not respond at all [emphasis was supplied in the general observation requirements: an entries. In some cases the testing may
original].’ Combustible gases are tested for employee or employee representative reveal specific conditions that fall
next because the threat of fire or explosion who observes the initial evaluation of within an employee’s expertise or may
is both more immediate and more life the space pursuant to § 1926.1204(c)(2) be relevant to an individual health
threatening, in most cases, than exposure to and notes a problem with that testing condition of the employee. For example,
toxic gases. may request a re-evaluation of the space if an employee knows that he or she has
(58 FR 4499). OSHA also included this under § 1926.1204(e)(5). a particular sensitivity to even low
same requirement in the proposed Section 1910.146(d)(5)(v) requires an levels of a substance that would not
§ 1926.1205(a)(1), and received no employer to reevaluate when an otherwise result in a hazardous
atmosphere, the employee could review assess entrants’ status in multiple assessment procedures include
the test results and alert the employer if permit spaces while adequately procedures to ensure that the attendant
that substance is detected so that the performing attendant duties is can respond adequately to emergencies.
employer can provide appropriate dependent on several factors, that If the attendant needs to devote his or
measures to protect the employee. See include: (1) the number of permit spaces her entire attention to one of the spaces
the discussion of final § 1926.1204(c)(2) the attendant assesses simultaneously; or conduct non-entry retrieval, the
for further explanation of this (2) the degree and number of the attendant must have a backup ready to
requirement. hazards; (3) how effective the assume the attendant duties for the
Paragraph (f). The introductory text of assessment technology used is at other space or order the evacuation of
final § 1926.1204(f), which is identical assessing entrants’ status and the that space.
to § 1910.146(d)(6), requires an conditions in the permit space (i.e., is A commenter asserted that paragraph
employer to provide at least one there a system in place for the attendant (g) also should include requirements for:
attendant outside a PRCS while an to track, from a remote location, who is (1) testing and charging electronic
authorized entrant is performing coming in and out of a permit space); equipment used to assess entrants’
confined-space operations. Although an and (4) the distance between the status in multiple PRCSs; (2) the use of
attendant does not have the overall multiple permit spaces. This provision equipment within acceptable limits in
responsibility for employee safety and may preclude a single attendant from accordance with Federal
health assigned to the entry supervisor, serving as the attendant for multiple Communications Commission (FCC)
the attendant is a crucial link between spaces if the employer also designated guidelines; and, (3) attendant training
authorized entrants and the entry the attendant to provide non-entry (ID–108.1, p. 2). In response, OSHA
supervisor, and is essential for proper rescue service. In most cases, an notes, first, that final § 1926.1204(d)
rescue operations. See the discussion in attendant with non-entry rescue requires employers to maintain
§ 1926.1209 of this final standard for responsibility must be physically equipment provided for compliance
further explanation of the attendant’s present to retrieve immediately the with this final rule, which includes
duties and the importance of the entrant absent the availability of properly testing and charging the
attendant in confined-space operations. equipment that would enable the equipment. Second, this final rule
Paragraphs (f)(1) and (f)(2). In final attendant to perform the rescue task works in conjunction with other federal
§ 1926.1204(f)(1), OSHA authorizes the remotely and successfully. As noted in laws, and compliance with FCC
permit program to allow for an the criteria above, the degree of the guidelines is a matter best addressed by
attendant to perform his or her required hazard may affect the timing of entrant the FCC. Third, final § 1926.1207
duties, including assessing authorized retrieval and, thus, the physical requires the employer to train all
entrants’ status and meeting the proximity required for an attendant who employees, including attendants
requirements of § 1926.1209 for more has non-entry rescue responsibility (e.g., assessing multiple permit spaces, on the
than one permit space, similar to the if the permit space contains combustible provisions of the standard so that the
requirement specified in the proposed gases that present a dangerous fire employees can effectively perform their
rule at § 1926.1210(f)(3). Under final hazard, the attendant must be capable of designated duties under this standard.
§ 1926.1204(f)(2), the permit program retrieving the entrant immediately). Thus, OSHA concludes that the final
may allow an attendant to fulfill his or One commenter suggested that OSHA standard already includes the duties
her assessment duties for one or more provide a maximum distance from requested by the commenter, and that
spaces from a remote location provided which one attendant can assess entrants’ this final standard provides employers
the attendant is capable of fulfilling all status in multiple PRCSs (ID–059.1, p. with appropriate flexibility in
attendant duties under § 1926.1209 for 1). OSHA did not mandate a maximum performing these duties.
all spaces to which the attendant is distance because there are a number of Paragraph (h). Final § 1926.1204(h),
assigned from that remote location. factors that could influence the proper which is identical to § 1910.146(d)(8)
Final § 1926.1204(f)(1) and (f)(2) are distance from which an attendant can except for minor clarifications, requires
similar to the note in the general assess entrants’ status in multiple each employer to specify the names of
industry confined-spaces standard at PRCSs while remaining in compliance each person who will have a particular
§ 1910.146(d)(6). OSHA acknowledges with the applicable attendant role in confined-space operations,
that, although it is best to have an requirements under this final rule. For characterize those roles, and train the
attendant outside each PRCS, there may example, some of the factors could be named people accordingly. In the final
be situations when one attendant can the particular circumstances at the rule, OSHA clarified that each employer
effectively fulfill the attendant duties in worksite (the location and accessibility must designate each and every
multiple PRCSs. The ability to assess of the permit space), the visual acuity employee assigned to a specific role
entrants’ status in multiple PRCS sites and observation skills of the attendant, under this final rule. This provision will
allows employers maximum flexibility and the equipment provided to the enable employers, employees, and
in providing for the safety of employees attendant. This approach provides the OSHA to identify which employees
when site-specific factors permit the most flexibility to employers. need to receive what training under
attendant to do so. For instance, in some Paragraph (g). Final § 1926.1204(g), final § 1926.1207.
circumstances a single attendant which is identical to § 1910.146(d)(7), One commenter was uncertain
equipped with modern technologies requires an employer to specify, in its whether the attendant and the entry
such as an automated monitor/alarm permit program, the means and supervisor must be different employees
system and audio-video equipment may procedures it will use to ensure that a (ID–124, p. 8). The definition of ‘‘entry
be able to assess entrants’ status in single attendant is capable of effectively supervisor’’ in final § 1926.1202
multiple sites and react to emergency fulfilling the attendant duties for includes a note explaining that an entry
conditions as effectively as a single multiple confined spaces if an supervisor also may serve as an
attendant at each space. emergency occurs in one of the spaces. attendant or an authorized entrant. This
While paragraph (f)(1) sets forth As specified in the final preamble to note is identical to the note in the
performance-based measures, OSHA § 1910.146 and the note to proposed general industry confined-spaces
believes that an attendant’s ability to § 1926.1210(f)(3)(ii), effective standard at § 1910.146(b). OSHA
included this note to parallel the general entry. In the final rule, OSHA added a confined space. For example, if an entry
industry standard and because OSHA’s clarification that these procedures must employer sees another employer setting
enforcement experience demonstrates cover the safe termination of entry up blasting equipment next to the
that, when the entry supervisor has operations, which must include permit space, the entry employer must
adequate training, he/she is capable of procedures for summoning emergency check with that employer to ensure that
serving simultaneous roles effectively. assistance in the event that non-entry the blasting activity will not take place
Moreover, proposed § 1926.1210(h) rescue fails (see discussion of backup when an entrant is in the permit space.
specifically stated that an entry emergency assistance in final For additional explanation of the entry
supervisor could serve simultaneously § 1926.1211). employer’s responsibilities for
as an attendant or an authorized entrant, One commenter was unsure which coordination, see the discussion of
which is consistent with this final rule, employers must comply with final § 1926.1203(h)(4).
and OSHA did not receive any § 1926.1204(j) (ID–120, p. 4). Final Paragraph (l). Final § 1926.1204(l),
comments indicating that this dual role § 1926.1204(j) applies to any employer, which is identical to § 1910.146(d)(12),
was infeasible or inappropriate. including a controlling contractor or requires an employer to develop and use
Paragraph (i). Final § 1926.1204(i), host employer, that has its own procedures for terminating an entry
which is nearly identical to employees performing confined space permit and entry operations; the final
§ 1910.146(d)(9), requires an employer operations. provision also derived from proposed
to have and implement effective Paragraph (k). Final § 1926.1204(k) §§ 1926.1212(a) and 1926.1214(d). See
procedures for summoning rescue requires an employer to develop and the discussion of final § 1926.1205(e) for
services (including procedures for implement procedures for coordinating further explanation of the need to
summoning emergency assistance in the confined-space entry when multiple develop and use procedures for
event of a failed non-entry rescue), employers are performing work terminating an entry permit and entry
performing rescue, and preventing simultaneously that could affect operations, including closing the entry
unauthorized personnel from attempting conditions in a permit space, a portal. Also, OSHA responded to the
rescue. The only difference from the requirement derived from proposed relevant comments to proposed
general industry requirement is that § 1926.1204(d). In the general industry § 1926.1212(a) in its discussion of final
OSHA added a parenthetical to note that confined-space standard, § 1926.1204(j).
employers have a duty to summon § 1910.146(d)(11) requires coordination Paragraph (m). Final § 1926.1204(m),
emergency assistance in the event of a procedures when multiple employers which is similar to § 1910.146(d)(13),
failed non-entry rescue. are working simultaneously ‘‘as requires an employer to review its
Several commenters were unsure authorized entrants.’’ This final permit-space program whenever the
which employer must summon rescue provision differs from § 1910.146(d)(11) procedures prove inadequate, and to
(ID–025, p. 4; –150, p. 3). Another by addressing the need to coordinate revise those procedures when necessary.
commenter asserted that the attendant work activities through the controlling Section 1910.146(d)(13) requires the
should summon rescue (ID–210, Tr. p. contractor, as well with employers employer to review its program when
357). Final § 1926.1204(i) applies to any working outside the permit space when the employer has reason to believe that
employer, including a controlling their work could foreseeably affect the measures taken are inadequate.
contractor or host employer, that has its conditions within a confined space. The OSHA revised this language in this final
own employees performing confined controlling contractor (or the employer rule by clarifying that the objective
space operations. Each such employer specified in § 1926.1203(i)) and each circumstances, not the employer’s
must designate an attendant, and final entry employer are responsible for belief, must be the basis of the review.
§ 1926.1209(g) requires the attendant to coordinating work activities among See the discussion of final
summon a rescue service when needed. different employers to protect confined § 1926.1205(f) for further explanation of
When multiple employers are operating space entrants under final the need to review an entry permit and
in the same space, the employers must § 1926.1203(h)(4), and entry employers to make revisions as necessary.
coordinate the procedures for must ensure that their permit programs In addition, OSHA modified the note
summoning a rescue service as part of specify when and how they will share under paragraph (m) from the language
their general coordination duties under information with the controlling used in the corresponding note to the
§§ 1926.1203(h)(4) and 1926.1204(k). contractor in a timely manner in general industry standard at
This provision will ensure that accordance with § 1926.1203(h)(4) and § 1910.146(d)(13). OSHA added the
procedures are in place for the timely (h)(5)(ii). The permit program also must phrase ‘‘including, but not limited to’’
and effective rescue of entrants when address how the entry employer’s in this final provision to clarify that the
necessary. employees are to receive and transfer examples in the note are not an
Paragraph (j). Final § 1926.1204(j), information about a confined space from exhaustive list.
which corresponds to the requirements the controlling contractor in accordance Paragraph (n). Final § 1926.1204(n) is
in § 1910.146(d)(10), requires an with § 1926.1203(h)(2), and how the identical to § 1910.146(d)(14) except for
employer to develop procedures for the entry employer will ensure that it grammatical revisions, and requires an
development, issuance, use, and implements coordination instructions employer to review its permit-space
cancellation of an entry permit; the final from the controlling contractor. In program at least every year and make
provision also is similar to proposed addition, the entry employer still has revisions to its procedures as necessary;
§ 1926.1212(a). The permit is one of the the duty of including in its permit this provision also expands upon, and
most crucial elements of a permit program steps to ensure coordination, clarifies, the proposed rule at
program because it provides specific even absent action by the controlling § 1926.1214(b). The Agency moved the
instructions for monitoring and contractor. Such steps might include comma that appears after ‘‘as necessary’’
addressing hazards in a particular space. evaluation of work and practices being in § 1910.146(d)(14) to appear after
See the discussion to final §§ 1926.1205 performed by other employers that ‘‘1926.1205(f)’’ in this final rule to
and 1926.1206 for further explanation could affect conditions inside the space, clarify that this provision requires an
on the importance of developing and and coordinating with those employers employer to review cancelled permits
using entry permits for confined-space to ensure safe conditions inside the within one year after each entry. The
Agency notes that, in interpreting the purpose, and OSHA did not receive any confusion if a permit space was
same language in the general industry comments to the contrary. Therefore, if established that might be referred to as
standard, OSHA permitted employers to an employer conducted a review of its a system, such as a sewer system.
rely on documentation of quarterly permit-space program each calendar Paragraph (a). Final § 1926.1205(a),
reviews, rather than cancelled entry year, regardless of how many entries it which is almost identical to
permits, in conducting its annual conducted in that calendar year, it will § 1910.146(e)(1), requires each entry
review, so long as that documentation be in compliance with this requirement. employer to prepare, prior to entry into
contains the same information required Employers may conduct reviews more a PRCS, an entry permit containing all
to be in the cancelled entry permits, frequently as appropriate, but this final of the information specified in
including ‘‘any information regarding provision does not require this § 1926.1204(c) (practices and
problems encountered during entry frequency and, therefore, provides procedures for ensuring safe entry). This
operations that was recorded to comply employers with the most flexibility in provision differs slightly from
with paragraph (e)(6)’’ and ‘‘any determining when to conduct this § 1910.146(e)(1) because it refers to
revision of the program that resulted annual review. ‘‘each entry employer,’’ whereas
from such problems.’’ See October 21, The note to paragraph (n), which is § 1910.146(e)(1) refers to ‘‘the
1993, letter to John Anderson. The identical to the note following employer.’’ OSHA made this change to
Agency will also accept the equivalent § 1910.146(d)(14), clarifies that clarify which employer on a multi-
documentation under this construction employers need not conduct separate employer worksite has duties under
final rule. Some commenters asserted reviews of each individual permit final § 1926.1205(a).
that requirements to review the program program implemented during the OSHA emphasizes that the process of
are pointless because they do not ensure calendar year; a single review of all preparing a permit is considerably more
that employers will discover hazards in entries during the calendar year will than preparing a simple checklist; it
a timely manner (i.e., they will discover suffice. Another commenter asserted requires careful attention and planning.
any problems after the fact) (ID–075, p. that OSHA should require a similar The permit must list all measures
10;–099, p. 2;–101, p. 2). OSHA did not annual review for entry operations necessary for making the particular
design final § 1926.1204(n) to ensure performed under the alternate permit space safe for entry; if the permit
that employers discover hazards during procedures specified by final omits some procedures, serious
a particular confined-space entry § 1926.1203(e) and 1926.1203(g)(1) (ID– consequences could result. Entry
operation; the Agency designed other 060, p. 2). Employers who complete a permits are a critical component of the
sections of this final rule for that confined space entry entirely under the safety process for preparing to enter a
purpose, such as § 1926.1203(h) and alternative procedures set forth in final confined space because they provide
§ 1926.1203(e) do not have to comply key information about hazards in the
final § 1926.1204(m). As OSHA
with the requirements of final PRCS, and the methods used to protect
explained in 72 FR 67381 of the
§ 1926.1204 (see final § 1926.1203(e)(1)). employees from those hazards. The
preamble to the proposed rule, the
Employers need fewer precautions to permits also specify who is authorized
purpose of this annual review is to
ensure the safety of employees working to perform work within the PRCS, their
evaluate the effectiveness of the permit
within or near confined spaces when duties, and the extent of their authority
program and the protection provided to
they can use the alternate procedures with respect to safety in and around the
employees involved in PRCS entries
under final § 1926.1203(e) or reclassify PRCS. The Agency believes the use of
during this period. OSHA understands
the permit space under this administrative tool is essential to
that some employers will use the same
§ 1926.1203(g)(1). If there is any change the employer with employees entering a
comprehensive permit program for permit space to ensure that the
to these spaces that would result in a
many different spaces in conjunction employees will complete the work
hazard not addressed by these
with more specific information within a PRCS safely. The process of
alternative procedures, then the full
provided on the permits for individual preparing the permit, as well as the
permit program and the requirements of
spaces. This requirement will help permit itself, also can be useful to the
final § 1926.1204, including the annual
ensure that employers complete future controlling contractor and other
review, will apply.
PRCS entries in a similar manner if the employers working near the confined
entries were successful, or make Section 1926.1205—Permitting Process space because it provides a readily
changes to the permit program to Section 1205 sets forth the required accessible means of identifying the work
improve future entry operations if any process for establishing, suspending and performed and the provisions needed to
problems or concerns occurred (72 FR cancelling entry permits. This process is ensure worker safety. Making the
67381). important because it helps the employer information on the permit accessible to
One commenter was unsure whether determine if conditions in the permit employers and employees in and
OSHA based the 12-month review space are safe enough for entry, and it around the PRCS also allows them to
period on a calendar year or requires the involvement of the entry maintain an elevated awareness of the
cancellation of a permit (ID–075, p. 10). supervisor, thereby ensuring that a conditions within the PRCS, as well as
This 12-month period is a calendar year person with the qualifications needed to the equipment and procedures
because the purpose of final identify permit-space hazards, and the necessary for safe PRCS entry
§ 1926.1204(n) is to ensure that no more authority to order corrective measures operations.
than 12 months separates the date the for their control, will oversee entry One commenter noted that multiple
employer cancels or terminates a operations. The provisions in final employers may have employees working
confined-space entry and the date the § 1926.1205 are similar to the provisions in the same space, and was unsure
employer reviews its confined-space in the general industry confined spaces whether each employer must prepare an
entry operations for deficiencies. rule at § 1910.146(e); however, OSHA entry permit under final § 1926.1205(a)
OSHA’s experience with the general changed the title of the section from (ID–120, p. 4). When more than one
industry standard indicates that a ‘‘permit system’’ in the general industry employer is performing confined space
review, conducted once per calendar standard to ‘‘permitting process’’ in the entry, one permit will suffice, provided
year, is sufficient to achieve this final rule to minimize the possibility for the controlling contractor and entry
employers properly coordinate the entry were generated by the adhesives used to request for a per-shift permit limit when
operations of the multiple employers as join plastic pipe tubes in a room with promulgating the general industry final
required under §§ 1926.1203(h)(4) and inadequate ventilation (ID–010). Final rule (see 58 FR 4505, 4506 (Jan. 14,
1926.1204(k), and the permit identifies paragraph (c) includes one variation 1993)).
all of the hazards and safety measures from the language of the general Paragraph (e). Final § 1926.1205(e),
required for all of the work conducted industry standard. Under the general which corresponds to § 1910.146(e)(5),
in that space. industry standard a single posting can requires an employer to terminate entry
Paragraph (b). Final § 1926.1205(b), be sufficient to inform multiple and cancel the entry permit under two
which is identical to § 1910.146(e)(2), employees, but employers must still conditions: when the employer
requires the entry supervisor to sign the make sure that the permit is available to completes the entry operations covered
permit before entry begins. Although the each entrant, or the entrant’s by the permit (final § 1926.1205(e)(1),
employer remains ultimately liable for representative, prior to entry into the which is identical to § 1910.146(e)(5)(i)),
compliance with this standard, the entry permit space. For example, an employer or when there is a condition inside or
supervisor’s signature underscores to does not fully comply with the standard near the permit space that is not
the employer and the entry supervisor by posting the permit after one of its acceptable under the permit program
the importance of their determination employees has already entered the established for that space (final
that the PRCS entry operation meets the permit space. OSHA is including the § 1926.1205(e)(3), which is identical to
prerequisites for safe entry listed in the same requirement in this final rule, but § 1910.146(e)(5)(ii)). Requiring the entry
permit. OSHA believes that signing the is also taking the opportunity to provide supervisor to terminate the entry permit
form makes it more likely that the entry further clarification in this final rule under either of these conditions
supervisor and his or her employer will that the information must be made increases the likelihood that the
address the items listed on the form available to ‘‘each authorized entrant’’; employees will exit the space before
than if they do not have no to sign the the general industry standard is less new hazards emerge, and that
form. Moreover, the entry supervisors specific, referring to ‘‘all authorized employees will avoid hazards arising
may change during the course of the entrants.’’ In appropriate cases, if an from prohibited conditions within the
entry, so it is important to identify who employer fails to make this information PRCS. When an employer completes an
completed each evaluation in the event available as required, OSHA may issue entry without incident, the employer
that questions arise. separate citations with respect to each must cancel the permit by removing it
Paragraph (c). Final § 1926.1205(c), individual employee who enters a from the entry site. If the employer
which is identical in substance to confined space without having access to cancels the permit in response to new
§ 1910.146(e)(3), requires an employer this information. hazards or changes in the condition of
to make the completed entry permit Paragraph (d). Final § 1926.1205(d),
available to all authorized entrants, or the permit space, the employer must
which is identical to § 1910.146(e)(4),
their authorized representatives, at the record the reasons for the cancellation
prohibits employers from making the
time each employee enters the space. on the permit in accordance with
entry permit’s duration longer than the
One of the keys to protecting employees § 1926.1205(f).
time needed to complete the related
from PRCS hazards is for both work. Otherwise, the conditions inside In response to comments, OSHA also
employers and employees to know the the space are more likely to change and is adding an additional provision in
location of the PRCSs at the job site, the entrants could be unnecessarily exposed final § 1926.1205(e)(2) that is not in the
characteristics of the hazards, and their to the residual hazards of permit spaces. general industry standard, but would
associated dangers. The provisions in One commenter suggested that OSHA provide employers additional flexibility
this paragraph are designed to achieve limit the duration of the permit’s in certain situations identified by the
this goal. Once entrants are provided validity to one day or one shift to ensure commenters. Some commenters asserted
with this information, they will then be that someone inspects the confined that it is unnecessary to require
able to make their own judgments as to spaces that employees are entering to cancellation of the entry permit in every
the completeness of pre-entry discover changed conditions (ID–060, p. instance in which reevaluation is
preparations and point out any 4). OSHA does not agree that such a necessary, and that doing so was
deficiencies that they believe exist. fixed limit is warranted. This process unnecessarily burdensome (ID–107, p.
Employees will also be more likely to would be more burdensome because it 4; –116, p. 3). A commenter
bring new hazards to the attention of the would require cancellation of entry representing a client involved in sewer
supervisor if they are discovered while permits even when there is no change construction suggested that, in the event
working in the permit space if the in conditions or hazards. Final an unacceptable condition arises that
employees are aware of which hazards § 1926.1204(e)(2) requires an employer necessitates temporary evacuation and
have already been identified and which to monitor the conditions inside a reevaluation, but does not present a new
have not. Posting the permit for confined space to determine if they or increased hazard for employees
employees to see at the entry point can become unacceptable. Furthermore, working within the confined space,
also be useful when multiple employers final § 1926.1205(e)(2) requires an OSHA should allow employers to track
will be working in the same permit employer to cancel the entry permit if these events on the existing permit
space. an unacceptable condition arises. Taken rather than cancelling the entire permit
Sharing this information with together, these provisions provide a less and filling out a new permit. For
employee authorized representatives burdensome, more flexible, and even example, if there is a temporary loss of
may help bring the representative’s more direct method of achieving the power for five minutes such that the
expertise to bear in identifying same safety mechanisms as the entrants must exit the permit space
additional hazards not accounted for in commenter’s suggested approach. because the lighting conditions are
the permit process. One commenter Moreover, the less limited requirements inadequate, the employer would
described a situation where he, as an are consistent with the procedures normally reenter once the power returns
authorized employee representative, required under the general industry and the conditions inside the permit
was able to alert employees to confined spaces standard at § 1910.146. space are the same as they were for
additional atmospheric hazards that OSHA considered and rejected a similar initial entry.
OSHA agrees that cancelling the employer is able to identify the source but OSHA is not specifying a fixed
permit may be unnecessary when a of the fan failure (e.g., a burned-out distance because of the variety of
condition outside or inside the permit motor), replace the fan, and return the potential hazards and the disparate
space requires an evacuation, but the gas in the space to a concentration distances from which the hazards could
permit space returns soon after to the below the applicable PEL, and nothing impact the confined space. For example,
same acceptable conditions specified else has changed in the space, then the a small welding job may have no impact
under the permit. So long as the employer may permit its employees to on a properly controlled permit space
employer records on the permit the re-enter after conducting a full 15 feet away, but a demolition blast
event that required evacuation, the reassessment of the space and noting the could easily result in a significant
employer conducts a full reassessment reason for the fan failure on the permit. hazard for employees working in an
of the permit space that indicates Similarly, if the presence of a new gas underground permit space much farther
restoration of the acceptable permit is detected but the permit already away.
conditions before the employer permits anticipates that level of gas and includes One commenter suggested that
reentry, there are no new gases or a means of controlling that gas, the existing OSHA standards were already
physical elements introduced into the employer may control that gas in sufficient to protect employees from
space that are not addressed in the accordance with the existing permit hazards near the confined space, while
permit for that space, and there are no instead of cancelling that permit and another commenter asked whether
other significant changes to the space, creating an entirely new permit. operating gasoline-powered equipment
OSHA believes that the employer can However, if the employer is unable to near the permit space would constitute
satisfy the purposes of the permit identify the reason for the fan failure, or a hazard, and whether an employer
program without the additional burden that failure appears likely to occur again must cancel the entry permit for sewer
of cancelling and replacing the entire (e.g., flickering power source), or there work every time an automobile passed
permit. OSHA modified the text of the has been some additional change in the near the manhole to enter the sewer (see
final rule accordingly by adding final permit space (e.g., monitoring detects ID–131 and –098.1). The examples
§ 1926.1205(e)(2) to allow for the the presence of a new gas not accounted provided by the latter commenter
‘‘suspension’’ of the permit, as an for in the permit program, or demonstrate the need to address these
alternative cancellation of the permit, condensation has formed within the external hazards in the confined spaces
when these criteria are met. During space impeding entry or exit), then the standard: activities not necessarily
suspension, employers still must fulfill employer must cancel the permit and prohibited by any other standard and
all applicable duties of an entry develop a new permit that addresses that usually do not pose a hazard to
employer under the standard, such as those new conditions. employees when used in open spaces,
preventing unauthorized entrance. An The final rule, similar to the general such as operating gasoline-powered
employer may temporarily suspend a industry standard, requires employers to equipment, can result in hazards when
permit in one of two ways: by removing terminate the entry if there is an used in close proximity to a permit
it (leaving just the ‘‘Do Not Enter’’ sign unacceptable condition ‘‘in or near’’ the space. However, because operating
or its equivalent that must be posted permit space. Several commenters noted gasoline-powered equipment or
under § 1926.1203(b)(1) and remain that the proposed rule included automobiles near a permit space is not
there throughout the entry), or taking references to ‘‘near’’ in several different inherently hazardous to the entrants
other steps, such as covering the permit, provisions and requested clarification. working inside that space, the employer
to ensure that no one will mistakenly (See, e.g., ID–061.1; –095; –101.1; would not necessarily need to cancel
rely on the permit to enter the space. –106.1; –120.1; –121.1; –124.1; –125.1; the permit at each such occurrence.
Regardless of the method of suspension, –131; –135; –136; –152; –220.) Many of Instead, the employer must assess the
the employer must also record the these commenters, however, also urged hazards posed in each scenario. If the
reason for the suspension on the permit OSHA to promulgate a construction fumes from the gasoline-powered
(see § 1926.1205(f)). standard that tracked the language of the equipment are spewing into the
It would still be necessary, however, general industry standard. OSHA, confined space, then the employer
to cancel the permit and complete a new therefore, did not use ‘‘near’’ in this likely would need to remove the
one if there is any indication that the final rule except in § 1926.1205(e), entrants and reassess the acceptable
existing permit may not be adequate to which tracks the identical use of ‘‘near’’ conditions for work inside the space.
ensure the safety of the entrants. in the general industry standard. The Likewise, if the employer did not
Cancellation of the permit is also requests of numerous commenters anticipate that automobiles would be
necessary if the employer is unable to urging OSHA to follow the general driving near the entry to a permit space,
identify the cause of the change in industry standard, and the absence of and did not guard the entrance and
conditions that led to the evacuation, or record evidence suggesting that establish barriers to adequately protect
if a new substance has entered the employers have had difficulty employees working in the permit space,
permit space or has increased in amount complying with this general industry then the employer would need to
or concentration. For example, if there requirement, indicate that the use of this require the entrants to leave the space
is gas in a permit space in a term in this context is sufficiently clear in a safe manner and then reassess the
concentration held below safe levels by to employers engaged in permit-space permit program if automobile traffic
two ventilation fans located on the work. The purpose of this provision develops. If, however, the gasoline-
exterior of the permit space and remains the same in the construction powered equipment was operating at
operated in accordance with the context as in the general industry such a distance or in such a manner that
employer’s permit program, and one fan context: protection of employees it would not foreseeably result in a
stops functioning, all employees would working in confined spaces from potential hazard to the permit-entrants,
need to exit the space and the employer exposure to additional hazards or if the employer planned for
must suspend the permit until the space introduced into the permit space from automobile traffic near the space and
is returned to the allowable conditions outside. The use of ‘‘near’’ indicates a provided barriers and other appropriate
specified in the permit program. If the physical proximity to the permit space, protection, then the entry could
continue and the permit program would employee-exposure records required by The introductory language in final
remain in effect. Activities outside the 29 CFR 1910.1020(d) (Preservation of § 1926.1206 requires the employer to
permit space will only require entrants records) 23 (see note to proposed include, on the entry permit, all of the
to leave if they could foreseeably result § 1926.1219(b)). In some cases, entry information specified in § 1926.1206(a)
in a hazard not accounted for when the permits may constitute employee- through (p). Most of the information
employer developed the permit exposure records. (See definition of required on the permit is substantively
program. ‘‘employee exposure record’’ at 29 CFR identical to the general industry
Paragraph (f). Final § 1926.1205(f), 1910.1020(c)(5).) confined spaces requirements at
which is almost identical to One commenter suggested that OSHA § 1910.146(f). The exception is
§ 1910.146(e)(6), requires the entry incorporate the language in the general paragraph (e), which requires the
employer to ensure that the cancelled industry confined spaces directive, CPL employer to record the means of
entry permits are saved on file for at 02–00–100: Application of the Permit- detecting an increase in atmospheric
least a year after cancellation. In Required Confined Spaces (PRCS) hazard levels if a required ventilation
addition, § 1926.1205(f) requires Standard, 29 CFR 1910.146 (May 5, system stops working. OSHA included
employers to note any problems 1995), to provide additional explanation that requirement in the proposed rule
encountered during an entry operation, of what constitutes an ‘‘employee and, for the reasons explained below,
particularly those that trigger exposure record.’’ OSHA agrees that the OSHA concludes that it is important to
cancellation or suspension of a permit term has the same meaning in this final retain it in the final rule.
under § 1926.1205(e), on the pertinent rule as in the general industry standard, Proposed § 1926.1210(k) provided
permit. and that the guidance from CPL 02–00– that the employer must document, on
This provision differs slightly from 100 is equally applicable: ‘‘[R]esults the entry permit, all ‘‘determinations
§ 1910.146(e)(6) because it clarifies that which show the composition of an made’’ and ‘‘actions taken’’ during PRCS
‘‘every entry employer’’ must comply atmosphere to which an employee is procedures, as required by proposed
with these duties, whereas actually exposed (even if the employee rule § 1926.1214(a). Commenters
§ 1910.146(e)(6) refers generally to the is using a respirator) are exposure appeared to interpret this proposed
duties of ‘‘the employer.’’ OSHA made records under 29 CFR 1910.1020(c)(5).’’ provision as a broad and overly
this change in recognition that there This requirement to maintain burdensome requirement, which was
may be many different employers on a exposure records gives healthcare not OSHA’s purpose (see, e.g., ID–095,
construction worksite, and that each providers, in the event of an emergency, p. 4). In light of the concerns about the
entry employer has a responsibility to access to information about the proposed language, the Agency notes
ensure that the records are saved. In substances and exposure levels the that the final rule is not requiring
some cases, this may involve employee may have experienced while employers to include on the entry
coordination between different permit each determination or action
working within a confined space. This
employers. taken with respect to the permit entry.
information will enable healthcare
The purpose of this document However, employers still must make
retention requirement, and of the providers to administer medical care
effectively to injured employees. certain demonstrations about hazards,
requirement to note problems directly ventilation, monitoring, or equipment,
on the permit, is to facilitate the Section 1926.1206—Entry Permit and document other determinations, as
evaluation of the effectiveness of required by the final standard, and make
An employer conducting a permit-
protection provided to employees that information available to employees
space entry must post an entry permit
involved in PRCS entries during the (see, e.g., § 1926.1203(e)(1), (g)(2),
outside the permit space to document
annual review required under (g)(3)). Final § 1926.1206 is otherwise
the employer’s efforts to identify and
§ 1926.1204(n). The requirements of generally consistent with proposed
control conditions in that permit space
§ 1926.1205(f) help to ensure that § 1926.1214(a).
(see § 1926.1205(c)). The purpose of the
employees complete future PRCS entries Paragraph (a). Final § 1926.1206(a),
permit is to provide a concise summary
in a similar way if the previous entries which is identical to § 1910.146(f)(1),
of the permit-space entry requirements
were successful, or that employers requires the employer to identify the
for a particular entry that will be useful
improve future PRCS entries by permit space that workers are planning
to the personnel who are conducting the
resolving any problems or concerns to enter. This information will ensure
entry operations, to rescue personnel, to
discovered. that employees use the correct permit
One commenter asserted that the the controlling contractor, to other
for the permit space.
retention period should end upon employers working near the confined Paragraph (b). Final § 1926.1206(b),
completion of the project (ID–099, p. 4). space, and to any personnel who need which is identical to § 1910.146(f)(2),
OSHA disagrees with this commenter to review the conduct of entry requires the employer to record the
because the lack of document retention operations after the employer terminates purpose of the entry. As the Agency
would significantly affect the the operations. Making the information noted in the proposed rule, this
employer’s ability to complete its on this document accessible to information must be sufficiently
required annual review. OSHA set this employers and employees affected by specific, such as identifying specific
minimum retention period at one year the hazards in and around the permit tasks or jobs employees are to perform
to ensure that the documents still would space also allows them to maintain an within the space, to confirm that the
be available when employers conduct elevated awareness of the conditions employer considered performance of
the required 12-month review specified within the permit space, as well as each specific construction activity in the
by final § 1926.1204(n). knowledge of the equipment and hazard assessment of the PRCS. (See
As the Agency noted in the proposed procedures necessary for safe permit- proposed § 1926.1214(a)(1)(ii).) An entry
rule, these document-retention space entry operations. employer’s failure to evaluate
requirements are in addition to the 23 The note in 29 CFR 1926.33 makes the
construction activities performed within
document-retention requirements provisions of 29 CFR 1910.1020 (Access to
the PRCS for their effect on the
required by other OSHA standards, such employee exposure and medical records) applicable conditions within the space could result
as the 30-year retention period for to construction operations. in serious injury or death to employees.
It would be sufficient, for example, to accurately account for the number of requirement, the employer could waste
state the purpose of entry as employees inside the PRCS at all times, valuable time finding the attendant
‘‘replacement of communications cable would not meet the requirements of this responsible for protecting authorized
in sewer line,’’ or ‘‘welding upgraded paragraph. Merely maintaining a list of entrants during an emergency.
component inside steel tank,’’ but it authorized entrants, who may or may Paragraph (g). Final § 1926.1206(g),
would not be sufficient to state only not be at the job site or inside the PRCS, which is nearly identical to
‘‘communications work in sewer line’’ would not help the employer determine § 1910.146(f)(6), requires the employer
or ‘‘upgrade to tank.’’ how many authorized entrants are left to record the name of each employee
Paragraph (c). Final § 1926.1206(c), inside the PRCS should an evacuation currently serving as entry supervisor.
which is identical to § 1910.146(f)(3), be necessary. Likewise, a tracking The same reasons for requiring the
requires the employer to record the date system that only accounts for the names of the attendants apply for
and authorized duration of the planned number of authorized entrants inside requiring the name of the entry
entry. The ‘‘date’’ refers to the day on the PRCS, without providing their supervisor here: it provides an assured
which authorized entrants are permitted names or other identifiers, also is not means of distinguishing these important
to enter the PRCS. The duration of the acceptable; knowing the name or other individuals quickly and easily so that
permit may not exceed the time identifier of each entrant makes it easier employees may alert them of a
required to complete the specified tasks for the rescuers to determine where the developing hazard, and it provides the
or jobs, including the time necessary to entrant is assigned to work in the PRCS, opportunity for these individuals to
set up and dismantle any tools or and thereby determine the entrant’s review the permit and entry conditions
equipment required to perform the tasks probable location. to ensure that entry conditions remain
or jobs (see § 1926.1205(d)). The Paragraph (e). When a permit program safe. The general industry standard
employer need not list duration in terms requires ventilation, OSHA requires requires a space for each entry
of time, but instead may describe it in employers to ensure that they have a supervisor’s name, which implies that
terms of the completion of tasks monitoring system in place that will the entry supervisor names will be filled
identified in the permit. For instance, alert employees of increased in, but in this final rule OSHA is
the employer could describe the atmospheric hazards in the event the modifying paragraph (g) to make that
duration as ‘‘welding and repair of ventilation system fails (see requirement explicit: The employer
water main’’ or ‘‘upgrading equipment § 1926.1204(c)(5)). Final § 1926.1206(e) must ensure that the name of each entry
in an electrical vault.’’ One purpose of requires the employer to record the supervisor is entered into that space. As
this provision is to ensure that means of detecting an increase in with the changes to the attendants, the
employees engaged in PRCS operations atmospheric-hazard levels if the employer must ensure that the current
are informed of the period during which ventilation system stops working. It is supervisor is identified as such when
conditions in the PRCS must meet important for employers to provide this one supervisor replaces another.
acceptable entry conditions as specified information on the entry permit so that Paragraph (h). Final § 1926.1206(h),
in the entry permit. A second purpose any new employees can easily access which is identical to § 1910.146(f)(7)
is to place some reasonable limit on the this information and respond and corresponds to proposed
duration of the permit, because a permit appropriately and as quickly as possible § 1926.1214(a)(2)(i)(A), requires the
of unlimited duration is not likely to to ensure the continued safety of employer to record the hazards
account for changed PRCS conditions. entrants. For example, if the original associated with the planned confined
Paragraph (d). Final § 1926.1206(d), entry supervisor is replaced by a new space entry operations. This list must
which is identical to § 1910.146(f)(4), entry supervisor halfway through entry include all hazards, regardless of
requires the employer to record the operations, the new entry supervisor whether the employer protects the
identity of the authorized entrants so can refer to the entry permit for this authorized entrants from the hazards by
that the attendant is capable of safely information. isolation, control, or personal protective
overseeing the entry operations. Paragraph (f). Final § 1926.1206(f), equipment. Providing this list will make
Employers can meet this requirement by which is substantively the same as it clear which hazards the employer
referring in the entry permit to a system § 1910.146(f)(5), requires the employer already identified so that the entrants
such as a roster or tracking system used to record the names of each attendant. can confirm that they received training
to keep track of who is currently in the Final § 1926.1206(f) differs from to work around such hazards, and will
PRCS. The availability of this § 1910.146(f)(5) only in that it clarifies know to bring any other developing
information would enable the attendant, that the name of ‘‘each person,’’ rather hazard to the attention of the entrance
entry supervisor, or rescue service to than ‘‘the person,’’ must be recorded on supervisor immediately.
quickly and accurately account for the entry permit. There is often more Paragraph (i). Final § 1926.1206(i),
entrants who might still be in the PRCS than one attendant during the course of which is identical to § 1910.146(f)(8)
when an emergency occurs. A second entry operations, so this requirement and corresponds to proposed
purpose is to provide assurance that all would facilitate identifying attendants § 1926.1214(a)(2)(i)(B), requires the
authorized entrants have exited the quickly and easily, thereby expediting employer to record the procedures used
PRCS at the end of entry operations. A communications with them, which is to isolate or control the hazards prior to
third purpose would be to assist the necessary for the performance of safe entry. This information must be
attendant and entry supervisor in PRCS entry operations, and for the consistent with the requirements
preventing unauthorized personnel from performance of specified duties during specified in final § 1926.1204(c), and
entering the space. emergency situations. When a new must include the methods used to
It is extremely important for the attendant replaces the previous one, the isolate or control the hazards, the type
employer to confirm that all authorized employer must make it clear on the of personal protective equipment
entrants have exited the PRCS during an permit which attendant is on duty, such provided, the methods used to monitor
evacuation. Therefore, a tracking system as by crossing out the previous each hazard (including the use of early-
that lists the names of the employees attendant’s name, so that there is no warning systems, if required by final
who the employer designates as confusion about the identity of the § 1926.1204(e), and how frequently each
authorized entrants, but does not current attendant Without this hazard is to be monitored). Note that
under final § 1926.1204(e), employers of final § 1926.1204. As explained in the of test results on the permit also
must use continuous monitoring of proposed rule, and above in the facilitates the review of canceled
atmospheric hazards unless the discussion of final § 1926.1204(c)(5), permits required under paragraph
employer demonstrates that periodic some permit spaces may require (d)(14). If testing indicates that levels of
monitoring is sufficient. The permit ventilation to control the atmospheric hazardous substances are increasing, the
need only refer to the procedures used hazards at levels that are below the increased hazard will be easy to
to meet the requirements of this levels at which they are harmful to recognize through a review of the
paragraph in sufficient detail to enable entrants so that entrants will have time recorded test results on the canceled
employees to determine what measures to exit the PRCS safely (72 FR 67365). permit.
they must take, and how to perform In these spaces, the employer will be Listing the names of those who
those measures. responsible for identifying that level performed the testing identifies a point
One commenter urged OSHA to and monitoring the permit-space of contact to which entry supervisors
require employers to identify the atmosphere to detect any increase of the and attendants can direct questions they
name(s) of the person(s) who performed potentially hazardous substance. The may have regarding the results and
all of the hazard-isolation or control Agency’s requirement that the employer procedures. The date and time (or, for
procedures listed on the permit include these determinations on the continuous monitoring, a time period)
pursuant to § 1926.1206(i), such as the permit informs employees (for example, would provide a basis for detecting
person(s) who operated a ventilation entry supervisors, attendants, and dangerous trends in atmospheric
machine to control an atmosphere (ID– authorized entrants) about the time conditions that may indicate that more
0625, p. 4). OSHA notes that employers required for the entrants to evacuate the frequent observation of the atmospheric
must already include the names or PRCS should the ventilation system fail, data is necessary.
initials of the person performing and allows authorized entrants, The single difference between the
monitoring under final § 1926.1206(k). attendants, and entry supervisors to final rule and § 1910.146(f)(10) is that
To the extent that the commenter respond quickly to any deviations in the general industry provision requires
intended to ensure the accuracy of the these conditions, including ventilation- documentation of ‘‘initial and periodic
tests and measurements associated with system failure. testing,’’ whereas final paragraph (k) of
the isolation or control procedures, OSHA notes, as it did in the this final standard requires
OSHA notes that the entry supervisor explanation of this provision in the documentation of the results of all
must already verify the accuracy of this general industry standard, that there is ‘‘tests’’ and ‘‘monitoring.’’ OSHA made
information (§ 1926.1210(b)). Therefore, likely to be overlap between this these changes to address a significant
OSHA concludes that, in the absence of requirement to list the acceptable entry difference between this final rule and
additional evidence to indicate that conditions and the separate requirement § 1910.146: This final rule generally
these records would provide a in § 1926.1206(i) to identify the hazard- requires continuous monitoring,
discernible safety benefit, the additional control or elimination measures that the whereas § 1910.146 only requires
records suggested by the commenter are employer must also list on the permit periodic testing. For further explanation
not necessary. (58 FR 4509 (Jan. 14, 1993)). The of this change, see the discussion to
Paragraph (j). Final § 1926.1206(j), Agency anticipates that employers may final § 1926.1204(e).
which is identical to § 1910.146(f)(9), elect to combine these two elements Consistent with data collection from
requires the employer to specify the when filling out the permit, and such an continuous monitoring under
acceptable entry conditions. The list of approach is permissible so long as the § 1910.146, the continuous monitoring
acceptable entry conditions includes employer includes all of the relevant values recorded on the entry permit are
energy control considerations and information in some form that the ‘‘real time’’ concentrations. See
conditions such as the permissible authorized entrant, attendant, or entry December 10, 1996, letter to Michael
levels allowed for oxygen, flammable supervisor can identify quickly. Coleman, available at www.osha.gov.
gases and vapors, other hazardous Paragraph (k). Final § 1926.1206(k), Although the final standard does not
substances during PRCS entry. which is nearly identical to specify the frequency with which the
Additional information regarding PRCS § 1910.146(f)(10), requires the employer employer must record continuous
conditions includes, for example, the to record the dates, times, and results of monitoring measurements, from a
methods used to maintain a water the tests and monitoring performed, and compliance perspective, the quantity of
hazard at safe levels. Another example the names or initials of the individuals data entered on the permit must
included in the NPRM is when an who performed each test. Entering the indicate the number of times the entry
employer decides to use PPE to protect testing and monitoring results in the supervisor or other entrant examined
employees from an atmospheric hazard, permit enables the entry supervisor, the monitoring data. These
the acceptable conditions must include, attendants, and authorized entrants to measurements must be recorded with
at a minimum, the type of PPE the determine readily whether acceptable sufficient frequency to demonstrate that
employees will use (such as type of entry conditions exist with regard to the permit space was monitored such
respirator), and the levels at which the atmospheric hazards in the PRCS. The that the employee could identify a
PPE would protect the employees from employer also could use this change in atmosphere or other potential
the atmospheric hazard. OSHA requires information to identify atmospheric hazard in time to allow entrants to exit
the employer to list the acceptable conditions within the PRCS that need to the permit space safely (See also
conditions on the permit so that the be monitored frequently because discussion of § 1926.1203(e)(2) and
authorized entrants, attendants, and atmospheric conditions tend to rise 1926.1204(e)(2).) For continuous
entry supervisors have this information rapidly to hazardous levels. For monitors with alarms, employers must
on hand at the worksite, thereby example, if the oxygen concentration is record each time the alarm is triggered.
ensuring safe entry operations. 19.6 percent, the attendant and entrants Employers also must include the initial
This provision also requires should be alert for signs of oxygen entry-monitoring results on the entry
employers, when applicable, to provide deficiency, such as increased breathing permit for the reasons explained above;
the ventilation-malfunction rate, dizziness, rapid heartbeat, and these results also would serve as a
determinations made in paragraph (c)(5) headache. Furthermore, documentation baseline for subsequent measurements.
See December 10, 1996, letter to Paragraph (o). Final § 1926.1206(o), provisions of the general industry
Michael Coleman, available at which is substantively identical to confined spaces standard at
www.osha.gov. § 1910.146(f)(14), requires the employer § 1910.146(g), OSHA placed the training
Paragraph (l). Final § 1926.1206(l), to record any additional information requirements together in one section.
which is identical to § 1910.146(f)(11), needed to ensure safe confined space Paragraph (a). Final § 1926.1207(a)
requires the employer to identify the entry operations. OSHA amended the sets forth the requirement, also found in
rescue and emergency services required language in § 1910.146(f)(14) slightly for § 1910.146(g)(1), that employers must
by this final rule, and the means by clarity and conciseness. As OSHA train each employee who performs work
which these services will be summoned explained in the preamble to the general regulated by this standard. OSHA
when needed. Identification of these industry standard, this provision is modified this provision from
services and the means for summoning necessary for employee protection due § 1910.146(g)(1) to include some
them enables attendants to summon the to ‘‘the wide-ranging types of hazards language from the proposed rule and to
appropriate service immediately in case found in permit-required confined clarify two aspects of this requirement:
of emergency. In some cases, an spaces, there are many hazards that (1) The employer must train each
employer must include pertinent cannot be adequately addressed with employee; and (2) the employer must
information, such as communication any precision in a generic permit space provide training at no cost to the
equipment and emergency telephone standard’’ (58 FR 4510 (Jan. 14, 1993)). employee. Final § 1926.1207(a)(1) refers
numbers, on the permit to sufficiently Examples of the information required by to ‘‘each employee’’ rather than ‘‘all
identify the means by which the rescue paragraph (o) may include: Problems employees’’ to emphasize that an
or emergency services will be encountered in the PRCS; problems that employer’s responsibility in this area
summoned. The inclusion of this an attendant, entry supervisor, or flows separately to each employee. The
specific information would allow authorized entrant believes may be provision of training at no cost is
attendants to avoid errors and delays in relevant to the safety of the entrants implicit in the general industry
contacting the rescue service. working in the space; or any other standard, and is consistent with OSHA’s
Paragraph (m). Final § 1926.1206(m), information that may be relevant to longstanding policy regarding employer
which is identical to § 1910.146(f)(12), employee safety under these conditions. responsibility for training. See, e.g., 29
requires the employer to record all of Paragraph (p). Final § 1926.1206(p), CFR 1926.1430(g)(3) (training under the
the methods of communication used which is identical to § 1910.146(f)(15), Cranes & Derricks in Construction
between authorized entrants and requires the employer to record standard), § 1910.1001(j)(7)(iv) (asbestos
attendants during entry operations. information about any other permits, awareness training for employees who
OSHA notes that establishing a routine such as for hot work, issued for work perform housekeeping operation in an
for maintaining contact between inside the confined space. If the area that contains asbestos), and June
attendants and authorized entrants employer identifies additional permits, 25, 1991, Memorandum to Regional
would help attendants detect problems these additional permits may be, but are Administrators, # 20315 (training under
within the PRCS. OSHA anticipates that not required to be, attached to the entry the HAZWOPER standard, 1910.120),
the method of communication chosen permit to provide information about the available at www.osha.gov.
may vary according to the activity covered by the permit to Paragraph (a) of the final rule also
circumstances of the particular employees involved in the entry requires employers to provide training
workplace; however, the methods operations so they can take appropriate so that employees who perform work
chosen must enable the attendants and precautions. regulated by part 1926, subpart AA,
the entrants to maintain effective and acquire the understanding, knowledge,
continuous contact. OSHA notes that, Section 1926.1207—Training and skills necessary for the safe
while such communication will Final § 1926.1207 requires employers performance of the duties assigned
normally be achieved through speech, to train each employee who performs under that section, including the safe
other methods, such as tapping on a work regulated by this standard, and operation of equipment and the proper
wall, may be acceptable as long as it specifies the requirements of that use of PPE. Sections 1926.1208,
achieves effective and continuous training. The provisions in final 1926.1209, 1926.1210, and 1926.1211 of
contact. See July 30, 1993, letter to Julie § 1926.1207 are substantively similar to this final rule specify in detail the
Emmerich, available at www.osha.gov. the provisions in the general industry duties of authorized entrants,
Paragraph (n). Final § 1926.1206(n), confined spaces rule at § 1910.146(g). attendants, entry supervisors, and
which is identical to § 1910.146(f)(13), The substance of the training provisions rescue service personnel. Paragraph (a)
requires the employer to record the in the proposed rule was similar to, but requires the training to impart the
equipment it provides in accordance organized differently than, the training understanding, knowledge, and skills
with the requirements of this final rule. provisions in the general industry rule. necessary for the safe performance of
This equipment would typically The final rule includes a few provisions the duties assigned under those
include, for example, personal from the proposed rule to provide sections. OSHA believes that the
protective equipment, testing clarity and to ease documentation, as training employers provide employees
equipment, communications equipment explained below, but follows the under this provision will enable the
(including equipment needed to assess language and organization of the general employees to understand their duties
entrants’ status in the space), alarm industry standard. Proposed under this standard, as well as the
systems, rescue equipment, and other §§ 1926.1208, 1926.1213, 1926.1216, hazards posed by permit spaces, and to
equipment that the employer would and 1926.1217 separated the training properly use equipment and PPE in a
provide to ensure compliance with requirements based on the type of PRCS. Therefore, this training will
paragraph (d)(4) of final § 1926.1204 confined space involved. One enable employees to safely perform their
(personal protective equipment) or any commenter asserted that, in general, the requisite PRCS duties.
other part of the standard. This training requirements were too scattered In this paragraph, the Agency is
requirement provides employees with a throughout the proposed rule (ID–099, requiring the employer to provide
ready reference to the equipment p. 4). By organizing the training whatever training is necessary to
required for safe entry operations. provisions according to the training achieve the goal of safe performance of
an employee’s duties. The performance the training required by final paragraph training required by final § 1926.1207(a)
language used in paragraph (a) will (a) remains crucial to overcome the at the appropriate times, that is, prior to
allow the employer to develop and inclination of many employees to exposure to confined space hazards.
implement the most effective confined attempt to rescue a trapped colleague. If Final § 1926.1207(b)(2), which is
space training program to meet the employees do not fully appreciate the identical to § 1910.146(g)(2)(i), requires
needs of the specific workplace. By dangers involved, their actions might employers to initially train their
requiring training of employees in also pose a danger to those employees employees before assigning them to
§ 1926.1207, and by specifying what designated to provide rescue. perform duties under this standard.
those duties are in the relevant sections, Finally, some commenters asserted Accordingly, the employer must ensure
the final rule sets forth requirements that the training requirements in this that specified employees (that is, entry
regarding whom employers train, as final rule should require employers to supervisors, attendants, authorized
well as the content of the training. train entrants on the use of gas, propane, entrants, and rescue-service employees)
This paragraph also incorporates a and diesel-powered equipment and receive the training required by final
requirement found in proposed chemical-cartridge respirators (ID–025, § 1926.1207(a) prior to performing
§ 1926.1209(d)(1), which specifies that p. 3; ID–095, p. 3). Final § 1926.1207(a) assigned PRCS duties. This requirement
the training must result in an requires employers to ensure that ensures that employers train these
understanding of the hazards in the employees acquire the knowledge and specified employees regarding PRCS
permit space(s), and the method(s) used skill to safely perform their duties, hazards before the employer exposes
to isolate, control, or in other ways which includes training employees on authorized entrants to these hazards.
protect employees from the hazards. For how to use all equipment used in the Final § 1926.1207(b)(3) and (b)(4) are
example, if an authorized entrant enters PRCS. substantively identical to the general
the space to isolate an identified hazard Paragraph (b). Final § 1926.1207(b), industry standard at § 1910.146(g)(2)(ii)
or to set up ventilation to control an which is substantively similar to and (g)(2)(iii). They address the issue of
atmospheric hazard, the employer must § 1910.146(g)(2), requires the employer refresher training. Final paragraph (b)(3)
train the employee not only in to provide training to each employee requires training before there is a change
accordance with the PRCS entry covered by this standard, as specified by in assigned duties. Such changes could
requirements, but also to perform the paragraphs (b)(1)–(b)(5). One commenter be the result of new equipment or
tasks necessary to isolate and control requested that OSHA clarify that the techniques introduced into the entry
the specific hazards in accordance with employer must provide this training in operations, promotions, or simple
other appropriate OSHA requirements a language understood by the employee reassignments. If an employee
applicable to construction. The (ID–140, p. 5). OSHA designed the previously received training in the new
employer also must train each employee training requirements in final duties and the employer ensures that
who enters the space thereafter to § 1926.1207 to ensure that employees the employee is still familiar with the
understand how the employer isolated performing work regulated by this final previous training, then the employer
or controlled any hazards in the space. rule understand the hazards so that they need not conduct additional training
OSHA believes that the training can take necessary precautions to under this paragraph, provided the
employees receive under this provision perform their work safely. Therefore, the employer has no evidence that there are
will enable them to associate the signs, employer must provide this training in inadequacies in the employee’s
symptoms, and characteristic effects a language the employee understands, knowledge or use of the relevant permit-
(discussed elsewhere in this preamble) and ensure that the employee space procedures. If there is evidence
to the failure of methods to control or comprehends the training, to achieve that such inadequacies exist, the
isolate the hazards, and to alert them so the purpose of the training employer must retrain the employee
that do not inadvertently disturb the requirements. Final § 1926.1207(b)(1) under final paragraph (b)(5).
isolation or control mechanisms. incorporates the requirement that Paragraph (b)(4) similarly requires
Therefore, this training will enable training be in both a language and retraining if there is a change in permit-
employees to safely perform their duties vocabulary that the employee space entry operations that presents a
while working in the PRCS, and to understands, which is consistent with hazard for which an employee did not
respond appropriately if the hazard- OSHA’s policy for all OSHA training previously receive training. This
protection methods fail. requirements. See April 28, 2010, OSHA paragraph changes the phrase ‘‘permit
Additionally, final § 1926.1207(a) Training Standards Policy Statement, space operations,’’ from the general
includes the requirement, found in available at www.osha.gov. OSHA views industry standard at
proposed § 1926.1209(d)(2), that, for this policy as applicable to all training § 1910.146(g)(2)(iii), to ‘‘permit space
employees not specifically authorized to requirements in all OSHA standards, entry operations’’ for the reasons
perform entry rescue, their training but is adding the language in this explained in the introduction to the
must result in an understanding of the standard for clarity. discussion of final § 1926.1204. One
dangers of attempting entry rescue. This Final § 1926.1207(b)(2)–(b)(4) require commenter was unsure whether minor
aspect of the training need not be that the employer provide training revisions of procedures, such as an
extensive, as its purpose is to prevent before assigning the employee duties increase in the use of mechanical
exposure to permit-space hazards by covered by this final standard, when ventilation, would trigger the training
simply keeping all employees who are there is any change in duties, and requirements of final § 1926.1207(b)(3)
not authorized to perform entry rescue whenever there is a change in permit (ID–099, p. 3). The relative significance
out of such spaces. OSHA prohibits conditions that present a hazard for of the change in procedures does not
such entry precisely because it is likely which the employee did not previously determine the need for additional
to increase the risks of further injury to receive training. These requirements are training; employers must ensure that
both the would-be rescuer and the substantively identical to employees can perform their duties
employee requiring rescue. In final § 1910.146(g)(2)(i)–(g)(2)(iii). OSHA safely, so any change in PRCS entry
§ 1926.1204(a) and (i), the Agency also believes the requirements in final procedures for which an employee did
requires entry employers to take action § 1926.1207(b)(2)–(b)(3) are necessary to not receive previous training would
to prevent all unauthorized entry, but ensure that employers provide the necessitate training under this final rule
to the extent it requires new knowledge Paragraph (c). Final § 1926.1207(c), employees on construction sites is
or skill by the employee. which is identical to the general higher than in many other industries,
Final § 1926.1207(b)(5) provides that industry standard at § 1910.146(g)(3), and that employees also are likely to
an employer must retrain an employee requires an employer to establish that work at several different worksites
whenever the employer has any the employee is capable of performing based on the type of work required. For
evidence that the employee has deviated his or her confined space duties example, an employer could designate
from PRCS entry procedures or proficiently, and to provide any an employee to be an authorized entrant
inadequacies in the employee’s supplemental training needed to make in several different confined spaces at
knowledge or use of these procedures. the employee proficient. This provision the same worksite, which may require
This provision is substantively identical ensures that employees will not enter a the employee to perform different
to the general industry standard at PRCS without being able to apply the assigned tasks under various planned
§ 1910.146(g)(2)(iv), but this final knowledge and procedures addressed in conditions. In this situation, the
provision clarifies that retraining must their training. In other words, the documentation must be readily
occur when there is evidence of employer must determine that, for each accessible to determine whether the
deviation, a change from the phrase employee, the training is effective and employee received the training
‘‘reason to believe’’ in the general resulted in the employee being capable necessary to perform the various tasks
industry standard. OSHA believes the of performing the required duties
term ‘‘evidence’’ will be clearer than the under the planned conditions.
proficiently.
general industry language for both Some commenters were unsure how Compliance with this provision will
employers and OSHA inspectors. By an employer can demonstrate that an help ensure safe conditions within the
making this revision, OSHA does not employee is proficient under final PRCS by providing employers, and
intend to make a substantive difference § 1926.1207(c) (ID–106, p. 2; –120, p. 3; OSHA, with an administrative tool that
in the types of employee actions or –152, p. 3). Final § 1926.1207(c) is a they can use to confirm which
other factors that would trigger the performance-oriented measure that employees will be able to perform the
retraining requirement. Evidence of a provides employers with flexibility by duties required by this standard. Section
need for retraining may come from a not requiring a particular way to 1926.1207(d) requires, as the general
variety of sources, such as an demonstrate proficiency. industry standard does, that these
employee’s actions during, or prior to, Administration of a test or practical training records must be available for
an entry, statements made that indicate examination are some examples of how inspection by employees and their
a lack of understanding of permit-space an employer may demonstrate an authorized representatives. Permit-space
entry procedures, reports of other employee’s proficiency. employees rely on their fellow
employees or third parties, or from other Paragraph (d). Final § 1926.1207(d), employees for safe entry operations, and
incidents. which is substantively similar to the this provision provides that the training
One commenter asserted that general industry standard at records that document employees’
requiring retraining after every § 1910.146(g)(4), requires an employer training status be available to those
deviation is overly burdensome. (ID– to ‘‘maintain training records,’’ as employees and their representatives.
120, p. 3.) This commenter suggested opposed to the requirement in This requirement can be especially
that OSHA require the employer to § 1910.146(g)(4) that employers important in the construction industry
establish a better line of communication ‘‘certify’’ training. This final paragraph due to the high level of employee
and coordination when the deviation is also requires employers to document the turnover and multiple employers
not too severe. However, the commenter names of employees trained, the present at construction sites, including
did not suggest a means of identifying trainer’s name, and the dates of the different employers who conduct
the severity of a deviation. In light of the training performed, and to make these simultaneous entry where one
hazards associated with confined records available for inspection by employer’s lack of training for its
spaces, and the procedures employees and their authorized employees could jeopardize the fully
implemented to address those hazards, representatives. Final § 1926.1207(d) trained employees of a different
the failure of even one employee to differs from the general industry employer. Consequently, making these
follow the correct procedure can standard in that it provides more records available for inspection by
adversely affect the safety of others. flexibility in the documentation of employees and their representatives
OSHA, therefore, concludes that it is training, and it requires the retention of provides an additional level review to
necessary to retrain any employee who this documentation. ensure that the employees received the
deviates from the approved entry The training-documentation provision proper training and are ready to engage
procedures. This retraining must in final paragraph (d) requires only the
in safe entry operations.
provide the employee with the name of the trainer, not the trainer’s
knowledge and skills necessary for safe signature or initials as required in the One commenter was unsure whether
performance of his or her confined general industry standard. Proposed the final standard would require an
space duties in accordance with final § 1926.1209(d)(5) contained these more employer to maintain the name of the
§ 1926.1207(a), although the employer flexible requirements, and OSHA person that provides general confined
may restrict retraining to the limited retained them in the final rule. This space training as well as ‘‘for the
aspect of the employee’s overall documentation can take any form that specifics of this PCRS.’’ (ID–098, p. 2).
responsibility on which the employee reasonably demonstrates the employee’s OSHA is uncertain of what training the
made the deviation. For example, if completion of the training. Examples commenter is referring to. To the extent
employee failed to use a piece of include a record of test scores, a that the commenter was referring to
equipment properly, the retraining photocopied card certifying completion training required by this final rule, final
could focus on the proper use of that of a class, or any other reasonable § 1926.1207(d) requires the employer to
equipment, and need not focus on areas means. The employer may store these record the name of the person who
unrelated to the deviation, such as the records electronically so long as they are conducted the training. To the extent
hazards associated with the atmosphere readily accessible upon request. OSHA the commenter was referring to training
in the space. recognizes that the turnover rate for required by a different rule, the
comment is not applicable to this and requires retention only until the comments specifically addressing that
rulemaking. employee ceases to work for the provision of the proposed rule.
As in this final rule, proposed employer. Paragraph (a). Final § 1926.1208(a),
§ 1926.1219(c) required that employers Another commenter asserted that final which is substantively identical to the
retain these training records for the time § 1926.1207(d) should require general industry standard at
the employee remains employed by employers to keep these training records § 1910.146(h)(1), requires an employer
them. The general industry confined on site (ID–031, p. 1). OSHA finds that to ensure that an authorized entrant is
spaces standard at § 1910.146(g)(4) does such a requirement would be an familiar with and understands the
not specify how long an employer must unnecessary burden on employers. The potential hazards associated with each
retain the documentation. These purpose of the final requirement is to particular confined space entry,
training records are a valuable resource ensure that employers can document including the mode, signs or symptoms,
for tracking whether an employee their employees’ training in case an and the consequences of exposure to
received the necessary training. If these issue arises with respect to the training these hazards. The final rule uses
records are to serve as a tool to confirm (e.g., whether the employee received ‘‘familiar with and understands,’’ rather
employee training, the records must be training, whether the training was than the ‘‘knows’’ used in the general
available during the period the adequate). Though the training records industry standard, to emphasize the
employee is working for the employer. need to be readily available, it is not employee comprehension required by
Once the employee ceases to work for necessary for the employer to have the rule. This knowledge and
the employer, there is no longer a immediate access to these records at the understanding affords authorized
significant benefit in tracking this site. Requiring the employer to maintain entrants with the information they need
information. Therefore, OSHA is the records and make them readily to protect themselves from these
keeping in the final rule the proposed accessible for inspection, even offsite hazards, including recognition of the
requirement that an employer must and/or in electronic form, is sufficient to effects of these hazards should exposure
retain training documentation until the accomplish the purpose of the occur.
employee ceases to work for the provision. Paragraph (b). Final § 1926.1208(b),
employer. which is substantively identical to the
One commenter had several concerns Section 1926.1208—Duties of general industry standard at
about the retention of training records. Authorized Entrants § 1910.146(h)(2), requires an employer
First, the commenter asserted that this An authorized entrant is an employee to ensure that an authorized entrant
retention requirement is an unnecessary authorized by an entry supervisor to uses required equipment properly.
burden on employers (ID–099, p. 4). enter a permit space. As the Agency OSHA believes that proper use of such
OSHA’s experience under the noted in the preamble to the general equipment is essential for working
documentation requirements of other industry standard, ‘‘[T]his is the person safely inside a PRCS and preventing any
standards indicates that employers who faces the greatest risk of death or rescue operation from harming the
typically use existing training records to injury from exposure to the hazards incapacitated authorized entrant. Many
meet these documentation requirements contained within the space’’ (58 FR employers can meet this requirement
and, as explained above, final 4515 (Jan. 14, 1993)). Because of the through implementation of safe work
§ 1926.1207(d) allows significant dangers associated with confined space practices, training, and effective
flexibility in the form of the records and work, employers must prepare the enforcement of those practices.
how an employer must store them. Next, entrants properly to perform duties so as Paragraph (c). Final § 1926.1208(c),
the commenter was unsure whether to assure their own safety and the safety which is substantively identical to the
final § 1926.1207(d) requires an of their fellow entrants. The employer general industry standard at
employer to maintain training records accomplishes this purpose by means of § 1910.146(h)(3), requires an employer
when the employer lays off an employee training, communication of effective to ensure that an authorized entrant
and then rehires him or her (id). In the work rules, and internal administration. communicates effectively with the
event an employee ceases to work for Final § 1926.1208 is nearly identical attendant to facilitate the attendant’s
the employer, final § 1926.1207(d) does to the general industry requirements in adequate assessment of the entrant’s
not necessarily require the employer to § 1910.146(h), except for minor editorial status and timely evacuation (see also
continue to maintain or store the revisions and a revision in the the discussion attendant-entrant
training records; however, there is an introductory text to improve clarity. The communications in the explanation of
incentive for the employer to retain introductory language in § 1910.146(h), § 1926.1206(m)). The authorized
these records if there is a possibility that which sets out requirements for entrant’s communication with the
the employer might re-hire the authorized entrants, refers generally to attendant provides the attendant with
employee, as in the example offered by the duties of ‘‘the employer.’’ OSHA information regarding any problems the
the commenter. The standard does changed the introductory language to entrant is having, which the attendant
require the employer to maintain a set refer to ‘‘the entry employer’’ to clarify can use to determine whether there is a
of training records for all employees how this rule applies on multi-employer need to evacuate the PRCS.
performing confined space work, worksites. This is a non-substantive Paragraph (d). Final § 1926.1208(d),
regardless of when the employer hired change, however, because the which is similar to the general industry
the employee, so if the employee is provisions in § 1926.1208 apply to each standard at § 1910.146(h)(4), requires an
rehired the employer would be required employer establishing the permit employer to ensure that an authorized
to produce that employee’s training program for a permit space or allowing entrant alerts the attendant whenever
records or retrain the employee. This its employees to enter under another one of the following circumstances
commenter also asserted that employers employer’s program. arises: (1) There is a warning sign or
should be free to establish their own The authorized entrant duties also are symptom of exposure to a dangerous
policy for retaining training records (id). substantively the same as the duties situation; or (2) the entrant recognizes a
Final § 1926.1207(d) leaves the specified by proposed § 1926.1211(g), prohibited condition. In some instances,
employer with discretion in developing except as noted in the discussion below. a properly trained authorized entrant
its training-documents retention policy, The Agency did not receive any may be able to recognize and report his
or her own symptoms, such as incorporated into the final rule provides phrase ‘‘warning sign or symptom of a
headache, dizziness, or slurred speech, sufficient specificity regarding the dangerous situation’’ has the same
and take the required action. In other conditions covered by the provision, meaning as in final paragraph (d) of this
cases, the authorized entrant, once the and employers and authorized entrants section. As with final paragraph (d), and
effects begin, may be unable to are familiar with the language, having for the same reason, final paragraph
recognize or report them. In these latter used it for years in general industry (e)(2) differs slightly from the
cases, this provision requires that other, work (and in construction work if they corresponding general industry
unimpaired, authorized entrants in the chose to voluntarily follow the general provision at § 1910.146(h)(5)(ii) because
PRCS, who employers must properly industry requirements). Other examples final § 1926.1208(e)(2) requires an
train to recognize signs, symptoms, and of exposure to a dangerous situation that employer to ensure that an authorized
other hazard-exposure effects in other an authorized entrant must report to the entrant exits the space whenever ‘‘there
authorized entrants, report these effects attendant under paragraph (d)(1) or is . . . a dangerous situation,’’ rather
to the attendant. Reporting these effects (d)(2) include: Low measurements of than whenever ‘‘the entrant recognizes’’
will ensure the safety of the authorized supplied air in a closed-respirator a dangerous situation. This provision
entrants by removing them from the system; fraying or snagging of a retrieval requires authorized entrants to exit the
hazardous conditions in a timely line; a leak allowing an unidentified PRCS as quickly as possible in such
manner. substance to enter the confined space cases because the safety procedures
Paragraph (d)(1) differs slightly from through the walls of the space or from delineated in the permit are designed to
the corresponding general industry a container brought into the space; work in the context of clearly defined
provision at § 1910.146(h)(4)(i). The sparks or other evidence of potential acceptable entry conditions, and
general industry provision requires an electrical malfunction (particularly in deviations from the planned measures
employer to ensure that an authorized areas where flammable gases are therefore require timely evacuation to
entrant alerts the attendant when ‘‘the present); and any changes identified by ensure the health and safety of the
entrant recognizes’’ a dangerous the entrant in his or her physical
entrants pending evaluation of the
situation. Final § 1926.1208(d)(1) condition or the physical condition of
requires an employer to ensure that an dangerous situation.
another entrant (e.g., dizziness, chest
authorized entrant alerts the attendant pains, vertigo, breathing difficulty, Final § 1926.1208(e)(3), which is
whenever ‘‘there is . . . a dangerous trembling, etc.). identical to the general industry
situation.’’ OSHA made this change to Paragraph (e). The introductory standard at § 1910.146(h)(5)(iii),
make the requirement objective, and not language in final § 1926.1208(e), which requires an employer to ensure that an
contingent on the subjective belief of an is identical to the general industry authorized entrant exits from the
authorized entrant about the level of standard at § 1910.146(h)(5), requires an confined space whenever the entrant
danger. For example, if an entrant employer to ensure that an authorized detects a prohibited condition, as
knocks over a container of sealant that entrant exits from the confined space defined in final § 1926.1201. This
was not scheduled to be opened until whenever one of circumstances requirement ensures that employees exit
later, thereby releasing hazardous fumes identified in final § 1926.1208(e)(1)- the confined space if there is any
into an inadequately ventilated permit (e)(4) arises. prohibited condition, such as a
space, the final rule makes it clear that Final § 1926.1208(e)(1), which is hazardous atmosphere or uncontrolled
the entrant has a duty to report the similar to the general industry standard physical hazard, in the space. Exiting
incident to the attendant immediately. at § 1910.146(h)(5)(i), requires an the space upon detecting a prohibited
The employer must ensure that the employer to ensure that an authorized condition will prevent serious injury or
entrant is adequately prepared to entrant exits from the confined space death to the entrants. Other examples of
identify such an incident as a dangerous whenever the attendant or entry prohibited conditions include, but are
situation, and the entrant’s failure to do supervisor orders an evacuation. It is not limited to, the emergence of a new
so would not excuse the entrant or essential that the authorized entrants hazard, a hazard level that exceeds
employer from that duty. quickly comply with the command to acceptable entry conditions, or personal
By using language closer to that in the evacuate, particularly because the protective equipment that is not
general industry, OSHA has deviated attendant or entry supervisor may be working as planned. In such
slightly from the equivalent requirement aware of a hazard that the authorized circumstances, authorized entrants must
in the proposed rule, § 1926.1211(g)(3), entrant has not detected. Even when exit the space to protect their health and
which required the authorized entrant there is disagreement between the entry safety.
to alert the attendant of ‘‘any sign, supervisor and attendant as to whether
symptom, unusual behavior, or other to evacuate, this provision requires the Final § 1926.1208(e)(4), which is
effect of a hazard.’’ OSHA retained the employer to enforce orders to evacuate identical to the general industry
reference to a ‘‘symptom’’ from the given by either the entry supervisor or standard at § 1910.146(h)(5)(iv), requires
proposed rule, but believes that the the attendant. OSHA believes this an employer to ensure that an
reference to the ‘‘dangerous situation’’ provision is necessary because authorized entrant exits the confined
in the general industry standard emergencies within a confined space are space whenever an evacuation alarm
provides slightly broader coverage than time sensitive, and the entry supervisor sounds. Examples of these alarms
the proposed language. Under the and attendant may have different include, but are not limited to,
general industry standard and this final information regarding the types or atmospheric or engulfment-hazard
rule, attendants would need to be aware, severity of the hazards in the PRCS. monitor alarms or alarms activated by
for example, of an entrant experiencing Final § 1926.1208(e)(2), which is an authorized entrant or other
a heart attack or other condition similar to the general industry standard employee. This provision ensures that
unrelated to the conditions in the at § 1910.146(h)(5)(ii), requires an entrants in a PRCS exit the space in a
confined space, but which might employer to ensure that an authorized timely manner upon activation of an
nevertheless affect that entrant and/or entrant exits from the confined space evacuation alarm warning them of an
other entrants in the space. However, whenever there is a warning sign or impending danger, thereby preventing
the general industry language symptom of a dangerous situation. The serious injury or death to the entrants.
Section 1926.1209—Duties of encounter during entry, as well as the whether evacuation of all authorized
Attendants signs and consequences of such entrants from the space occurred, and
In final § 1926.1209, OSHA sets out exposures. Section 1910.146(i)(1) that no unauthorized entrants remain in
the duties of the attendant required by requires an employer to ensure that each the space. This information can then be
final § 1926.1204(f) as part of every attendant ‘‘knows’’ the hazards that he relayed, if necessary, to rescue workers.
or she may encounter during entry. Paragraph (d). Final § 1926.1209(d),
permit program. The general industry
OSHA replaced ‘‘knows’’ with ‘‘is which is identical to the general
standard recognizes the need for an
familiar with and understands’’ in the industry standard at § 1910.146(i)(4),
attendant outside permit spaces, and the
final rule to emphasize that the element requires the attendant to stay outside of
preambles for final § 1926.1204(f) and
of comprehension is critical to the the permit space during entry
the general industry standard at 58 FR
attendant’s ability to fulfill his or her operations until he or she is relieved by
4517 (Jan. 14, 1993), explain the need
duties. Attendants must be able to another attendant. One of the main
for these attendants. One of the major
recognize when entry conditions in the duties of the attendant is to recognize
problems in permit space entry hazardous conditions that are occurring
PRCS are unacceptable—that the system
operations is that, if an entrant within inside the PRCS, and to communicate
of employee protection is
the space is injured or incapacitated in this information to rescue personnel in
malfunctioning. Because attendants
the space, he or she cannot normally be emergency situations. The attendant is
would be able to easily communicate
seen from outside the space, so the also often the first (and sometimes only)
with entrants and entry supervisors,
attendant is critical to recognizing person to recognize prohibited
their recognition of deviations from
quickly any injury or incapacitation so conditions or signs of hazardous
acceptable entry conditions, and of the
that the employer can initiate the signs, symptoms, and characteristic conditions within the space. If the
applicable rescue operation as soon as effects that indicate exposure to a attendant was inside the space, the
possible. The attendant also plays a hazard, will enable a timely evacuation attendant could become incapacitated if
critical role in protecting employees from the PRCS. For additional an emergency occurred, or the entrants
inside the confined space from information concerning the signs and are exposed to prohibited conditions,
unauthorized entries and potentially symptoms of exposure, see the and consequently rendered unable to
hazardous conditions outside the discussion of § 1926.1208(d) in this perform the duties that are necessary to
confined space that could affect the preamble. protect the other employees.
workers inside the confined space. Paragraph (b). Final § 1926.1209(b), OSHA included a note to final
The provisions in final § 1926.1209 which is identical to the general § 1926.1209(d) that is substantively the
are substantively identical to the industry standard at § 1910.146(i)(2), same as the note in the general industry
provisions in the general industry requires the attendant to be aware of the standard. OSHA reorganized the
confined spaces rule, except as noted potential behavioral effects of hazard sentence structure of the note in the
below. The introductory language to exposure to authorized entrants. While final rule to clarify that the attendant
§ 1910.146(i) refers to ‘‘the’’ employer. there is overlap between this cannot attempt rescue until properly
As in the introductory language for requirement and the requirement to be relieved, and then only if the attendant
many of the provisions in the final rule, familiar with and understand signs and is permitted to do so under the permit
OSHA refers to ‘‘the entry employer’’ in symptoms of exposure, the same overlap program and adequately trained and
the introductory language of exists in the general industry standard equipped for entry rescue. However, the
§ 1926.1209 to clarify how this rule and OSHA is preserving the separate final rule permits the attendant to
applies on multi-employer worksites. requirements for consistency with the perform non-entry rescue so long as the
The attendant duties are also similar general industry standard and to attendant receives proper training to do
to the duties specified in proposed emphasize the importance of so. If the attendant is performing his or
§§ 1926.1210(f) and 1926.1211(f). The recognizing behavioral changes as her duties in multiple spaces, the
final rule does not include a paragraph possible evidence of hazard exposure. attendant also must order the entrants in
found in proposed § 1926.1211(f)(9), OSHA believes this requirement is those other spaces to exit the spaces
which expressly prohibited attendants necessary because the attendant is likely while the attendant is involved in the
from entering a confined space to to be in a position to quickly recognize rescue, or ensure that another person
perform rescue. OSHA did not include deteriorating conditions within the assumes the attendant duties for the
this paragraph because the prohibition space and readily communicate the other spaces.
is clear from the general industry need for an immediate evacuation. For Paragraph (e). Final § 1926.1209(e),
standard language incorporated into the instance, subtle behavioral changes or which is nearly identical to the general
final rule, i.e., employers must ensure effects detected in an entrant’s speech, industry standard at § 1910.146(i)(5),
that attendants never enter a confined or deviations in established requires the attendant to communicate
space, whether it is to perform rescue or communication procedures, would alert with authorized entrants as necessary to
for any other purpose, unless another the attendant that it is necessary to keep track of the entrants’ status and to
person assumes the duties of the initiate the procedure to evacuate or notify entrants if evacuation under final
attendant, and the attendant is properly rescue the entrant from the space. § 1926.1209(f) of this section is
trained for rescue activity. See Paragraph (c). Final § 1926.1209(c), necessary. OSHA believes that this
§ 1926.1209(d) and its Note. In this way, which is identical to the general communication provides information
the final rule provides more flexibility industry standard at § 1910.146(i)(3), that the attendant needs to determine if
to employers than the proposal. requires the attendant to maintain an the entry can continue. For example,
Paragraph (a). Final § 1926.1209(a), accurate count at all times of authorized subtle behavioral changes detected in
which is almost identical to the general entrants, and to ensure that the method the entrant’s speech, or deviations from
industry standard at § 1910.146(i)(1) used to identify entrants under final set communication procedures, could
(except for non-substantive § 1926.1206 of this section is accurate. alert the attendant that it is necessary to
clarifications), requires an employer to In emergency situations requiring evacuate or rescue the entrant. This
ensure that each attendant is familiar evacuation, the count and identification requirement may assist the attendant in
with hazards that he or she may of entrants is necessary to determine fulfilling the duties to identify signs and
symptoms of exposure or behavioral attendant to assess both the activities person setting up the discharge system
changes (see paragraphs (a) and (b) of and conditions affecting the entrants. to request that the person not discharge
this section). In addition, if the need In the general industry standard, water into the storm sewer until the
arises, the attendant must communicate OSHA requires the attendant to order employees in the storm sewer have
to the entrants an order to evacuate evacuation ‘‘if the attendant detects’’ a completed their work. If the potential
because the entrants may not know that prohibited condition, certain behavioral pumpers refuse to wait, then the
there is an emergency. effects, or a condition outside the space attendant must order the immediate
In the final rule, OSHA requires the that could endanger the entrants. See evacuation of the permit space. See
attendant to stay in communication to § 1910.146(i)(6)(i) through (i)(6)(iii). § 1926.1209(f)(3).
‘‘assess’’ the entrant’s status, rather than OSHA did not include the quoted Other examples of conditions or
to ‘‘monitor’’ it as required in the language in the final rule because activities outside a permit space that
general industry standard. While there existing conditions, not detection by the would require the attendant’s attention
is no substantive difference between attendant, trigger the duties in final include the placement of potentially
these terms, OSHA uses ‘‘assess’’ § 1926.1209(f)(1) through (3). OSHA hazardous items near a ventilation
because ‘‘monitor,’’ as defined in the believes that each of these conditions intake source (e.g., an open container of
final standard, refers to the represents potential precursors to epoxy or gasoline-powered equipment
identification and evaluation of hazards serious safety hazards that threaten the emitting exhaust), or physical
in a confined space. Assessment health and well-being of employees conditions that could affect the permit
connotes an interactive duty in which working in and near the PRCS, and the space (e.g., heavy rains outside a below-
the attendant may ask questions of the employer has a duty to ensure that the ground permit space).
entrant, or ask the entrant to perform a attendant detects them. One commenter asserted that
task so the attendant can evaluate the One of the conditions that triggers requiring an attendant to evaluate
entrant’s status. evacuation is a situation that arises confined space hazards inside and
As with the general industry standard, outside the permit space that could outside a ground storage tank exposes
the attendant’s ‘‘communication’’ with endanger the workers inside the space. the attendant to both fall hazards and
the entrant may take different forms See final § 1926.1209(f)(3). This struck-by hazards (ID–210, Tr. p. 223).
depending on the limitations of the requirement also is specified in the For example, a situation in which the
particular permit space. In most general industry standard. Under final tank does not have a ground level
instances, the attendant could use voice § 1926.1203(h)(4) and § 1926.1204(k), entrance, and the attendant must climb
communication, including the employer must develop and a vertical fixed ladder to gain access,
communication by phone, walkie talkie, implement procedures to coordinate exposes the attendant to a fall hazard.
or other device that provides a clear and entry operations with other employers However, this comment fails to
continuous means of communication working outside the confined space recognize that the standard would
with the entrant. In other cases, when the activities of those employers permit the attendant to use electronic
alternative methods, such as tapping on could, either alone or in conjunction monitoring and communications or
the walls of the space to allow for with the activities within a permit other means to fulfill the duties in
assessment through a pre-arranged code, space, foreseeably result in a hazard § 1926.1209. Thus, depending on the
may be sufficient to satisfy within the confined space. In most circumstances of the space, the
§ 1926.1209(e). See, e.g., July 30, 1993, cases, employers will perform such attendant might only need to physically
letter to Julie Emmerich. activities outside the space in close approach the entrance of the permit
Paragraph (f). Final § 1926.1209(f), proximity to the permit space, and the space to perform non-entry rescue if
which is almost identical to the general attendant must be aware of the non-entry rescue is appropriate (the
industry standard at § 1910.146(i)(6), applicable coordination procedures to retrieval equipment would not increase
requires the attendant to assess the identify any deviation and evacuate the the overall risk of entry and would
activities and conditions inside and entrants if the deviation makes it unsafe contribute to the rescue of the entrant),
outside the space to determine if it is for the entrants to remain in the permit and then only when assigned and
safe for entrants to stay in the space. space. While not required to do so, the trained to do so. In addition, if the
OSHA again uses ‘‘assess’’ instead of attendant may take steps to stop attendant encounters a hazard not
‘‘monitor’’ for the same reason activities that do not conform to those covered by the confined spaces standard
discussed above in final § 1926.1209(e). procedures, either directly or by (e.g., a fall hazard), the employer must
OSHA refers to ‘‘activities and notifying the entry supervisor and the comply with the relevant OSHA
conditions’’ in the final rule, as opposed controlling contractor, provided that requirements that address the hazard
to just ‘‘activities’’ in the general doing so does not interfere with the (e.g., 29 CFR part 1926, subpart M, for
industry standard, for internal attendant’s ability to fulfill the duties fall hazards).
consistency within this provision. In the required by § 1926.1209. However, if the More importantly, it appears that the
same paragraph, OSHA requires the employer does not address the commenter also is challenging the
attendant to evacuate the permit space potentially endangering activities general need for an attendant by
under any of the four ‘‘conditions’’ immediately, the attendant must asserting that an attendant is
listed in final § 1926.1209(f)(1) through evacuate the entrants. Consider, for unnecessary when the employer is
(f)(4): (1) The attendant notices a example, a situation in which performing work inside an above-
prohibited condition, (2) the attendant employees are working inside a storm- ground storage tank (ID–210, Tr. p. 223).
identifies the behavioral effects of sewer permit space that is not isolated In these situations, so long as the space
hazard exposure in an authorized from the general storm sewer system. If meets the definition of a permit-
entrant, (3) there is a condition outside someone within the view of the required confined space, an attendant is
the space that could endanger the attendant is setting up for an activity necessary for safe entry operations.
authorized entrants, or (4) the attendant that will discharge water into the Although the person designated by the
cannot effectively and safely perform upstream portion of the storm sewer employer as attendant is not assigned
the duties required under final system, the attendant must alert the the overall responsibility for employee
§ 1926.1209. Thus, it is necessary for the entry supervisor, and may call to the safety and health assigned to the entry
supervisor, the attendant is a crucial and requested that OSHA insert Paragraph (i). Final § 1926.1209(i),
link in the communication chain language requiring that action (ID–210, which is identical to the general
between the entry supervisor, rescue Tr. p. 357). OSHA responded to this industry standard at § 1910.146(i)(9),
operations, and the authorized entrants. comment by adopting the language of requires employers that designate
For additional explanation of the the general industry standard in final attendants to perform non-entry rescues
importance of the attendant’s role, see § 1926.1209(g). to ensure that the attendants perform
the introductory discussion of Paragraph (h). Final § 1926.1209(h), these rescues in accordance with the
§ 1926.1209. which is identical to the general employer’s rescue procedure. When
It is extremely important that industry standard at § 1910.146(i)(8), properly executed, the attendant’s
attendants understand their duties, stay requires the attendant to take the actions performance of non-entry rescue can be
in contact with the entrants, and remain specified in § 1926.1209(h)(1) through the fastest and most effective means of
alert to conditions inside and outside (h)(3) to prevent unauthorized persons successfully rescuing an entrant, while
the PRCS. The attendant may be in the from entering a permit space while preventing injuries and deaths that may
best position to warn the entrants of entry is taking place. OSHA recognizes result from improperly executed entry
hazardous conditions developing that there are individuals who may rescue operations. However, if the
outside the space and impending danger mistakenly believe that they are to work employer designates the attendant to
within the space, and to recognize on a task in the space, or who may perform non-entry rescue but does train
physical and behavioral changes in the simply wander by or attempt to enter the attendant to perform non-entry
entrants that indicate that conditions into the space unaware of the dangers of rescue, or if the attendant does not
within the space may be deteriorating. the PRCS. Final § 1926.1203(b) requires operate winching equipment or perform
Should the entrant become the employer to notify the controlling other components of the rescue in
incapacitated, the attendant often is an contractor and other specified accordance with the proper procedures,
entrant’s only contact with individuals employees, as well as the employees’ then the result could render the rescue
outside the confined space. Therefore, authorized representatives, about the ineffective and endanger the attendant
the attendant is necessary to detect location of, and dangers posed by, the (e.g., improper line retrieval could cause
emergencies that develop in the space, space. However, if someone other than the attendant to lose balance and fall
and to summon emergency assistance an authorized entrant happens to into the permit space), delay rescue
before it is too late to prevent injury or approach the PRCS, § 1926.1209(h)(1) (and, thereby, endanger the entrant in
death to the entrant. specifies that the attendant must make need of rescue), or endanger other
Another commenter suggested that entrants.
that individual aware that he/she must
OSHA make it explicit that the
stay away from the PRCS. Some Paragraph (j). Final § 1926.1209(j),
attendant must remain outside the
confined space when monitoring construction sites may be accessible to which is identical to the general
atmospheric conditions of the confined the public, so the attendant also would industry standard at § 1910.146(i)(10),
space (ID–132, p. 3). This additional be responsible for warning members of requires that the attendant not engage in
language is unnecessary because final the public who may attempt to enter a other activities that could distract him
§ 1926.1209(d) already requires permit space at the site. Should an or her from attending to the permit
attendants to remain outside the unauthorized person enter the PRCS, space. The attendant could endanger the
confined space while fulfilling all of paragraph (h)(2) of § 1926.1209 requires authorized entrants if distracted from
their duties under this section, the attendant to advise him/her to exit these duties. If an attendant performs a
including the duties specified in the space immediately. This provision task that diverts his or her attention
§ 1926.1209(f). protects employees who enter permit from the attendant duties, an emergency
Paragraph (g). Final § 1926.1209(g), spaces without proper authorization, condition inside or outside the space
which is identical to § 1910.146(i)(7), training, or equipment, from the hazards could go undetected until it is too late
requires the attendant to call upon of the permit space, and prevents injury to prevent injury or death to the
rescue and other emergency services as to the entrants already in the permit attendant. However, OSHA also
soon as he or she decides that space from the actions of unauthorized recognizes that the attendant can
authorized entrants may need assistance entrants and the items they may carry perform some additional tasks safely,
to escape from permit space hazards. into the space. particularly those tasks that enhance the
This provision is necessary to ensure Because an attendant may not have attendant’s knowledge of conditions in
that rescue of authorized entrants occurs supervisory authority, or because the the permit space. For example, passing
as soon as possible to maximize their errant individual may work for another tools to authorized entrants and remote
chance of survival and limiting their employer at a multi-employer monitoring of the atmosphere of the
injuries, as well as minimizing risk of construction site, an attendant may not PRCS are among the types of duties
injury to the rescue-service employees. have the authority to stop unauthorized permitted, provided the attendant does
The Agency notes that in some individuals from entering the PRCS, or not enter the PRCS. Activities requiring
situations, the attendant may be the to require them to exit once they are close or prolonged concentration, or
person designated to perform non-entry inside the space. Therefore, paragraph those activities requiring that the
rescue and, therefore, may simply (h)(3) of § 1926.1209 requires the attendant be away from a location in
commence that rescue. If other attendant to notify the entry supervisor, which he can observe the PRCS, would
personnel are necessary for non-entry along with the authorized entrants, of likely interfere with attendant duties.
rescue, or if entry rescue is necessary, this situation, and to evacuate if Employers must not assign such
then the attendant must summon those necessary, as unauthorized entry will activities to an attendant and must
personnel immediately. typically create a prohibited condition ensure that an attendant not engage in
One commenter noted that the under the permit. Accordingly, OSHA such activities. The Agency notes that,
parallel language in proposed paragraph does not encourage or require attendants although the employer may assign
§ 1926.1211(f)(6) did not specifically to expose themselves to potential harm attendants to more than one permit
require the attendant to ‘‘summon’’ the by physically preventing entry to any space at the same time under
rescue service (only to ‘‘inform’’ them), person. § 1926.1204(f), the employer must still
properly train and equip the attendant commenters seemed familiar with that effective—before entry operations
so that the attendant’s role with respect terminology. commence.
to one space does not interfere with his Paragraph (a). Final § 1926.1210(a), Paragraph (c). Final § 1926.1210(c)
or her duties with respect to other which is identical to the general requires the employer, through the entry
permit spaces. See also industry standard at § 1910.146(j)(1), supervisor, to stop the entry and cancel
§ 1926.1204(f)(1). In other words, the except for a non-substantive (or suspend) the permit, as set forth by
attendant’s duty under § 1926.1209(j) clarification, requires the employer to final § 1926.1205(e), when certain
applies separately with respect to each ensure that each entry supervisor is conditions change inside the permit
individual permit space. familiar with, and understands, the space. By requiring the entry supervisor
hazards that entrants may encounter to terminate the entry permit under the
Section 1926.1210—Duties of entry during entry, including information on specified conditions, the final rule
supervisors the mode, signs or symptoms, and the ensures that the employees will exit the
The duties of the entry supervisor are consequences of exposure to these space if there is a deviation from
critical to the safety of entrants working hazards. Consistent with its approach in acceptable entry conditions and,
in a permit space. The employer must other provisions noted earlier, OSHA therefore, avoid encountering harm
assign an entry supervisor who has the changed the use of the term ‘‘know,’’ arising from prohibited conditions
responsibility to supervise testing the found in corresponding § 1910.146(j)(1), within the PRCS. Final § 1926.1210(c) is
atmosphere and identifying hazards to ‘‘is familiar with and understands’’ in nearly identical to the general industry
both before and during entry, this final rule to clarify that the entry standard at § 1910.146(j)(3), except that
terminating entry when necessary, supervisor must comprehend the the new final provision allows for the
removing unauthorized entrants, and hazards that entrants may encounter. suspension of a permit, rather than a
generally ensuring that the work In the discussion of the duties of the cancellation, as permitted in final
performed in the permit space conforms entry supervisor in the preamble to the § 1926.1205(e). For additional
to the permit program and the general industry standard, OSHA explanation of the suspension of the
acceptable conditions specified on the explained that, in light of the permit, see the explanation above of
permit. As noted in the preamble to the overarching responsibility of the entry § 1926.1205(e).
general industry standard, the entry supervisor for the safety of all entrants, To perform this duty effectively, an
supervisor has ‘‘overall accountability it is ‘‘only reasonable that he or she be entry supervisor must be knowledgeable
for confined space entry’’ (58 FR 4523). expected to know at least as much, if of the hazardous conditions and the
OSHA enumerated specific not more, than authorized entrants and tests and procedures used to monitor
responsibilities in § 1926.1210 of the attendants’’ (58 FR 4523). That these conditions so the entry supervisor
final rule, which is almost identical to knowledge is particularly important in can respond in a timely manner to a
§ 1910.146(j) of the general industry the context of construction, where high developing hazard. While the entry
standard. The final rule also is turnover of employees and changes to supervisor need not personally perform
consistent with the entry supervisor the work site may be more frequent than the testing or monitoring (but may
requirements in the proposed rule, for general industry. As an individual choose to do so if properly trained), the
which were at proposed with the authority to terminate entry entry supervisor must possess the
§ 1926.1210(e)(2) and § 1926.1211(d)(1) and cancel the entry permit, it is expertise necessary to oversee the
and (d)(2).24 essential that the entry supervisor testing and identify the hazards in the
The introductory language to recognize hazardous conditions and permit space, and is ultimately
§ 1910.146(j) refers to ‘‘the employer.’’ telltale indications (signs, symptoms, responsible for identifying deviations
In this final rule, OSHA instead refers and characteristic effects) that a hazard from acceptable entry conditions and
to ‘‘the entry employer’’ to clarify how from within or outside the permit space other unsafe conditions. In the proposed
this rule applies on multi-employer is affecting employees engaged in the rule, this requirement differed slightly
worksites. This revision is non- PRCS operations. By meeting the from the requirements in the general
substantive; in both cases, the knowledge requirements of final industry standard and this final rule,
requirements apply to each employer § 1926.1210(a), the entry supervisor will but the result is the same: The entry
establishing the permit program for a be able to effectively identify emergency supervisor must have all the
permit space. situations by observing employees information regarding the conditions
One commenter suggested that OSHA involved in entry operations. and monitoring results required to know
use ‘‘competent person’’ in place of Paragraph (b). Final § 1926.1210(b), when it is necessary to terminate entry.
‘‘entry supervisor’’ to ‘‘be more which is identical to the general This requirement remains in effect even
consistent with other construction industry standard at § 1910.146(j)(2), if the entry supervisor assumes other
standards’’ (ID–124, p. 8). Although requires the entry supervisor to verify duties, such as the duties of an entrant
some employers in the construction that the employer performed all tests or attendant.
industry may not be as familiar with the specified by the entry permit, and that Paragraph (d). Final § 1926.1210(d),
term ‘‘entry supervisor,’’ OSHA is all procedures and equipment so which is nearly identical to the general
retaining the language of the general specified are in place before he or she industry standard at § 1910.146(j)(4),
industry standard because the term is may sign the permit and allow entry. requires the entry supervisor to verify
clear and intuitive, and the majority of The paragraph also specifies that the that rescue services are available, and
entry supervisor must verify this that the means for obtaining such
24 OSHA specified in the proposed rule that the
information by checking the services are operable. Because the
entry supervisor is responsible for evacuating

employees from the permit space under specified
corresponding entries on the permit. employer must assign authority for safe
conditions, and for terminating entry and canceling These preliminary checks are necessary permit entry operations to the entry
the permit. OSHA included similar requirements in to ensure that the conditions in the supervisor, it is reasonable and
final § 1926.1205(e) (permitting process), which is space are within the acceptable entry consistent with the rescue provisions to
a more appropriate location than § 1926.1210 of the
final rule because the requirements in
conditions—hazard levels are as specify that the entry supervisor verify
§ 1926.1205(e) address the process of terminating planned, and protective measures are in that the rescue service is available, and
and canceling the permit. place, working properly, and are that the means of summoning it in a
timely manner is functioning properly. supervisor’s duty to assess the space supervisor has the proper qualifications
The only difference between this final when first assigned entry supervisor to perform these duties and receives the
provision and the general industry duties for the permit space, and at appropriate information about the space
standard is that OSHA clarified in this regular intervals thereafter. from the previous supervisor.
final provision that, as part of the OSHA recognizes that employers will Another commenter also was unsure
contact with the rescue service, the need to replace entry supervisors whether the final rule requires the entry
entry supervisor must verify that the occasionally for various reasons (for supervisor to be on the construction site
rescue service will notify the supervisor example, shift changes, lunch breaks, at all times (ID–124, p. 7). The entry
if that service becomes unavailable and regular rotations to other tasks at supervisor is responsible for crucial
during the entry process. This the job site). This final provision duties, including monitoring the space,
clarification corresponds to the requires that, whenever there is a physically removing unauthorized
employer’s duty to confirm the transfer of supervisory responsibility for entrants, and terminating entry if
continued availability of the rescue a permit-space entry operation, the necessary. Therefore, it is highly
service in final § 1926.1211(a)(3), and is entry supervisor must assess the space unlikely that the entry supervisor will
consistent with the proposed rule, and its hazards to maintain entry be able to fulfill the required duties
which focused overall coordination of operations that are consistent with the from a distance. However, the standard
the permit entry operations on the entry entry permit and other requirements of does not foreclose the potential for
supervisor (see 72 FR 67368 (Nov. 28, the standard pertaining to the technology advances that may allow an
2007)). Under both the proposed and maintenance of acceptable entry entry supervisor to perform the required
final rules, the overall coordination conditions. This requirement ensures functions while located away from the
duties include managing that the new entry supervisor reviews permit space. If the entry supervisor is
communications with the rescue the permit and entry conditions and, unable to perform his or her duties,
service. consequently, has the information either because he or she is not present
Paragraph (e). Final § 1926.1210(e), necessary for performing the duties on the site or for another reason, then
which is identical to the general enumerated in final § 1926.1210. the employer must terminate the entry
industry standard at § 1910.146(j)(5) and Final § 1926.1210(f) also requires that or replace that entry supervisor with a
consistent with the proposed rule at the entry supervisor assess the space supervisor properly qualified under this
§ 1926.1211(d)(2), requires the entry and its hazards at intervals dictated by final section, and who makes the
supervisor to remove unauthorized the hazards and operations performed determinations required by final
individuals who enter, or attempt to therein. This requirement addresses the § 1926.1210(f), or the employer will not
enter, the permit space during entry fact that conditions often change over be in compliance with this final rule.
operations. Unauthorized entrants lack time within a permit space, while
providing the employer some flexibility Section 1211 — Rescue and Emergency
the safety training necessary to work in
to monitor different hazards at different Services
the PRCS, and the entry permit does not
account for them. Their presence in a intervals of time (see 58 FR 4524). Some An employer conducting a permit-
permit space not only poses a danger to hazards may develop rapidly and space entry must include procedures for
them, but may also endanger the require more frequent assessments, such providing rescue and emergency service
authorized entrants in the space. as when employees are in a space with as part of its permit-space program (final
In the final rule, OSHA requires a combustible gas already at 9 percent § 1926.1204(i)). Final § 1926.1211
attendants to warn persons near a of its LEL, and the employer expects the specifies requirements for that rescue
permit space not to enter the permit operations to generate additional gas and emergency service. The
space unless they have authorization to that will be controlled through requirements in final § 1926.1211 are
do so, but the attendant is not required ventilation. Other hazards, such as a substantively similar to the
to physically prevent unauthorized slow leak of water from a pipe into a corresponding provisions in the general
entry or to remove an unauthorized permit space, are likely to develop at a industry confined spaces standard at
entrant (final § 1926.1209(h)). Under the more predictable pace that would allow § 1910.146(k). In general, the substance
final rule, as with the general industry for less frequent monitoring. The type of of the rescue provisions in the proposed
standard, the entry supervisor has operation and location or characteristics rule was similar to that of the rescue
ultimate responsibility for preventing of the space may also require more provisions in the general industry rule,
unauthorized entry and, if that fails, for frequent assessments by the entry but the language of the general industry
removing the unauthorized person as supervisor, such as demolishing an rule is more performance-oriented and
quickly as possible from the permit underground wall near water pipes or includes fewer detailed requirements
space. performing construction work in a than the proposed rule.
Paragraph (f). Final § 1926.1210(f) is sewer system where even a small leak Final § 1926.1211 uses the term
identical to the general industry of an unidentified substance or other ‘‘rescue and emergency services.’’ There
standard at § 1910.146(j)(6) and small change in the sewer space could are two types of rescue services
consistent with the proposed rule at potentially place the lives of the addressed by this provision: Non-entry
§ 1926.1211(e)(2). While paragraphs (a) employees in danger. rescue and entry rescue, and the
and (b) of this section of the final rule One commenter asserted that it is not employer must determine which is
set out the entry supervisor’s feasible for an employer to have only appropriate. Emergency services are
responsibility to ensure that the permit one entry supervisor because employees distinct: They are the services that must
space will be safe prior to entry, and could perform no work in the permit be used to retrieve the entrant when the
paragraph (c) of this section makes it space if the entry supervisor is absent employer’s non-entry or entry rescue
clear when the employer must cancel or (ID–107, p. 4). This commenter fails.
suspend the permit, paragraph (f) misunderstands the entry supervisor OSHA notes that during the
requires the entry supervisor to ensure requirements. Final § 1926.1210(f) rulemaking for the general industry
the maintenance of safe working permits an employer to transfer the confined spaces standard, a commenter
conditions during the entry. In final duties of the entry supervisor between raised a question as to whether an entry
§ 1926.1210(f), OSHA sets out the entry employees, so long as each such entry rescue service involved only off-site
rescue teams (58 FR 4525). The Agency When an employer is working within a to assess a prospective rescue service’s
made clear in that rulemaking that an PRCS that does not meet the criteria in ability to respond to a rescue summons
employer could use an on-site team as one of those paragraphs, however, the in a timely manner. Final
long as the employer met all the criteria rescue requirements are the same for all § 1926.1211(a)(1) provides that the
outlined in the standard. That rationale hazards severe enough to trigger the hazards identified in the permit space
is equally applicable to this final rule. PRCS program required by final determine timeliness. This provision
Consequently, the term ‘‘rescue service’’ § 1926.1204. defines ‘‘timeliness’’ in terms of how
in this standard does not exclude the Paragraph (a). The introductory text in quickly an entry rescue service needs to
use of an on-site entry rescue service. final § 1926.1211(a), which is identical reach an entrant to prevent further
Indeed, as OSHA noted in the preamble to the general industry standard at serious physical damage that may result
to final § 1910.146, the need to respond § 1910.146(k)(1), introduces the from hazards in the PRCS while the
as quickly as possible to an emergency requirements for designating rescue entrant is awaiting rescue. For example,
within a permit space indicates a services. This paragraph emphasizes the as stated in the note to paragraph (a)(1),
preference for on-site rescue teams evaluation that an employer must OSHA’s respiratory protection standard
wherever it is practical. perform of available rescue and at 29 CFR 1910.134, made applicable to
Some employers may prefer to emergency service resources before construction by 29 CFR 1926.103,
establish an on-site rescue service. designating a rescue provider for the requires standby rescue personnel
Other employers may prefer to rely on purposes of this standard as required at equipped with respiratory protection
off-site rescue services, perhaps because § 1926.1204(i) of this final rule. The when employees are working in
they believe that they do not have the requirements of this paragraph apply atmospheres that require respiratory
resources to train employees to perform equally to both on-site (employees of the protection because the atmospheres are
rescue or because the ready availability entry employer or controlling immediately dangerous to life or health
of an adequate off-site rescue service contractor) and third-party rescue (IDLH). Consistent with that
makes an on-site capability services. requirement, the timeliness requirement
unnecessary. The final rule allows One commenter asserted that some in this final rule also means that
employers to make arrangements for third-party rescue services, such as fire employers must ensure that an
either on-site or off-site services. departments, are unwilling to be the appropriate rescue service is on site for
Also, the final rule’s phrase ‘‘rescue designated rescue service due to IDLH permit entries. An atmosphere in
service’’ refers to all rescue personnel liability concerns (ID–075, p. 8). a permit space where an exposed
provided to remove entrants from Another commenter asserted that entrant could suffer irreversible
permit spaces. It includes situations in relying on local fire departments to impairment within four to six minutes
which one person will be responsible provide third-party recue services can would meet the definition of an IDLH
for the rescue of authorized entrants be problematic because the rescue atmosphere. However, because not all
(e.g., when the employer uses non-entry service is not designed specifically to permit spaces pose the same immediate
rescue systems). In such situations, the provide confined space rescue at a dangers as those spaces with IDLH
evaluation and selection requirements particular worksite (ID–210, Tr. p. 192). atmospheres, employers may use a less
of final § 1926.1211(a) will apply. The These comments imply that OSHA resource-intensive and more measured
training and practice requirements of requires employers to designate the response capability for situations in
final § 1926.1211(b) also apply in these local fire department as the rescue which the need for a nearly instant
situations. Thus, OSHA is treating all service, which is not the case. In the response is not present. For example, in
rescue services alike, whether the final rule, OSHA provides employers appendix F to § 1910.146, OSHA
service is on-site or off-site, whether the with much flexibility in choosing its explained that if the danger to entrants
service is entry rescue or non-entry third-party rescue service if the is restricted to mechanical hazards that
rescue, or whether the service consists employer elects to rely on a third-party would cause injuries (e.g., broken bones,
of a multiple-person team or a single rescue service. abrasions) a response time of 10 or 15
person. Contrary to the assertion of one minutes might be adequate.
One commenter asserted that the commenter (ID–107 p. 4), both the At least one commenter was unsure
rescue requirements should differ based proposed rule and the general industry what constitutes a response in a ‘‘timely
on the type of hazard that is present in standard require employers to provide a manner’’ (ID–121, p. 5). Another
or near the confined space (ID–077, p. rescue service for entries, even if a commenter suggested that OSHA
1). This standard does set different third-party rescue service is not identify the factors in § 1910.146(k)(1)(i)
requirements based on the type of available. (See proposed § 1926.1211(h) of the general industry confined spaces
hazard in a PRCS, although the and 72 FR 67377–78; 29 CFR standard that it would use to analyze
requirements in § 1926.1211(a)(1) and 1910.146(d)(9); 58 FR 4524–27; and 63 whether a rescue response is ‘‘timely,’’
(a)(3)(i) establish performance-oriented FR 66018, 66023 (Dec. 1, 1998).) If one and apply them in the construction
criteria that vary based on the hazards third-party rescue service will not standard (ID–129, p. 3). The factors that
in the permit spaces. Final assume the responsibility of providing apply in general industry are relevant in
§ 1926.1203(e) allows an employer to rescue under this final rule, or is not evaluating timeliness in this final rule.
use alternative entry procedures adequately prepared to meet these When the Agency added the parallel
different than those required by the rest rescue requirements, then the employer rescue selection requirements to
of this standard under certain must either find a different third-party paragraph (k) of § 1910.146, it included
circumstances. Final § 1926.1203(g) rescue service that is capable of a substantive discussion of ‘‘timely’’
allows an employer to reclassify a PRCS performing this service, or train and rescue in the preamble, and concluded
as a non-permit confined space when equip its own employees to provide that the determination of timeliness
the employer meets the requirements of adequate rescue service. ‘‘will be based on the particular
that paragraph. The rescue requirements Paragraph (a)(1). Final circumstances and hazards of each
in this final standard do not apply when § 1926.1211(a)(1), which is identical to confined space, circumstances and
an employer is using the procedures in the general industry standard at hazards which the employer must take
final §§ 1926.1203(e) or 1926.1203(g). § 1910.146(k)(1)(i), requires an employer into account in developing a rescue
plan’’ (63 FR 66023). As the note to new to require rescue services on site, and employer to assess a prospective rescue
§ 1926.1211(a)(1) makes clear, the same that OSHA should allow an employer to service’s ability to provide adequate and
approach applies in this final rule. merely establish a rescue plan to effective rescue services. This
Employers must consider the known address accidents (ID–108, p. 5). Neither requirement is necessary to ensure that
hazards of in the space, the time it takes final § 1926.1211(a)(1), nor any other the rescue service can perform rescue
to reach the permit space, as well as the paragraph in final § 1926.1211, requires safely and effectively.
time it will take to enter the space and an employer’s rescue service to be on Many third-party emergency
retrieve employees from inside the the construction site at all times, absent responders may be able to provide
space, when determining what is a an IDLH atmosphere or other hazard proper permit-space rescue functions for
‘‘timely’’ response. Several commenters that would require immediate rescue, or spaces that do not require immediate,
acknowledged that so many factors to be in constant contact with the stand-by rescue capability, but not all
could affect whether a response is construction site. responders have this ability. Each
‘‘timely’’ that it is not practical for In general, final § 1926.1211(a) only employer relying on these services must
OSHA to adopt a bright-line timeframe requires an employer to determine that verify that the emergency responder has
that would work in all scenarios (ID– the rescue service is capable of the training, equipment, ability, and
090, p. 1; ID–108, p. 3; ID–116, p. 4). As responding to an emergency in a timely willingness to perform rescue for
noted in the discussion above, OSHA manner. However, compliance may confined spaces in its facility.
identified some of the factors that require the employer to communicate In evaluating a prospective rescue
determine whether an employer’s with an off-site rescue service provider’s abilities, the employer also
response to an emergency is ‘‘timely,’’ immediately prior to each permit-space must consider the willingness of the
but these factors are not exclusive. The entry unless the employer has been service to become familiar with the
standard as a whole will prevent assured that personnel are always particular hazards and circumstances
employee exposure to hazards, but available and able to respond in a timely faced during its permit-space entries.
employers must develop rescue plans manner. Section 1910.146 addresses the Paragraphs (a)(4) and (a)(5) of final
that anticipate and minimize potential scenario in which the designated rescue § 1926.1211 require the employer to
harm to employees in the event an service is a local fire department that provide its designated rescuers with
employee becomes trapped or exposed cannot guarantee that the rescue team information about its confined spaces
to an atmospheric hazard. For example, will available during the employer’s and access to those spaces to allow the
if a permit space contains a potential entire permit-space entry operations; in rescuers to develop appropriate rescue
IDLH atmosphere that the employer will such a case, the employer must ensure plans and to perform rescue drills. A
control through ventilation, the close communication with the rescue rescue service’s receptiveness to this
employer has a duty to ensure that the service during entry operations so that, information is directly relevant to its
ventilation is effective, but also has a if the rescue service becomes ability to function appropriately during
separate duty to plan for rescue in the unavailable while an entry is underway, actual rescue operations.
event that the ventilation fails and an the employer can abort the entry Two commenters suggested that
employee becomes trapped in the immediately. May 23, 2008, letter to OSHA provide additional guidance
increasingly hazardous atmosphere. Jonathan Pennington. To facilitate this about how employers that use a third-
The deaths of two workers during a communication, OSHA requires in final party rescue service are to verify that
sewer entry illustrate the potential paragraph (a)(3)(iii) that the entry they meet the requirements in final
consequences of inadequate rescue employer select a rescue provider that § 1926.1211(a) (ID–099, p. 3; ID–132, p.
planning: Not only did the two agrees to notify the entry employer in 3). OSHA has provided performance-
employees enter the space without a the event the rescue service is based requirements that are closely
permit, rescue plan, or retrieval lines, unavailable. Entry operations must not aligned with the general industry
but the employer also did not assess a resume until the entry supervisor standard. Therefore, OSHA does not
potential rescue service. See S. J. Louis verifies that rescue services are available believe that it will be difficult for an
Construction, OSHRC Docket No. 12– (final § 1926.1210(d)). employer to determine whether the
1045 (2013) (Welsh, ALJ). The first One commenter asserted that OSHA rescue service meets these requirements.
worker was overcome quickly by a should focus on the capability of the However, OSHA is willing to provide
hazardous atmosphere in the sewer rescue service to provide life support, additional guidance as necessary.
manhole, and the second worker was and not whether the rescue response is Paragraph (a)(3). Final
also overcome after he entered the sewer ‘‘timely’’ (ID–017, p. 2). For example, § 1926.1211(a)(3), which is identical to
manhole to attempt rescue. The firemen the provision should focus on requiring § 1910.146(k)(1)(iii) except for the
who responded first were not trained or someone trained in space-specific addition of § 1211(a)(3)(iii), introduces
equipped for permit-space entry and rescue techniques, first aid and the requirements that a designated
had to summon a different rescue cardiopulmonary resuscitation, who can rescue service must meet. Final
service. The first worker was washed gain safe access to the patient, stop the § 1926.1211(a)(3) requires the employer,
down the sewer line before the second bleeding, administer CPR, and perhaps after performing the evaluations
rescue service arrived and was trapped effect rescue. Final § 1926.1211(a)(2) required by paragraphs (a)(1) and (a)(2)
underwater so that it took nearly a day specifies the requirement to assess of this section, to select a rescue
to retrieve his body. whether a rescue service is capable of provider that meets the requirements of
One commenter asserted that, when providing adequate and effective rescue this paragraph. Therefore, it is not
using a third-party rescue service, it is service. Final § 1926.1211(a)(1) requires sufficient for an employer simply to
infeasible for the third-party rescue the employer to assess whether the perform the evaluations required. The
service to maintain constant contact rescue service is capable of applying employer also must use the results of
with construction sites, and not such skills in a timely manner. those evaluations to select a rescue
reasonable for outside services to track Paragraph (a)(2). Final service that will meet the requirements
frequent changes in a confined space’s § 1926.1211(a)(2), which is identical to of this standard.
configuration (ID–116, p. 4). Another the general industry standard at Final § 1926.1211(a)(3)(i), which is
commenter asserted that it is too costly § 1910.146(k)(1)(ii), requires an identical to the general industry
standard at § 1910.146(k)(1)(iii)(A), rescue team will be available during the Paragraph (a)(5). Final
requires an employer to designate a employer’s permit-space entry § 1926.1211(a)(5), which is identical to
rescue team that is capable of reaching operations. In such a case, the employer the general industry standard at
a victim in an appropriate amount of must maintain close communication § 1910.146(k)(1)(v), requires an
time. This requirement is an important with the rescue service during entry employer to provide the designated
element of a preplanned rescue because operations so that, if the rescue service rescue service with access to all permit
it eliminates further risk of injury and becomes unavailable while an entry is spaces from which the rescue service
death resulting from an unnecessary underway, the employer can instruct the may need to perform a rescue. The
lapse of time between an emergency and attendant to abort the entry purpose of the provision is to provide
when the rescue service affects the immediately. May 23, 2008, letter to the rescue service with an opportunity
rescue. Delays may occur for reasons Jonathan Pennington. Consistent with to develop appropriate rescue plans and
such as: The travel distance from an off- these two provisions, the rescue service to practice rescue operations. OSHA
site location is too far away from the needs only to communicate its believes that this provision will allow
permit space; time needed to gather unavailability when the entry employer the rescue service to become familiar
rescue equipment from storage; lack of informs it that entry operations are with the configuration and features of
training needed to use the rescue underway. Although the employer is the permit space to which the employer
equipment properly; or the rescue less likely to know exactly when a third- may summon it to perform rescue
service is off-duty at the time of the party service is responding to another operations, and thereby develop
emergency. As discussed above, the call that would make the service appropriate rescue plans and practice
time required to respond to a rescue unavailable to perform rescue from the rescue operations.
summons varies with the hazards posed PRCS, this requirement also applies to Access to the permit space or a
by the permit space, and the entry on-site rescue services if, for example, simulated permit space for the purpose
employer must consider the hazards the on-site service members become of planning and practicing rescue
involved in its permit-space work and involved in other work activities that operations increases the probability that
select an appropriate rescue service. prevent them from responding in a rescue operations will proceed more
Final § 1926.1211(a)(3)(ii), which is timely fashion to a rescue summons. efficiently and effectively, thereby
identical to the general industry Paragraph (a)(4). Final reducing the probability of serious
standard at § 1910.146(k)(1)(iii)(B), § 1926.1211(a)(4), which is identical to injury or death to authorized entrants
requires an employer to designate a the general industry standard at and rescuers during an actual entry-
rescue team that is capable of providing rescue operation. Note that this
§ 1910.146(k)(1)(iv), requires an
proficient rescue service. This provision does not require the third-
employer to inform the designated
requirement is an important element of party rescue service to use the permit
rescue service of the known hazards
a preplanned rescue because it spaces for practice; final paragraph
associated with the permit space in the
eliminates further risk of injury and (a)(5) simply requires that the entry
event rescue becomes necessary. This
death resulting from improperly employer provide access to the space. In
provision provides the rescue service
equipped or untrained rescuers. At a performing practice rescues, the third-
with information about hazards and
minimum, the designated service must party service may use any representative
conditions in the permit space that will
comply with final § 1926.1211(b). permit spaces that replicate the permit
Final § 1926.1211(a)(3)(iii) requires an protect the rescue-service employees
spaces from which it may perform a
employer to designate a rescue service who enter the permit space for rescue rescue in accordance with final
that agrees to notify the entry employer operations, training, or any other § 1926.1211(b)(4).
immediately if it becomes unavailable purpose.25 Compliance with this Paragraph (b). Final § 1926.1211(b)
during an entry operation. There is no paragraph, as well as with paragraphs sets forth four requirements for an
corresponding provision explicitly (a)(1) and (a)(2) of this section, would employer that has employees designated
required in § 1910.146, although require the employer to provide this to provide rescue service. Paragraph (b)
§ 1910.146(k)(1)(iii)(A) implies such a information to the rescue service prior is identical to the general industry
duty. For a rescue service to be effective, to permit-space entry. Similarly, if an standard at § 1910.146(k)(2), except that
it must be available when the entry entry involves hazards not usually OSHA replaced references to employers’
employer is conducting permit-space encountered by the rescue service, or responsibilities for ‘‘employees’’
entry operations. This provision will hazards or a configuration that would collectively with references to
promote employee safety by ensuring require the rescue service to use employers’ responsibilities to ‘‘each
that entry employers know when their equipment that it does not always have employee’’; this revision emphasizes
designated rescue services are available, the employer would have to that an employer’s responsibility in this
unavailable. notify the rescue service of these area is to each employee individually.
Final § 1926.1211(a)(3)(iii) enhances hazards and conditions prior to Final § 1926.1211(b) applies to the
an employer’s knowledge about the beginning the entry operation. In most employer of the rescue service
availability of a rescue service during cases, this information exchange can be (including non-entry rescue personnel)
entry operations. This final provision, in accomplished during a single when that employer also is the entry
combination with other provisions of conversation, but additional employer or other employer performing
this final standard, ensures that entry conversations would be necessary in the work integral to construction. When the
employers know that the rescue service event of changes in the conditions or employer is a third-party rescue service
is available. Final § 1926.1210(d), and configuration of the space after the that does not perform work integral to
§ 1910.146(j)(4), both require the entry initial conversation. construction, then the work performed
supervisor to verify that the rescue by the rescue service is covered under
service is available. 25 To meet the requirements of this provision, the the corresponding general industry
Final § 1926.1211(a), and employer would have to inform the rescue service standard at § 1910.146(k)(2). OSHA
that the employer selected the service to rescue its
§ 1910.146(k)(1), address the employer employees during entry operations, and that the
believes that it is important to protect
with a designated third-party rescue employer is relying on the rescue services to employees who enter permit spaces to
service that cannot guarantee that its perform these rescues when necessary. perform rescue duties regardless of the
employer responsible for the rescue location of the site or the competency of One commenter suggested that OSHA
team. By making this final paragraph the third-party rescuers (ID–143, p. 2). require an employer to train all of its
substantively identical to Paragraph (b)(1). Final employees, not just entry rescue-service
§ 1910.146(k)(2), there are no differences § 1926.1211(b)(1), which is nearly employees, on how to perform rescue
in the requirements for rescue-team identical to the general industry duties (ID–150, p. 3). OSHA disagrees
employers under the general industry or standard at § 1910.146(k)(2)(i), requires with this commenter because, under
construction confined space standards. an employer with employees designated final § 1926.1211, training for
The Agency determined that this to provide rescue service to equip each employees not authorized to perform
requirement is necessary to provide affected employee with PPE and to train rescue is not necessary for an employer
protection for employees in on-site the employees, at no cost to those to be ready to provide effective and
rescue teams, while employees of third- employees, how to use the PPE safely. timely rescue service.
party rescue services will be protected The provisions in this paragraph will Paragraph (b)(3). Final
under identical general industry help the employer prevent injuries and § 1926.1211(b)(3), which is nearly
requirements. This is consistent with deaths that could occur without the identical to the general industry
the intent of the Agency to protect both appropriate PPE, or because the standard at § 1910.146(k)(2)(iii), requires
on-site rescue teams and third-party employees did not receive proper an employer with employees designated
rescue services in the general industry training in use of such equipment. to provide rescue service to train the
confined spaces standard (58 FR 4527). Employers still must select and use PPE employees performing both non-entry
One commenter, representing a in accordance with subpart E of part and entry rescue services in basic first
company involved in sewer work, 1926 and all other applicable aid and cardiopulmonary resuscitation
asserted that it is neither practical nor requirements. These requirements, (CPR). The Agency believes this
feasible for employers performing which include proper selection and use requirement is necessary because of the
construction to employ their own rescue of respirators in accordance with the hazards and resultant injuries that may
personnel (ID–107, p. 4). However, requirements of the respiratory occur in permit spaces. This
neither proposed § 1926.1213(c) nor protection standard at § 1926.103, requirement also will improve the
final § 1926.1211(b) specify that entry continue to apply when workers are probability that the injured employees
employers must hire additional, rescue- working in a permit space. survive until higher levels of medical
Paragraph (b)(2). Final treatment become available.
specific, personnel. Rather, employers
§ 1926.1211(b)(2), which is nearly Paragraph (b)(4). Final
that train and equip current employees
identical to the general industry § 1926.1211(b)(4), which, apart from an
as required by this standard may
standard at § 1910.146(k)(2)(ii), requires addition discussed below, is identical to
designate their own employees to an employer with employees designated the general industry standard at
provide permit-space rescue, just as to provide rescue service to train each § 1910.146(k)(2)(iv), requires an
under the general industry standard. employee performing the rescue service, employer to ensure that the designated
Also, the commenter referred to a and to ensure that these employees rescue service practices rescue
‘‘typical sewer construction/ successfully complete the training operations at least once every 12
maintenance project,’’ implying that the required for authorized entrants. months. OSHA believes this training
company it represents engages in This provision would ensure that requirement for entry-rescue service
maintenance projects that would be rescue-service employees can perform employees is necessary to maintain
subject to the same requirement in the their assigned duties proficiently and proficiency in entry-rescue procedures
general industry standard. However, the safely under hazardous permit-space and the use of rescue equipment. This
commenter did not indicate that this conditions. Lack of such training would training also will ensure that the
company, or any other company, found endanger the rescue-service employees, employer trains the entry rescue-service
it infeasible to comply with the general those in need of rescue, and others employees on all revisions to entry-
industry standard. The commenter did affected by the permit-space rescue rescue procedures, and that the
not provide any explanation for why operations. Training in the proper use of employees are cognizant of any other
compliance with the requirement in this rescue equipment will help the new information regarding entry rescue.
final standard would be more employer eliminate injuries and deaths Practicing rescues in a permit space or
burdensome than compliance with the caused by the improper use of such a representative permit space also
general industry work. equipment. Rescue-equipment training highlights deficiencies in rescue
Other commenters incorrectly must include training on all equipment procedures, and allows for revisions of
asserted that OSHA would require that may be used in conducting a rescue those procedures before they can
construction employers to become in the PRCS, such as the care and adversely affect the safety of rescue-
experts in rescue service (ID–126, pp. 2– inspection of breathing and ventilation service employees or employees in need
3; ID–075, pp. 8–9). Final § 1926.1211(b) gear and emergency-evacuation of rescue during an actual rescue
does not prohibit employers from using equipment, and the use of two-way operation.
a third-party rescue service; it merely radios and fire-fighting equipment. One commenter read the proposed
permits employers to use their own Training in the requirements for rule as prohibiting rescue services from
employees to provide rescue service. authorized entrants also will protect the conducting practice rescues in the
The general industry confined spaces rescue-service employee, those in need actual permit space (ID–107, p. 4). There
standard at § 1910.146(k) also provides of rescue, and others affected by the was no such prohibition in the proposed
the option of using an employer’s own rescue operations because rescue- rule, and by adopting the language of
employees to provide rescue services. service employees will be familiar with the general industry standard in this
At least one commenter supported the the hazards of permit spaces and the final rule, OSHA makes it clear that
provision permitting construction modes of communicating with rescuers may practice by removing
employers to use their own employees attendants. The rescue service may need dummies or real persons ‘‘from the
to provide rescue service, noting that to use the same modes of actual permit spaces or from
the use of a third-party rescue service is communication to communicate with a representative permit spaces.’’ If the
not always effective because of the trapped entrant. employer does not use actual permit
spaces for practice, representative commenter misread the requirement. available in the event the non-entry
permit spaces must simulate the types Final § 1926.1211(b)(4), as in the retrieval fails.
of permit spaces from which the proposed rule, requires an employer to Retrieval lines can be highly effective
rescuers may perform rescues with conduct a practice rescue at least once in assisting in the rescue of an
respect to opening size, configuration, every 12 months after the initial practice unconscious or otherwise incapacitated
and accessibility. rescue. Therefore, 12 months minus one employee from a confined space. The
Proposed § 1926.1213(d) provided day is the longest period allowed other major advantage of using retrieval
that this practice is not necessary when between a practice rescue and the lines for rescue is that it is not necessary
the affected employees properly moment the employer begins entry to expose a rescuer to the hazards of
performed rescue in the same, or operations. entering the permit space to help
similar, permit space during the last 12 Another commenter asked how remove an injured entrant. The
months. This proposed language made employers who designate a third-party effectiveness of retrieval lines in rescue
explicit the existing rule under the rescue service can verify that the service was recognized by employers using this
general industry standard, which, in its practices rescue every 12 months (ID– equipment for confined space entries
original preamble, stated that 099, p. 3). The duties in paragraph (b) during the general industry standard
satisfactory performance of one or more apply to the ‘‘employer whose rulemaking (see 58 FR 4530), and
actual rescues in the same, or similar, employees have been designated to mandatory use of retrieval lines is
space during the 12-month period prior provide permit space rescue.’’ included in both ANSI Z117.1 and the
to the training anniversary date could Therefore, if an entry employer hires a general industry standard. However, the
substitute for a practice rescue (58 FR third party to provide rescue services, Agency recognizes that many spaces do
4528). OSHA previously recognized in the final standard does not require the not readily or safely accommodate the
other standards (such as in § 1910.120— entry employer to verify the practice of use of retrieval lines. For example,
Hazardous waste operations and the third party. However, paragraph (a), obstructions can snag the retrieval line,
emergency response) that actual which applies to all employers that and the air lines and electric cords
experience at a particular task can be at designate rescue and emergency within the space can pose entanglement
least as valuable as a practice session or services, requires those employers to hazards. In addition, depending on the
other type of training. However, just as evaluate the rescue proficiency of the number of entrants and how much they
the rescue service must practice in the rescue team, even a third-party rescue move around in the space, the retrieval
same spaces or spaces similar to the team, and select a team that is lines themselves could pose an
ones in which it is to provide rescue, for proficient. This commenter also asserted entanglement hazard (see final
an actual rescue to take the place of a that it is too burdensome to fulfill the § 1926.1211(c)(3)).
practice rescue, it must be in the same To allow for the greatest degree of
requirement to practice rescue
or similar space. Also note that safety in addressing these problems, the
operations, but did not provide a
unsatisfactory performance of a rescue final standard requires the use of
specific reason why compliance is retrieval systems or methods whenever
indicates the need for further training
infeasible (id.). Both the general an authorized entrant enters a permit
and, therefore, cannot substitute for a
industry confined spaces standard at space, except in situations for which the
practice rescue. This exception applies
§ 1910.146(k)(2)(iv) and NFPA 1670, employer can demonstrate that the
when the rescuers perform a rescue
sec. 7.1.3.4 (2009 ed.) also specify a retrieval equipment would increase the
operation in a satisfactory manner and
requirement to practice rescue overall risk of entry or would not
the entrants, through factors beyond the
operations found in final contribute to the rescue. This is the
rescuers’ control, do not survive.
§ 1926.1211(b)(4). Without a specific approach taken in ANSI Z117.1 and the
Therefore, this final rule incorporates
the exception from the proposed rule by reason to depart from this established general industry standard, and OSHA
adopting the performance-based procedure, OSHA finalized this believes that adopting this approach
language of the general industry provision to be similar to proposed rule will provide the most effective
standard. § 1926.1213(c)(6) and the corresponding protection for employees, with
One commenter asserted that the provision for general industry confined appropriate allowance for situations in
requirement to perform a simulated spaces at § 1910.146(k)(2)(iv). which employers should not use
rescue is infeasible in situations where Paragraph (c). Final § 1926.1211(c), retrieval systems.
the rescue service is a small local fire which is substantively similar to the When enforcing this provision, OSHA
department (ID–090, p. 2). Nevertheless, general industry standard at may inspect the permit space to
the commenter volunteered that § 1910.146(k)(3), requires that an determine whether a retrieval system
performing the simulated rescue is the employer use non-entry rescue, instead would contribute to a rescue without
safest approach. When a third-party of entry rescue, unless non-entry rescue increasing the overall risk of entry.
rescue service does not have the is more dangerous or ineffective than Although some spaces may have
resources to perform this simulated entry rescue. The major difference configurations or hazards that warrant a
rescue, the employer must either train between this final provision and slightly different approach, in general,
its own employees to provide rescue or § 1910.146(k)(3) is that OSHA revised the Agency intends to use the following
designate a third-party rescue service this final requirement to clarify the factors in determining that a permit
that is capable of complying with all of employer’s obligation. space does not require an employer to
the rescue requirements in final If the employer determines that it will use a retrieval system: (1) The permit
§ 1926.1211(b). use non-entry rescue, final space has obstructions or turns that
Another commenter asserted that § 1926.1211(c) also requires the prevent transmitting pulls on the
OSHA wrote proposed § 1213(c)(6) in a employer to use a retrieval system or retrieval line to the entrant; (2) the
manner that allowed an entry method. Accordingly, in general permit space has projections that would
employer’s employees to enter a authorized entrants must wear retrieval cause injury to an employee making
confined space even when the initial devices and employers must use a forceful contact with the projections
practice rescue occurred 15 years before retrieval system, in addition to during rescue; and (3) when an entry
the entry takes place (ID–013, p. 5). This confirming that emergency assistance is employee enters the permit space using
an air-supplied respirator and the non- slow the rescue process if it compels the Paragraph (c)(1). Final
entry rescuers cannot control the employer to provide information not § 1926.1211(c)(1), which is similar to
retrieval line so as to prevent needed by the emergency assistance the general industry standard at
entanglement of the retrieval line with provider. Note that arranging for § 1910.146(k)(3)(i), requires an employer
the respirator’s air line. emergency assistance is not the same as to provide each employee with a chest
Section 1926.1211(h) of the proposed providing for entry rescue; emergency harness or full body harness for most
rule specified that employers must assistance is intended as the backup for non-entry rescue, but permits use of
provide both entry and non-entry the employer’s rescue plan, whether the wristlets or anklets if the employer can
rescue, while proposed paragraph employer relied on entry or non-entry demonstrate that the chest or full body
(h)(2)(i) specified that employers must rescue. Entry rescue requires personnel harness is infeasible or creates a greater
summon an entry-rescue service trained to recognize the hazards hazard. A chest or full-body harness
whenever they initiate a non-entry associated with entry rescue and prevents further injury should an
rescue. One commenter was unsure perform entry rescue duties. These employee become suspended during a
whether employers must prepare to personnel must be trained in performing rescue; without a chest or full-body
provide both entry and non-entry rescue entry rescues and must have practiced harness, injuries can result from the
(ID–098, p. 2). Another commenter such a rescue within the past year. unequal distribution of force on the
asserted that it was too burdensome to Employers must designate entry body during suspension (see the
require employers to prepare for both rescuers when non-entry rescue is not preamble to OSHA’s final rule on fall
entry and non-entry rescue when an appropriate option. Emergency protection for construction at 59 FR
working within or near a PRCS. (ID–120, assistance is intended to supplement 40672, 40702–40704 (Aug. 9, 1994), for
p. 3). To address these concerns, OSHA employer rescue efforts and provide a detailed discussion of this issue.)
based the final rule on the general emergency care to employees injured on One commenter asserted that OSHA
industry confined space standard, but site and/or rescued from a confined should require the use of a full-body
drafted the final rule to be more space. Emergency assistance is required harness to perform rescue in every
performance-oriented than the general if there is a problem with a non-entry instance because it is the most effective
industry standard. rescue or with an entry rescue. means of rescue (ID–210, Tr. p. 68).
The final rule provides for a ‘‘back- The non-entry rescue requirements OSHA disagrees with this commenter.
up’’ to non-entry rescue, much as the are based on the general industry Permit spaces come in many different
proposed rule did, but in a manner that standard, but provide additional sizes and configurations, which may
is less burdensome for employers. guidance. While there is no make a chest harness more appropriate
Consequently, final § 1926.1211(c) corresponding provision stated than a full-body harness in some
requires that, if an entry employer explicitly in the general industry circumstances.
determines that it will use non-entry standard at § 1910.146, § 1910.146(d)(9) This provision also provides that the
rescue, it must confirm, prior to entry, requires employers to develop plans to employer must place the retrieval line
that emergency assistance will be summon emergency services and for attached to the harness on the entrant’s
available in the event that non-entry rescuing personnel. In final back near shoulder level, over the
rescue fails. OSHA expects this § 1926.1204(i), OSHA clarified that, if entrant’s head, or at another point that
confirmation will typically involve a the entry employer uses non-entry will establish a small enough profile for
quick phone call or other rescue as the designated method of successful removal of the entrant from
communication to establish availability rescue, the employer must develop a the permit space. One commenter
before making the first entry. The agreed that it was safer to attach the line
procedure for summoning emergency
employer need not repeat such to the entrant’s back, rather than the
assistance in case the non-entry rescue
confirmation when there are several chest (ID–095).
is not able to retrieve the entrant. Final § 1926.1211(c)(1) differs from
entries planned as part of the same
Emergency assistance, such as a 911 the general industry standard at
project, provided the employer
emergency-responder service or an on- § 1910.146(k)(3)(i) in that it includes
discusses during the initial contact with
site or off-site entry-rescue team, may both anklets and wristlets as acceptable
the rescue service the availability of
prevent such a situation from resulting means of retrieval in lieu of a harness
emergency assistance for the expected
in injury or death, so it is critical that in limited circumstances. Employers
duration of the project. This
emergency assistance be available to can use wristlets or anklets in lieu of a
confirmation is especially important if
the employer uses a 911 service or other respond to the emergency. harness only if the employer can
In final § 1926.1211(c), OSHA also demonstrate that the use of a harness is
third-party service that is small and has
clarifies that, if the employer determines infeasible or creates a greater hazard to
few teams on call because the service
that it will use entry rescue, it must the employee, and that the use of the
must be available to provide emergency
designate a rescue service that is wristlets or anklets is the most effective
assistance quickly when needed if the
capable of providing entry rescue. alternative available. Proposed
assistance is to be effective. In the event
Additionally, it sets requirements for § 1926.1213(a)(4)(iii) permitted
emergency assistance is summoned,
OSHA anticipates that the emergency non-entry rescue systems; these employers to use ankle straps, along
assistance provider will assume requirements do not differ substantively with wristlets, for non-entry rescue
direction of the rescue and would from the corresponding general industry under limited conditions. One
request any other information it deems provision.26 commenter supported this proposed
essential to effectively provide minor change from the general industry
26 As with the general industry standard, the

assistance, and notes that employers construction standard relies on existing fall-
standard, asserting that anklets may be
may be required by other laws to protection requirements to ensure the proper use of the safest alternative in horizontal
comply with the emergency assistance fall-protection equipment. Final § 1926.1211(c) does entries (ID–094). However, because of
requests for information. OSHA is not not address the issue of fall protection for entry the potential safety advantages of the
into, and exit from, vertical type permit spaces; 29
requiring the employer to provide other CFR part 1926, subpart M, and the General Duty
chest and full-body harnesses, the
specific information at the site out of Clause, 29 U.S.C. 654(a)(1), govern fall protection in Agency believes that it is necessary to
concern that such a requirement might construction. limit the circumstances when employers
can use either wristlets or anklets to is ‘‘sufficiently heavy to serve as an removing the key from the equipment
those in which the employer can anchor point,’’ may be used for that after ensuring that duplicates are not
demonstrate that use of a harness is purpose only if effectively locked out or readily available on the site, placing a
infeasible or a greater hazard than tagged out. Two commenters expressed tag on the equipment to warn others not
wristlets or anklets because of the concern about movable equipment as an to start it, and informing any potential
increased risk of employee injury during anchor point. One commenter stated operator(s) not to move the equipment
a rescue. that many accidents occurred in the past while it is serving as a fixed point for
Paragraph (c)(2). Final when using a pick-up truck as a fixed rescue. If the equipment is capable of
§ 1926.1211(c)(2), which is identical to point without notifying the driver of the activation by remote control, then the
the general industry standard at truck, who then unexpectedly moved employer must secure the remote
§ 1910.146(k)(3)(ii), requires an the truck. This commenter urged that control or disable that capability to
employer to use a retrieval line attached this provision include ‘‘proper prevent unexpected movement.
to a mechanical retrieval device or fixed protocols’’ to ensure that such a Final § 1926.1211(c)(2) is performance
point outside the permit space so that situation did not recur (ID–025, p. 4). oriented, and allows flexibility in the
non-entry rescue can begin as soon as Another commenter noted that OSHA’s design specifications of the retrieval
needed. It also requires an employer to construction standards do not include equipment, subject to the requirements
use a mechanical device to retrieve an equivalent to the Lockout/Tagout of § 1925.1211(c)(3) (equipment must be
personnel from spaces more than five standard for general industry. The suitable). One commenter asserted that
feet deep. This provision reduces the commenter, therefore, urged OSHA to there are many instances when the use
elapsed time between an attendant include a more protective requirement, of a tripod assembly with a three-way
determining that a rescue is necessary asserting that a requirement to ‘‘lock retrieval system is effective (ID–060, p.
and commencing the PRCS rescue out’’ or ‘‘tag out’’ equipment, without 1). Final § 1926.1211(c)(2) does not
operation by requiring the essential additional detail, would ‘‘be subject to prohibit the use of such a device if it
parts of the retrieval system to already various interpretations,’’ and could meets the requirements of this
be in place and attached to the result in unexpected activation of the subparagraph. A different commenter
mechanical device or fixed point. This equipment (ID–143, p. 2). asserted that final § 1926.1211(c)(2)
requirement will eliminate further should be performance based because of
OSHA recognizes that on a
injury or death due to the delay ongoing advancements in confined-
construction site, a piece of moveable space retrieval equipment, and
resulting from locating and attaching
retrieval-system parts and equipment. equipment may sometimes be the most suggested incorrectly that the proposed
The requirement to use a mechanical accessible fixed point, but rule limited retrieval by specifying the
device for spaces more than five feet acknowledges the commenter’s concern use of anchor points or simple pulleys
deep is consistent with the general that such equipment is moveable, even (ID–116, p. 3). The definition of
industry standard and ANSI Z117.1. if it has sufficient weight. Thus, under ‘‘retrieval system’’ in final § 1926.1202
Securing the line to an anchor point or this final rule, an employer must ensure is performance based, and allows for
using an un-mechanized pulley for that any movable equipment used as a technological advancements in retrieval
retrievals over five feet could endanger fixed point is ‘‘fixed,’’ meaning that it is equipment. This definition does not
the authorized entrant because sufficiently heavy (such as earth-moving limit retrieval to the use of anchor
designated non-entry rescuers may not equipment) to prevent movement, and points or simple pulleys.
have sufficient strength and stamina to that it is subject to additional One commenter asserted that final
lift a disabled entrant over a vertical precautions to prevent unexpected § 1926.1211(c)(2) should require an
distance of more than five feet. movement. Accordingly, as in the employer to have the retrieval system
One commenter asserted that OSHA proposed requirement, to determine located at the confined space opening
should require a mechanical retrieval whether a retrieval line that is attached (ID–025, p. 4). Final § 1926.1211(c)(2)
device for all heights when the to moveable equipment is ‘‘attached to requires the employer to have the
employer conducts non-entry rescue a . . . fixed point’’ under final retrieval system available as soon as
(ID–211, Tr. pp. 43–44). Another § 1926.1211(c)(2), OSHA will evaluate needed, which ensures that rescue can
commenter asserted that OSHA should whether the moveable equipment is begin immediately. Another commenter
recognize that mechanical winches and effectively locked out or tagged out. In asserted that the proposed language
pulleys are sometimes necessary based particular, OSHA will use the final ‘‘available as soon as needed’’ was too
on job conditions (ID–108, p. 2). Neither rule’s definitions of ‘‘lockout’’ and vague, and that a retrieval device could
commenter provided any evidence that ‘‘tagout’’ in making that determination, satisfy this provision even if kept
attendants encountered difficulty which partially address the elsewhere on the worksite and not
retrieving entrants from distances of less commenter’s concern by bringing the installed (ID–095, p. 4). Final
than five feet, or pointed to any lockout/tagout process closer to the § 1926.1211(c)(2) addresses this
problems that arose in the context of the protection offered by the general commenter’s concern by requiring
general industry standard or ANSI industry standard. For example, as part attachment of the retrieval line to the
Z117.1, both of which include the same of the tagout process, an employer must appropriate retrieval mechanism (a
five-foot threshold. Without additional ensure that tagout provides ‘‘equivalent mechanical device if the depth exceeds
support for imposing this requirement, protection’’ to lockout or that lockout is five feet, or a fixed anchor point for
OSHA decided to retain the language infeasible. Consequently, the employer shallower entries) ‘‘in such a manner
from the general industry standard. must take whatever measures are that retrieval can begin as soon as the
Nothing in this standard, however, necessary to prevent unexpected rescuer becomes aware that rescue is
precludes use of mechanical retrieval energization or movement of the necessary,’’ thus ensuring that the line
devices for retrievals from heights of equipment. Placing a ‘‘do not move’’ tag will be available and ready for use when
less than five feet. in the truck or other equipment would needed. If the retrieval device is not at
Proposed § 1926.1213(a)(2)(iv)(B) also not be sufficient by itself. Typically, the opening of the permit space, then
provided that movable equipment (for such measures include activating an the employer is responsible for
example, earth-moving equipment) that emergency brake or similar device, demonstrating that it could initiate
retrieval immediately as soon as the discussion at 58 FR 4531). Accordingly, diagnosing and treating the employee
rescuer becomes aware that rescue is the employer must not use any rescued from the permit space.27
necessary. mechanical device, such as a fork lift or
Paragraph (c)(3). Final Section 1926.1212—Employee
backhoe, that could injure the entrant Participation
§ 1926.1211(c)(3) prohibits an employer during rescue. Using a material hoist to
from using equipment that is unsuitable both haul material and to serve as a This section provides for employee
for retrieval, such as retrieval lines rescue retrieval system during an entry participation in confined space
likely to become entangled or that are operation also is not acceptable. In such programs. The provisions in final
ineffective due to the configuration of § 1926.1212 are nearly identical to the
a situation, the material hoist would not
the PRCS. Final § 1926.1211(c)(3) is provisions in the general industry
be available for rescue when it is
similar to proposed § 1926.1213(a)(4). confined spaces rule at § 1910.146(l).
hauling materials; further delay would Final § 1926.1212 differs from
There is no corresponding provision in
result when, during a rescue operation, § 1910.146(1) in that it refers to ‘‘each
§ 1910.146.
A retrieval device, for example, would the attendant would have to detach the affected employee’’ rather than ‘‘affected
not be suitable unless it is designed and retrieval line from the materials and employees,’’ to emphasize that an
rated for human use. The provision does attach it to the employee requiring employer’s responsibility in this area
not require certification of the retrieval rescue. See Oct. 6, 1995, letter to Mr. flows separately to each employee, but
system, but OSHA will accept Joseph Bouchard. The employer also the employer’s obligation remains
certifications by manufacturers, as well must not use powered winches without unchanged. In the proposed rule,
as listing by a Nationally Recognized a stop clutch or other power-limiting employee participation was limited to
Testing Laboratory, as evidence of the device. Such winches can cause injuries the requirement in proposed rule
proper design and rating. If the to an entrant if the entrant becomes § 1926.1204(e) that employers offer
employer fabricates its own retrieval entangled on an object inside the permit entry employees the opportunity to
device, OSHA will look for evidence space, but the winch continues to pull observe the evaluation and monitoring
that the employer designed, the entrant (58 FR 4462, 4531 (Jan. 14, of the permit space. One commenter
manufactured, tested, and certified the 1993)). suggested that OSHA restore the
retrieval device in accordance with Prohibiting such unsuitable employee participation requirement
generally accepted industry practices equipment will reduce the injuries and from the general industry rule for the
(for example, by a registered deaths that would result from the use of reasons OSHA added paragraph (l) to
professional engineer). unsuitable retrieval equipment during the general industry rule in 1998, and
This final provision prohibits the use also noted that no commenters who
rescue operations. The Agency did not
of retrieval lines that have a reasonable favored using the general industry
receive any comments objecting to the
probability of becoming entangled with format raised any objections to its
propriety of this approach and,
the retrieval lines used by other employee participation requirements
authorized entrants, or due to the therefore, finalized this proposed
(ID–0220 p. 26–28). OSHA agrees, and
internal configuration of the PRCS. The prohibition of unsuitable rescue notes that the use of the general
Agency believes that there are situations equipment. industry language is particularly
in which the retrieval lines of two or Paragraph (d). Final § 1926.1211(d), warranted because the final rule
more employees can become entangled, which is identical to § 1910.146(k)(4), requires a written permit-space program
such as when the employees’ work requires an employer to provide in final § 1926.1203(d), which was not
requires that they move around each relevant information about a hazardous required in the proposed rule, so final
other. There are also a variety of substance to a medical facility treating § 1926.1212(a) would ensure that
situations in which the configuration of an entrant exposed to the hazardous employees bring their experience to bear
the PRCS would interfere with a non- substance if the substance is one for regarding that program.
entry rescue and cause further serious which the employer must keep a safety Paragraph (a). Final § 1926.1212(a),
injury to authorized entrants in need of data sheet (SDS) or other similar which is nearly identical to the general
rescue. For example, the permit space information at the worksite. The Agency industry standard at § 1910.146(l)(1),
may have objects or equipment recognizes that such information may requires employers to consult with
protruding from its walls, or sharp already be available to medical facilities affected employees and their authorized
corners that may damage rescue from other sources (such as state representatives in the development and
equipment or prevent the use of certain emergency-planning commissions), and implementation of the permit-space
types of non-entry rescue equipment. that SDS or similar written information program required by final § 1926.1204.
Final § 1926.1211(c)(3) also prohibits Allowing employees and their
may not be available in some instances.
the use of other unsuitable equipment, authorized representatives to participate
However, because the timely provision
such as equipment that increases the in this manner will contribute to
of this information may be critical to the
overall risk of entry or impedes rescue confined space safety. Commenters on
proper medical treatment of an injured
of an authorized entrant. Under final the 1998 amendments to the confined
§ 1926.1211(c)(3), the mechanical employee, and this final standard limits space standard that added § 1910.146(l)
retrieval device used must be the requirement to SDS or other similar noted that employees who work in
appropriate for rescue service. This written information that the employer confined spaces and their
requirement follows the general already must keep at the worksite, representatives are particularly well
industry standard, which was based on OSHA concludes that the potential qualified to contribute to the task
the record in that rulemaking indicating significance of this information to the analysis that is a necessary step in
that incapacitated entrants could easily health of the employee outweighs any developing a confined space program
be bounced around, torn apart, or minimal burden on the employer
impaled if too much torque was applied associated with providing this 27 The employer must provide this information if
to the retrieval line or the retraction of information. Such information would other applicable Federal regulations (such as
aid emergency medical services and § 1910.1200—Hazard communication) or state
the line was not precisely controlled regulations already require the employer to keep the
(see the general industry preamble medical facilities in correctly SDS or other written information at the worksite.
(63 FR 66018 (Dec. 1, 1998)). One obligation applies to each employee. other standards. See CPL–02–00–100,
commenter provided an example of Other sections of this standard, such as CPL–02–00–150. This provision creates
when he, as an employee representative, final § 1926.1203(d), already require that no new retention requirement—it
was able to identify dangerous adhesive employers make some information merely confirms that when employers
fumes in a confined space that could available to employees and their are already required to maintain
have otherwise harmed the two representatives. OSHA is adding this records, they must make those records
employees in that space who did not provision for purposes of emphasis and available to the Secretary. The provision
identify the danger (ID–010). These clarification. This provision emphasizes provides employers with flexibility in
employees are most familiar with the that employees and their representatives where and how such records are
practices used during confined space have a right to all information maintained. Though there is a small cost
entries. If those practices differ developed under the rule affecting their to this provision, OSHA believes the
significantly from the practices planned health and safety. Final § 1926.1212(b) safety benefit of identifying any
by the employer, the employer needs to does not require employees or their potential safety hazards supports the
know of the differences and take authorized representatives to request or inclusion of this provision.
appropriate steps to remedy any review this information; however, it
deficiencies in the permit-entry provides them with the option of IV. Agency Determinations
procedures. Likewise, employees may requesting and reviewing the A. Legal Authority
know of hazards within the space that information should they choose to do
non-entrants are not taking into so. Employers need not provide separate The purpose of the OSH Act, 29
consideration. This provision leaves the copies of the information to each U.S.C. 651 et seq., is ‘‘to assure so far
final contents of the confined space employee; employers have flexibility in as possible every working man and
program up to the employer, but, by determining how to distribute the woman in the Nation safe and healthful
doing so, this provision should promote information so long as each employee working conditions and to preserve our
safety and avoid the need to develop a can access it. human resources.’’ 29 U.S.C. 651(b). To
cumbersome procedure to resolve achieve this goal, Congress authorized
Section 1926.1213—Provision of the Secretary of Labor to promulgate
conflicts between employers and
Documents to Secretary and enforce occupational safety and
employees regarding confined space
entries. Final § 1926.1213 requires each health standards. 29 U.S.C. 654, 655(b),
Final § 1926.1212(a) also is consistent employer who must retain 658.
with Section 2(13) of the OSH Act, 29 documentation under this final rule to A safety or health standard ‘‘requires
U.S.C. 652(13), which emphasizes make that documentation available to conditions, or the adoption or use of one
employer-employee cooperation by the Secretary of Labor, or a designee, or more practices, means, methods,
stating that one of the purposes of the upon request. Final § 1926.1213 is operations, or processes, reasonably
Act is to ‘‘encourage joint labor- similar to proposed rule § 1925.1219(e). necessary or appropriate to provide safe
management efforts to reduce injuries There is no corresponding provision in or healthful employment and places of
and disease arising out of employment.’’ § 1910.146. OSHA added this provision employment.’’ 29 U.S.C. 652(8). A safety
Congress reiterated this purpose in a to enable the Agency to more accurately standard is reasonably necessary or
directive to OSHA to promulgate a identify potential safety hazards at a appropriate within the meaning of 29
Process Safety Management (PSM) worksite and to monitor compliance U.S.C. 652(8) if:
standard; this directive explicitly with the requirements of this standard. • It substantially reduces a significant
provides for employee involvement in The request from the Secretary or the risk of material harm in the workplace;
the development of the process safety Secretary’s designee (for example, • It is technologically and
management programs mandated by that OSHA) may be either oral or written. economically feasible;
standard (see Chemical Process Safety Unless another provision of this • It uses the most cost-effective
Management, Pub. L. 101–549, Title III, standard requires employers to maintain protective measures;
sec. 304(c)(3) (1990), reprinted at 29 a document at the worksite, the • It is consistent with, or is a justified
U.S.C.A. 655 note (Supp. 1991)). OSHA employer may maintain these departure from, prior Agency action;
also has a longstanding practice of documents off site as long as the • It is supported by substantial
encouraging and promoting employer- employer can produce them readily to evidence; and
employee cooperation as exemplified in the requesting official, such as through • It is better able to effectuate the
its 1989 Safety and Health Program electronic transmission to the worksite purposes of the OSH Act than any
Management Guidelines (54 FR 3904); where OSHA is conducting an relevant national consensus standard.
these guidelines recognize the inspection. These documents pertain to See United Auto Workers v. OSHA, 37
importance of involving employees in the determinations made, and actions F.3d 665, 668 (D.C. Cir. 1994) (Lockout/
safety and health programs at the taken, regarding hazards. They provide Tagout II). In addition, safety standards
workplace. OSHA’s experience in valuable information to use when must be highly protective. See id. at 669.
enforcing the employee-participation inspecting the worksite, including A standard is technologically feasible
requirements under the PSM standard evaluating any potential safety hazards. if the protective measures it requires
and the general industry confined At least one commenter objected to already exist, available technology can
spaces standard convinced the Agency this requirement, asserting that OSHA bring these measures into existence, or
of both the value and the utility of the should have to demonstrate a need for there is a reasonable expectation for
provision in paragraph (a). a specific document and obtain a developing the technology that can
Paragraph (b). Final § 1926.1212(b), subpoena, and that this requirement is produce these measures. See, for
which is nearly identical to a paperwork burden and will not example, American Iron and Steel Inst.
§ 1910.146(l)(2), requires that affected increase safety (ID–075, p. 11). v. OSHA (Lead II), 939 F.2d 975, 980
employees and their authorized Requesting such documentation is (D.C. Cir. 1991) (per curiam). A standard
representatives have access to all already part of OSHA’s standard is economically feasible when industry
information developed under this inspection practice under the general can absorb or pass on the costs of
standard, with the clarification that this industry standard, as it is under many compliance without threatening
industry’s long-term profitability or Administration (ID–119), which Employers also must adopt a variety of
competitive structure. See American indicated that employers in safety measures, including isolation
Textile Mfrs. Inst. v. Donovan, 452 U.S. construction in large part followed the procedures, atmospheric testing,
490, 530 n. 55 (1981); Lead II, 939 F.2d general industry standard and, ventilation, monitoring, and
at 980. A standard is cost effective if the therefore, preferred that this final rule arrangements for rescue and emergency
protective measures it requires are the not depart substantially from general assistance.
least costly of the available alternatives industry standard. However, this final As shown in Table IV–1 below, OSHA
that achieve the same level of rule includes important requirements estimates that the final rule will result
protection. See, for example, Lockout/ (also present in the proposed rule) to in yearly compliance costs of $60.3
Tagout II, 37 F.3d at 668. address communication, worksite million (using a discount rate of 7
Section 6(b)(7) of the OSH Act evaluation, and training, which are percent), and yearly safety benefits,
authorizes OSHA to include among a absent from, or not as clearly specified based on lives saved and injuries
standard’s requirements labeling, in, the general industry standard. prevented, of $93.6 million. Therefore,
monitoring, medical testing, and other The final standard establishes the benefits of this final standard
information-gathering and information- practices and procedures that apply to outweigh the costs of complying with its
transmittal provisions. 29 U.S.C. employers that have workers who enter provisions, yielding net benefits of
655(b)(7). Finally, the OSH Act requires confined spaces during construction $33.3 million a year. Compliance with
that when promulgating a rule that work, including major renovation the final standard will result in
differs substantially from a national projects. The final standard does not approximately $1.55 of benefits for
consensus standard, OSHA must apply to routine maintenance activities, every dollar of costs.
explain why the promulgated rule is a which the general industry standard
covers instead. Based on the analysis presented in
better method for effectuating the this FEA, OSHA concludes that this
purposes of the Act. 29 U.S.C. 655(b)(8). Work in confined spaces involves a
significant risk of death or serious final standard is technologically and
OSHA explains deviations from relevant economically feasible for all affected
consensus standards elsewhere in this injury, which compliance with this rule
will reduce substantially. OSHA industries.
preamble. This FEA includes numerous analyses
estimates that full compliance with this
B. Final Economic Analysis and Final final rule will prevent an average of OSHA is required to perform, including
Regulatory Flexibility Analysis approximately 5.2 fatalities and 780 lost the findings of technological and
workday injuries each year. In economic feasibility and their
1. Introduction supporting materials required by the
particular, the Agency believes that
The Occupational Safety and Health compliance with this final rule will OSH Act as interpreted by the courts (in
Administration (OSHA) finalized its avert injuries and fatalities from causes sections 5, and 7, which depend on
safety standard for confined spaces in such as asphyxiation, chemical burns, results derived in sections 3 and 6); the
construction work. When appropriate, scalds, and poisonings. analyses required by E.O. 12866 and
this final standard aligns with the Not all confined spaces pose E.O. 13563 (primarily in sections 2, 4,
confined-spaces standard for general occupational hazards. However, there 6, and 9, though these depend on
industry (29 CFR 1910.146), although it are spaces that employees can enter material in section 3); and those
also has distinctive characteristics for only after employers follow specific required by the Regulatory Flexibility
construction worksites. The pre-existing procedures to ensure safety. Pursuant to Act (the final regulatory flexibility
rule on confined spaces in construction, the final rule, employers must develop analysis is presented in section 8, but
29 CFR 1926.21(b)(6), which this final and implement permit programs or use depends on or refers to results in section
rule replaces, is merely a general specified alternative procedures when 3, 6 and 7 which in turn depend, in part,
training requirement that lacks the employees work in such spaces. The on materials presented in other
specificity and protections that the standard sets forth the requirements for chapters). Terminology and analytic
general industry rule—and this final evaluating hazards, identifying and methods and standards appearing in a
standard—provide. classifying confined spaces, and issuing particular chapter correspond to the
The final standard differs from the permits or implementing alternative source(s) of that chapter’s requirements;
earlier proposed standard. OSHA procedures. When the standard requires for example, the legal concept of
revised the proposal in response to a permit to enter a confined space, the ‘‘economic feasibility,’’ which is a key
numerous stakeholder comments, employer must maintain a written subject of section 7, is not recognized in
including those from the Office of program and review it annually, and E.O.s 12866 or 13563 or their associated
Advocacy of the Small Business prepare and post a permit for the space. guidance document, OMB Circular A–4.

7% Discount 3% Discount
rate rate
Annualized Costs
Evaluation, Classification, Information Exchange and Notification ......................................................................... $12.4 $12.2

Written Program, Issue Permits, Verify Safety, Review Procedures ...................................................................... $4.2 $4.2
Provide Ventilation and Isolate Hazards ................................................................................................................. $2.8 $2.7
Atmospheric Monitoring ........................................................................................................................................... $11.4 $11.3
Attendant .................................................................................................................................................................. $3.6 $3.6
Rescue Capability .................................................................................................................................................... $8.2 $7.6
Training .................................................................................................................................................................... $11.3 $11.3
TABLE IV–1—NET BENEFITS—Continued

rate rate
Other Requirements ................................................................................................................................................ $6.4 $6.3
Total Annual Costs ........................................................................................................................................... $60.3 $59.2
Annual Benefits
Number of Injuries Prevented .............................................................................................................................................................. 780

Number of Fatalities Prevented ........................................................................................................................................................... 5.2
Monetized Benefits .............................................................................................................................................................................. $93.6
Net Annual Monetized Benefits (Benefits Less Costs)
$33.3 $34.4
The remainder of this FEA contains reiterates that requirement. In the To the extent that the sum of the costs
the following chapters: absence of this regulation, many of wage premiums and compensation
2. The Need for Regulation construction employees would not for damages accurately represent the
3. Profile of Affected Industries know about or recognize the hazards total damages associated with
4. Benefits and Net Benefits that confined spaces, or the procedures workplace accidents, the rational
5. Technological Feasibility to follow to protect against such employer will accordingly arrive at the
6. Costs of Compliance hazards. Even those employees with socially optimal level of accident
7. Economic Feasibility Analysis and years of experience in construction prevention from an economic efficiency
Regulatory Flexibility work may lack training on confined viewpoint.
Determination spaces, information about specific Consequently, the major possible
8. Final Regulatory Flexibility Analysis onsite confined-space hazards, sources of market failure, resulting in an
9. Sensitivity Analysis equipment needed to monitor and ‘‘under-provision’’ of health and safety,
10. References ventilate confined spaces, or rescue would be either: (1) The existence of
procedures and equipment. occupational accident costs borne
2. The Need for Regulation
The final standard for confined spaces neither by the employee nor by the
OSHA previously considered non- in construction addresses these employer, or (2) the wage premiums or
regulatory alternatives and established problems. The benefits analysis compensation for damages are not fully
the need for regulation of work in presented in Chapter 4 of this FEA responsive to changes in employer-
confined spaces when it promulgated shows that many accidents are specific workplace risk. Both cases
the general industry standard (58 FR potentially preventable with better apply here.
4548). The Agency asserts that the same information on confined spaces and In the first case, there are some non-
need for regulation applies when worksite conditions and the proper fatal occupational injury and illness
employers are entering these spaces to confined-space procedures and costs incurred by neither the employer
perform construction work. Confined equipment. When employers provide nor the employee. For instance, neither
spaces in construction expose confined-spaces training, that training employers nor employees have a vested
employees to a variety of significant may be incomplete or ineffective in the interest in Federal and State taxes that
hazards, including engulfment, electric absence of a specific set of construction go unpaid as a result of an employee
shock, burn, and atmospheric hazards requirements addressing training for injury. Such taxes typically represent 15
that cause serious injury and death. confined spaces. percent (for Social Security alone) to 26
Although better compliance with To better understand the market percent of the total value of the income
existing safety standards may prevent failures that make this final rule loss to the employee (IRS, 2013; Urban
some of these incidents, research and necessary, OSHA examined the Institute/Brookings, 2012).28 Workers’
analyses conducted by OSHA found that economic incentives that underlie compensation payments are not subject
many preventable injuries and fatalities employer decisions with respect to to Federal income or Social Security
would continue to occur even if workplace safety and health. An taxes (IRS, 2012), and many studies find
employers fully complied with the employee typically accepts the risks that income losses not compensated by
existing standards. Relative to full associated with a particular job in return workers’ compensation are significant
compliance with the existing standards, for two forms of compensation: (1) A (NASI, 2012).
OSHA estimates, in Chapter 4 of this wage premium for assuming that risk; In the second case, as discussed
FEA, that full compliance with the final and (2) expected compensation for below, the costs employers pay in
standard would prevent an estimated damages in the event of occupational compensation for damages or wage
additional 780 injuries and 5.2 fatalities injury or illness. The rational profit-
premiums are not fully responsive to

annually. maximizing employer will make changes in employer-specific workplace
Executive Order 12866 provides that investments in workplace safety to risk. Accordingly, most employers cover
‘‘[e]ach agency shall identify the reduce the level of risk to employees compensation for injured employees
problem that it intends to address [via only if such expenditures result in at
regulation] . . . including, where least an offsetting reduction in the 28 The average Federal tax rate for 2009 for the
applicable, the failures of private employer’s payouts of wage premiums middle quintile of household income was 11.1
markets.’’ Executive Order 13563 for risk and compensation for damages. percent (Urban Institute/Brookings, 2012).
through workers’ compensation know that their work is dangerous, or 3. Profile of Affected Industries
insurance. (Some very large employers even know quantitatively that their This chapter presents a profile of the
may self-insure in some states.) States occupation has a specific risk. industries affected by the final standard
highly regulate premiums for workers’- Employees must know the exact types, for confined spaces in construction. It
compensation insurance and, generally, and the likely quantitative effects, of includes, for each affected industry,
employ a combination of a class rating safety measures and systems used by estimates of the number of firms,
and an experience rating in deriving their employers; have a reasonable establishments, and employees, as well
premiums (NCCI, 2013; Ashford, 2006). expectation that their employer will as the estimated number of
States base the class rating on the continue to provide existing safety establishments affected annually by the
average risk for employees in the same measures in the future; and be able to final standard. It also includes the
occupations as those working for the act on their knowledge of risk by readily number and characteristics of entries
employer. The basis of the experience changing workplaces or wage demands into confined spaces covered by the
rating is the employer’s actual workers’- in response to differences in levels of final standard.
compensation claims over the past risk.31 OSHA believes that even skilled A preliminary profile of industries
several years. States use class rating for construction workers (including some appeared in OSHA’s Preliminary
almost all very small firms and some workers injured in accidents Economic Analysis (PEA) that
medium-sized firms. Very large firms preventable by the final rule who fall accompanied the proposed standard
use either experience rating, but it takes into that category) lack such detailed (ID–002). For this final analysis, OSHA
several years before their insurance employer-specific knowledge, or the updated the profile to reflect the latest
premiums account fully for changes in ability to act on it. Further, construction available data from the Bureau of Labor
their workplace safety performance. employees who typically work at a Statistics, the Bureau of the Census, the
States assign many firms a combination variety of different sites, including sites Internal Revenue Service, and other
of class and experience ratings.29 As a controlled by multiple employers, will authoritative sources and to address
result, most employers will not receive find it particularly challenging to public comments. In addition, the
full or prompt reductions in their determine future risk levels, as these Agency organized the industries in this
workers’ reduced premiums for the levels will vary from site to site.
expenditures they made to prevent final analysis according to the North
In summary, OSHA believes that: (1) American Industry Classification
workplace injuries, illnesses, and Neither employers nor employees
fatalities. From a societal perspective, System (NAICS) rather than the
absorb the full costs of occupational Standard Industry Classification (SIC)
the result is an insufficient level of injuries and fatalities; and (2) wage
worker protection. system used in the PEA. This was
premiums and workers’-compensation necessary because OSHA wished to
Furthermore, workers’ compensation insurance are not sufficiently responsive
covers only a small fraction of most update the analysis using more recent
to variations in risk to assure that economic data and the more recent
estimates of the willingness to pay to employers will reduce risk to the
prevent a fatality.30 Additionally, economic data uses the NAICS rather
socially optimal level. This final rule, than the SIC system.
workers’ compensation payments do not therefore, is necessary to address market
fully compensate injuries in that An analysis conducted by CONSAD
failures and insufficient levels of worker Research Corporation under contract
workers’ compensation provides no safety that result from externalities and
payments for pain and suffering, or with OSHA served as the basis for the
information asymmetries. PEA (ID–003). The CONSAD report
losses other than lost wages or medical
OMB’s Circular A–4 (OMB, 2003) relied on a variety of sources, including
expenses associated with injuries. There
states that ‘‘a demonstration of information provided by a panel of
is extensive evidence that workers’
compelling social purpose and the construction industry safety experts in
compensation does not even fully
likelihood of effective action’’ may 1995 regarding characteristics of, and
restore wages lost as a result of long-
provide the basis for a Federal entries into, confined spaces for 25
term disability (Ashford, 2006).
Having to pay wage premiums for risk regulation. The OSH Act provides a categories of construction projects, as
is another economic incentive for Congressional finding as to the well as compliance rates for provisions
employers to mitigate occupational risk. compelling social need for assuring of the proposed standard. CONSAD
However, wage premiums do not occupational safety. Congress declared used F.W. Dodge data to estimate the
respond strongly to variations in risk that the purpose of the OSH Act is ‘‘to number of construction-project starts for
level due to information asymmetries. assure so far as possible every working each project category, by size of project
For an employer to have an adequate man and woman in the Nation safe and One commenter, the Associated
incentive to implement measures that healthful working conditions.’’ 29 General Contractors of America (AGCA),
will prevent workplace incidents, it is U.S.C. 651(b). Further, by emphasizing presented an alternative economic
not sufficient that employees simply ‘‘every working man and woman,’’ analysis of the proposed rule, prepared
Congress expressed an interest in by Dr. N. Mike Helvacian, based in part
29 Premiums due to class rating, by definition, do preventing unsafe workplaces to the on a survey of AGCA’s members (ID–
not vary with an individual employer’s injury extent feasible, not simply in assuring 222). That economic analysis suggested
experience. There is some empirical evidence, that, on average, workplaces are safe.
using a difference in differences methodology,
that the PEA omitted five affected
showing that (small) firms that move from class
Thus, while some employers are industries, including, by NAICS code:
rating to experience rating decrease their total excessively cautious about risk, while 238210 (Electrical Contractors); 221119
claims by 8 to 12 percent (Neuhauser et al., 2013). others are insufficiently cautious, (Utilities—Other Electric Power
30 While workers’ compensation varies by state,

OSHA’s concern needs to be with the Generation); 221310 (Utilities—Water
Leigh and Marcin (2012) estimate that the average insufficiently cautious employers.
indemnity benefit for a fatality is $225,919, far less Supply Irrigation); 236118 (General
than willingness-to-pay estimates. For example, as Contractors in Residential Modeling);
explained in Chapter 4 of this FEA, OSHA uses a 31 Furthermore, bargaining power differences or
and 238220 (Plumbing, Heating and Air
willingness-to-pay measure of $8.7 million per life external constraints must not interfere in the wage
saved in 2009 dollars. Other agencies use different setting process as these factors do in circumstances
Conditioning Contractors). OSHA
estimates, but all the values are in the millions of such as monopsony or multiemployer collective- included these five industries, other
dollars. bargaining agreement. than NAICS 221119 (Utilities—Other
Electric Power Generation), in the construction projects in this analysis by 2007 Statistics of U.S. Businesses from
industry profile, and in the estimation adding NAICS code 236115, New the Census Bureau adjusted to 2009
of compliance costs, for the final Single-Family Housing Construction dollars using the GDP deflator. This is
standard. (except Operative Builders), to the scope the same source of data used in the PEA.
For electric power-generation of this FEA. These industries contain an estimated
industries (NAICS 221111, NAICS In addition, OSHA believes that some combined total of over 500,000
221112, and NAICS 221113, in addition residential remodeling projects, such as establishments and nearly 5 million
to NAICS 221119, in the 2007 version of an expansion of an apartment building employees. The annual combined
NAICS), OSHA believes that most of the or upgrading HVAC systems, plumbing,
revenues of these industries in 2007
confined-space entries performed are for or electrical systems in multi-family
came to nearly $1.3 trillion (in 2009
maintenance and repair subject to housing, may constitute construction
General Industry requirements under activity. Therefore, for this FEA, OSHA dollars). Commercial and Institutional
§§ 1910.146 and 1910.269. When the added costs for employers with Building Construction (NAICS 236220),
size and scope of a project involving confined spaces in residential the largest of these industries in terms
entry into confined spaces is large or remodeling projects to comply with the of annual revenue, accounted for about
complex enough that the work is final standard. $393 billion of this total. However, due
construction work as defined in Another commenter stated that the to the type of the activity addressed by
§ 1910.12(b), electric utilities typically CONSAD report ‘‘specifically excludes this rule, OSHA modeled only a small
hire contractors in industries that are gas, water, sewer and municipal work fraction of establishments in the affected
already included in this FEA to perform from their analysis. It is erroneous for industries as performing construction
the work and confined-space entry. . . . the entire sewer construction activities in confined spaces and bearing
Consequently, OSHA concluded that industry to be excluded from the the associated compliance costs in a
employers in NAICS 221119 will economic analysis’’ (ID–091). OSHA given year.32
themselves rarely, if ever, perform work points out that the PEA did not exclude
OSHA updated the PEA estimates of
covered by this final rule and, thus, will the entire sewer-construction industry.
Rather, the PEA excluded new water- before-tax profit rates in Table IV–3
incur no direct costs or negligible direct
costs to comply with the final standard. and sewer-line construction projects using more recent corporate balance-
By the same reasoning, OSHA did not because such work typically involves sheet data from the Internal Revenue
in the PEA, and did not in this FEA, smaller lines and, therefore, does not Service’s Corporation Source Book (IRS,
include any other electric power- typically involve entries covered by the 2013). This is a more recent edition of
generation industries in its industry rule. However, OSHA included entries the same source of data used in the PEA.
profile or in its estimation of into existing storm sewers, sanitary For each of the years 2003 through 2007,
compliance costs for the final standard. sewers, and sewer manholes for the Agency calculated profit rates as the
Other commenters, including SBA construction work, including entries ratio of total receipts to net income by
Advocacy, pointed out that OSHA did involved in storm sewer and flood- NAICS group, and averaged profit rates
not include single-family housing control projects and sewer-, water-, and across the five-year period (2003–2007).
projects in the analysis of compliance waste-treatment plants, both in the PEA Since some data provided by the IRS
costs in the PEA (see ID–119 and ID– and in this FEA. OSHA also discusses were not available at disaggregated
219). In its original analysis, the Agency in the economic feasibility analysis the levels for all industries and profit rates,
excluded single-family housing projects, possibility that establishments in OSHA used data at more highly
in part because the previously industries that seldom have confined aggregated levels as a proxy for such
mentioned panel of industry experts space entries might occasionally have industries—that is, where data were not
found that such projects did not have one. available for each six-digit NAICS code,
entries into confined spaces covered by OSHA concludes that the final
standard will affect establishments in 15 OSHA used corresponding four- and
the standard (see ID–003, p. 3.54).
Comments in the record generally six-digit NAICS codes. In particular, the five-digit NAICS codes, as appropriate.
indicate that there are a limited number standard will affect firms that perform Table IV–4 presents profile data for
of confined-space entries in these construction work involving buildings, firms defined as small entities by the
projects. For example, the National highways, bridges, tunnels, utility lines, Small Business Administration (SBA),33
Association of Home Builders (NAHB) and other types of projects. Also and Table IV–5 presents profile data for
noted that ‘‘there is very limited potentially affected by the final rule are very small entities, defined as firms
exposure to confined space hazards in general contractors, as well as specialty- with fewer than 20 employees. Table
residential construction’’ (ID–117). In a trade construction contractors and IV–6 presents OSHA’s estimated
post-hearing brief, NAHB explained that property owners. compliance rates for key provisions of
‘‘although it will happen only Table IV–2 provides information on the final standard, which it discusses in
occasionally, permit spaces may arise in the estimated number of projects for Chapter 6 of this FEA. Table IV–7
residential home construction, perhaps each type of construction activity, as presents the wage rates, in 2009 dollars,
when a subcontractor brings certain well as the estimated number of entrants for the labor categories used in OSHA’s
chemicals . . . into a confined space, per entry, number of entries, and
cost analysis, while Table IV–14 in
such as into a crawl space, attic, or a worker-entry hours in confined spaces.
Chapter 6 of this FEA presents other
basement before steps are installed’’ OSHA based this information on the
(ID–219). OSHA agrees that, although estimates originally provided in the unit-cost data used in the analysis.
entry into confined spaces to conduct CONSAD report.

work on home-building construction Table IV–3 presents profile data on
sites is rare, it cannot rule out some the number of establishments, the 32 Only some construction projects involve entry
potential for exposure to confined-space number of employees, and revenues and into confined spaces.
33 OSHA converted revenue cutoffs for small
hazards for this sector of the profits for each affected industry sector.
business designation to the closest employee
construction industry. Therefore, OSHA The Agency updated this table from the
number cutoffs so that it could apply available
included single-family home PEA using the more recent data from the business census employment numbers.
TABLE IV–2—SUMMARY STATISTICS ON MODELED WORKER ENTRIES INTO CONFINED SPACES, BY TYPE OF CONSTRUCTION ACTIVITY AND PROJECT SIZE
Total Average number of confined spaces Number of Total Number of
Average Number of Total
number of per project Total worker worker worker-
Total number of entries into entries into Total worker
projects number of entries into entries into hours in
Project category number of workers in confined confined hours all
with confined confined confined confined
projects an entry spaces per spaces, all projects a
VerDate Sep<11>2014
confined Existing New All spaces spaces per spaces, all spaces per
team project projects
spaces project projects project
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
20:26 May 01, 2015

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
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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
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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
Frm 00095
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
Fmt 4701
Apartments, Hotels, and Dormitories:
All Projects ............................................................................................ 4,258 426 3 12 15 6,387 2 44 18,735 74 31,509 140 59,612
Streets and Highways:
Repair Storm Drain/Sewer Local Street ............................................... 11,893 1,784 4 5 9 16,056 2 17 30,327 29 51,735 113 202,181
Install New Storm Drain/Sewer System ............................................... 8,325 2,914 10 7 17 49,534 2 321 935,314 544 1,585,080 2,764 8,053,119
Sfmt 4700
Lane Expansion on Major Interstate ..................................................... 3,568 1,784 15 13 28 49,952 2 721 1,286,264 1,463 2,609,992 6,765 12,068,165
Bridges:
Small Project ......................................................................................... 952 952 0 46 46 43,792 3 442 420,784 1,324 1,260,448 1,988 1,892,576
Medium Project ..................................................................................... 2,011 1,006 0 96 96 96,528 3 742 746,081 2,524 2,537,882 2,388 2,401,134
Large Project ......................................................................................... 808 404 0 196 196 79,184 3 1,342 542,168 4,924 1,989,296 3,188 1,287,952
Dams and Reservoirs:
Small Project ......................................................................................... 208 10 1 1 1 10 2 2 21 4 42 32 333
Medium Project ..................................................................................... 468 164 2 0 2 328 4 40 6,552 160 26,208 640 104,832
Large Project ......................................................................................... 48 24 0 3 3 72 17 810 19,440 15,300 367,200 46,800 1,123,200
Storm Sewers and Flood Control:
Small Project ......................................................................................... 2,489 2,489 21 2 23 57,247 1 26 64,714 26 64,714 80 198,290
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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
04MYR2
New Construction .................................................................................. 1,179 1,179 0 58 58 68,382 2 163 192,177 229 269,991 743 875,408
Tanks:
Minor Installation/Renovation (Small Contractor) ................................. 540 216 0 6 6 1,296 1 9 1,944 9 1,944 5 1,116
Minor Installation/Renovation (Medium Contractor) ............................. 294 176 0 9 9 1,588 1 139 24,520 163 28,753 340 59,888
New Construction/Major Renovation (Large Contractor) ..................... 147 118 0 11 11 1,294 4 389 45,746 1,421 167,110 5,364 630,748
Hydro-Electric Power Plants:
Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations
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
25459
Large Project ......................................................................................... 13 12 4 3 7 86 2 138 1,704 276 3,409 1,104 13,634

TABLE IV–2—SUMMARY STATISTICS ON MODELED WORKER ENTRIES INTO CONFINED SPACES, BY TYPE OF CONSTRUCTION ACTIVITY AND PROJECT SIZE—
Continued
25460
Total Average number of confined spaces Number of Total Number of

Average Number of Total
number of per project Total worker worker worker-
Total number of entries into entries into Total worker
VerDate Sep<11>2014
projects number of entries into entries into hours in
Project category number of workers in confined confined hours all
with confined confined confined confined
projects an entry spaces per spaces, all projects a
confined Existing New All spaces spaces per spaces, all spaces per
team project projects
spaces project projects project
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:
20:26 May 01, 2015

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
Jkt 235001
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.
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Fmt 4701
Sfmt 4700
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04MYR2
Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations
TABLE IV–3—PROFILE OF INDUSTRIES AFFECTED BY THE FINAL STANDARD ON CONFINED SPACES IN CONSTRUCTION
Estimated Estimated
Total annual
Total number Total number of
number of number of
NAICS Industry of firms in employment establishments
establishments projects with
industry in industry affected
in industry confined annually
spaces
221310 ......... Water Supply and Irrigation Systems ........ 3,579 4,068 33,017 66 65
236115 ......... New Single-Family Housing Construction 61,262 61,613 282,851 1,340 1,321
(except Operative Builders).
236116 ......... New Multifamily Housing Construction (ex- 4,319 4,373 46,634 1,482 883
cept 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 Struc- 13,679 13,872 206,899 3,980 2,765
tures Construction.
237130 ......... Power and Communication Line and Re- 5,099 5,750 196,223 341 341
lated Structures Construction.
237310 ......... Highway, Street, and Bridge Construction 10,953 11,746 323,289 8,843 4,275
237990 ......... Other Heavy and Civil Engineering Con- 5,200 5,392 91,545 1,598 965
struction.
238190 ......... Other Foundation, Structure, and Building 5,701 5,720 45,035 2,680 1,182
Exterior Contractors.
238210 ......... Electrical Contractors and Other Wiring In- 79,011 80,172 825,169 2,680 2,680
stallation Contractors.
238220 ......... Plumbing, Heating, and Air-Conditioning 99,374 100,806 1,012,541 2,935 2,934
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 Estimated Average profit

Revenues revenues Profit rate
NAICS Industry profits per firm
($ thousand) per firm (percent) ($ thousand) ($ thousand)
($ thousand)
221310 ......... Water Supply and Irrigation Systems ........ $7,999,900 $2,235 5.89 $471,431 $132
236115 ......... New Single-Family Housing Construction 103,600,723 1,691 4.53 4,692,648 77
236116 ......... New Multifamily Housing Construction (ex- 24,939,736 5,774 4.53 1,129,658 262
236118 ......... Residential Remodelers ............................ 75,344,805 757 4.53 3,412,781 34
236210 ......... Industrial Building Construction ................. 26,486,027 6,865 4.53 1,199,698 311
236220 ......... Commercial and Institutional Building 392,958,284 9,519 4.53 17,799,246 431
Construction.
237110 ......... Water and Sewer Line and Related Struc- 51,808,802 3,787 5.98 3,099,719 227
tures Construction.
237130 ......... Power and Communication Line and Re- 35,528,777 6,968 5.98 2,125,685 417
237310 ......... Highway, Street, and Bridge Construction 112,052,152 10,230 5.98 6,704,076 612
237990 ......... Other Heavy and Civil Engineering Con- 24,090,901 4,633 5.98 1,441,358 277
struction.
238190 ......... Other Foundation, Structure, and Building 7,085,701 1,243 4.58 324,258 57
238210 ......... Electrical Contractors and Other Wiring In- 129,184,454 1,635 4.54 5,864,637 74
238220 ......... Plumbing, Heating, and Air-Conditioning 167,754,151 1,688 3.86 6,470,472 65
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

TABLE IV–4—PROFILE OF SBA-DEFINED SMALL ENTITIES WITHIN INDUSTRIES AFFECTED BY THE FINAL STANDARD ON
CONFINED SPACES IN CONSTRUCTION
Estimated
Total Estimated
Total number Total annual
number of number of
of firms in employment number of
NAICS Industry establishments establishments
industry-size in industry-size projects with
in industry-size affected
grouping grouping confined
grouping annually
spaces
236115 ......... New Single-Family Housing Construction 61,065 61,125 241,095 953 953
236116 ......... New Multifamily Housing Construction (ex- 4,208 4,218 31,694 828 728
Construction.
237110 ......... Water and Sewer Line and Related Struc- 13,348 13,379 140,854 2,272 2,272
tures Construction.
237310 ......... Highway, Street, and Bridge Construction 10,205 10,255 134,875 2,784 2,784
237990 ......... Other Heavy and Civil Engineering Con- 5,001 5,011 45,364 584 584
struction.
238190 ......... Other Foundation, Structure, and Building 5,638 5,650 35,003 1,763 1,112
238210 ......... Electrical Contractors and Other Wiring In- 77,933 78,115 558,977 1,446 1,446
238220 ......... Plumbing, Heating, and Air-Conditioning 98,267 98,468 727,726 1,722 1,722
Contractors.
238310 ......... Drywall and Insulation Projects ................. 21,264 21,304 176,689 1,130 1,130
Total .................................................... 489,841 496,340 3,247,574 31,116 26,985
Average Estimated Average profit

Revenues revenues per Profit rate
NAICS Industry profits per firm
($ Thousand) firm (%) ($ Thousand) ($ Thousand)
($ Thousand)
221310 ......... Water Supply and Irrigation Systems ........ $2,510,882 $713 5.89 $147,965 $ 42
236115 ......... New Single-Family Housing Construction 76,651,638 1,255 4.53 3,471,975 57
236116 ......... New Multifamily Housing Construction (ex- 15,147,671 3,600 4.53 686,122 163
236210 ......... Industrial Building Construction ................. 10,421,351 2,827 4.53 472,040 128
Construction.
237110 ......... Water and Sewer Line and Related Struc- 32,860,609 2,462 5.98 1,966,049 147
tures Construction.
237130 ......... Power and Communication Line and Re- 15,098,169 3,012 5.98 903,323 180
237310 ......... Highway, Street, and Bridge Construction 43,921,533 4,304 5.98 2,627,824 258
237990 ......... Other Heavy and Civil Engineering Con- 10,427,684 2,085 5.98 623,888 125
struction.
238190 ......... Other Foundation, Structure, and Building 5,277,635 936 4.58 241,517 43
238210 ......... Electrical Contractors and Other Wiring In- 80,826,690 1,037 4.54 3,669,320 47
238220 ......... Plumbing, Heating, and Air-Conditioning 111,089,247 1,130 3.86 4,284,841 44
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

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 Total
of establish- annual number number of es-
of firms in employment in
NAICS Industry ments in of projects tablishments
industry-size industry-size
industry-size with confined affected
grouping grouping
grouping spaces annually
236115 ......... New Single-Family Housing Construction 59,376 59,385 185,153 580 580
236116 ......... New Multifamily Housing Construction (ex- 3,760 3,761 15,035 271 271
Construction.
237110 ......... Water and Sewer Line and Related Struc- 11,242 11,242 57,685 642 642
tures Construction.
237310 ......... Highway, Street, and Bridge Construction 8,011 8,014 42,634 601 601
237990 ......... Other Heavy and Civil Engineering Con- 4,321 4,323 18,871 166 166
struction.
238190 ......... Other Foundation, Structure, and Building 5,244 5,244 19,607 706 706
238210 ......... Electrical Contractors and Other Wiring In- 71,144 71,156 297,375 544 544
238220 ......... Plumbing, Heating, and Air-Conditioning 89,245 89,255 388,409 655 655
Contractors.
238310 ......... Drywall and Insulation Projects ................. 18,832 18,837 77,284 336 336
Total .................................................... 450,744 450,825 1,724,451 13,035 13,032
Average reve- Estimated Average profit

Revenues Profit rate
NAICS Industry nues per firm profits per firm
($ Thousand) (percent)
($ Thousand) ($ Thousand) ($ Thousand)
221310 ......... Water Supply and Irrigation Systems ........ $1,814,859 $532 5.89 $106,949 $31
236115 ......... New Single-Family Housing Construction 58,016,827 977 4.53 2,627,902 44
236116 ......... New Multifamily Housing Construction (ex- 6,202,571 1,650 4.53 280,949 75
236210 ......... Industrial Building Construction ................. 4,744,855 1,471 4.53 214,921 67
Construction.
237110 ......... Water and Sewer Line and Related Struc- 12,423,307 1,105 5.98 743,286 66
tures Construction.
237130 ......... Power and Communication Line and Re- 3,755,169 945 5.98 224,672 57
237310 ......... Highway, Street, and Bridge Construction 14,530,558 1,814 5.98 869,363 109
237990 ......... Other Heavy and Civil Engineering Con- 4,349,517 1,007 5.98 260,231 60
struction.
238190 ......... Other Foundation, Structure, and Building 2,892,942 552 4.58 132,388 25
238210 ......... Electrical Contractors and Other Wiring In- 40,914,727 575 4.54 1,857,422 26
238220 ......... Plumbing, Heating, and Air-Conditioning 55,526,805 622 3.86 2,141,733 24
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

TABLE IV–6—ESTIMATED COMPLIANCE RATES FOR CONSTRUCTION PROJECTS AFFECTED BY OSHA’S FINAL STANDARD
FOR CONFINED SPACES IN CONSTRUCTION
[By project category]
Written Classify
programs
Entrant Information spaces and Lockout/ Mechanical Rescue
(and formal Attendants
Project category training (a) exchange issue tagout ventilation capability
annual (percent)
(percent) (percent) permits (percent) (percent) (percent)
review) (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
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:
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
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
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 Con-
tractor) .................................................... 60 45 40 85 64 71 67 71
Minor Installation/Renovation (Medium
Contractor) .............................................. 71 60 60 93 71 78 82 78
New Construction/Major Renovation
(Large Contractor) .................................. 85 80 80 96 82 85 89 85
Hydroelectric Power Plants:
Small Project .............................................. 64 90 95 96 100 71 86 N/A
Medium Project .......................................... 82 95 100 100 N/A 78 100 N/A
Large Project .............................................. 89 95 100 100 N/A 86 100 N/A
Other Power Plants:
Large Project .............................................. 96 95 95 100 N/A 96 100 96
Electric Substations:
Small 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
Space Facilities:
Small Project .............................................. 93 90 90 100 N/A 93 N/A N/A
TABLE IV–6—ESTIMATED COMPLIANCE RATES FOR CONSTRUCTION PROJECTS AFFECTED BY OSHA’S FINAL STANDARD
FOR CONFINED SPACES IN CONSTRUCTION—Continued
[By project category]
Written Classify
programs
Entrant Information spaces and Lockout/ Mechanical Rescue
(and formal Attendants
Project category training (a) exchange issue tagout ventilation capability
annual (percent)
(percent) (percent) permits (percent) (percent) (percent)
review) (percent)
(percent)
Medium Project .......................................... 93 90 90 100 N/A 93 N/A N/A

Large Project .............................................. 93 90 90 100 N/A 93 N/A N/A
Manufacturing Facilities:
(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).
TABLE IV–7—LOADED HOURLY LABOR Independent researchers found that a prevented by full compliance, and then
RATES APPLIED IN OSHA’S COST similar system in general industry applied monetary values to them. Table
ANALYSIS OF THE FINAL STANDARD significantly reduced confined-spaces IV–8 shows the Agency’s estimate of the
FOR CONFINED SPACES IN CON-
incidents (Seong and Mendeloff, annualized monetary benefits associated
Assessing the Accuracy of OSHA’s with the final standard. The remainder
STRUCTION
Projections of the benefits of New Safety of this section details OSHA’s
[2009 dollars] Standards, 2004). The Seong and methodology for estimating those
Mendeloff paper estimates at least a fifty benefits.
Labor category Wage rate percent reduction in total deaths in two
BLS fatality categories: ‘‘inhalation in TABLE IV–8—ESTIMATED VALUE OF
Construction supervisor ........ $42.16
enclosed, restricted, or confined ANNUALIZED BENEFITS *
Skilled worker ....................... 29.60
spaces,’’ and ‘‘depletion of oxygen in
General construction em-
ployee ................................ 24.93
enclosed, restricted, or confined Benefits Number Monetized value
Clerical employee ................. 22.53 spaces,’’ following the implementation
Fatalities Avoid- 5.2 $45.2 million. a
Unskilled worker ................... 22.67 of the general industry rule. These two ed.
categories would include a number of
Source: Department of Labor, OSHA, Direc- kinds of events not covered by the Injuries Avoided 780 $48.4 million. b
torate of Standards and Guidance, Office of general industry confined space
Regulatory Analysis-Safety, based on data Total ............. .............. $93.6 million.
from Bureau of Labor Statistics 2009 Occupa- standard, such as inhalation of toxic
tional Employment Statistics (OES) Survey. substances in a room (for example, there * In 2009 dollars.
a Based on an estimated value of $8.7 mil-
are some fatalities every year from using
4. Benefits and Net Benefits lion per fatality avoided.
paint or paint strippers in ordinary b Based on an estimated value of $62,000
Introduction rooms not adequately ventilated for the per injury avoided.
purposes of heavy chemical use that
The final standard will improve the nevertheless would not be confined Estimation of Prevented Fatalities
safety of workers who encounter spaces). These kinds of events would be In the analysis CONSAD Research
confined spaces in construction. included in the denominator of Seong Corporation (CONSAD) submitted to
Confined spaces represent special safety and Mendeloff analysis but would not OSHA and which OSHA reviewed and
problems because it can be difficult to be affected by the general industry approved for use in the PEA, the
exit them and it may be difficult to confined space rule. The Seong and CONSAD researchers used OSHA’s
provide aid if an incident occurs in a Mendeloff analysis does not attempt to Integrated Management Information
confined space. There are also certain determine if the incidents included in System (IMIS) and the Bureau of Labor
types of hazards, such as low oxygen its analysis occurred in a confined Statistics (BLS) Census of Fatal
levels, accumulations of dangerous space, much less whether the confined Occupational Injuries (CFOI) to develop
gases, and engulfment by water that are spaces rule was being followed. OSHA the estimated safety benefits or the
particularly likely to be found in believes that most of the remaining number of fatalities and injuries
confined spaces. As a result, OSHA confined space incidents in general potentially avoided as a result of this
developed a programmatic approach to industry are the result of failure to standard. Using these sources, CONSAD
assure the safety of workers who must follow that standard. Compliance with gathered data on the number of fatal and
work in the vicinity of confined spaces. the provisions of this standard will non-fatal construction-related accidents
This programmatic approach includes reduce accidents, injuries, and fatalities involving the entry of a confined space
provisions for identifying confined in confined spaces in construction. In by applying a search criterion relevant
spaces and the hazards they may particular, the number of injuries and to both confined spaces and
contain; removing the hazards if fatalities from causes such as construction work. For data collected
possible; restricting entry through a asphyxiation, lethal gas, chemical from the IMIS database, CONSAD
permit system where employers cannot burns, explosions, drowning, and failed searched for accident reports with
remove the hazard; providing rescue attempts will decline. construction industry SIC codes of 15,
appropriate testing and equipment For the Preliminary Economic 16, and 17, and then manually reviewed
when employees must enter a space; Analysis (PEA), OSHA developed those reports and the narratives of the
providing for attendants; and arranging estimates of the benefits associated with accidents for factors indicative of an
for rescue services when emergencies the proposed standard by estimating the enclosed or confined space-related
occur in a confined space. numbers of fatalities and injuries likely injury. Such factors included specific
types of environmental hazards, certain 24 fatalities. Due to the confidentiality CONSAD subsequently aggregated the
events and human errors, as well as the agreement made between CONSAD and data and drew the conclusion that full
type and source of an injury (see Section BLS, the details of these cases were not compliance with the standard would
4.1.1 of the CONSAD Report for a made available for public viewing. In an prevent, on average, 91 percent of the
detailed list of the factors; Docket ID: effort to be consistent with the data- fatalities and injuries.37 OSHA reviewed
OSHA–2007–0026–0003). Outside of the collection process used with the CFOI and approved the CONSAD analysis and
search criteria, CONSAD also reviewed data, CONSAD limited its analysis of applied this probability prevention rate
incident reports where the Agency cited the IMIS fatality and injury data to the to the fatality estimate of 6.44 fatalities
employers for violations of other OSHA period of 1992 to 2000. Using this per year, and estimated in the PEA that
standards involving constructions constraint, the IMIS data yielded a total full compliance with the provisions of
hazards similar to those hazards found of 44 accidents related to confined this standard would prevent an
in confined spaces; however, OSHA spaces in construction that resulted in estimated 5.9 (rounded to 6) confined-
assured that the analysis excluded any 34 fatalities and 39 injuries. Collectively spaces-in-construction fatalities per
cases involving a confined-space entry from these two data sources, CONSAD year.
or cases largely involving work activity was able to identify a total of 65 One commenter, Associated General
covered by OSHA standards—subpart P, accidents related to confined spaces in Contractors of America (AGCA),
subpart S, subpart V or any General construction during the period of 1992 commissioned a report by Dr. N. Mike
Industry standard. to 2000 in which 58 fatalities and 39 Helvacian (ID–222) that made several
For data collected from CFOI, BLS injuries occurred.34 criticisms of the methodology for
provided CONSAD with a research data For the PEA, OSHA used the 58 estimating prevented fatalities and
file, procured under a confidentiality selected fatalities from the 9-year period injuries in the PEA. The report
agreement, which contained detailed of 1992 to 2000 as a baseline to develop characterized the approach to assigning
information about work-related fatalities an estimate of the number of fatalities prevention probabilities to accidents as
such as employee occupation, industry, and injuries that this standard would ‘‘a subjective assessment that cannot be
worker activity, the type and source of potentially prevent. At that time, OSHA reproduced by other safety
the injury, the event, the location of the estimated that there was an average of professionals’’ (p. 57). Another
accident, as well as a narrative 6.44 35 confined-spaces-in-construction commenter stated that there was no
description as to how the injury fatalities per year. In Section 4.3 of the basis for the estimate that full
occurred. CONSAD used the BLS CONSAD Report, CONSAD, with the compliance with the final standard
Confined Space Fatality Study—1992 assistance of its safety professional, did would eliminate 90 percent of fatalities
(BLS, 1992b) as a reference guide for a further analysis of the fatality data and injuries (ID–100).
developing the screening criteria used to used to estimate the safety benefits in In light of such comments, as well as
identify fatal confined-space accidents the PEA and developed a methodology other comments received on the
in the CFOI file since the BLS study also for determining the likelihood of proposed rule and the PEA, OSHA
used CFOI data and defined a confined preventing an accident with full reevaluated the original fatalities used
space similar to OSHA’s General compliance with the provisions of this to develop the benefits estimates and
Industry confined-spaces standard. standard. Using the expertise of revised its values accordingly, as shown
Figure 4.1 of the CONSAD Report shows CONSAD’s safety engineer, CONSAD in Table IV–8. Based on the IMIS data,
a detailed list of the factors used to assigned each accident used in the the CONSAD analysis showed 44
screen the CFOI data file for confined- analysis a ranking of 1 to 4, with 1 accidents during the period of 1992 to
space accidents. Like the data used from meaning that it was highly unlikely that 2000 (listed in Appendix C.1 of the
the IMIS database, CONSAD manually the standard would prevent the victim’s CONSAD Report, beginning at CONSAD
reviewed each CFOI record and fatality or injury, and 4 meaning that is Accident Number 57 and ending with
eliminated any accident that did not was highly likely that the standard CONSAD Accident Number 100), of
involve a confined space or that would prevent the victim’s fatality or which 34 fatalities and 39 injuries were
involved work activity covered by injury. CONSAD then translated these reported.38 Of those 44 accidents, 27 of
another OSHA standard. rankings into probabilities that the them included fatalities listed, along
From the IMIS database, CONSAD standard would prevent each fatality or with their narratives, in Table IV–9
reviewed fatality and injury cases that injury, using percentages of 5 percent below.39
occurred during the period of April for a ranking of 1, 35 percent for a Due to a confidentiality agreement
1984 to October 2001, and identified a ranking of 2, 65 percent for a ranking of made with the Bureau of Labor
total of 102 accidents related to 3, and 95 percent for a ranking of 4.36 Statistics, OSHA did not include details
confined spaces in construction. These
accidents resulted in 84 fatalities and 88 34 While there is overlap between fatalities and some requirements, there are further protections to
injuries. The complete list of these injuries reported in OSHA IMIS and BLS CFOI, preventing fatalities and for reducing fatalities to
accidents, along with their narratives, is using information such as date, time, place, and injuries. The standard is unlikely to prevent any
names of affected individuals and firms allowed the fatalities only when the employer completely fails
available in Appendix C.1 of the to identify a space as a confined space and, thus,
contractor to find the unique incidents reported in
CONSAD Report. Since the CFOI each database. fails to take any of the appropriate measures.
program did not begin collecting work- 35 A commenter stated that ‘‘it is unknown and However, if there is a complete failure to identify
related fatality data from all 50 states not reported how OSHA has determined these a confined space, the employer will incur no costs.
37 Thus, the vast majority of the accidents had a
and the District of Columbia until 1992, figures. Practically, it is unknown how there could
be a .44 fatality’’ (ID–0100). OSHA notes that the rating of 4 and a 95 percent probability of
any data prior to 1992 was incomplete
estimated number of preventable fatalities can take prevention.

and, therefore, eliminated from further on decimal values since it is an average value. 38 Note that an accident could involve several
analysis. As a result, CONSAD only 36 CONSAD estimated a maximum effectiveness workers, with some injured and some killed.
reviewed cases from the CFOI research in preventing fatalities of 95 percent because the 39 Table IV–9 only provides the narratives of the
data file that occurred during the period researchers believed that even a reasonable effort at fatalities (with injuries omitted) shown in
compliance would not result in perfect compliance. Appendix C.1 of the CONSAD Report; the CONSAD
of 1992 to 2000, identifying a total of 21 OSHA believes that this percentage is very accident number listed for each accident in the
accidents related to confined spaces in conservative as the standard has multiple layers of table refers to the location of the narrative for that
construction that resulted in a total of protection that assure that even fail to comply with accident in the report.
of the accidents gathered from the CFOI identification of confined spaces would eliminate employee exposure to such
database in the PEA or this FEA. trigger the need for analysis and testing hazards during a confined-space entry
However, the CONSAD report provides for possible hazards, as well as and prevent some of these drownings.
a detailed description of the restrictions to prevent unauthorized For example, having water bypass an
methodology used to collect entry. To the extent employers find area, rather than relying on a plug to
construction-related accidents involving hazards but cannot remove them, a hold the water, would prevent some of
confined-space entries from the CFOI system of controls would go into place. these accidents. The ability to quickly
database; OSHA made this description This system would prevent casual entry remove an injured employee with a
available for public viewing and into confined spaces, such as occurred retrieval line would also prevent a fatal
commenting in the docket under Docket in CONSAD accident number 76 and accident in some cases. In many cases,
ID: OSHA–2007–0026–003. entry by an employee working alone as better hazard awareness, compliance
OSHA still believes that CONSAD’s occurred in the accidents with CONSAD with permit-program requirements that
analysis of the number of accidents that accident numbers 72 and 84.40 When prohibit entry when hazards are present,
would be prevented by the standard entry was necessary, there would need and the use of retrieval lines and other
given full compliance is reasonable. to be appropriate and continuous rescue procedures would make a
First, no existing standard provides a testing, and employers would have to difference.
comprehensive approach to confined install ventilation to remove the Based on this review, OSHA believes
spaces in construction. There is an atmospheric, or explosion and fire, that CONSAD’s estimate that the
existing construction standard requiring hazards, or provide appropriate PPE. standard would prevent 91 percent of
employers to train employees in Better data sharing also may prevent the confined-space fatalities in their
confined-space hazards. However, this some accidents, such as accident database seems reasonable. In almost all
existing standard does not specify what number 92. These factors would prevent cases, multiple provisions would, if
constitutes a confined space, nor does it most fatalities resulting from to fully followed, completely prevent the
specify the contents of the training that atmospheric or explosion hazards. fatalities. However, this estimate is in
would serve to prevent fatalities or To the extent these measures failed, some senses a maximum estimate of the
injuries due to confined-space hazards. the final standard also includes effectiveness of the standard. The
There are also rules governing specific provisions for rescue, and prohibitions estimate assumes full compliance, and
hazards, such as immediately dangerous against unauthorized rescue entries. OSHA’s experience in general industry
to life and health (IDLH) atmospheres Rescue provisions may not prevent all shows that perfect compliance with a
and hazardous gases, but OSHA did not fatalities that result from hazards such similar standard was not achieved.41 It
adapt these rules to the specific as explosions, but they can be crucial is also possible, though none of the
circumstances of confined spaces; when atmospheric hazards are present. accidents examined illustrate this
therefore, these rules are unlikely to Adequate rescue might prevent fatalities phenomenon, that an employer might
provide adequate protection to workers that do not result in instant death. For have confined space incident even
when they encounter the hazards within example, quick withdrawal of workers when in compliance with the standard
a confined space. As demonstrated by from an explosive atmosphere or due to an unanticipated equipment
the number of fatalities and injuries workers suffering from asphyxiation failure (such as an air hose developing
between 1992 and 2000, and confirmed (followed by adequate first-aid leaks) or gross human error (such as an
by the supplemental data indicating that measures) could prevent many fatalities. attendant falling asleep). However, not a
the fatalities and injuries continued to The rescue provisions would also single incident OSHA has examined
mount in more recent years, the existing prevent fatalities due to entry of occurred in a situation in which an
rules have not been effective in inadequately equipped rescuers, either employer was in compliance with the
preventing confined-space fatalities in by removing the need for entry provisions of the standard.
construction. OSHA shares the belief of (providing non-entry rescue capability) In this Final Economic Analysis
the ACCSH, as well as the other or by assuring that the rescuers have (FEA), OSHA revised its estimates with
industry representatives who adequate equipment for entry. Such the same methodology used in the PEA,
recommended that OSHA conduct this rescue-related fatalities occurred in but also added supplementary data (i.e.,
rulemaking, that a rule specific to accidents 72, 84, and 97, and nearly Table IV–10, described later in this
confined spaces in construction could occurred in several other accidents such section) whereby the Agency used new
prevent these fatalities in a way that as accident number 92. data to address a commenter’s point and
existing rules do not. In addition to atmospheric hazards, to confirm the continuing validity of the
Table IV–9 shows fatalities occurring Table IV–9 shows a few other types of original data.
as a result largely of atmospheric hazards. These include drowning and Several commenters questioned
hazards—either insufficient oxygen or physical hazards such as dislodged generally whether OSHA properly
the presence of lethal gases, particularly plugs. The provisions for upstream- included the accidents used to estimate
carbon monoxide or hydrogen sulfide— warning systems might prevent some of benefits in the PEA, but did not point
all of which this standard would these drownings. Several of the
prevent. This standard also could accidents involved physical hazards 41 Seong and Mendeloff (2004) have found that
prevent fatalities that resulted from past OSHA safety regulations’ effectiveness at
posed by pipe plugs (or exposure to the reducing occupational hazard-related mortality has
construction-related explosions or fires. physical hazards only temporarily been substantially lower than estimated by OSHA.
In addition, a number of the fatalities restrained by the pipe plug); the It should be noted that (1) OSHA is forecasting
were the result of would-be rescuers effectiveness with full compliance and Seong and
requirements in the final standard to Mendeloff measured effectiveness given actual

entering a confined space to assist remove or isolate physical hazards compliance, and (2) OSHA uses a fundamentally
another employee and succumbing to through physical barriers or other different approach to estimating benefits to this
the same hazard, a result this standard means, rather than temporarily (and most other) safety standards than was used in
would prevent. the analyses the Seong and Mendeloff study
controlling the physical hazards, would reviewed. Nevertheless, this study potentially
Perfect compliance with the final provides empirical support for the characterization
standard would prevent all of these 40 Hereafter, this discussion will refer to all of 91 percent as an upper bound in terms of the
fatalities in several ways. First, incidents by their CONSAD accident numbers. benefits that will actually be realized.
to any specific accidents that they understanding that private contractors indication of a causal link between the
would remove from the list of IMIS perform most sewer-construction general industry work cited and the
fatalities provided in the public record activities. fatality, OSHA is reluctant to remove
for this rulemaking. One of these Another commenter, Edison Electric these accidents. Moreover, even if these
commenters, the Associated General Institute, stated that the analysis did not fatalities were the result of general
Contractors of Texas—Highway, Heavy, explain the basis for determining how industry activity, OSHA believes that it
Utilities and Industrial Branch (AGCT), the included accidents involved should include these two fatalities as
stated that OSHA did not specify the construction work, and that the analysis prevented by the construction standard
industry sectors in which the fatalities should exclude ‘‘public sector’’ work because it is possible that the employer
and injuries occurred (ID–0124). (ID–210, Tr. pp. 98–100). OSHA limited believed the activities constituted
AGCT also asserted that ‘‘most the accidents that served as the basis of construction work and, therefore, not
potential exposures to confined space the benefits analysis in the PEA to covered by the general industry
hazards in the construction industry construction work based on the industry standard. With the promulgation of this
occur in connection with excavation code of the employer of the worker final rule, it will now be clear that all
operations,’’ and that other standards involved in the accident. The final confined spaces are subject to an OSHA
adequately address these hazards (ID– standard covers employers subject to standard, and that similar precautions
124). Another commenter stated that the OSHA enforcement authority and apply to these spaces.
PEA included accidents in trenches, engaged in construction activity not With respect to excavations, OSHA
while the proposed standard excluded covered by 29 CFR part 1926, subparts found only three accidents in which it
trenching work (ID–035). In response, Y—Commercial Driving Operations, cited the excavation standard (66, 80,
OSHA notes that the proposed standard P—Excavations, or S—Underground and 86). However, OSHA believes that
did not apply to non-sewer construction Construction, Caissons, Cofferdams, and in all three cases, the fatality occurred
work regulated by 29 CFR part 1926, Compressed Air, so the final standard in a confined space. The accident
subpart P—Excavations. However, the covers ‘‘public sector’’ work only to the investigator identified the worksite in
proposed standard applied to sewer extent that such work is within OSHA’s Accident 66 as a confined space.
work that fell under subpart P and, enforcement authority. To the extent Accident 80 describes an entry into a
therefore, the inclusion of some that ‘‘public sector’’ work means work manhole, which normally means a
accidents in trenches was consistent conducted by municipal employees, confined space. Accident 86 describes
with the scope of the proposed rule. OSHA refers to its response in the the activities as ‘‘finish up work,’’
Final § 1926.1201(b) eliminates the previous paragraph. implying the excavation phase of the
distinction between non-sewer In response to these criticisms, OSHA project was complete when the accident
construction work and other reviewed the fatalities in the CONSAD occurred.
construction work; the final standard IMIS database with respect to the issue Several of the accidents involved
clearly states that it does not apply to of whether a construction standard underground activities, so OSHA
work regulated by 29 CFR part 1926, would cover those accidents. First, the examined the accidents for citations to
subpart P. As a result, the FEA does not standard would cover municipal subpart S, OSHA’s underground
include the costs and benefits associated workers in state-plan states. However, construction standards. OSHA did not
with accidents occurring in trench- there is not a single instance in Table find any such citations and, therefore,
related activities unless they also IV–9 that identifies a municipal worker did not exclude any accidents on that
involve confined spaces other than the as a fatality. As CONSAD reported, all basis.
trench (e.g., a pipe placed inside the fatalities were for firms in a As a result of the decision, discussed
trench). construction SIC code, and not for firms in the cost analysis in this FEA, to
In addition, AGCT asserted, without in a local government SIC code. Some exclude costs in state-plan states that
support, ‘‘Most sewer related fatalities commenters may believe, incorrectly, adopted some provisions of a confined-
involve municipal workers who are not that contracted construction work spaces standard for construction, OSHA
covered by OSHA standards’’ and funded by a municipality in a non-state examined whether any of the fatalities
expressed concern that it would be plan state is not subject to OSHA involved citations to a state confined-
unfair and improper for OSHA to standards; if the work involves an spaces-in-construction standard. OSHA
include benefits to municipal workers employee of a private-sector employer, found two such cases—Accidents 67
not covered by OSHA standards (ID– that employer is subject to OSHA and 82. Accident 67 occurred in Alaska,
124). AGCT did not, however, point to standards regardless of whether or not a which has a comprehensive confined-
any examples in the IMIS fatality data local government funds the work. space-in-construction standard that
on the record that involved municipal OSHA then examined whether the included almost all of the provisions in
workers. OSHA reexamined the 1992– general industry standard or any other this final confined-space standard.
2000 IMIS data and did not find any OSHA standards covered the fatalities. OSHA decided not to include this
indication that these examples involved It is difficult to determine coverage from fatality in the list of fatalities that this
fatalities of municipal workers. the IMIS descriptions alone, so OSHA standard would prevent given full
Moreover, while AGCT’s assertion may examined what standards it cited at the compliance with the rule. Accident 82,
hold true with respect to the normal time of the fatality investigation. Even however, occurred in a state that
maintenance activities in sewers this approach may be unreliable because required only mechanical ventilation of
typically performed by municipal there may be a citation for a violation confined spaces, and no other
workers, AGCT did not distinguish in associated with a fatality inspection that provisions of this OSHA standard.
its comments between municipal- did not involve a violation that directly OSHA believes that a full confined-
worker fatalities resulting from sewer contributed to the fatality. OSHA found space program compliant with this
work performed as part of construction that only two fatality accidents (89 and standard would prevent this accident,
and normal maintenance activities. To 99) had any citations under general while a simple ventilation requirement
the contrary, it is OSHA’s industry standards. Absent a clear would not.
TABLE IV–9—CONFINED SPACES IN THE CONSTRUCTION INDUSTRY

FATAL ACCIDENTS AND INJURIES—1992–2000
[As listed in the Consad report]
Number of
Industry SIC Inspection/
Consad accident No. Year Type of confined space reported
code activity No.
fatalities
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 Em-
ployee #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 lit-
tle 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 mechan-
ical ventilation was used. No rescue equipment was available.
61 ............................... 1992 1799 Other ............................................................................ 1 115562290
At approximately 7:45 a.m. on October 27, 1992, Employee #1 was preparing to fiberglass the interior surface of a swimming pool that meas-
ured 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 ace-
tone 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.
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 back-
ward 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 viola-
tions of R408.40121(1), R408.40121(2), and R408.41115(8).
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
Employee #1 entered a confined space with a lighted torch. The atmosphere was not tested and contained an explosive concentration of pro-
pane 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
Employee #1 died of asphyxia when he was directed to enter a confined space without full compliance with confined space standards and asso-
ciated procedures.
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 fer-
menting 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.
TABLE IV–9—CONFINED SPACES IN THE CONSTRUCTION INDUSTRY—Continued

Number of
code activity No.
fatalities
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 man-
hole 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 adja-
cent 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 se-
cured 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 ac-
cess 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.
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
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 mem-
bers, 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 Rey-
nolds 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.
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.
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 Em-
ployee #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 be-
tween 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
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.

Number of
code activity No.
fatalities
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.
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. Em-
ployee #1 descended into a 12 ft deep manhole to apply jointing compound and to remove some laser sighting equipment. After several min-
utes, Employees #2 and #3 noticed that Employee #1 had collapsed. They shouted to the foreman, who ran to the manhole, surveyed the situa-
tion, 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 acci-
dent, 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.
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.
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 em-
ployee 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.
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 con-
crete 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.
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 man-
holes he had entered. Shortly after reaching the bottom, Employee #1 was overcome by hydrogen sulfide gas that had collected in the man-
hole. He was killed.
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.

Number of
code activity No.
fatalities
89 ............................... 1999 7699 Tank ............................................................................. 1 302710413
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
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. Em-
ployee #1 was rushed to the hospital, where he later died.
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.
Two employees of an electrical contractor were working in a 7.9-meter-deep sump manhole at a water desalination facility site under construc-
tion. 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 em-
ployees died of hypoxic asphyxia. Post accident evaluations found oxygen levels as low as 2 percent and elevated levels of nitrogen and car-
bon 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 lev-
els of nitrogen and carbon dioxide.
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.
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
Employees #1 and #2, who worked for a nested maintenance contractor, were finishing the turnaround of the sulfur recovery complex at a refin-
ery. They were removing a 14 in. isolation blind from the overhead inlet of a horizontal receiver vessel. The vessel was part of an amine treat-
ing 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 hydro-
gen 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 accu-
mulated 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

Number of
code activity No.
fatalities
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 applying a probability prevention rate of OSHA analyzed newer fatality data from
accuracy. OSHA found duplicate 91 percent, the standard would prevent between 2006 and 2009 (see Table IV–
fatalities reported for CONSAD 5.2 fatalities each year. 10) for the purpose of confirming the
Accident Numbers 65, 69, and 72, and AGCA noted that the results from a result under the older data, OSHA did
removed those duplicates from the survey of 74 of AGCA’s members, not observe any decline. Instead, it
analysis. In this regard, Appendix C.1 of employing 28,900 full-time workers, found the annual fatality rate for
the CONSAD Report erroneously shows showed no fatalities in confined spaces, confined spaces in construction over
two fatalities for accident number 65, and only two fatalities in construction, this period to be higher than during the
two fatalities for accident 69, and three between 2005 and 2007 (p. 59). The earlier period.
fatalities for accident 72. The IMIS finding that 74 employers had no The National Utility Contractors
database for these cases, however, fatalities in confined spaces over a Association (NUCA) urged OSHA to
reported a total of one, one, and two three-year period does not detract from, model the construction rule on the
fatalities, respectively. OSHA then or contradict, OSHA’s analysis. OSHA general industry rule, as OSHA did in
reduced the 34 fatalities cited in the believes that such a result is perfectly this final rule. In this comment, NUCA
initial IMIS data report to a final total consistent with the estimate that, from stated:
of 30 fatalities for the period of 1992 to 1992 to 2000, there was an average of It is also our opinion that there is no sound
2000 to account for the three duplicative 5.7 preventable confined-space fatalities evidence to support the view that a new and
fatalities, in addition to removing the per year among the millions of workers separate standard for construction will
fatality described in CONSAD Accident engaged in construction covered by this reduce the number of confined space injuries
number 67, discussed previously. OSHA and fatalities. * * * Therefore, issuing a
standard.
notes that the original CONSAD analysis new, separate standard for construction will
Another comment from the AGCA not only create untold confusion, but also an
may not include all confined-space report made several points asserting that unnecessary burden—with no improvement
accidents. For example, the a standard on confined spaces in in safety—on all contractors who have been
supplemental analysis at the end of this construction was unnecessary. First, successfully using the General Industry
chapter found several confined spaces AGCA claimed that the rate of fatal and Standard as a guideline to safe entry into
where there were electrical hazards; the serious injuries ‘‘in the affected confined spaces.
CONSAD analysis did not include any industries’’ is declining, and, second, (ID–075.)
electrical hazards. It is possible that the that OSHA’s analysis is deficient NUCA also suggested the new
original analysis incorrectly excluded because it does not compare the classification system in the proposed
confined spaces when the only hazards construction rates with rates across rule would have little benefit in terms
were electrical. other industries. The report states that of reduced accidents in confined spaces,
Due to a confidentiality agreement ‘‘[t]he injury trends have cost and but did not provide specific data to
with BLS, OSHA could not publish benefit implications for assessing the support their claims (ID–075). Other
detailed information about the CFOI proposal on a forward looking basis, commenters pointed to the absence of
data used in the PEA, and OSHA no which are not considered in the OSHA fatalities among employers that
longer has access to the research file report’’ (p. 58). In this case, the analysis complied with the general industry
containing the data. To account for the of confined space incidents for the standard when engaged in construction
possibility of human error of the initial period 2006 to 2009 show a slight activities (e.g., ID–035 and ID–113).
review of the CFOI data, OSHA made a increase, rather than a decline, in the As discussed extensively in the
proportionate reduction in the total number of fatalities as compared to the preamble, this final rule is much more
fatality count of the CFOI data used in original 1992 to 2000 period analyzed similar to the general industry rule than
the PEA. Applying a factor of 30/34 for the original PEA. OSHA therefore was the proposed rule, and it includes
(derived from the adjusted count for finds no reason to reduce benefits or a number of cost-saving measures not in
IMIS fatalities due to reporting errors) to costs as result of a long term trend the proposed rule. For example, this
the initial CFOI fatality count of 24, the toward safer practices in confined final rule excludes work performed
total number of CFOI fatalities spaces. The report does not support its under subparts S and entirely from the
decreased to 21. claim that OSHA’s analysis was scope of the standard and allows
Therefore, for this FEA, OSHA somehow deficient in not comparing the suspension of the permit in certain
concluded that a total of 51 rates of injury in construction with the circumstances. At the same time, the
construction-related fatalities due to rates in other industries, but OSHA final rule for construction also includes
confined-spaces entries occurred during notes that construction activities several important distinctions and
the nine-year period from 1992 to 2000. generally have high injury rates. clarifications in comparison to the
Full compliance with the provisions of Moreover, contrary to the commenter’s general industry standard. For example,
this standard would prevent an average assertion that the fatality rate is the new rule defines the term
of 5.7 fatalities each year related to declining in comparison to the older set ‘‘controlling employer’’ and shifts some
confined spaces in construction; of data analyzed in the PEA, when of the duties that the general industry
standard assigns to the host employer to screened the accidents for citations to examining compliance across all
the controlling employer. This subparts P (Excavations) and S affected industries, was minimal in the
difference is important in the many (Underground Construction). OSHA situations in which these accidents
situations, of which there are several reviewed the cases and selected only occurred. It is unlikely that the
reported in the database, involving host those cases covered by this final accidents detailed in this chapter would
employers who need construction work standard and that the final standard occur had the affected firms had a
but may not directly run the confined- would, with reasonable certainty, proper confined-spaces program in
space program. prevent if employer complied fully with place. Following some groups of
This final rule for construction also its provisions. In sum, OSHA identified provisions, such as ventilation and
requires continuous monitoring for 23 records involving 31 fatalities from hazard isolation, would have assured
atmospheric hazards during permit 2006 through 2009 that met all of the that the accidents could not have
entries and during entries under the above criteria (construction-related possibly happened.
alternative procedures specified in activities; in SIC 15, 16, or 17; involved OSHA also used the term
§ 1926.1203(e). With the improved a confined space covered by this final ‘‘potentially’’ in this analysis to describe
technology available today, continuous standard; and were preventable by the prevention of some accidents
monitoring involves few costs beyond compliance with the provisions of the because, as noted above, some accident
the cost of the regular monitoring final standard). Table IV–10 presents descriptions are unclear. The Agency
required by the general industry these cases, along with a brief narrative also used the term because some
standard. Further, such monitoring is for each case taken verbatim from the provisions, such as the training and
necessary in confined spaces where IMIS records. information-exchange provisions, do not
conditions change as the work As the narratives demonstrate, these directly and automatically prevent
progresses, either through the accidents usually resulted from a failure accidents, but instead contribute to the
introduction of an unexpected to follow multiple provisions in the likelihood that employers will correctly
substance into the permit space, as in final standard. For example, in several follow other provisions and, therefore,
accidents number 68 and 78, or the of the accidents listed in Table IV–10, prevent accidents. In the final section of
substances used as part of the work workers died or received injuries after this chapter, OSHA presents a break-
result in new hazards as in accidents entering confined spaces to attempt even sensitivity analysis to examine
number 89 and 90. rescue. These accidents were further the number of injuries and
To further evaluate and confirm its preventable had employers followed fatalities that would need to be
finding that this final standard would appropriate rescue procedures, provided prevented for the benefits of this
reduce the number of fatalities and proper training, posted an attendant to standard to equal its costs.
injuries when entering construction- prevent unauthorized entry, or through In some cases, a state had a confined-
related confined spaces, OSHA added a a combination of these steps, all spaces rule in place at the time the
supplemental table (Table IV–10 shown prescribed by this final standard. In accident occurred. In one accident, the
below) using more recent accident data, most other examples, the prohibition on state rule was a comprehensive rule
and modified its methodology for entry without a permit program in place similar to this final rule. OSHA removed
selecting relevant confined-space would prevent employee exposure to this accident from the database. In other
fatalities. The Agency did not rely on the hazard. cases, the state rule included only some
this data in reaching any of the findings For the purposes of determining how of the provisions in OSHA’s final
legally required to support this the different provisions of the standard standard. In these cases, OSHA did not
rulemaking, but the Agency concludes prevent the accidents identified in the list provisions in the OSHA standard
that this supplemental analysis confirms supplemental analysis, OSHA grouped that are also mirrored in the state rule,
the provisions by general purpose. For but listed the OSHA provisions not
the overall validity of the data on which
example, OSHA grouped all provisions mirrored in the state rule.
it based those findings.
related to evaluation and classification In the remainder of this section,
The Agency examined selected
of standards into one heading called OSHA describes the groups of
narratives of fatal accidents that
‘‘Classification and Evaluation,’’ and provisions that it used in analyzing
occurred in the years 2006 through 2009
grouped all of the provisions related to accidents, and the criteria for
and recorded in OSHA’s IMIS database.
setting up and implementing a permit determining whether the provision
To identify fatal accidents in confined
system under the heading of ‘‘Permit could potentially prevent the accident.
spaces, OSHA conducted a terminology Some accidents involved more than one
System’’. OSHA used these headings to
search of fatal accident narratives using fatality, and, in these cases, different
avoid a confusing list of overlapping
a list of several terms appearing in sets of provisions might be relevant to
and interdependent provisions, and to
confined-spaces-in-construction work.42 different fatalities.
compare benefits to costs later in this
To limit the analysis to accidents related Evaluation, Classification, and
section.
to construction activities, OSHA The Agency sometimes attributed an Notification Provisions: This group
identified construction-related accidents accident to a set of provisions even includes all provisions related to
by those employers classified under the though it was unclear from the accident requirements to identify and classify
two-digit Standard Industrial abstract whether the employer followed confined spaces, such as
Classification codes of 15, 16, and 17. that provision on a voluntary basis. §§ 1926.1203(a) and 1926.1203(b). The
As with the older data, OSHA also Therefore, although OSHA accounts for evaluation and classification provisions
baseline compliance in terms of costs, it can trigger other employer duties, such
42 The list of search terms included the following:
Confined space, hole, pit, bin, boiler, manhole,

does not account for baseline as an employer duty to prevent entry
tank, incinerator, scrubber, pier, sewer, transformer, compliance in terms of potential under § 1926.1203(c), or to condition
vault, duct, storm drain, water main, drilled shaft, monetized benefits. OSHA believes from entry in accordance with
enclosed, enclosed beam, crawlspace, trench, the descriptions of the fatalities and § 1926.1203(d). For the purposes of this
tunnel, vessel, digester, lift station, cesspool, silo,
air receiver, sludge gate, air preheater, step up
injuries presented in Table IV–10 that analysis, this group includes the
transformer, turbine, chiller, bag house, mixer, baseline compliance with most provisions of § 1926.1203(c) that require
reactor, and cofferdam. provisions, though high when employers to use barriers or other means
necessary to prevent unauthorized entry Early-Warning-System and conducting a non-entry rescue or

to a confined space. Since no other Atmospheric-Testing or -Monitoring summoning rescue or emergency
preventive measures would go into Provisions: This group includes all services; however, other provisions are
effect without such evaluation and provisions that require or imply the more likely to potentially prevent such
classification, OSHA found that these need for atmospheric testing or accidents.
provisions had potentially preventive monitoring, including § 1926.1203(a) Rescue-Capability Provisions: This
effects for all accidents examined. (when monitoring is necessary for
Information-Exchange Provisions: group includes all provisions, such as
identification), §§ 1926.1204(b),
This group includes all provisions §§ 1926.1204(i) and 1926.1211, that
1926.1204(c), and 1926.1204(e). OSHA
related to requirements for host require the development and
determined that these provisions could
contractors, controlling contractors, and have a role in preventing accidents in implementation of a plan addressing
other contractors to exchange all situations involving asphyxiation rescue capability and summoning
information, such as § 1926.1203(h). (whether due to lack of oxygen or toxic emergency services, with the plan
The accident descriptions are unclear gasses) or a build-up of explosive involving non-entry rescue when
regarding information-exchange vapors. This group also includes the feasible. For the purposes of this
activities. OSHA classified an accident requirement in § 1926.1204(e)(1)(iii) to analysis, OSHA listed an accident as
as potentially prevented by these monitor for non-isolated engulfment potentially preventable by improved
provisions if the description indicated hazards, such as liquids flowing through rescue capability for (1) all cases of
the presence of more than one a sewer system. OSHA determined that asphyxiation when quick removal of
contractor or if the accident took place this provision could prevent accidents endangered workers from the confined
in an existing structure (mainly sewers) in which employees drown or space and prompt treatment were
where information about the existing asphyxiate when liquids or other necessary to prevent the fatality, and (2)
structure would almost certainly be flowables that were not previously in for other accidents, such as drowning
known beforehand. OSHA did not the confined space entered the space in and electroshock, when timely removal
consider the accident potentially the absence of barriers or other isolation and treatment might have an effect.
prevented by this provision if it took methods designed to contain such OSHA did not consider this provision to
place in a home or in new construction hazards. have the potential to prevent deaths
projects, unless there was an indication Ventilation and Hazard-Isolation resulting from burns, even though it is
of multiple contractors present. In those Provisions: This group includes all possible that more immediate treatment
cases, there is not typically a host provisions that require or imply the or rescue before combustion occurred
employer with relevant knowledge need for ventilation, as well as isolation would mediate or prevent the accident.
about hidden hazards available, but of physical hazards, such as parts of OSHA also noted under this provision
there may be multiple employers § 1926.1203(e) and portions of the special, and all too numerous, cases
present. Because the accident § 1926.1204. OSHA included an when the rescuer(s) became a fatality.
descriptions do not typically indicate accident as potentially preventable by
whether there were multiple employers these provisions whenever the accident Training Provisions: This group
on a site, this approach may occurred as a result of a hazard inside includes all provisions that require
underestimate the number of multi- the confined space. For most of these employers to develop and implement
contractor sites. accidents, either ventilation or hazard- training, such as §§ 1926.1207 and
Permit-Program Provisions: This isolation measures, such as disabling 1926.1208. OSHA found that better
group includes the provisions requiring and locking out electrical hazards training could potentially prevent all of
a permit program or alternative temporarily, could prevent the accident. the accidents, except for one accident
procedures for entry, as well as the For other accidents, such as some that was preventable using only
requirements for setting up and drownings, arranging for the bypass of appropriate physical barriers.
implementing systems, such as water or other liquid solutions might Equipment Provisions: This group
§§ 1926.1203(d), 1926.1203(e), and have been possible, thereby preventing includes all provisions that require the
1926.1204(a). OSHA determined that the accident. employer to (1) provide necessary
these provisions could have a role in Provisions Requiring an Attendant: equipment, such as communication
potentially preventing accidents in all This group includes all provisions that equipment, necessary for attendants to
situations except where the entry took require or imply the need for an
perform their duties (§ 1926.1203(d)(3)),
place by explicit orders of a supervisor attendant when someone is inside the
or (2) develop appropriate lighting
or where the entry was for rescue confined space. The attendant in most
(§ 1926.1204(d)(5)). For the purposes of
purposes. (These two exceptions might cases has two duties: (1) Assuring that
be violations of these requirements, but continuous monitoring takes place (if it this analysis, OSHA listed an accident
it is unlikely that a permit system could is appropriate) and warning the person as potentially preventable by these
prevent casualties related to rescue to exit the space if necessary; and (2) provisions when employees working
entry (though they might prevent the conducting an appropriate non-entry together had difficulties communicating
need for such entry) or entries explicitly rescue. For the purposes of this analysis, or there was an indication of inadequate
approved by supervisors.) OSHA also OSHA listed an accident as potentially lighting or general difficulty locating
noted situations in which an entry preventable had an attendant been physical hazards before contacting
seemed to be unnecessary (such as present if there was no notation of them. There are some provisions in this
entries to retrieve dropped items) and, another person present when someone group that OSHA did not analyze in
therefore, was extremely unlikely to entered the confined space. There are terms of their potential to prevent
take place under a permit system with many other situations in which the lack accidents. These provisions include
clear prohibitions on unauthorized of an attendant may have been requirements for barriers and disposable
entry. OSHA determined that all such responsible for the accident because the coveralls. However, OSHA’s methods of
accidents involving unnecessary entries person present was not continually searching for confined-space accidents
would be preventable had employers assessing the conditions inside the could not identify the accidents that
complied with these provisions. permit space or was incapable of these provisions would prevent.
TABLE IV–10—CONFINED SPACES IN THE CONSTRUCTION INDUSTRY

Number of
Industry
Year Type of confined space reported Activity No. 1
SIC fatalities
2006 ........................... 1611 sewer ....................................................................................................... 2 309775443
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
Industry
SIC fatalities
2006 ........................... 1623 storm drain ............................................................................................... 1 308437631
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 super-
visor, employees and others; however, the supervisor did not contact the gas company to investigate the odor, and to locate the leak. The su-
pervisor 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 di-
ameter 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.
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
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 test-
ed 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. Em-
ployee #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 fol-
lowing days.
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
Number of
Industry
SIC fatalities
2007 ........................... 1541 manhole ................................................................................................... 1 311032809
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.
Permit Program (Entry very preventable)
Early Warning System and Atmospheric Testing or Monitoring Attendant
Rescue Capacity
Training
Number of
Industry
SIC fatalities
2007 ........................... 1623 lift station ................................................................................................. 4 307043844
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 com-
pany, 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 em-
ployer) 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.
Rescue Capacity (Attempted rescue resulted in a fatality)
Training
Number of
Industry
SIC fatalities
2007 ........................... 1623 manhole ................................................................................................... 2 310177456
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 Em-
ployee #2 hanging upside down, with his leg caught between the ladder rungs. Neither employee responded to the coworker’s calls. The co-
worker 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.

Training
Number of
Industry
SIC fatalities
2007 ........................... 1623 manhole ................................................................................................... 2 310253398
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 com-
pany’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.
Permit program (1 of 2 fatalities)
Early Warning System and Atmospheric Testing or Monitoring Provisions
Training
Number of
Industry
SIC fatalities
2007 ........................... 1623 manhole ................................................................................................... 1 311354807
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.
Permit Program
Attendant
Rescue Capacity
Training
Number of
Industry
SIC fatalities
2007 ........................... 1721 crawl space .............................................................................................. 2 126192012
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 con-
tributing causal factors: The air in the crawl space was not flushed or purged of flammable vapors and no air testing to determine whether dan-
gerous 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 be-
tween 21 in. to 22 in. from the foundation to the floor of the bedroom.
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
Industry
SIC fatalities
2008 ........................... 1711 lift station ................................................................................................. 2 312320666
Number of
Industry
SIC fatalities
Employee #1 entered a sewer lift station to check for leaks in the line. Employee #1 was overcome by hydrogen sulfide gas. A second em-
ployee entered the station to retrieve Employee #1, and also was overcome by the gas. Both employees died from overexposure to hydrogen
sulfide gas.
Permit Program
Training
Number of
Industry
SIC fatalities
2009 ........................... 1623 manhole ................................................................................................... 1 313122616
Employee #3 fell into a manhole and suffered a head injury and was life-flighted to the hospital. Employee #2 became unconscious in a man-
hole and was rescued and life-flighted to the hospital. Employee #1 entered the manhole to attempt rescue of employee #2 and became uncon-
scious and died before he could be rescued.
Training
Number of
Industry
SIC fatalities
2009 ........................... 1791 tank .......................................................................................................... 1 311964886
Employee #1 was found unresponsive on scaffolding in the residential water tank in which he was performing stick welding on the interior over-
head of the tank. He was removed from the tank, and emergency services summoned. He could not be revived. The medical examiner deter-
mined that core body temperature of employee #1 exceeded 109 degrees Fahrenheit, indicating that the preliminary cause of death was
hyperthermia.
Permit Program
Ventilation and Hazard Isolation (ventilation required beyond the amount needed to address welding fumes)
Attendant
Training
Number of
Industry
SIC fatalities
2009 ........................... 1794 manhole ................................................................................................... 1 309620219
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 as-
phyxiation.

Attendant
Rescue Capacity
Training
Number of
Industry
SIC fatalities
2009 ........................... 1794 tunnel ....................................................................................................... 1 313553604
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.
Permit Program
Attendant
Rescue Capacity
Training
Early Warning System
Number of
Industry
SIC fatalities
2006 ........................... 1711 Crawl space ............................................................................................. 1 309539559
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.
Permit program
Attendant
Rescue Capacity
Training
Number of
Industry
SIC fatalities
2006 ........................... 1623 manhole ................................................................................................... 1 310345053
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.
Equipment (lack of cover or methods of assuring safety when a cover is removed)
Number of
Industry
SIC fatalities
2007 ........................... 1521 crawl space .............................................................................................. 1 120205794
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 re-
moved 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 Em-
ployee #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 co-
worker, 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.
Permit Program
Attendant
Training
Number of
Industry
SIC fatalities
Equipment (lighting)
Rescue Capacity
Number of
Industry
SIC fatalities
2007 ........................... 1741 boiler ........................................................................................................ 1 311213326
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.
(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
Industry
SIC fatalities
2008 ........................... 1711 crawl space .............................................................................................. 1 311794093
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 sys-
tem for the house. Employee #2 pulled him out of the crawl space. Paramedics transported Employee #1 to a local hospital where he was pro-
nounced dead.
Permit Program
Attendant
Training
Equipment
Rescue Capacity
Number of
Industry
SIC fatalities
2008 ........................... 1711 duct .......................................................................................................... 1 311815492
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 sys-
tem (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.
Permit Program
Rescue Capacity
Training
Number of
Industry
SIC fatalities
2008 ........................... 1742 attic .......................................................................................................... 1 312098551
Number of
Industry
SIC fatalities
On May 17, 2008, Employee #1 was spraying foam insulation in the enclosed attic space of a two story, single-family home that was under-
going renovations. He had accessed the attic via an aluminum ladder through a hole in the second floor ceiling. A flash fire occurred, killing Em-
ployee #1. Inadequate ventilation contributed to the buildup of vapors. The ignition source was not determined.
Permit Program
Early Warning System and Atmospheric Testing or Monitoring (Work may have caused build-up of vapors)
Attendant
Training
Number of
Industry
SIC fatalities
2009 ........................... 1731 crawl space .............................................................................................. 1 313555591
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.
Permit Program
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 fatalities from contact with objects and p.99). As noted above, OSHA explained
shown in Table IV–10, OSHA, as equipment (these numbers include 4 that those estimates came from the
previously noted, carefully reviewed fatalities in new single-family housing ACCSH report, which was the best
and selected from the IMIS database construction from contact with objects available evidence. The commenter did
only those cases determined preventable and 10 fatalities in residential not dispute those numbers or, more
by full compliance with the provisions remodeling from exposure to harmful importantly, provide any alternatives
of the final standard. As a result, OSHA substances or environments). Some fatal numbers as its best evidence. Perhaps
did not need to apply a probability injuries that are preventable by the final the commenter mistakenly concluded
prevention rate to estimate the number standard may not appear in the IMIS that OSHA multiplied the IMIS injury
of preventable fatalities. As itemized database because the database only numbers by 100 and 200; however, the
above, OSHA identified 30 preventable includes accidents involving a fatality multiplication applied to the numbers
fatalities over the four-year period, or a catastrophe with three or more of fatalities, because OSHA does not
2006–2009, for an average of 7.5 injuries that result in hospitalization. have data on the number of non-fatal
fatalities prevented annually by full injuries.
compliance with this final standard. Estimation of Averted Injuries In this FEA, OSHA provided updated
This supplemental analysis supports estimates of the number of non-fatal
In a 1994 report to OSHA, the
OSHA’s conclusions that the problem of injuries involving confined spaces in
Confined Spaces Work Group of the
confined-space fatalities did not construction and further clarified the
Advisory Committee on Construction
diminish in the construction industry basis for its estimates. As a preliminary
Safety and Health (ACCSH) estimated
over this period, and that the regulated matter, the Agency notes again that
that the ratio of lost time injuries (LTI)
community still needs the final OSHA’s IMIS database, which is the
to fatalities in confined spaces was
standard. OSHA does not believe this source of information about fatal
approximately 100:1 for general
supplemental analysis is necessary, but accidents, does not report most injuries.
industry and 200:1 for construction (see
believes that it will aid the public in As noted above, the IMIS database
ACCSH, 1994, pg. 6). In the PEA, OSHA
understanding OSHA’s conclusions. includes only accidents involving a
used this range of 100 to 200 LTIs per
fatality or a catastrophe with three or
It is important to note that the fatality to estimate the number of
more injuries that result in
approach used in this estimation is injuries prevented by the proposed rule.
hospitalization. Therefore, the IMIS
conservative in that there are other fatal At the public hearing on the proposed
database seldom captures injuries

events that were likely preventable but rule, the Edison Electric Institute’s
involving accidents that do not result
not included in the IMIS database. For representative noted, ‘‘There’s no
either in a fatality or hospitalization of
example, the Bureau of Labor Statistics’ explanation or support for the assertion
three or more workers.43 Because OSHA
Census of Fatal Occupational Injuries that there has been under-counting of
for 2011 showed 111 fatalities in injuries, however, and we cannot 43 The Survey of Occupational Injuries and
construction from exposure to harmful discern any basis for multiplying these Illnesses (SOII) produces annual estimates of counts
substances or environments, and 123 numbers by 100 and 200’’ (ID–210, Tr. and rates of new workplace injuries and illnesses,
could not find a data source for reliable reasonableness of the estimates OSHA on the willingness-to-pay to avoid a
estimates of non-fatal injuries in used.46 marginal increase in the risk of a fatality
confined spaces in construction,44 Based on OSHA’s annual estimate of or injury, as explained below. In
OSHA again relied on the expertise of 5.2 confined-spaces-in-construction addition, in this FEA, OSHA updated
ACCSH for these estimates. fatalities avoided when fully complying the estimated monetary value of
with the provisions of this standard, and reductions in fatalities and injuries
Recognizing the age of the ACCSH
the 91 percent preventability rate, presented in the PEA from 2002 to 2009
Work Groups’ LTI estimates of 100:1
OSHA estimated that there would have dollars. While a willingness-to-pay
and 200:1, OSHA attempted to
been a total of between 520 and 1,040 (WTP) approach clearly has theoretical
corroborate these estimates using data
confined-spaces-in-construction non- merit, an individual’s willingness to pay
from the BLS CFOI and the BLS Survey
fatal injuries during the period of 1992 to reduce the risk of fatality may
of Occupational Injuries and Illnesses to 2000, with a midpoint of 780 as the underestimate the total willingness to
(SOII). According to BLS,45 in 2009, total number of non-fatal injuries pay, which could include the
there were a total of 4,090 occupational avoided each year when fully willingness of others—particularly the
fatalities and 3,277,700 nonfatal complying to the provisions of this immediate family—to pay to reduce that
occupational injuries for private standard. Applying a similar individual’s risk of fatality.47
industry overall, and 834 fatalities and methodology of a 100:1 to 200:1 fatality- For estimates using the willingness-
251,000 nonfatal injuries for the to-injuries ratio to the supplemental to-pay concept, OSHA relied on existing
construction industry. Using these data in Table IV–10, OSHA estimates studies of the imputed value of fatalities
estimates of fatalities and injuries, the that, given 30 fatalities between the avoided based on the theory of
ratio of injuries to fatalities is 800:1 for period of 2006 to 2009, there would be compensating wage differentials in the
all private industries, and 300:1 for the a total of 3,000 and 6,000 non-fatal labor market. These studies rely on
construction industry. injuries prevented by the final standard certain critical assumptions for their
In light of the large injury-to-fatality in that time period, or an average of 750 accuracy, particularly that workers
ratios apparent in the recent CFOI and and 1,500 (with a midpoint of 1,125) understand the risks to which they are
SOII data, OSHA confirmed that the injuries prevented per year. exposed and that workers have
ratios recommended by the expert legitimate choices between high- and
Assignment of Monetary Values to
ACCSH Confined Spaces Work Group low-risk jobs. These assumptions are far
Avoided Injuries and Fatalities
are reasonable and conservative, and from realized in actual labor markets.48
used the average of the two ratios (150 In the PEA, OSHA used a willingness- A number of academic studies, as
injuries per fatality) in this FEA to to-pay approach to estimate a monetary summarized in Viscusi & Aldy (2003),
estimate the number of non-fatal value of $50,000 for each prevented show a correlation between higher job
injuries. Calculations relating publicly injury and $6.8 million for each risk and higher wages, suggesting that
reported injury-to-fatality statistical data prevented fatality. One commenter employees demand monetary
in construction also confirm the stated that the estimated value of compensation in return for a greater risk
$50,000 per prevented injury had of injury or fatality. The estimated trade-
but also is subject to under-reporting for a variety
‘‘absolutely no foundation or source for off between lower wages and marginal
of reasons, including missing cases, the reporting of accuracy’’ and was ‘‘substantially reductions in fatal occupational risk—
sample cases from large establishments, timeliness inflated,’’ but did not provide any that is, workers’ willingness to pay for
of updates to the logs and data collection, and specifics or suggest an alternative (ID–
employer doubts about the recordability of some marginal reductions in such risk—yields
cases (see Ruser, 2008). Furthermore, OSHA is
100). The AGCA report suggested that an imputed value of an avoided fatality:
unable to confirm the determination of accidents in OSHA instead use workers’ The willingness-to-pay amount for a
‘‘confined spaces’’ as defined by SOII and, compensation claims, which it reduction in risk divided by the
therefore, relied on OSHA’s IMIS database. estimated to be $242,770 per fatality and
44 OSHA takes note of the AGCA survey finding reduction in risk.49 OSHA used this
$31,664 per injury (ID–222). approach in many recent proposed and
of only 2 confined-space injuries among the 74
responding employers (ID–0222, p. 29). However,
Workers’ compensation claims do not
final rules. (See, for example, 69 FR
this finding does not furnish a basis for estimating reflect a willingness-to-pay approach or
59305, 59429 (Oct. 4, 2004) and 71 FR
the number of injuries preventable with full represent the full costs associated with
compliance with this rule due to its lack of workplace fatalities and injuries. 47 See, for example, Thaler and Rosen (1976), pp.
representativeness. Not all of the respondents even
had confined spaces on their job sites. Moreover,
Workers’ compensation systems cover 265–266; Sunstein (2004), p. 433; or Viscusi, Magat
AGCA designed the survey explicitly not to learn medical expenses and partial payment and Forrest (1988), the last of whom write that
about injuries in confined spaces, but ‘‘to determine of wages lost as a result of workplace benefits from improvement in public health
the impact of compliance costs for contractors accidents, or, in the case of fatalities, ‘‘consist of two components, the private valuation
under OSHA’s Proposed Rule on Confined Space consumers attach to their own health, plus the
[sic]. . . . ’’ It instructed respondents to ‘‘carefully
burial costs and part of lost future altruistic valuation other members of society place
review the background information detailed below wages. However, workers’ compensation on their health.’’ This paper uses contingent
. . . before submitting your information. OSHA’s does not cover other costs resulting from valuation methods to suggest that the effect of
proposed rule for confined space [sic] in fatalities and injuries, such as pain and altruism could significantly alter willingness-to pay
construction is complicated, costly to implement, estimates for some kinds of health improvement.
and does not provide significant increases in safety
suffering. Therefore, it would be There are, however, many questions concerning
above the existing general industry standard.’’ The inaccurate to base estimates of total how to measure this and the conditions under
survey did not provide a definition of a confined societal costs of injuries and illnesses on which it might matter.
space or otherwise seek to ensure that the person 48 See, for example, the discussion of wage
workers’ compensation claims.
filling out the survey was familiar with the compensation for risk for union versus nonunion
As in the PEA, and following the
appropriate definition. workers in Dorman and Hagstrom (1998).

45 Table A–1, Fatal Occupational Injuries by approach recommended by OMB 49 For example, if workers are willing to pay $90
Industry, Event and Exposure, available at http:// Circular A–4 (OMB, 2003) and common each for a 1⁄100,000 reduction in the probability of
www.bls.gov/iif/oshwc/cfoi/cftb0241.pdf, and Table analytic practice, OSHA developed dying on the job, then the imputed value of an
2, Number of Nonfatal Occupational Injuries and estimates of the benefits of avoided avoided fatality would be $90 divided by 1⁄100,000,
Illnesses by Case Type and Ownership for Selected or $9,000,000. Another way to consider this result
Industries, 2009 News Release USDL 10–1451, injuries and fatalities in this FEA based would be to assume that 100,000 workers made this
available at http://www.bls.gov/news.release/pdf/ trade-off. On average, one life would be saved at a
osh.pdf. 46 See, for example, Dong, X., et al. (2011). cost of $9,000,000.
10099 (Feb. 28, 2006), the preambles for BEA, 2010), this $7 million base number percent and, alternatively, 3 percent, as
the proposed and final hexavalent in 2000 dollars yields an estimate of recommended by OMB Circular A–4.
chromium rule, and 78 FR 56274, 56388 $8.7 million in 2010 dollars for each OSHA estimated the total benefits of the
(Sept. 12, 2013), the preamble for the fatality avoided.50 51 final standard to be $93.6 million
proposed respirable crystalline silica OSHA views these estimates as the annually—of which $45.2 million come
rule.) The Agency views the WTP best estimates currently available, and from prevented fatalities and $48.4
approach as the best available, and will use them to monetize avoided million from prevented injuries. OSHA
relied on it to monetize benefits. Viscusi fatalities and injuries resulting from this took the annualized costs of $60.3
& Aldy (2003) conducted a meta- final standard. million, using a 7 percent discount rate,
analysis of studies in the economics from Table IV–13 in Chapter 6 of this
literature that use a willingness-to-pay Net Benefits FEA. OSHA estimated net benefits of
methodology to estimate the imputed Table IV–11, which repeats Table IV– the final rule to be $33.3 million
value of life-saving programs and found 1 for the convenience of the reader, annually, using a 7 percent discount
that each fatality avoided valued at provides a summary of the estimated rate. OSHA estimated that compliance
approximately $7 million in 2000 costs, benefits, and net benefits of the with the final standard will provide
dollars. Using the GDP Deflator (U.S. final standard, using discount rates of 7 $1.55 of benefits per dollar of cost.

rate rate
Annualized Costs
Evaluation, Classification, Information Exchange, and Notification ........................................................................ $12.4 $12.2

Written Program, Issue Permits, Verify Safety, Review Procedures ...................................................................... 4.2 4.2
Provide Ventilation and Isolate Hazards ................................................................................................................. 2.8 2.7
Early Warning System and Atmospheric Testing or Monitoring ............................................................................. 11.4 11.3
Attendant .................................................................................................................................................................. 3.6 3.6
Rescue Capability .................................................................................................................................................... 8.2 7.6
Training Provisions .................................................................................................................................................. 11.3 11.3
Other Requirements ................................................................................................................................................ 6.4 6.3
Total Annual Costs ........................................................................................................................................... 60.3 59.2
Annual Benefits
Number of Injuries Prevented .................................................................................................................................. 780

Number of Fatalities Prevented ............................................................................................................................... 5.2
Monetized Benefits .................................................................................................................................................. $93.6
Net Annual Monetized Benefits

(Benefits Less Costs)
$33.3 $34.4
Potential Net Benefits of the Individual performing a provision-by-provision the case, but also a requirement to train
Provisions of the Rule sensitivity analysis of whether benefits workers to do x, as well as a
As indicated in Table IV–11, the exceed costs in this case: (1) The requirement to inform workers of when
estimated benefits of the final standard available data do not permit OSHA to y is the case. In such circumstances,
are nearly 50 percent larger than the determine the numbers of accidents that while each provision alone might pass
estimated costs. Nevertheless, it is every combination of provisions could a marginal benefit-cost test, all of the
possible that the costs of particular prevent; and (2) a simple marginal provisions together might not pass a
provisions could exceed their benefits. analysis will not fully address the benefit-cost test because the provisions
To address this possibility, OSHA question of whether benefits exceed would prevent the same accidents. The
conducted a supplemental analysis of costs for the rule as a whole. It might, three provisions, each costing $5
the net benefits of the individual for example, take two or more million (for a total cost of $15 million),
provisions of the final rule that have provisions to prevent a class of accident: might prevent only $12 million worth of
associated costs. An analysis of the effects of a accidents because the three provisions
Because the final rule contains jointly requirement to do x if situation y is the would prevent the exact same accidents.
interacting and overlapping provisions, case would be dependent on not only Thus, even if a provision-by-provision
there are two logistical issues with the requirement to do x if situation y is sensitivity analysis were possible for
50 The Agency notes that two recent studies approximately $5 million and $12 million in 2012 an estimate from the economics literature of the
mentioned in this chapter—Kniesner et al. (2010) dollars. For the purpose of this PEA, OSHA chose value of that statistical life-year (VSLY). See, for
and Kniesner et al. (2012)—report similar estimates. to rely on the Viscusi and Aldy (2003) meta- instance, Aldy and Viscusi (2007) for a discussion
The median quintile estimate of the imputed value analysis rather than the two more recent individual of VSLY theory and FDA (2003), pp. 41488–9, for
of an avoided fatality in Kniesner et al. (2010) is studies.
an application of VSLY in rulemaking. OSHA did
$9.2 million in 2010 dollars, while Kniesner et al. 51 An alternative approach to valuing an avoided
not investigate this approach.
(2012) provide a range of estimates between fatality is to monetize, for each year added to a life,
this rule, that analysis might still not total to the estimated costs for each cost standard as a whole has positive net
demonstrate the total benefits of the category. Finally, OSHA estimated the benefits—as was shown above.
overall combination of provisions. percentage of benefits that a given To further evaluate the necessity and
Moreover, for the purpose of provision needs to produce zero net benefit of the evaluation and
determining whether benefits of a rule benefits (that is, when the estimated classification provisions, it is necessary
exceed the costs, one cannot simply test value of the prevented injuries and to examine state programs. Only two of
each provision individually, but must fatalities equals the estimated cost of the the accidents examined from 1992–2000
find ways to examine situations related provision). Any percentage and 2006–2009 occurred in states with
involving likely joint effects of the greater than zero net benefits will comprehensive programs similar to
provisions of the rule. produce positive net benefits. Table IV– what OSHA is proposing. Five accidents
This provision-by-provision analysis 12 also shows the results of this occurred in states that required some
addresses both of these problems and analysis. provisions included in OSHA’s
takes the form of a break-even Before examining the benefits confined-spaces-in-construction rule,
sensitivity analysis that compares the attributable to the provisions of the final such as ventilation and atmospheric
potential benefits of a set of provisions standard, OSHA examined the break- monitoring, but did not require
against the costs of those provisions even sensitivity of the standard as a evaluation or permit systems. This
and, separately, all provisions that, whole and found that if compliance result may suggest that there may be
when combined, achieve those with the standard prevented 45 percent advantages to a full, comprehensive
particular benefits. Thus, a break-even of the fatalities recorded, then the program that explicitly requires
sensitivity analysis in this case benefits would equal the costs; with any evaluation and classification. However,
represents an estimate of the percentage higher percentage prevention, benefits OSHA has not been able to do any
of potentially preventable accidents that would exceed the costs. OSHA quantitative analysis of the rates of
an individual provision, or a considers it a near certainty that confined space fatalities in these states
combination of provisions, must prevent compliance with the final standard as against other regulatory regimes.
for the benefits to equal the costs. Any would achieve this level of benefits. For Information Exchange: The exact
percentage of preventable accidents a example, full compliance with the final economic benefits of information
provision or combination of provisions exchanges are particularly difficult to
standard would avoid almost all
prevents that are greater than this pinpoint. Nevertheless, the benefits of
fatalities involving asphyxiation, and 60
percentage would result in benefits these provisions will exceed the cost if
percent of the accidents involved
exceeding costs. the final standard prevents 10 percent of
asphyxiation. Thus, if full compliance
For each narrative of the 30 the potentially affected accidents.
with the final standard prevents just one Permit Programs: Table IV–12 shows
preventable confined-spaces-in-
class of accidents, the standard would that if these provisions prevent 4
construction fatalities and injuries for
result in benefits that exceed costs. percent of the accidents where they are
the period 2006–2009 presented in
Table IV–10, OSHA listed the sets of To discuss the results shown in Table potentially relevant, then the benefits
provisions of the final rule that, if IV–12, OSHA will consider the results will equal the costs, and if they prevent
followed, would potentially prevent the for each provision in turn, as described more than 4 percent, the benefits will
fatalities. For some provisions, such as in the following paragraphs. exceed the costs. A system of permits
requirements to evaluate and classify Evaluation and Classification: The might prevent, or have been a key part
spaces and to develop and implement portions of the standard covered by this of preventing, many fatalities. As a
permit systems, the narratives do not cost category are only effective if result, achieving a 4 percent prevention
clearly state whether or not employers combined with other measures. rate seems reasonable. Further, at least
met these requirements. In these cases, Evaluation and classification alone, 12 percent of the accidents potentially
OSHA listed those provisions as being without taking the further steps needed prevented by this provision (Incidents 2
among those that would potentially to ameliorate the hazards, would be and 13) involved casual entry (e.g., to
prevent the fatality, even though it is largely pointless. The need for this retrieve a dropped item), or entry prior
possible that the employer took steps to provision, in the context of benefit-cost to testing, that a proper permit system
implement the required provisions. For analysis, is to assure that employers do would completely prevent. Preventing
other provisions, such as those for early not have to treat every confined space these two accidents alone would assure
warning system and atmospheric testing as containing hazards; rather, it allows that the benefits of the provision exceed
or monitoring, the narratives do not employers to simply restrict entry or to the costs.
clearly state that there was such implement the subsequent parts of their Early Warning Systems, and
monitoring, but it seems unlikely that confined-spaces program only when a Atmospheric Testing and Monitoring:
someone would enter some of these hazard exists within a given confined Early warning systems, and atmospheric
extremely dangerous atmospheres had space. testing and monitoring, can prevent
information on that danger been This set of provisions is critical to accidents that result in asphyxiation or
available as a result of an early warning reducing the costs of all other caused by explosive gases, or where
system and atmospheric testing or provisions more than directly early warning of oncoming liquids
monitoring. Finally, it is clear from the preventing fatalities. If the evaluation would prevent drowning. The presence
descriptions that employers simply did and classification provisions reduce the of atmospheric testing or monitoring
not follow provisions relating to costs of the standard as a whole by 5 data would prevent most of these
ventilation and hazard isolation. Table percent ($3.1 million costs of this accidents because it is unlikely that
IV–12 shows the aggregate results for provision divided by $60.3 million costs anyone would knowingly enter a space
each set of provisions organized of the remaining provisions), then these with a lethal or explosive atmosphere,
according to the organization of costs provisions will be useful. Given the vast especially when provisions are in place
provided in Chapter 5. Table IV–12 then number of confined spaces that do not to assure against unauthorized entry.
monetizes the prevented fatalities and require the ensuing steps, these Table IV–12 shows that if these
injuries associated with each cost provisions are almost certainly cost provisions prevent 14 percent of the
category and compares that monetized effective, and are necessary given the accidents for which they are potentially
relevant, then the benefits will equal the PPE, might be sufficient. It is clear, percent of the accidents for which
costs, and if they prevent more than 14 however, that when ventilation is OSHA identified inadequate rescue
percent of the accident, the benefits will appropriate, assuring its effectiveness capacity as a factor in a fatality involved
exceed the costs. OSHA believes that it would completely prevent ventilation- deaths of additional workers during an
is likely that atmospheric monitoring related fatalities. The same is true for attempted rescue, then following
could prevent a much higher percentage hazard-isolation methods such as provisions for non-entry rescue would
of these accidents. In addition, there is deactivating and locking out electrical reasonably prevent more than 9 percent
one accident potentially prevented by sources and creating by-passes for water of all accidents involving inadequate
an early warning system. around confined spaces. Table IV–12 rescue capacity. However, if employers
Requirement for an Attendant: This shows that if these provisions prevent 3 follow all other provisions of the rule,
heading includes the provisions that percent of the accidents for which they then there will be less need for rescue.
require an attendant whenever an are potentially relevant, then the As a result, this set of provisions will be
employee enters a permit-required benefits will equal the costs, and if they necessary if other provisions are not
confined space, such as §§ 1926.1204(f), prevent more than 3 percent of these available or are not followed 9 percent
1926.1209(f) and 1926.1209(h). These accidents, the benefits will exceed the of the time, or if conditions change after
provisions function in conjunction with costs. Therefore, even if proper the confined-space entry in ways that
the requirements for adequate rescue ventilation or isolation prevented one in result in a need for rescue.
capacity. In the absence of appropriate five of the fatalities identified as
rescue capacity, persons standing by a potentially avoidable with proper Equipment: These provisions cover
confined space may attempt a rescue ventilation or isolation, then the the requirement that employers provide
that exposes them to the hazard. Table benefits of these provisions would adequate lighting and other equipment
IV–12 shows that if these provisions exceed the costs. While the exact needed for confined-spaces work as
prevent 6 percent of the accidents in number of situations in which specified in § 1926.1204(d). Table IV–12
which the person who died entered a ventilation or isolation would have been shows that if these provisions prevent
confined space completely alone, then the hazard-reducing measure of choice 47 percent of the accidents for which
the benefits will equal the costs, and if is uncertain, OSHA is confident that at they are potentially relevant, then the
the provisions prevent more than 6 least 3 percent of those identified would benefits will equal the costs, and if they
percent of the accidents, the benefits require ventilation or isolation. prevent more than 47 percent of the
will exceed the costs. OSHA believes Rescue Capacity: These provisions accidents, the benefits will exceed the
that it is reasonable that appropriately include all requirements related to costs. However, as noted above, OSHA
trained and equipped attendants could rescue, including the requirement for did not include many of the accidents
prevent this percentage of accidents. non-entry rescue whenever feasible. that proper equipment would prevent,
Ventilation and Hazard Isolation: The Table IV–12 shows that if these such as accidents caused by vehicles
standard generally requires the use of provisions prevent 9 percent of the hitting persons working near a confined
ventilation when possible to address accidents for which they are potentially space or illnesses caused by improper
atmospheric hazards, but it can be relevant, then the benefits will equal the clothing. As a result, it is likely that
difficult for the purposes of this costs, and if they prevent more than 9 OSHA underestimated the number of
sensitivity analysis to determine in percent of the accidents, the benefits fatalities and injuries prevented by
which situations ventilation, rather than will exceed the costs. Given that 15 proper equipment.
TABLE IV–12—COMPARISON OF BENEFITS ASSOCIATED WITH INDIVIDUAL COST CATEGORIES AND COSTS *
Number of Estimated Estimated Percentage
fatalities number of number of Total monetized value of of potential
Monetized
potentially fatalities injuries Monetized annual fatalities and benefits
value of Costs of
Cost provision affected by per year per year value of injuries potentially needed to
annual provision
provision potentially potentially injuries b affected by break even
fatalities a
(2006– affected by affected by the provision with costs c
2009) provision provision (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 Atmos-
pheric Testing or Monitoring ...... 18 4.5 39,150,000 675 41,850,000 81,000,000 11,300,000 14
Ventilation and Hazard Isolation ... 22 5.5 47,850,000 487.5 51,500,000 99,000,000 2,800,000 3
Attendant ....................................... 13 3.25 28,275,000 487.5 30,225,000 58,500,000 3,600,000 6
Rescue Capability ......................... 20 5 43,500,000 750 46,500,000 90,000,000 8,200,000 9
Training ......................................... 29 7.25 63,075,000 1087.5 67,425,000 130,500,000 11,300,000 9
Equipment ..................................... 3 0.75 4,350,000 112.5 6,975,000 13,500,000 6,3000,000 47
* In 2009 dollars.
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 standards promulgated by the Agency or has been conceived and is reasonably
are technologically feasible. OSHA capable of experimental refinement and
In accordance with the OSH Act, demonstrates that a standard is distribution within the standards
OSHA must demonstrate that technologically feasible ‘‘by pointing to deadlines.’’ American Iron and Steel
occupational safety and health technology that is either already in use Inst. v. OSHA (Lead II), 939 F.2d 975,
980 (D.C. Cir. 1991) (per curiam) requirement for continuous monitoring if sewage, sand, grain, or other
(internal citation omitted). OSHA of atmospheric hazards in final ‘‘flowable’’ solid substances flow into
reviewed each of the requirements § 1926.1203(e)(2)(vi) and the area in which an employee is
imposed by the final rule and § 1926.1204(e)(1)(ii). In addressing working.
determined that compliance with the potential concerns about the Two commenters questioned the
requirements of the rule is technological feasibility of continuous availability of early warning system
technologically feasible for all affected monitors that would be capable of technology (ID–059 and –098). A third
industries, that employers can achieve identifying various types of atmospheric commenter (ID–216) raised similar
compliance with all of the final hazards, OSHA included an exception objections and, in particular, expressed
requirements using readily and widely that applies if the employer can concerns about the technical demands
available technologies, and that there demonstrate that the appropriate imposed on the employer to account for
are no technological constraints devices are not commercially available all of the factors involved in properly
associated with compliance with any of for this purpose. positioning the system.
the final requirements. One commenter suggested that In response to these comments, OSHA
Several factors support OSHA’s requirements to exchange information observes that manufacturers have
determination regarding the and coordinate entry operations designed early warning systems for
technological feasibility of the final rule. represent ‘‘an unnecessary burden’’ and years to alert workers to migrating
First, OSHA concluded that compliance ‘‘in some cases may be infeasible,’’ engulfment hazards, including
with existing § 1910.146 was which OSHA takes to mean migrating engulfment hazards present in
technologically feasible when it technologically infeasible, for the a space subject to final § 1926.1204(e)(1)
promulgated those standards in 1993 homebuilding industry (ID–124). (see, for example, http://
(58 FR 4539), and that conclusion held Although this commenter cited industry www.memecosales.com/products/level/
true over OSHA’s two decades of statistics indicating that homebuilders blok-aid/ or http://www.flygt.com/en-
experience with that standard. Likewise, tend to be small businesses that rely on us/Pumping/Products/Monitoring-and-
this conclusion holds true with respect subcontractors to handle specialized Control-equipment/Pages/Alarm-
to provisions in the final rule that tasks, the commenter failed to show telemetry.aspx). The range of available
OSHA based on the existing general how this situation renders multi- early warning systems runs from
industry standard. A number of employer communication requirements customized high-flow warning devices
commenters stated that they are of the rule technologically infeasible for to simple fluid-level meters with
complying with the general industry that industry. OSHA does not mandate audible alarms. The wide availability
standard in construction operations, any particular equipment for and application of such systems attest to
which also supports a finding of coordinating communications, and the their affordability and practicability
technological feasibility. (See e.g., ID– Agency did not find evidence in the under a range of circumstances. OSHA
047, –075, –086, –092, –120, –124, record suggesting that the exchange of also notes that, in a series of stakeholder
–180). information and entry coordination, meetings in October 2000, various
Second, the provisions in the which OSHA believes already occurs in participants discussed the range of early
standard not based on the existing the course of regular communications warning systems, including monitors,
standard are also technologically conducted by employers on cameras, and attendants positioned
feasible. The new standard requires construction worksites, is infeasible. At upstream outside confined spaces (see
employers to identify confined spaces at a time when most individuals have transcripts of stakeholder meetings,
their worksites, establish a written mobile phones, remote communication available at https://www.osha.gov/doc/
program and issue permits for should be possible in most locations. In reference_documents.html). The
qualifying confined spaces, exchange any case, in construction work, home- commenters generally characterized the
information on the hazards of permit building contractors are able to systems as easy to implement and
spaces with other affected employers, successfully communicate with a commonly used.
train affected employees, provide for variety of specialists about what work Even though this technology is clearly
rescue and emergency services, and needs to be done and at what time. available, the standard does not require
assign duties to authorized entrants, Therefore, there should be no feasibility employers to use a device such as the
attendants, and supervisors. None of problems in communicating essential early warning system. An employer may
these requirements, including the new safety information in the same way. determine that an effective compliance
requirements not in § 1910.146, present There was only one other provision of solution would simply be to position
any technological feasibility concerns. the proposed standard that elicited detection and monitoring devices to
These provisions simply require concerns from industry stakeholders provide early warning, or to station an
observation of hazards, training, and about technological feasibility. That employee to accomplish that function.
communication among all parties, provision, which appears as In any case, given the option of using an
including employees and all employers § 1926.1204(e)(1)(iii) of the final employee to provide direct observation
at a worksite—all of which are clearly standard, requires that employers as one potential method of fulfilling the
feasible. provide an early warning system that requirement, there is no doubt that the
In Section III of the preamble to the will detect non-isolated engulfment requirement may be accomplished with
final rule, ‘‘Summary and Explanation hazards as a part of the permit-required existing technology.
of the Final Rule,’’ OSHA responded to confined space program. Such hazards In conclusion, employers can achieve
issues associated with the technological can result, for example, when runoff compliance with all of the requirements
feasibility of specific provisions. In that from a heavy storm upstream in a sewer of the final standard with readily and
section of the preamble, OSHA flows downstream into the work area. widely available technologies or
discussed technological feasibility As noted in the IMIS reports, an through the use of human observers. To
concerns raised by rulemaking employee died in 2009 when a demonstrate technological feasibility,
participants and the technological rainstorm sent water rushing into a 24- OSHA must establish a ‘‘reasonable
feasibility of provisions that differ from inch pipe inside which the employee possibility that the typical firm will be
the general industry rule, including the was working. Other examples would be able to . . . meet the [standard’s
requirement] in most of its operations.’’ are the costs that employers would annualized capital costs over the
Lead II, 939 F.2d at 980 (internal incur to achieve full compliance with estimated useful life of the equipment,
citation omitted). Given the wide the final rule, relative to the current and annualized one-time costs over 10
availability of options for early warning baseline. They do not include costs years. Consistent with OMB’s Circular
systems, the final rule meets this legal employers incurred to achieve current A–4 (OMB, 2003), OSHA calculated
test. compliance with the existing annualized costs using two alternative
requirements. discount rates: 7 Percent and 3 percent.
6. Costs of Compliance
Table IV–13 presents OSHA’s As shown, OSHA estimated the total
Introduction estimate of the total annualized costs of annualized cost of the final rule to be
In this chapter, OSHA presents the the final rule by provision and by about $60.3 million using a discount
estimated costs of the final rule for industry sector, expressed in 2009 rate of 7 percent, and $59.2 million
confined spaces in construction. These dollars. As OSHA typically does, it using a discount rate of 3 percent.
TABLE IV–13—ANNUALIZED COMPLIANCE COSTS OF OSHA’S FINAL STANDARD FOR CONFINED SPACES IN
CONSTRUCTION, BY PROVISION
Provision or hazard control 7 Percent rate 3 Percent rate
Evaluation, Classification, and Notification .............................................................................................................. $12,363,600 $12,208,018

Classify ............................................................................................................................................................. 948,249 948,249
Notice ................................................................................................................................................................ 2,091,862 1,936,279
Information Exchange ....................................................................................................................................... 9,323,489 9,323,489
Issue Permits, Verify Safety, Review Procedures ................................................................................................... 4,196,574 4,190,373
Annual Review .................................................................................................................................................. 154,746 154,746
Issue Permits .................................................................................................................................................... 2,710,594 2,710,594
Written Program ............................................................................................................................................... 1,331,234 1,325,033
Ventilation and Hazard Isolation .............................................................................................................................. 2,830,611 2,748,652
Isolation ............................................................................................................................................................ 784,364 771,079
Vent .................................................................................................................................................................. 2,046,247 1,977,573
Atmospheric Monitoring ........................................................................................................................................... 11,395,322 11,282,168
Test Prior/During .............................................................................................................................................. 10,661,160 10,551,394
Calibrate ........................................................................................................................................................... 734,162 730,773
Standby Person ....................................................................................................................................................... 3,623,866 3,623,866
Rescue Capability .................................................................................................................................................... 8,157,084 7,576,244
Rescue .............................................................................................................................................................. 5,745,876 5,379,002
Retrieval ............................................................................................................................................................ 2,411,208 2,197,241
Training .................................................................................................................................................................... 11,340,155 11,296,556
Training ............................................................................................................................................................. 5,696,017 5,676,653
Supervisor Training .......................................................................................................................................... 5,644,139 5,619,903
Other Requirements ................................................................................................................................................ 6,402,728 6,269,690
Clothing ............................................................................................................................................................. 2,744,697 2,744,697
Barriers ............................................................................................................................................................. 2,801,408 2,723,063
Communication Equipment .............................................................................................................................. 624,044 584,200
Lighting ............................................................................................................................................................. 183,363 171,656
Alarms ............................................................................................................................................................... 61,252 57,644
Total Compliance Costs ............................................................................................................................ 60,321,976 59,207,135

The structure of the equations which

calculate the costs is the following
equation:
Where TC = Total Cost, k subscripts each cost follows: Evaluation and classification of attendant ($3.6 million); planning and
category, j subscripts each industry type, enclosed spaces, information exchange, providing rescue capability ($8.2
i subscripts the project size, NP is the and notification ($12.4 million); million); providing training ($11.3
number of projects in that size category, million); and other requirements ($6.4
NC is the current non-compliance rate, H developing and reviewing written

is the number of hours, and UC is the programs, issuing entry permits, and million).
unit cost. verifying the safety of confined spaces Estimating Compliance Costs
($4.2 million); isolating hazards and
Using a discount rate of 7 percent, The approach to compliance-cost
providing sufficient ventilation ($2.8
OSHA estimates that the annualized estimation in this FEA follows the
compliance costs for the major million); conducting atmospheric approach in the PEA and in the
monitoring ($11.4 million); having an
ER04MY15.000</GPH>
provisions of the final standard are as CONSAD analysis. However, the cost
estimates in this FEA changed relative project based on the CONSAD report is using the General Industry Standard (29
to the PEA to reflect changing 5.7, with an average of 193 entries per CFR 1926.146) since it was issued in
construction practices over time, project.53 OSHA believes that it would 1993 and have customized their
changes from the proposed to the final be unsound to extrapolate the confined space programs and training to
rule (including more closely aligning commenter’s survey results, based on comply with that standard’’ (ID–075).
the final rule with the confined-spaces only 74 respondents and 5 categories of Another commenter, a construction-
rule for general industry), and OSHA’s construction projects, to the entire safety consultant, stated that employers
responses to comments on the proposal construction industry. In contrast, were already complying with a state
and on the PEA. CONSAD based its estimates on results standard on confined spaces, which the
For each type of construction activity stratified by 25 project categories state based on OSHA’s general industry
identified by the CONSAD expert panel, organized by project size. Furthermore, standard (ID–047). Tom Skaggs,
OSHA took an estimate of the total OSHA notes that adjusting the estimated representing the Mechanical Contractors
number of construction projects from average number of confined spaces and Association of America, testified that
the F.W. Dodge data (the same source entries to reflect the commenter’s the industry was successfully protecting
used for the PEA) and applied a reported median estimate would reduce workers ‘‘through voluntary compliance
category-specific number of confined OSHA’s estimated compliance costs. with OSHA’s general industry standard’’
spaces per project to derive the number OSHA chooses not to adopt the (ID–210, Tr. p. 278; see also ID–180 for
of confined spaces. OSHA then used the commenter’s estimated number of his written testimony). Other
number of confined spaces along with confined spaces. OSHA believes that the commenters also stated that much of the
other pertinent estimates to determine research conducted by CONSAD construction industry adheres to the
the number of affected workers, and continues to provide detailed general industry standard (e.g., ID–086,
applied unit-cost estimates to calculate information that is not available –092, –120, –124).
the costs of each provision of the elsewhere (for example, information Based on these comments, and in
standard, taking into account current related to entries into confined spaces light of the changes from the proposed
compliance. OSHA derived many of the and the distribution of confined spaces rule to the final rule that more closely
costs of this final rule by multiplying across construction projects). Therefore, align the final rule with the general
hourly wages by the labor hours OSHA finds that the CONSAD report, industry rule, OSHA revised its
required to fulfill a given requirement. with appropriate updates and estimated rates of current industry
As previously noted, OSHA annualized adjustments for the changing rule compliance upward in this FEA for
equipment purchase costs based on the provisions and industry practices, many of the provisions of the final rule.
estimated useful life of the equipment, provides the best available data related Table IV–6, introduced earlier in
and annualized one-time expenditures to entries into confined spaces in Chapter 3 of this FEA, presents these
over a 10-year period. construction, and continues to rely on revised compliance rates. Because the
AGCA presented an alternative data published in that report to estimate final rule requirements concerning
economic analysis, prepared by Dr. compliance costs. information exchange, continuous
Helvacian, of the compliance costs of Dr. Helvacian’s analysis also monitoring, and early warning systems
the proposed rule, stating that the suggested that the number of hours and rescue vary from the general
analysis in the PEA ‘‘must be updated required to comply with the proposed industry rule, the Agency did not adjust
for the most recent data on rule was greater than that estimated in the estimated compliance rates related
establishments, employees, wages and the PEA (ID–222). However, although to these provisions in this FEA.
benefits, and for prices for construction the report provided some aggregate time To adjust compliance rates, OSHA
machinery and equipment’’ (ID–222). In estimates, they were not sufficiently used information on state confined-
this FEA, OSHA updated its analysis of detailed for OSHA to analyze the space standards for construction. The
compliance costs to reflect more recent estimates by specific requirements. states that have confined space
data, when these data were available. Furthermore, OSHA notes that Dr. standards for construction are:
Specifically, to account for changes in Helvacian based the survey results on California, Kentucky, Maryland,
wages and prices over time, OSHA the AGCA members’ understanding of Michigan, Minnesota, Virginia,
updated the wages and capital and the proposed rule rather than the final Washington, and Alaska. These eight
equipment costs presented in the PEA to rule, which the survey’s introduction states have different confined-space
2009 dollars based on the percentage described as ‘‘complicated, costly to requirements that comply with some or
change in the GDP price deflator from implement, and does not provide all of the OSHA requirements in the
2002 to 2009, published by the U.S. significant increases in safety above the final rule, depending on the state.
Commerce Department, Bureau of existing general industry standard’’ (ID– OSHA assumed that the original
Economic Analysis.52 Dr. Helvacian’s 222). For these reasons, OSHA is not CONSAD compliance rate would be
economic analysis was based partially adjusting its time estimates based on the applicable in states without state
on a survey of AGCA’s member AGCA survey results. standards, and assumed full compliance
employers. The survey respondents OSHA received a number of with the provisions of the standards
have an average of 98.8 confined spaces comments stating that many specific to each of these eight states. The
per job, with a median of 3 spaces per construction contractors were already content of the state construction
job. This large disparity between the complying with the general industry standards varies by state, so OSHA
average and the median suggests the standard. For example, an association of calculated weighted average compliance
rates for each provision of the standard
possibility that there was widespread utility contractors commented that its
misunderstanding among the members ‘‘enter into confined spaces on based on the proportion of
respondents regarding what constitutes a regular basis in the course of their establishments in each state having that
a confined space. By comparison, the construction operations. They have been provision. As the record shows, this
average number of confined spaces per approach may underestimate the actual
53 This estimate excludes single-family housing compliance rates since many
52 Source:
http://www.bea.gov/iTable/iTable.cfm? projects. OSHA added these projects to the analysis construction employers have come into
ReqID=9&step=1#reqid=9&step=3&isuri=1&903=13. in this FEA. compliance with the general industry
standard, and, therefore, with perform both general industry and Table IV–14 presents the estimated
provisions of this final rule, whether or construction work. OSHA also modified unit costs associated with each
not they are located in the states with some compliance rates from the requirement in the final rule. Following
confined-space standards for CONSAD report to account for large this table is a discussion of OSHA’s
construction. These employers come projects having greater compliance rates estimated compliance costs by
into compliance with the general than smaller projects within the same requirement.
industry standard because, in part, they activity type.
TABLE IV–14—UNIT-COST ESTIMATES FOR CONTROLS NECESSARY TO ACHIEVE COMPLIANCE WITH THE FINAL STANDARD
Activity or equipment Unit cost/useful life
Construction supervisor wage (including benefits) .................................. $42.16 per hour.

Skilled worker wage (including benefits) .................................................. $29.60 per hour.
General construction employee wage (including benefits) ...................... $24.93 per hour.
Clerical employee wage (including benefits) ............................................ $22.53 per hour.
Unskilled worker wage (including benefits) .............................................. $22.67 per hour.
Confined-space notification signs ............................................................. $18.92/5 years.
Host employer/controlling contractor information exchange .................... 8 minutes of supervisor time.
Controlling contractor/entry employer information exchange ................... 20 minutes of supervisor time for each entity involved.
Controlling contractor/other worksite employer information exchange .... 5 minutes of supervisor time for 10 percent of employers.
Entry coordination ..................................................................................... 10 minutes of supervisor time for 3 supervisors per coordinated entry.
Written program ........................................................................................ 1 hour per project.
Issue permits/maintain records/review procedures .................................. 10 minutes of supervisor time and 5 minutes of clerical time per permit
issued.
Implement and verify alternative entry procedures .................................. 5 minutes of supervisor time and 5 minutes of clerical time per non-
permitted space entry.
Time to isolate a hazard (e.g., with double block and bleed method, 5 minutes skilled employee time.
lockout/tagout system, etc.).
Lock .......................................................................................................... $13.80/2 years.
Tag ............................................................................................................ $1.61 each.
Portable ventilation system ...................................................................... $1,332/5 years.
Operation and maintenance costs for ventilation system ........................ Add 10% per year to cost of system.
Set up ventilation system ......................................................................... 10 minutes skilled employee time.
Ventilate confined space prior to entry .................................................... 45 minutes skilled employee time.
Set up atmospheric monitoring equipment .............................................. 20 minutes skilled employee time per entry.
Atmospheric-monitoring equipment (three-gas monitor) .......................... $1,000/5 years.
Atmospheric-monitor calibration test ........................................................ 1 calibration per 160 hours of use.
Attendant .................................................................................................. 1 additional construction employee for duration of entry for anywhere
from 3 hours to 3,400 hours.
Establish rescue procedures .................................................................... 1 hour supervisor time per project.
Entry rescue equipment ........................................................................... $5,328.56 per set/5 years.
Non-entry rescue equipment .................................................................... $3,248.54/20 years.
Rescue team training ............................................................................... For each team of 4 employees: 16 hours skilled worker time (4 hours
per employee) plus 4 hours supervisor time; plus for 1 employee: 4
hours skilled worker time for CPR training.
Training for entrants and attendants ........................................................ Entrants (3–75 workers per project): 0.25 hours construction worker
time; attendants (2–6 workers per project): 0.25 hours construction
worker time; plus 1.5 minutes supervisor time per trained worker and
1.5 minutes clerical time per worker.
Training program development ................................................................ 4 hours supervisor time plus 1 hour clerical time for program develop-
ment 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, would primarily involve a supervisor’s require drastic changes to existing
Information Exchange, and Notification time to categorize the confined space confined space programs at great
and evaluate its hazards. financial expense to the construction
The proposed standard required
employers to evaluate confined spaces Many commenters found the industry’’ (ID–124). Another commenter
and their hazards, and to classify them proposed multiple classification system objected to ‘‘the cost to the contractor
as one of several types of confined for confined spaces unnecessarily for re-educating employees in the new
spaces. In the PEA, OSHA estimated burdensome. One commenter stated that terminology,’’ and supported the
that compliance with the requirements ‘‘[t]he four new classifications . . . will continued use of the ‘‘the existing
process’’ in § 1910.146, the general small projects, 220 medium projects, hazards in the spaces, and other
industry standard (ID–035). and 23 large projects. pertinent information. Neither the host
In contrast to the proposed standard, The total cost for the large projects employer nor the controlling contractor
the final rule requires employers to was derived by taking the number of has to enter the confined spaces to
evaluate confined spaces and their projects (23) times the current non- obtain this information. OSHA estimates
hazards (i.e., determine whether a compliance rate (42%) times the that supervisors for the host employer
workspace is a confined space and number of hours per project (1.5). This and the controlling contractor will
identify the types of hazards that calculation yields a product of 14.49 engage in eight minutes of conversation
workers may encounter), and to identify hours. Multiplying that number by the per project to fulfill this information-
those confined spaces that are permit unit cost ($42.16 per hour)—the cost of exchange requirement.
spaces or covered by alternate an hour of supervisor’s time—yields Under final § 1926.1203(b)(2), (h)(2),
procedures. This simplified requirement $610.90, the cost of classification of (h)(3), (h)(5), and (i), controlling
mirrors the requirements of OSHA’s large warehouse construction project contractors and entry employers must
general industry standard for confined confined spaces. exchange information about permit
spaces. OSHA estimates that the time To determine the total cost of spaces and their hazards. They also
required to evaluate confined spaces as classification of all permit required must share most of this information
permit-required spaces would be confined spaces, the costs of all types of with employee representatives. OSHA
substantially less than the time required projects (small, medium, and large) for estimates the information exchange
to comply with the more complex all 25 types of construction, weighted by requirement can be fulfilled with an
proposed classification system, and, each project-cell-types current non- average of 20 minutes of communication
therefore, the Agency estimated an compliance rate, are summed up. A total (one pre-entry and one post-entry
average time of about 12 minutes to of 94 cells are added up to produce the conversation, each lasting 10 minutes)
evaluate a permit space and identify total cost of classification. per project between a supervisor for the
The final rule includes specific controlling contractor and an entry
hazards. OSHA believes this estimate is
requirements for employers at worksites employer plus a worker-authorized
appropriate given the many comments
with confined spaces to share representative of that entry employer
indicating that employers are already
information they may have about the Under final § 1926.1203(h)(2), before
familiar with the general industry rule hazards confronting their workers or entry operations begin, the controlling
and its required classification process. other workers. One commenter stated contractor must provide information
For example, one commenter, which that ‘‘[i]t is essential to add in the costs about the permit-required spaces to
surveyed its members about the to implement this proposed rule by all employers with employees whose
proposed standard, reported that the employers on each construction site activities could foreseeably expose them
‘‘identifying confined spaces [is] . . . , ’’ and that the ‘‘estimated time to a hazard in the permit-required space.
currently performed as part of normal necessary to attend to each confined OSHA expects that employers on a
business activities,’’ and that ‘‘within space on each construction project by worksite will not usually have
the past 15 years, many contractors have the proposed controlling contractor is 6 employees engaged in work that could
become accustomed to 29 CFR 1910.146 to 8 hours’’ (ID–100). In providing this foreseeably expose them to such a
and have adjusted their safety programs estimate, the commenter delineates hazard. To estimate the cost of
to comply with this standard’’ (ID–222). several requirements that fall under the compliance with this provision, OSHA
For purposes of estimating the extent duties of entry employers and host anticipates that the controlling
of current compliance, OSHA considers employers. The commenter correctly contractor’s supervisor will engage in
that projects in compliance with the notes the requirement that the one 5-minute conversation with 10
proposed requirements to issue entry controlling contractor exchange percent of all non-entry employers on a
permits would also be in compliance information with other worksite worksite. OSHA calculated the number
with the final requirements for employers; however, by counting of non-entry employers on a worksite
evaluating spaces as permit-required or requirements for entry employers with from estimates made by CONSAD of the
not. Therefore, OSHA bases its the requirements for controlling number of non-entry workers on
compliance rates for these provisions on contractors, the commenter overstates projects, assuming an average employer
the compliance rates estimated for the the time burden on controlling size of 20 employees.
provisions related to issuing entry contractors. Another comment, in the Under final § 1926.1203(h)(4), the
permits. OSHA calculated the annual report prepared by Dr. Helvacian, noted controlling contractor must coordinate
compliance cost for evaluating and that employers had concerns about the entry operations when multiple
classifying confined spaces by costs of complying with requirements employers enter simultaneously or
multiplying the supervisor’s hourly for ‘‘information gathering’’ and when an employer makes an entry while
wage rate by the number of hours per ‘‘information sharing and coordination’’ other work performed at the site
project required to identify and evaluate (ID–222). Although OSHA believes that (outside the confined space) may result
confined spaces, which can vary by employers on construction sites in a hazard in the confined space. To
project type. OSHA applied this total to currently conduct the information obtain the cost of compliance with this
the percentage of projects not already in exchange described in this chapter as information-exchange provision, OSHA
compliance and summed across all part of their usual and customary estimates that the controlling contractor
projects. Using this approach, OSHA business practices, in this FEA (unlike and two employers will engage in one
estimates an annualized cost of about in the PEA) the Agency included 10-minute conversation per coordinated
$948,249 to comply with this estimated costs for information- entry. To estimate the number of
requirement. exchange requirements, as follows. coordinated entries, OSHA used
For example, to see how OSHA Under final § 1926.1203(h)(1) and estimates in the CONSAD report on the
determined the cost of classification, we (h)(2), the host employer and the number of simultaneous entries per
will examine one of the 25 types of controlling contractor must exchange project. OSHA assumes that all
projects: Construction on warehouses. information about known permit spaces, estimated simultaneous entries will
Within this category there were 130 such as location, past experiences with require coordination, and estimates that
10 percent of all entries will be subject infeasibility. Although this commenter In summary, OSHA estimates the total
to hazards as a result of work outside cited home-building industry statistics annualized costs related to the final
the confined space. indicating that homebuilders tend to be requirements for evaluation and
Although the CONSAD report did not small businesses that rely on classification, information exchange,
provide direct estimates of compliance subcontractors to handle specialized and notice to employees to be $12.1
rates for the information-exchange tasks, the comment did not explain how million.
requirements, OSHA believes that these this condition renders the multi-
compliance rates are similar to the Written Program, Permit Issuance, and
employer and communication
compliance rates associated with the Annual Review
requirements of the rule economically
requirements for notification to non- infeasible for that industry. The proposed standard required that
entrant employees (ID–003, Table D.2). Under final § 1926.1203(b) and (c), employers on worksites with confined
OSHA also believes it is reasonable to employers must inform exposed spaces either develop a confined-space
assume that projects in compliance with employees of the existence of permit program and maintain a copy of the
requirements addressing notification to spaces and the dangers they pose. In the written program, or, alternatively,
non-entrant employees would also be in PEA, OSHA estimated that complying maintain a copy of the standard at the
compliance with requirements with this requirement involved an site. For analytical purposes, OSHA
addressing employer-to-employer average of five minutes per notified assumed that employers would choose
communication. worker. In the FEA, the Agency no the least-cost alternative and maintain a
OSHA calculated the annual longer includes such notification costs. copy of the standard at the site in lieu
compliance cost for information Rather, OSHA followed the PEA in of developing a written program. In
exchange on each project by multiplying assuming that employers will achieve contrast, final § 1926.1203(d) is similar
the supervisor’s hourly wage rate by the compliance with the notification to the general industry provision in that
number of hours per project for each requirement by posting a sign at each it requires entry employers to develop
type of required information exchange. confined space. OSHA estimates that and implement a written permit-space
To estimate the cost of information signs have a five-year life, and that program, and final § 1926.1204(n)
exchange between host employers and installation takes five minutes per sign. requires employers to review the
controlling contractors, OSHA modeled The Agency calculates the cost of signs permit-space program.
eight minutes of three supervisors’ time as the unit cost of one sign times the In this FEA, OSHA estimates one hour
per project. Similarly, to estimate the number of signs per project, and of supervisor time per project to write
cost of information exchange between calculates the installation costs as five a program. OSHA based this estimate on
controlling contractors and entry minutes (1⁄12 of an hour) times the the paperwork-burden determination
employers, OSHA modeled 20 minutes unskilled worker’s hourly wage times made in the proposed rule for
of supervisor time for the controlling the number of signs per project. OSHA developing such a program, which no
contractor, a worker-authorized applies these totals to the percentage of commenter disputed. OSHA also notes
representative, and each of the entry projects not already in compliance, the wide availability of written model
employers on the project. To estimate summed across all projects. Treating the permit-space programs provided by
the cost of information exchange installation cost as a recurring cost, and government entities, trade associations,
between the controlling contractor and treating signs as a capital cost with a and others, that employers could adapt
employers on the worksite having useful life of five years, OSHA estimates with a limited number of revisions to
employees whose work may result in a that the annualized cost of signs, comply with the new standard (see, for
hazard in the confined space, OSHA including materials and labor, to be $2.0 example, http://www.purdue.edu/rem/
modeled five minutes of supervisor time million. home/booklets/ConSpProg.pdf). OSHA
for the controlling contractor and 10 Two stakeholders representing utility calculated compliance costs associated
percent of non-entry employers present. contractors, in similarly worded with the requirement to develop a
Finally, to estimate the cost of comments, stated that notifying non- written program as a one-time cost
coordinating simultaneous entries, authorized entrants ‘‘could mean consisting of one hour times the
OSHA modeled 10 minutes for 3 informing 25–100 or more employees on supervisor’s hourly wage times the
supervisors (i.e., the controlling the jobsite, which would be extremely number of projects. OSHA applied this
contractor and two entry employers) for time consuming’’ (ID–124 and ID–075). total to the percentage of projects not
each such entry. For all of these However, OSHA believes that, beyond already in compliance, and annualized
calculations, OSHA applied the totals to posting the signs, there should be no the costs using assumptions on the
the percentage of projects not already in additional costs associated with the share of projects that are new to a
compliance (i.e., 1 minus the requirement to inform exposed contractor each year—yielding a total
compliance rate) and summed these employees of the existence of permit annualized cost of approximately $1.3
values across all projects. Using this spaces and the danger posed by million. OSHA notes that, in practice,
approach, OSHA estimates an annual unauthorized entry. OSHA notes that, an employer is likely to develop one,
cost of approximately $9.3 million to under 29 CFR 1926.21(b)(2), employers somewhat generic, program, and then
comply with the information-exchange must already provide general training to apply it later to other projects. Given the
requirements in the final rule. employees engaged in construction ready availability of model programs
One commenter stated that the work to ensure that they recognize the online and elsewhere, adapting one
requirements to exchange information hazards on the worksite, including with limited revisions to a company’s
and coordinate entry operations applicable signage warning of hazards. particular needs is not especially
represent ‘‘an unnecessary burden’’ and As one commenter stated, ‘‘In reference difficult or time consuming. In addition,
‘‘in some cases may be infeasible’’ (ID– to warning employees not to attempt an following the PEA, OSHA estimates five
124). OSHA addresses this comment as unauthorized rescue, it should be part of minutes of supervisor time per program
a technological-feasibility issue in the every construction employee’s training for the annual review, and computes the
section on technological feasibility, but . . . because this warning applies to all cost for this review as five minutes (1⁄12
the commenter’s unsupported argument construction rescue operations’’ (ID– of an hour) times the supervisor’s
also would fail if directed at economic 075). hourly wage times the number of
projects not already in compliance— Isolating Hazards and Providing Monitoring, Early Warning Systems, and
yielding an estimated annual Ventilation Attendants
compliance cost of about $155,000. Final §§ 1926.1203(e) and
Final §§ 1926.1203(e) and 1926.1204
Final § 1926.1205 requires employers refer to isolating hazards and providing 1926.1204(e) set forth requirements for
to issue entry permits, and final ventilation to ensure safe entry monitoring hazards, which generally
§ 1926.1206 specifies the information conditions for permit-required spaces include continuous monitoring, or
employers must include in the permits. periodic monitoring of sufficient
and confined spaces covered by
In the PEA, OSHA estimated that frequency, to ensure acceptable entry
alternate procedures. As in the PEA,
compliance with the requirements to conditions, as well as an early warning
OSHA estimates that isolating hazards
issue written entry permits when system for non-isolated engulfment
and providing ventilation would require
necessary, and to review procedures hazards. The monitoring provision
the time of a skilled construction
periodically, would primarily involve reflects the requirements in § 1910(d)(5)
employee, additional costs for locks of the general industry standard, while
supervisor time; OSHA estimated that and/or tags, the purchase costs, and the
15 minutes of supervisor time per the requirement for an early warning
operating and maintenance costs for a system is unique to the construction
permit issued was sufficient for this portable ventilation system. OSHA
purpose. For this FEA, OSHA estimated standard (that is, not included in the
included the unit costs for these items general industry standard).
compliance costs associated with in Table IV–14 above. OSHA received
issuing permits separately from the Costs related to monitoring and early
no specific comments on the warning consist of both equipment costs
compliance costs associated with the preliminary compliance costs in the
annual review of the permit-space and labor costs associated with
PEA related to these provisions. While attendants and other employees who
program. Following the analysis by recognizing that isolation costs may
CONSAD, OSHA estimates that perform these functions. The following
vary according to the hazards isolated, paragraphs include a discussion of the
compliance with these provisions will OSHA nevertheless considers the cost costs related to attendants and other
involve 10 minutes of supervisor time to estimates in the PEA for blanking and employees who perform monitoring and
issue a permit, 5 minutes of clerical bleeding and lockout/tagout to be early warning for hazards under
time to write the permit, as well as 5 reasonable estimates of isolation costs; specified conditions.
minutes of supervisor time to provide therefore, OSHA applied the same cost One commenter stated that the early
written verification regarding the safety methodology to this section of the final warning system for engulfment hazards
of non-permit spaces, and 5 minutes of standard. will be ‘‘quite expensive for a contractor
clerical time for recordkeeping for non- to purchase, install and maintain with
permit spaces. The total estimated OSHA estimated isolation costs by
multiplying the skilled worker hourly calibration’’ (ID–098), while some other
annual costs in this final standard commenters suggested that the
associated with issuing entry permits wage times 10 minutes (1⁄6 or an hour)
times the number of entries per project requirement for an early warning system
and written verifications of safety are would force employers to hire more
$2.7 million. requiring blanking, plus the skilled
worker hourly wage times 5 minutes employees for the purpose of
In summary, OSHA estimates that the monitoring for these hazards (ID–059
(1⁄12 of an hour) times the number of
annualized costs of the final and ID–112). OSHA provides a choice to
entries per project requiring double
requirements to provide a written employers for how they comply with
block and bleed, plus the skilled worker
program, issue written permits, and the early warning requirement: They
hourly wage times 10 minutes (1⁄6 of an
conduct an annual review of the may use early-warning equipment or
hour) times the number of entries per
program total to $4.2 million. they may rely on personnel to provide
project requiring lockout/tagout, plus warning. OSHA expects that employers
One commenter stated that the the cost of tags and locks annualized will do whatever is less costly; in some
requirement to develop a confined- over a 2-year useful life. OSHA applied cases this will be a worker exclusively
space program might require the these totals to the percentage of projects assigned to monitoring duty, and in
assistance of a third party, and asserted not already in compliance, summed other cases it will be cheaper to use a
that program development could cost across all projects. Similarly, OSHA monitoring device. OSHA calculated the
contractors $10,000 (ID–112). However, estimated ventilation costs as the costs based on the use of personnel to
the commenter did not explain the basis purchase costs and operating and perform this function because it is
for the $10,000 estimated cost of maintenance costs for portable simpler to calculate on a per-instance
program development, and did not ventilation systems applied to the basis; however, OSHA does not expect
specify which elements of ‘‘program percentage of projects not already in that the cost of purchasing a device
development’’ were in its estimate. For compliance, summed across all projects. would be significantly higher on a per-
example, OSHA separately estimated OSHA based this estimate on a unit cost instance basis when employer can use
the costs of providing a written of about $1,332 per portable ventilation the device over a number of projects and
confined-space program and developing system, annualized over a useful life of over several years. In some cases the
a training program. Furthermore, OSHA 5 years, and 10 minutes (1⁄6 of an hour) equipment cost will be lower than the
notes that the final rule does not require of setup time multiplied by the labor estimates included in this
employers to engage a third party in the unskilled worker hourly wage. The analysis.
development of a confined-space Agency applied these totals to the OSHA expects that incumbent
program. Indeed, a variety of examples percentage of projects not already in workers can discharge the early
of confined-space programs are widely compliance, summed across all projects. warning-monitoring duty, and estimates
available on the Internet, which Based on this method, OSHA estimates the total cost as the construction
employers may adapt for their needs; in total annualized costs related to worker’s hourly wage multiplied by the
addition, OSHA will provide a small isolating hazards and providing number of entry hours per project,
entity compliance guide to aid ventilation to be $2.5 million for this which varies by project. OSHA applied
employers in developing such programs. final rule. these totals to the percentage of projects
not already in compliance, summed entrants and the conditions inside and equipment, air monitors, two air-
across all projects. Based on this outside the permit space to detect supplied respirators, air cart and air
method, OSHA estimates total prohibited conditions and summoning bottles or air compressor designed to
annualized costs of $3.6 million to rescue and other emergency services. provide breathing air, stokes stretcher
comply with the requirement to provide The requirement for an attendant is and necessary equipment to package the
an early warning system. similar to a requirement in the general victim and much more’’ (ID–075).
To assign costs to the use of industry standard. In this FEA, as in the Another commenter stated that the
equipment required to monitor PEA, OSHA estimates that the cost of ‘‘rescue equipment required could vary
atmospheres in confined spaces, OSHA posting an attendant is the wage rate of greatly. A Confined Space Rescue Team
estimated in the PEA that gas monitors a skilled construction worker multiplied Kit, consisting of a tripod, rescue
have an average useful life of 2.5 years, by the time that entrants spend in the harnesses/helmets, blower, rope,
and that their unit cost (in 2009 dollars) confined space. hardware, software, etc., can easily cost
is $1,660. One commenter (ID–222, p. upwards of $17,000 per set’’ (ID–112).
12) stated that an average monitor Rescue Capability In response to these and other
would cost ‘‘around $2,000,’’ and that The proposed standard sets forth comments, OSHA revised the
an employer would need to have two several requirements for non-entry and requirements for rescue and emergency
units and additional sensors due to entry rescue, including provisions for services for the final rule. For example,
reliability problems with such preparing, protecting, and training OSHA dropped the requirement in
equipment. The Agency notes that entry-rescue employees. In the PEA, proposed § 1926.1211(h)(2) that
employers in general industry have OSHA estimated that compliance with required employers to summon an
successfully used monitoring equipment rescue-related provisions would have a entry-rescue team every time they
under the general industry standard, total annualized cost of approximately initiated non-entry rescue. OSHA also
and the Agency believes that reliable $9.6 million, including costs for non- clarified the Agency’s preference for
equipment is commercially available. entry rescue and in-house entry rescue non-entry rescue, which typically
Moreover, based on OSHA research, the teams for many construction projects. consists of a retrieval system and is,
price of a gas monitor has fallen to One comment characterized the therefore, less expensive than entry
around $1,000, and industry practice estimated costs related to rescue rescue. Moreover, it appears that some
suggest that a gas monitor has a useful ‘‘planning and compliance’’ as of the commenters mistakenly included
life of 5 years; these are the estimates ‘‘drastically low and inaccurate’’ (ID– costs for equipping contracted rescue
used in this FEA. 124). Several commenters seized on the services (rather than in-house services
OSHA estimated 20 minutes of proposed requirement to summon an of employees) when asserting that
supervisor time to set up the monitoring entry-rescue team whenever an OSHA’s estimates were too low;
equipment, taking into account the employer initiates a non-entry rescue. employers would not incur such costs
possibility that, in some cases (with a For example, at the hearing, testimony as the result of this final rule, and
test occurring after 160 hours of use— from the National Utility Contractors OSHA, therefore, did not include these
a conservative estimate according to Association suggested that the proposed costs in this analysis.
industry experts). OSHA calculated the rule required employers to have ‘‘a Final § 1926.1204(i) requires
costs related to monitoring as the standby entry rescue team that can employers to develop and implement
equipment cost ($1,000) annualized respond to the incident in a timely procedures for: Providing rescue and
over a useful life of 5 years, plus manner’’ (ID–210, Tr. p. 177). Another emergency services, including
operating and maintenance costs equal commenter stated that the rescue procedures for summoning emergency
to 5 percent of equipment costs, plus requirements are ‘‘unreasonable and assistance in the event of a failed non-
calibration costs based on use time, plus burdensome’’ (ID–075). This entry rescue; rescuing entrants from
observation and testing costs based on commenter, representing utility permit spaces; providing necessary
the duration of entries, which varies by contractors, elaborated on its concerns: emergency services to rescued
project. OSHA applied these totals to employees; and preventing
the percentage of projects not already in It is not always practical or feasible to have unauthorized personnel from attempting
a rescue team onsite and it is very expensive
compliance, summed across all projects. a rescue. Paragraph (a) of § 1926.1211
to have a team on standby unless it is the
Based on these calculations, OSHA local fire/police rescue squad. The proposed specifies the criteria according to which
estimates that annualized compliance rule should be revised to permit entry into employers can choose rescue and
costs for monitoring total to $11.3 the average PRCS without having a rescue emergency services; § 1926.1211(b)
million. team onsite or on standby. Most fire specifies requirements for employers
A commenter stated that employers department rescue squads can handle the who choose to designate their own
had concerns about the recordkeeping majority of confined space rescues, such as employees as the rescue service; and
cost of retaining monitoring data for 30 manhole, pipe, vault and underground tank § 1926.1211(c) sets forth requirements
years (ID–222). However, OSHA notes rescues. However, due to liability, most fire
related to retrieval systems used to
departments will not assume the
that although employers must make responsibility of being the designated rescue facilitate non-entry rescue from permit
exposure records for employees exposed team on standby, although they will respond spaces. These provisions are similar to
to hazards available for 30 years under to a call and perform the rescue. In our the general industry standard for
pre-existing OSHA requirements (i.e., 29 opinion it is safer to have professionals confined spaces. For cost-estimation
CFR 1910.1020), this final rule does not respond than to depend on employees who purposes in the PEA, OSHA judged that
require that routine monitoring records have had some training and probably no entry employers would designate
be kept for 30 years. experience handling an actual rescue. Id. employees who use self-contained
Final § 1926.1204(f) requires (emphasis in original). breathing apparatuses to provide entry
employers to post an attendant outside Other commenters suggested that rescue services. OSHA also determined
the permit space for the duration of rescue equipment costs could be high. that the rescue-related compliance costs
authorized entry operations, and final One commenter stated: ‘‘At the very incurred by these employers include
§ 1926.1209 sets forth the duties of least, the equipment would include a expenditures for training and
attendants, which include assessing the tri-pod, retrieval device, ventilation equipment. The Agency used the time of
a skilled construction worker to OSHA concurs with the comment that compliance, adjusted for the number of
estimate the labor costs associated with unit costs for these rescue kits can vary projects with retrieval lines onsite but
training four employees in rescue considerably, but a review of not properly used. OSHA estimated four
operations, conducting practice rescue commercially available kits shows that hours of skilled worker time per year to
operations, and training one employee the estimate developed by OSHA is capture the cost of non-entry rescue
in CPR. Separately, OSHA estimated reasonable. For example, one practice, and applied this total to the
costs of retrieval lines for employers commercially available system priced at percentage of projects not already in
electing non-entry rescues. Thus, for the $2,735 includes a tripod rescue/retrieval compliance.
proposed rule, the Agency estimated system, blower, gas monitor with OSHA estimated costs for projects
costs for entry rescue and non-entry calibration capability, and a harness. using entry rescue as the cost of
rescue separately. Another system, priced at $4,450, providing in-house rescue for a subset of
Final § 1926.1211(c) requires includes a two-way communication projects. For all other projects, OSHA
employers to use non-entry rescue, such system, talk box, cable splitter, operator estimated that employers will rely on
as retrieval equipment, unless the headset, face masks, speaker harnesses, local emergency responders to provide
retrieval equipment would increase the cables, hooks, and connectors. entry rescue, as most employers who
overall risk of entry or would not Confined-space rescue kits are available have programs do today. For projects
contribute to the rescue of the entrant. at a price range of $3,000–$4,500. These using in-house rescue, OSHA calculated
Therefore, for this FEA, OSHA kits typically include a wide range of the cost of 2 days of entry-rescue
estimated that employers that use non- items such as a tripod with bag, spine training for 4 skilled construction
entry rescue (retrieval lines) would not splint, collar kit, 4:1 rescue kit, full- workers (16 hours times 4 workers times
also designate employees for entry body harnesses, tag line, belay line, the skilled construction worker’s hourly
rescue for the same project, but would anchor sling, continuous-loop sling, wage), 4 hours of CPR training for one
instead continue to rely solely on handled ascender, helmets, ascending skilled worker, and a set of rescue
emergency services in the event of non- stirrup, rope pad, rope guard, and equipment annualized over a useful life
entry rescue failure. OSHA estimated a carabiners.54 Based on these prices, and of 5 years. OSHA estimated 4 hours of
unit cost per entrant of $3,250 for given that OSHA estimated costs for skilled worker time per year to capture
retrieval systems. The cost of retrieval communication devices, ventilation the cost of non-entry rescue practice,
systems includes the cost of harnesses, equipment, and gas monitors elsewhere and applied this total to the percentage
which, according to one commenter, in this analysis, OSHA believes that its of projects not already in compliance.
cost $100 each and have a useful life of estimate of $5,330 for a rescue kit more Based on this method, OSHA estimates
5 years (ID–112). However, harnesses accurately reflects the requirements of that the annualized costs for the
are a small part of a retrieval system’s the standard than does the estimate of requirements in the final standard to
total cost. In addition to the equipment $17,000 suggested by the commenter. provide rescue capability total to $8.3
cost of retrieval lines for each entrant, Indeed, OSHA’s cost estimate may be an million.
employers using non-entry rescue overestimate of the true cost to the
would incur additional costs, including extent that a particular confined space Training
one hour of supervisor time to establish covered by the final standard may not
Final § 1926.1207 sets forth
rescue procedures and one hour of require some of the equipment included
requirements for training entrants,
practice annually for a supervisor and in commercially available kits.
team of 4 non-entry rescuers. The final rule requires non-entry attendants, and supervisors to ensure
OSHA judges that, when employers rescue unless the retrieval equipment safe performance of the duties assigned
do not employ non-entry rescue, they would increase the overall risk of entry under the standard.
will rely on in-house rescue teams only or would not contribute to the rescue of In the PEA, OSHA estimated that
when entrants use a self-contained the entrant. To calculate compliance annualized training costs associated
breathing apparatus, and will rely on costs, OSHA estimated that employers with the proposed standard would total
outside rescue service in other will use non-entry rescue with retrieval to $8.1 million. As stated in the PEA,
situations. OSHA estimates one hour of lines for projects whenever required this total reflected an adjustment to the
supervisor time to establish rescue under the standard, and will select entry estimates in the CONSAD report based
procedures for all employers electing rescue for all other projects. OSHA on comments received from potentially
entry-rescue procedures. Following the estimated that, for all projects, one hour affected small businesses, and the
PEA, OSHA modeled additional costs of supervisor time is necessary to set up findings and recommendations made by
only for employers using in-house procedures, and estimates this cost as a panel of reviewers. Several
rescue teams; these costs include one the supervisor’s hourly wage, applied to commenters stated that training under
hour of practice annually for a all projects not already in compliance. the proposed rule would be expensive.
supervisor and a team of four rescuers, In addition, OSHA estimated costs for However, since the final rule represents
as well as costs for annual training, CPR projects that use non-entry rescue based a significant simplification of the
training, and entry-rescue equipment. on the equipment costs for retrieval requirements in the proposed rule,
OSHA did not receive any comments lines ($3,250) multiplied by the number OSHA reduced the cost estimates
addressing its method of estimating of entrants on a project. The Agency accordingly. OSHA further notes that,
costs for employers using in-house annualized this cost over a useful life of although it anticipates that most
rescue services. 20 years, with the total applied to the affected employers will train workers
In the PEA, OSHA estimated that once using a procedure that covers
percentage of projects not already in

confined-space entry-rescue team kits many topics, and conduct refresher
will cost approximately $5,330 per unit 54 See http://www.majorsafety.com/index.cfm/ training as appropriate along with
(in 2009 dollars). While rescue team kits product/450_105/confined-space-tripod-rescue- training newly arrived employees, the
as such are not required by the standard, system-with-bw-gasalert-max-xt-and-blower.cfm; Agency modeled training costs on a per-
http://www.rocknrescue.com/acatalog/Con-Space-
they are a simple way for an employer Rescue-Kit-3.html#aCSI_2dRES_2dKIT3; http://
project basis to be consistent with the
to obtain the equipment typically www.rocknrescue.com/acatalog/Skedco-Evac- rest of the CONSAD-derived analysis.
necessary for an adequate rescue team. Confined-Space-Rescue-Kit.html. This assumption, along with the unit-
cost figures used, results in a large and coveralls. The Agency multiplied the policy, which recognizes a hierarchy of
inflated estimate of the training costs. number of worker entries requiring controls consisting of engineering
OSHA notes that the duties of disposable coveralls for each project controls when possible, then work-
entrants and attendants as set forth in type (by activity and size) by the practice controls when engineering
the final standard are now similar to the number of projects in that category that controls are not possible, and finally
duties of comparable employees covered are not currently in compliance and by personal protective equipment only
by the general industry standard, and the unit-cost for disposable coveralls of when the other controls are not
that many commenters stated that they $8.94 per set. The number of entries feasible.55 Second, consistent with the
were already complying with the requiring this clothing is a subset of the design of the final rule, none of the
general industry standard. In addition, entire number of entries. The estimated safety benefits estimated in this FEA
29 CFR 1926.21(b), a decades-old annual cost for disposable overalls were attributable to respiratory
provision applicable to confined spaces comes to $2.7 million. protection. The Agency believes that it
in construction, already requires some To calculate the costs of emergency would be inconsistent to attribute costs,
training on the characteristics of lights, OSHA estimated the number of but not benefits, to respiratory
confined spaces and associated safety simultaneous entries for each project protection (unless, of course, the
practices. Many comments echoed the type. OSHA then multiplied that respiratory protection requirement
statement that ‘‘affected construction number by the unit cost of a lantern, generates costs but not benefits).
workers are already extremely familiar $19.04, and annualized it over a useful This treatment of respiratory
with the existing general industry life of 3 years. Finally, OSHA multiplied protection in the FEA is fundamentally
standard’’ (ID–148). Therefore, the cost per project by the number of different from OSHA’s earlier treatment
consistent with the observations above, projects not in compliance for each of respiratory protection in the PEA. In
OSHA believes that the training category, and summed across categories. the PEA, OSHA included costs for
required for employees will be less The resulting cost is about $193,000 a employers to provide respiratory
extensive than was suggested by the year. protection. These costs included the
Agency’s preliminary training cost To calculate the costs of traffic purchase of the appropriate type of
estimates. barriers, OSHA added costs for traffic respirator (e.g., self-contained breathing
For this final analysis, OSHA barricades and barricade tape. The apparatus, powered air purifying
estimates that the costs associated with Agency estimated that 50 percent of all respirators, dust masks), time and
training entrants and attendants would projects require these controls. OSHA materials for cleaning respirators, and
primarily involve supervisor and then annualized the unit cost of $165.64 other necessary equipment such as a
employee time necessary for the for a traffic barricade over 3 years, and
supervisor to conduct the training. For the unit cost of barricade tape at $2.12. 55 The following excerpt from the preamble to
this FEA, OSHA estimated that The total annualized cost of these OSHA’s Cadmium standard at 57 FR 42101, 42340
employers will spend four hours of barriers comes to $2.9 million. (Sept. 14, 1992) provides a typical summary of
supervisor time plus an hour of clerical To calculate the costs of OSHA’s concerns about reliance on PPE and the
importance of the hierarchy of controls:
time developing or revising the training communication equipment, OSHA
Engineering controls are preferred by OSHA for
programs for entrants, attendants, and assumes that employers use two-way a number of reasons. Engineering controls are
supervisors. OSHA estimates 15 radios. OSHA estimated using this reliable, provide consistent levels of protection to
minutes of training for entrants and equipment for each simultaneous entry. large numbers of workers, can be monitored
attendants (1 supervisor and 1 clerical The useful life of this equipment is continually and inexpensively, allow for
predictable performance levels, and can remove
worker are modeled to provide training typically three years. OSHA multiplied toxic substances from the workplace. Once
to a class of 10 entrants). OSHA also annualized costs by the number of removed, the toxic substances no longer pose a
includes 1 hour of supervisor training, simultaneous entries per project and by threat to the employee. Moreover, the effectiveness
and 6 minutes of supervisor time to the number of projects not in of engineering controls does not depend to any
marked degree on human behavior, and . . . the
provide the training, per project (again, compliance per category, and summed operation of equipment is not as vulnerable to
assuming a class size of 10). As a the results across categories. The total human error as is the use of personal protective
reminder, most supervisors are already annual communication costs come to equipment . . .
familiar with the general industry rule about $55,000. Respirators are another, important method of
The total annualized costs for these compliance. However, to be used effectively,
and, therefore, with many provisions of respirators must be individually selected; fitted and
this final rule. Based on these other requirements come to $6.5 periodically refitted; conscientiously and properly
underlying unit costs, OSHA estimates million. worn; regularly maintained; and replaced as
that the annualized training-related necessary. In many workplaces, these preconditions
Respiratory Protection for effective respirator use are difficult to achieve
costs under the final standard will be with sufficient consistency to provide adequate
$11.3 million. In this FEA, OSHA did not include
protection. The absence of any of these
costs for respiratory protection for two preconditions can reduce or eliminate the
Other Compliance Costs reasons. First, OSHA designed the final protection the respirator provides to the employee.
Other compliance costs associated rule to prevent an employee’s exposure Because there are so many ways that respirators
with the final standard include to confined-space hazards whenever can be rendered ineffective and so many potential
problems associated with their use, OSHA has
providing disposable coveralls when possible, thereby obviating the need for traditionally relied less on respirators than on
necessary, emergency lights, traffic respirators and other PPE in those cases; engineering and work-practice controls in the
barriers, and communication the provisions of the final rules hierarchy of controls. For example, where work is
equipment. OSHA identified these costs designed to prevent such exposure strenuous, the increased breathing resistance of
certain types of respirators may contribute to an

in the PEA and received no specific include training, information exchanges, employee’s health problems and may reduce the
comments on the compliance costs for and a program that ensures appropriate acceptability of wearing a respirator to employees.
these requirements. Therefore, the testing and evaluation, monitoring, Although experience in industry shows that most
Agency used the same methodology in planning, and control of the space to healthy workers do not have physiological
problems wearing properly chosen and fitted
this FEA to estimate these costs. prevent unauthorized entry (including respirators, common health problems can cause
OSHA modeled the clothing costs unauthorized rescues). This approach is difficulty in breathing while an employee is
based on workers wearing disposable fundamental to OSHA’s regulatory wearing a respirator.
compressor or air supply, depending on best available data source for this misinterpretations and inconsistencies
the type of confined space and the type rulemaking, the Agency had to make (63 FR 1158). Enhanced compliance
of work performed in the space. adjustments in particular areas to reflect increased the respiratory protection
Furthermore, the Agency used a updated information. One of these areas provided to workers, making it
relatively low rate of current respirator involves CONSAD’s outdated unnecessary to rely on the provisions of
compliance in the PEA, resulting in assumptions and data regarding this final confined-space rulemaking to
significant estimated costs respirator use. Based on surveys protect workers from respiratory
(approximately $11.6 million in 2009 conducted in 1993, the CONSAD report hazards.
dollars) for respirator protection. assumed a high rate of non-compliance The new confined-spaces standard
The revised treatment of respirator- with the Respiratory Protection standard does not require any additional
protection costs in this FEA remedies that existed at the time, and the PEA respirator use beyond that already
several issues retrospectively identified included significant respirator costs required by the existing Respiratory
in the PEA. First, OSHA designed the under the assumption that the new Protection standard. OSHA believes that
final rule to avoid respirator use by
confined-spaces standard for the much-reduced need for respirator
relying instead on training, information
construction would have a significant protection in confined spaces in the
exchanges, and a program that ensures
impact on respirator use. However, the future (as a result of this final rule) will
appropriate testing and evaluation,
CONSAD assumption did not account not increase, and could arguably
monitoring, planning, and control of the
for the publication of OSHA’s decrease, future respirator use in
space to prevent unauthorized entry
(including unauthorized rescues). The significantly revised Respiratory confined spaces in construction relative
costs estimated for respirator protection Protection standard in 1998 (63 FR 1152 to current respirator use.
in the PEA failed to fully appreciate the (Jan. 8, 1998)). In that 1998 rulemaking,
Annualized Costs by NAICS Industry
underlying logic of the proposed rule to OSHA reviewed its enforcement data for
avoid respirator use whenever possible. the years 1990–1996, acknowledged that Based on the cost estimates for the
Second, OSHA did not attribute any many of the respiratory-protection individual provisions contained in this
benefits to respirator protection in the programs were deficient, and designed final standard, Table IV–15 shows, by
PEA. Removing the respirator-protection the new standard to improve employer’s affected industry engaged in
costs in the FEA resolves the selection, maintenance, fit testing, and construction activity, annualized
inconsistent treatment of respirator training for proper respirator use, and compliance costs for all establishments,
costs and respirator benefits in the PEA. ‘‘to provide employers with the tools annualized compliance costs for all
The third issue concerns the relatively needed to implement an effective small entities (as defined by the Small
low rate of respirator compliance used respiratory protection program’’ (63 FR Business Act and the Small Business
to estimate the costs of respirator 1160). The rulemaking increased Administration’s (SBA’s) implementing
protection in the PEA. These rates monitoring requirements and awareness regulations; see 15 U.S.C. 632 and 13
reflected the findings of the 1994 and understanding of the respirator CFR 121.201), and annualized
CONSAD report. As noted earlier in this requirements. In light of these revisions compliance costs for all very small
FEA, some commenters questioned the to the Respirator Protection standard entities (those with fewer than 20
continued relevance of the CONSAD subsequent to the CONSAD report, employees). OSHA annualized the costs
report produced in 1994 (ID–222, p. 20). OSHA concluded that the new standard presented in Table IV–15 using the
In light of these comments, OSHA would significantly enhanced employer discount rate of 7 percent, which is,
reexamined the CONSAD report and compliance with the respiratory- along with a discount rate of 3 percent,
concluded that, generally, while it is the protection requirements by reducing 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
All Small entities Very small entities
NAICS Industry establishments (SBA-defined) <20 employees)
221310 .......... Water Supply and Irrigation Systems ............................................. $51,635 $14,299 $8,738
236115 .......... New Single-Family Housing Construction (except Operative 813,505 578,128 351,852
Builders).
236116 .......... New Multifamily Housing Construction (except Operative Build- 955,662 533,573 174,635
ers).
236118 .......... Residential Remodelers ................................................................. 8,277,207 7,853,017 4,342,753
236210 .......... Industrial Building Construction ...................................................... 2,331,853 527,967 175,989
236220 .......... Commercial and Institutional Building Construction ....................... 11,862,610 5,868,843 1,747,634
237110 .......... Water and Sewer Line and Related Structures Construction ........ 8,687,099 4,956,577 1,400,582
237130 .......... Power and Communication Line and Related Structures Con- 2,125,111 697,984 105,944
struction.
237310 .......... Highway, Street, and Bridge Construction ..................................... 15,614,845 4,915,948 1,061,237
237990 .......... Other Heavy and Civil Engineering Construction .......................... 1,405,363 513,278 145,898
238190 .......... Other Foundation, Structure, and Building Exterior Contractors ... 1,627,010 1,069,906 428,448
238210 .......... Electrical Contractors and Other Wiring Installation Contractors .. 1,627,010 877,857 330,259
238220 .......... Plumbing, Heating, and Air-Conditioning Contractors ................... 2,471,532 1,450,572 551,757
238310 .......... Drywall and Insulation Projects ...................................................... 1,627,010 686,015 203,983
238910 .......... Site Preparation Contractors .......................................................... 844,522 559,703 211,959
Total ......................................................................................... 60,321,976 31,103,667 11,241,667

Time Distribution of Compliance Costs existence of individual employers. It would when the annualized costs of
appear to be consistent with the purposes of compliance are less than a threshold
Table VI–4 provides the estimated the Act to envisage the economic demise of
stream of unannualized compliance level of 10 percent of annual profits.
an employer who has lagged behind the rest
costs for 10 years following the effective of the industry in protecting the health and
OSHA’s choice of a threshold level of 10
date of the final standard. safety of employees and is consequently percent of annual profits is low enough
financially unable to comply with new that even if the industry incurred all
TABLE VI–4—DISTRIBUTION OF standards as quickly as other employers. As compliance costs upfront, the costs
the effect becomes more widespread within could still be met from profits without
COMPLIANCE COSTS BY YEARS an industry, the problem of economic needing to resort to the credit market.
feasibility becomes more pressing.59 Assuming a 7 percent discount rate and
Year 1 ................................... $ 93,068,644 Thus, according to the court, OSHA
Year 2 ................................... 50,514,323 a 10-year annualization period, the
standards would satisfy the economic- compliance costs would equal about 70
Year 3 ................................... 50,950,150
Year 4 ................................... 55,365,256 feasibility criterion even if they impose percent of first-year profits; the industry
Year 5 ................................... 50,950,150 significant costs on regulated industries could absorb these costs from profits
Year 6 ................................... 76,163,971 and force some marginal firms out of without resorting to credit markets. The
Year 7 ................................... 55,801,082 business, so long as they did not cause industry analysis refers to an average
Year 8 ................................... 50,514,323 massive economic dislocations within a firm and its threshold level of profits.
Year 9 ................................... 50,950,150 particular industry or imperil the Some firms in any industry are below-
Year 10 ................................. 55,365,256 existence of the industry.60 The average, and under-capitalized, poorly
Source: Department of Labor, OSHA, Direc- implication for analysis of economic run, saddled with lawsuits, or operating
torate of Standards and Guidance, impacts is that OSHA must determine in a shrinking market. OSHA cannot
Office of Regulatory Analysis-Safety. whether its standards will eliminate or guarantee that not a single firm in any
7. Economic Feasibility Analysis and alter the competitive structure of an industry will become unprofitable in the
Regulatory Flexibility Determination industry, not to determine whether any first year because of this rule, but rather
Introduction individual plants may close. that the vast majority of firms will have
In practice, the economic burden of their profits impacted by 10 percent or
In this chapter, OSHA investigates the an OSHA standard on an industry—and
economic impacts of its final standard less.
whether the standard is economically To implement the economic
on confined spaces in construction. This feasible for that industry—depends on feasibility screening tests described
impact investigation has two overriding the magnitude of compliance costs above, OSHA first compared, for each
objectives: (1) To determine whether the incurred by establishments in that affected industry, annualized
final rule is economically feasible for all industry and the extent to which they compliance costs to annual revenues
affected industries, and (2) to establish are able to pass those costs on to their and profits per (average) affected
if the Agency can certify that the final customers. To determine whether a rule establishment. The results for all
standard will not have a significant is economically feasible for an industry, affected establishments in affected
economic impact on a substantial OSHA begins with two screening tests industries are in Table IV–14. Shown in
number of small entities. to consider minimum threshold effects the table for each affected industry are
Economic Feasibility of the rule under two extreme cases: (1) the total number of affected firms
Section 6(b)(5) of the OSH Act states: All costs are passed through to (entities) and establishments, the
‘‘The Secretary . . . shall set the customers in the form of higher prices, percentage of firms affected, annualized
standard which most adequately and (2) firms absorb all costs in the form costs per affected establishment, annual
assures, to the extent feasible, on the of reduced profits. In the former case, revenues per establishment, annual
basis of the best available evidence, that the immediate impact of the rule would profits per establishment, annualized
no employee will suffer material appear as increased industry revenues. compliance costs as a percentage of
impairment of health or functional In the absence of evidence to the annual revenues, and annualized
capacity. . . .56 [Emphasis added.] contrary, OSHA generally considers a compliance costs as a percentage of
standard to be economically feasible for annual profits.
OSHA interpreted the phrase ‘‘to the
an industry when the annualized costs To estimate costs for different NAICS
extent feasible’’ to encompass economic
of compliance are less than a threshold construction industries, OSHA
feasibility. The U.S. Court of Appeals developed ‘‘crosswalks’’ from project
for the D.C. Circuit supported this level of one percent of annual revenues.
Retrospective studies of previous OSHA types used in the CONSAD report to the
interpretation in a 1974 decision.57 The appropriate NAICS. The Agency then
court noted that ‘‘Congress does not regulations show that potential impacts
of such a small magnitude are unlikely used data from the 2007 Statistics of
appear to have intended to protect U.S. Businesses to obtain information on
employees by putting their employers to eliminate an industry or significantly
alter its competitive structure.61 the number of establishments and
out of business . . ., ’’ 58 and then receipts (revenues), and data from the
In the second case, the immediate
proceeded to define the concept of Internal Revenue Service Corporation
impact of the rule would appear as
‘‘economic feasibility’’ and to indicate Source Book to obtain the average of
reduced industry profits. Again, in the
its boundaries: 2003–2007 profit rates for these sectors.
absence of evidence to the contrary,
Standards may be economically feasible OSHA generally considers a standard to Subsequently, OSHA allocated
even though, from the standpoint of be economically feasible for an industry confined-space projects to sectors and
employers, they are financially burdensome size classes on the assumption that
and affect profit margins adversely. Nor does 59 Id. smaller establishments are less likely to
the concept of economic feasibility
necessarily guarantee the continued
60 Id.; see also Am. Iron and Steel Inst. v. OSHA, work in such spaces than larger ones,
939 F.2d 975, 980 (D.C. Cir. 1991); United and on an allocation rule whereby the
Steelworkers of Am., AFL–CIO–CLC v. Marshall, Agency assigned each establishment a
56 29 U.S.C. 655(b)(5). 647 F.2d 1189, 1265 (D.C. Cir. 1980).
57 Indus Union Dep’t v. Hodgson, 499 F.2d 467 61 See OSHA’s Web page, http://www.osha.gov/ project before assigning any
(D.C. Cir. 1974). dea/lookback.html#Completed, for a link to all establishment a second project (for
58 Id. at 478. completed OSHA lookback reviews. analytical tractability). Finally, OSHA
aggregated compliance costs by of compliance represent about 0.08 Agency believes that the final standard
industry, divided by the number of percent of revenues and 1.6 percent of would still be clearly feasible for this
affected establishments in the industry profits, on average, across all affected industry because, first, the final
to derive average compliance costs per entities. standard affects only 1.84 percent of all
affected establishment by industry, and As previously noted, OSHA firms in that industry each year (see
compared the quotient to average established a minimum threshold level Table IV–4). Second, OSHA believes
annual establishment revenues and of annualized costs, equal to 1 percent that firms engaged in confined-spaces
profits by industry. of annual revenues or 10 percent of work are larger and more profitable than
Note that, in any industry sector in annual profits, below which the Agency average, so profit losses to them are
construction, the final standard will concluded that costs are unlikely to likely to be less than modeled. Third,
affect directly only a small percentage of threaten the economic viability of an OSHA does not believe that industries
firms and establishments in any given affected industry. The key result from will absorb all or most of the costs of the
year. Many business entities in affected Table IV–16, for purposes of final standard in lost profits. The price
industries do not regularly work with determining economic feasibility, is that elasticity of demand in construction is
confined spaces. As demonstrated in annualized compliance costs do not sufficiently inelastic to enable affected
Tables IV–16 and IV–3, respectively, the represent more than 0.48 percent of firms to substantially offset variable
final standard will affect only about 6.3 revenues for affected firms in any compliance costs through minor price
percent of firms and 7.2 percent of industry. Furthermore, there is only one increases—here, less than 0.5 percent—
establishments in the affected industry, NAICS 236210 (Industrial without experiencing any significant
industries. OSHA estimates that the Building Construction), in which reduction in total revenues or in net
average cost of complying with the final annualized compliance costs for profits. Consequently, the Agency
standard, per affected establishment, affected firms exceed 10 percent of concludes that the final standard for
will be less than $2,000 annually annual profits. For that industry, confined spaces in construction is
(compared with average revenues of annualized compliance costs are equal economically feasible for all affected
about $2.6 million). The estimated costs to 10.56 of annual profits. However, the industries.62
TABLE IV–16—POTENTIAL ECONOMIC IMPACTS FOR ENTITIES AFFECTED BY THE FINAL STANDARD FOR CONFINED SPACES
IN CONSTRUCTION
[2009 dollars]
Affected Annualized Annualized

Affected Average costs as a
Annualized costs as a
NAICS firms as a revenues Average prof- percentage
compliance percentage
industry Industry name percentage per firm its per firm of affected
costs per of affected
code Firms Establishments of total ($ thou- ($ thousands) firm
affected firm firm profits
(percent) sands) revenues (percent)
(percent)
221310 ... Water Supply and Irrigation Sys- 22 65 0.61 $2,347 $2,235 $132 0.11 1.78
tems.
236115 ... New Single-Family Housing 1,075 1,321 1.75 757 1,691 77 0.04 0.99
Construction (except Opera-
tive Builders).
236116 ... New Multifamily Housing Con- 830 883 19.22 1,151 5,774 262 0.02 0.44
struction (except Operative
Builders).
236118 ... Residential Remodelers ............. 9,405 9,602 9.44 880 757 34 0.12 2.57
236210 ... Industrial Building Construction .. 71 106 1.84 32,843 6,865 311 0.48 10.56
236220 ... Commercial and Institutional 5,401 6,408 13.08 2,196 9,519 431 0.02 0.51
Building.
237110 ... Water and Sewer Line and Re- 2,579 2,765 18.85 3,368 3,787 227 0.09 1.49
237130 ... Power and Communication Line 127 341 2.49 16,733 6,968 417 0.24 4.01
and Related Structures Con-
struction.
237310 ... Highway, Street, and Bridge 3,486 4,275 31.83 4,479 10,230 612 0.04 0.73
Construction.
237990 ... Other Heavy and Civil Engineer- 778 965 14.96 1,806 4,633 277 0.04 0.65
ing Construction.
238190 ... Other Foundation, Structure, and 1,163 1,182 20.40 1,399 1,243 57 0.11 2.46
Building Exterior Contractors.
238210 ... Electrical Contractors ................. 2,046 2,680 2.59 795 1,635 74 0.05 1.07
238220 ... Plumbing, Heating, and Air-Con- 2,264 2,934 2.28 1,092 1,688 65 0.06 1.68
ditioning Contractors.
238310 ... Drywall and Insulation Projects .. 1,640 2,284 7.53 992 1,941 89 0.05 1.12
238910 ... Site Preparation Contractors ...... 225 255 0.55 3,753 1,647 79 0.23 4.77
62 In Chapter 6 of this FEA, OSHA explained why HEPA filters (based on currently available online total roughly $2.8 million after including the costs
it was not including costs for respiratory protection price quotes), OSHA finds that none of the for respiratory protection; this figure represents 0.57
as part of the estimated costs of the final standard. annualized costs for any NAICS code exceed the percent of annual revenue and 12.6 percent of
The Agency notes that this feasibility determination Agency’s threshold of presumptive feasibility of one annual profit for this industry. However, for the
would not change with respect to any affected percent of revenues. The annualized costs for only
reasons stated above, the Agency believes that the
industry even if OSHA attributed to the final one NAICS code, 236210 (Industrial Building
standard the respiratory-protection costs included Construction), exceed the threshold of presumptive final standard would be feasible for this industry
in the PEA. Using the PEA assumptions, and feasibility of 10 percent of annual profits. The even after including the respiratory-protection
updating unit-cost information for half masks and overall annualized costs for this NAICS code would costs.
TABLE IV–16—POTENTIAL ECONOMIC IMPACTS FOR ENTITIES AFFECTED BY THE FINAL STANDARD FOR CONFINED SPACES
IN CONSTRUCTION—Continued
[2009 dollars]
Affected Annualized Annualized

Affected Average costs as a
Annualized costs as a
NAICS firms as a revenues Average prof- percentage
compliance percentage
industry Industry name percentage per firm its per firm of affected
costs per of affected
code Firms Establishments of total ($ thou- ($ thousands) firm
affected firm firm profits
(percent) sands) revenues (percent)
(percent)
Total ........................................ 31,112 36,066 6.27 1,939 2,559 121 0.08 1.60
Regulatory Flexibility Screening industry. OSHA applied these screening costs of the standard exceed one percent
Analysis tests both to small entities and to very of revenues and five percent of annual
small entities. For purposes of profits for very small entities in NAICS
To determine if the Assistant certification, affected small entities or 236210 (Industrial Building
Secretary of Labor for Occupational very small entities in any affected Construction), and exceed five percent
Safety and Health can certify that the industry cannot exceed the minimum of annual profits for very small entities
final standard for confined spaces in threshold effects. in two other construction industries—
construction will not have a significant Table IV–17 shows that the NAICS 237130 (Power and
economic impact on a substantial annualized costs of the standard do not Communication Line and Related
number of small entities, the Agency exceed one percent of annual revenues Structures) and NAICS 238910 (Site
applied long-standing screening tests to for small entities in any affected Preparation Contractors). OSHA is,
consider minimum threshold effects of construction industry, but they do therefore, unable to certify that the final
the final standard on small entities. The exceed five percent of annual profits for standard will not have a significant
minimum threshold effects for this small entities in two construction economic impact on a substantial
purpose are annualized costs equal to industries—NAICS 236210 (Industrial number of small entities in
one percent of annual revenues, or Building Construction) and NAICS construction, and must prepare a Final
annualized costs equal to five percent of 238910 (Site Preparation Contractors). Regulatory Flexibility Analysis (FRFA)
annual profits, applied to each affected Table IV–18 shows that the annualized (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
Average com- Costs as a Costs as a
Costs as a percentage
NAICS pliance costs Average reve- Average prof- percentage percentage
Affected percentage of overall
industry Industry name per affected nues per firm its per firm of affected of overall
firms of affected category
code firm ($ thousand) ($ thousand) firm category
firm profits firm
($) revenues firm profits
revenues
221310 ... Water Supply and Irriga- 16 894 713 42 0.13 2.13 0.00 0.01
tion Systems.
236115 ... New Single-Family Hous- 942 614 1,255 57 0.05 1.08 0.00 0.02
ing Construction (except
Operative Builders).
236116 ... New Multifamily Housing 719 742 3,600 163 0.02 0.46 0.00 0.08
Construction (except
Operative Builders).
236118 ... Residential Remodelers ... 9,384 837 736 33 0.11 2.51 0.01 0.24
236210 ... Industrial Building Con- 24 21,999 2,827 128 0.78 17.18 0.01 0.11
struction.
236220 ... Commercial and Institu- 4,398 1,334 4,950 224 0.03 0.60 0.00 0.06
tional Building.
237110 ... Water and Sewer Line and 2,248 2,203 2,462 147 0.09 1.50 0.02 0.25
Related Structures Con-
struction.
237130 ... Power and Communica- 95 7,347 3,012 180 0.24 4.08 0.00 0.08
tion Line and Related
Structures Construction.
237310 ... Highway, Street, and 2,738 1,795 4,304 258 0.04 0.70 0.01 0.19
Bridge Construction.
237990 ... Other Heavy and Civil En- 579 884 2,085 125 0.04 0.71 0.00 0.08
gineering Construction.
238190 ... Other Foundation, Struc- 1,100 973 936 43 0.10 2.27 0.02 0.44
ture, and Building Exte-
rior Contractors.
238210 ... Electrical Contractors ....... 1,424 616 1,037 47 0.06 1.31 0.00 0.02
238220 ... Plumbing, Heating, and 1,700 853 1,130 44 0.08 1.96 0.00 0.03
Air-Conditioning Con-
tractors.
238310 ... Drywall and Insulation 1,119 613 1,127 52 0.05 1.19 0.00 0.06
Projects.
TABLE IV–17—POTENTIAL ECONOMIC IMPACTS FOR SMALL ENTITIES AFFECTED BY THE FINAL STANDARD FOR CONFINED
SPACES—Continued
[2009 dollars]
Cost as a
Costs as a percentage
NAICS pliance costs Average reve- Average prof- percentage percentage
Affected percentage of overall
industry Industry name per affected nues per firm its per firm of affected of overall
firms of affected category
code firm ($ thousand) ($ thousand) firm category
firm profits firm
revenues
238910 ... Site Preparation Contrac- 167 3,352 1,223 58 0.27 5.74 0.00 0.02
tors.
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
Annual Average reve- Average prof- Costs as a percentage
pliance costs percentage percentage
NAICS number of nues per af- its per affected percentage of overall
Industry name per affected of affected of overall
industry code affected fected firm firm of affected category
firm firm category
firms ($ thousand) ($ thousand) firm profits firm
revenues
221310 ........... Water Supply and Ir- 11 794 532 31 0.15 2.54 0.00 0.01
rigation Systems.
236115 ........... New Single-Family 580 607 977 44 0.06 1.37 0.00 0.01
Housing Construc-
tion (except Opera-
tive Builders).
236116 ........... New Multifamily 271 644 1,650 75 0.04 0.86 0.00 0.06
Housing Construc-
tion (except Opera-
tive Builders).
236118 ........... Residential Remod- 7,104 611 545 25 0.11 2.47 0.01 0.18
elers.
236210 ........... Industrial Building 8 21,999 1,471 67 1.45 31.92 0.00 0.08
Construction.
236220 ........... Commercial and In- 1,327 1,317 2,273 103 0.06 1.28 0.00 0.05
stitutional Building.
237110 ........... Water and Sewer 642 2,182 1,105 66 0.20 3.30 0.01 0.19
Line and Related
Structures Con-
struction.
237130 ........... Power and Commu- 17 6,232 945 57 0.66 11.02 0.00 0.05
nication Line and
Related Structures
Construction.
237310 ........... Highway, Street, and 601 1,766 1,814 109 0.10 1.63 0.01 0.12
Bridge Construc-
tion.
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 Contractors 544 607 575 26 0.11 2.33 0.00 0.02
238220 ........... Plumbing, Heating, 655 842 622 24 0.14 3.51 0.00 0.03
and Air-Condi-
tioning Contractors.
238310 ........... Drywall and Installa- 336 607 599 27 0.10 2.21 0.00 0.04
tion Projects.
238910 ........... Site Preparation Con- 64 3,312 681 33 0.49 10.18 0.00 0.02
tractors.
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 on a substantial number of small entities 2. A statement of the need for, and
The Regulatory Flexibility Act, as (5 U.S.C. 601–612). Under the objectives of, the rule;
amended in 1996 and 2010, requires provisions of the law, such an analysis 3. The response of the agency to any
that an agency prepare a final regulatory must contain: comments filed by the Chief Counsel for
flexibility analysis for any rule expected 1. A description of the impact of the Advocacy of the Small Business
to have a significant economic impact rule on small entities; Administration in response to the
proposed rule, and a detailed statement NAICS 236210 (Industrial Building these entities could not pass through the
of any change made to the proposed rule Construction). The average yearly cost costs.
in the final rule as a result of the per affected small entity is $1,167. To further ensure that OSHA fully
comments; To assess the potential economic analyzed and considered the potential
4. A statement of the significant issues impact of the final rule on affected small impacts on small entities, the Agency
raised by public comments in response entities, OSHA calculated the ratios of separately examined the potential
to the initial regulatory flexibility these annualized compliance costs to impacts of the final standard on very
analysis, a statement of the assessment yearly profits and to yearly revenues. small entities, defined as those entities
of the agency of such issues, and a These percentages for each construction with fewer than 20 employees. As
statement of any changes made in the industry are in Table IV–17 (see Chapter shown in Table IV–20, OSHA estimated
proposed rule as a result of such 7 of this FEA). As shown, among small the total annualized cost of the final
comments; entities potentially affected by the final standard for all affected very small
5. A description, and estimate, of the rule, the annualized cost of the rule is entities in construction to be $11.2
number of small entities to which the equal to approximately 0.07 percent of million. Also shown in that table are
rule will apply, or an explanation of annualized costs per affected small
annual revenues. In no construction
why no such estimate is available; entity by industry. These costs per
industry does the annualized cost of the
6. A description of the projected affected small entity range from $607 for
rule for affected small entities exceed
reporting, recordkeeping, and other several construction industries to
0.7 percent of annual revenues.
compliance requirements of the rule, $21,999 for NAICS 236210 (Industrial
Accordingly, on average, prices for
including an estimate of the classes of Building Construction). The average
affected small entities in construction
small entities that will be subject to the yearly cost per affected small entity is
would have to increase by about 0.08
requirements, and the type of $862.
percent to completely offset the cost of
professional skills necessary for To assess the potential economic
the final rule. For affected small entities
preparation of the report or record; and impact of the final standard on very
in the most impacted industry, NAICS
7. A description of the steps the small entities, OSHA calculated the
236210 (Industrial Building ratios of the annualized costs of the final
agency took to minimize the significant
Construction), prices would have to rule to yearly profits and to yearly
economic impact on small entities
increase by about 0.8 percent to revenues. These percentages for each
consistent with the stated objectives of
completely offset the cost of the final affected construction industry are in
the applicable statutes, including a
rule. Table IV–18. As shown, among very
statement of the factual, policy, and
legal reasons for selecting the alternative Only to the extent that such price small entities potentially affected by the
adopted in the final rule, and why the increases are not possible would there final rule, the annualized cost of the
agency rejected each of the other be any effect on the average profits of rule is equal to approximately 0.10
significant alternatives to the rule affected small entities. Even in the percent of annual revenues. In no
considered by the agency which affect unlikely event that entities could not construction industry does the
the impact on small entities. pass the costs of the final rule through annualized cost of the rule for affected
in the form of higher prices, the entities very small entities exceed 1.45 percent
1. A Description of the Impact of the could absorb the costs completely of annual revenues. Accordingly, on
Final Rule on Small Entities through a reduction in profits of 1.64 average, prices for affected very small
As shown in Table IV–19, the percent, on average, for affected small entities in construction would have to
estimated total annualized cost of the entities (as shown in Table IV–17). In all increase by about 0.10 percent to
final standard for all affected small but two of the affected industries, the completely offset the cost of the final
entities in construction (as defined by affected small entities could absorb the rule. For affected very small entities in
SBA) is $31.1 million. Also shown in compliance costs completely through an the most impacted industry, NAICS
that table are annualized costs per average reduction in profits of less than 236210 (Industrial Building
affected small entity by industry. These 5 percent; the reduction in profits Construction), prices would have to
costs per affected small entity range would not exceed 17.2 percent for increase by about 1.45 percent to
from $613 for NAICS 238310 (Drywall affected small entities in any of the completely offset the cost of the final
and Insulation Projects) to $21,999 for construction industries, again assuming rule.
TABLE IV–19—ANNUALIZED COMPLIANCE COSTS ASSOCIATED WITH THE FINAL CONFINED-SPACES STANDARD FOR SMALL
ENTITIES, BY NAICS INDUSTRY
[2009 dollars]
Affected firms as
NAICS Annualized
Affected a percentage of
industry Industry name Affected firms compliance Cost per firm
establishments total
code costs
(percent)
221310 Water Supply and Irrigation Systems 16 18 0.5 $14,299 $894

236115 New Single-Family Housing Con- 942 953 1.5 578,128 614
struction.
236116 New Multifamily Housing Construc- 719 728 17.1 533,573 742
tion.
236118 Residential Remodelers .................... 9,384 9,468 9.4 7,853,017 837
236210 Industrial Building Construction ......... 24 24 0.7 527,967 21,999
236220 Commercial and Institutional Building 4,398 4,463 10.9 5,868,843 1,334
237110 Water and Sewer Line and Related 2,248 2,272 16.8 4,956,577 2,205
TABLE IV–19—ANNUALIZED COMPLIANCE COSTS ASSOCIATED WITH THE FINAL CONFINED-SPACES STANDARD FOR SMALL
ENTITIES, BY NAICS INDUSTRY—Continued
[2009 dollars]
Affected firms as
NAICS Annualized
Affected a percentage of
industry Industry name Affected firms compliance Cost per firm
establishments total
code costs
(percent)
237130 Power and Communication Line and 95 112 1.9 697,984 7,347
Related Structures Construction.
237310 Highway, Street, and Bridge Con- 2,738 2,784 26.8 4,915,948 1,795
struction.
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
238210 Electrical Contractors ........................ 1,424 1,446 1.8 877,857 616
238220 Plumbing, Heating, and Air-Condi- 1,700 1,722 1.7 1,450,572 853
238310 Drywall and Insulation Projects ......... 1,119 1,130 5.3 686,015 613
238910 Site Preparation Contractors ............. 167 169 0.4 559,703 3,352
Total ............................................... 26,653 26,985 5.4 31,103,667 1,167

TABLE IV–20—ANNUALIZED COMPLIANCE COSTS ASSOCIATED WITH THE FINAL CONFINED-SPACES STANDARD FOR VERY
SMALL ENTITIES, BY NAICS INDUSTRY
[2009 dollars]
NAICS Affected firms as Annualized

Affected Affected Cost per firm
industry Industry name a percentage of compliance costs
firms establishments ($)
code total ($)
221310 Water Supply and Irrigation Systems 11 11 0.3 8,738 794

236115 New Single-Family Housing Con- 580 580 1.0 351,851 607
struction.
236116 New Multifamily Housing Construc- 271 271 7.2 174,635 644
tion.
236118 Residential Remodelers .................... 7,104 7,105 7.3 4,342,753 611
236210 Industrial Building Construction ........ 8 8 0.2 175,989 21,999
236220 Commercial and Institutional Building 1,327 1,329 3.9 1,747,634 1,317
237110 Water and Sewer Line and Related 642 642 5.7 1,400,582 2,182
237130 Power and Communication Line and 17 17 0.4 105,944 6,232
Related Structures Construction.
237310 Highway, Street, and Bridge Con- 601 601 7.5 1,061,237 1,766
struction.
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
238210 Electrical Contractors ........................ 544 544 0.8 330,259 607
238220 Plumbing, Heating, and Air-Condi- 655 655 0.7 551,757 842
238310 Drywall and Insulation Projects ......... 336 336 1.8 203,983 607
238910 Site Preparation Contractors ............. 64 64 0.2 211,959 3,312
Total ............................................... 13,032 13,035 2.9 11,241,667 863
Only to the extent that such price of the affected industries, the affected potentially resulting from compliance
increases are not possible would there small entities could absorb the with the final standard and the lack of
be any effect on the average profits of compliance costs completely through an readily available substitutes (including
affected very small entities. Even in the average reduction in profits of less than foreign competition) for the products
unlikely event that the entities could 5 percent; the reduction in profits and services provided by the covered
not pass through the costs of the final would not exceed 32 percent for construction industry sectors, OSHA
rule in the form of higher prices, small affected small entities in any of the believes demand to be sufficiently
affected entities could absorb the costs construction industries, again assuming inelastic in each affected industry to
completely through an average that no costs could be passed through. enable small and very small entities to
reduction in profits of 2.27 percent (as In practice, given the small substantially offset variable compliance
shown in Table IV–18). In all but three incremental increases in prices costs through minor price increases
without experiencing any significant 3. The Response of the Agency to Any in a complex multi-employer
reduction in total revenues or in net Comments Filed by the Chief Counsel environment;
profits. for Advocacy of the Small Business • Requests from stakeholders and
Further, it is important to note that Administration in Response to the commenters to allow greater flexibility
cost assignment to entities by size is Proposed Rule, and a Detailed for employers, such as permitting
approximate, and in some instances Statement of Any Change Made to the employers to enter a confined space
larger firms may bear the burden, so the Proposed Rule in the Final Rule as a under the alternative procedures
impacts on individual small entities is Result of the Comments specified by final § 1926.1203(e) if they
suggestive only, not definitive. Indeed, isolate physical hazards within a space,
In addition to the issues raised by the
the limitations of available economic or permitting employers to suspend a
SBREFA panel, SBA’s Office of
data and the Dodge report data make it permit (rather than cancelling it) in
Advocacy provided recommendations
impossible to assign small projects to response to certain temporary changes
for OSHA to consider (OSHA–2007– in conditions;
small firms in a way that represents
economic reality. Because OSHA did 0026–0119.1). The Agency provides the • Improvements in language for
not assign fractions of projects to firms, following responses to these clarity and enforcement considerations.
it is likely that the Agency recommendations (quoted verbatim): SBA Recommendation 2: Advocacy is
SBA Recommendation 1: While the concerned about the host-employer and
overestimated the costs of the final rule
on small and very small entities. proposed rule is much improved from controlling-contractor provisions of the
Accordingly, OSHA believes that it the draft version of the rule reviewed proposed rule and remains
overstated its estimates of impacts on during the SBREFA process, it is still apprehensive about OSHA’s imposition
small entities. very complicated and difficult to of legal obligations on employers for
With this important caveat, the understand. Advocacy recommends that employees who are not their own. This
Agency notes that there are industries in OSHA try to further streamline the rule policy seems to emanate from OSHA’s
which impacts are above the and harmonize it as much as possible Multi-Employer Citation Policy, which
conventional thresholds of 1 percent of with the existing general industry has never been promulgated as a rule
revenue and 5 percent of profit for some standard (or consider adopting a single and whose legal status has been called
small and very small entities. However, rule for both industries). Advocacy into question in the recent Secretary of
only a few firms account for the impacts notes that many employers operate on Labor v. Summit Contractors, Inc.
as shown from the fact that the costs are work sites that include both general decision. Advocacy filed a similar
negligible when expressed as a industry and construction confined comment about the host-contractor
percentage of overall revenues and spaces and employees may encounter provisions in OSHA’s proposed Electric
profits for the industry-size class (see both types of confined spaces in close Power Transmission rule. Some of the
the last two columns of Table IV–17 and proximity. As many of the SERs pointed key concerns of small businesses are
Table IV–18). out to the SBAR Panel, having two that host employers may not even be
separate standards could double the cost engaged in construction work (and
2. A Statement of the Need for, and of their safety and training programs therefore have no expertise on confined
Objectives of, the Rule (especially if they contract out these spaces), and that contractors may be
The primary objective of the final rule services) and cause unnecessary working in remote locations with no
is to provide an increased degree of confusion on the job site. Further, the interaction or oversight. Advocacy
occupational safety for employees distinction between ‘‘maintenance’’ and appreciates that OSHA has tried to limit
performing construction work in ‘‘construction’’ work in various facilities the scope of this provision by only
confined spaces. Another objective of is often unclear. Having two different requiring host-employers or controlling
the final rule, in support of the primary standards increases the complexity of contractors to provide information they
objective, is to provide updated, clear, compliance and could ultimately actually possess (as opposed to having
and comprehensive safety standards increase risk. This was, and remains, a to obtain information they do not
regarding construction work in confined key concern of the SERs. already have); however, these
spaces to the relevant employers, OSHA’s Response: When possible, provisions are highly controversial and
employees, and interested members of OSHA adapted requirements in the are opposed by many small businesses.
the public. The estimated 5.2 fatalities general industry confined spaces Advocacy recommends that OSHA
and 780 injuries annually that the final standard to construction using parallel eliminate these requirements from the
rule would prevent (assuming full language. For example, § 1926.1205, rule.
compliance) demonstrate the need for Permitting process, in the final standard OSHA’s Response: The U.S. Court of
the final rule. contains provisions virtually identical Appeals for the Eighth Circuit vacated
The legal basis for the rule is the to those in § 1910.146(e), Permit system, the cited Summit decision in Solis v.
responsibility given the Department of in the general industry standard, rather Summit Contractors, Inc., 558 F.3d 815
Labor through the Occupational Safety than retaining the distinct classification (8th Cir. 2009), and the Commission
and Health (OSH) Act of 1970. The OSH system that OSHA proposed. However, subsequently reiterated its support for
Act authorizes and obligates the the final standard for confined spaces in OSHA’s multi-employer citation policy
Secretary of Labor to promulgate construction bears important and OSHA’s authority to hold
mandatory occupational safety and distinctions from the general industry employers responsible for actions of
health standards as necessary ‘‘to assure standard due to: employees who are not their own. Solis
so far as possible every working man • Advances in safety systems (for v. Summit Contractors, Inc., 23 BNA
and woman in the Nation safe and example, monitoring procedures that OSHC 1196, 1202–03 (No. 05–0839,
healthful working conditions and to detect increases in atmospheric hazards, 2010). OSHA continues to believe, as
preserve our human resources.’’ 29 as required in § 1926.1204(c)(5)); stated in the NPRM:
U.S.C. 651(b). Additional legal authority • Unique conditions associated with On multi-employer worksites, an
for this final rule includes 29 U.S.C. construction, such as greater emphasis employer’s actions can affect the health and
653, 655(b), and 657; and 40 U.S.C. on assessing hazards at sewer worksites safety of another employer’s employees. It is
3701. and the need for information exchange critical for the safety of all employees on a
worksite that contractors and subcontractors rule that is expected to have a regulatory alternatives, including the
communicate with each other. Requiring significant economic impact on a major alternative supported by the SBA
communication between employers is an substantial number of small entities’’ of aligning the new rule more closely
efficient way to ensure that each employer
(rather than saying ‘‘for certain with the general industry rule (see
learns important information about the
confined space hazards present so that all proposed rules’’). Further, OSHA should discussion at 72 FR 67396, which
employees are adequately protected. (72 FR affirmatively declare in the IRFA [sic incorporates discussions of regulatory
67358.) FRFA] that OSHA expects this proposed alternatives in Table 6 on page 67397,
[sic final] rule will have a significant and PEA Chapter 3 at OSHA–2007–
In this final rule, OSHA made every
economic impact on a substantial 0026–0002). The Agency considered
effort to minimize the impact of the
number of small entities. these alternatives in terms of (1)
information-exchange requirements on OSHA’s Response: In the opening reducing the burden on small entities;
host employers and controlling paragraph of this FRFA, OSHA made (2) feasibility; and (3) satisfying the
contractors. OSHA believes that the the following clarifying statement: ‘‘The Agency’s statutory obligations and
affected parties conduct such multi- Regulatory Flexibility Act, as amended objectives. Furthermore, in referring the
employer communication currently in 1996, requires that an agency prepare public, in Item 7 of the IRFA, to more
with minimal disruption to business a final regulatory flexibility analysis for extensive discussions of the alternatives
operations, and that the obligations any rule expected to have a significant elsewhere, OSHA attempted to comply
specified by the final standard will economic impact on a substantial with both the spirit and the letter of
become routine and easy to fulfill for number of small entities . . .’’ However, § 605(a) of the RFA to avoid duplicative
employers who must initiate a system the overall thrust of SBA’s analyses.
for regular communication. OSHA recommendation is inconsistent with OSHA believes that it addressed the
provided a detailed explanation of its the RFA, as well as with OSHA’s official recommendation to a large extent by
decision to retain these requirements, procedures.63 According to both the extensively reworking the proposed
along with its authority for these RFA and OSHA’s official procedures, standard to this final format, which
requirements, in its discussion of final the Agency must prepare an FRFA only closely reflects the general industry
§ 1926.1203(h) and (i). if it is unable to certify that the final standard, and thereby reduces the
SBA Recommendation 3: Advocacy standard will not have a significant burden on small entities. In this FEA,
notes that there are no single-family economic impact on a substantial OSHA evaluated the impacts of more
residential builders included in the number of small entities. In Chapter 7 stringent and less stringent regulatory
economic analysis or the Initial of this FEA, the Agency explained that alternatives. The final standard in large
Regulatory Flexibility Analysis (IRFA); it was unable to certify that the final part reflects the general industry
however, it appears that there are standard will not have a significant standard, tailored to address the unique
confined spaces on these construction economic impact on a substantial characteristics of the construction
sites. If OSHA is assuming that no number of small entities and that, industry. A more stringent regulatory
single-family residential builders will therefore, it must prepare an FRFA. alternative to the final standard would
incur costs or be affected by the rule Note that OSHA may prepare an require that employers identify and
(possibly because OSHA is assuming FRFA even when it has no requirement distinguish the type of confined space
that all of this work is subcontracted out to do so. In fact, OSHA may, and has, according to the classification system
and these subcontractors are already voluntarily prepared FRFAs for specified in the proposed rule. OSHA
included), then OSHA should state this purposes of transparency even when the estimates that the more complex
clearly in the rule. If not, these costs Agency is able to certify that the final classification system, present in the
should be included in the economic standard will not have a significant proposed rule but not in this final
analysis and IRFA [sic FRFA] (including economic impact on a substantial standard, would increase compliance
the costs for the host-employer and number of small entities. costs by $1.7 million, not including any
controlling-contractor provisions and SBA Recommendation 5: Also, in costs required for additional training.
the paperwork and recordkeeping Item 7 of the IRFA (Alternatives), OSHA One less stringent alternative would
requirements associated with them). should have summarized the significant relieve employers of the requirement to
Advocacy notes that because the net alternatives it considered and invited have a written program for each permit-
benefits of this rule (i.e., benefits minus public comment on them (OSHA simply required entry, and would instead
costs) are only $8.2 million, the mentions that some were considered). require making a copy of the standard
additional costs for single-family Advocacy notes that a ‘‘significant’’ available to employees. OSHA estimates
residential builders could mean that the alternative is defined as one that: (1) that the requirement for a written
costs of this proposed rule outweigh its Reduces the burden on small entities; program imposes compliance costs of
benefits. (2) is feasible; and (3) meets the agency’s about $1.3 million. OSHA believes that
OSHA’s Response: In this FEA, OSHA underlying objectives. Since it appears having a written program onsite
analyzed the costs and impacts to that none of the alternatives OSHA maintains consistency with the general
residential single-family builders for considered meets these criteria, OSHA industry standard and provides specific
confined spaces in single-family should have stated that fact and invited guidance about how employees are to
dwellings that are subject to the final public comment on its determination. address hazards in the confined spaces;
standard (see Chapters VI and VII of this This is a significant issue because many entry supervisors and employees may
FEA). OSHA determined that, even with of the SERs recommended that OSHA need to refer to the program quickly
these costs included, the benefits of the during the entry. The proposed rule
either adopt the general industry

final standard significantly exceed the standard or harmonize the two sets of allowed employers to simply keep a
costs. rules as much as possible. copy of the standard at the worksite
SBA Recommendation 4: In the OSHA’s Response: OSHA did discuss, instead of a written program because the
Regulatory Flexibility Act section, it and request comment on, several proposed standard provided specific
would be helpful if OSHA clarified in and detailed requirements for each
the first paragraph that ‘‘an RFA 63 Available online at: http://www.dol.gov/dol/ potential type of confined space;
analysis is required for any proposed regs/appendix.htm. however, commenters criticized this
approach as overly complex. The final ‘‘confined space’’ itself, which is 4. A Statement of the Significant Issues
standard is not conducive to replacing currently unclear. For example, it is Raised by the Public Comments in
a written program with a copy of the unclear what is meant by ‘‘not designed Response to the Initial Regulatory
standard because it takes a more generic for continuous employee occupancy.’’ It Flexibility Analysis, a Summary of the
approach to confined-space would be helpful if OSHA provided Assessment of the Agency of Such
requirements than the proposal; this some examples for clarification. Also, Issues, and a Statement of Any Changes
approach is similar to the general OSHA should specifically state whether Made in the Proposed Rule as a Result
industry standard, which also requires foundations, attics, and crawl spaces in of Such Comments
employers to maintain a written single-family residential homes are On September 26, 2003, OSHA
program on site. considered confined spaces. Finally,
SBA Recommendation 6: Advocacy convened a Small Business Advocacy
OSHA should clarify whether there is Review Panel (the Panel) for this
recommends that OSHA include a list of
any legal distinction between rulemaking in accordance with the
examples of confined spaces for each of
the proposed categories to make the ‘‘enclosed’’ and ‘‘confined’’ spaces, as provisions of the Small Business
proposed standard easier to understand. the term ‘‘enclosed’’ spaces is also used Regulatory Enforcement Fairness Act of
For example, the only example cited for in the preamble. 1996 (Pub. L. 104–121), as codified at 5
the Continuous System-Permit-Required OSHA’s Response: In the Summary U.S.C. 601 et seq. The Panel consisted
Confined Space category is a ‘‘sewer.’’ It and Explanation section of the preamble of representatives of OSHA, the Office
would be helpful if OSHA provided to the final standard, OSHA clarifies its of Information and Regulatory Affairs in
additional examples. Similarly, since definition of a ‘‘confined space,’’ and the Office of Management and Budget,
the SERs and many small businesses § 1926.1201(a) of the standard includes and the Office of Advocacy within the
have said they find the existing U.S. Small Business Administration.
a note with a non-exhaustive list of
categories to be too complex and The Panel received oral and written
potential confined spaces that
confusing, Advocacy recommends that comments on a draft proposal and a
commonly occur on a construction
OSHA consider providing a table with draft economic analysis from small
worksite. This list provides examples entities (businesses) potentially affected
four columns listing: (1) The category of for employers who may be unfamiliar
confined space; (2) examples of by the rule. The Panel, in turn, prepared
with confined spaces in construction. a written report which it delivered to
confined spaces under that category; (3) The same section of the preamble
a sequential list of the steps an the Assistant Secretary for Occupational
addresses the scope of the standard with Safety and Health (and is available in
employer must take to comply with the
respect to affected spaces in single- the docket on Regulations.gov as
requirements for that particular
family residential construction. In the OSHA–2007–0026–0037). The report
category; and (4) a cross-reference to the
final rule, OSHA does not distinguish summarized the comments received
regulatory citation. OSHA should
include this table as an Appendix to the between an ‘‘enclosed space’’ and a from the small-entity representatives
rule as it has done for Entry Permits, ‘‘confined space’’ because the final rule (SERs), and included recommendations
which is very helpful. does not include requirements for from the Panel to OSHA regarding the
OSHA’s Response: As noted earlier in enclosed spaces. OSHA amended the proposal and the associated analysis of
this chapter, for the final standard ‘‘enclosed spaces’’ provision of subpart compliance costs. OSHA sought
OSHA simplified the classification V, § 1926.953, as part of this comment in the NPRM on a variety of
system for confined spaces, making the rulemaking, and defined that term for issues of particular interest to small
recommended supplemental lists, purposes of subpart V. OSHA does not businesses as a result of the
tables, and examples unnecessary. use the term in the preamble of the recommendations of the Panel. Table
OSHA also plans to issue additional NPRM or the final rule other than in IV–21 below provides the Panel
guidance documents to help employers response to SBREFA comments, the recommendations and a summary of
comply with this simpler standard. removal of § 1926.21(b), and the ACCSH OSHA’s response to each of these
SBA Recommendation 7: Finally, recommendation to address enclosed recommendations in light of comments
OSHA should clarify the definition of a spaces, which OSHA did not adopt. made on the record.
TABLE IV–21—OSHA RESPONSE TO RECOMMENDATIONS BY THE SMALL BUSINESS ADVOCACY REVIEW PANEL FOR THE
PROPOSED STANDARD ON CONFINED SPACES IN CONSTRUCTION
Panel recommendation OSHA’s response
1. The SERs generally believed that OSHA had underestimated the The Agency relied, in part, on the comments and alternative cost esti-
costs of the draft proposed standard. The Panel recommended that mates from the SERs to help ensure that the estimated costs of
OSHA revise its economic and regulatory flexibility analysis as ap- compliance with the final standard would reflect the actual costs that
propriate to reflect the SERs’ comments on underestimation of costs, businesses might incur when complying with the requirements speci-
and that the Agency compare OSHA’s revised estimates to alter- fied by the standard. OSHA reduced or eliminated some require-
native estimates provided by the SERs. For those SER estimates ments altogether (such as those addressing hazardous-enclosed
that OSHA did not adopt, OSHA should explain its reasons for pre- spaces) in light of the information provided and issues raised by the
ferring an alternative estimate, and solicit comment on the issue. 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 misinterpreta-
tions regarding the applicability of the requirements and the specific

actions necessary to ensure compliance. OSHA discusses the revi-
sions in further detail below in the responses to specific Panel rec-
ommendations separately addressing each of these issues.
PROPOSED STANDARD ON CONFINED SPACES IN CONSTRUCTION—Continued
2. Many SERs observed that OSHA had underestimated the cost of The Agency reviewed its estimates of the costs of complying with the
training. They were concerned particularly about the length of time training requirements in the proposed standard in light of the addi-
required for training, training the trainers, renewal training, and multi- tional information provided by the SERs. OSHA understands that
lingual training. The SERs also noted that much retraining could be many businesses would have to comply with both the general indus-
avoided if OSHA adopted the general industry rule because most try and the construction industry versions of the OSHA confined-
firms already have trained their employees on that rule. Some SERs spaces standards, depending on the circumstances. Under the final
also noted that they still need to train employees on the general in- standard, OSHA decided not to allow compliance with the general in-
dustry standard because some of their work would come under the dustry standard in lieu of compliance with this final standard for con-
general industry standard. In these situations, they would need to struction projects because there are situations where the general in-
continue training on the general industry standard while adding train- dustry standard would not adequately protect construction employ-
ing on the construction standard, and on how employees should de- ees because of the unique characteristics of construction work (see
termine which standard applies. Because OSHA’s economic analysis section II.B. (‘‘History’’) of this document for a discussion of this
examined training on a project basis, it is difficult to compare issue). However, to simplify the process for employers in confined
OSHA’s cost estimates to the estimates provided by the SERs. The spaces where both general industry and construction work is ongo-
Panel recommends that OSHA carefully analyze the SERs’ coming, OSHA provided a statement of enforcement policy which has the
ments on training costs by developing methods for comparing these effect of allowing all employers in that space to comply with a single
cost estimates to those estimates provided in OSHA’s economic set of rules: The construction standard. That policy, along with the
analysis. OSHA then should compare these costs to its present cost changes that bring the construction rule closer in line with the gen-
estimates, and revise its training costs as necessary based on all of eral industry rule and address much of the information provided by
the available information. the SERs, should reduce the training costs.
3. Many SERs stated that OSHA had neglected some elements of The Agency reviewed its estimates of the costs of complying with the
monitoring costs, such as the need for a competent person to con- atmospheric-monitoring requirements in the proposed standard in
duct the monitoring, the need for the entire crew to wait while a su- light of the additional information provided by the SERs. The Agency
pervisor performs the monitoring, the short life span in the field of decided not to revise the use of a five-year useful life of monitoring
monitoring equipment, and costs associated with calibrating the equipment absent additional evidence demonstrating that a shorter
equipment. Those SERs affected by the hazardous-enclosed spaces span was more appropriate. In any case, the effect on total costs of
portion of the draft proposed rule were concerned particularly about minor variances in the life of equipment would be small. OSHA in-
increased monitoring costs. The Panel notes that if the SERs’ views creased the costs associated with setting up monitoring equipment to
about the life of equipment and the need for the entire crew to sus- 20 minutes (instead of 10 minutes) to reflect the possibility of addi-
pend work during monitoring are correct, and no other assumptions tional losses of productive work time by other employees. OSHA
are changed, the costs of monitoring would be three to five times also doubled the costs associated with periodic calibration of the
higher than OSHA estimated, adding $6 to $12 million to the cost of equipment to reflect possible additional time, costs associated with
the draft proposed standard. The Panel recommends that OSHA the transportation of equipment, and other incidental expenses.
consider these factors and revise its monitoring cost estimates ac-
cordingly, and that monitoring costs reflect the total actual costs as-
sociated with conducting monitoring, including the cost of trans-
porting and maintaining equipment, and the costs associated with
crew members waiting for the completion of monitoring activities.
4. Many SERs were concerned that the hazardous enclosed spaces As recommended by the Panel, OSHA carefully examined the haz-
provisions of the draft proposed rule would result in extensive costs ardous-enclosed space portion of the draft proposed standard.
with few benefits. Some SERs thought the provisions required little OSHA also reexamined applicable existing requirements, the extent
recordkeeping beyond what they currently do. Also, some SERs of occupational risks involved, and the potential for risk reduction
noted that OSHA had underestimated the costs associated with rec- with the promulgation of additional regulatory requirements for haz-
ordkeeping. The Panel is concerned that the hazardous enclosed ardous-enclosed spaces. Based on this reexamination, the Agency
spaces provision would require major atmospheric testing and moni- decided not to promulgate any new or additional requirements for
toring burdens not identified in the cost analysis. The Panel rec- hazardous-enclosed spaces. OSHA believes that other existing
ommends that OSHA carefully examine the benefits and costs of this standards adequately cover potential hazards associated with these
portion of the rule and compare these requirements carefully to what spaces (for example, 29 CFR 1926.55). Therefore, OSHA eliminated
is required under other existing regulations, and to existing construc- all requirements involving hazardous-enclosed spaces, and no such
tion industry practice. requirements appear in the final standard.
5. Most SERs were concerned that the treatment of controlling employ- The Agency clarified the duties of the controlling employer in
ers in the draft proposed standard would result in additional costs for § 1926.1203 of the final standard (General requirements). In its ex-
controlling employers in the form of increased monitoring and super- planation of paragraph (h) of this section, OSHA provided additional
vision of subcontractor activities. SERs also were concerned with the information about the type of information that the controlling em-
costs and time required to meet the coordination and communication ployer must share with its subcontractors, and OSHA further clarified
requirements of the draft proposed standard. The Panel recommends in a note to this paragraph that the controlling or host employer do
that, if OSHA does not clarify these provisions, then it should exam- not have to enter a confined space to collect the specified informa-
ine further the possible costs of the controlling-employer provisions in tion for its subcontractors. Therefore, the Agency believes that com-
the draft proposed rule. Also, OSHA should be certain that it has ac- pliance with final § 1926.1203 would not result in a significant added
counted for all of the burdens associated with this provision. cost to controlling employers. Its purpose is to aid them in their du-
ties to safely coordinate the activities of their subcontractors within
the space.
6. Many SERs were concerned that the increased complexity of the The Agency revised the classification system in the final standard to
classification system would add not only to the training costs but also clarify and simplify the classification of confined spaces. The Agency
to the costs associated with classifying confined spaces. The Panel believes this system reflects current practice under the general in-
recommends that, if the classification process is not simplified, dustry standard when employers apply it to construction work, there-
OSHA should further analyze the costs associated with classifying by reducing the compliance burden for employers.
confined spaces.
7. OSHA estimated that the draft proposed standard potentially affects As noted in the response to item 4 above, OSHA did not include the
small entities performing construction work in confined and enclosed requirements addressing hazardous-enclosed spaces that the Panel
spaces. Small entities in eight specific construction industry classi- believed may impose a burden on the industrial sector for General
fications were identified as being potentially affected by the draft pro- Contractors for Single Family Homes in the final standard.
posed standard. These classifications include Residential Housing
(SIC 1522); Industrial Buildings (SIC 1541); Other Nonresidential
Buildings (SIC 1542); Highway and Street Construction (SIC 1611);
Bridge and Tunnel Construction (SIC 1622); Water, Sewer, and Pipe-
line 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 establish-
ments 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 draft proposed standard difficult to In the final standard, OSHA addressed the concerns of the SERs
follow. The SERs stated that they currently were using the general about the difficulty in following the text of the proposed standard.
industry standard and were familiar with it. A few SERs saw some OSHA reorganized the regulatory text to follow more closely the gen-
advantages to the differences between the draft proposed standard eral industry structure preferred by the SERs. The final standard
and the general industry standard, but even these SERs did not be- specifies the general duties, the standards pertaining to permit-re-
lieve that these advantages were sufficient to justify the amount of quired confined spaces, the permitting process, entry permits, train-
training the draft proposed standard would require. The Panel rec- ing, rescue services, and specific duties assigned to entrants, attend-
ommends that OSHA either make the standard easier to follow, con- ants, and supervisors. OSHA recognized and addressed problematic
sider a standard closer to the general industry standard, or develop a situations common to construction sites not clearly addressed by the
standard in which the classification provisions that provide greater general industry standard (e.g., sites where there is no host, the kind
flexibility to employers are optional rather than required. of information that entities need to exchange, conducting the initial
hazard assessment of a previously unclassified space). OSHA
adopted many of the general industry provisions, and adjusted them
for use on a construction worksite.
9. Most SERs were confused by the distinctions between types of con- In the final standard, OSHA greatly simplified the system for classifying
fined spaces. One SER referred to the distinctions as ‘‘meta- confined spaces (relative to that in the proposed standard) by remov-
physical.’’ The Panel recommends that if these distinctions are re- ing the series of classifications in the proposed rule and simply re-
tained, they should be made clearer, or OSHA should consider mak- quiring that employers identify all confined spaces where their em-
ing such classifications optional. ployees 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 ad-
dress the hazards, such as through hazard isolation or atmosphere
control; the final rule addresses these responsibilities using perform-
ance language in §§ 1926.1203 (General requirements) and
1926.1204 (Permit-Required Confined Space Program) and does not
require the additional classifications required by the proposed rule.
10. Many SERs noted that the hazardous-enclosed spaces require- See the Agency’s response to item 4 above.
ments would result in a major recordkeeping burden. Some SERs
believed that these requirements represented major new require-
ments for many contractors. OSHA notes that a few of the SERs
seemed unacquainted with some of the requirements of existing reg-
ulations. The Panel notes that the requirement to evaluate each po-
tentially hazardous space, implicit in § 1926.1225(a)(3), could radi-
cally 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 prac-
tice, and explain the need for different requirements.
11. SERs were concerned that the provisions addressing controlling As stated above, OSHA clarified the responsibilities of controlling em-
employers would require general contractors to develop confined- ployers in final § 1926.1203. In addition to sharing specific informa-
space expertise and provide confined-space supervision. OSHA’s in- tion that it may have about the space with its affected subcontrac-
tent with these provisions was not to change existing relations be- tors, the note to that section clearly states that employers do not
tween general contractors and their subcontractors, but rather to as- have to enter a confined space to gather such information for its
sure that general contractors provide subcontractors with the infor- subcontractors. The purpose of this section is not to change existing
mation they possess relevant to confined spaces. Some SERs relations between general contractors and their subcontractors, but
agreed that additional information could be useful. The Panel rec- rather to assure that general contractors provide subcontractors with
ommends that OSHA clarify this requirement to indicate that the role information relevant to the safety of their subcontractors’ employees
of the controlling employer is only to provide any information they working within a confined space. The proposed standard did not re-
possess concerning confined spaces. quire controlling employers to develop confined-space expertise to
fulfill their duties, and neither does the final standard.
12. OSHA’s Hazard Communication standard also provides guidance OSHA recognized that the confined spaces standard may overlap with
to employers on the use of certain chemicals in the workplace. How- provisions in other part 1926 standards. In the preamble discussion
ever, OSHA does not see any conflict between this standard and the of this final rule, OSHA clarified the relationship between this stand-
draft proposed standard. The Hazard Communication standard pro- ard and other pre-existing construction standards which may be ap-
vides general precautionary information regarding the use of certain plicable in a confined space. In § 1926.1201(c) of the final standard,
chemicals and products; the draft proposed standard provides more OSHA explains how overlapping standards would interact with each
explicit requirements for conditions specific to confined and enclosed other, and the obligations of an employer in such situations. OSHA
spaces. Also, many construction contractors still will need to follow also explains in the preamble of the final rule how employers would
the general industry standard [for confined spaces] in some types of evaluate practical situations under the requirements of the final
work, and thus need to train their workers in using two different standard when it overlaps with another OSHA requirement. In its ex-
standards, and when to apply each standard. The SERs identified planation of the scope of the final rule, OSHA also provided addi-
other federal standards that they believe address the hazards associ- tional guidance about the potential overlap with part 1926, subparts
ated with confined and enclosed spaces, including OSHA standards J, P, S, and Y. In addition, OSHA made a minor modification to 29
for Ventilation (§ 1926.57) and for Gases, Vapors, Fumes, Dusts, and CFR part 1926, subpart V, to ensure that it provides clear guidance
Mists (§ 1926.55), and EPA and HUD rules on abatement work. Ac- to employers about the interaction of that standard with the confined
cordingly, the Panel recommends that OSHA clarify the exact rela- spaces in construction standard. OSHA is currently unaware of any
tion between the draft proposed standard and other standards affect- other Federal agency standards that overlap or conflict with the final
ing work by construction employers in confined or enclosed spaces, OSHA standard.
including the Hazard Communication standard, the general industry
standard, the Permissible Exposure Limit standards, the Ventilation
standard, the Gases, Vapors, Fumes, Dusts, and Mists standard,
and applicable EPA and HUD standards.
13. Alternatives to adopting the draft proposed standard developed by OSHA considered alternatives to drafting its own confined space stand-
OSHA include adopting the draft proposed standard developed by ard for construction. The Agency considered the general industry
the Advisory Committee for Construction Safety and Health, the in- standard for confined spaces, but found it to be unsuitable for the
dustry consensus standard developed by the American National construction industry. OSHA believes that the general industry stand-
Standards Institute, or the existing OSHA general industry standard ard does not adequately address some problematic situations com-
[for confined spaces]. Additional alternatives include modifying the mon on construction sites. These concerns include multiple sub-
OSHA draft proposed standard by removing provisions addressing contractors working within one space, and hazards created by a con-
hazardous-enclosed spaces, removing the requirement to classify fined space built around employees. OSHA drafted the final standard
spaces in the least hazardous category, revising requirements for at- to be similar to the general industry standard in terms of organization
mospheric monitoring to allow periodic monitoring instead of contin- and most of the requirements. ANSI is presently considering whether
uous monitoring, and/or reducing or eliminating recordkeeping re- it is feasible to begin drafting a confined-spaces standard for applica-
quirements. The Panel recommends that OSHA continue to consider tion specifically to construction. OSHA addressed major concerns of
these alternatives, and discuss and solicit comment on them in the the SERs regarding the hazardous-enclosed space requirements in
proposed rule. 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 re-
quirements by minimizing the time necessary for employers to main-
tain documentation. For example, in § 1926.1205 of the final stand-
ard, an employer will only have to maintain entry permits for one
year.
14. Most SERs indicated a preference for using the general industry As stated before, the draft proposed confined-spaces standard for con-
standard for construction work, as opposed to the draft proposed struction addresses some concerns that are unique to the construc-
standard. OSHA is concerned that not all construction employers are tion industry. OSHA believes that the reorganization of the proposed
as familiar with the general industry standard as the SERs are, and standard and the elimination of the section on hazardous-enclosed
that some employers might benefit from a standard designed to pro- spaces will make the final standard easier to read than the general
vide greater compliance flexibility. The Panel recommends that industry standard for confined spaces, thereby expediting employer
OSHA consider the alternative of adopting the general industry compliance. OSHA requested that the public submit comments re-
standard and, if this alternative is not adopted, discuss and solicit garding the degree of flexibility granted to employers in classifying
comment on this alternative in the proposed rule. If OSHA does not confined spaces, as well as other alternatives to the proposed rule in
adopt a standard closer to the general industry standard, the Panel general. In the final standard, OSHA adopted a classification system
recommends that OSHA revise its comparative cost analysis of the based on identifying permit-required spaces (i.e., permit spaces).
general industry rule and the draft proposed standard to take ac- This system reflects the classification system used widely under the
count of SERs’ concerns about the increased training, communica- general industry standard. OSHA rejected the alternative of not
tion, and classification costs associated with the draft proposed issuing a final standard because the record demonstrates that the
standard. The Panel also recommends that OSHA solicit comment existing standards, even with improved outreach, would be inad-
on how an alternative standard similar to the general industry stand- equate to prevent the fatalities and injuries identified earlier in this
ard could be adapted to the construction sector. In addition, the analysis. The earlier discussion in this FEA under ‘‘Need For Regula-
Panel recommends that OSHA analyze and solicit comment on the tion’’ includes additional information on the need for this new stand-
non-regulatory alternative of not issuing a final standard, relying in- ard.
stead on existing standards and improved outreach.
15. The SERs were confused by the variety of distinctions among con- In the proposed rule, the Agency reduced the number of classifications
fined spaces, and generally believed that the training required by by removing the classification for hazardous-enclosed spaces. In the
these provisions negated any advantages that might arise from the proposed rule, OSHA further clarified the four remaining categories
flexibility of different types of confined spaces. The Panel rec- by reorganizing the text of the proposed standard to ensure that all
ommends that OSHA examine and solicit comment on alternatives requirements for each classification type were available in one sec-
that reduce the number of types of confined spaces, and that OSHA tion. OSHA requested that the public submit comments regarding
consider alternatives that would allow employers the choice of using other alternatives to the proposed rule. In the final standard, OSHA
or ignoring these provisions. further reduced the number of confined-space classifications by
adopting the approach used in the general industry standard to des-
ignate 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 employ-
ees on the final construction standard.
16. Many SERs viewed the requirements for hazardous-enclosed As recommended by the Panel, OSHA removed the provisions for haz-
spaces as highly burdensome. The Panel recommends that OSHA ardous-enclosed spaces.
remove this provision unless OSHA can (1) clarify exactly how the
requirements of this provision are different from other existing re-
quirements and practices; (2) develop a detailed cost analysis of this
provision; (3) quantify the hazards associated with hazardous-en-
closed 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 provisions for controlling con- As stated previously, § 1926.1203(h), and the note to that section, clar-
tractors would alter the existing relationship between contractors and ify the duties of the controlling contractor and explain that a control-
subcontractors with little gain in reduced risk to employees. OSHA ling contractor will not have to enter a confined space to gather the
notes that the purpose of this provision was only to ensure that con- specified information for the subcontractor.
tractors share available information at multi-employer worksites.
Some SERs agreed that information sharing would be helpful, but
were concerned that the OSHA draft went far beyond this purpose.
The Panel recommends that OSHA consider removing this provision
or clarifying the purpose of this provision, and solicit comment in the
proposal on the need for this provision.
OSHA received no significant small home builders to do so (ID–219.2). coordination duties placed on
comments in response to the Initial In addition, NAHB claimed the contractors were infeasible.
Regulatory Flexibility Analysis for the information coordination duties of the Among the evidence cited in the
proposed rule, but it did receive two proposed rule were not economically published study NAHB used to support
comments on whether elements of the feasible for small home builders. this economic infeasibility conclusion is
proposed standard were feasible for OSHA finds these arguments a profit rate (profit as a percentage of
small entities. First, the National misguided. First, neither the proposal revenue) of 7.7 percent for NAHB
Association of Home Builders (NAHB) nor the final rule required controlling builder members in 2006, which is
claimed the proposed rule required employers to supervise the entries of significantly higher than the more
controlling contractors to supervise all other employers. Nor did NAHB provide conservative rate OSHA used in its
entries into permit spaces, and argued convincing evidence that the calculations: 4.53 percent. If the actual
that it was not economically feasible for profit rate is higher than OSHA’s
estimate, OSHA’s impact estimates may involved in retraining employees on classifying confined spaces, eliminating
overstate the effect of this rule on new procedures. or isolating hazards, providing sufficient
revenues and profits in the ventilation, conducting atmospheric
5. A Description, and an Estimate, of the
homebuilding industry. As previously monitoring, providing an attendant,
Number of Small Entities to Which the
demonstrated in Chapter 7 of this FEA, providing respiratory protection,
Rule Will Apply, or an Explanation of
these potentially inflated estimates of preventing unauthorized entry,
Why no such Estimate is Available
revenue and profit impacts for the new planning and providing rescue
single-family housing-construction OSHA completed an analysis of the capability, and providing training.
industry (NAICS 236115; all affected economic impacts associated with this The preamble to the final standard
firms) are well below the threshold of final rule, including an analysis of the provides a comprehensive description
economic infeasibility at 0.04 percent type and number of small entities to of, and further detail regarding, the
and 0.99 percent, respectively (0.05 which it would apply, as described provisions of the final rule. The
percent and 1.08 percent, respectively, previously in this section (See Tables preceding chapters of this FEA provide
for small entities). IV–19 and IV–20). To determine the a description of the types of entities
As noted in Chapter 6 of this FEA, number of small entities potentially subject to the new and revised
OSHA assigned typical unit-time affected by this rulemaking, OSHA used requirements, and the types of
estimates for the multi-employer the definitions of small entities professional skills necessary for
(information-exchange) provisions of developed by the Small Business compliance with the requirements.
Administration (SBA) for each industry.
the final standard and demonstrated 7. A Description of the Steps the Agency
For the construction industry
there, and in this chapter, that the costs Took To Minimize any Significant
generally, SBA defines small businesses
incurred by home builders would not be Economic Impact on Small Entities
using revenue-based criteria. For most
excessive or unreasonable. Despite Consistent With the Stated Objectives of
of the affected construction industries,
assertions by NAHB that the demands of the Applicable Statutes, Including a
including those industries that mostly
coordinating subcontractors would be Statement of the Factual, Policy, and
consist of general contractors, OSHA
economically infeasible as prescribed by Legal Reasons for Selecting the
classified firms with annual revenues of
the multi-employer provisions of the Alternative Adopted in the Final Rule,
less than $33.5 million as small
rule, there is evidence (ID–211, Tr. pp. and Why the Agency Rejected Each One
businesses. For specialty contractors,
123–127) to suggest that home builders of the Other Significant Alternatives to
such as structural-steel erection
often find that they must coordinate and the Rule Considered by the Agency
contractors, the Agency considered
communicate efficiently with Which Affect the Impact on Small
firms with annual revenues of less than
subcontractors across construction sites Entities
$14 million to be small businesses.
of varied size and complexity. OSHA took a number of steps to
Based on the definitions of small
Therefore, OSHA believes that, based on minimize economic burdens on small
entities developed by SBA for each
the evidence in the record as a whole, entities. In response to the SERs’
industry, the final rule would
the multi-employer information- suggestion that the Agency harmonize
potentially affect a total of 490,000
exchange requirements of the final the construction standard with the
small entities, as shown in Table IV–4.
standard would not impose an general industry standard to the greatest
Included in this number are an
unreasonable burden on home builders, extent possible, the final standard in
estimated 451,000 entities with fewer
and would not threaten the competitive large part reflects the general industry
than 20 employees, as shown in Table
stability of the industry or otherwise standard, tailored to address the unique
IV–5.
create conditions of economic characteristics of the construction
infeasibility. 6. A Description of the Projected industry. In revising several provisions
Another commenter asserted that the Reporting, Recordkeeping, and Other of the final rule to reflect the general
impact of the proposed rule on small Compliance Requirements of the Rule, industry standard, OSHA sought to
businesses would be ‘‘staggering’’ and Including an Estimate of the Classes of minimize the impact on small entities
would drive some contractors out of Small Entities That Will Be Subject to by reducing the need to comply with
business, arguing that several of the the Requirement, and the Type of different confined-space requirements
costs of the proposed standard were Professional Skills Necessary for for construction and general industry,
disproportionate to its benefits (ID–112). Preparation of the Report or Record and to train employees on new
This commenter suggested that OSHA OSHA is issuing a standard that procedures. The vast majority of
withdraw the proposed standard or that addresses the work practices employers commenters believed that the
compliance with the general industry must use and other requirements they classification system in the proposed
standard constitute compliance with the must follow when performing rule would not contribute to worker
construction standard. OSHA revised construction work in confined spaces. safety, and would result in confusion
the final rule by harmonizing it with the Table IV–14 of this FEA shows the unit among employers. Therefore, OSHA
general industry standard to a costs for these requirements. decided to adopt the system reflected in
substantial degree. Therefore, the final Employers must keep records the general industry standard for
standard in large part reflects the associated with work in confined spaces classifying confined spaces as permit-
general industry standard, tailored to as specified by the final standard. required confined spaces.
address the unique characteristics of the Records include entry permits and In addition, OSHA did not include a
construction industry. In revising verification documents. The final proposed provision in the final rule that
several provisions of the final rule to standard does not require regular required an employer to summon an
reflect the general industry standard, reporting; however, employers must entry-rescue service whenever the
OSHA sought to minimize the impact demonstrate compliance with the employer initiated a non-entry rescue.
on small entities by minimizing the recordkeeping requirements as part of OSHA also allows employers to use the
costs involved in distinguishing OSHA compliance inspections. alternative ventilation-only procedures
between the two rules and complying Other compliance requirements of the under final § 1926.1203(e) if an
with both standards, as well as the costs final standard include evaluating and employer is able to isolate all physical
hazards in the space, which provides The proposed rule allowed employers to conclusions to be robust, as even
more flexibility to an employer than the simply keep a copy of the standard at sizeable changes in the values of several
general industry standard. Furthermore, the worksite instead of a written input parameters did not greatly alter
OSHA allows employers to suspend a program because the proposed standard the estimates of the costs, benefits, or
permit in certain circumstances, rather provided specific and detailed net benefits. Furthermore, this final rule
than cancelling and developing a new requirements for each potential type of produces significant positive net
permit. Each of these options has the confined space. The final standard is benefits regardless of the individual
potential to significantly reduce the not conducive to replacing a written revisions to costs, benefits, or discount
economic impact on employers, program with a copy of the standard rate. Table IV–22 below summarizes the
including small entities. The preamble because it takes a more generic results of the individual sensitivity
for §§ 1926.1203(e) and 1926.1205(e) approach to confined-space tests. In all the sensitivity tests, the
includes an in-depth explanation of the requirements than the proposal; this parameters remained unchanged except
specific steps taken to minimize approach is similar to the general for the one tested.
employer burden. industry standard, which also requires In the first sensitivity test on costs,
Another less stringent alternative employers to maintain a written when OSHA increased by 100 percent
would relieve employers of the program on site. the estimated time for supervisors to
requirements specified in the final 9. Sensitivity Analysis evaluate and classify confined spaces,
standard for information exchange the estimated total costs of compliance
between host employers, controlling In this chapter, OSHA presents the
results of two different types of increased by $0.7 million annually, or
contractors, and entry employers on by 1 percent. In a second sensitivity test,
worksites; these requirements are absent sensitivity analysis to demonstrate how
robust the estimates of net benefits are OSHA increased by 100 percent the
from the general industry standard. time estimated for information exchange
While OSHA notes that host employers to changes in selected cost and benefit
parameters. In the first set of sensitivity on a multi-employer project. This test
must share this information under the led to an increase in the estimated
general industry standard, and believes tests, OSHA makes a series of isolated
changes to individual cost- and benefit- annualized compliance costs of $9.3
that this exchange of information occurs million, or of about 17 percent. In a
as a matter of usual and customary input parameters to determine their
effects on the Agency’s estimates of third sensitivity test, OSHA increased
practice on general industry and by 100 percent its estimate of the time
construction worksites alike, the general annualized costs, benefits, and net
benefits. In the second set of tests—a so- needed to issue entry permits and verify
industry standard does not explicitly the safety of entries into confined
impose information-sharing called ‘‘break-even analysis’’—OSHA
also investigates isolated changes to spaces, which resulted in an increase in
requirements on controlling contractors. the estimated annualized compliance
OSHA estimates that compliance with individual cost- and benefit-input
parameters, but with the objective of costs of $2.3 million, or of about 4
the information-exchange requirements percent. Finally, in a fourth sensitivity
of the final rule will result in determining the magnitude of the
changes needed for annualized costs to test, when OSHA increased by 100
compliance costs of about $9.3 million, percent the estimate of the time devoted
equal annualized benefits. The Agency
and that the less-stringent alternative, to training entrants and attendants, the
conducted these calculations for
reflected in the general industry estimated compliance costs rose by $1.5
informational purposes only, and is not
standard, would reduce compliance million, or by about 3 percent.
relying on these calculations to justify
costs by about $5.9 million. However,
this final rule. In addition, OSHA examined the
OSHA believes that, given the unique
Effects of Isolated Changes to Specific effect of a change in the discount rate on
characteristics of the construction
Input Parameters annualized costs and benefits. Changing
industry that include continually
the discount rate from 7 percent, used
changing projects and multiple OSHA provides below a sensitivity in the base case, to 3 percent lowered
employers onsite, the specific analysis of several assumptions the estimated costs of the final rule from
information-exchange requirements underlying the Agency’s estimates of the $60.3 million to $59.2 million per year
contained in the final rule will annualized costs and benefits of the (while leaving estimated annual benefits
contribute to an effective exchange of final rule. The calculations underlying unaffected), thereby increasing the
information about confined-space the estimation of compliance costs, estimate of net benefits by $1 million.
hazards and will, therefore, increase benefits, and economic impacts
worker safety on construction sites. OSHA also performed a sensitivity
associated with this rulemaking are
Another, less stringent, alternative generally linear and additive. test on an input parameter used to
would relieve employers of the Accordingly, the changes in the costs or estimate the benefits of the final rule. In
requirement in the final standard to benefits will generally be proportional particular, OSHA assumed that there
develop a written program for each to variations in the relevant input were 100 injuries for every fatality
permit-required entry, and would parameters. For example, if the instead of 150 injuries per fatality, the
instead require that a copy of the estimated time for supervisors to value used in the main analysis. As a
standard be made available at the evaluate and classify confined spaces result, the estimated benefits of the final
worksite. OSHA estimates that the increased by 50 percent, the rule fell by $15.6 million, or by about
requirement for a written program will corresponding labor costs would also 17 percent.
result in compliance costs of about $1.3 increase 50 percent. In conclusion, these sensitivity tests
million. OSHA believes that having a OSHA evaluated a series of such demonstrate that even with relatively
written program onsite maintains changes in input parameters to test the large variations in the input parameters,
consistency with the general industry extent to which the general conclusions there are no large changes in the
standard and provides site-specific of the economic analysis remained estimates of compliance costs or
information about the confined spaces. stable. On the whole, OSHA finds these benefits.
TABLE IV–22—SENSITIVITY TESTS

Percentage
Change in Change in change in Annualized
Variable OSHA’s Best estimate Net benefit
variable annualized costs annualized costs
costs
Cost Parameters
OSHA’s Best Estimate of Total Annualized Costs $60.3 million ..... $33.3 million.
Supervisor Time to Average of 12 minutes per Increase by $0.7 million ....... 1 $61 million ........ $32.6 million.
Evaluate and Clas- confined space. 100 percent.
sify Confined
Spaces.
Time for Information Per project: 8 minutes of su- Increase by $9.3 million ....... 17 $69.6 million ..... $24 million.
Exchange on a pervisor time for exchange 100 percent.
Multi-employer information between host
Project. 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 control-
ling contractor and 10 per-
cent of other (non-entry)
employers on the work
site, and 10 minutes of su-
pervisor time each for the
controlling contractor and
two other employers on the
work site for coordinated
entries.
Time to Issue Entry Per permit issued: 10 min- Increase by $2.3 million ....... 4 $62.6 million ..... $31 million.
Permits and Verify utes of supervisor time and 100 percent.
Safety of Entries. 5 minutes of clerical time.
Per entry not requiring a per-
mit: 5 minutes of super-
visor time and 5 minutes of
clerical time.
Employee Training ... Per project: 15 minutes of Increase by $1.5 million ....... 3 $61.8 million ..... $31.8 million.
worker time and 1.5 min- 100 percent.
utes each of supervisor
and clerical employee time
for each entrant, 15 min-
utes of attendant time and
1.5 minutes each of super-
visor 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.
Number of injuries 150 ........................................ 100 ................ ¥$15.6 million .. ¥17 $78 million ........ $17.7 million.
per fatality.
Break-Even Analysis In the first break-even test addressing benefits. The point would occur when
cost estimates, OSHA examined how OSHA’s estimates of the number of
OSHA also performed sensitivity tests much costs would have to increase for avoided fatalities and injuries fell by 59
on two other parameters used to costs to equal benefits. This point would percent. The break-even point would,
estimate the net costs and benefits of the occur when costs increased by $33.3 thus, require reducing the estimated
proposed rule. However, for these tests, million, or 55 percent. benefits of the final rule by 2.18
the Agency performed a break-even fatalities and 326 injuries prevented
In a second break-even test, on
analysis that asked the extent to which annually (relative to OSHA’s estimate of
benefits, OSHA examined the reduction
the various cost and benefits inputs needed in the rule’s estimated aggregate 5.2 fatalities and 780 injuries prevented
would have to vary for the costs to equal benefits (in terms of avoided fatalities annually).
benefits. and injuries) for the costs to equal the
In summary, according to these two NCCI (National Council on Compensation 003: September 2000. Available at:
break-even tests, there would have to be Insurance), 2013. ‘‘ABCs of Experience http://yosemite1.epa.gov/ee/epa/eed.nsf/
a fairly significant increase in costs or Rating.’’ Available at https:// Webpages/Guidelines.html; also
www.ncci.com/NCCIMain/Education/ available in OSHA Docket No. H–0054a,
reduction in benefits for the rule to no ExperienceRating/Pages/default.aspx. Exhibit 35–334.
longer produce positive net benefits. Neuhauser, F.W., S.S. Seabury, and J. U.S. Internal Revenue Service (IRS, 2013),
Further, OSHA notes that some of the Mendeloff, 2013. ‘‘The Impact of 2010. ‘‘Corporation Source Book,’’
other benefits of the rule are non- Experience Rating on Small Employers: Publication 1053. Available at: < http://
quantifiable, such as those benefits Would Lowering the Threshold for www.irs.gov/uac/SOI-Tax-Stats-
associated with making the general Experience Rating Improve Safety?,’’ Corporation-Source-Book:-U.S.-Total-
industry and construction provisions as Rand Working Papers WR–955. and-Sectors-Listing> Accessed by OSHA
compatible as possible. These benefits Newsletter discussion available at: on 4/19/2013.
http://www.rand.org/jie/centers/ U.S. Office of Management and Budget
would increase the overall net benefits workplace-health-safety/projects/ (OMB, 2003). ‘‘To the Heads of Executive
of the final rule. experience-rating.html. Full paper at: Agencies and Establishments; Subject:
10. References http://www.rand.org/pubs/working_ Regulatory Analysis,’’ Circular A–4:
papers/WR955.html. September 17, 2003. Available at: http://
ACCSH Confined Spaces Work Group Ruser, J.W. (Ruser, 2008). ‘‘Examining www.whitehouse.gov/sites/default/files/
(ACCSH, 1994). ‘‘Work Group Report: Evidence on Whether BLS Undercounts omb/assets/regulatory_matters_pdf/a-
Confined Spaces,’’ submitted to the Workplace Injuries and Illnesses,’’ 4.pdf.
Advisory Committee on Construction Monthly Labor Review, 131 (8): pp. 20– Urban Institute/Brookings, 2012. ‘‘Historical
Safety and Health, May 17, 1994. 32, August 2008. Average Federal Tax Rates for All
Available at: https://www.osha.gov/doc/ Small Business Advocacy Review Panel for Households,’’ Tax Policy Center,
reference_documents.html. the OSHA Confined Spaces in October. Available at: http://
Ahluwalia, G. (Ahluwalia, 2003). Construction Draft Standard (SBREFA www.taxpolicycenter.org/taxfacts/
‘‘Subcontracting and Channels of Panel, 2003). ‘‘Report of the Small displayafact.cfm?Docid=456.
Distribution,’’ Housing Economics, May Business Advocacy Review Panel on the Viscusi, K., and J. Aldy (Viscusi and Aldy,
2003. (Attached to OSHA–2007–0026– Draft OSHA Standard for Confined 2003). ‘‘The Value of a Statistical Life: A
0117.) Spaces in Construction,’’ submitted to Critical Review of Market Estimates
Ashford, N. A., 2006. ‘‘Workers’ Mr. John Henshaw, Assistant Secretary Throughout the World,’’ The Journal of
Compensation,’’ in Environmental and for Occupational Safety and Health, U.S. Risk and Uncertainty, 27 (1): pp. 5–76,
Occupational Medicine, Fourth Edition, Department of Labor, Occupational August 2003.
W.N. Rom and S. Markowitz (Eds.), Viscusi, W. Kip, Wesley A. Magat, and Anne
Safety and Health Administration,
Lippincott-Raven Publishers, Forrest. ‘‘Altruistic and Private Valuation
November 24, 2003. (Exhibit 2–1 in
Philadelphia: pp. 1712–1719. of Risk Reduction.’’ Journal of Policy
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CONSAD Research Corporation (CONSAD, Analysis and Management 7(2): pp. 227–
Seong, S.K., and J. Mendeloff, 2004.
2005). ‘‘Rulemaking Support for the 245, 1988.
‘‘Assessing the Accuracy of OSHA’s
Proposed OSHA Confined Space Workers Compensation Research Institute
Projections of the Benefits of New Safety
Standard for Construction,’’ prepared for (WCRI, 1987). Workplace Injuries—
the U.S. Department of Labor, Standards,’’ American Journal of
Industrial Medicine, 45, 4: 2004. Economic and Noneconomic
Occupational Safety and Health Consequences for Workers, 3 (7):
Administration, Office of Regulatory Sunstein, C., 2004. ‘‘Valuing Life: A Plea for
Disaggregation,’’ Duke Law Journal, 54: Cambridge, MA, July 1987.
Analysis, June 8, 2005. (OSHA–2007–
pp. 385–445.
0026–003.) C. Office of Management and Budget
Dong, X., et al. (Dong, et al., 2011). ‘‘Lifetime Thaler, R., and S. Rosen, 1976. ‘‘The Value
of Saving a Life: Evidence from the Labor Review Under the Paperwork Reduction
Risk of Occupational Injuries and Act of 1995
Illnesses among Construction Workers,’’ Market,’’ in Household Production and
American Public Health Association, Consumption, N E. Terleckyj (ed.), New The final Confined Spaces in
Washington, DC, October 31, 2011. York: Columbia University Press, 1976: Construction Standard contains
Hintermann, B., A. Alberini, and A. pp. 265–298. collection of information requirements
Markandya (Hinterman, Alberini, and U.S. Bureau of Labor Statistics (BLS 2009A).
(paperwork) that are subject to review
Markandya, 2010). ‘‘Estimating the Value Table A–1, ‘‘Fatal Occupational Injuries
by Industry, Event and Exposure, 2009.’’ by the Office of Management and
of Safety with Labour Market Data: Are Budget (OMB) under the Paperwork
the Results Trustworthy?,’’ Applied Available at: http://www.bls.gov/iif/
Economics, 42 (9): pp. 1085–1100, 2010. oshwc/cfoi/cftb0241.pdf. Reduction Act of 1995 (PRA–95) (44
IRS (Internal Revenue Service), 2012. U.S. Bureau of Labor Statistics (BLS 2009B). U.S.C. 3501 et seq.) In accordance with
Publication 525, ‘‘Taxable and Table 2, ‘‘Number of Nonfatal 44 U.S.C. 3506(c)(2) of the PRA–95,
Nontaxable Income.’’ Available at: http:// Occupational Injuries and Illnesses by OSHA solicited public comments on the
www.irs.gov/uac/Publication-525,- Case Type and Ownership for Selected Confined Spaces in Construction (29
Taxable-and-Nontaxable-Income--1. Industries, 2009,’’ News Release USDL CFR 1926, subpart AA) Information
IRS (Internal Revenue Service), 2013. Topic 10–1451. Available at: http://bls.gov/
Collection Request (ICR) (paperwork
751, ‘‘Social Security and Medicare news.release/archives/osh2_
11092010.pdf. burden hour and cost analysis) for the
Withholding Rates.’’ Available at: http://
www.irs.gov/taxtopics/tc751.html. U.S. Commerce Department, Bureau of proposed rule. The Department also
Leigh, J. P., and J. P. Marcin, 2012. ‘‘Workers’ Economic Analysis. ‘‘GDP Price Deflator submitted this ICR to OMB for review in
Compensation Benefits and Shifting 2002 to 2009.’’ Available at: http:// accordance with 44 U.S.C. 3507(d) on
Costs for Occupational Injury and www.bea.gov/iTable/ November 28, 2007. On February 15,
Illness,’’ Journal of Occupational and iTable.cfm?ReqID=9&step=1#reqid= 2008, OMB authorized the Department
Environmental Medicine, April, 54(4): 9&step=3&isuri=1&903=13, downloaded of Labor to use OMB Control Number
pp. 445–50. on 11/9/2010. 1218–0258 in future paperwork

NASI (National Academy of Social U.S. Census Bureau. ‘‘Annual Value of
submissions involving this rulemaking.
Insurance), 2012. ‘‘Workers’ Construction Put in Place 2002–2009.’’
Compensation: Benefits, Coverage, and Available at: http://www.census.gov/ OMB commented, ‘‘This OMB action is
Costs, 2010,’’ August. Available at http:// construction/c30/c30index.html. not an approval to conduct or sponsor
www.nasi.org/research/2012/report- U.S. Environmental Protection Agency (EPA, an information collection under the
workers-compensation-benefits- 2000). ‘‘Guidelines for Preparing Paperwork Reduction Act of 1995.’’
coverage-costs-2010. Economic Analyses,’’ EPA 240–R–00– OMB also stated that ‘‘OMB will review
the associated collection requirements construction who has employees who each employer engaged in construction
in parallel with the final regulation enter a permit-required confined space who has an employee enter a PRCS
prior to approval.’’ (PRCS) must have, as applicable, the must share information with the
OSHA received no public comments following information posted in controlling contractor and must ensure
on the proposed ICR. However, a accordance with the standard or on file that its attendants, authorized entrants,
number of comments received in and available at the job site: Danger supervisors and rescue teams or services
response to the Notice of Proposed signs and other means of notification of communicate as required by the
Rulemaking (NPRM), described earlier PRCSs; a written PRCS program; entry standard. An employer’s failure to
in this preamble, contained information permits that document procedures generate and disclose the information
relevant to the burden-hour and cost necessary for safe permit-entry required in this standard will affect
analysis that OSHA considered when it operations and that include significantly the Agency’s effort to
developed the revised ICR associated atmospheric-testing and monitoring control and reduce injuries and fatalities
with this final rule. information and results; signed related to confined spaces in
In accordance with 44 U.S.C. 3507 of certifications and supporting construction.
the PRA–95, OSHA requested OMB documentation for entry under alternate Table IV–23 below identifies and
approval of the collection of information procedures, including documentation of describes the collection of information
requirement described below. A copy of the hazard determinations and the requirements contained in the final rule.
the ICR is available at http:// methods used to protect employees from As discussed in Section II.B. of the
www.reginfo.gov. OMB is preapproving these hazards; written approval from a preamble, OSHA is finalizing a
the collection of information professional engineer for use of job- Confined Spaces in Construction
requirements under OMB Control made hoisting systems when entering standard that more closely resembles
Number 1218–0258 and they will take spaces under alternate procedures, the general industry standard than did
effect on the same date as other parts of certifications documenting the NPRM. OSHA’s rationale for the
this rule. reclassification of the space; a Safety need to collect information is set forth
The Department of Labor notes that, Data Sheet or similar written in the general discussion in the
under the PRA–95, a Federal agency information to provide to medical Background section of the preamble,
cannot conduct or sponsor a collection facilities treating exposed employees; and in the discussion of each of these
of information unless OMB approves it and training records for employees. specific provisions in Section III of the
and the collection of information Entry employers must retain each preamble. As noted in the preamble
displays a currently valid OMB control canceled entry permit for at least 1 year discussions of the specific sections of
number. Also, notwithstanding any to facilitate the review of the permit- the standard, the new information
other provision of law, no employer required confined space program and collection requirements not contained
shall be subject to penalty for failing to maintain employee training records for in the NPRM include requirements for
comply with a collection of information the period of time the employee is written PRCS programs, written
if the collection of information does not employed by that employer. Employers approval for job-made hoisting systems
display a currently valid OMB control must make all information required to used when entering spaces under
number. be developed under the standard alternate procedures, and consultation
The collection of information available for review by the affected with affected employees and their
requirements in this final rule impose employees and their authorized authorized representatives in the
duties on employers to communicate, representatives, and provide access to development and implementation of the
produce and maintain records, and take documents required to be retained by PRCS program. In addition, while the
other measures to protect employees the standard to OSHA for compliance proposed rule required host employers
from confined-space hazards in purposes. Additionally, controlling to communicate directly with entry
construction. These provisions are contractors have responsibilities to employers, OSHA assigned the
necessary to protect the health and obtain and disseminate information controlling contractor that function in
safety of employees who are engaged in about the permit space, host employers the final rule. Table IV–23 identifies the
construction work in confined spaces. have a duty to disclose known collection of information requirements
Accordingly, each employer engaged in information about permit spaces, and 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 If an employer decides that employees it directs will enter a PRCS, the employer must have and im-
1926.1204, 29 CFR 1926.1211(a)(5), plement a written permit-space program at the construction site that complies with § 1926.1204 of
and 29 CFR 1926.1212(a). 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; sum-
moning rescue and emergency services (including the development of a rescue plan for employ-
ers who have in-house rescue teams), rescuing entrants from PRCSs, providing necessary emer-
gency services to rescued employees, and preventing unauthorized personnel from attempting a
rescue; coordinating entry operations; and for concluding entry. Employers must consult with af-
fected employees and their authorized representatives on all aspects of the PRCS program.
29 CFR 1926.1203(e)(1)(v), (e)(2)(viii) and Before entry under alternate procedures, employers must document the determinations and sup-
(e)(2)(ix). porting data required by paragraphs § 1910.1204(e)(1)(i)–(e)(1)(iii) of this standard. The employer
must make the documented determinations and supporting data available to each employee en-
tering 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 writ-
ing, prior to use.
TABLE IV–23—COLLECTION OF INFORMATION REQUIREMENTS OF THE FINAL STANDARD—Continued

29 CFR 1926.1203(g)(3) ........................... Entry employer(s) must document and certify the basis for determining the elimination or isolation of
all hazards in a PRCS when reclassifying the space. The certification must be made available to
each employee entering the space or to that employee’s authorized representative.
29 CFR 1926.1203(h)(1)(i)–(h)(1)(iii), The host employer and controlling contractor must exchange PRCS information before and after
(h)(2)(i), (h)(5)(iii), and (i). entry operations.
29 CFR 1926.1203(h)(2)(ii), and (i) ........... The controlling contractor must provide PRCS information to non-entry employers before entry oper-
ations begin.
29 CFR 1926.1203(h)(2)(ii), (h)(3)(i)– The controlling contractor and the entry employer(s) must exchange PRCS information before and
(h)(3)(ii), (h)(5)(i)–(h)(5)(ii), and (i). after entry operations.
29 CFR 1926.1203(h)(4)(i), (h)(4)(ii), and The controlling contractor and entry employer(s) must each coordinate entry operations: When more
(i). than one entity performs PRCS entry at the same time; or when performing permit-space entry
while at the same time any activities are performed that could foreseeably result in a hazard in
the PRCS.
29 CFR 1926.1204(e)(6) ........................... Employers must provide results of any testing conducted under § 1926.1204 to employees or em-
ployees’ 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 pro-
gram, using the canceled permits retained under § 1926.1205(f) of this standard, within 1 year
after each entry, and revise the program as necessary to protect employees participating in entry
operations from permit-space hazards. Employers may perform a single annual review covering
all entries performed during a 12-month period.
29 CFR 1926.1205(a) and (c), and 29 Each entry employer must document the completion of measures required by § 1926.1204(c) of this
CFR 1926.1206. 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. Em-
ployers 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 haz-
ards, attendants, entry supervisors, hazards of the PRCS, measures used to isolate the PRCS
and to control permit-space hazards before entry, acceptable entry conditions, results of tests and
monitoring performed under § 1926.1204(e) of this standard and the names or initials of the test-
ers 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, com-
munication 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 Before entry begins, the entry supervisor identified on the permit must sign the entry permit, and
1926.1210(b). verify, by checking that the appropriate entries have been made on the permit, that all tests speci-
fied by the permit have been conducted and that all procedures and equipment specified by the
permit are in place before endorsing the permit and allowing entry to begin.
29 CFR 1926.1205(f) ................................. Entry employers must retain each canceled entry permit for at least 1 year to facilitate the review of
the permit-required confined space program required by § 1926.1204(n) of this standard. The em-
ployer 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 train-
ers, and the dates of training to show completion of the training required by § 1926.1207(a)
through (c) of this standard. The documentation must be available for inspection by employees
and their authorized representatives for the period of time the employee is employed by that em-
ployer.
29 CFR 1926.1208(c) and (d) ................... Entry employers must ensure that authorized entrants: Communicate with the attendant as nec-
essary to enable the attendant to assess entrant status and to enable the attendant to alert en-
trants of the need to evacuate the space as required by § 1926.1209(f) of this standard, and to
alert the attendant whenever there is any warning sign or symptom of exposure to a dangerous
situation, or the entrant detects a prohibited condition.
29 CFR 1926.1209(e), (f), (g), and (h)(1)– Entry employers must ensure that attendants: Communicate with authorized entrants and order
(h)(3). 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 Entry employers must ensure that each entry supervisor verifies that rescue services are available,
1926.1211(c). 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 employment establishments after the Affected Public: Businesses or other
adjustment of 654,514 new burden effective date of the final standard. for-profits.
hours to 30,066 construction- Title of Collection: Confined Spaces in Total Estimated Number of
Construction (29 CFR 1926 subpart AA).
Respondents: 30,066.
OMB Control Number: 1218–0258.
Total Estimated Number of example, because an existing state the Final Economic and Regulatory
Responses: 4,093,825. standard covering this area is ‘‘at least Flexibility Analysis for this rulemaking,
Total Estimated Annual Time Burden: as effective’’ as the new Federal OSHA estimates that compliance with
654,514 hours. standard or amendment (29 CFR the rule will require expenditures of less
Total Estimated Annual Other Costs 1953.5(a)). The state standard must be at than $100 million per year by all
Burden: $1,017,859. least as effective as the final Federal rule affected employers. Therefore, this rule
D. Federalism and must be completed within 6 months is not a significant regulatory action
of the promulgation date of the final within the meaning of Section 202 of
OSHA reviewed this final rule in Federal rule. When OSHA promulgates UMRA (2 U.S.C. 1532).
accordance with the most recent a new standard or amendment that does OSHA standards do not apply to state
Executive Order (E.O.) on Federalism not impose additional or more stringent or local governments except in states
(E.O. 13132, 64 FR 43255 (Aug. 10, requirements than an existing standard, that elect voluntarily to adopt a State
1999)). This E.O. requires that Federal State-Plan States do not have to amend Plan approved by the Agency.
agencies, to the extent possible, refrain their standards, although the Agency Consequently, this final rule does not
from limiting State policy options, may encourage them to do so. meet the definition of a ‘‘Federal
consult with States prior to taking any The 21 states and 1 U.S. Territory intergovernmental mandate’’ (2 U.S.C.
actions that would restrict State policy with OSHA-approved occupational 658(5)).
options, and take such actions only safety and health plans covering private Therefore, for the purposes of UMRA,
when clear constitutional authority employers and state and local the Agency certifies that this final rule
exists and the problem is national in government employees are: Alaska, does not mandate that state, local, or
scope. E.O. 13132 provides for Arizona, California, Hawaii, Indiana, Tribal governments adopt new,
preemption of State law only with the Iowa, Kentucky, Maryland, Michigan, unfunded regulatory obligations or
expressed consent of Congress. Federal Minnesota, Nevada, New Mexico, North increase expenditures by the private
agencies must limit any such Carolina, Oregon, Puerto Rico, South sector of more than $100 million in any
preemption to the extent possible. Carolina, Tennessee, Utah, Vermont, year.
Under Section 18 of the OSH Act, Virginia, Washington, and Wyoming. In
Congress expressly provides that States G. Consultation and Coordination With
addition, four states and one U.S.
may adopt, with Federal approval, a Indian Tribal Governments
Territory have OSHA-approved State
plan for the development and Plans that apply to state and local OSHA reviewed this final rule in
enforcement of occupational safety and government employees only: accordance with Executive Order 13175,
health standards; States that obtain Connecticut, Illinois, New Jersey, New (65 FR 67249 (Nov. 9, 2000)) and
Federal approval for such a plan are York, and the Virgin Islands. determined that it does not have ‘‘tribal
referred to as ‘‘State-Plan States’’ (29 The requirements in this final rule are implications’’ as defined in that order.
U.S.C. 667). Occupational safety and more stringent than all or most State The final rule does not have substantial
health standards developed by State- plans for the work they cover. However, direct effects on one or more Indian
Plan States must be at least as effective as discussed previously in this tribes, on the relationship between the
in providing safe and healthful preamble, OSHA believes that State- Federal government and Indian tribes,
employment and places of employment Plan States that have standards or on the distribution of power and
as the Federal standards. While OSHA applicable to construction work in responsibilities between the Federal
promulgated this final rule to protect confined spaces that are similar to 29 government and Indian tribes.
employees in every State, Section CFR 1910.146, the general industry
H. Applicability of Existing Consensus
18(c)(2) of the Act permits State-Plan standard for confined spaces, will not
Standards
States and Territories to develop and have to make major changes to their
enforce their own standards for existing rules to ensure that these rules Section 6(b)(8) of the Occupational
confined spaces work provided that are at least as effective as this final rule. Safety and Health Act of 1970 (29 U.S.C.
those requirements are at least as OSHA believes that the record warrants 655(b(8)) requires OSHA to explain why
effective in providing safe and healthful these changes so as to provide the rule adopted will better effectuate
employment and places of employment construction employees with the same the purposes of the Act than relevant
as the requirements in this final rule. level of protection afforded to them by national consensus standards. The
In summary, this final rule complies this final rule. Therefore, states and American National Standards Institute
with E.O. 13132. In States without territories with OSHA-approved State (ANSI) Z117.1 consensus standard
OSHA-approved State Plans, this final Plans must adopt comparable (‘‘Safety Requirements for Confined
rule limits State policy options in the amendments to their standards within 6 Spaces’’) contains provisions addressing
same manner as every standard months of the promulgation date of this safety in confined spaces. The Agency
promulgated by OSHA. In States with rule unless they demonstrate that such consulted this standard in developing
OSHA-approved State Plans, this amendments are not necessary because its proposed rule for confined spaces in
rulemaking does not significantly limit their existing standards are at least as construction, as well as in developing
State policy options. effective in protecting workers as this its general industry confined spaces
final rule. Each State Plan State’s standard. The Summary and
E. State-Plan States Explanation section of this rule
existing requirements will continue to
When Federal OSHA promulgates a be in effect until that State adopts the discusses OSHA’s consideration of the
new standard or more stringent required revisions. requirements contained in ANSI Z–
amendment to an existing standard, the 117.1 and other ANSI standards.

27 states and U.S. Territories with their F. Unfunded Mandates Reform Act The Agency did not adopt the ANSI
own OSHA-approved occupational OSHA reviewed this final rule standard as the OSHA confined spaces
safety and health plans must amend according to the Unfunded Mandates in construction standard for several
their standards to reflect the new Reform Act of 1995 (UMRA) (2 U.S.C. reasons. First, the Agency believes that
standard or amendment, or show OSHA 1501 et seq.) and E.O. 13132 (64 FR the ANSI standard concentrates on
why such action is unnecessary, for 43255 (Aug. 10, 1999)). As discussed in confined spaces with oxygen-deficient
atmospheres, or with potential authorized the preparation of this the enclosed space do not endanger the
overexposures to air contaminants, document. OSHA is issuing this final life of an entrant or interfere with an
without adequately addressing the full rule under the following authorities: 29 entrant’s escape from the space, this
range of hazards that can occur in a U.S.C. 653, 655, 657; 40 U.S.C. 3701 et section applies in lieu of the permit-
confined space. In this regard, OSHA seq.; 5 U.S.C. 553; Secretary of Labor’s space entry requirements contained in
concurs with the findings it published Order No. 1–2012 (77 FR 3912, Jan. 25, §§ 1926.1204 through 926.1211.
in the preamble to the general industry 2012); and 29 CFR part 1911. * * * * *
confined spaces standard (58 FR 4464). Signed at Washington, DC, on April 8,
After reviewing relevant publications by (g) Hazardous atmosphere. Employees
2015. may not enter any enclosed space while
the National Institute for Occupational David Michaels,
Safety and Health, the ANSI Z117.1 it contains a hazardous atmosphere,
Assistant Secretary of Labor for Occupational unless the entry conforms to the
standards (both the 1989 and the 1977 Safety and Health.
editions), and the relevant guidelines confined spaces in construction
developed by other organizations, the Amendments to Standards standard in subpart AA of this part.
Agency decided to diverge from the For the reasons stated in the preamble * * * * *
approach used by those standards- of this rule, the Agency is amending 29 Note to § 1926.953.: Entries into enclosed
development organizations because CFR part 1926 as follows: spaces conducted in accordance with the
their documents do not provide permit space entry requirements of subpart
sufficient guidance for employers to PART 1926—[AMENDED] AA of this part are considered as complying
distinguish among the several types of with this section.
confined space hazards they may Subpart C—General Safety and Health
encounter. Second, OSHA concludes Provisions ■ 5. Amend § 1926.968 by adding a note
that the structure and organization of to the definition for ‘‘Enclosed spaces’’
the ANSI standard is not sufficiently ■ 1. The authority citation for subpart C to read as follows:
user-friendly for small businesses, of 29 CFR part 1926 is revised to read
as follows: § 1926.968 Definitions.
especially those that rarely deal with
confined spaces. Third, OSHA finds that Authority: 40 U.S.C. 3701 et seq.; 29 U.S.C. * * * * *
the ANSI standard does not adequately 653, 655, 657; Secretary of Labor’s Order No. Enclosed space. * * *
address construction-specific hazards, 12–71 (36 FR 8754), 8–76 (41 FR 25059), 9–
Note to the definition of ‘‘Enclosed space’’.
particularly where multiple employers 83 (48 FR 35736), 6–96 (62 FR 111), 5–2007
(72 FR 31160), or 1–2012 (77 FR 3912) as The Occupational Safety and Health
are working in or around permit spaces. Administration does not consider spaces that
Fourth, OSHA notes that, in most applicable; and 29 CFR part 1911.
are enclosed but not designed for employee
instances, the wording of the provisions § 1926.21 [Amended] entry under normal operating conditions to
in these ANSI standards needed be enclosed spaces for the purposes of this
■ 2. In § 1926.21, paragraph (b)(6) is
revision to improve enforceability, subpart. Similarly, the Occupational Safety
removed.
clarity, and ease of use. For example, and Health Administration does not consider
much of the information in the spaces that are enclosed and that are
Subpart V—Electric Power
consensus standard is presented as expected to contain a hazardous atmosphere
Transmission and Distribution to be enclosed spaces for the purposes of this
suggestions or non-mandatory guidance
rather than enforceable imperative subpart. Such spaces meet the definition of
■ 3. The authority citation for subpart V permit spaces in subpart AA of this part, and
commands. Finally, most commenters of part 1926 continues to read as entry into them must conform to that
expressed a preference for a rule that follows: standard.
was similar to the general industry Authority: 40 U.S.C. 3701 et seq.; 29 U.S.C.
confined spaces standard. Agency 653, 655, 657; Secretary of Labor’s Order No. * * * * *
incorporation of consensus standards 1–2012 (77 FR 3912); and 29 CFR part 1911. ■ 6. Subpart AA is added to read as
can often facilitate rulemaking by
■ 4. Amend § 1926.953 by revising follows:
avoiding duplicative Agency efforts and
preventing potential confusion in the paragraphs (a) and (g) and the note at
Subpart AA—Confined Spaces in
affected industries, but the widespread the end of the section to read as follows:
Construction
use of OSHA’s general industry § 1926.953 Enclosed spaces.
confined spaces standard suggests that, Sec.
in this area, the Agency will be better (a) General. This section covers 1926.1200 [Reserved]
able to facilitate worker safety and enclosed spaces that may be entered by 1926.1201 Scope.
health by basing the new construction employees. It does not apply to vented 1926.1202 Definitions.
standard on the general industry vaults if the employer makes a 1926.1203 General requirements.
determination that the ventilation 1926.1204 Permit-required confined space
standard rather than incorporating the program.
ANSI standard. system is operating to protect employees
before they enter the space. This section 1926.1205 Permitting process.
List of Subjects in 29 CFR Part 1926 1926.1206 Entry permit.
applies to routine entry into enclosed
1926.1207 Training.
Confined space, Construction spaces. If, after the employer takes the 1926.1208 Duties of authorized entrants.
industry, Occupational safety and precautions given in this section and in 1926.1209 Duties of attendants.
health, Permit space, Safety. § 1926.965, the hazards remaining in the
1926.1210 Duties of entry supervisors.

enclosed space endanger the life of an 1926.1211 Rescue and emergency services.
Authority and Signature entrant or could interfere with an 1926.1212 Employee participation.
David Michaels, Ph.D., MPH, entrant’s escape from the space, then 1926.1213 Provision of documents to
Assistant Secretary of Labor for entry into the enclosed space must meet Secretary.
Occupational Safety and Health, U.S. the permit space entry requirements of Authority: 40 U.S.C. 3701 et seq.; 29 U.S.C.
Department of Labor, 200 Constitution subpart AA of this part. For routine 653, 655, 657; Secretary of Labor’s Order No.
Ave. NW., Washington, DC 20210, entries where the hazards remaining in 1–2012 (77 FR 3912); and 29 CFR part 1911.
§ 1926.1200 [Reserved] completely covers the bore and that is space. Entry includes ensuing work
capable of withstanding the maximum activities in that space and is considered
§ 1926.1201 Scope.
pressure of the pipe, line, or duct with to have occurred as soon as any part of
(a) This standard sets forth no leakage beyond the plate. the entrant’s body breaks the plane of an
requirements for practices and Competent person means one who is opening into the space, whether or not
procedures to protect employees capable of identifying existing and such action is intentional or any work
engaged in construction activities at a predictable hazards in the surroundings activities are actually performed in the
worksite with one or more confined or working conditions which are space.
spaces, subject to the exceptions in unsanitary, hazardous, or dangerous to Entry Employer means any employer
paragraph (b) of this section. employees, and who has the who decides that an employee it directs
Note to paragraph (a). Examples of authorization to take prompt corrective will enter a permit space.
locations where confined spaces may occur measures to eliminate them. Note to the definition of ‘‘Entry
include, but are not limited to, the following: Confined space means a space that: Employer’’. An employer cannot avoid the
Bins; boilers; pits (such as elevator, escalator, (1) Is large enough and so configured duties of the standard merely by refusing to
pump, valve or other equipment); manholes that an employee can bodily enter it; decide whether its employees will enter a
(such as sewer, storm drain, electrical, permit space, and OSHA will consider the
(2) Has limited or restricted means for
communication, or other utility); tanks (such failure to so decide to be an implicit decision
as fuel, chemical, water, or other liquid, solid entry and exit; and
to allow employees to enter those spaces if
or gas); incinerators; scrubbers; concrete pier (3) Is not designed for continuous they are working in the proximity of the
columns; sewers; transformer vaults; heating, employee occupancy. space.
ventilation, and air-conditioning (HVAC) Control means the action taken to
ducts; storm drains; water mains; precast reduce the level of any hazard inside a Entry permit (permit) means the
concrete and other pre-formed manhole confined space using engineering written or printed document that is
units; drilled shafts; enclosed beams; vessels; methods (for example, by ventilation), provided by the employer who
digesters; lift stations; cesspools; silos; air and then using these methods to designated the space a permit space to
receivers; sludge gates; air preheaters; step up
maintain the reduced hazard level. allow and control entry into a permit
transformers; turbines; chillers; bag houses; space and that contains the information
and/or mixers/reactors. Control also refers to the engineering
specified in § 1926.1206.
methods used for this purpose. Personal
(b) Exceptions. This standard does not Entry rescue occurs when a rescue
protective equipment is not a control. service enters a permit space to rescue
apply to: Controlling Contractor is the
(1) Construction work regulated by one or more employees.
employer that has overall responsibility Entry supervisor means the qualified
subpart P of this part (Excavations). for construction at the worksite.
(2) Construction work regulated by person (such as the employer, foreman,
subpart S of this part (Underground Note to the definition of ‘‘Controlling or crew chief) responsible for
Contractor’’. If the controlling contractor determining if acceptable entry
Construction, Caissons, Cofferdams and owns or manages the property, then it is both
Compressed Air). conditions are present at a permit space
a controlling employer and a host employer. where entry is planned, for authorizing
(3) Construction work regulated by
subpart Y of this part (Diving). Double block and bleed means the entry and overseeing entry operations,
(c) Where this standard applies and closure of a line, duct, or pipe by and for terminating entry as required by
there is a provision that addresses a closing and locking or tagging two in- this standard.
confined space hazard in another line valves and by opening and locking Note to the definition of ‘‘Entry
applicable OSHA standard, the or tagging a drain or vent valve in the supervisor’’. An entry supervisor also may
employer must comply with both that line between the two closed valves. serve as an attendant or as an authorized
Early-warning system means the entrant, as long as that person is trained and
requirement and the applicable equipped as required by this standard for
provisions of this standard. method used to alert authorized entrants
and attendants that an engulfment each role he or she fills. Also, the duties of
entry supervisor may be passed from one
§ 1926.1202 Definitions. hazard may be developing. Examples of individual to another during the course of an
The following terms are defined for early-warning systems include, but are entry operation.
the purposes of this subpart only: not limited to: Alarms activated by
remote sensors; and lookouts with Hazard means a physical hazard or
Acceptable entry conditions means
equipment for immediately hazardous atmosphere. See definitions
the conditions that must exist in a
below.
permit space, before an employee may communicating with the authorized
Hazardous atmosphere means an
enter that space, to ensure that entrants and attendants.
atmosphere that may expose employees
employees can safely enter into, and Emergency means any occurrence
to the risk of death, incapacitation,
safely work within, the space. (including any failure of power, hazard
impairment of ability to self-rescue (that
Attendant means an individual control or monitoring equipment) or
is, escape unaided from a permit space),
stationed outside one or more permit event, internal or external, to the permit
injury, or acute illness from one or more
spaces who assesses the status of space that could endanger entrants.
of the following causes:
authorized entrants and who must Engulfment means the surrounding (1) Flammable gas, vapor, or mist in
perform the duties specified in and effective capture of a person by a excess of 10 percent of its lower
§ 1926.1209. liquid or finely divided (flowable) solid flammable limit (LFL);
Authorized entrant means an substance that can be aspirated to cause (2) Airborne combustible dust at a
employee who is authorized by the death by filling or plugging the
concentration that meets or exceeds its

entry supervisor to enter a permit space. respiratory system or that can exert LFL;
Barrier means a physical obstruction enough force on the body to cause death
Note to paragraph (2) of the definition of
that blocks or limits access. by strangulation, constriction, crushing,
‘‘Hazardous atmosphere’’. This
Blanking or blinding means the or suffocation. concentration may be approximated as a
absolute closure of a pipe, line, or duct Entry means the action by which any condition in which the combustible dust
by the fastening of a solid plate (such as part of a person passes through an obscures vision at a distance of 5 feet (1.52
a spectacle blind or a skillet blind) that opening into a permit-required confined meters) or less.
(3) Atmospheric oxygen concentration victim ‘‘feels normal’’ after recovery from of a confined space but does not meet
below 19.5 percent or above 23.5 transient effects until collapse. Such the requirements for a permit-required
percent; materials in hazardous quantities are confined space, as defined in this
(4) Atmospheric concentration of any considered to be ‘‘immediately’’ dangerous to
life or health.
subpart.
substance for which a dose or a Oxygen deficient atmosphere means
permissible exposure limit is published Inerting means displacing the an atmosphere containing less than 19.5
in subpart D of this part (Occupational atmosphere in a permit space by a percent oxygen by volume.
Health and Environmental Control), or noncombustible gas (such as nitrogen) Oxygen enriched atmosphere means
in subpart Z of this part (Toxic and to such an extent that the resulting an atmosphere containing more than
Hazardous Substances), and which atmosphere is noncombustible. 23.5 percent oxygen by volume.
could result in employee exposure in Note to the definition of ‘‘Intering’’. This Permit-required confined space
excess of its dose or permissible procedure produces an IDLH oxygen- (permit space) means a confined space
exposure limit; deficient atmosphere. that has one or more of the following
Note to paragraph (4) of the definition of Isolate or isolation means the process characteristics:
‘‘Hazardous atmosphere’’. An atmospheric by which employees in a confined space (1) Contains or has a potential to
concentration of any substance that is not are completely protected against the contain a hazardous atmosphere;
capable of causing death, incapacitation, release of energy and material into the (2) Contains a material that has the
impairment of ability to self-rescue, injury, or space, and contact with a physical potential for engulfing an entrant;
acute illness due to its health effects is not hazard, by such means as: Blanking or (3) Has an internal configuration such
covered by this definition.
blinding; misaligning or removing that an entrant could be trapped or
(5) Any other atmospheric condition sections of lines, pipes, or ducts; a asphyxiated by inwardly converging
that is immediately dangerous to life or double block and bleed system; lockout walls or by a floor which slopes
health. or tagout of all sources of energy; downward and tapers to a smaller cross-
blocking or disconnecting all section; or
Note to paragraph (5) of the definition of (4) Contains any other recognized
‘‘Hazardous atmosphere’’. For air mechanical linkages; or placement of
contaminants for which OSHA has not barriers to eliminate the potential for serious safety or health hazard.
determined a dose or permissible exposure Permit-required confined space
employee contact with a physical
limit, other sources of information, such as program (permit space program) means
hazard.
Safety Data Sheets that comply with the Limited or restricted means for entry the employer’s overall program for
Hazard Communication Standard, § 1926.59, or exit means a condition that has a controlling, and, where appropriate, for
published information, and internal
potential to impede an employee’s protecting employees from, permit
documents can provide guidance in space hazards and for regulating
establishing acceptable atmospheric movement into or out of a confined
space. Such conditions include, but are employee entry into permit spaces.
conditions. Physical hazard means an existing or
not limited to, trip hazards, poor
Host employer means the employer illumination, slippery floors, inclining potential hazard that can cause death or
that owns or manages the property surfaces and ladders. serious physical damage. Examples
where the construction work is taking Line breaking means the intentional include, but are not limited to:
place. opening of a pipe, line, or duct that is Explosives (as defined by paragraph (n)
Note to the definition of ‘‘Host employer’’. or has been carrying flammable, of § 1926.914, definition of
If the owner of the property on which the corrosive, or toxic material, an inert gas, ‘‘explosive’’); mechanical, electrical,
construction activity occurs has contracted or any fluid at a volume, pressure, or hydraulic and pneumatic energy;
with an entity for the general management of temperature capable of causing injury. radiation; temperature extremes;
that property, and has transferred to that Lockout means the placement of a engulfment; noise; and inwardly
entity the information specified in converging surfaces. Physical hazard
lockout device on an energy isolating
§ 1926.1203(h)(1), OSHA will treat the also includes chemicals that can cause
contracted management entity as the host device, in accordance with an
employer for as long as that entity manages established procedure, ensuring that the death or serious physical damage
the property. Otherwise, OSHA will treat the energy isolating device and the through skin or eye contact (rather than
owner of the property as the host employer. equipment being controlled cannot be through inhalation).
In no case will there be more than one host operated until the lockout device is Prohibited condition means any
employer. removed. condition in a permit space that is not
Hot work means operations capable of Lower flammable limit or lower allowed by the permit during the period
providing a source of ignition (for explosive limit means the minimum when entry is authorized. A hazardous
example, riveting, welding, cutting, concentration of a substance in air atmosphere is a prohibited condition
burning, and heating). needed for an ignition source to cause unless the employer can demonstrate
Immediately dangerous to life or a flame or explosion. that personal protective equipment
health (IDLH) means any condition that Monitor or monitoring means the (PPE) will provide effective protection
would interfere with an individual’s process used to identify and evaluate for each employee in the permit space
ability to escape unaided from a permit the hazards after an authorized entrant and provides the appropriate PPE to
space and that poses a threat to life or enters the space. This is a process of each employee.
that would cause irreversible adverse checking for changes that is performed Qualified person means one who, by
health effects. in a periodic or continuous manner after possession of a recognized degree,
the completion of the initial testing or certificate, or professional standing, or
Note to the definition of ‘‘Immediately who by extensive knowledge, training,

dangerous to life or health’’. Some
evaluation of that space.
Non-entry rescue occurs when a and experience, has successfully
materials—hydrogen fluoride gas and
cadmium vapor, for example—may produce rescue service, usually the attendant, demonstrated his ability to solve or
immediate transient effects that, even if retrieves employees in a permit space resolve problems relating to the subject
severe, may pass without medical attention, without entering the permit space. matter, the work, or the project.
but are followed by sudden, possibly fatal Non-permit confined space means a Representative permit space means a
collapse 12–72 hours after exposure. The confined space that meets the definition mock-up of a confined space that has
entrance openings that are similar to, employees it directs may work, and (iii) The employer develops
and is of similar size, configuration, and identifies each space that is a permit monitoring and inspection data that
accessibility to, the permit space that space, through consideration and supports the demonstrations required by
authorized entrants enter. evaluation of the elements of that space, paragraphs (e)(1)(i) and (ii) of this
Rescue means retrieving, and including testing as necessary. section;
providing medical assistance to, one or (b) If the workplace contains one or (iv) If an initial entry of the permit
more employees who are in a permit more permit spaces, the employer who space is necessary to obtain the data
space. identifies, or who receives notice of, a required by paragraph (e)(1)(iii) of this
Rescue service means the personnel permit space must: section, the entry is performed in
designated to rescue employees from (1) Inform exposed employees by compliance with §§ 1926.1204 through
permit spaces. posting danger signs or by any other 1926.1211;
Retrieval system means the equipment equally effective means, of the existence (v) The determinations and
(including a retrieval line, chest or full and location of, and the danger posed supporting data required by paragraphs
body harness, wristlets or anklets, if by, each permit space; and (e)(1)(i), (ii), and (iii) of this section are
appropriate, and a lifting device or Note to paragraph (b)(1). A sign reading documented by the employer and are
anchor) used for non-entry rescue of ‘‘DANGER—PERMIT-REQUIRED CONFINED made available to each employee who
persons from permit spaces. SPACE, DO NOT ENTER’’ or using other enters the permit space under the terms
Serious physical damage means an similar language would satisfy the of paragraph (e) of this section or to that
impairment or illness in which a body requirement for a sign.
employee’s authorized representative;
part is made functionally useless or is (2) Inform, in a timely manner and in and
substantially reduced in efficiency. a manner other than posting, its (vi) Entry into the permit space under
Such impairment or illness may be employees’ authorized representatives the terms of paragraph (e)(1) of this
permanent or temporary and includes, and the controlling contractor of the section is performed in accordance with
but is not limited to, loss of existence and location of, and the the requirements of paragraph (e)(2) of
consciousness, disorientation, or other danger posed by, each permit space. this section.
immediate and substantial reduction in (c) Each employer who identifies, or
Note to paragraph (e)(1). See paragraph (g)
mental efficiency. Injuries involving receives notice of, a permit space and of this section for reclassification of a permit
such impairment would usually require has not authorized employees it directs space after all hazards within the space have
treatment by a physician or other to work in that space must take effective been eliminated.
licensed health-care professional. measures to prevent those employees
Tagout means: from entering that permit space, in (2) The following requirements apply
(1) Placement of a tagout device on a addition to complying with all other to entry into permit spaces that meet the
circuit or equipment that has been applicable requirements of this conditions set forth in paragraph (e)(1)
deenergized, in accordance with an standard. of this section:
established procedure, to indicate that (d) If any employer decides that (i) Any conditions making it unsafe to
the circuit or equipment being employees it directs will enter a permit remove an entrance cover must be
controlled may not be operated until the space, that employer must have a eliminated before the cover is removed.
tagout device is removed; and written permit space program that (ii) When entrance covers are
(2) The employer ensures that: complies with § 1926.1204 implemented removed, the opening must be
(i) Tagout provides equivalent at the construction site. The written immediately guarded by a railing,
protection to lockout; or program must be made available prior to temporary cover, or other temporary
(ii) That lockout is infeasible and the and during entry operations for barrier that will prevent an accidental
employer has relieved, disconnected, inspection by employees and their fall through the opening and that will
restrained and otherwise rendered safe authorized representatives. protect each employee working in the
stored (residual) energy. (e) An employer may use the alternate space from foreign objects entering the
Test or testing means the process by procedures specified in paragraph (e)(2) space.
which the hazards that may confront of this section for entering a permit (iii) Before an employee enters the
entrants of a permit space are identified space only under the conditions set space, the internal atmosphere must be
and evaluated. Testing includes forth in paragraph (e)(1) of this section. tested, with a calibrated direct-reading
specifying the tests that are to be (1) An employer whose employees instrument, for oxygen content, for
performed in the permit space. enter a permit space need not comply flammable gases and vapors, and for
Note to the definition of ‘‘Test or testing’’. with §§ 1926.1204 through 1206 and potential toxic air contaminants, in that
Testing enables employers both to devise and §§ 1926.1208 through 1211, provided order. Any employee who enters the
implement adequate control measures for the that all of the following conditions are space, or that employee’s authorized
protection of authorized entrants and to met: representative, must be provided an
determine if acceptable entry conditions are (i) The employer can demonstrate that opportunity to observe the pre-entry
present immediately prior to, and during, all physical hazards in the space are testing required by this paragraph.
entry. eliminated or isolated through (iv) No hazardous atmosphere is
Ventilate or ventilation means engineering controls so that the only permitted within the space whenever
controlling a hazardous atmosphere hazard posed by the permit space is an any employee is inside the space.
using continuous forced-air mechanical actual or potential hazardous (v) Continuous forced air ventilation
atmosphere; must be used, as follows:
systems that meet the requirements of

§ 1926.57 (Ventilation). (ii) The employer can demonstrate (A) An employee must not enter the
that continuous forced air ventilation space until the forced air ventilation has
§ 1926.1203 General requirements. alone is sufficient to maintain that eliminated any hazardous atmosphere;
(a) Before it begins work at a worksite, permit space safe for entry, and that, in (B) The forced air ventilation must be
each employer must ensure that a the event the ventilation system stops so directed as to ventilate the immediate
competent person identifies all confined working, entrants can exit the space areas where an employee is or will be
spaces in which one or more of the safely; present within the space and must
continue until all employees have left reevaluate that space and, if necessary, (i) The location of each known permit
the space; reclassify it as a permit-required space;
(C) The air supply for the forced air confined space. (ii) The hazards or potential hazards
ventilation must be from a clean source (g) A space classified by an employer in each space or the reason it is a permit
and must not increase the hazards in the as a permit-required confined space may space; and
space. only be reclassified as a non-permit (iii) Any precautions that the host
(vi) The atmosphere within the space confined space when a competent employer or any previous controlling
must be continuously monitored unless person determines that all of the contractor or entry employer
the entry employer can demonstrate that applicable requirements in paragraphs implemented for the protection of
equipment for continuous monitoring is (g)(1) through (4) of this section have employees in the permit space.
not commercially available or periodic been met: (2) Before entry operations begin, the
monitoring is sufficient. If continuous (1) If the permit space poses no actual controlling contractor must:
monitoring is used, the employer must or potential atmospheric hazards and if (i) Obtain the host employer’s
ensure that the monitoring equipment all hazards within the space are information about the permit space
has an alarm that will notify all entrants eliminated or isolated without entry hazards and previous entry operations;
if a specified atmospheric threshold is into the space (unless the employer can and
achieved, or that an employee will demonstrate that doing so without entry (ii) Provide the following information
check the monitor with sufficient is infeasible), the permit space may be to each entity entering a permit space
frequency to ensure that entrants have reclassified as a non-permit confined and any other entity at the worksite
adequate time to escape. If continuous space for as long as the non-atmospheric whose activities could foreseeably result
monitoring is not used, periodic hazards remain eliminated or isolated; in a hazard in the permit space:
monitoring is required. All monitoring (2) The entry employer must (A) The information received from the
must ensure that the continuous forced eliminate or isolate the hazards without host employer;
air ventilation is preventing the entering the space, unless it can (B) Any additional information the
accumulation of a hazardous demonstrate that this is infeasible. If it controlling contractor has about the
atmosphere. Any employee who enters is necessary to enter the permit space to subjects listed in paragraph (h)(1) of this
the space, or that employee’s authorized eliminate or isolate hazards, such entry section; and
representative, must be provided with must be performed under §§ 1926.1204 (C) The precautions that the host
an opportunity to observe the testing through 1926.1211. If testing and employer, controlling contractor, or
required by this paragraph (e)(2)(vi). inspection during that entry other entry employers implemented for
(vii) If a hazard is detected during demonstrate that the hazards within the the protection of employees in the
entry: permit space have been eliminated or permit spaces.
(A) Each employee must leave the isolated, the permit space may be (3) Before entry operations begin, each
space immediately; reclassified as a non-permit confined entry employer must:
(B) The space must be evaluated to space for as long as the hazards remain (i) Obtain all of the controlling
determine how the hazard developed; eliminated or isolated; contractor’s information regarding
and Note to paragraph (g)(2). Control of permit space hazards and entry
(C) The employer must implement atmospheric hazards through forced air operations; and
measures to protect employees from the ventilation does not constitute elimination or (ii) Inform the controlling contractor
hazard before any subsequent entry isolation of the hazards. Paragraph (e) of this of the permit space program that the
takes place. section covers permit space entry where the entry employer will follow, including
(viii) The employer must ensure a safe employer can demonstrate that forced air any hazards likely to be confronted or
method of entering and exiting the ventilation alone will control all hazards in created in each permit space.
space. If a hoisting system is used, it the space. (4) The controlling contractor and
must be designed and manufactured for (3) The entry employer must entry employer(s) must coordinate entry
personnel hoisting; however, a job-made document the basis for determining that operations when:
hoisting system is permissible if it is all hazards in a permit space have been (i) More than one entity performs
approved for personnel hoisting by a eliminated or isolated, through a permit space entry at the same time; or
registered professional engineer, in certification that contains the date, the (ii) Permit space entry is performed at
writing, prior to use. location of the space, and the signature the same time that any activities that
(ix) The employer must verify that the of the person making the determination. could foreseeably result in a hazard in
space is safe for entry and that the pre- The certification must be made available the permit space are performed.
entry measures required by paragraph to each employee entering the space or (5) After entry operations:
(e)(2) of this section have been taken, to that employee’s authorized (i) The controlling contractor must
through a written certification that representative; and debrief each entity that entered a permit
contains the date, the location of the (4) If hazards arise within a permit space regarding the permit space
space, and the signature of the person space that has been reclassified as a program followed and any hazards
providing the certification. The non-permit space under paragraph (g) of confronted or created in the permit
certification must be made before entry this section, each employee in the space space(s) during entry operations;
and must be made available to each must exit the space. The entry employer (ii) The entry employer must inform
employee entering the space or to that must then reevaluate the space and the controlling contractor in a timely
employee’s authorized representative. reclassify it as a permit space as manner of the permit space program
(f) When there are changes in the use appropriate in accordance with all other followed and of any hazards confronted
or configuration of a non-permit applicable provisions of this standard. or created in the permit space(s) during
confined space that might increase the (h) Permit space entry communication entry operations; and
hazards to entrants, or some indication and coordination. (1) Before entry (iii) The controlling contractor must
that the initial evaluation of the space operations begin, the host employer apprise the host employer of the
may not have been adequate, each entry must provide the following information, information exchanged with the entry
employer must have a competent person if it has it, to the controlling contractor: entities pursuant to this subparagraph.
Note to paragraph (h). Unless a host effective protection for each employee because the space is large or is part of
employer or controlling contractor has or will in the permit space and provides the a continuous system (such as a sewer),
have employees in a confined space, it is not appropriate PPE to each employee; and the employer must:
required to enter any confined space to (8) Eliminating any conditions (for (i) Perform pre-entry testing to the
collect the information specified in this
example, high pressure) that could make extent feasible before entry is
paragraph (h).
it unsafe to remove an entrance cover. authorized; and,
(i) If there is no controlling contractor (d) Provide the following equipment (ii) If entry is authorized,
present at the worksite, the (specified in paragraphs (d)(1) through continuously monitor entry conditions
requirements for, and role of, (9) of this section) at no cost to each in the areas where authorized entrants
controlling contactors in this section employee, maintain that equipment are working, except that employers may
must be fulfilled by the host employer properly, and ensure that each use periodic monitoring in accordance
or other employer who arranges to have employee uses that equipment properly: with paragraph (e)(2) of this section for
employees of another employer perform (1) Testing and monitoring equipment monitoring an atmospheric hazard if
work that involves permit space entry. needed to comply with paragraph (e) of they can demonstrate that equipment for
this section; continuously monitoring that hazard is
§ 1926.1204 Permit-required confined (2) Ventilating equipment needed to
space program. not commercially available;
obtain acceptable entry conditions; (iii) Provide an early-warning system
Each entry employer must: (3) Communications equipment
(a) Implement the measures necessary that continuously monitors for non-
necessary for compliance with isolated engulfment hazards. The
to prevent unauthorized entry; §§ 1926.1208(c) and 1926.1209(e),
(b) Identify and evaluate the hazards system must alert authorized entrants
including any necessary electronic and attendants in sufficient time for the
of permit spaces before employees enter communication equipment for
them; authorized entrants to safely exit the
attendants assessing entrants’ status in space.
(c) Develop and implement the multiple spaces;
means, procedures, and practices (2) Continuously monitor atmospheric
(4) Personal protective equipment
necessary for safe permit space entry hazards unless the employer can
insofar as feasible engineering and
operations, including, but not limited demonstrate that the equipment for
work-practice controls do not
to, the following: continuously monitoring a hazard is not
adequately protect employees;
(1) Specifying acceptable entry commercially available or that periodic
Note to paragraph (d)(4). The requirements monitoring is of sufficient frequency to
conditions; of subpart E of this part and other PPE
(2) Providing each authorized entrant ensure that the atmospheric hazard is
requirements continue to apply to the use of being controlled at safe levels. If
or that employee’s authorized PPE in a permit space. For example, if
representative with the opportunity to employees use respirators, then the respirator
continuous monitoring is not used,
observe any monitoring or testing of requirements in § 1926.103 (Respiratory periodic monitoring is required with
permit spaces; protection) must be met. sufficient frequency to ensure that
(3) Isolating the permit space and acceptable entry conditions are being
(5) Lighting equipment that meets the
physical hazard(s) within the space; maintained during the course of entry
minimum illumination requirements in
(4) Purging, inerting, flushing, or operations;
§ 1926.56, that is approved for the
ventilating the permit space as (3) When testing for atmospheric
ignitable or combustible properties of
necessary to eliminate or control hazards, test first for oxygen, then for
the specific gas, vapor, dust, or fiber that
atmospheric hazards; combustible gases and vapors, and then
will be present, and that is sufficient to
for toxic gases and vapors;
Note to paragraph (c)(4). When an enable employees to see well enough to
(4) Provide each authorized entrant or
employer is unable to reduce the atmosphere work safely and to exit the space
below 10 percent LFL, the employer may
that employee’s authorized
quickly in an emergency;
only enter if the employer inerts the space so (6) Barriers and shields as required by representative an opportunity to observe
as to render the entire atmosphere in the paragraph (c)(4) of this section; the pre-entry and any subsequent testing
space non-combustible, and the employees (7) Equipment, such as ladders, or monitoring of permit spaces;
use PPE to address any other atmospheric needed for safe ingress and egress by (5) Reevaluate the permit space in the
hazards (such as oxygen deficiency), and the presence of any authorized entrant or
employer eliminates or isolates all physical
authorized entrants;
(8) Rescue and emergency equipment that employee’s authorized
hazards in the space. representative who requests that the
needed to comply with paragraph (i) of
(5) Determining that, in the event the this section, except to the extent that the employer conduct such reevaluation
ventilation system stops working, the equipment is provided by rescue because there is some indication that
monitoring procedures will detect an services; and the evaluation of that space may not
increase in atmospheric hazard levels in (9) Any other equipment necessary for have been adequate; and
sufficient time for the entrants to safely safe entry into, safe exit from, and (6) Immediately provide each
exit the permit space; rescue from, permit spaces. authorized entrant or that employee’s
(6) Providing pedestrian, vehicle, or (e) Evaluate permit space conditions authorized representative with the
other barriers as necessary to protect in accordance with the following results of any testing conducted in
entrants from external hazards; paragraphs (e)(1) through (6) of this accordance with this section.
(7) Verifying that conditions in the section when entry operations are (f) Provide at least one attendant
permit space are acceptable for entry conducted: outside the permit space into which
throughout the duration of an (1) Test conditions in the permit entry is authorized for the duration of
authorized entry, and ensuring that space to determine if acceptable entry entry operations:
employees are not allowed to enter into, conditions exist before changes to the (1) Attendants may be assigned to
or remain in, a permit space with a space’s natural ventilation are made, more than one permit space provided
hazardous atmosphere unless the and before entry is authorized to begin, the duties described in § 1926.1209 can
employer can demonstrate that personal except that, if an employer demonstrates be effectively performed for each permit
protective equipment (PPE) will provide that isolation of the space is infeasible space.
(2) Attendants may be stationed at any permit space program include, but are not required by § 1926.1204(n). Any
location outside the permit space as limited to: Any unauthorized entry of a problems encountered during an entry
long as the duties described in permit space, the detection of a permit space operation must be noted on the
§ 1926.1209 can be effectively hazard not covered by the permit, the pertinent permit so that appropriate
detection of a condition prohibited by the
performed for each permit space to permit, the occurrence of an injury or near-
revisions to the permit space program
which the attendant is assigned. miss during entry, a change in the use or can be made.
(g) If multiple spaces are to be configuration of a permit space, and
assigned to a single attendant, include § 1926.1206 Entry permit.
employee complaints about the effectiveness
in the permit program the means and of the program. The entry permit that documents
procedures to enable the attendant to compliance with this section and
(n) Review the permit space program, authorizes entry to a permit space must
respond to an emergency affecting one using the canceled permits retained
or more of those permit spaces without identify:
under § 1926.1205(f), within 1 year after (a) The permit space to be entered;
distraction from the attendant’s each entry and revise the program as
responsibilities under § 1926.1209; (b) The purpose of the entry;
necessary to ensure that employees (c) The date and the authorized
(h) Designate each person who is to participating in entry operations are
have an active role (as, for example, duration of the entry permit;
protected from permit space hazards. (d) The authorized entrants within the
authorized entrants, attendants, entry
supervisors, or persons who test or Note to paragraph (n). Employers may permit space, by name or by such other
perform a single annual review covering all means (for example, through the use of
monitor the atmosphere in a permit
entries performed during a 12-month period. rosters or tracking systems) as will
space) in entry operations, identify the If no entry is performed during a 12-month
duties of each such employee, and enable the attendant to determine
period, no review is necessary.
provide each such employee with the quickly and accurately, for the duration
training required by § 1926.1207; of the permit, which authorized entrants
§ 1926.1205 Permitting process.
(i) Develop and implement are inside the permit space;
(a) Before entry is authorized, each
procedures for summoning rescue and entry employer must document the Note to paragraph (d). This requirement
emergency services (including completion of measures required by
may be met by inserting a reference on the
procedures for summoning emergency entry permit as to the means used, such as
§ 1926.1204(c) by preparing an entry a roster or tracking system, to keep track of
assistance in the event of a failed non- permit.
entry rescue), for rescuing entrants from the authorized entrants within the permit
(b) Before entry begins, the entry space.
permit spaces, for providing necessary supervisor identified on the permit must
emergency services to rescued (e) Means of detecting an increase in
sign the entry permit to authorize entry.
employees, and for preventing (c) The completed permit must be atmospheric hazard levels in the event
unauthorized personnel from attempting made available at the time of entry to all the ventilation system stops working;
a rescue; authorized entrants or their authorized (f) Each person, by name, currently
(j) Develop and implement a system representatives, by posting it at the serving as an attendant;
for the preparation, issuance, use, and (g) The individual, by name, currently
entry portal or by any other equally
cancellation of entry permits as required serving as entry supervisor, and the
effective means, so that the entrants can
by this standard, including the safe signature or initials of each entry
confirm that pre-entry preparations have
termination of entry operations under supervisor who authorizes entry;
been completed.
both planned and emergency (d) The duration of the permit may (h) The hazards of the permit space to
conditions; not exceed the time required to be entered;
(k) Develop and implement complete the assigned task or job (i) The measures used to isolate the
procedures to coordinate entry identified on the permit in accordance permit space and to eliminate or control
operations, in consultation with the with § 1926.1206(b). permit space hazards before entry;
controlling contractor, when employees (e) The entry supervisor must Note to paragraph (i). Those measures can
of more than one employer are working terminate entry and take the following include, but are not limited to, the lockout
simultaneously in a permit space or action when any of the following apply: or tagging of equipment and procedures for
elsewhere on the worksite where their (1) Cancel the entry permit when the purging, inerting, ventilating, and flushing
activities could, either alone or in permit spaces.
entry operations covered by the entry
conjunction with the activities within a permit have been completed; or (j) The acceptable entry conditions;
permit space, foreseeably result in a (2) Suspend or cancel the entry permit (k) The results of tests and monitoring
hazard within the confined space, so and fully reassess the space before performed under § 1926.1204(e),
that employees of one employer do not allowing reentry when a condition that accompanied by the names or initials of
endanger the employees of any other is not allowed under the entry permit the testers and by an indication of when
employer; arises in or near the permit space and the tests were performed;
(l) Develop and implement that condition is temporary in nature (l) The rescue and emergency services
procedures (such as closing off a permit and does not change the configuration that can be summoned and the means
space and canceling the permit) of the space or create any new hazards (such as the equipment to use and the
necessary for concluding the entry after within it; and numbers to call) for summoning those
entry operations have been completed; (3) Cancel the entry permit when a services;
(m) Review entry operations when the condition that is not allowed under the (m) The communication procedures
measures taken under the permit space entry permit arises in or near the permit used by authorized entrants and
program may not protect employees and space and that condition is not covered attendants to maintain contact during
revise the program to correct by paragraph (e)(2) of this section. the entry;
deficiencies found to exist before (f) The entry employer must retain (n) Equipment, such as personal
subsequent entries are authorized; and each canceled entry permit for at least protective equipment, testing
Note to paragraph (m). Examples of 1 year to facilitate the review of the equipment, communications equipment,
circumstances requiring the review of the permit-required confined space program alarm systems, and rescue equipment, to
be provided for compliance with this (a) Are familiar with and understand permit space immediately under any of
standard; the hazards that may be faced during the following conditions:
(o) Any other information necessary, entry, including information on the (1) If there is a prohibited condition;
given the circumstances of the mode, signs or symptoms, and (2) If the behavioral effects of hazard
particular confined space, to ensure consequences of the exposure; exposure are apparent in an authorized
employee safety; and (b) Properly use equipment as entrant;
(p) Any additional permits, such as required by § 1926.1204(d); (3) If there is a situation outside the
for hot work, that have been issued to (c) Communicate with the attendant space that could endanger the
authorize work in the permit space. as necessary to enable the attendant to authorized entrants; or
assess entrant status and to enable the (4) If the attendant cannot effectively
§ 1926.1207 Training. attendant to alert entrants of the need to and safely perform all the duties
(a) The employer must provide evacuate the space as required by required under this section;
training to each employee whose work § 1926.1209(f); (g) Summons rescue and other
is regulated by this standard, at no cost (d) Alert the attendant whenever: emergency services as soon as the
to the employee, and ensure that the (1) There is any warning sign or attendant determines that authorized
employee possesses the understanding, symptom of exposure to a dangerous entrants may need assistance to escape
knowledge, and skills necessary for the situation; or from permit space hazards;
safe performance of the duties assigned (2) The entrant detects a prohibited (h) Takes the following actions when
under this standard. This training must condition; and unauthorized persons approach or enter
result in an understanding of the (e) Exit from the permit space as a permit space while entry is underway:
hazards in the permit space and the quickly as possible whenever: (1) Warns the unauthorized persons
methods used to isolate, control or in (1) An order to evacuate is given by that they must stay away from the
other ways protect employees from the attendant or the entry supervisor; permit space;
these hazards, and for those employees (2) There is any warning sign or (2) Advises the unauthorized persons
not authorized to perform entry rescues, symptom of exposure to a dangerous that they must exit immediately if they
in the dangers of attempting such situation; have entered the permit space; and
rescues. (3) The entrant detects a prohibited (3) Informs the authorized entrants
(b) Training required by this section condition; or and the entry supervisor if unauthorized
must be provided to each affected (4) An evacuation alarm is activated. persons have entered the permit space;
employee: (i) Performs non-entry rescues as
(1) In both a language and vocabulary § 1926.1209 Duties of attendants.
specified by the employer’s rescue
that the employee can understand; The entry employer must ensure that procedure; and
(2) Before the employee is first each attendant: (j) Performs no duties that might
assigned duties under this standard; (a) Is familiar with and understands interfere with the attendant’s primary
(3) Before there is a change in the hazards that may be faced during duty to assess and protect the
assigned duties; entry, including information on the authorized entrants.
(4) Whenever there is a change in mode, signs or symptoms, and
permit space entry operations that consequences of the exposure; § 1926.1210 Duties of entry supervisors.
presents a hazard about which an (b) Is aware of possible behavioral The entry employer must ensure that
employee has not previously been effects of hazard exposure in authorized each entry supervisor:
trained; and entrants; (a) Is familiar with and understands
(5) Whenever there is any evidence of (c) Continuously maintains an the hazards that may be faced during
a deviation from the permit space entry accurate count of authorized entrants in entry, including information on the
procedures required by § 1926.1204(c) the permit space and ensures that the mode, signs or symptoms, and
or there are inadequacies in the means used to identify authorized consequences of the exposure;
employee’s knowledge or use of these entrants under § 1926.1206(d) (b) Verifies, by checking that the
procedures. accurately identifies who is in the appropriate entries have been made on
(c) The training must establish permit space; the permit, that all tests specified by the
employee proficiency in the duties (d) Remains outside the permit space permit have been conducted and that all
required by this standard and must during entry operations until relieved procedures and equipment specified by
introduce new or revised procedures, as by another attendant; the permit are in place before endorsing
necessary, for compliance with this Note to paragraph (d). Once an attendant the permit and allowing entry to begin;
standard. has been relieved by another attendant, the (c) Terminates the entry and cancels
(d) The employer must maintain relieved attendant may enter a permit space or suspends the permit as required by
training records to show that the to attempt a rescue when the employer’s § 1926.1205(e);
training required by paragraphs (a) permit space program allows attendant entry (d) Verifies that rescue services are
through (c) of this section has been for rescue and the attendant has been trained available and that the means for
and equipped for rescue operations as summoning them are operable, and that
accomplished. The training records required by § 1926.1211(a).
must contain each employee’s name, the the employer will be notified as soon as
name of the trainers, and the dates of (e) Communicates with authorized the services become unavailable;
training. The documentation must be entrants as necessary to assess entrant (e) Removes unauthorized individuals
status and to alert entrants of the need who enter or who attempt to enter the
available for inspection by employees

and their authorized representatives, for to evacuate the space under permit space during entry operations;
the period of time the employee is § 1926.1208(e); and
employed by that employer. (f) Assesses activities and conditions (f) Determines, whenever
inside and outside the space to responsibility for a permit space entry
§ 1926.1208 Duties of authorized entrants. determine if it is safe for entrants to operation is transferred, and at intervals
The entry employer must ensure that remain in the space and orders the dictated by the hazards and operations
all authorized entrants: authorized entrants to evacuate the performed within the space, that entry
operations remain consistent with terms employee so the employee is proficient successful removal of the entrant.
of the entry permit and that acceptable in the use of that PPE; Wristlets or anklets may be used in lieu
entry conditions are maintained. (2) Train each affected employee to of the chest or full body harness if the
perform assigned rescue duties. The employer can demonstrate that the use
§ 1926.1211 Rescue and emergency employer must ensure that such of a chest or full body harness is
services. employees successfully complete the infeasible or creates a greater hazard and
(a) An employer who designates training required and establish that the use of wristlets or anklets is the
rescue and emergency services, proficiency as authorized entrants, as safest and most effective alternative.
pursuant to § 1926.1204(i), must: provided by §§ 1926.1207 and
(1) Evaluate a prospective rescuer’s (2) The other end of the retrieval line
1926.1208; must be attached to a mechanical device
ability to respond to a rescue summons (3) Train each affected employee in
in a timely manner, considering the or fixed point outside the permit space
basic first aid and cardiopulmonary
hazard(s) identified; in such a manner that rescue can begin
resuscitation (CPR). The employer must
as soon as the rescuer becomes aware
Note to paragraph (a)(1). What will be ensure that at least one member of the
that rescue is necessary. A mechanical
considered timely will vary according to the rescue team or service holding a current
device must be available to retrieve
specific hazards involved in each entry. For certification in basic first aid and CPR
example, § 1926.103 (Respiratory protection) personnel from vertical type permit
is available; and
requires that employers provide a standby (4) Ensure that affected employees spaces more than 5 feet (1.52 meters)
person or persons capable of immediate practice making permit space rescues deep.
action to rescue employee(s) wearing before attempting an actual rescue, and (3) Equipment that is unsuitable for
respiratory protection while in work areas at least once every 12 months, by means retrieval must not be used, including,
defined as IDLH atmospheres. but not limited to, retrieval lines that
of simulated rescue operations in which
(2) Evaluate a prospective rescue they remove dummies, manikins, or have a reasonable probability of
service’s ability, in terms of proficiency actual persons from the actual permit becoming entangled with the retrieval
with rescue-related tasks and spaces or from representative permit lines used by other authorized entrants,
equipment, to function appropriately spaces, except practice rescue is not or retrieval lines that will not work due
while rescuing entrants from the required where the affected employees to the internal configuration of the
particular permit space or types of properly performed a rescue operation permit space.
permit spaces identified; during the last 12 months in the same (d) If an injured entrant is exposed to
(3) Select a rescue team or service permit space the authorized entrant will a substance for which a Safety Data
from those evaluated that: enter, or in a similar permit space. Sheet (SDS) or other similar written
(i) Has the capability to reach the Representative permit spaces must, with information is required to be kept at the
victim(s) within a time frame that is respect to opening size, configuration, worksite, that SDS or written
appropriate for the permit space and accessibility, simulate the types of information must be made available to
hazard(s) identified; permit spaces from which rescue is to the medical facility treating the exposed
(ii) Is equipped for, and proficient in, be performed. entrant.
performing the needed rescue services; (c) Non-entry rescue is required
(iii) Agrees to notify the employer unless the retrieval equipment would § 1926.1212 Employee participation.
immediately in the event that the rescue increase the overall risk of entry or (a) Employers must consult with
service becomes unavailable; would not contribute to the rescue of affected employees and their authorized
(4) Inform each rescue team or service the entrant. The employer must representatives on the development and
of the hazards they may confront when designate an entry rescue service implementation of all aspects of the
called on to perform rescue at the site; whenever non-entry rescue is not permit space program required by
and selected. Whenever non-entry rescue is § 1926.1203.
(5) Provide the rescue team or service selected, the entry employer must
selected with access to all permit spaces ensure that retrieval systems or methods (b) Employers must make available to
from which rescue may be necessary so are used whenever an authorized each affected employee and his/her
that the rescue team or service can entrant enters a permit space, and must authorized representatives all
develop appropriate rescue plans and confirm, prior to entry, that emergency information required to be developed by
practice rescue operations. assistance would be available in the this standard.
(b) An employer whose employees event that non-entry rescue fails. § 1926.1213 Provision of documents to
have been designated to provide permit Retrieval systems must meet the Secretary.
space rescue and/or emergency services following requirements:
must take the following measures and (1) Each authorized entrant must use For each document required to be
provide all equipment and training at no a chest or full body harness, with a retained in this standard, the retaining
cost to those employees: retrieval line attached at the center of employer must make the document
(1) Provide each affected employee the entrant’s back near shoulder level, available on request to the Secretary of
with the personal protective equipment above the entrant’s head, or at another Labor or the Secretary’s designee.
(PPE) needed to conduct permit space point which the employer can establish [FR Doc. 2015–08843 Filed 5–1–15; 8:45 am]
rescues safely and train each affected presents a profile small enough for the BILLING CODE 4510–26–P

Confined Spaces in Construction

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TABLE IV–1—NET BENEFITS

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

Total Annual Costs ........................................................................................................................................... 60.3 59.2

Number of Injuries Prevented .............................................................................................................................................................. 780

Net Annual Monetized Benefits (Benefits Less Costs)

construction of a building on the

would cover the ‘‘rehabilitation’’ of an existing

and comprehensive than the welding

addressing welding hazards and, therefore, applies

the distinction between entry rescue, as

hazards (72 FR 67386). As explained earlier in this

employer about the hazards of the

compliance if the employer can demonstrate that

provide the information to other entities

‘‘hierarchy of controls’’ policy reflected in a number atmosphere to or below the 10 percent

entry supervisor is responsible for evacuating

26 As with the general industry standard, the

TABLE IV–1—NET BENEFITS

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

TABLE IV–1—NET BENEFITS—Continued

Other Requirements ................................................................................................................................................ $6.4 $6.3

Total Annual Costs ........................................................................................................................................... $60.3 $59.2

Number of Injuries Prevented .............................................................................................................................................................. 780

Net Annual Monetized Benefits (Benefits Less Costs)

premiums are not fully responsive to

30 While workers’ compensation varies by state,

entry into confined spaces to conduct CONSAD report.

Commercial and Public Buildings:

20:26 May 01, 2015

Small Project ......................................................................................... 7 1 5 0 5 5 1 84 88 164 172 656 689

Large Project ......................................................................................... 13 12 4 3 7 86 2 138 1,704 276 3,409 1,104 13,634

Total Average number of confined spaces Number of Total Number of

Natural Gas Plants:

20:26 May 01, 2015

Total .................................................... 495,945 503,610 4,836,773 51,551 36,066

Average Estimated Average profit

Total .................................................... 1,269,055,615 2,559 4.72 59,913,701 121

Total .................................................... 489,841 496,340 3,247,574 31,116 26,985

Average Estimated Average profit

Total .................................................... 750,818,022 1,533 4.74 35,447,057 72

Total .................................................... 450,744 450,825 1,724,451 13,035 13,032

Average reve- Estimated Average profit

Total .................................................... 372,431,864 826 4.72 17,582,974 39

Commercial and Public Buildings:

Small Project .............................................. 96 95 95 96 N/A 96 96 96

Medium Project .......................................... 93 90 90 100 N/A 93 N/A N/A

estimated number of preventable fatalities can take prevention.

requirements in the final standard to Mendeloff measured effectiveness given actual

TABLE IV–9—CONFINED SPACES IN THE CONSTRUCTION INDUSTRY

57 ............................... 1992 1623 sewer/pipe/manhole ..................................................... 1 109472456

61 ............................... 1992 1799 Other ............................................................................ 1 115562290

64 ............................... 1993 1623 sewer/pipe/manhole ..................................................... 1 114834930

65 ............................... 1994 1771 sewer/pipe/manhole ..................................................... 1 124771049

66 ............................... 1994 1629 Undetermined .............................................................. 1 107232167

67 ............................... 1994 1623 Undetermined .............................................................. 1 124078163

68 ............................... 1994 1623 sewer/pipe/manhole ..................................................... 1 109054866

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

69 ............................... 1994 1794 sewer/pipe/manhole ..................................................... 1 110465739

70 ............................... 1995 1623 sewer/pipe/manhole ..................................................... 1 116508169

72 ............................... 1995 1542 Pit ................................................................................. 2 108724915

76 ............................... 1996 1623 sewer/pipe/manhole ..................................................... 1 300602943

77 ............................... 1996 1629 sewer/pipe/manhole ..................................................... 1 300947256