Confined and Enclosed Spaces and Other Dangerous Atmospheres in Shipyard Employment; Final Rule

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1915

[Docket No. S-050]

Confined and Enclosed Spaces and Other Dangerous Atmospheres in

Shipyard Employment

AGENCY: Occupational Safety and Health Administration (OSHA),

Department of Labor.

ACTION: Final rule.

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SUMMARY: The previous Subpart B of part 1915 sets out requirements for

work in explosive and other dangerous atmospheres in vessels and vessel

sections and applies to shipbuilding, ship repairing, and shipbreaking

operations and to related employment. The final rule being promulgated

today extends the protection afforded by these previous rules to

employees entering any confined or enclosed space or working in any

other dangerous atmosphere in or out of a shipyard. The final rule also

simplifies and clarifies some of the requirements in the previous

standards.

The final rule includes requirements for a shipyard competent

person, a Marine Chemist, a Certified Industrial hygienist, or a Coast

Guard authorized person to evaluate conditions within a confined or

enclosed space and to institute measures to ensure that entrants are

protected. It also contains requirements for posting unsafe spaces, for

safe performance of cleaning, cold work, and hot work, and for

classifying a person as a shipyard competent person.

EFFECTIVE DATE: The Final Rule becomes effective on October 24, 1994.

ADDRESSES: In compliance with 28 U.S.C. 2112(a), the Agency designates

for receipt of petitions for review of the standard the Associate

Solicitor of Labor for Occupational Safety and Health, Office of the

Solicitor, room S4004, U.S. Department of Labor, 200 Constitution Ave.

NW., Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT: Mr. James F. Foster, U.S. Department

of Labor, Occupational Safety and Health Administration, room N3647,

200 Constitution Ave., NW., Washington, DC 20210 (202-219-8148).

SUPPLEMENTARY INFORMATION: The principal authors of this final rule are

Joseph V. Daddura, Project Officer and Odet Shaw, Office of Maritime

Standards; Michael B. Moore, Office of Fire Protection Engineering and

Safety Systems; Paul Bolon, Office of Regulatory Analysis: and Claudia

Thurber, Project Attorney, Office of the Solicitor, U.S. Department of

Labor.

Table of Contents

I. Background

II. Summary and Explanation of Final Rule

III. Statutory Considerations

IV. Summary of Final Regulatory Impact Analysis, Regulatory

Flexibility Certification, and Environmental Impact Assessment

V. Effective Date

VI. Information Collection Requirements

VII. Federalism

VIII. State Plans

IX. Authority

I. Background

A. History of the Regulation

In May 1971, the Occupational Safety and Health Administration

(OSHA), under authority granted by section 6(a) of the Occupational

Safety and Health Act of 1970 (OSH Act, 84 Stat. 1590; 29 U.S.C.

655(a)), adopted established Federal standards issued under section 41

of the Longshore and Harbor Workers' Compensation Act (44 Stat. 1444,

as amended; 33 U.S.C. 941), as standards applicable to ship repairing

(29 CFR part 1915), shipbuilding (29 CFR part 1916), and shipbreaking

(29 CFR part 1917) operations. Additionally, other Federal standards

and national consensus standards were similarly adopted as general

industry standards (29 CFR part 1910) and were made applicable to all

aspects of shipyard operations not specifically covered by parts 1915,

1916, and 1917. On April 20, 1982 (47 FR 16984), parts 1915, 1916, and

1917 were consolidated into a single part 1915, for shipyard

employment. The consolidated set of standards, entitled ``Occupational

Safety and Health Standards for Shipyard Employment,'' eliminated

duplicate and overlapping provisions within the former three parts, but

did not alter any substantive requirements. The consolidation had no

effect on the applicability of the general industry standards, in part

1910, to hazards or conditions in shipyard employment not specifically

addressed in the shipyard standards.

On November 29, 1988, OSHA published a proposed rule in the Federal

Register (53 FR 48092) that would revise its previous standards on

explosive and other dangerous atmospheres in vessels and vessel

sections, contained in Subpart B of part 1915. The proposed standards

covered safe entry into and work on board vessels and vessel sections

in shipyards. The NPRM proposed the following revisions to the previous

Subpart B:

* Expanding the scope so that the entire subpart applied to all

phases of shipyard work on board vessels and vessel sections;

* Adding several definitions; changing the sequence of testing so

that requirements for oxygen, flammability, and toxicity testing are

presented in that order (the proposal would not, however, have required

testing in that order);

* Increasing the oxygen content required for unprotected confined

or enclosed space entry from 16.5 percent by volume to 19.5 percent by

volume; adding a requirement that spaces containing concentrations of

toxic contaminants above the permissible exposure limit be labeled

``Not Safe for Workers'';

* Adding a requirement for hot work that the concentration of

oxygen not exceed 22 percent by volume; adding a requirement to label

spaces if those spaces contain, or are adjacent to a space containing,

concentrations of flammable gases or vapors at or above 10 percent of

their lower explosive limit; and

* Adding two new appendices to aid employers and employees.

The NPRM also proposed a revision of Sec. 1915.7, Competent Person.

The previous Sec. 1915.7, which is contained in Subpart A of the

Shipyard Standards, defines a competent person for the purposes of

Subparts B, C (Surface Preparation and Preservation), D (Welding,

Cutting, and Heating), and H (Tools and Related Equipment). The

proposed revision was intended to eliminate the paperwork burden

involved in designating competent persons, to clarify the skills

required of them, and to simplify requirements relating to logging of

inspections and tests.

The notice of proposed rulemaking (NPRM) gave interested persons

until February 27, 1989, to submit comments with respect to the

proposal, to file objections, and to request a hearing. OSHA received

over 40 comments in response to the proposed rulemaking. There were no

hearing requests, and no hearing was held.

A short time after the shipyard proposed rule (Subpart B) was

published, in November 1988, the Shipyard Employment Standards Advisory

Committee (SESAC) was established to provide OSHA with guidance in

revising its shipyard standards and in developing a vertical standard

for the shipyard industry. At several SESAC meetings, the proposed

rules in Subpart B were on the agenda.

Subsequently, on June 5, 1989 (several months after the comment

period closed for the proposed revision of Subpart B), OSHA published a

proposed rule for permit-required confined spaces in general industry

(54 FR 24080). This general industry permit space proposal was intended

to apply to land-side (that is, other than on vessels or vessel

sections) operations within shipyards, including all operations and

work areas, such as fabricating shops, machine shops, and staging

areas. As a result, shipyard employers would have been required to

comply with one set of standards for shipboard operations (part 1915,

Subpart B) and another for land-side operations (part 1910,

Sec. 1910.146).

The general industry permit space proposal was discussed at several

SESAC meetings with a view toward incorporating applicable requirements

into a vertical confined space standard for the entire shipyard. This

would make it unnecessary for the general industry standard to apply to

hazardous atmospheres in confined spaces in shipyards, as had been

proposed in the 1910 rulemaking.

At SESAC's meeting of April 25-26, 1990, the Committee recommended

that the scope of the proposed shipyard standard on vessels and vessel

sections be expanded to include all confined and enclosed space

operations within the shipyard (Tr. 102, 4/25/90). The committee also

recommended that the title of the subpart, originally called

``Explosive and Dangerous Atmospheres in Vessels and Vessel Sections,''

be changed to clarify that this standard addresses all confined and

enclosed spaces and dangerous atmospheres encountered in shipyard

employment. Additionally, SESAC recommended that several provisions

similar to those proposed for general industry be added to subpart B to

make it a comprehensive standard for shipyard employment. The

provisions they recommended included a paragraph covering training

requirements and duties of confined space entrants; a new paragraph on

self-rescue and rescue teams; and a new paragraph addressing the duties

of employers with respect to on-site contractors. As recommended by

SESAC, the additional provisions would make subpart B a comprehensive

set of requirements applicable to the hazards posed by confined and

enclosed spaces and dangerous atmospheres encountered throughout

shipyard employment.

In response to issues raised in various comments submitted to the

docket concerning the general industry permit-required confined spaces

proposal and to enable OSHA to place the SESAC recommendations into the

subpart B rulemaking record, the Agency reopened the subpart B record

for additional comment (57 FR 28152). In the notice reopening the

record, which was published on June 24, 1992, OSHA invited public

comment on seven issues. These issues were:

(1) Whether or not land-side confined and enclosed spaces and other

dangerous atmospheres should be treated separately from spaces in

vessels and vessel sections.

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

receive.

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

confined spaces.

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

rescue services.

(5) What should be a shipyard employer's duty with respect to

contractors and other employers.

(6) Whether or not hot work permits should be required.

(7) What are the costs associated with applying requirements from

the generic confined spaces standard to shipyards.

Interested persons were given until September 22, 1992, to submit

comments. OSHA received 53 comments in response to the notice reopening

the record on the revision of subpart B.

The final rule on general industry permit-required confined spaces

was published in the Federal Register on January 14, 1993 (58 FR 4462).

Shipyards were omitted from the scope of the final general industry

standard because the Agency felt that it would be more appropriate to

address them in the revision of subpart B of part 1915. The

relationship between subpart B and Sec. 1910.146 and OSHA's reasons for

adopting a separate rule in subpart B are presented in the summary and

explanation discussion of the scope and application section for subpart

B (Sec. 1915.11).

The information OSHA relied upon to prepare the Notice of Proposed

Rulemaking (NPRM), comments received in response to the (NPRM), to the

notice of the reopening of the record, and the exhibits (including the

written transcripts of relevant SESAC meetings) submitted during the

period allowed for such submissions, constitute the rulemaking record

for this proceeding. The entire record was carefully considered in the

preparation of this final rule.

B. Significant Risk

The Occupational Safety and Health Administration (OSHA) has

determined that there is a significant risk to the health and safety of

workers who enter confined spaces in shipyards. According to the most

recent data from the Bureau of Labor Statistics (BLS), SIC 3731 (Ship

building and Repairing) has the highest lost workday case incidence

rate for injuries of any industry (``Occupational Injuries and

Illnesses in the United States by Industry, 1991,'' Bureau of Labor

Statistics, May, 1993).

The industry as a whole therefore poses the highest risk of injury

from all hazards for its employees in the U.S. Within shipyards,

confined space operations are one of the riskiest activities, which is

why the industry developed its own effective confined space procedures

that were adopted by OSHA as subpart B in 29 CFR part 1915 in the early

1970s.

At the present time, work in confined spaces on vessels is covered

by the current shipyard confined space regulations in subpart B of part

1915, but work in ``land-side'' confined spaces is not. This work on

land-side operations is therefore not currently addressed by a specific

OSHA regulation. These operations were originally included in the scope

of the proposed general industry confined space rule (Sec. 1910.146)

but were omitted in the final rule. In the preamble to that final rule,

the Agency noted its intention to cover confined spaces, both on

vessels and on land, in its revision of subpart B of part 1915. (58 FR

4471)

Confined space work on ships is extremely hazardous, and accidents

and fatalities still occur when the procedures of subpart B are not

adhered to. OSHA has recorded 20 deaths in the shipyard and boat-

building industries from 1983 to 1992 from confined space accidents.

The Agency has concluded that the new elements in final subpart B will

address non-compliance and lack of discipline in applying subpart B and

will reduce significant risk in confined and enclosed spaces and other

dangerous atmosphere work. These new elements include training, duty to

employers (contractors), and rescue. In addition, the Agency concludes

that other additions in the final will reduce risk in confined and

enclosed spaces and other dangerous atmospheres work, including:

specifying the order of testing of atmospheres, increasing the required

oxygen content from 16.5 percent to 19.5 percent by volume, restricting

oxygen content of spaces for hot work to 22 percent by volume, and

posting notification if spaces contain or are adjacent to spaces that

contain, concentration of flammable gases or vapors at or above 10

percent of there LEL.

II. Summary and Explanation of the Final Rule

A. Introduction

The final rule consists of two parts--a revision of the previous

shipyard competent person requirements found in subpart A and a

revision of the requirements for explosive and other dangerous

atmospheres found in subpart B. In this section of the preamble, OSHA

is providing a brief explanation of these two revisions to help explain

the final rule, together with a brief overview and explanation of the

revised standards. A later section will provide a full summary and

explanation of individual provisions, with complete details and

discussion of the rulemaking record.

OSHA is revising Sec. 1915.7, which sets out requirements for the

designation and qualification of competent persons. Under this section,

employers must designate one or more competent persons. The employer

must provide a roster of competent persons, which must contain the

names of these persons and the dates of their training. Competent

persons are required to know and understand the requirements of subpart

B (confined and enclosed spaces and other dangerous atmospheres), C

(surface preparation and preservation), D (welding, cutting, and

heating), and H (tools and related equipment); to know the locations

and designations of spaces where work is to be performed; to have the

ability to calibrate and use test equipment and perform the tests

required by subparts B, C, D, and H; to be able to evaluate whether

spaces need to be tested further by a Marine Chemist, Certified

Industrial Hygienist, or Coast Guard authorized person; to have the

ability to understand and carry out instructions and other information

provided by Marine Chemists, Certified Industrial Hygienists, or U.S.

Coast Guard authorized persons; and to have the ability to maintain the

records required by Sec. 1915.7. The final rule eliminates the

requirement for the employer to complete OSHA Forms 73 (Designation of

Competent Persons) and 74 (Log of Inspection and Tests by Competent

Person); however, the employer must continue to keep records of all

testing performed under subparts B, C, D, and H.

OSHA is also revising subpart B of part 1915. This subpart sets out

requirements for safe entry into and work in shipyard confined spaces,

enclosed spaces, and other dangerous atmospheres. The provisions of

this subpart apply to spaces that might contain oxygen-deficient,

oxygen-enriched, flammable, or toxic atmospheres. Examples of such

spaces include spaces that have been sealed, spaces that contain or

have contained materials that are flammable, toxic, corrosive, or

irritant, and spaces that are adjacent to these spaces. These spaces

must be tested by a competent person to determine whether or not it is

safe for an employee to enter into and work within or on the space.

The revised subpart B uses a two-tiered approach for evaluating the

hazards posed by confined and enclosed spaces and dangerous

atmospheres. The initial evaluation of all spaces is performed by a

shipyard competent person. When this evaluation discovers hazards

greater than those that a competent person is capable of handling, the

services of a Marine Chemist or certified industrial hygienist are

necessary. The shipyard competent person and these other qualified

individuals work in tandem to ensure the safe entry into and work in

confined and enclosed spaces and other dangerous atmospheres.

If the tests demonstrate that it is safe, then employees may enter

the space. If the tests show that it is not safe, then the space must

undergo further evaluation by a Marine Chemist or certified industrial

hygienist, and corrective action must be taken before employees may

enter. After further evaluation, the space must be designated as ``Not

Safe for Workers--Enter with Restrictions'' (for example, when

ventilation is necessary to maintain flammable concentrations below 10

percent of the lower explosive limit of a gas or vapor) or ``Not Safe

for Workers'' (for example, spaces with atmospheres that are

immediately dangerous to life or health). Spaces designated as ``Not

Safe for Workers--Enter with Restrictions'' or ``Not Safe for Workers''

must be posted with their designation so that employees do not enter

the spaces accidentally.

Employees who enter confined or enclosed spaces or dangerous

atmospheres must be trained to perform their work safely. The standard

requires training in hazard recognition, in the use of protective

equipment, and in self-rescue techniques. The employer must certify

that entrants have been trained before they are allowed to enter

confined and enclosed spaces or dangerous atmospheres. In addition,

employers must provide for rescue, either by having an on-site rescue

team or by arranging for the use of outside rescue services.

A space that has contained a flammable or toxic substance must be

cleaned before it can be made ``Safe for entry'' without restrictions.

The final rule sets requirements for performing the necessary cold work

(such as cleaning, scraping, inspecting the structure, and surveying

the space) usually to prepare the spaces for hot work. First, residues

of hazardous materials must be removed (for example, flammable liquids

are pumped out, then the space is cleaned). The atmosphere within the

space must be tested for flammability, and these tests must be repeated

as often as necessary throughout the course of work to ensure that the

concentration of flammable gases and vapors is in a safe range. (These

tests are in addition to the tests required before entry.) The standard

also requires ignition sources to be controlled or eliminated during

cold work to limit further the possibility of explosion or fire.

If hot work is to be performed, confined and enclosed spaces and

dangerous atmospheres are classified in two groups. If the spaces

contain or have contained flammable liquids or gases or if the spaces

are adjacent to such spaces, then a Marine Chemist or Coast Guard

authorized person must test and certify the space as safe for hot work.

Other types of confined and enclosed spaces and hazardous atmospheres

must be tested for safety by a competent person before hot work is

allowed.

The standard also contains provisions for maintaining safe working

conditions. Pipelines that carry hazardous materials must be blocked or

flushed and cleaned to prevent hazardous materials from discharging

into a space. The space must be tested periodically to ensure that safe

working conditions are maintained. Additionally, work operations must

be halted and the space exited when conditions change and the space no

longer meets the criteria specified by the Marine Chemist or Coast

Guard authorized person for safe work in or on the space.

The standard sets requirements for the posting of confined and

enclosed spaces and dangerous atmospheres. The signs must be understood

by all employees working in the area and must be posted at the means of

access to the work area.

The following summary and explanation of the individual provisions

within the standard discusses the important elements of the final

standard, explains the purpose of the individual requirements, and

explains any differences between the final rule and previous standards.

This section also discusses and resolves issues that were raised during

the rulemaking period, significant comments received as part of the

rulemaking record, and substantive changes from the language of the

proposed rule. References in parentheses are to exhibits (Ex.) and

transcripts (Tr.)1 in the rulemaking record.

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\1\ Transcript of the SESAC meeting of September 2-3, 1992,

Baltimore, MD.

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B. Subpart A, Sec. 1915.7--Competent Person

In this final rule, OSHA is revising various requirements related

to the designation and use of competent persons. Among the revised

provisions are the following: allowing an employer to avoid designating

competent persons if their tasks are always performed by a Marine

Chemist; allowing employers to select the form in which they may keep

records on competent persons; clarifying the criteria competent persons

must meet; and simplifying the way the competent person's records of

tests and inspections may be kept. In this regard, and as proposed,

OSHA is only revising Sec. 1915.7, which establishes both the duty for

employers to designate competent persons and the criteria for

designating such persons. The definition for competent person in

Sec. 1915.4 remains the same. The duties of competent persons, other

than the duties contained in Subpart B and addressed below in this

rulemaking, also remain the same.

In addition to substantive and editorial revisions to the

regulatory text of Sec. 1915.7 contained in the final rule, OSHA has

reorganized the paragraphs for clarity and coherence. OSHA prefers to

place paragraphs addressing the scope or application of a regulation at

the beginning of the applicable paragraphs, sections, or subparts of

that regulation. The previous paragraph addressing the application of

Sec. 1915.7 is contained in paragraph (d) located at the end of

Sec. 1915.7. To be consistent with other OSHA rulemaking, OSHA has

redesignated the paragraphs of Sec. 1915.7 so that the previous

paragraph (d) entitled, ``Application,'' becomes new paragraph (a) in

the final rule. Previous paragraphs (a), (b), and (c) have been

redesignated (b), (c), and (d), respectively.

Application. Paragraph (a) of the final standard sets forth the

application of Sec. 1915.7 that was previously contained in paragraph

(d) as discussed above. In addition, editorial changes have been made

to improve the language. For example, the old paragraph specified that

application would be to ``employers engaged in general ship repair,

shipbuilding and shipbreaking'' while in the new paragraph the general

inclusive term ``shipyard employment'' is used. The coverage provided

to employees by the new language is identical.

Designation of a competent person. In paragraph (b)(1), OSHA

continues the requirement in old paragraph (a)(1) of Sec. 1915.7 that

the employer designate at least one competent person for the purpose of

testing the atmospheres of work spaces in shipyard employment unless

all of the employer's testing under Subpart B is performed by an NFPA

Certified Marine Chemist.

OSHA also proposed to delete ``National Fire Protection Association

Certified Marine Chemist'' in previous paragraph (a)(1) and to replace

it with ``Marine Chemist.'' The phrase ``National Fire Protection

Association Certified'' which modifies ``Marine Chemist'' is redundant

since the term ``Marine Chemist'' will be defined in the final rule as

``an individual who possesses a current Marine Chemist Certificate

issued by the National Fire Protection Association.''

OSHA proposed to allow an employer to avoid designating competent

persons when the employer states that atmospheric testing is done by

other qualified individuals, who include NFPA Certified Marine

Chemists. Some commenters (e.g., Exs. 6-3, 6-12, 6-15) asserted that

competent persons were as capable as the Marine Chemist in performing

the atmospheric tests required in Subparts B, C, D, and H. For example,

Bay Shipbuilding Corp.

(Ex. 6-15) commented:

If an employer is just dealing with a common element like high

flash point fuels, oxygen content, carbon monoxide, or hydrogen

sulfide, which are easily detectable with electronic measuring

devices, you do not need a skilled chemist, provided you have a well

trained and equipped competent person.

OSHA agrees that a competent person is capable of testing

atmospheric conditions and certifying spaces for entry, and that Marine

Chemists are certainly capable of performing that testing. However, the

proposal would also have allowed the employer not to designate a

competent person if the testing were done by a Coast Guard authorized

person. OSHA has determined that this would not promote adequate safety

because the Coast Guard authorized person may not have been trained to

have all the skills and knowledge of a competent person. In fact, Coast

Guard authorized persons are only allowed to authorize someone to test

and certify a space ``Safe for Hot Work.'' (See the text of 46 CFR

35.01-1(a) through (c), 71.60(c)(1), and 91.50-1(c)(1) in Appendix B to

subpart B). A shipyard that relied only upon Coast Guard approved

persons would not have an individual who had all the skills and

knowledge necessary to protect employees from atmospheric hazards in

confined and enclosed spaces and other dangerous atmospheres.

Therefore, consistent with the previous standard, an employer can only

avoid designating a competent person(s) if the employer states that all

testing will be done by a Marine Chemist.

In paragraph (b)(2), OSHA has carried forth most of the

requirements of previous paragraph (a)(2), which addressed the

recording of information on employees who have been designated

competent persons. An employer is still required to keep a list of his

or her competent persons, but the employer will have more flexibility

in determining the form of the record, and instead of being required to

send the list to the OSHA area office, employers will be required to

maintain the list and make it available upon request.

Paragraph (a)(2) of the previous rule required the employer to

indicate on a ``Designation of Competent Person'' (OSHA 73 form) either

the names of employees designated as competent persons or that the

prescribed functions of a competent person would always be carried out

by a NFPA Certified Marine Chemist. In addition, a new OSHA 73 form had

to be completed when additions or changes were made to the information

concerning persons designated as competent persons and that it be filed

with the local OSHA area office.

The exception in paragraph (b)(1) which allows an employer to

designate ``any person who meets the applicable portion of the criteria

[for competent persons] set forth in paragraph (c)'' in certain

situations was in the previous standard at Sec. 1915.7(d) Application.

OSHA proposed that the employer prepare a ``certification record,''

that would include the employer's name, the identification of the

designated competent person or a statement that a Marine Chemist or a

Coast Guard authorized person would be used, the date of training, and

that the employer maintain the most recent record on file. Coast Guard

authorized persons were also to be added to the exception from

designating a competent person. The proposal also eliminated the need

to use an OSHA 73 form for recording the information required by the

standard.

In this final rule, OSHA addresses the proposed requirements under

three separate paragraphs. In paragraph (b)(2)(i) of the final rule,

OSHA continues to require employers to keep a record of employees who

have been designated as competent persons or a statement that the

employer plans to use a Marine Chemist for the testing of atmospheres.

Paragraph (b)(2)(ii) continues the requirement that the record of

designated persons be maintained but adds a requirement that the

employer make the record available for inspection by OSHA, NIOSH,

employees, or their designated representatives. This is consistent with

other OSHA standards including Secs. 1915.1025(l)(2) and 1915.1027(o),

and with industry practice. OSHA believes it is imperative that

competent persons be easily identified because their skills are

critical for the provision and maintenance of a safe workplace. In

addition, the new requirement will facilitate enforcement of the

maintenance of records requirement.

OSHA has eliminated the requirement to use an OSHA 73 because OSHA

believes that the OSHA 73 form requires more information than is

necessary. The primary purpose of the ``Designation of Competent

Person'' form was to provide the identification of employees designated

as competent persons or to indicate that a Marine Chemist would be used

to perform tests. OSHA believes that such information can be recorded

and provided in other ways.

Since the OSHA 73 form is no longer required, it no longer needs to

be provided to the OSHA area office each time a change is made. Now

employers can maintain the record of designated employees at the place

of employment or other location, such as the main office of the

employer, so long as the record can be provided for inspection upon

request.

The U.S. Coast Guard MIONY (Ex. 6-4) and Mr. Alan Spackman (Ex. 6-

5) supported the elimination of OSHA Form 73, but only if the employer

is required to maintain the alternative method of certification. Mr.

Spackman (Ex. 6-5) stated,

This action is acceptable only if the employer is required to

either post or make the competent person's certification record

available upon request and without retaliation to employee and other

persons who may be in the workplaces. The proposal fails to give

this assurance.

OSHA believes that by allowing alternative reporting media for

identifying designated employees and by requiring that records be

maintained and made available for inspection rather than submitted to

the local OSHA area office, the final rule addresses Mr. Spackman's

concerns. Bay Shipbuilding Corp. (Ex. 6-15) commented,

Form 73 is non-productive and obsolete. The form could be

revised to indicate information such as name, date, employment/

experience in shipbuilding/repairs/ship breaking, and schooling or

training * * *

Therefore, in the final rule, the employer is permitted to use any

form or format of reporting that identifies the employees who are

designated as competent persons and the date they were trained or that

a Marine Chemist will be used to perform atmospheric testing. Under the

final rule, OSHA will continue to recognize the OSHA 73 form as an

acceptable recordkeeping medium, but will not require its use.

Employers are free to use whatever recordkeeping medium they choose as

long as the record contains the minimum information required in the

final rule and can be presented for inspection upon request. By

requiring that the record be made available for inspection upon

request, OSHA is eliminating the need for employers to file new OSHA 73

forms or certifications of designated persons with the nearest OSHA

area office as required in the previous language of Sec. 1915.7(a)(2).

In paragraph (b)(2)(iii), OSHA has reorganized the requirements of

the certificate designating employees as competent persons, keeping

most that were proposed, but eliminating the requirement to include the

date the record was made and adding a requirement to include the date

the competent person was trained. As long as the list of competent

persons represents the current situation, there is no need to know when

it was created. However, knowing when a competent person was trained

will enable OSHA to determine easily that the employee was trained,

thus facilitating enforcement and ensuring that the employer is aware

of the date the employee was trained.

Criteria for a competent person. In the proposal, the Agency

requested public comment on whether there should be OSHA-approved or

OSHA-required training for competent persons, whether competent persons

should be certified, when such requirements could be implemented, and

how many persons would need training and certification.

Several commenters believed that OSHA should not require training

or certification of shipyard competent persons. For example, the

Shipbuilders Council of America (SCA) (Ex. 6-3) and Newport News

Shipbuilding (Ex. 6-6), commented:

The vast majority of confined space entry incidents are the

result of poor application of confined space entry procedures. There

are few, if any, confined space incidents involving errors by a

competent person. The criteria for designating competent persons in

the present standard in Sec. 1915.7 are sufficiently specific and

rigorous to ensure qualified individuals, and should be retained.

SCA (Ex. 6-3) additionally suggested that,

OSHA should continue to offer and support Shipyard Competent

Person training courses. However, the fact that an individual has

taken the course alone does not ensure competency.

Other commenters urged OSHA to institute mandatory training and

certification (e.g., Ex. 6-14, 6-24, 6-31). For instance, NIOSH

recommended that OSHA require and take responsibility for the

certification and training of shipyard competent persons (Ex. 6-14).

The U.S. Navy's Environmental Health Center (Ex. 6-31) related the

issue of shipyard competent persons to their Gas Free Engineers by

stating that:

OSHA should adopt a formal policy on this issue. Naval shipyards

currently have a 3 week Gas Free Engineer (GFE) course which is

given to Navy personnel so that they may perform as Gas Free

Engineering Technicians.

Another commenter, Independent Testing and Consulting, Inc. (Ex. 6-

24) expressed this viewpoint:

The NFPA in conjunction with OSHA has re-introduced a voluntary

training program for Competent Persons * * *. The provision of

training by outside agencies lifts a burden from the employer and

the benefits outweigh the costs.

The requirements of 1915.7 are adequate but every effort should

be made to provide employers with the opportunity to send personnel

to training courses which should be OSHA approved. Such approval

should require that persons be recertified periodically, say every

3-5 years. This would assure that competent persons keep abreast of

changes in technology, law etc.

OSHA received support for periodic re-training and many suggestions

with a variety of time limits (Ex. 6-4, 6-12, 6-14, 6-21, 6-22, 6-27,

6-28, 6-33, 6-36). For example, the U.S. Coast Guard MIONY (Ex. 6-4)

and the Navy's Sea Systems Command (Ex. 6-12) believe that competent

persons should attend initial training and then attend refresher

training each year thereafter. NIOSH (Ex. 6-14) recommended that annual

training of the competent person be required for recertification.

Several commenters, however, believed that the criteria for

designating a competent person should remain the same as the previous

standard. The NFPA (Ex. 6-10), for example, stated :

* * * Emphasis should be placed upon enforcement of existing

requirements (the performance requirements to be designated for a

competent person) and that formal training be directed toward the

existing duties and responsibilities of a competent person.

And as expressed by Delta Laboratory and Gas Testing, Inc. (Ex. 6-

35):

* * * the present system provides a tried and tested system of

confined space entry and work * * *. To change the basic format of

the system would be sheer folly and would benefit the few at the

expense of many.

While OSHA supports the need for training requirements, OSHA agrees

with the position of the majority of commenters that the competent

person criteria contained in Sec. 1915.7 achieve the same result, that

is, a highly trained individual who has knowledge of the unique aspects

of shipyard operations and the ability to carry out and perform the

required atmospheric tests. The criterion in paragraph (c) of

Sec. 1915.7 requires the shipyard competent person to have the skill

and knowledge necessary to perform atmospheric testing. Because each

shipyard is unique, how much training a shipyard competent person must

have and how often it must be repeated is left to the employer who is

in the best position to determine what skills and knowledge must be

reinforced and what resource information needs to be presented. As

such, OSHA is of the opinion that by continuing the previous competent

person criteria, employers will ensure that the necessary training will

continue to be provided to shipyard employers who are so designated as

competent persons. Furthermore, OSHA believes that this performance-

oriented approach will allow the most flexibility in ensuring the

availability of competent person services and in ensuring that the

unique conditions in each shipyard can be addressed.

Paragraph (c)(1) is the same as previous paragraph (b)(1) except

that the competent person is now required to be able to understand and

carry out the written or oral instructions left by the Certified

Industrial Hygienist as well as the Marine Chemist and the Coast Guard

Authorized Person. Certificates issued by the Marine Chemist, Certified

Industrial Hygienist, or Coast Guard authorized person are written

instructions. OSHA had proposed to separate the requirements to

understand certificates and to carry out verbal instructions left by

the Marine Chemist or Certified Industrial Hygienist or Coast Guard

authorized person but the Agency has concluded that the requirements

are sufficiently interrelated that they can continue to be listed

together in paragraph (c)(1).

Paragraph (c)(2) continues the requirement of previous paragraph

(b)(3) that competent persons have a knowledge of Subparts B, C, D, and

H of part 1915. OSHA did not propose to change this requirement, and

has made only an editorial change in order to improve clarity.

Paragraph (c)(3) is the same as old paragraph (b)(4), requiring

that competent persons have a familiarity with the structure and

knowledge of the location and designation of spaces on the types of

vessels on which repair work is done. OSHA did not propose to change

this requirement but in the final rule reflects OSHA's decision to

expand the scope of Subpart B to cover all phases of shipyard

employment.

In paragraph (c)(4), OSHA continues to require competent persons to

have the ability to use and interpret the readings of oxygen

indicators, combustible gas indicators, and carbon dioxide indicators,

but consistent with the proposal, the Agency has added a requirement

that the competent person be able to calibrate the testing equipment

and that the equipment not be limited to these monitors.

The proposed language in paragraph (b)(3) was performance-oriented

in that it did not limit the testing equipment to the types recognized

specifically in paragraph (b)(2) of the previous rule. As new

technologies develop and new chemical hazards are encountered in the

shipyard working environment, it becomes necessary for competent

persons to use new types of environmental monitors and detectors. Skill

in the use of this new equipment is necessary for competent persons to

be able to identify sources of hazardous exposures in shipyard

employment. In addition, OSHA believes that in order for the competent

person to have the ability to read and interpret the readings of any

type of chemical indicator that may be needed to test atmospheres in

the shipyard, a competent person must be familiar enough with the

instrumentation to capably calibrate it.

In paragraph (c)(5), OSHA continues the requirement contained in

the first portion of paragraph (b)(5) in the previous rule. Paragraph

(b)(5) of the previous rule contains two requirements and OSHA has

decided to divide the previous rule into two separate requirements in

the final rule: Paragraphs (c)(5) and (c)(7). Paragraph (c)(5) requires

that competent persons must have the capability to perform the tests

and inspections required by Subparts B, C, D, and H of part 1915. The

requirement in the final rule is consistent with the language proposed

in paragraph (b)(6) of the proposal. There were no comments objecting

to this change and OSHA considers it to be editorial.

In paragraph (c)(6) OSHA is adding a new requirement to the final

rule that coincides with shipyard industry practice. Paragraph (c)(6)

requires competent persons to have the ability to evaluate spaces after

a test to determine the need for further testing by Marine Chemists,

Certified Industrial Hygienists, or by the U.S. Coast Guard authorized

persons. OSHA has added this new language to make it clear that there

may be atmospheric conditions present in the shipyard that can not be

evaluated effectively by a person trained only to the competent person

level and that more highly trained individuals may be needed to

accurately evaluate an atmosphere. In such cases, OSHA believes this

new language would make it clear that an individual such as a Marine

Chemist, a Certified Industrial Hygienist, or a Coast Guard authorized

person must be called for assistance.

The State of Washington, Department of Transportation (WADOT) (Ex.

6-26) noted the ``tremendous responsibility'' placed upon the competent

person and even recommended further training.

WADOT commented,

Regarding changes to 1915.7 Competent person: Throughout the

existing and proposed regulation, the competent person is given

tremendous responsibility to ensure worker safety through inspection

and testing. * * *

* * * a requirement should be added at 1915.7(b)(8): Knowledge

of the physical hazards and the air contaminants which may be

produced in the course of the work to be done, the means of

preventing employee exposure to them.'' The regulation could even go

so far as to require the competent person to attend a 2-day training

class certified by the National Fire Protection Association. NFPA

maintains a list of certified classes.

OSHA agrees that it may appear from the proposal that competent

persons are expected to perform some duties equivalent to those of the

Marine Chemist, Certified Industrial Hygienist, or Coast Guard

authorized person. This was not the intent. OSHA does not believe,

based upon the duties that are expected from a competent person, that

it is necessary to specify the competent persons be trained by the NFPA

as suggested by Washington State. Rather, OSHA believes the knowledge

and training requirements in paragraph (c) are appropriate for the

testing that a competent person is allowed to do. However, the

competent person needs to be trained to recognize the need for more

sophisticated assistance and must know how to call for that assistance.

This new requirement makes it clear that competent persons, rather than

perform all tests and evaluations alone, must have the ability to

determine when the expert assistance of the Marine Chemist, Certified

Industrial Hygienist, or Coast Guard authorized person is needed.

In paragraph (c)(7) OSHA is continuing the requirement found in the

second part of paragraph (b)(5) in the previous rule. Paragraph (c)(7)

requires that a competent person must have the capability to maintain

the records required by the standard. As noted earlier, OSHA has

divided the previous requirements of paragraph (b)(5) into two separate

paragraphs, (c)(5) and (c)(7). There were no objections to this change

as it was proposed in paragraph (b)(6) and (b)(7). Therefore, OSHA

considers paragraph (c)(7) to be an editorial change to previous

paragraph (b)(5).

Recordkeeping. OSHA has redesignated the logging of inspections and

test requirements as paragraph (d) Recordkeeping. The changes proposed

to the requirements of previous paragraph (c) addressing logging of

inspections and tests were contained in paragraph (c) of the proposal.

In paragraph (d)(1) OSHA has made substantive changes to the

language of previous paragraph (c)(1). OSHA is requiring that the

employer ensure that the competent person, Marine Chemist or Certified

Industrial Hygienist performing any tests required by Subparts B, C, D,

or H of this part, records the test locations, time, date, location of

inspected spaces, and the operations performed, as well as the test

results and any instructions. OSHA has combined paragraphs (c)(1) and

(c)(2) of the proposal and eliminated the need for the OSHA 74 form.

The new language continues the previous requirement that persons

conducting tests and inspections record the results of those tests and

inspections. However, it eliminates the mandated use of the OSHA 74

form. OSHA believes that the format or instrument of the test report is

not important, so long as the information required by OSHA is contained

in the record.

OSHA received a number of comments urging the Agency to allow other

forms of reporting the atmospheric testing results in addition to the

OSHA 74 form.

The Navy's Sea Systems Command (Ex. 6-12) commented that,

[Section] 1915.7(c) requires that all tests be logged on the

OSHA Form 74. Recommend insertion of the words ``or equivalent'' to

allow for use of locally developed (e.g. computer-generated) forms

which include at least all of the information required by the OSHA

Form 74.

Marine Hydraulics International (Ex. 6-21), Colonna's Shipyard (Ex.

6-22), S.T.A.S. (Ex. 6-37) and Moon Engineering (Ex. 6-38) agreed and

submitted identical comments that stated:

We suggest that the following words be added to the end of this

paragraph: ``or equivalent.'' The OSHA 74 does not possess room for

additional instructions to workers, and by allowing the use of an

equivalent form, workers could be informed of other requirements

that the Shipyard Competent Person may invoke.

In previous paragraph (c)(1), competent persons were required to

make a record of the locations, operations performed and the date,

time, and results of any test they performed on a ``Log of Inspections

and Tests by Competent Person'' (OSHA 74 form). Competent persons were

also required under previous paragraph (c)(1) to use a separate form

for each vessel on which tests and inspections were made. By allowing

the use of alternative forms to record atmospheric test results, the

employer will have more flexibility in complying. However, employees

will be protected and OSHA will be aided in its enforcement by the fact

that employers will still be required to maintain records of tests and

inspections.

In paragraph (d)(2) of the final rule, OSHA continues the

maintenance of records requirement of previous paragraph (c)(2). OSHA

is requiring the employer to ensure that records created to comply with

the recordkeeping requirements of this section are posted in the

immediate vicinity of the affected operations while work is progress

and for a period of at least three months from the completion date of

the specific job for which they were generated. OSHA considers the new

language to be a non-substantive change.

In paragraph (d)(3) of the final rule, OSHA continues the

availability of records requirement of previous paragraph (c)(2).

Paragraph (d)(2) requires the employer to ensure that the records

required in this section are available for inspection by the Assistant

Secretary, Director, employees, or their representatives while work in

the affected spaces is in progress. The new language contains editorial

corrections for clarity and consistency with other OSHA record

inspection requirements. OSHA considers the changes to this paragraph

to be non-substantive.

C. Subpart B, Sections 1915.11 through 1915.16

1. Sec. 1915.11 Scope and Application

The scope contained in previous Sec. 1915.11 applies the

requirements in Subpart B to vessels and vessel sections found in

shipyards during ship repair and ship breaking; Sec. 1915.16 applies to

ship repair only. On November 29, 1988, OSHA proposed to amend its

shipyard standards addressing safe entry into and work within spaces

containing explosive and other dangerous atmospheres on board vessels

and vessel sections in shipyards (53 FR 48092). Under this proposal,

OSHA would have applied Subpart B to all types of shipyard work on

vessels and vessel sections, including ship building, ship repair, and

shipbreaking. The Agency proposed extending the scope of Subpart B in

this manner to protect employees entering and working in explosive and

other dangerous atmospheres, regardless of the type of work they were

performing.

Subsequently, after the closing date for comments on this proposed

shipyard rule, OSHA also proposed new rules for confined spaces in

general industry (54 FR 24080, June 5, 1989). The general industry

proposal would have had the effect of covering land-side (that is,

other than shipboard) confined spaces in shipyards, such as piping

systems in shops or confined spaces in staging areas.

As noted earlier, SESAC reviewed the general industry proposal and

made recommendations regarding its possible application to shipyard

work. In June 1992, OSHA reopened the record for Subpart B (57 FR

28172, June 24, 1992), to place the SESAC recommendations in the

rulemaking record and to gather additional information on whether or

not the proposed general industry confined spaces standard was

appropriate for land-side confined spaces entered during shipyard work.

The scope of revised Subpart B has been expanded so that the final

rule covers all shipyard work, and the title of the Subpart, originally

called ``Explosive and Other Dangerous Atmospheres in Vessel and Vessel

Sections,'' has been changed to ``Confined and Enclosed Spaces and

Other Dangerous Atmospheres in Shipyard Employment.'' OSHA believes

this change more accurately reflects the scope of this Subpart, which

now addresses all shipyard employment operations and which is not

limited to confined spaces. The entire subpart applies regardless of

whether shipbuilding, ship repair, or shipbreaking is being done.

The scope of the 1988 proposal differed from the previous standard

in two major respects:

(1) The proposed standard would have extended coverage to employees

in shipbuilding, who were not protected by previous Secs. 1915.12

through 1915.16, and

(2) the proposed standard would have extended coverage to employees

in shipbreaking who were not protected by the previous Sec. 1915.16.

The notice of proposed rulemaking listed two reasons for extending

the scope of Subpart B in this manner:

(1) That the national consensus standard corresponding to Subpart B

(NFPA 306, Control of Gas Hazards on Vessels) imposes the same basic

requirements to all shipyard work, regardless of whether ship building,

ship breaking, or ship repair is being performed; and

(2) that the protective measures required under the previous

Secs. 1915.12 through 1915.16 are current industry practice in all

aspects of shipyard work.

NFPA 306 (1988) is the national consensus standard that applies to

work covered by revised Subpart B. Like Subpart B, it contains

requirements for atmospheric testing, for cold work and hot work, and

for maintaining safe atmospheres for employees while shipbuilding,

shipbreaking, or ship repairing is being performed. Under section

6(b)(8) of the OSH Act, any standard that OSHA adopts in regard to

atmospheric hazards on vessels must be at least as protective as the

NFPA document unless another standard would be more consistent with the

purpose of the act.2 Expanding the scope of the current standard

to all of shipyard employment is consistent with the scope of NFPA 306

and therefore providing at least equivalent protection.

---------------------------------------------------------------------------

\2\ Section 6(b)(8) of the OSH Act reads as follows:

Whenever a rule promulgated by the Secretary differs

substantially from an existing national consensus standard, the

Secretary shall, at the same time, publish in the Federal Register a

statement of the reasons why the rule as adopted will better

effectuate the purposes of this Act than the national consensus

standard.

---------------------------------------------------------------------------

Before the publication of the 1988 proposal, 30 groups,

representing government agencies, employers, unions, and associations,

commented on the first draft rewrite of Subpart B. All of these groups

supported the concept of expanding Subpart B coverage to both

shipbuilding and shipbreaking (53 FR 48094). As noted in the preamble

to the proposal, OSHA believes that this is because the shipyard

industry was already applying the requirements of previous Subpart B to

the entire shipyard. In fact, the preliminary regulatory impact

analysis identified no cost impact from the application of the proposal

to shipbuilding, shipbreaking, and ship repair (53 FR 48104).

In response to the 1988 notice of proposed rulemaking, OSHA

received no comments in opposition to the extension of this coverage

and several expressions of support for applying the standard uniformly

throughout the shipyard (Ex. 6-3, 6-6, 6-23). The position of the 39

commenters is best expressed by the following statements. The

Shipbuilders Council of America (SCA) (Ex. 6-3), which represents 25

major U.S. shipyards that employ 95 percent of shipyard production

workers, stated:

* * * having a single standard addressing this issue would

achieve the objective of providing employees and employers with one

set of rules for given situations.

Newport News Shipbuilding (Ex. 6-6), the largest shipyard in the

western hemisphere:

* * * the industry treats confined spaces ashore and afloat in a

similar manner.

The American Waterways Shipyard Conference (AWSC) (Ex. 6-23),

representing the interests of small- to medium-sized commercial

shipbuilding and repair industry stated:

AWSC is very supportive of OSHA's efforts to develop this

vertical standard. The end product will eliminate the confusion

which currently exists concerning the applicability of the General

Industry Standards to the shipbuilding and repair industry, and will

up-date all standards to the existing technology level.

* * * * *

The alternative to the expansion of the scope of this subpart

appears to be the institution of a different program for [shore-

side] confined spaces. To introduce a new type of confined space

entry program into a shipyard facility which already has a workable

program seems ludicrous. Two programs would only confuse the

employee. By extending the current program, employees will be

protected and will immediately recognize the program.

OSHA has concluded that the requirements contained in revised

Subpart B are necessary for the protection of employees exposed to

hazardous atmospheres in shipyards, regardless of the type of work

being performed. Hazardous atmospheres can be found in shipbuilding, as

well as in shipbreaking and ship repair. The work practices implemented

by employees working in vessels and vessel sections should be the same

from one job to the next. The atmospheric hazards will basically be the

same and the employees move from job to job within the entire shipyard,

so the work practices should be consistent. Using one set of work

procedures for atmospheric hazards in a shipbuilding job and another

for the same hazards for a ship repair job would serve to confuse the

employee and could easily lead to accidents. Therefore, revised Subpart

B applies to shipbuilding, shipbreaking, and ship repair.

A short time after the November 1988 publication of the proposed

rule on Explosive and Other Dangerous Atmospheres in Vessel and Vessel

Sections, the Shipyard Employment Standards Advisory Committee (SESAC)

was established. SESAC was chartered to provide OSHA with guidance in

revising, consolidating, and modernizing the varying sets of

regulations that were being applied in the shipyard industry into what

is ultimately intended to be a truly vertical standard for all shipyard

employment. Shipyard employers would be required to comply with a

single set of occupational safety and health standards as opposed to a

mixture of shipyard and general industry standards. Consequently, the

newly developed shipyard employment standards would apply to all

shipyard employment regardless of the type of work being performed (for

example, vessel repair or fabrication of railroad cars) or location

(for example, in the traditional shipyard or ``up river'' or on sea

trials). As a step towards this goal, SESAC recommended that the scope

of the proposed Subpart B be expanded beyond vessels and vessel

sections, to cover all land-side confined space and hazardous

atmosphere situations (Tr. 101, 4/25/90).

In order for OSHA to include SESAC's recommendations into the

rulemaking record and to consider fully comments submitted to the

docket concerning the general industry confined spaces proposal, OSHA

reopened the record on Subpart B (57 FR 28152, June 24, 1992). The

Agency raised a number of questions in the notice reopening the record.

The most significant issue that underlines a number of the specific

questions is rooted in the unique concept of confined space entry that

has been the accepted practice in the shipyard industry for over 25

years (36 FR 10466, May 29, 1971). The fundamental basis of OSHA's

shipyard standard has been a reliance on preventing employees from ever

being exposed to confined space atmospheric hazards. This has been

accomplished by the built-in system of testing and ventilating that has

become industry practice and has been very successful at preventing

confine and enclosed spaces and other dangerous atmospheres accidents.

The concept of a single standard, Subpart B, for all shipyard

employment was unanimously endorsed by SESAC as well as supported by

all of the commenters who addressed this issue in the June 1992, notice

(Ex. 11-3, 11-4, 11-5, 11-6, 11-8, 11-10, 11-13, 11-14, 11-15, 11-16,

11-18, 11-19, 11-20, 11-21, 11-24, 11-26, 11-29, 11-31, 11-33, 11-34,

11-35, 11-39, 11-41, 11-48, 11-50). For example, the National Fire

Protection Association (Ex. 11-19), a voluntary membership organization

dedicated to the protection of people and property from fire and

related hazards, set out this position as follows:

NFPA favors the development of a single standard which provides

for safety during entry and work in confined spaces within the

shipyard.

* * * * *

In general, application of two distinctly different standards

for vessels and [land-side] operations would be a burden on the

industry and would be confusing to employees. Specific points are as

follows:

First, * * * employees in the shipyard are familiar with the

dangers of all confined spaces, not just those confined spaces

associated with tanks aboard ships. This has occurred due to the

absence of prior safety requirements for general industry.

The shipyards have already adapted the practices and procedures

derived from the vessel requirements and applied them to the [land-

side], as appropriate.

Second, the shipyard industry has demonstrated the effectiveness

of the current and proposed 29 CFR 1915, Subpart B requirements over

the past 10 years.

Third, requiring the 1910 general industry requirements for

[land-side] activities instead of the current and proposed 1915

shipyard requirements complicates the training element, by

necessitating dual procedures. The training for both sets of

requirements will be incompatible, since the standards each take a

different approach--1915 Subpart B utilizes a ``performance

oriented'' approach, while 1910.146 relies on specifications to

achieve its objectives.

Ingalls Shipbuilding (Ex. 11-20) agreed, stating:

The SESAC recommendation stresses preventions, training and

self-rescue. This approach, which relies on testing before entry and

use of engineering controls to eliminate the hazards is, in our

opinion, much safer than the general industry standard which

requires the use of attendants at each confined space to summon

rescue personnel when an emergency occurs. (SESAC'S recommendations

put the emphasis on prevention). In addition to being safer it is

also more economical than the general industry standard.

The industry has adopted a single approach to working in and around

explosive and dangerous atmospheres throughout the shipyard for several

reasons:

(1) The number and type of atmospheric hazards associated with

products contained in the spaces is unpredictable. Some vessel

repairers encounter over 100 different chemical cargoes (Ex. 11-27);

(2) The complexity of confined spaces is increased due to the

extensive internal structures, adjacent spaces, pipelines, vent

systems, heating coils, and the like (Ex. 11-7, 11-27); and

(3) The cross-contamination of previous and successive products

complicates the atmospheric evaluation process (Ex. 11-7).

(4) The nature of the work associated with the confined space entry

in shipyards tends to be more complex. This work frequently involves

hot work which can greatly affect atmospheric conditions within the

space (Ex. 11-7, 11-27).

Based on the record, OSHA has made a determination that a single

standard should be applied for entry into confined and enclosed spaces

and other dangerous atmospheres throughout the shipyard industry,

following the Subpart B approach. OSHA has arrived at this conclusion

for two basic reasons:

(1) A single procedure, applicable throughout the shipyard and

addressing hazards related to confined and enclosed spaces and other

dangerous atmospheres will best protect employees, and

(2) That the provisions adopted in revised Subpart B will provide

shipyard employees with a comprehensive set of protective safety

measures.

A single standard applying to all shipyard confined and enclosed

spaces and other dangerous atmospheres will provide employees with one

procedure for working in any shipyard location, whether on a vessel or

on land. The commenters overwhelmingly agreed that this approach would

best protect employees (Ex. 11-3, 11-6, 11-9, 11-13, 11-14, 11-15, 11-

18, 11-19, 11-20, 11-24, 11-25, 11-26, 11-29, 11-35, 11-39, 11-41, 11-

50). OSHA agrees with these commenters that two procedures for dealing

with confined and enclosed space and dangerous atmosphere hazards would

confuse employees who have to implement those procedures. The Agency is

concerned that the confusion resulting from different standards for

shipboard and land-side spaces would actually lead to accidents rather

than prevent them.

As in the past, the primary focus of Subpart B will continue to be

atmospheric hazards. Non-atmospheric hazards such as those relating to

slips, trips, or falls are covered by other provisions of the shipyard

standards. A more specific detailed discussion of non-atmospheric

hazards is contained in the following paragraph.

OSHA believes that land-side confined spaces in shipyards pose

hazards similar in nature to those found in vessels and vessel sections

covered by revised Subpart B. The evidence in the record demonstrates

that the atmospheric and non-atmospheric hazards in vessels and vessel

sections are also present in land-side confined spaces (Ex. 11-19, 11-

26, 11-27, 11-32, 11-39, 11-41, 11-47). The Agency agrees with the vast

majority of commenters who stated that the procedures used to protect

workers from these hazards in vessels and vessel sections could readily

be adopted for use in land-side confined space operations (Ex. 11-1,

11-3, 11-6, 11-9, 11-10, 11-11, 11-13, 11-14, 11-15, 11-18, 11-19, 11-

20, 11-24, 11-25, 11-26, 11-29, 11-30, 11-31, 11-32, 11-33, 11-34, 11-

37, 11-39, 11-41, 11-42, 11-44, 11-45, 11-46, 11-47, 11-49, 11-50, 11-

51).

A few commenters stated that vessels and vessel sections pose

greater hazards (Ex. 11-7, 11-8, 11-11, 11-13, 11-22, 11-27, 11-30, 11-

35, 11-46). They noted such differences as greater complexity with

respect to the hazards involved in vessels and vessel sections,

movement of the vessel (which causes movement of atmospheric hazards),

the total number of spaces involved, the multitude of systems (for

example, fuel, refrigeration, and compressed air) present on-board

ships, and the interrelationships between adjacent vessel sections

(that is, hazards in one section can affect procedures to be used in

adjacent sections). Nonetheless, most of these commenters contended

that the Subpart B requirements were still appropriate for land-side

confined spaces (Ex. 11-11, 11-13, 11-30, 11-31, 11-35, 11-44, 11-46).

They argued that the Subpart B provisions would afford employees with

greater protection than would be provided by Sec. 1910.146, and that

procedures necessary to comply with Subpart B were already in place in

most shipyards.

OSHA has concluded that it is appropriate to apply revised Subpart

B to all phases of shipyard work. The Agency has determined, based on

the record, that shipyard employers can readily adapt their ship-side

procedures which already conform to these requirements, for use in

land-side confined space entry, as well.

OSHA has included the phrase ``regardless of geographic location''

in the scope only as a clarification since it has been the Agency's

position that this section, and indeed the entire Part 1915, apply to

inland shipyard employment.

SESAC examined requirements proposed in the general industry

confined space standard Sec. 1910.146, to determine to what extent that

proposal should address shipyard work and to determine whether or not

specific provisions within that proposal were appropriate for

application to work in shipyard confined and enclosed spaces and other

dangerous atmospheres. The committee agreed that a single standard

should apply to this work and recommended the addition to Subpart B of

several provisions based on proposed Sec. 1910.146 so that the shipyard

standard would be as comprehensive as its part 1910 counterpart (Tr.

102, 4/25/90). As noted earlier, OSHA reopened the record on the

proposed revision of Subpart B to request comments on SESAC's

recommendations in this regard, as well as to explore the possible

expansion of the scope of Subpart B to all aspects of shipyard work.

The issues raised in the notice reopening the record addressed how

Subpart B could be revised to make it as protective as the general

industry permit space standard.

Paragraph (c)(1) of Sec. 1910.146 requires employers to evaluate

the workplace to determine if any spaces are permit-required confined

spaces. Paragraph (c)(6) of that standard requires employers to

reevaluate non-permit confined spaces whenever there are changes that

might increase the hazards to entrants. The notice reopening the record

on Subpart B requested comments on whether or not shipyard employers

should similarly evaluate their workplaces.

Most commenters agreed that the shipyard standard should not adopt

requirements comparable to paragraphs (c)(1) and (c)(6) of

Sec. 1910.146 (Ex. 11-1, 11-3, 11-6, 11-7, 11-9, 11-10, 11-11, 11-13,

11-14, 11-15, 11-18, 11-19, 11-20, 11-22, 11-24, 11-25, 11-26, 11-29,

11-30, 11-31, 11-34, 11-39, 11-41, 11-42, 11-45, 11-47, 11-49, 11-50,

11-51). They argued that proposed Subpart B was adequate since it

already required testing before initial entry of all confined spaces

that could contain atmospheric hazards and additional frequent testing

to ensure that atmospheric conditions are maintained. A few contended

that the shipyard industry treated all confined spaces alike,

evaluating them for hazardous conditions before entry (Ex. 11-13, 11-

19, 11-31, 11-49). For example, Mr. Joseph J. Ocken (Ex. 11-31) stated:

The present practice is to consider ANY confined space NOT SAFE

until currently tested and posted otherwise. This is a simple fail-

safe work practice for workers. To expect every space to have been

evaluated and posted properly invites simple error to lead to

catastrophe. There are too many confined spaces in shipyards to

count on 100% perfection at all times. Enclosed spaces can also

contain confined space hazards and must be approached with suspicion

by workers as well.

On the other hand, a few commenters stated that OSHA should adopt

requirements similar to those in Sec. 1910.146 for evaluating confined

spaces (Ex. 11-2, 11-28, 11-33, 11-37, 11-38). They believed that

evaluating confined spaces for the types and extent of hazards is a

useful tool in any confined space program. Con-Space Communications,

Ltd. (Ex. 11-28), argued as follows:

Evaluation of a workplace to determine if it contains Confined

Spaces is the very first step that an employer must take in a

serious company wide entry program. An inventory of Confined Spaces

would be a permanent reference which, if updated on each entry,

could be a useful planning tool. In the event of a rescue, this

information would be invaluable especially if the Confined Space is

assigned a number along with a list of potential hazards associated

with it and special equipment needed for safe entry. Physical

attributes of the space could also be listed.

Section 1910.146 places confined spaces into two categories:

permit-required confined spaces and non-permit-required confined

spaces. The purpose of paragraphs (c)(1) and (c)(6) of Sec. 1910.146 is

to ensure that employers have properly identified confined spaces

posing hazards to entrants. The large class of confined spaces are

determined not to be permit entry spaces, are evaluated only as

required in these two paragraphs. Entry into such spaces is essentially

performed without reference to the permit entry procedures of

Sec. 1910.146 (unless the entrants bring a hazard into the space or

create one during entry operations).

By contrast, Subpart B treats all confined spaces and other spaces

that might contain a hazardous atmosphere equally. Initial testing and

inspection, followed by continuous ventilation and further testing, is

required of all these spaces to ensure the safety of employees working

within them. Because of these additional protection which Subpart B

requires on a routine bases, OSHA has determined that no separate,

formal evaluation requirements need be adopted in Subpart B.

Paragraph (e) of Sec. 1910.146 requires general industry employers

to institute a permit system for permit space entry operations. This

paragraph requires the employer to document, by means of a permit, the

completion of measures required for the safety of entrants. A permit

must be completed before entry is allowed into any permit space. The

notice, reopening the record on Subpart B, requested comments on

whether or not such permits should be required for entry into spaces

addressed by the shipyard standard.

The vast majority of commenters stated that a permit system as set

out in proposed Sec. 1910.146 was unnecessary for incorporation into

Subpart B (Ex. 11-1, 11-3, 11-6, 11-7, 11-9, 11-10, 11-11, 11-13, 11-

14, 11-15, 11-18, 11-19, 11-20, 11-22, 11-24, 11-25, 11-26, 11-29, 11-

31, 11-32, 11-35, 11-36, 11-39, 11-40, 11-41, 11-42, 11-44, 11-45, 11-

46, 11-47, 11-49, 11-50, 11-51). They argued that shipyard employee

safety would not be increased through the imposition of such a

requirement. Many also argued that the system in use in shipyards and

required by proposed Subpart B was the equivalent of a permit system

(Ex. 11-3, 11-6, 11-10, 11-11, 11-13, 11-14, 11-18, 11-20, 11-24, 11-

25, 11-26, 11-29, 11-32, 11-35, 11-36, 11-39, 11-41, 11-44, 11-49, 11-

50, 11-51). These commenters noted that the only spaces employees were

permitted to enter were those designated as ``Safe for Workers'' after

initial inspection and testing. For example, Moon Engineering Co., Inc.

(Ex. 11-14), stated:

Moon Engineering feels a permit system is necessary for any

confined space entry aboard vessels or any land-side operations. We

do not believe the proposed system described in 1910.146 is feasible

for shipboard applications.

The system, used successfully by Moon Engineering since the

early 1970's, is simple and applicable to our operation. The

individual shipyard shops communicate with the Safety Department on

a daily basis and advises what spaces they will be working the

following day. The Safety Department uses OSHA Competent Persons

and/or NFPA certified Marine Chemist to test all spaces due to be

worked for that particular day. The results of inspection are posted

at the entrance of the space and highlight inspection date, time,

tester and whether the space is SAFE FOR WORKERS/SAFE FOR HOT WORK

or whatever the status. This designation is consistent with the

language of the existing 1915 standard. This Log of Inspections is

available and it is the responsibility of all employees to view this

documentation prior to beginning their work. This system works and

has an excellent track record.

Other commenters believed that a permit system similar to that

required under Sec. 1910.146(e) should be imposed (Ex. 11-2, 11-28, 11-

30, 11-33, 11-34, 11-37). NIOSH (Ex. 11-33) explained this position as

follows:

NIOSH recommends that entry into a confined space be by permit

only. * * * The permit is an authorization and approval in writing

that specifies the location and type of work to be done, certifies

that all existing hazards have been evaluated by the qualified

person, and that necessary protective measures have been taken to

ensure the safety of each worker. The permit requirements will vary

by the nature of the space, the nature of the hazard, and the work

to be performed. All confined spaces should be evaluated by

appropriately trained and qualified persons to determine that the

space involved and the work to be performed will not present a

hazard to the worker; the permit system ensures that this evaluation

has been performed.

OSHA has not incorporated a requirement for a formal permit system

in the final revised subpart B. The Agency agrees with the commenters

who stated that subpart B provides an informal permit system that

contains evaluation mechanisms, tracking criteria, and control measures

that are as protective as the formal one required under

Sec. 1910.146(e). Confined and enclosed spaces on vessels and vessel

sections that might contain a dangerous atmosphere are certified ``Safe

for Workers'' when they are safe for employees to enter, and entry is

not permitted until that certification. Shipyard employees are also

trained to remain outside of any space not so certified. Additionally,

under Sec. 1915.14(a)(1), a Marine Chemist (or, with certain

restrictions, a Coast Guard authorized person) must inspect and test

the space and certify its safety before work in the most hazardous

conditions can begin. Furthermore, OSHA believes that imposing a

Sec. 1910.146-type permit system for shipyard work because of the

content and placement of the permits could undermine the effectiveness

of the Marine Chemist's certificate, which is the primary vehicle for

certifying certain spaces ``Safe for Hot Work.''

Paragraph (d)(6) of Sec. 1910.146 requires at least one attendant

outside a permit space while entry operations are underway. This

attendant monitors entrants and conditions inside and outside the

space, prevents the entry of unauthorized persons, and summons rescue

services in an emergency. The notice reopening the record requested

comments on whether attendants should be required for ``permit-

required'' confined spaces covered by Subpart B.

Nearly every commenter stated that attendants were unnecessary for

the safety of employees performing work in dangerous atmospheres or in

confined or enclosed spaces in shipyards (Ex. 11-1, 11-2, 11-3, 11-6,

11-7, 11-9, 11-10, 11-11, 11-13, 11-14, 11-15, 11-18, 11-19, 11-20, 11-

22, 11-24, 11-25, 11-26, 11-29, 11-30, 11-31, 11-33, 11-34, 11-36, 11-

37, 11-38, 11-39, 11-40, 11-41, 11-42, 11-43, 11-44, 11-45, 11-46, 11-

49, 11-50, 11-51). They argued that the procedures required by Subpart

B would make spaces safe for workers and that, as a result, there would

be no need for an attendant. Many of these commenters also contended

that the cost of providing attendants for every entry, if such would be

necessary, would be prohibitive (Ex. 11-1, 11-3, 11-11, 11-13, 11-25,

11-29, 11-43, 11-44, 11-49, 11-50).

One commenter supported a requirement for an attendant to monitor

any confined space that was designated as a permit space (Ex. 11-28).

Other commenters, who opposed a general requirement for attendants,

acknowledged that there is a need for an attendant to monitor spaces

posing unusual hazards, such as entry into IDLH atmospheres, entry by

an employee working alone, and non-routine entry (Ex. 11-2, 11-3, 11-7,

11-10, 11-13, 11-14, 11-15, 11-18, 11-19, 11-20, 11-24, 11-25, 11-29,

11-30, 11-31, 11-33, 11-34, 11-41, 11-51). The statement of the NFPA

(Ex. 11-19) typified these comments, as follows:

NFPA believes that the permit described in proposed

1910.146(b)(9) contains information that is not needed by entrants

into confined spaces and could be confusing. NFPA believes that such

a permit would not be feasible for confined spaces in the vessel

construction and repair industry, for either vessel or shore-side

activities. The proposed 1910.146 permit systems, described in

1910.146(d) establishes specifications for a permit system designed

to satisfy several problems with one form.

Accident statistics indicate that workers do not recognize the

dangers of confined spaces. Statistics also point out that workers

involved in accidents have commonly been authorized to enter the

space (source (NIOSH FACE study). Additionally, a high percentage of

fatalities in confined space incidents are personnel attempting to

effect worker rescue. OSHA, with this permit system, has attempted

to alert the worker (entrant), establish a control point (person

authorizing entry), and ensure safe rescue attempts are performed by

specifying relevant information on one form.

Throughout the industry, shipyards have adapted entry permit

systems to make the system simple. Frequently, shipyards have

incorporated a color-coded tag and sign system. The foundation for

the various shipyard systems is linked to the Marine Chemist

Certificate and Shipyard Competent Person Inspection Form (OSHA 74

Log of Inspections and Tests). This allows individual shipyards to

tailor their system to the type of confined spaces and work

performed at their yard. In the larger shipyards, the permit and

sign system has been incorporated throughout the yard, including

both vessel and shore-side work sites.

NFPA believes that a specification requiring a permit system as

described in 1910.146 would be excessive for many shipyards since

the nature of the spaces and hazards is so variable. NFPA also

believes that such a requirement would not provide any increase in

the level of safety. The key to the effectiveness of any permit

system will be its simplicity and the training of workers on its

implementation. The 1910.146 proposed system introduces increased

confusion for many of the shipyard applications and will not

necessarily result in increased safety. OSHA needs to recognize that

the shipyard industry currently uses a dual permit system for

documenting initial and follow-up conditions for its vessel confined

space activities. The advantage of this system has been the lack of

specification, thus enabling individual shipyards to adapt their

systems with the performance requirements of current proposed

Subpart B. This approach would work in land-side confined spaces

within the shipyard, as well. Use of one system throughout the

shipyard facilitates the training of all workers.

The final revised Subpart B does not require the presence of an

attendant for confined and enclosed spaces or for work in dangerous

atmospheres. OSHA notes that the purpose of Subpart B is to ensure that

a space is completely safe to enter and work in. In this regard,

Sec. 1910.146(c)(5) of the general industry generic confined space

standard sets detailed requirements for atmospheric testing and

ventilation for some spaces, and also, recognizes that there are some

permit spaces which can be made safe for entry without the need for

written permits or attendants. Final revised Subpart B provides

equivalent requirements for confined and enclosed spaces and for work

in dangerous atmospheres in shipyards. If the testing requirements

contained in Subpart B do not indicate a safe atmosphere, then entry is

restricted to emergencies and periods of short duration to accomplish

ventilation and additional precautions are required (such as posting

the space as Not Safe for Workers, continuous monitoring, and the

absence of ignition sources), by Sec. 1915.152 (such as air line

respirators, attendants and life lines) and by Sec. 1915.94 (frequent

checks of employees working in a confined or enclosed space or alone in

an isolated location). Once the hazard is removed and the space is safe

for entry, the employer is required to test frequently to monitor and

maintain the space as safe for workers. As a result, OSHA does not

believe it is necessary to require attendants in Subpart B as well.

Paragraph (c)(2) of Sec. 1910.146 requires general industry

employers to post signs or use other effective means of informing

employees about the existence and location of and the danger posed by

permit spaces; paragraphs (c)(3) and (d)(1) require general industry

employers to take measures to prevent unauthorized entry into permit

spaces; and paragraph (i)(8) requires attendants to take measures to

keep unauthorized persons out of permit spaces. The notice reopening

the record requested comments on whether or not shipyard employers

should be required to take measures, such as those proposed in

Sec. 1910.146, to prevent unauthorized entry into work areas covered by

Subpart B.

The commenters agreed that the systems being employed by the

shipyard industry have been effective at preventing unauthorized access

under the previous Subpart B (Ex. 11-3, 11-6, 11-7, 11-10, 11-11, 11-

13, 11-14, 11-15, 11-18, 11-19, 11-20, 11-24, 11-25, 11-26, 11-31, 11-

32, 11-39, 11-41, 11-42, 11-43, 11-44, 11-45, 11-49, 11-50). They

contended that all spaces are made safe before entry and that the

posting and training requirements proposed in Subpart B and outlined in

the notice reopening the record would keep employees from entering

unsafe areas. The Jonathan Corporation (Ex. 11-18) presented these

arguments as follows:

As a result of routine training, our employees are cognizant of

the fact that only spaces which have been tested and posted as being

SAFE FOR WORKERS are cleared for entry. This system has served our

company very well. This proposal does not recognize our daily

involvement with confined spaces.

Mr. Joseph J. Ocken (Ex. 11-31) agreed, stating:

Any expectation that every confined space (or enclosed space

presenting confined space hazards) will somehow be properly

barricaded courts disaster. My Coast Guard training emphasizes a

straight forward safe work practice: ANY SPACE presenting confined

space hazards must be RECENTLY tested by THOROUGHLY trained and

equipped individuals and have appropriate ENGINEERING CONTROLS

applied BEFORE ENTRY. Any other space, REGARDLESS OF BARRIERS, is

treated as UNSAFE.

OSHA concurs with these comments. The revised Subpart B protects

employees from ``unauthorized'' entry through the use of several

protective techniques. First, Sec. 1915.12(d) requires employees to be

trained to recognize the characteristics of confined spaces and the

hazards involved. They are also required to be trained to perform their

duties safely (Sec. 1915.12(d)) and to understand all warning signs and

labels (Sec. 1915.16(a)). Second, confined spaces and spaces containing

dangerous atmospheres must be tested and found safe before entry under

paragraphs (a), (b), and (c) of Sec. 1915.12. Third, under these same

paragraphs, spaces found not to be safe for entry are labeled ``Not

Safe for Workers''. Under the unique conditions of shipyard employment,

these measures are effective at preventing unauthorized employees from

entering spaces containing dangerous atmospheres. To illustrate, when a

space is marked ``Not Safe for Workers,'' the only authorized entrants

are those who are entering for emergencies or for short durations to

accomplish ventilation to make the space safe. It is not until the

space is retested and certified as ``Safe for Workers'' that employees

are allowed to do work in the space.

Under the general industry standard, only a confined space

containing a hazard that may expose an employee to the risk of death,

incapacitation, or impairment of ability to self-rescue is deemed to be

a permit space, requiring the adoption of the protective measures set

out in Sec. 1910.146. The general industry standard addresses hazards

that are exacerbated by the lack of adequate means of access and egress

and by the enclosing nature of the space. By contrast, Subpart B treats

all confined and enclosed spaces and other dangerous atmospheres that

could present an atmospheric hazard as having this potential, and

requires protective measures before entry takes place. In the shipyard

context, this approach provides an effective means of protecting

employees who must enter confined and enclosed spaces and other

dangerous atmospheres.

Section 1910.146 also requires employers to consider non-

atmospheric hazards, such as engulfment and internal configuration of

the space, in determining whether or not a confined space is a permit

space. The proposed revision of Subpart B did not address non-

atmospheric issues. Because OSHA was considering the expansion of

Subpart B to land-side confined spaces in lieu of applying

Sec. 1910.146, the notice reopening the record requested comments on

whether or not Subpart B, as expanded, would adequately address non-

atmospheric hazards that may be encountered in confined space work

(Specific Issue B-1, Question J).

The vast majority of commenters agreed that Subpart B, in

combination with other requirements in part 1915, adequately protected

employees (Ex. 11-2, 11-3, 11-6, 11-9, 11-13, 11-14, 11-15, 11-18, 11-

19, 11-20, 11-24, 11-25, 11-26, 11-28, 11-29, 11-30, 11-31, 11-35, 11-

37, 11-39, 11-40, 11-41, 11-45, 11-47, 11-49, 11-50). These commenters

contended that non-atmospheric hazards are readily identified, are

covered by other part 1915 standards, and are the responsibility of

line supervisors and employees. The statement of Ingalls Shipbuilding

(Ex. 11-30) was typical of these comments:

Ingalls believes that such non-atmospheric hazards are

adequately addressed by their current respective standards.

Ingalls further believes the foreman or supervisor of the

workers is responsible for the above listed non-atmospheric hazards.

Subsequent to an 'inspection by the competent person, non-

atmospheric hazards may develop as a result of ongoing work (for

example, a welder installing his welding leads which create a

tripping hazard). The foreman or supervisor is responsible for the

health and safety of his employees and for the actions of his

employees on a continual basis throughout the workday. Non-

atmospheric hazards are obvious without the need for special

instrumentation, whereas, the tests performed by the competent

person are used to detect unseen atmospheric hazards using

specialized instrumentation.

The Department of the Navy (Ex. 11-30) noted that while Subpart B

does not address non-atmospheric hazards, it should not be amended to

address such hazards:

As proposed, Subpart B does not address other dangers in

confined spaces. However, the dangers from slips, falls,

electricity, machine guarding etc. are not unique to or necessarily

intensified in confined spaces. Precautions to guard against general

non-atmospheric shipyard hazards should be specified for the entire

shipyard (all workplaces). Therefore, it is recommended that Subpart

B not be expanded to include general safety hazards; rather, these

should be covered elsewhere in 29 CFR 1915 (e.g., Subpart E/Access

and Egress, Subpart F/General Working Conditions, and/or Subpart M/

Fall Protection).

OSHA does believe that a confined or enclosed space can exacerbate

the risk faced by an employee working in a confined space containing

serious non-atmospheric hazards. If an employee is injured in a

confined space the limited means of access and egress makes emergency

medical assistance problematic. For this reason, OSHA adopted language

in Sec. 1910.146 for general industry so as to define permit-required

confined space ``in the broadest possible terms'' so that employers are

required to protect affected employees from any serious hazards which

may be confronted in a permit space [58 FR 4478-4479].''

The Agency believes that shipyard employees will be adequately

protected under revised Subpart B without incorporating additional

requirements directed towards non-atmospheric hazards. As part of the

pre-entry test, the competent person is required to make a visual

inspection of the confined or enclosed space. At this time, they can

alert the employer to non-atmospheric hazards that are addressed by

other standards. For further information, see the discussion of visual

inspection in the preamble to Sec. 1915.12 below.

The notice reopening the record on Subpart B also requested

comments on whether or not OSHA should adopt various provisions from

proposed Sec. 1910.146 that SESAC had recommended for inclusion in

revised Subpart B. These provisions included those on training, rescue,

and exchanging information between employers. The summary and

explanation of Sec. 1915.12 discusses comments received on these

provisions. Additionally, OSHA requested comments on whether any other

requirements from proposed Sec. 1910.146 would be appropriate for

inclusion in revised Subpart B. No one suggested the adoption of any

proposed Sec. 1910.146 provisions other than those relating to

attendants, permits, and unauthorized entry discussed earlier.

Paragraph (b) of Sec. 1915.11 sets definitions for revised Subpart

B. These definitions, derived in large part from NFPA 306, are intended

to facilitate compliance with the revised standard.

Previous Subpart B contains no definitions. The few definitions

relating to the previous subpart are contained in Sec. 1915.4, which

defines the following Subpart B related terms: hazardous substance,

competent person, confined space, enclosed space, hot work, and cold

work.

In Sec. 1915.11(b), the NPRM proposed to add definitions

specifically applicable to revised Subpart B. This paragraph in the

proposed rule included the terms ``competent person'' and ``hot work,''

which as noted previously, are also defined in existing Sec. 1915.4.

The NPRM also raised issues regarding the definitions of ``inert or

inerted atmospheres,'' ``Marine Chemist,'' and ``Not Safe for

Workers.''

The definitions contained in revised Subpart B are discussed in the

following summary and explanation of Sec. 1915.11(b). This discussion

provides a brief explanation of each defined term, justifies any

differences between the existing or proposed definitions and those

contained in the final rule, and discusses comments received regarding

the three terms that were raised as issues in the NPRM (no substantive

comments were received on any other terms proposed in Sec. 1915.11(b)).

``Adjacent spaces'' means spaces bordering another space in all

directions. The wording of the definition of this term has been revised

editorially from the definition in the proposal for consistency with

NFPA 306. Additionally, the final rule defines the term ``adjacent

spaces,'' whereas the proposal defined the term ``adjacent compartments

or spaces,'' because the final rule does use the term ``adjacent

compartments''.

The final rule includes a definition of the term ``Assistant

Secretary'', which means the Assistant Secretary of Labor for

Occupational Safety and Health or his or her designated representative.

This term is used in revised Subpart B, so OSHA has adopted a

definition based on Sec. 1910.2.

OSHA has not carried forward into the final rule the proposed

definition of ``bulk''. The Agency believes that a definition of this

term is not necessary to the meaning of the standard.

``Certified Industrial Hygienist'' (CIH) means an industrial

hygienist certified by the American Board of Industrial Hygiene. This

definition is unchanged from the proposal.

A ``Coast Guard authorized person'' is one who meets the U.S. Coast

Guard regulations concerning persons designated to perform the

functions of a Marine Chemist when a Marine Chemist is not reasonably

available. The definition in the final rule is essentially the same as

that contained in proposed Sec. 1915.11(b); however, substantive

requirements proposed in that definition have not been carried forward,

as they are inappropriate for use in a definition.

OSHA has not carried forward into the final rule the proposed

definition of ``competent person''. As noted earlier, this term is

defined in Sec. 1915.4, and this definition is appropriate for

application to revised Subpart B.

``Dangerous atmosphere'' means an atmosphere that may expose

employees to the risk of death, incapacitation, impairment of ability

to self-rescue (i.e., escape unaided from a confined or enclosed

space), injury, or acute illness. Although no definition of this term

was proposed, the Agency believes that it is essential for employers

and employees to know what a dangerous atmosphere is in the application

of revised Subpart B.

The final rule includes a definition of the term ``Director'',

which means the Director of the National Institute for Occupational

Safety and Health or his or her designated representative. This term is

used in revised Subpart B, so OSHA has adopted a definition based on

Section 3 of the OSH Act.

The term ``entry'' refers to the act by which a person passes

through an opening into a space and to the work performed in that

space. Entry is considered to have occurred as soon as any part of the

entrant's body breaks the plane of an opening into the space. This term

was not included in the proposed revision of Subpart B, but OSHA

believes that its inclusion is necessary for clarity. The definition

has been taken from Sec. 1910.146(b).

The term ``Enter with Restrictions'' denotes a space where entry is

only permitted under specified conditions of engineering controls,

personal protective equipment, clothing, and time. Although this term

was not defined in the proposal, the definition of this term has been

included in the final rule to help clarify when entry is permitted and

when it is prohibited.

In the NPRM, the term ``Not Safe for Workers'' was used to describe

compartments or spaces that do not meet the minimum safety criteria

necessary to permit unrestricted entry. The term was used to describe

either of two situations that occur. In the first, the space was not

safe for workers to enter unless personal protective equipment was worn

or unless the length of time of employee exposure was limited. In the

second, the space was not safe for entry under any circumstances,

regardless of whether personal protective equipment was worn. To

address this seeming contradiction, OSHA requested comments on the

issue of whether or not a separate category of ``Safe with

Restrictions'' should be included in proposed Subpart B.

Three commenters opposed the adoption of an additional category of

spaces (Ex. 6-4, 6-5, 6-8). They argued that the term ``Safe with

Restrictions'' might not be understood by all workers and that the term

``Not Safe for Workers'' was not only more appropriate, but safer as

well. For example, Sound Testing, Inc. (Ex. 6-8), stated:

If everyone, or even if most people, in the shipyards wore

respirators, I would see ``safe with restrictions'' as a primary

designation. But, that's not the case. Moreover, some one third of

shipyard workers are reputed to be functionally illiterate. Thus,

``Safe with Restrictions'' needlessly complicates certificate

language. In the most simple terms, a tank is either safe or not

safe, and the workman deserves to be told straightforwardly which is

the case.

Other commenters supported the additional designation (Ex. 6-10, 6-

13, 6-15, 6-18, 6-21, 6-22, 6-23, 6-24, 6-27, 6-28, 6-33, 6-34, 6-37,

6-38). They believed that the extra designation would recognize

existing safe work practices under the OSHA standard. For example, the

U.S. Department of Transportation (Ex. 6-13) stated:

Engineering controls are not always capable of reducing confined

space hazards to ``safe'' levels. By recognizing and addressing the

existing use of certificates with restrictions, additional

protection may be realized. Particular restrictions will be placed

on a space after consideration by the Marine Chemist and an

employer's representative.

Such certificates should not be issued for convenience or for

the purpose of avoiding the use of preferred control measures. In

addressing this practice under Part 1915, OSHA should specify that

entering such spaces is only allowed when preferred engineering

controls are used to the greatest extent feasible and found to be

inadequate.

Some of these rulemaking participants believed that the term

``Enter with Restrictions'' was a more appropriate description of the

type of location involved (Ex. 6-10, 6-21, 6-22, 6-23, 6-24, 6-27, 6-

28, 6-33, 6-34, 6-37, 6-38). NFPA (Ex. 6-10) stated their reasoning

behind this suggested term, as follows:

NFPA supports the addition of some provision for ``restricted

entry''. NFPA does not support the use of the word ``safe'' in this

case since it may be misconstrued and it would be inconsistent with

the ``Enter With Restrictions'' designation in NFPA 306.

OSHA agrees with the commenters who supported the use of the term

``Enter with Restrictions''. The Agency believes that this term better

describes the intent of requirements that are intended to limit rather

than strictly prohibit employee entry under all conditions. For

example, Sec. 1915.12(c)(3) recognizes that a Marine Chemist or a

Certified industrial hygienist may designate a space as ``Enter with

Restrictions'' and may provide a list of protective measures to be

taken before entry is allowed. Additionally, this term is consistent

with the terminology used in NFPA 306, with which most shipyard

employers are familiar and with which they are complying. For these

reasons, OSHA is incorporating this term in revised Subpart B wherever

entry is permitted under certain conditions and is using the term ``Not

Safe for Workers'' wherever entry is strictly forbidden.

``Hot work'' means any activity involving fire- or heat-producing

operations, such as riveting, welding, and burning. The definition of

this term also indicates that grinding, drilling, abrasive blasting,

and similar spark-producing operations are also considered to be hot

work unless they are isolated from atmospheres containing a

concentration of any flammable or combustible substance greater than 10

percent of the lower explosive limit of that substance. While the

definition in the final rule is substantially the same as that

contained in the proposed standard, it has been editorially revised for

clarity. It should be noted that the definition of ``hot work'' in

revised Subpart B will be applied to Subpart B whereas the definition

of the same term in Sec. 1915.4 applies to the rest of part 1915.

``Immediately dangerous to life or health''3 (IDLH) means an

atmosphere that poses an immediate threat to life or that is likely to

result in acute or immediate severe health effects. This definition has

been adopted without substantive change from the proposal.

---------------------------------------------------------------------------

\3\The definition of ``immediately dangerous to life or health''

in Sec. 1910.146 reads as follows:

Immediately dangerous to life or health (IDLH) means any

condition that poses an immediate or delayed threat to life or that

would cause irreversible adverse health effects or that would

interfere with an individual's ability to escape unaided from a

permit space.

---------------------------------------------------------------------------

``Inert or inerted atmosphere'' means an atmospheric condition in

which:

(1) The oxygen content of the atmosphere is maintained at a level

less than or equal to 8 percent by volume or at a level of 50 percent

of the amount required to support combustion, whichever is lower, or

(2) The space is flooded with water and the vapor concentration of

flammable or combustible materials in the free space above the water

line is less than 10 percent of the lower explosive limit for the

material. This definition has been adopted without substantive change

from the proposal.

In the NPRM, OSHA raised the issue of whether or not the proposed

definition of ``inert or inerted atmosphere'' was appropriate,

especially with respect to the maximum permissible level of oxygen. The

Agency asked for guidance on whether or not specific oxygen levels for

various substances should be published along with the rule.

The persons who commented on this issue felt that OSHA should not

publish specific levels in the final rule (Ex. 6-10, 6-18, 6-23, 6-24,

6-27, 6-28, 6-33, 6-34). They argued that since a Marine Chemist would

be the person authorizing and monitoring the inerting of atmospheres

and since Marine Chemists are thoroughly familiar with the selection of

appropriate procedures involved, specifying oxygen levels in the OSHA

standard was unnecessary. Endorsing this view, NFPA (Ex. 6-10) stated:

Inerting in the marine industry is overseen by Marine Chemists

in accordance with the requirements of the ``Control of Gas Hazards

on Vessels--NFPA 306 (1988).'' The provisions for inerting as

contained in NFPA 306, 2-3.7(a), are based upon the industry

accepted practice for inerting. It takes into account the

theoretical lower limit for the amount of oxygen to support

combustion, which is approximately 11% by volume for most petroleum

products. The procedure specifies either reducing the oxygen content

to 8% by volume or 50% of the amount to support combustion,

whichever is less. In practice, because the value of 50% of the

amount to support combustion is usually less than 8% by volume, an

even greater margin of safety is achieved. The minimum oxygen for

combustion values are contained in Appendix B, ``Explosion

Prevention Systems--NFPA 69 (1986)''. NFPA 306 requires in 2-3.7(a),

(c) that the selection and disposal of the inert gas medium be

acceptable to the Marine Chemist who provides specific instructions

on his/her Marine Chemist Certificate.

NFPA supports the addition of the definition for inerting and

the levels as specified in the definition since these levels are

industry accepted and provide for an adequate level of safety when

administered by a Marine Chemist in accordance with NFPA 306.

The Marine Chemist Association, Inc. (Ex. 6-34), agreed stating:

The Marine Chemist Association feels that inerting is not a

procedure free of potential hazards and that inerting for hot work

should only be attempted with the proper skill to determine each of

the above mentioned factors. If OSHA provides only partial details

of these factors, it may lead to unauthorized personnel attempting

the procedure outside current regulatory requirement, and could

possibly result in the generation of hazardous situations.

For the reasons stated by NFPA and the Marine Chemist Association,

OSHA is not specifying the precise levels of oxygen acceptable under

the definition of ``inert or inerted atmosphere'', either directly in

the definition or in an appendix. Under Sec. 1915.14(a), an atmosphere

to be inerted must be tested and certified by a Marine Chemist or a

U.S. Coast Guard authorized person, who would be thoroughly familiar

with the proper techniques involved. The Agency fully concurs with the

Marine Chemist Association that setting out these levels within the

standard itself might encourage unqualified persons to undertake the

inerting of a hazardous atmosphere, possibly leading to a severe

accident.

``Labeled'' means identified with a sign, placard, or other form of

written communication that informs all employees of the status or

condition of the work space to which it is attached. This term was not

included in the proposed revision of Subpart B, but OSHA believes that

its inclusion is necessary for clarity.

``Lower explosive limit'' (LEL) means the minimum concentration of

vapor below which propagation of a flame does not occur in the presence

of an ignition source. This definition is unchanged from the proposal.

``Marine Chemist'' means an individual who possesses a current

Marine Chemist Certificate issued by the National Fire Protection

Association. This definition is substantially the same as the one in

the proposal.

In the NPRM, OSHA requested comments related to the definition of

``Marine Chemist''. Although some comments were received on this

subject, they all related to the issue of whether or not anyone else

could perform the duties required of a Marine Chemist. These comments

are discussed under the summary and explanation of Secs. 1915.12(c)(3)

and 1915.14(a)(1), later in this preamble.

``Nationally Recognized Testing laboratory'' (NRTL) means a

laboratory recognized by OSHA as meeting the provisions of Appendix A

of Sec. 1910.7. In the previous standard, OSHA referred to

``Underwriters Laboratories'' as one of the organizations that could

approve lamps for use in Class I, Group D atmospheres. Since OSHA has

promulgated the NRTL standard, laboratories meeting that standard are

the appropriate organizations to approve such lamps.

``Not Safe for Hot Work'' denotes a space where hot work may not be

performed. This definition is substantially the same as the one in the

proposal.

``Not Safe for Workers'' denotes a space that employees may not

enter. The proposed definition of ``Not Safe for Workers'' contained

criteria to be used to determine whether or not a space was safe for

entry. OSHA has not carried these criteria forward into the definition

of this term in the final rule. The same criteria also appeared under

the proposed definition of ``Safe for Workers''. OSHA believes that

removing the redundancy will help clarify revised Subpart B. (See the

summary and explanation of the definition of ``Enter with

Restrictions'', earlier in this preamble, for additional discussion of

issues regarding the use of the term ``Not Safe for Workers''.)

``Oxygen-deficient atmosphere'' means an atmosphere having an

oxygen concentration of less than 19.5 percent by volume. ``Oxygen-

enriched atmosphere'' means an atmosphere that contains 22.0 percent or

more oxygen by volume. These two definitions have been carried forward

from the proposal without substantive change.

``Safe for Hot Work'' denotes a space that meets the following

criteria:

(1) The atmosphere is not oxygen-enriched;

(2) The concentration of flammable vapors in the atmosphere is less

than 10 percent of the LEL;

(3) Residues or materials within the space, under existing

atmospheric conditions in the presence of hot work and while maintained

as directed by the Marine Chemist or competent person, are not capable

of producing a higher concentration of oxygen or flammable vapors than

permitted under the first two criteria; and

(4) All adjacent spaces have been cleaned or inerted or otherwise

treated sufficiently to prevent the spread of fire.

The definition in the final rule is substantively the same as the

corresponding definition in the proposal; however, the language has

been improved for clarity.

``Safe for Workers'' denotes a space that meets the following

criteria:

(1) The atmosphere is neither oxygen-deficient nor oxygen-

enriched;

(2) The concentration of flammable vapors is below 10 percent of

the LEL;

(3) Any toxic materials associated with cargo, fuel, tank coatings,

inerting mediums, or fumigants are within permissible concentrations at

the time of inspection; and

(4) Residues or materials associated with the work authorized by

the Marine Chemist, Certified Industrial Hygienist, or competent person

will not produce uncontrolled toxic materials under existing

atmospheric conditions while maintained as directed.

The definition in the final rule is substantively the same as the

corresponding definition in the proposal, except that the language has

been improved for clarity and the ``exception'' in the proposal

regarding the concentration of flammable vapors has not been carried

forward. OSHA believes that this exception, which is recognized in

Sec. 1915.13(b)(6) in the final rule, more properly falls under the new

term ``Enter with Restrictions''.

``Space'' means an area on a vessel, vessel section or within a

shipyard such as, but not limited to, a cargo tank or hold, pump or

engine room, storage locker, tank containing flammable or combustible

liquids, gases, or solids; a room within a building, crawl space,

tunnel, and accessway. Although no definition of this word was

proposed, its meaning is essential to the content of revised Subpart B.

The final rule uses the word ``space'' broadly to encompass all the

different types of areas in a shipyard where dangerous atmospheres

might be found. The definition of this word in the final rule is

intended to convey this meaning to employers and employees who must

comply with the standard.

``Upper explosive limit'' (UEL) means the maximum concentration of

flammable vapor above which propagation of flame does not occur on

contact with a source of ignition. This definition is unchanged from

the proposal.

``Vessel section'' means a subassembly, module, or other component

of a vessel being built, repaired, or broken. This definition is

unchanged from the proposal.

``Visual inspection'' means the physical survey of the space,

surroundings and contents by the competent person, Marine Chemist, or

Certified Industrial Hygienist to identify hazards such as, but not

limited to, restricted accessibility, residues, unguarded machinery,

and piping or electrical systems that could create or enhance hazards.

This term is defined in the final rule to clarify what is required of

the person preforming the inspection.

OSHA has not carried forward into the final rule the proposed

definition of ``weather deck''. The Agency believes that a definition

of this term is not necessary to the meaning of the standard.

2. Sec. 1915.12 Precaution Before Entering Spaces.

OSHA has made several significant changes to Sec. 1915.12. First,

OSHA has reformatted this section to address more appropriately the

order of atmospheric testing to be conducted by competent persons when

determining hazards within confined and enclosed spaces and other

dangerous atmospheres prior to employee entry. Second, OSHA has raised

the minimum level of oxygen for entry and addressed oxygen-enriched

atmospheres in this section. Third, the Agency has specified when and

under what conditions an employee may enter a space that has been found

``not safe for workers.'' Finally, OSHA has added new paragraphs to

this section to address: (1) The training of individuals who enter

dangerous and confined spaces (paragraph (d)), (2) rescue teams

(paragraph (e)), and (3) the exchange of hazard information between

employers (paragraph (f)).

OSHA is also making the requirement to visually inspect each space

explicit in this final standard. In the NPRM, comments were solicited

on whether the shipyard competent person should be required to conduct

a physical examination of the tank and pipelines when making an

inspection. Many commenters supported OSHA's decision (Ex. 6-4, 6-10,

6-12, 6-13, 6-15, 6-18, 6-24, 6-28, 6-31, 6-33, 6-34). For example,

NFPA (Ex. 6-10) stated:

NFPA strongly supports the inclusion of a requirement that in

addition to atmospheric testing the shipyard competent person should

also be required to conduct a physical examination of the space and

associated pipelines. NFPA 306, 2-1 requires the Marine Chemist to

conduct a physical inspection and to conduct test within the space.

For high flash point, low vapor pressure products such as diesel, a

test for flammable or combustible vapors is not sufficient, since at

atmospheric temperatures there are not enough vapors being evolved

for the combustible gas indicator to detect. It is essential that

physical inspections be conducted.

OSHA has decided that a visual inspection is a crucial element in

ascertaining that confined and enclosed spaces and other dangerous

atmospheres are safe for entrants. Based on the visual inspection and

other information available to the employer about non-atmospheric

hazards, the employer is required to take specific actions as required

by other subparts. For example, precautions to be taken for electrical

hazards are covered by Sec. 1915.181 (shipboard) and Sec. 1910.147

(shipboard) and machinery is addressed by Sec. 1915.164 (for vessels)

and Sec. 1910.212 (land-side).

In paragraphs (a), (b), and (c) of final Sec. 1915.12, OSHA is

requiring atmospheres to be tested for oxygen content first,

flammability second, and toxicity third. The format of the previous

standard implied that atmospheres be tested for flammability first,

toxicity second, and oxygen deficiency third.

Even before the revision of Subpart B was proposed, Newport News

Shipbuilding and Harbor Testing Laboratory commented that the proper

sequence is testing for oxygen, then flammability, then toxicity (53 FR

48096). To address this problem, OSHA proposed to present the testing

requirements in the proper sequence. However, as noted in the NPRM, the

proposed rule would not have required testing in any particular order.

OSHA believes that it is important for atmospheric testing to be

conducted in the proper sequence. The Agency reached the same

conclusion in the rulemaking on Sec. 1910.146, which adopted a rule

requiring atmospheric testing in the correct order in that final rule,

for the following reasons:

A test for oxygen must be performed first because most

combustible gas meters are oxygen dependent and will not provide

reliable readings in an oxygen deficient atmosphere. In fact, the

Johnson Wax Company (Ex. 14-222) stated that ``there is [a] specific

(sensor dependent) oxygen level below which the combustible gas

sensor will not respond at all [emphasis was supplied in

original].'' Combustible gases are tested for next because the

threat of fire or explosion is both more immediate and more life

threatening, in most cases, than exposure to toxic gases. [53 FR

48096]

This reasoning applies to the revision of Subpart B as well.

Atmospheric testing in confined and enclosed spaces and other dangerous

atmospheres in shipyards is basically the same as atmospheric testing

in general industry permit spaces. Therefore, the revision of

Sec. 1915.12 requires shipyard employers to perform atmospheric testing

in the following sequence: oxygen content, flammability, toxicity.

In paragraph (a)(1), OSHA continues the requirement (in

Sec. 1915.12(c)(1)) for competent persons to test atmospheres of

specific spaces that may contain oxygen-deficient atmospheres. These

spaces are listed specifically as follows:

(1) Spaces that have been sealed,

(2) Spaces and adjacent spaces that contain or have contained

combustible or flammable liquids or gases,

(3) Spaces and adjacent spaces that contain or have contained

liquids, gases, or solids that are toxic, corrosive, or irritant,

(4) Spaces that have been fumigated, and

(5) Spaces containing materials or residues that could create an

oxygen-deficient atmosphere. This final rule adopts the language from

the NPRM to require competent persons to test atmospheres of these

spaces for ``oxygen content'' rather than just ``oxygen deficiency.''

Paragraph (a)(2) of final Sec. 1915.12 addresses the maximum

permissible oxygen concentration within confined and enclosed spaces

and other dangerous atmospheres. Therefore, the testing to be performed

must be for content rather than for oxygen deficiency alone. (The

rationale for adopting a requirement for maximum permissible oxygen

exposure is discussed under the summary and explanation of final

Sec. 1915.12(a)(2).)

In the previous rule Sec. 1915.12(c)(1) required tests to be

conducted ``[b]efore employees are initially permitted to enter'' any

of the regulated spaces. Paragraphs (b)(1) and (c)(1) contain this

identical language for pre-entry testing for flammable gases and vapors

and for toxic substances. The NPRM used the language ``prior to initial

entry'' in proposed Sec. 1915.12(a)(1) and the language ``prior to

entry'' in proposed Sec. 1915.12 (b)(1) and (c)(1). The preamble to the

proposal noted that questions had arisen regarding what was intended by

``initial entry'' in the previous standard and that the Coast Guard had

interpreted the OSHA standard to require retesting if more than 24

hours had elapsed since the previous testing. The NPRM raised the

issues of whether ``initial entry'' should be defined in Subpart B and,

if so, what that definition should be.

Several commenters believed that OSHA should not specify the

maximum time permitted to elapse before additional testing is required

(Ex. 6-3, 6-6, 6-8, 6-12, 6-18). They argued that the length of time

between testing and entry could vary depending on the space and the

possible hazards involved. For example, Mr. Charles K. Klein,

representing Newport News Shipbuilding, stated:

OSHA should not specify a time limit regarding re-certification

of spaces after ``initial entry'' certification has been given. The

Coast Guard's interpretation for re-certification is based on a 24-

hour lapse period since a tank has been previously determined safe

for entry. However, we feel that as long as conditions have not

changed since the space was certified for ``initial entry'',

additional certification is not required. Periods longer than 24

hours may be appropriate in cases where a confined space does not

contain a hazardous substance, is not connected to a system which

contains a hazardous substance and has not been closed except for an

air or hydrostatic test. However, certain evolutions involving

hazardous substances in or near confined spaces may require testing

on a shift basis or more often. A time limit imposed on ``initial

entry'' is unnecessarily restrictive and reduces the employer's

flexibility in providing a safe and healthful work environment in an

effective, cost-efficient manner. [Ex. 6-6]

Two commenters maintained that the certificate issued by a Marine

Chemist would control whether or not a space had to be retested beyond

a certain period (Ex. 6-8, 6-18). They believed that retesting was

unnecessary unless conditions changed or unless the Marine Chemist's

certificate required it. Sound Testing, Inc., expressed this position

as follows:

It should be made clear that a Marine Chemist's certificate is

voided not by the passage of time, but by the change of conditions.

Therefore, if a competent person can ascertain that conditions have

not drastically changed, the chemist's certificate remains in force,

regardless of how long between competent person inspections. The

corollary of this is that there should be no explicit time limit on

the chemist's certificate unless the chemist himself sees a reason

for such a limit. [Ex. 6-8]

Other rulemaking participants argued that the regulation should

clarify what constitutes initial entry or when additional testing is

required before the first entry into the space (Ex. 6-4, 6-5, 6-10, 6-

13, 6-21, 6-22, 6-24, 6-27, 6-28, 6-33, 6-34, 6-37, 6-38). Several of

these commenters stated that the standard should specify the maximum

interval permitted before additional testing would have to be performed

(Ex. 6-4, 6-5, 6-10, 6-24, 6-27). The intervals suggested ranged from

immediately before the entry (Ex. 6-24) to 24 hours (Ex. 6-27). For

example, the U.S. Coast Guard stated:

It has been our experience that if a minimum is not set the

retesting is not done or is done infrequently because of the

competent person's other work obligations. Our policy does not

prohibit the inspector from requiring additional testing if he feels

the conditions warrant. We have required additional retesting

because of rises in temperature, excess quantity of cargo residues,

and lack of confidence in the competent person. [Ex. 6-4]

Other commenters thought that a definition of ``initial entry''

would clarify the standard (Ex. 6-21, 6-22, 6-23, 6-28, 6-33, 6-34, 6-

37, 6-38). Four of them recommended that ``initial entry'' refer to the

first entry after testing and that additional testing be required for

entry on subsequent days to ensure that safe conditions are still

present (Ex. 6-21, 6-22, 6-37, 6-38). Two of them suggested that it

refer to the time immediately after the initial opening of a space,

when the tests and inspections performed to determine whether or not

the space is safe for entry are conducted (Ex. 6-28, 6-34). The

American Waterways Shipyard Conference (AWSC) maintained that ``initial

entry'' should be defined as the first entry by shipyard personnel

after the space has been certified by the Marine Chemist (Ex. 6-23).

They explained the reasons for their position as follows:

The United States Coast Guard has interpreted the term to mean

``more than 24 hours have elapsed since a tank has been determined

safe for entry and/or hot work.'' If that time period has elapsed

then the tank must be recertified. However, this interpretation does

not take into account the shipyard facility's requirements to

maintain conditions. The shipyard facility must commence work on the

vessel within 24 hours, after the certificate has been issued or the

Marine Chemist certificate becomes invalid. As long as the

conditions listed on the certificate are maintained, then the

certificate is valid. However, if the conditions, as specified on

the certificate change, then the Marine Chemist is recalled to

recheck the space.

Including the definition for initial entry recommended by AWSC

will eliminate confusion within the industry and impose a standard

practice around the country. [Ex. 6-23]

OSHA believes that it is important to clarify the term ``initial

entry'' so that employers and employees understand clearly what OSHA

means by the term. With respect to spaces that require certification by

a Marine Chemist, it is OSHA's intent that ``initial entry'' means the

first entry into a certificated space after the Marine Chemist's

certificate has been posted. The period of time during which the Marine

Chemist's certificate is valid is established by the Marine Chemist and

is logged on the certificate as posted. OSHA believes that the Marine

Chemist performing the tests and inspection of a space to be entered is

in the best position to determine the duration of the permit's

validity. With respect to spaces that must be tested but need not be

certificated by a Marine Chemist, the Agency will interpret the

``initial entry'' to be the very first entry into the space after

testing is performed. (No entry is allowed before those tests have been

performed.) In addition, the tests must be performed close enough to

the time of entry to ensure that they accurately reflect conditions in

the spaces. To meet this standard, testing will nearly always be done

just prior to entry by employees; seldom will tests be performed prior

to an hour before employees are to enter a space.

There are also requirements in Sec. 1915.15 for periodic monitoring

and maintaining atmospheric conditions within a space as found by the

Marine Chemist, Coast Guard authorized person, or competent person.

Tests must be repeated as often as necessary to ensure that the

required atmospheric conditions within the space are maintained

(paragraphs (c) and (e)). Additionally, when a change occurs that could

alter conditions within a tested space, work in the space must stop and

employees must exit, and the area must be retested (paragraphs (b),

(d), and (f)).

OSHA believes it is unnecessary to establish within the regulatory

text of Sec. 1915.12 a specific time limit beyond which the initial

entry is not permitted after pre-entry testing. As noted in several

comments, periods longer than 24 hours may be appropriate if a confined

or enclosed space or other dangerous atmosphere does not contain a

hazardous substance, is not connected to a piping or exhaust

ventilation system that contains a hazardous substance, and has not

been closed except for an air or hydrostatic test (Ex. 6-3, 6-6). OSHA

has determined that the need for testing is directly related to the

potential for change to occur within spaces. The duty to test as

conditions warrant is imposed by Sec. 1915.12 and Sec. 1915.15, in

combination. These two sections require that, in all cases, testing of

the space must be conducted before employees enter the space and as

often as necessary to monitor conditions within the space as work

progresses. Obviously, any change in conditions that could affect the

designation of a space as ``Safe for Workers'' require reinspection,

retesting, and recertification of the space by the competent person or

Marine Chemist.

Therefore, for the purposes of this rule, the term ``initial

entry'' is interpreted by OSHA to mean the first entry into a space.

The time period between pre-entry testing and initial entry may vary.

However, the space must be reinspected, retested, and recertified any

time conditions in the space might have become unsafe for employees.

As noted earlier, in paragraph (a)(1), OSHA is continuing the

previous requirement (in Sec. 1915.12(c)(1)) for competent persons to

test atmospheres of specific spaces that may contain oxygen-deficient

atmospheres. The following paragraphs describe each of the spaces

itemized in paragraph (a)(1).

Paragraph (a)(1)(i) of final Sec. 1915.12 lists spaces that have

been sealed, e.g., those that have been coated and closed up and those

that have been painted and that lack ventilation. OSHA has combined the

spaces listed in paragraphs (c)(1) (ii), (iii), and (iv) of the

previous Sec. 1915.12 into one paragraph because OSHA considers the

hazards within these spaces to be similar. The primary hazard of these

spaces is the lack of proper ventilation and the resultant possible

lack of oxygen. OSHA considers the consolidation of the previous

paragraphs into one paragraph to be an editorial change for clarity

because none of the spaces currently listed have been deleted nor have

any been added.

Paragraph (a)(1)(ii) lists spaces and adjacent spaces that contain

or have contained combustible or flammable liquids or gases. Paragraphs

(a)(1)(iii) and (a)(1)(iv) list spaces and adjacent spaces that contain

or have contained liquids, gases, or solids that are toxic, corrosive,

or irritant or that have been fumigated. These three paragraphs refer

to spaces that were included under the previous Sec. 1915.12(c)(1)(i),

which reads as follows:

(i) Spaces in which the test[s] required by paragraphs (a) and

(b) of this section indicate that no flammable or toxic contaminants

are present in the atmosphere.

Under this previous provision, spaces that require flammability and

toxicity testing must also be tested for oxygen deficiency. In revised

subpart B, OSHA has simply named the spaces that are covered under the

previous Sec. 1915.12 (a) and (b) in lieu of specifying them by

reference. Additionally, the final rule requires these spaces to be

tested for oxygen regardless of whether they are found to be safe with

respect to the hazards of flammable and toxic substances. Under the

previous standard, which implied that the flammability and toxicity

tests were performed before the oxygen test, once a space was found to

be unsafe due to the presence of flammable gases or vapors or toxic air

contaminants, further testing for oxygen deficiency was unnecessary.

Under the final rule, tests for oxygen content are conducted first and

must always be performed.

Paragraph (a)(1)(v) lists spaces containing materials or residues

that could create an oxygen-deficient atmosphere. The previous

Sec. 1915.12(c)(1)(v) covers only cargo spaces containing cargoes or

residues that can create an oxygen-deficient atmosphere. The

corresponding paragraph in the proposal (proposed

Sec. 1915.12(a)(viii)) also addressed only cargo spaces. The proposed

and previous language also provide examples of cargos that can absorb

oxygen and create an oxygen-deficient atmosphere (scrap iron, fresh

fruit and molasses, and various vegetable drying oils).

As noted in the summary and explanation of final Sec. 1915.11(a),

earlier in this preamble, the scope of subpart B is being expanded to

address all confined and enclosed spaces and other dangerous

atmospheres throughout shipyard employment. While the previous standard

recognizes that the hazard of oxygen deficiency may be found in cargo

spaces, many other confined and enclosed spaces in shipyard employment

also pose this hazard. OSHA believes that it is essential that all such

spaces be tested for oxygen content before entry to assure their

safety. Therefore, the Agency is eliminating the reference to cargo

spaces and is requiring all spaces containing materials or residues

that could create an oxygen deficiency to be tested.

Paragraph (a)(2) requires spaces that have been tested and found to

contain oxygen-deficient atmospheres to be labeled ``Not Safe for

Workers.'' Spaces found to be oxygen-enriched are required to be

labeled ``Not Safe for Workers--Not Safe for Hot Work.'' If employees

are to enter a space that has an oxygen-enriched or oxygen-deficient

atmosphere, then ventilation must be provided to maintain the oxygen

content of the atmosphere at or above 19.5 percent and below 22.0

percent by volume. After the ventilation produces an acceptable level

of oxygen, the warning signs may be removed.

The previous Sec. 1915.12(c)(2) only requires ventilation for

spaces containing less than 16.5 percent oxygen by volume. It does not

require spaces with oxygen-deficient or oxygen-enriched atmospheres to

be labeled, nor does it address oxygen-enriched atmospheres.

Additionally, it requires ventilation to be provided only when the

oxygen content in the space is below 16.5 percent by volume, rather

than below 19.5 percent.

Unlike either the proposal or the previous rule, the final rule

addresses hazards associated with oxygen-enriched atmospheres. Oxygen-

enriched atmospheres create significant risks to employees entering

confined and enclosed spaces and other dangerous atmospheres, and

precautions must be taken before entry into such atmospheres. The

proposal would have required atmospheres to be tested for oxygen

content rather than for oxygen deficiency alone. No rulemaking

participant objected to this requirement. NFPA 306, in Section 2-3.1,

sets the criteria for compartments and spaces to be found ``Safe for

Workers.'' The first criterion listed in this section is that the

oxygen content of the space be ``at least 19.5 percent and not greater

than 22 percent by volume.'' Thus, OSHA is consistent with the existing

national consensus standard which has adopted provisions restricting

entry into oxygen-enriched atmospheres.

The hazards of working in an oxygen-enriched atmosphere are widely

recognized. The presence of greater than normal amounts of oxygen

increases the flammability of materials and lowers the flash point of

flammable materials. An ignition source, such as a spark, that would

ordinarily be of insufficient energy to ignite a flammable mixture may

ignite such mixture in oxygen-enriched atmospheres. The presence of

greater than normal amounts of oxygen can also increase the chances of

spontaneous combustion of flammable materials. Thus, an oxygen-enriched

atmosphere in a confined or enclosed space or other dangerous

atmosphere can place employees at an unacceptable risk of injury due to

fire or explosion. Employers must take measures to find the source of

oxygen and then eliminate that source and ventilate the space in order

to control the hazards involved.

For the foregoing reasons, OSHA has adopted requirements in final

Sec. 1915.12(a) that are intended to eliminate the hazards posed by

oxygen-enriched atmospheres. The Agency has adopted NFPA's criterion

for oxygen enrichment (that is, an oxygen concentration of 22 percent

or more by volume). Thus, the final rule sets a standard that protects

employees to a level equal to that provided by the relevant national

consensus standard for the work involved.

The proposed rule, under Sec. 1915.12(a)(4) and (a)(5), would have

required labeling spaces with oxygen-deficient (that is less than 19.5

percent oxygen) atmospheres, but would have permitted employees to

enter such spaces provided they were wearing respirators.

The final rule raises the minimum acceptable concentration of

oxygen from 16.5 percent to 19.5 percent by volume. As noted earlier,

the NPRM proposed raising the minimum acceptable level of oxygen, and

several rulemaking participants commented on this issue (Ex. 6-3, 6-6,

6-10, 6-11, 6-15, 6-18, 6-24, 6-28, 6-33). All of them agreed with the

proposed minimum oxygen level. For example, the Shipbuilders Council of

America (Ex. 6-3) stated:

Routine entry should be allowed only if the oxygen level is at

least 19.5 percent.

Northwest Marine Chemist (Ex. 6-18) maintained that the existing

minimum acceptable concentration of oxygen in Sec. 1915.12(c)(1) was

outdated, as follows:

The use of 16.5% oxygen by OSHA is archaic, and not used in the

industry in my area.

Additionally, OSHA's generic confined space standard, in

Sec. 1910.146(b), defines ``oxygen-deficient atmosphere'' as ``an

atmosphere containing less than 19.5 percent oxygen by volume.''

OSHA has previously concluded that permitting employees to work in

atmospheres in which the concentration of oxygen is below 19.5 percent

by volume presents an unacceptable risk of acute adverse health

effects. In the preamble to final Sec. 1910.146, OSHA described the

possible results of exposure to oxygen-deficient atmospheres as:

dizziness, tiredness, difficulty in breathing, confusion,

unconsciousness, and death (58 FR 4476). Considering these possible

consequences, the Agency continues to believe that the minimum

acceptable concentration of oxygen, in the absence of control measures,

is 19.5 percent by volume.

As noted earlier, Sec. 1915.12(a)(2) requires spaces containing

oxygen-deficient and oxygen-enriched atmospheres to be labeled ``Not

Safe for Workers'' or ``Not Safe for Workers--Not Safe for Hot Work,''

respectively. The previous standard does not require such labeling. The

proposed rule would have required labeling only for oxygen deficiency,

under Sec. 1915.12(a)(5). No one objected to the labeling requirement

proposed in Sec. 1915.12(a)(5), and OSHA believes that this labeling is

necessary to warn employees to keep out of spaces containing

insufficient oxygen to work safely. Therefore, the Agency is carrying

forward the proposed provision that spaces with oxygen-deficient

atmospheres be labeled ``Not Safe for Workers.'' Because OSHA has found

it necessary and appropriate to prohibit entry into oxygen-enriched

atmospheres, the Agency also believes that it is necessary to label

spaces containing such atmospheres. Because of the increased risk of

fire and explosion associated with these atmospheres, the final rule

requires them to be labeled as ``Not Safe for Hot Work'' as well as

``Not Safe for Workers.''

Final Sec. 1915.12(a)(2) requires ventilation to be provided to

maintain the oxygen content of the atmosphere in a safe range.

Paragraph (c)(2) of the previous Sec. 1915.12 contains the same

requirement, except that it applies only when an oxygen deficiency is

found. The proposed revision of Subpart B would not have required

ventilation but would have permitted employees to enter oxygen-

deficient atmospheres if they were wearing respirators (proposed

Sec. 1915.12(a)(4)).

OSHA has decided not to allow employees to enter confined or

enclosed spaces or other dangerous atmospheres that are designated

``Not Safe for Workers,'' except under tight restriction. (See the

summary and explanation of final Sec. 1915.12(c)(3), later in this

preamble, for a discussion of issues related to employee entry into

such spaces.) Therefore, the final rule adopts a requirement, similar

to the one in the previous Sec. 1915.12(c)(2), for ventilation to be

provided any time a space is hazardous because of oxygen deficiency or

oxygen enrichment. Once the ventilation brings the oxygen content to a

safe level, signs labeling the space as ``Not Safe for Workers'' or

``Not Safe for Workers--Not Safe for Hot Work'' may be removed.

Paragraph (a)(3) of final Sec. 1915.12 prohibits employees from

entering any confined or enclosed space or other dangerous atmosphere

that is oxygen-deficient or is oxygen-enriched. Exceptions are granted

for emergency rescue and for entries of short duration to install

ventilation equipment, provided that the atmosphere is continuously

monitored for oxygen content and that respiratory protection and other

personal protective equipment and clothing are provided in accordance

with Subpart I of part 1915.

The previous Sec. 1915.12 prohibits entry into IDLH atmospheres.

Paragraph (d) of that section presents exceptions to the general

prohibition which recognize emergency entries and short duration

entries performed for the purpose of installing ventilation equipment

or starting operations, provided the work is performed in accordance

with paragraphs (a) and (b) of the previous Sec. 1915.152 (contained in

Subpart I) relating to respiratory protection.

Proposed Sec. 1915.12(d) presented the same exceptions as the

previous rule, but with three additional provisos:

(1) That no ignition sources are present, and

(2) That the atmosphere in the space is maintained above the upper

explosive limit, and

(3) That the atmosphere is monitored continuously.

The reference to the Subpart I requirements was placed in a note

following the proposed paragraph. As noted earlier, proposed

Sec. 1915.12(a)(4) would also have allowed entry into oxygen-deficient

atmospheres by employees wearing respirators in accordance with Subpart

I of part 1915. No restrictions on the purpose or length of entry were

proposed.

The NPRM requested comments on the issues of whether or not work in

IDLH atmospheres should ever be permitted and on what control measures

are necessary for the protection of employees working in IDLH

atmospheres. In the preamble to the NPRM, OSHA recognized that

atmospheres containing flammable vapor concentrations greater than the

UEL for a particular vapor do not present a fire or explosion hazard to

employees because the atmosphere is too rich in flammable vapors or

gases to burn. However, OSHA expressed concern about employees who work

in such atmospheres because such atmospheres may contain chemical

exposures from the flammable vapor that are above the permissible

exposure limit (PEL) for the particular chemical creating the vapors.

Only one commenter supported OSHA's proposal to allow work in IDLH

atmospheres. The American Waterways Shipyard Conference (Ex. 6-23)

stated that OSHA should not put a time limit on ``short duration'' and

that the proposal was appropriate, as follows:

Due to the vast differences in vessel design, it would be

extremely difficult to define an ``emergency work'' situation.

Similarly, a time limit for ``brief duration'' would be difficult to

ascertain since the work to be performed differs in every situation.

By instituting a time factor for work of brief duration, shipyard

employees may be required to skip safety steps in order to finish

the work in the required time frame.

Work in atmospheres in the Upper Explosive Limit (UEL) should

not be prohibited. The work done in an UEL atmosphere is done on a

very infrequent basis, but it is work that could not be done

otherwise such as entry of a cargo tank during tank cleaning

operations to set a cargo suction hose.

By contrast, many other rulemaking participants believed that work

in IDLH atmospheres is unnecessary and should be prohibited, either

under all conditions (Ex. 6-4, 6-15, 6-18, 6-24, 6-31) or under all but

emergency conditions (Ex. 6-7, 6-8, 6-10, 6-12, 6-21, 6-22, 6-28, 6-33,

6-34, 6-37, 6-38). Independent Testing and Consultation, Inc. (Ex. 6-

24), presented the following arguments against work in atmospheres

above the upper explosive limit for a flammable gas or vapor:

The paragraph 1915.12(d) should be deleted for the following

reasons.

(a) There is no way to keep the atmosphere above the upper

explosive limit (UEL). If entry to the tank is required, it follows

that there must be a region where the tank atmosphere mixes with the

outside atmosphere. In this region the concentration of gas will be

in the explosive range.

(b) The equipment used to measure gas concentrations above the

UEL is not usually available.

(c) All ignition sources cannot easily be eliminated. There

remains possible ignition due to static electricity. It has been my

experience that owners and operators would rather clean or otherwise

make safe a tank or compartment even if the work required in the

compartment is of the briefest duration.

NFPA (Ex. 6-10) addressed work in IDLH atmospheres as follows:

NFPA does not believe that work in IDLH atmospheres should be

encouraged, except for the purposes of emergency rescue. NFPA does

not support the proposal of working in UEL atmospheres. The

potential hazards associated with ignition sources, such as static

electricity, and the introduction of air to bring an atmosphere

above the UEL within the flammable range, are significant and

difficult to control. The additional testing requirements would also

be significant. NFPA 306 only permits such a practice in the case of

inerting for flammable compressed gas as described in 2-3.8. In this

case now work is permitted on the tank or pipelines.

OSHA agrees with the commenters who stated that working in IDLH

atmospheres or in atmospheres containing concentrations of flammable

gases or vapors above their UEL is very hazardous. The limitations on

maintaining an atmosphere above a gas's or vapor's UEL, as noted by

Independent Testing and Consultation, Inc., are severe indeed. If a

mistake is made in such an atmosphere, an explosion will almost

certainly result. Atmospheres that are IDLH because of toxicity also

present a very serious danger to employees. A failure of the

respiratory protective equipment protecting an employee in this type of

atmosphere could quickly lead to his or her death.

OSHA further believes that conditions somewhat less hazardous than

those posed by IDLH atmospheres pose unnecessary dangers for shipyard

employees. The generic permit-required confined space standard, in

Sec. 1910.146(b), defines a hazardous atmosphere, in part, as follows:

Hazardous atmosphere means an atmosphere that may expose

employees to the risk of death, incapacitation, impairment of

ability to self-rescue (that is, escape unaided from a permit

space), injury, or acute illness from one or more of the following

causes:

(1) Flammable gas, vapor, or mist in excess of 10 percent of its

lower flammable limit (LFL);

* * * * *

(3) Atmospheric oxygen concentration below 19.5 percent or above

23.5 percent;

OSHA has already determined that these conditions constitute

serious hazards, ones that are tightly regulated in the generic permit-

space standard in Sec. 1910.146. These conditions can also be found in

confined and enclosed spaces and in other dangerous atmosphere in

shipyard work. In order for Subpart B to be as protective as the

general industry permit-space standard, which permits employees to work

in hazardous atmospheres using a system of permits and attendants not

required by Subpart B, OSHA believes that Subpart B must require

measures that ensure that employees are not exposed to such hazardous

conditions. For this reason, the Agency is adopting requirements in

final Subpart B that prohibit employee entry into confined and enclosed

spaces and other dangerous atmospheres presenting an oxygen-deficient

or oxygen-enriched atmosphere or containing concentrations of flammable

gases or vapors greater than or equal to 10 percent of the gas's or

vapor's lower explosive limit.

OSHA concludes, however, that entry into such spaces can safely be

permitted under certain conditions. First, in emergencies, where

persons are endangered, entry might be necessary to save the life of an

entrant or the lives of every person on that transport. Second, because

these spaces will have to be ventilated to make the atmosphere safe for

employees, entry might be necessary to set up the proper ventilation

equipment. For these reasons, final Subpart B permits entry into IDLH

and other hazardous atmospheres for emergency rescue and for periods of

short duration to install ventilation equipment necessary for normal

entry.

During such emergency or short duration entries, however,

additional precautions must be taken to protect the entrants. The

additional precautions to be taken must be appropriate for the hazards

presented by the particular space involved. Thus, the final rule treats

oxygen enrichment and deficiency, the presence of flammable gases and

vapors, and atmospheres containing toxic contaminants at IDLH levels

separately. For oxygen-enriched and oxygen-deficient atmospheres, the

space must be continuously monitored for oxygen content (so that

appropriate control measures can be taken if it changes), and

respiratory protection and other personal protective equipment and

clothing must be provided in accordance with Subpart I (so that

appropriate personal protective equipment is provided and so that an

attendant will be present if the oxygen content makes the space IDLH).

The hazards of flammable atmospheres and toxicity are treated

separately in their respective paragraphs (final Sec. 1915.12 (b)(3)

and (c)(4)).

Paragraph (b) of final Sec. 1915.12 sets precautions to be taken

before employees enter areas that present hazards related to flammable

atmospheres. Paragraph (b)(1) applies to spaces that contain or have

contained combustible or flammable liquids or gases and to spaces

(called, appropriately, ``adjacent spaces'') that are adjacent to those

spaces. These spaces must be: (1) inspected by a competent person to

determine whether or not combustible or flammable liquids are present,

and (2) tested by a competent person before entry by any employee to

determine the concentration of flammable gases and vapors within the

space. These precautions also apply to adjacent spaces.

Previous Sec. 1915.12(a)(1) requires the same spaces to be tested

by a competent person to determine the concentration of flammable gases

and vapors.

The proposed rule contained requirements equivalent to the previous

standard in paragraphs (b)(1), (b)(2), and (b)(3) of proposed

Sec. 1915.12.

The final rule differs from the previous and proposed rules only in

that Sec. 1915.12(b)(1) includes a requirement for the competent person

to inspect the space, as well as test it, for the presence of

combustible or flammable liquids. The inspection is necessary so that

the competent person will be more likely to be made aware of any

malfunction in the testing instrument. Obviously, if the inspection

reveals the presence of a flammable liquid, a flammability test can be

expected to result in some detectable concentration of flammable gases

or vapors. The lack of any such reading from the test instrument would

be an indication that the device might be defective and should lead to

further investigation of the problem. The inspections will also be

necessary if a hazardous concentration of flammable gases or vapors is

found so that the proper precautions can be taken to eliminate the

hazard. Although in the previous Sec. 1915.12(a) does not specify that

an inspection is to take place, in the previous Sec. 1915.7(c), which

requires tests and inspections to be entered into the ``Log of

Inspections and Tests,'' implies that the competent person is to

perform inspections in addition to any tests that are required.

Paragraph (b)(2) requires spaces that have been tested and found to

contain concentrations of a flammable gas or vapor greater than or

equal to 10 percent of the gas's or vapor's lower explosive limit (LEL)

are required to be labeled ``Not Safe for Workers--Not Safe for Hot

Work.'' If employees are to enter a space that has flammable gases or

vapors in such concentrations, then ventilation must be provided to

ensure that the concentration of these gases or vapors is maintained

below 10 percent of their LELs. After the ventilation produces an

acceptable atmosphere, the warning signs may be removed.

Paragraph (a)(2) of the previous Sec. 1915.12 requires spaces

containing hazardous concentrations of flammable gases or vapors to be

ventilated until the concentration drops below 10 percent of the gas's

or vapor's LEL before workers are permitted to enter the space. No

labeling of these spaces is required under the previous standard.

Paragraph (b)(5) of proposed Sec. 1915.12 would have required

labeling of spaces in a manner equivalent to that required under the

final rule. Paragraph (b)(4) of proposed Sec. 1915.12 would have

prohibited entry when the concentration of flammable gases or vapors

was at or above 10 percent of the LEL, but the proposal did not

specifically require ventilation in Sec. 1915.12. Ventilation

requirements related to flammable atmospheres were proposed in

Sec. 1915.13(b)(8).

No rulemaking participant objected to the proposed labeling

requirement. Therefore, OSHA has carried it forward into the final

rule. The final rule, unlike the proposal, continues to require spaces

that are hazardous because of the presence of flammable gases or vapors

to be labeled even when employees are permitted to enter for emergency

purposes or for short durations to install ventilation. The proposal

did not require the spaces to be labeled during these entries (in

effect permitting employers to remove the signs at these times).

However, such entries require the adoption of special precautions (see

the summary and explanation of final Sec. 1915.12(b)(3), later in this

preamble). OSHA believes that the labeling must be maintained during

these entries so that unauthorized, unprotected entry is prevented.

Paragraph (b)(3) of final Sec. 1915.12 prohibits employees from

entering spaces containing concentrations of flammable gases or vapors

at or above their LELs. However, employees may enter these spaces for

emergency rescue or for a short duration for the installation of

ventilation equipment provided that:

(1) No ignition sources are present,

(2) The atmosphere in the space is monitored continuously;

(3) The concentrations of flammable gases and vapors in the

atmosphere in the space are maintained above their upper explosive

limits (UEL), and

(4) Respiratory protection and other personal protective equipment

and clothing must be provided in accordance with Subpart I of part

1915.

Previous Sec. 1915.12(a)(2) prohibits workers from entering areas

containing concentrations of flammable gases or vapors at or above 10

percent of their LELs. The only exception to this rule is contained in

the previous Sec. 1915.13(a)(2) for highly volatile residues. (This

provision has not been carried forward into the final rule. See the

summary and explanation of final Sec. 1915.13, later in this preamble,

for a discussion of the reasons why this exception has been dropped.)

The proposal also contained a general prohibition against employees

entering spaces containing hazardous concentrations of flammable gases

or vapors. However, as noted earlier, proposed Sec. 1915.12(d) also

provided exceptions for emergencies and for brief duration entries. The

proposal would have required the same precautionary measures required

by the final rule, except that respiratory equipment and other personal

protective equipment was identified as being required, under Subpart I,

through means of a note following proposed Sec. 1915.12(d)(3).

As explained earlier, OSHA has decided to permit entries for

emergency rescue and for short duration entries to install ventilation

equipment even if the space contains a hazardous atmosphere. No one

objected to the precautionary measures proposed in Sec. 1915.12(d), and

they have been carried forward into the final rule. The proposed note

regarding the use of respiratory protection and other personal

protective equipment has been converted into a requirement

(Sec. 1915.12(b)(3)(iv)). Even though employers are already obligated

to comply with these requirements under Subpart I, OSHA believes that

providing a mandatory reference in the text of the regulation will

serve to emphasize the importance of the required personal protective

equipment.

The Agency has concluded that entry made following the requirements

contained in the exception to Sec. 1915.12(b)(3) will protect employees

by controlling and minimizing the hazards involved. No ignition sources

may be present in the space so that, if the atmosphere becomes

flammable, there will be no energy source to ignite it. The atmosphere

in the space must be maintained above the UEL, and the atmosphere must

be continuously monitored to minimize the possibility that a flammable

atmosphere could develop. Lastly, personal protective equipment must be

worn to protect the employee from exposure to the hazardous materials

involved.

Paragraph (c) of final Sec. 1915.12 sets precautions to be taken

before employees enter areas that present hazards related to toxic

atmospheres. Paragraph (c)(1) of final Sec. 1915.12 requires spaces and

adjacent spaces that contain or have contained gases, liquids, or

solids that are toxic, corrosive, or irritant to be:

(1) Inspected visually by a competent person to determine whether

or not toxic, corrosive, or irritant residue contaminants are present,

and

(2) Tested by a competent person before initial entry by any

employee, to determine the concentration of toxics, corrosives, and

irritants in the air within the space.

The previous Sec. 1915.12(b)(1) requires the following spaces to be

inspected and tested by a Marine Chemist, industrial hygienist, or

other qualified person:

(1) Cargo spaces and other spaces containing or having last

contained bulk gases, liquids, or solids of a toxic, corrosive, or

irritant nature,

(2) Spaces that have been fumigated, and

(3) Spaces immediately adjacent to these two types of spaces.

Paragraphs (c)(1), (c)(2), and (c)(3) of proposed Sec. 1915.12

would have continued the previous language without change, except that

the proposal specified that the tests had to be performed by a Marine

Chemist, a certified industrial hygienist, or a U.S. Coast Guard

authorized person. Although this may have appeared to be a departure

from the previous standard, the NPRM explained that the proposal simply

codified OSHA interpretation of the previous standard. The NPRM also

requested comments on the proposed definition of ``certified industrial

hygienist.''

Most commenters agreed that a Marine Chemist or a Certified

Industrial Hygienist was qualified to perform the toxicity tests

required under Sec. 1915.12(c) (Ex. 6-10, 6-12, 6-13, 6-20, 6-23, 6-24,

6-28, 6-33). They noted that the intensive training in toxicology and

in appropriate control measures these persons receive makes them

uniquely qualified to test and inspect confined and enclosed spaces and

other dangerous atmospheres.

OSHA agrees with these comments, and the final rule recognizes that

tests and inspections for the presence of toxic, corrosive, or irritant

substances may be performed by Marine Chemists and Certified Industrial

Hygienists.

The rulemaking participants expressed some disagreement, however,

over whether or not a Coast Guard authorized person had the proper

qualifications to test and inspect areas for hazards related to the

toxicity of various chemicals. Some believed that a Coast Guard

authorized person would be qualified to perform the required tests and

inspections (Ex. 6-24, 6-28, 6-33). These commenters stated that the

use of a Coast Guard authorized person would be limited to situations

in which a Marine Chemist or certified industrial hygienist was not

available. Several other commenters argued that a Coast Guard

authorized person is not required to receive training in hazards

related to the toxicity of various chemicals (Ex. 6-13, 6-15). In fact,

the U.S. Department of Transportation (Ex. 6-13), which administers

requirements in Title 46 of the Code of Federal Regulations related to

Coast Guard authorized persons, stated:

Testing required by 46 CFR 35.01, 71.60, and 91.50 is primarily

concerned with oxygen deficiency and combustibility prior to

conducting hot work. ``Coast Guard authorized persons'' who would be

expected to conduct such testing under Coast Guard regulations

should not be considered equivalent to a Marine Chemist or

Industrial Hygienist for the purpose of evaluating toxic hazards in

shipyards.

These persons would be acting under authority of a Coast Guard

license or document for compliance with regulations contained in 46

CFR, but it is not clear that they could be effectively held

accountable for their performance related to OSHA regulations.

Coast Guard authorized persons do not typically have training in

hazards related to the toxicity of various chemicals. Since such

training is nec

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