Permit-Required Confined Spaces

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. S-019A]

RIN 1218-AA51

Permit-Required Confined Spaces

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

ACTION: Final rule.

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SUMMARY: This final rule amends the Occupational Safety and Health

Administration (OSHA) standard on Permit-Required Confined Spaces

(permit spaces) (29 CFR 1910.146) to provide for enhanced employee

participation in the employer's permit space program, to provide

authorized permit space entrants or their authorized representatives

with the opportunity to observe any testing or monitoring of permit

spaces, and to strengthen and clarify the criteria employers must

satisfy when preparing for the timely rescue of incapacitated permit

space entrants. The revisions being made to the final rule will

substantially enhance the protections being provided to permit space

entrants and will additionally clarify a number of issues that have

arisen since promulgation of the final Permit-Required Confined Spaces

rule in 1993.

Specifically, OSHA is clarifying and strengthening the requirements

in revised paragraphs (d), Permit-required confined space program, and

(e), Permit system, to allow for greater employee participation in the

permit-space program and for employee access to program information

developed under the standard. The Agency is also revising paragraphs

(c) and (d) to specify that employers must provide those employees who

are authorized permit space entrants, or their authorized

representatives, an opportunity to observe any testing of the space

that is conducted prior to entry or subsequent to such entry. The

Agency believes that these revisions are necessary to ensure that

permit space entrants, whose work often requires entry into potentially

life-threatening atmospheres, have the information necessary to protect

themselves and their co-workers from confined space hazards. Allowing

authorized entrants or their authorized representatives to observe the

testing of the spaces they are required to enter will help to ensure

that the testing has been done properly, that the respirators and other

personal protective equipment being worn are appropriate, and that the

entrants understand the nature of the hazards present in the space. In

addition, paragraph (k) of the final rule, Rescue and emergency

services, is being revised to clarify the criteria employers must

satisfy when selecting a rescue team or service to rescue incapacitated

permit space entrants, and a new paragraph (l), Employee participation,

is being added to the final rule to ensure employee involvement in

permit space program development and implementation. A non-mandatory

appendix is also being added to the standard to assist employers in

selecting appropriately trained and equipped rescuers.

EFFECTIVE DATE: This final rule will become effective February 1, 1999.

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 for Occupational Safety and Health, Office of the Solicitor,

Room S-4004, U.S. Department of Labor, 200 Constitution Avenue NW,

Washington, D.C. 20210.

FOR FURTHER INFORMATION CONTACT: Ms. Bonnie Friedman, U.S. Department

of Labor, Occupational Safety and Health Administration, Office of

Information and Consumer Affairs, Room N3647,

[[Page 66019]]

Washington, D.C. 20210, telephone (202) 693-1999.

SUPPLEMENTARY INFORMATION:

I. Background

On January 14, 1993, the Occupational Safety and Health

Administration (OSHA) issued a general industry standard (29 CFR

1910.146) to require protection for employees who enter permit-required

confined spaces (permit spaces). The permit space standard, which

provides a comprehensive regulatory framework for the safe performance

of entry operations in general industry workplaces, became effective on

April 15, 1993.

The United Steelworkers of America (USWA), the American Gas

Association, and the Edison Electric Institute sought judicial review

of the standard. In particular, the USWA argued that paragraph (k)(2)

of the standard, which addresses the use of off-site rescue services,

was vague and ineffective. The USWA also stated that OSHA had

inappropriately omitted from the final rule a provision allowing

affected employees or their designated representatives to observe any

required testing or monitoring of permit spaces and a provision

granting affected employees access to permit space testing or

monitoring results. All three petitions were subsequently withdrawn

pursuant to settlement agreements.

Based on settlement discussions with the USWA, OSHA agreed to

initiate further rulemaking, and a notice of proposed rulemaking (NPRM)

was accordingly issued on November 28, 1994. In the notice, the Agency

specifically asked for public input on the USWA's suggestion that OSHA

add provisions to the rule providing employees the opportunity to

observe permit space monitoring or testing as well as granting them

access to the results of such testing or monitoring. The notice also

proposed changes to paragraph (k)(2) to clarify that host employers

must ensure that rescue teams or services selected to perform permit

space rescues at the host employer's facility have the capability to

provide rescue in a timely manner, depending on the hazard(s) present

in the permit spaces at the host employer's facility. In addition, on

the basis of information received after the 1993 final rule was

published, OSHA proposed to make the requirement for the point of

attachment of a retrieval line more performance oriented by permitting

any point of attachment to be used that enables the entrant's body to

present the smallest possible profile during removal.

The NPRM set a 90-day comment period, ending on February 27, 1995,

to receive written comments on the proposed revisions and the issues

raised. OSHA received 51 written comments (Exs. 161-1 through 161-51).

Several commenters (Exs. 161-21, 161-22, 161-38, 161-40, 161-44)

requested that OSHA convene an informal public hearing to address their

concerns.

OSHA published a notice of informal public hearing on August 2,

1995, scheduling a hearing for September 27, 1995, in Washington, D.C.

In the hearing notice, OSHA also announced the extension, until

September 13, 1995, of the public comment period to receive comments

relating to the issues raised in the hearing notice. Twenty-seven

additional comments (Exs. 161-52 through 161-78) were received as a

result of the reopening of the record.

Twelve participants introduced testimony and evidence at the

September 27 and 28 public hearing, which was presided over by

Administrative Law Judge Joel Williams. At the conclusion of the

hearing, Judge Williams set a post-hearing period for the submission of

additional briefs, arguments and summations (ending on December 20,

1995). A total of 12 submissions (Exs. 178 through 189) were received

during the post-hearing period. On February 14, 1996, the record for

the rulemaking was closed and certified to OSHA. The record for this

phase of the rulemaking contains a total of 90 submissions and more

than 470 pages of hearing transcript. OSHA has carefully considered all

of the materials submitted as part of this rulemaking in the drafting

of this final rule. The materials submitted are available for review

and copying in the OSHA Docket Office, Docket S-019A.

A few commenters appeared to believe that this revision constitutes

an entirely new rulemaking proceeding (Exs. 161-33, 167). OSHA

emphasizes, however, that this proceeding is properly viewed as a

continuation of the rulemaking leading to the 1993 standard. Therefore,

the Agency is not required to demonstrate that the relatively minor

changes it is making to the PRCS standard are independently justified

or that they, by themselves, effect a substantial reduction in

significant risk. OSHA made that finding for the PRCS standard as a

whole in 1993. In this case, the changes OSHA is making to paragraphs

(c), (d), (e), and (k) essentially clarify what was always the Agency's

intent with regard to employee representatives' access to information

and employers' evaluation and selection of rescue services and teams.

Although it is OSHA's view that the employee participation revisions it

is making to paragraphs (c) and (d), and the addition of paragraph (l),

will in fact substantially reduce the risks faced by permit space

entrants, the revisions are proper so long as they are rationally

related to the purposes of the OSH Act and the standard as a whole, and

are supported by the rulemaking record.

II. Summary and Explanation of the Final Rule

The revisions to the final rule make changes to several provisions

of paragraphs (c), (d), (e), and (k) of OSHA's permit-space standard

(29 CFR 1910.146), and add a new paragraph (l). These changes, and the

Agency's rationale for making them, are described below. References to

exhibits in the docket (Docket S-019A) are designated ``Ex.,'' followed

by the exhibit number. References to the continuously paginated

transcript of the public hearing held on September 27 and 28, 1995

(Exs. 192X, 193X), are designated Tr., followed by the page number.

Paragraphs (c), General Requirements, (d), Permit-required confined

space program, and (e), Permit system

A. Clarification of the Need To Provide Authorized Representatives With

Information Required by the Standard

Paragraphs (c)(5)(i)(E), (c)(5)(ii)(H), and (c)(7)(iii) have been

revised to specify that OSHA intends authorized representative(s) of

employees to have access to any information provided to employees under

the standard. These wording changes are meant to clarify what has been

longstanding OSHA policy and practice, i.e., to recognize the right of

authorized representatives of employees to receive the same information

as employees receive under the Agency's standards. In recognition of

that policy, the Permit Space standard promulgated in 1993 specifically

provides, in paragraph (c)(4), that the written program, which contains

the employer's procedures and policies for implementing that program,

be available for inspection and copying ``by employees and their

authorized representatives.'' Thus, the changes being made to

paragraphs (c)(5)(i)(E), (c)(5)(ii)(H), and (c)(7)(iii) in this revised

rule merely provide additional clarification of the Agency's intent.

The need to clarify these provisions was discussed by the USWA,

which noted (Ex. 161-38) that ``The right of employees and their

representatives to relevant information has been a regular feature of

OSHA standards since the beginning.'' In the same exhibit, the

[[Page 66020]]

USWA points to several OSHA standards, including the Hazard

Communication standard (29 CFR 1910.1200), the Employee Access to

Exposure and Medical Records standard (29 CFR 1910.1020), and the

Process Safety Management standard (29 CFR 1910.119) that ``give

employees and their representatives very broad rights to information.''

The USWA reiterated this view in post-hearing comments (Ex. 188). OSHA

agrees that it was the intent of the Permit Space standard to provide

both employees and their authorized representatives with access to the

information addressed by these provisions of paragraph (c), and the

changes made to the final rule reflect this position and bring the

Permit Space standard into conformance with the language traditionally

used in OSHA standards.

B. Employee Observation of Atmospheric Testing

Paragraphs (c)(5)(ii)(C) and (c)(5)(ii)(F) have been revised by

adding a sentence to each of them that specifically requires employers

whose employees enter permit spaces to give these employees, or their

authorized representatives, an opportunity to observe the testing of

the space during pre-entry (paragraph (c)(5)(ii)(C)) and during entry

(paragraph (c)(5)(ii)(F)). In the NPRM, OSHA solicited comment (59 FR

60737) about revising 29 CFR 1910.146 to allow affected employees or

their authorized representatives to observe the testing and evaluation

of confined space conditions, prior to and during entry. Specifically,

the proposal stated, ``* * * the Agency is considering whether such a

provision [one requiring affected employees or their designated

representatives to be permitted to observe any testing conducted under

the confined space standard] should be added to the permit space

standard based on the concerns expressed and on the record developed as

a result of this notice.''

The USWA (Ex. 161-38), which requested a hearing on this and other

matters, urged OSHA to incorporate such a provision into the standard

both on the grounds that employee protections would be enhanced and

that Section 8(c)(3) of the Act mandated the inclusion of such a

provision:

The benefits of employee observation of monitoring are well

established. Congress certainly thought employees should have the

right to observe the monitoring for air contaminants to which they

could be exposed * * *. We believe employee observation should be

viewed as a matter of right. Employees now have the right to observe

the monitoring of air contaminants outside confined spaces, even

when the potential health effects may not occur for many years. A

worker entering a confined space risks sudden death if the

monitoring was not done properly. Surely that worker should have the

right to observe the monitoring. (Ex. 161-38).

Many commenters argued that it was not necessary or appropriate to

add an observation of monitoring provision to the Permit Space standard

(see, for example, Exs. 161-9, 161-14, 161-20, 161-49, 161-55, 161-78,

184, 187, Tr. 40, 127, 170, 207). The issues raised by these commenters

centered on the following points:

(1) That the existing standard is adequately protective and thus

that no further changes are necessary;

(2) That the Act does not, at Section 8(c)(3), mandate such a

requirement for safety, as opposed to health, standards;

(3) That allowing employees and their representatives to observe

the testing of spaces would slow operations without adding to the

safety of the entry and might actually increase risks; and

(4) That such a provision has the potential for abuse and could

become a labor-management issue.

These issues, and OSHA's responses to them, are addressed in turn

below.

Several commenters were of the opinion that adding an observation

of monitoring provision is unnecessary because the existing Permit

Space standard already adequately provides for the sharing of relevant

testing information with entrants. For example, the Pennzoil Company

(Ex. 161-49) stated, ``Existing requirements at Section 1910.146(d)(5)

and (e)(3) already provide for adequate employee access to the results

of testing and monitoring in permit spaces.'' Arguing along similar

lines, Union Electric (Ex. 161-35) noted that the existing standard

``already requires that the results of initial and periodic tests

performed under 1910.146(d)(5) be entered on the entry permit, and

1910.146(e)(3) now requires that the permit be made available to all

authorized entrants at the time of entry. As a practical matter,

affected employees are usually briefed on the results of the exposure

monitoring during the pre-job briefing and before entry into the

space.''

OSHA is pleased to learn that some employers have taken the

additional safety precaution of providing entrants with a pre-entry

briefing that includes a report on the results of the monitoring of the

space, and the Agency is also aware that the existing standard contains

a number of provisions requiring employers to provide information on

the results of testing to those employees who are entering a permit

space. However, OSHA concludes that these provisions, although

essential to the safety and health of entrants, are not a substitute

for the observation of monitoring provisions being added to the

standard, for the following reasons.

Having access to the entry permit will not prevent the kinds of

errors that could be detected by having employees or their

representatives observe the actual testing of the space. For example,

evidence in the rulemaking record shows that monitoring errors, such as

using the wrong monitor, monitoring for the wrong substance, or failing

to test the space thoroughly, contribute to a number of confined space

accidents (Tr. 286, 317). And if the evaluation or testing of the space

is improperly performed, inaccurate information will unknowingly be

recorded on the entry permit, and entrants relying on this inaccurate

information could be placed at risk of sudden death or serious injury.

In situations such as these, the presence of authorized employees or

their representatives could well have detected the error and remedied

the problem.

The record contains reports of several incidents where employees

who observed improperly performed atmospheric tests were able to bring

the errors to the attention of the testers before an accident occurred.

For example, in one case, the person doing the atmospheric testing

calibrated the testing instrument inside the confined space. The

entrant pointed out this error and it was corrected (Ex. 161-38, Tr.

332-333). In other cases in the record, employee observation of testing

and monitoring might have prevented an accident. The International

Chemical Workers Union described an incident involving a vessel that

had been tested by a poorly trained evaluator who had apparently failed

to detect a flammable atmosphere. The vessel later exploded, killing

several workers. There are a number of other dangerous situations that

could arise that employee observation of monitoring could avert. For

example, authorized employees and their representatives are often aware

that significant changes may have occurred in conditions within the

space, e.g., that the employer is considering reclassifying the space

based on new monitoring data and can be expected to take extra

precautions as a result. Observing the testing process would also

permit employees or their representatives to detect human errors, such

as the inadvertent recording of inaccurate data. In addition, OSHA

believes that employees who directly observe the monitoring are likely

to gain

[[Page 66021]]

an enhanced appreciation for the hazards they face.

Thus, OSHA believes that providing employees or their

representatives with the opportunity to observe the testing and

monitoring of permit spaces will have the same kinds of benefits that

such observation has had in the context of OSHA's health standards:

knowledgeable employees who are given the opportunity to participate

actively in protecting their own safety and health and that of their

co-workers often identify potentially serious problems and help to

solve them as well. Accordingly, paragraph (c)(5)(ii)(C) has been

revised by adding the sentence ``Any employee who enters the space, or

that employee's authorized representative, shall be provided an

opportunity to observe the pre-entry testing required by this

paragraph.'' Similarly, the language of paragraph (c)(5)(ii)(F) has

been revised to add the following sentence: ``Any employee who enters

the space, or that employee's authorized representative, shall be

provided with an opportunity to observe the periodic testing required

by this paragraph.''

A number of commenters (see, e.g., Exs. 161-26, 161-35, 161-37,

161-48, 161-56, 161-72, 161-60, 187, Tr. 127, 170) expressed

disagreement with the USWA's view that Section 8(c)(3) of the Act

mandated such observation in the case of safety standards such as the

permit space standard. Section 8(c)(3) of the Act directs OSHA to issue

regulations requiring employers to maintain records of employee

exposure to potentially toxic materials or harmful physical agents and

providing employees or their representatives with ``an opportunity to

observe such monitoring or measuring, and to have access to the records

thereof.'' This section of the Act provides the basis for the

observation of monitoring provisions in virtually all of OSHA's health

standards (see, for example, the asbestos, benzene, cadmium, lead,

methylenedianiline, methylene chloride, and butadiene standards).

Typical of these comments was one submitted by the Dow Chemical Company

(Ex. 161-20):

Section 8(c)(3) requires OSHA to promulgate regulations which

provide employees, and their designated representatives, with the

opportunity to observe the monitoring and measuring of, and have

access to, employee exposure records (emphasis in the original). The

atmospheric tests and space evaluations required under the Confined

Space Standard are not the type of employee exposure monitoring that

is envisioned by the Act.

In fact, OSHA stated in the NPRM its position that section 8(c)(3)

does not require inclusion of a requirement for employee observation of

monitoring in safety standards (59 FR 60737). Instead, the proposal

explained that any decision to add an employee observation provision to

the standard would be based on the record developed in this proceeding,

including the concerns expressed about the original standard. OSHA does

note, however, that the fact that Congress included a requirement that

observation of monitoring be allowed for toxic substance standards

indicates a Congressional preference for well-informed and involved

employees. And as explained elsewhere in this section, OSHA has

determined that the record in this rulemaking shows that employee

observation can have substantial benefits for employee safety and

health.

OSHA believes that this safety benefit adequately justifies any

minimal slowing of operations caused by the employee observation

requirement. In any event, as shown by other evidence in the record,

the employees assigned to enter the permit space are often already in

the area, waiting to enter it, while the space is being tested and

monitored (Ex. 161-25). Indeed, in a great many cases, it is the permit

space entrants themselves who perform the testing and monitoring (Ex.

161-09, Tr. 186-187, 190). Moreover, as with all of the employee

participation provisions being added in this revision, the record shows

that this practice is already fairly common and indicates that it has

not caused any production problems (Exs. 161-57, 172, Tr. 202).

A few commenters suggested that employee observation could actually

decrease employee safety, for example when monitoring must take place

in a hazardous environment, such as an elevated location or one

containing a toxic atmosphere (Exs. 161-56, 161-74, 167, 181). But the

standard does not require employees to observe all monitoring or

testing, it merely offers them the opportunity to do so. The employees

and their representatives are less likely to take advantage of that

opportunity in particularly hazardous situations. Moreover, even having

an entrant or representative close by observing the actions of the

person testing the atmosphere, and checking the instruments after the

tests are complete could provide safety benefits. Employees already

have extensive rights to observe monitoring under OSHA's health

standards. OSHA has seen no evidence, and none was presented in this

rulemaking, that this observation creates safety hazards (Tr. 92-93).

OSHA does not believe that the final rule's requirements that

employers provide affected employees with an opportunity for employee

observation, or those requiring employee participation in paragraph

(l), are particularly subject to abuse or constitute an unwarranted

infringement on labor-management relations. OSHA standards frequently

require that work be performed in a particular way or by specific

employees. For example, the Lockout/Tagout (LO/TO) standard, 29 CFR

1910.147(c)(8), requires that locks and tags be affixed by the workers

who will be performing the service or maintenance covered by the

standard and, as discussed above, numerous toxic substance standards

provide affected employees and their representatives with the right to

observe hazardous substance monitoring. The requirement that employees

who are to enter hazardous confined spaces be allowed to observe the

required monitoring of those spaces is analogous to these provisions.

Like the LO/TO requirement, it recognizes that the employees whose

lives could be endangered by inadequate completion of these preliminary

safeguards have the strongest incentive to see that they are performed

properly (see Tr. 333).

OSHA also is not persuaded that the monitoring observation

requirement is especially subject to employee abuse. Some commenters

suggested that during periods of labor management discord, employees

could abuse the observation right to slow down or disrupt production

(see, e.g., Exs. 161-12, 161-25). Others expressed concern that the

provision could cause what one called a ``logistical nightmare'' if all

of the employees and representatives insisted on observing each

instance of testing and monitoring (see, e.g., Exs. 161-12, 161-26,

161-35, 161-78). But again, there was no evidence that this type of

disruption is caused by the employee observation provisions in OSHA's

health standards. The standard allows the opportunity for observation

by an entrant or his authorized representative, not by every employee

and representative at the workplace. Moreover, some employers, either

contractually or otherwise, already provide employees with the right to

observe monitoring and testing of confined space atmospheres (Exs. 161-

57, 173-B, Tr. 184-185, 202). One witness pointed out that, even in

those plants, confined space entrants did not always choose to observe

the monitoring (Tr. 202). And of course nothing in this standard

interferes with an employer's existing power to direct and control its

[[Page 66022]]

workforce, so long as it does not attempt to do so in a manner

inconsistent with the standard.

Nor does the provision interfere improperly in labor-management

relations, as suggested by some commenters (e.g., Ex. 161-35). In a

general sense, many safety and health issues could, in the absence of

OSHA requirements, be dealt with through traditional labor management

mechanisms. That does not mean, however, that OSHA does not have the

authority to require that work be performed in the manner it determines

can best reduce safety or health hazards. And OSHA's exercise of this

authority may, in some cases, force employers to alter some aspects of

their employee relations. For example, OSHA standards sometimes require

employers to provide medical removal benefits to workers whose health

may already have been affected by exposure to a toxic substance. These

benefits may include job assignments in areas with less exposure to the

toxic substance, continuation of pay, or training for new job

assignments (29 CFR 1910.1025(k) (lead), 1910.143(f)(2)(iv) (cotton

dust)). Although these issues would have been considered labor

relations matters in the absence of the OSHA standards, it is clear

that OSHA can impose such regulatory requirements to protect employee

safety and health. United Steelworkers of America v. Marshall, 647 F.2d

1189, 1236 (D.C. Cir. 1980).

Paragraph (k)--Rescue and Emergency Services

OSHA is amending and reorganizing paragraph (k), the rescue and

emergency services provision of the standard.

A. Evaluation and Selection of Rescue and Emergency Services

The revisions to paragraphs (k)(1) and (k)(2) clarify an employer's

obligations to select a rescue service that is trained, equipped and

available to respond to emergencies that occur during confined space

entries. The emphasis of the revised language is on the employer's

evaluation of potential rescue providers, and on the factors that the

employer must consider in determining whether a particular provider is

capable of providing effective rescue services for the particular

situations that its confined space entrants may face. OSHA is also

adding a new non-mandatory Appendix F to the standard to provide

employers with additional assistance in evaluating potential rescue

services.

In the 1993 Permit Required Confined Spaces standard, OSHA

promulgated separate requirements for employers of rescue and emergency

teams and employers who used teams they did not employ. The

requirements were more specific for what the rule considered in-house

teams employed by the employer (29 CFR 1910.146(k)(1), (k)(2)). The

rule was criticized for its failure to contain equally explicit

requirements for ``outside'' rescue teams, or to contain an explicit

requirement that those teams be able to arrive at the worksite in a

timely fashion (Ex. 162-1). In the NPRM, OSHA proposed to require

employers to ensure that outside rescue teams be equipped, trained,

capable of responding in a timely manner, and aware of the hazards they

may encounter during rescue operations, and be provided with access to

the employer's confined spaces for rescue plan development and rescue

drill purposes (59 FR 60739).

OSHA received a wide array of comment on this proposal. Some

commenters believed that the language of the 1993 rule, particularly as

explained in the preamble to that rule, was adequate to assure

effective and timely rescue (Exs. 161-48, 161-49, 161-56, 167, 184).

Others argued that the proposed revisions did not go far enough, and

that OSHA should either prohibit outside rescue teams altogether or, at

a minimum, require that any rescuer be able to respond to an emergency

within some specified time frame, generally four to six minutes (Exs.

161-38; 161-39; 161-40; 161-62; 170). A number of commenters criticized

the distinction between in-house and outside rescue services, pointing

out that some of the assumptions on which OSHA based this distinction

were inaccurate (see, e.g., Ex. 161-20). Many of the comments

emphasized the need for knowledgeable and well-trained rescuers, not

only to provide more effective rescue to the endangered confined space

entrants but also to assure that the rescuers do not unnecessarily

endanger themselves (Exs. 161-7, 161-20, 170).

The commenters who believed that OSHA should not amend the existing

rule generally made four points:

1. Properly interpreted, the 1993 rule already imposes a

requirement for timely and effective rescue.

2. Making employers responsible for the performance of outside

rescue teams is unrealistic for those employers who rely on outside

teams because they lack the expertise to develop their own in-house

teams.

3. Imposing a short time within which a rescue team must arrive at

the location of the emergency amounts to an effective prohibition of

outside rescue teams.

4. Requiring an employer to ``ensure'' the competence, timeliness,

and effectiveness of outside rescuers is a requirement that employers

guarantee successful rescue.

Typical of these comments is one by the Chemical Manufacturers

Association:

OSHA's proposed revisions to paragraph (k)(2) place an undue

burden on host employers. The likely outcome is that host employers

will not be able to use outside rescue services. Such an outcome is

totally inappropriate. Under the proposed revision, if the host

employer decides to use an outside rescue service, then it must also

ensure that this outside rescue service is ``capable of functioning

appropriately.'' If a host employer is using the outside rescue

service, presumably the host employer does not have the expertise to

maintain a team in-house. In such a situation, how can the host

employer ensure that the service is capable of functioning

appropriately?

* * * * *

Paragraph (k)(2), as originally promulgated, required the correct

amount of accountability for host employers (Ex. 161-29).

Dow Chemical stated its belief that ``In essence, by requiring host

employers to ``ensure'' that the outside rescuer can ``effectively

respond in a timely manner'' and that the outside rescuer is equipped,

trained and ``capable of functioning appropriately,'' OSHA is requiring

that host employers guarantee their performance'' (Ex. 181).

Those commenters who supported more stringent requirements made two

general points:

1. Without a clear requirement for rescuers to respond within a

very short time after an emergency arises, entrants will often die

while awaiting rescue.

2. Outside rescuers, particularly emergency responders, often do

not have the information or equipment necessary for effective and

timely rescue, and in some cases may not even know that employers are

relying on them for confined space rescue.

These comments, and OSHA's responses to them, will be discussed in

greater detail below.

A. Timely Response

OSHA has retained the language in the NPRM calling for timely

rescue capability. Although virtually all rulemaking participants

agreed on the need for ``timely'' rescue, a great deal of debate

concerned whether OSHA should include a particular response time in the

standard. Proponents of such a provision argued that in many confined

space emergencies, an entrant is not receiving adequate breathing air

and will suffer irreversible and frequently fatal effects within four

to six

[[Page 66023]]

minutes (Exs. 161-38, 161-39, 161-64, 161-71). Moreover, some of them

claimed that if rescuers are not on the scene quickly enough, co-

workers of the victim who are not equipped to perform rescue operations

are more likely to endanger themselves by attempting rescue operations

on their own (Ex. 161-38). They noted that a majority of deaths in

confined spaces occur among would-be rescuers (Exs. 161-38, 161-64).

Opponents of the inclusion of a specific time frame in the standard

pointed out that, realistically, a four to six minute response time

would require having fully equipped rescuers standing by during the

entire length of every permit space entry (Ex. 161-56). While others

noted that this would be appropriate on some occasions, but would not

be on many others (Tr. 51-52, 93, 210, 254). These commenters agreed

that inadequately prepared rescuers are likely endanger themselves more

than they assist the victim, but expressed concern that even designated

rescuers could endanger themselves if they are under too much pressure

to respond too quickly (Ex. 161-56). For example, Michael Roop of ROCO

Corp. testified that, in training rescuers ROCO instructs them ``that

if you arrive at a scene and you're inside that confined space in two

or three minutes to made a rescue, then you're doing something wrong.

You're not being safe'' (Tr. 248).

In the same context, ROCO and other rescue provider commenters

pointed out that ``response time'' is not the same as rescue time, and

that there are a number of discrete stages to a successful rescue

operation (Tr. 246-249; Ex. 161-52).

OSHA does not believe these concerns are irreconcilable. OSHA's

recently revised Respiratory Protection standard, 29 CFR 1910.134

(1998), promulgated at 63 FR 1152-1300 (Jan. 8, 1998), as well as the

predecessor to that standard, 29 CFR 1910.134 (1997), require standby

rescue personnel when employees are working in atmospheres that are

immediately dangerous to life or health (IDLH). It is clear that the

atmosphere in a permit space where an entrant could suffer irreversible

impairment within four to six minutes would meet the definition of an

IDLH atmosphere: ``an atmosphere that poses an immediate threat to

life, would cause irreversible adverse health effects, or would impair

an individual's ability to escape from a dangerous atmosphere'' (29 CFR

1910.134(b)); see also the preamble discussion at 63 FR 1184-1185.

According to the Respiratory Protection standard, when employees

enter such a space, the employer must ensure that:

(i) One employee, or when needed, more than one employee is

located outside the IDLH atmosphere;

(ii) Visual, voice, or signal line communication is maintained

between the employee(s) in the IDLH atmosphere and the employee(s)

located outside the IDLH atmosphere;

(iii) The employee(s) located outside the IDLH atmosphere are

trained and equipped to provide effective emergency rescue;

(iv) The employer or designee is notified before the employee(s)

located outside the IDLH atmosphere enter the IDLH atmosphere to

provide emergency rescue;

(v) The employer or designee authorized to do so by the

employer, once notified, provides the appropriate assistance

necessary to the situation;

(vi) Employee(s) located outside the IDLH atmospheres are

equipped with:

(A) Pressure demand or other positive pressure SCBAs, or a

pressure demand or other positive pressure supplied-air respirator

with auxiliary SCBA; and either

(B) Appropriate retrieval equipment for removing the employee(s)

who enter(s) these hazardous atmospheres where retrieval equipment

would contribute to the rescue of the employee(s) and would not

increase the overall risk resulting from entry; or

(C) Equivalent means for rescue where retrieval equipment is not

required under paragraph (g)(3)(vi)(B) (29 CFR 1910.134(g)(3)); see

also preamble discussion at 63 FR 1242-1245.

OSHA believes that compliance with these requirements will meet the

concerns of those commenters who urged OSHA to require a rescue

response time of only a few minutes. Because the standby personnel

required by the Respiratory Protection standard will have been

monitoring the confined space entrant's condition throughout the

operation and will be fully equipped to begin rescue operations, they

will be able to respond more quickly than rescue team members arriving

from another location, whether inside or outside the plant, who would

need to gather appropriate equipment, prepare to use that equipment,

and be briefed on the emergency situation before beginning rescue

operations. And because the standby personnel must be appropriately

trained and equipped to perform rescue operations, other inadequately

prepared employees will be less likely to endanger themselves by

attempting hasty and dangerous rescues. (Note that at least one

employee, serving as attendant, must still remain outside the permit

space, as required by Section 1910.146(i)(4).) On the other hand,

because the Respiratory Protection standard requirement only applies to

IDLH atmospheres, a less resource-intensive and more measured response

capability may be used for those situations where there is not the same

need for virtually instant response.

OSHA has therefore decided to promulgate the requirement it

proposed for ``timely'' rescue, a requirement that was not opposed by

any rulemaking participant, rather than to define precisely what is

timely. That determination will be based on the particular

circumstances and hazards of each confined space, circumstances and

hazards which the employer must take into account in developing a

rescue plan. OSHA has added a note to paragraph (k)(1)(i) to clarify

this point.

B. Evaluation, Selection, and Use of Rescue Services

OSHA has generally reorganized paragraph (k) to de-emphasize the

distinction between in-house and outside rescuers and to focus instead

on the employer's obligation to evaluate rescue services so that it can

select one that is competent to provide the rescue services appropriate

for that employer's operations. Several commenters explained that

OSHA's assumption that in virtually all cases the ``host'' employer

would be the employer of both the confined space entrants and any in-

situ rescue team but would not be the employer of an off-premises team

was erroneous (Ex. 181). These commenters described a number of

situations where this assumption would be inaccurate. For example, in

some cases, confined space entrants may be contractor employees,

although the rescue team may be composed of on-site employees of either

the host employer or another contractor (Ex. 179). In other cases, the

host employer may arrange for the standby presence of an ``outside,''

non-employee rescue team during particularly hazardous permit space

entries. In still other situations, an employer may use a rescue team

comprised of employees of a different facility that it operates.

As a result OSHA has revised paragraph (k)(1) to emphasize the

evaluation that an employer must perform of available rescue and

emergency resources before designating a rescue provider for purposes

of this standard. This also responds to the concerns of a number of

commenters that the language OSHA used in the NPRM, requiring the

employer to ``ensure'' that the rescue service it selected was able to

function adequately, appeared too result oriented. These commenters

believed that compliance could only be determined by a post hoc

consideration of the success or failure of an actual rescue effort.

They said the focus should

[[Page 66024]]

instead be on the employer's assessment of the rescuer's capabilities

(Ex. 161-20). OSHA agrees that assessment of capabilities is the

appropriate focus for employer efforts, and intended this result in

both the 1993 standard and the NPRM. The language of this final rule,

by explicitly framing the employer's obligations in terms of the

evaluations it performs, will clarify this intent.

Paragraph (k)(1)(i) explains that the rescue service evaluation

must take into account the rescuer's ability to respond in a timely

manner to the types of emergencies that may arise in the employer's

confined spaces. As noted above, the note to paragraph (k)(1)(i)

explains that what will be considered timely rescue will vary according

to the specific hazards involved in each confined space entry.

Paragraph (k)(1)(ii) requires that the evaluation also include an

assessment of the skill and competence of the prospective rescuers.

Several commenters pointed out that in some cases employers have

designated local fire and rescue services as their rescuers without

first confirming that those services even have a confined space rescue

capability (Ex. 161-41). Although many emergency responders may be able

to provide proper permit space rescue functions for all spaces that do

not require immediate, stand-by rescue capability, not all responders

have this ability (Ex. 161-41). Each employer relying on these services

should verify that the emergency responder is indeed trained, equipped,

able, and willing to perform rescue for confined spaces in its

facility.

In evaluating a prospective rescue provider's abilities under this

subparagraph, the employer must also consider the willingness of the

service to become familiar with the particular hazards and

circumstances faced during its permit space entries. Subparagraphs

(k)(1)(iv) and (k)(1)(v) require the employer to provide its designated

rescuers with information about its confined spaces and access to those

spaces, both to allow the development of appropriate rescue plans and

to perform rescue drills. A rescue service's receptiveness to this

information is directly relevant to its ability to function

appropriately during actual rescue operations.

A few commenters provided information on particular products,

including communication equipment (Ex. 161-52) and in-situ

resuscitation devices (Tr. 459-468) for use in permit space rescue

operations. OSHA does not, of course, endorse specific products.

However, the Agency notes that the equipment used by a rescue service,

and that equipment's utility in enhancing rescue efforts, is a relevant

factor for employers to consider during the rescuer evaluations

required by this paragraph.

Paragraph (k)(1)(iii) requires the employer, after performing the

evaluations required by paragraphs (k)(1)(i) and (k)(1)(ii), to select

a rescue provider that has the ability to respond in a timely manner to

the particular hazards at issue, and to provide proficient rescue

services. In other words, it is not enough for an employer simply to

perform the evaluations required. The employer must also utilize the

results of those evaluations to select a rescue service that will meet

the goals of this standard.

Paragraph (k)(1)(iv) requires the employer to notify the rescue

service it selects of the hazards that may exist at the permit spaces

in its facility. This requirement was included in the NPRM and was also

present in the 1993 standard. In the context of this revised standard,

this notification provision obviously includes notifying the rescue

service that it has been selected and that the employer will be relying

on it. In some cases compliance with this section, as well as with

paragraphs (k)(1)(i) and (k)(1)(ii), may require the employer to notify

the rescue service immediately prior to each permit space entry.

Paragraph (k)(1)(v) requires employers to provide the rescue

service selected with access to all confined spaces from which rescue

may be necessary so that the rescue service can develop appropriate

rescue plans and practice rescue operations. This provision, which is

essentially unchanged from both the NPRM and the 1993 standard, was the

subject of a significant amount of comment from employer

representatives who urged OSHA to require only that they provide access

to ``representative'' or ``typical'' spaces (Exs. 161-29, 161-20, 161-

25, 161-26, 161-2-9, 161-60, 184). These commenters pointed out that a

number of an employer's confined spaces were likely to share identical

configurations, and that it would therefore not be necessary for the

rescue service to have access to each of them (Exs.161-25, 181, 184).

Some also expressed concern that providing access to some permit

spaces, which are only entered at rare intervals for cleaning or other

servicing, could be costly and disruptive of the employer's ongoing

operations.

OSHA recognizes the validity of these concerns but believes that

the employer's needs can be accommodated within the context of the

existing requirement. Accordingly, OSHA has not made the suggested

change. Although OSHA agrees that a rescue service is unlikely to need

access to every one of a group of similar spaces, OSHA believes that it

should be the rescue service that decides which space, or spaces, will

be used for planning and practice purposes. This is particularly true

for off-site rescue services, who are less likely to be familiar with

the layout of the host employer's workplace. The Agency also took this

position in the January 14, 1993 final rule (58 FR 4529-4530), and at

the September 27, 1995, public hearing (Tr. 22). Similarly, although

providing access to some permit spaces may be disruptive of normal

production operations, OSHA believes that employers should be able to

work out with their designated rescue services mutually convenient

times to provide access to those spaces, if the rescue service believes

that access to those particular spaces is necessary for planning or

practice drill purposes. Indeed, none of the commenters argued that

such accommodations could not be made.

As proposed, OSHA has redesignated paragraph (k)(1) of the 1993

standard, dealing with the requirements for rescue service employers,

as (k)(2) of this revision, but has not made substantive changes in

this requirement. Most of the comment OSHA received on this provision

dealt with the fact that employers have different obligations toward

rescue teams comprised of their own employees than toward teams they do

not employ directly. However, as a number of commenters recognized, to

the extent that the ``non-employee'' rescue services are comprised of

employees of another employer subject to the OSH Act, they also will

receive the benefits of these provisions (Ex. 161-20). And to the

extent that a service's failure to comply with these provisions affects

its rescue skills and competence, employers should take this into

account in deciding whether to select that service to provide its

rescue operations.

OSHA has made some editorial changes in this paragraph. For

example, revised paragraph (k)(2)(i) states that rescue PPE and related

training are to be provided at no cost to affected employees. This

language has been added so it is clear that this provision is

consistent with existing Sec. 1910.146(d)(4).

C. Retrieval Systems

OSHA proposed to revise paragraph (k)(3)(i) to allow attachment of

retrieval lines at any point ``which the employer can establish will

ensure that the entrant will present the smallest

[[Page 66025]]

possible profile during removal'' rather than only at the entrant's

back near shoulder level or above the entrant's head. The final rule

changes this language somewhat, but retains the performance orientation

of the proposal. OSHA explained in the NPRM that, subsequent to the

1993 promulgation, the Agency received information which indicated that

other equally effective and safe points of attachment exist.

Accordingly, OSHA proposed to add the new language to paragraph

(k)(3)(i). The proposed paragraph, however, inadvertently omitted

language providing for the use of wristlets in certain circumstances.

Commenters (Exs. 161-1, 161-9, 161-13, 161-14, 161-15, 161-20, 161-

26, 161-29, 161-34, 161-37, 161-43, 161-45) uniformly supported the

increase in flexibility allowed by the proposed revision. Some,

however, suggested changes to OSHA's proposed language. The National

Grain and Feed Association (Ex. 161-14) suggested that the standard

allow attachment ``in the manner determined by the employer most

effective to ensuring that the entrant'' will present the smallest

possible profile during removal. OSHA has not adopted this suggestion

because it believes the two points of attachment listed (the center of

the entrant's back near shoulder level and above the entrant's head)

should be emphasized because those points are preferred for most

situations.

Another commenter (Ex. 161-45) suggested replacing the proposed

``smallest possible profile'' with ``best possible profile.'' OSHA

agrees that it may not always be desirable for the entrant to present

the smallest possible profile during rescue. For instance, in

situations where the size of the space or portal is not limiting, a

point of attachment which results in the smallest possible profile may

be less desirable than some other point of attachment which better

facilitates the work to be done. Accordingly, OSHA has decided to

replace the proposed language with the phrase ``profile small enough

for the successful removal of the entrant.'' OSHA also has not adopted

a suggestion of the Tennessee Valley Authority (Ex. 161-34) that OSHA

change the term ``profile'' to ``cross sectional profile'' because OSHA

believes that the term ``profile'' is clear in this context. Finally,

two commenters called to OSHA's attention the inadvertent omission in

the NPRM of the option to use wristlets where the use of a body harness

is infeasible or would create a greater hazard (Exs. 161-20, 161-26).

The revised rule retains the language on wristlets.

OSHA did not propose, and has not made, any change to subparagraphs

(k)(3)(ii) or (k)(4). Subparagraph (k)(3)(ii) requires a mechanical

device to be available to retrieve entrants from a vertical confined

space more than five feet deep. OSHA notes that it has always intended

that the word ``available'' in this provision mean ``at the access

point of the vertical entry and ready for use.''

Paragraph (l)--Employee Participation

A new paragraph (l) has been added to the standard, dealing with

employee participation in confined space programs. Paragraph (l)(1)

requires employers to consult with affected employees and their

representatives in the development and implementation of their confined

space programs; paragraph (l)(2) requires that those employees and

representatives have access to all information developed under this

standard.

OSHA's original Permit Required Confined Spaces standard hearing

notice (54 FR 41462) requested comments on the subject of worker

participation in the design and implementation of a PRCS program. OSHA

received several comments on the subject (Exs. 14-318, 14-210, 14-215,

14-220, 14-222) and some testimony at the public hearings also

addressed it (Tr. 225-226, 251, 386, 589-590; Tr. 1063-1064; Tr. 317-

318, 348-352, 356, 376, 379-380, 411, 427-428, 532-533, 612-613, 622-

623). The Agency addressed these comments in the preamble to the

January 1993 standard (58 FR 4484-4485).

The standard encouraged the involvement by employees and clearly

recognized it as vital to the creation of an effective permit space

program. However, it did not require employee involvement in the

development of the permit program, although it did provide for such

involvement in permit space program inspection and review (paragraphs

(c)(4) and (d)(13)), and in review of employee training upon evidence

of deficiencies ((g)(2)(iv)). OSHA explained its decision not to

require employee involvement in the development of confined space

programs by referring to the difficulties of mandating labor-management

collaboration in the development of the permit space program and of

resolving conflicts between workers and employers (FR 4484-4485). As is

discussed more fully below, OSHA believes this revision avoids both of

these problems.

Although the NPRM on which this revision is based did not

explicitly mention employee involvement in the development of confined

space programs, some commenters submitted statements urging OSHA to

include a provision explicitly allowing such participation (see, e.g.,

Ex. 161-38; 161-40). Further discussion of this issue occurred at the

public hearing.

Commenters supporting the addition of an employee participation

provision to the standard pointed out that employee participation in

plan design is already done at many workplaces pursuant to collective

bargaining agreements, and that such participation would be consistent

with that occurring under other OSHA standards, particularly the

Process Safety Management standard (29 CFR 1910.119) (Ex. 161-140). It

was also pointed out that employees who actually work in confined

spaces and their representatives are particularly well qualified to

contribute to the task analysis that is a necessary step in developing

a confined space program (Exs. 161-38; 161-140).

In contrast, even the American Petroleum Institute (API), the

commenter who most explicitly opposed inclusion of such a requirement,

acknowledged that involvement by employees in the program development

process could be useful. API said that OSHA should continue to

``encourage'' such involvement but should not require it because such a

requirement could expose the standard to ``additional controversy or

litigation'' (Ex. 167). The American Gas Association made a similar

statement (Ex. 161-770). Other more general comments on employee

participation repeated the point made in the original rulemaking that

such participation raises labor relations issues that should not be

addressed by an OSHA standard (see, e.g., Exs. 184, 187).

OSHA has determined that the consultation requirement in new

paragraph (l) will provide the benefits discussed by the participants

who favored an employee involvement requirement. By leaving the final

contents of the confined space program up to the employer, however,

this provision should minimize controversy and avoid the need to

develop a cumbersome procedure to resolve conflicts. OSHA expects that

there will be few conflicts in any event, because it believes that the

vast majority of employers and employees will cooperate to make

confined space entry procedures as safe and efficient as possible. This

requirement should only have a minimal effect on labor-management

relations although, as noted in the discussion of paragraph (c) above,

the importance of employee

[[Page 66026]]

safety and health would justify such an effect even if it were

substantial.

As the UAW pointed out, the employees who perform the actual entry

can contribute immeasurably to the analysis of the tasks performed

during a permit space entry to ensure that the hazards within the space

remain under control and that additional hazards are not introduced

(Ex. 161-40). These employees are the people most familiar with the

actual practices during confined space entries. If those practices

differ significantly from the practices intended by the employer, the

employer needs to be made aware of the differences and to take

appropriate steps to remedy any deficiencies in the permit entry

procedures. Likewise, employees may be aware of hazards within the

space that are not being taken into consideration by non-entrants.

In addition, OSHA's own experience in enforcing the Congressionally

mandated employee participation requirement under the Process Safety

Management standard has convinced the Agency of both the value and the

workability of the new provisions being added in paragraph (l). OSHA

believes that, as well as improving the quality of the permit space

programs developed under the standard, this new provision will also

enhance compliance with those programs. Clearly, employees who have

participated in the development of programs will have a better

understanding of the reasons for the various provisions of the program

and will therefore be more likely to comply with those provisions.

Similarly, any manager who might be tempted to bypass any of the

program safeguards will be less able to convince an employee that such

an action would not affect safety and health.

Finally, paragraph (l) is consistent with both the Congressional

intent and OSHA's long practice of promoting employer-employee

cooperation in safety and health matters. The Congressional intent is

shown in part by Section 2(13) of the OSH Act, 29 U.S.C. 652(13), which

states that one of the purposes of the Act is to ``encourage joint

labor-management efforts to reduce injuries and disease arising out of

employment.'' More recently, Congress' intent can be seen in its

directive to OSHA to promulgate a PSM standard that explicitly provides

for employee involvement in the development of the process safety

management programs mandated by that standard.

An example of OSHA's longstanding practice of encouraging and

promoting employee involvement is the Agency's 1989 Safety and Health

Program Management Guidelines (54 FR 3904), which recognize the

importance of involving employees in safety and health programs at the

workplace. Paragraph (c)(1)(iv) of those guidelines urges employers to

provide for and encourage employee involvement in ``the structure and

operation of the [safety and health] program and in decisions that

affect their safety and health, so that they will commit their insight

and energy to achieving the safety and health program's goal and

objectives.'' Although the guidelines are voluntary, this provision

demonstrates OSHA's belief that employee involvement is necessary to

the day-to-day safety and health of workers. Additionally, the

guidelines are being applied in many workplaces through several OSHA

programs, such as the Voluntary Protection Program, the Safety and

Health Achievement and Recognition Program, and in several State and

Regional experimental programs. OSHA's 1998 Strategic Plan also

emphasizes the importance of employee involvement in safety and health

and establishes as an Agency objective the enhancement of such

involvement in all OSHA initiatives, as appropriate.

New paragraph (l)(2) requires employers to share with employees and

their authorized representatives all of the information generated under

this standard. Comments objecting to this provision were generally

limited to pointing out that it would be redundant with other

provisions in the standard that already require the great majority, if

not all, of this information to be made available to employees and

representatives. OSHA recognizes this redundancy; it is adding this

provision for purposes of emphasis and clarification.

For all of the reasons described above, OSHA has determined that

the consultation requirement in paragraph (l)(1) is supported by the

record of this rulemaking; it will contribute to confined space safety;

and it is consistent with longstanding agency policy. The information

provision requirement in paragraph (l)(2) is also consistent with

agency policy, and will emphasize that employees and their

representatives have a right to all information affecting their health

and safety.

Section 1910.146 Appendix F--Example of Rescue Service Evaluation

Criteria

As discussed above, OSHA has added a new, non-mandatory Appendix F.

This appendix provides guidance to employers in choosing appropriate

rescue services. The Agency received several comments (Exs. 161-4, 161-

7, 161-44, 161-55) which addressed the need for criteria to assist

employers in evaluating potential rescuers. As expressed by one

commenter (Ex. 161-44): ``If an employer does not have rescue knowledge

and experience, how can he possibly evaluate a prospective rescue

service? What evaluation and verification process is reasonable and

acceptable to OSHA?''

The Agency recognizes that some employers will need information on

how to evaluate prospective rescue services. However, presenting

criteria that match every situation would be difficult. For this

reason, OSHA has determined that the suggested criteria for rescue

service evaluations should be presented in a non-mandatory appendix.

Additionally, this appendix provides criteria for ongoing performance

critiques for rescue services so that employers will have a means to

judge whether a rescue service has maintained its ability to perform

safe and effective permit space rescues. Although the Appendix is

divided into a section addressing initial assessments and one

addressing performance critiques for rescue services already operating

at an employer's facility, the considerations in the two sections

should not be seen as mutually exclusive. To the extent the employer

can obtain enough information to make a determination, the same factors

would be applicable to both determinations.

III. Final Economic Analysis

Introduction

In accordance with Executive Order 12866 and the Regulatory

Flexibility Act (as amended), OSHA has prepared this Final Economic

Analysis to accompany the final rule amending the Agency's Permit-

Required Confined Spaces (PRCS) standard (29 CFR 1910.146). The final

rule is being amended to require employers to provide authorized

entrants (i.e., those employees who are authorized to enter PRCSs) or

their designated representatives with the opportunity to observe the

monitoring or testing of permit spaces and to request the reevaluation

of any permit space that they believe may have been inadequately

tested. The final rule also clarifies the criteria employers must

satisfy when preparing for the timely rescue of incapacitated permit

space entrants. Employee participation in the permit space program is

enhanced in the final rule, which provides authorized employees and

their designated representatives with access to program information

developed under the standard and requires employers to consult with

such

[[Page 66027]]

employees about the implementation of the permit space program.

When the Permit-Required Confined Spaces standard was promulgated

in 1993, the Regulatory Impact Assessment (RIA) that accompanied the

rule was placed into the rulemaking docket [Docket S-019, Ex. 149]. The

RIA evaluated the costs, benefits, impacts, and technological and

economic feasibility of the 1993 final rule. The Final Economic

Analysis presented here estimates the costs of those requirements of

the amended rule that will impose new regulatory burdens on affected

employers, analyzes the benefits that will accrue to employers,

employees, and others as a result of these new provisions, examines the

technological and economic feasibility of the amended provisions, and

assesses the impacts of the costs of compliance on affected employers

and on small businesses in particular. The Final Economic Analysis does

not re-analyze the estimates presented in the RIA for the 1993 rule or

assess the costs and benefits of provisions in the amended final rule

that merely interpret or explain the intent of provisions in the 1993

rule because the costs and benefits of such provisions were fully taken

into account in the earlier RIA.

This Final Economic Analysis assesses the costs, benefits,

technological and economic feasibility, and impacts of two provisions

of the amended final rule. These provisions include revised paragraph

(d), which now requires employers to permit authorized employees or

their designated representatives to observe the testing or monitoring

of permit spaces, and paragraph (l), which requires employee

participation in the development and implementation of the permit space

program and requires employers to provide employees and their

designated representatives with access to information developed under

the standard. The Agency has determined that the revised provisions

will enhance the safety and health protections provided to confined

space entrants by the standard and will also benefit employers by

saving some of the direct costs associated with deaths and serious

injuries that now occur but will in future be prevented.

The following sections of this analysis briefly summarize the

industry profile and the findings of the Agency's technological

feasibility analysis for the amended rule.

Industry Profile

Tanks, vats and pits are examples of common confined spaces.

Although confined spaces of these types are concentrated in the

manufacturing and utilities sectors, they are also found in some trade

and service sectors. The 1993 RIA estimated that 1.6 million workers in

nearly 240,000 establishments enter confined spaces annually. A profile

of these spaces is presented in Table I. A more detailed description of

confined spaces in industry is available in the earlier RIA [Docket S-

019, Ex. 149].

BILLING CODE 4510-26-P

[[Page 66028]]

[GRAPHIC] [TIFF OMITTED] TR01DE98.009

BILLING CODE 4510-26-C

[[Page 66029]]

Technological Feasibility

Paragraphs (d) and (l) of the amended final rule will impose new

costs on some affected employers because they will be required to spend

additional time consulting with employees, to allow employees or their

representatives to spend time observing the testing or monitoring of

permit spaces, and so forth. However, the amended rule will not require

employers to employ additional or new technologies to achieve

compliance. As explained in the RIA [Docket S-019, Ex. 149], compliance

with all aspects of the standard can be achieved and is being achieved

with readily available off-the-shelf equipment.

Costs of Compliance

Observation of Testing

The Agency is modifying paragraph (d)(5), by adding paragraphs

(iv), (v), and (vi), which require employers to offer authorized

entrants or their designated representatives the opportunity to observe

the pre-entry testing or monitoring and any subsequent testing or

monitoring of permit spaces (paragraph (d)(5)(iv)); to reevaluate any

space that the entrant or representative believes was inadequately

tested (paragraph (d)(5)(v)); and to provide entrants and their

representatives with the results of such testing immediately (paragraph

(d)(5)(vi)).

OSHA concludes, based on evidence in the record, that paragraphs

(d)(5)(v) and (d)(5)(vi) will not impose new costs on affected

employers because they simply restate or explain requirements that were

implicit in paragraph (e)(3) of the existing permit space rule.

Paragraph (e)(3) requires the posting of entry permits, which contain

the results of initial or periodic testing or monitoring (including the

results of any remonitoring or testing), to enable authorized entrants

to verify that preentry preparations have been completed. As stated in

the preamble to the original rule [58 FR 4505], this provision ensures

that ``Entrants will then be able to make their own judgments as to the

completeness of pre-entry preparations and to point out any

deficiencies that they believe exist.'' Commenters affirmed that

permits are posted and used in this way and thus that this provision

reflects current industry practice [Ex. 161-45; Ex. 161-72]. Paragraph

(d)(5)(vi) of the amended rule, which requires employers to provide

entrants and their representatives with the results of such testing or

monitoring, is also implicit in paragraph (e)(3), which requires that

``The completed permit shall be made available at the time of entry to

all authorized entrants, by posting it at the entry portal or by any

other equally effective means, so that the entrants can confirm that

pre-entry preparations have been completed.'' As stated above, it is

current industry practice to provide immediate access to the

information on entry permits.

Paragraph (d)(5)(iv) may impose new costs on some employers,

although there is evidence in the record that many employers already

allow permit space entrants to observe the testing or monitoring of

spaces. For example, different firms indicated that they routinely

provide employees with assurances of safety, showing them the various

pre-entry safety procedures, if necessary [Tr., p. 57] or allowing

employees to do the monitoring themselves [Tr., p. 186]. Mike Roop of

the Roco Corporation indicated that, in the companies with which he had

worked, employee requests to observe testing were not denied [Tr., p.

267]. Other firms actually encourage employees to observe monitoring

[Tr., p. 202]. Duane Barnes, speaking for Dow, indicated that his

company's safety record was so good that, although it was company

policy to provide employees with any reassurance that was required in

the area of safety, Dow had simply not had such requests [Tr., p. 57].

OSHA notes that its economic analyses for health standards, which

routinely allow employees and their representatives to observe any

employee exposure monitoring required by such standards, do not

estimate any costs for the observation of monitoring provision (see,

for example, the RIAs for ethylene oxide [Ex. 163, Docket H-200],

cadmium [Ex. L173, Docket H-057A] ). The Agency also has not received

comments suggesting that employers actually incur costs by permitting

employees to observe monitoring for health standards. In the present

rulemaking, an industry representative stated that allowing employees

to observe the monitoring required by OSHA health standards did not

present a problem [Tr. p. 93]. Based on this history and evidence, OSHA

assumes that such costs are essentially negligible.

OSHA also believes, based on the record, that many employers will

meet the requirement for employee observation of monitoring by allowing

employees requesting such information to perform the monitoring

themselves. The task of testing has been greatly simplified by the

introduction and improvement of electronic ``instant'' monitoring

devices; for many spaces, employers currently place the monitoring

devices directly on the employees [Tr. pp. 186, 188]. To the extent

entrants test the atmosphere themselves before entering spaces, there

would be no cost to this requirement.

Nonetheless, although the Agency believes that the costs of

compliance with paragraph (d)(5)(iv) will be negligible, it has

assessed the costs this provision might impose under worst case

conditions, i.e., assuming that no employer currently permits any

employee to observe such monitoring or testing of permit spaces and

that every authorized entrant or designated representative will do so

in the future. At the time of the original rulemaking, OSHA estimated

that a total of 1.2 million hours would need to be spent on pre-entry

testing (this estimate includes those facilities that were considered

already to be in compliance with the monitoring provisions of the

original confined spaces standard).\1\ After adjusting the compensation

rates in the original RIA to 1994,\2\ the annual costs of compliance

with paragraph (d)(5)(iv) under this extreme scenario would amount to

$22.6 million.

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

\1\ Based upon an assumption of an average of five minutes of

labor time required for pre-entry testing. This assumption was

presented in the Preliminary Regulatory Impact Analysis (PRIA) for

the original rule [Docket S-019, Ex. 15], was not questioned in the

record, and was therefore carried over into the final RIA [Docket S-

019, Ex. 149]. The final RIA was not subsequently challenged.

\2\ Thus comparing 1994 costs to 1994 financial data (discussed

further in the Economic Impact Section). The compensation rate was

also updated to reflect recent BLS data, which indicates a 39 fringe

benefit rate [BLS, 1995], as opposed to the 30 percent rate used in

original analysis [Docket S-019, Exhibit 149].

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

OSHA believes, based on the record and the Agency's experience in

health standards rulemakings, that costs for this provision will be

incurred in no more than 10 percent of permit space entries, i.e., that

the actual costs of this provision will be one-tenth of those outlined

in the ``worst case'' scenario, or $2.3 million. Estimated costs for

this provision, by industry, are shown in Table II.

Employee Consultation

As indicated previously, the Agency is adding a new paragraph (l)

to the amended final rule. This provision requires employers to consult

with affected employees and their authorized representatives. The

existing rule, at paragraph (c)(4), already requires that the written

plan be available for review by employees and their authorized

representative(s). However, the Agency believes that the requirements

in new paragraph (l) will lead to a modest increase in the amount of

time employees and employers spend in

[[Page 66030]]

developing and implementing their confined spaces programs.

Although the Agency lacks specific data on current industry

practice with regard to employee consultation in the development and

implementation of permit space programs, the Agency believes it

reasonable to assume that the requirements in paragraph (l) will

require an average of 10 minutes for authorized entrants and attendants

to meet with a member of management or an entry supervisor to discuss

ways to improve the program and its implementation. The Regulatory

Impact Analysis in support of the original rule assumed that programs

would need to be updated fully on an average of once every five years.

Therefore, the annual cost of this provision is estimated to be:

(We+Wm) X (# of entrants + # attendants) X 10/60 hour X .24 where

We is the hourly compensation of affected employees and Wm is the

hourly compensation of management. Hourly compensation is based on 1994

industry hourly wage rates for production workers [BLS, 1994], plus the

average nonagricultural benefit rate of 39 percent [BLS, 1995].

Consistent with the PRIA [Docket S-019, Ex. 15] and RIA [Docket S-019,

Ex. 149], management compensation is assumed to be 20 percent greater

than that of the entrants and attendants. The annualization factor for

a five-year period at a 7 percent rate of interest is .24. Given these

assumptions, the Agency estimates that this provision will cost $3.6

million to implement. Estimated costs for this provision, by industry,

are shown in Table II. Combined with the amended final rule's provision

requiring employers to provide employees with the opportunity to

observe testing, the Agency estimates the total costs of compliance for

the amended final rule to be $5.8 million annually.

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[[Page 66032]]

Benefits

The benefits of providing employees with an opportunity to observe

the testing of spaces are predictably difficult to quantify, although

the Agency believes that the benefits of doing so are real. Allowing

employees to observe the testing and monitoring of permit spaces will

provide for safer confined space entry: the record shows that, had

employees in the past been able to observe the testing of spaces before

entry or to obtain a reevaluation of questionable testing results, it

is likely that a number of fatalities could have been averted. For

example, the Steelworkers [Ex. 188, p. 4] report a number of cases

where employers have apparently tested spaces improperly, leading to

fatal results both for the workers entering the space and the rescuers

attempting to rescue their incapacitated co-workers.

However, defining the number of fatalities or injuries preventable

annually by this provision is difficult because permit space accidents,

like most safety accidents, are multi-causal in nature. Most confined

space accidents reflect a number of failures in the permit program,

which makes it difficult to isolate the effectiveness of any given

provision of the program (or rule). At the time of the original rule,

OSHA specifically asked in the Federal Register [54 FR 24080] for

comment on the effectiveness of the permit space rule; there was

general agreement that the standard would prevent 80-90 percent of

accidents. There was little attempt, however, to try to break out the

benefits of particular provisions, due to the substantial overlap of

causes in accidents and the deliberate redundancy built into some

provisions of the standard.

In addition, it is difficult to estimate how often authorized

entrants or their designated representatives will avail themselves of

the opportunity to observe the testing or monitoring of permit spaces.

To gain an understanding of the magnitude of the potential benefits

associated with new paragraph (d)(5)(iv), OSHA turned to the RIA, which

estimated that 85% of permit space accidents would be eliminated by the

standard but that 15% of such accidents would continue to occur [58 CFR

4543]. These 15% of fatal cases, or 9 cases annually, were attributed

to ``human error'' but were also believed to be theoretically

preventable.

The amended rule's provision for the observation of testing will

function to provide a ``check'' on human error in those cases where

monitoring was improperly performed. When these fatal accidents occur,

more than one element of the safety system has typically failed;

however, in almost all such cases, one critical element--the accurate

monitoring of the atmosphere--has failed. Thus it is reasonable to

assume that allowing authorized entrants or their designated

representatives to observe the testing of spaces will prevent a

substantial portion of the accidents attributed in the RIA to human

error. Because approximately two-thirds of these fatalities were

related to atmospheric hazards (toxic, explosive, or oxygen deficient

atmospheres),3 OSHA assumes in this benefits analysis that

the same proportion of cases, or a total of approximately 6 fatalities

annually, could be prevented if proper monitoring was assured in all

cases of permit space entry.

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

\3\ Based on an examination of death certificates for 670

fatalities in confined spaces in NIOSH's National Traumatic

Occupational Fatality (NTOF) data base [NIOSH, Worker Deaths in

Confined Spaces, January 1994]. This is after excluding cases

related to grain engulfment, which are dealt with under OSHA's grain

handling standard (Sec. 1910.272). This figure is likely

conservative, as NIOSH's figures include some trench cave-ins, which

are dealt with under OSHA's excavation standard (Sec. 1926, Subpart

P).

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

How effective this provision will be in practice will depend on the

number of employees who actually avail themselves of the opportunity to

observe the testing of spaces. In the absence of data to quantify this

effect specifically, the Agency is adopting the conservative assumption

of direct proportionality--i.e., the Agency is assuming that if only a

small number of employees observe such monitoring, only a small number

of the potentially preventable fatal incidents will be prevented. In

this case, since the cost analysis assumes that only 10 percent of

employees will actually observe monitoring, the Agency assumes that

only 10 percent of the 6 fatalities (or 0.6 fatalities) will be

prevented annually. Borrowing similarly from the injury analysis of the

RIA for the final rule, the Agency estimates that paragraph (d)(5)(iv)

will prevent 50 lost workday injuries annually.4 Finally, to

the extent more employees than assumed here avail themselves of the

opportunity provided by the final rule, both the benefits and costs

will be higher.

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

\4\ The baseline number of lost-workday injuries in confined

spaces was estimated to be 5,041 before the rule was published.

(While the original projection of baseline injuries was based on a

theoretical projection, it has subsequently been verified as being

approximately correct, based on now-available 1993 BLS data [BLS,

1996, Table R64].) This leaves a residual of 756 (.15 x 5,041)

such injuries annually that would not be prevented by the original

rule. If this provision could theoretically prevent \2/3\ of these

cases, or 507 (.67 x 756), but will only be used 10 percent of the

time, this suggests that 50 lost-workday injuries will be prevented

annually as a result of this provision.

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

Indirect benefits from this provision, as well as from paragraph

(l), will come in the form of enhanced employee participation. A recent

analysis of Oregon's mandatory safety and health program rule, which

requires active employee participation, indicates that employers

receive measurable safety benefits from enhanced employee participation

in safety programs [Weil, 1994]. Consulting employees in the

development of a confined spaces safety program, as required by

paragraph (l), may also generate new ideas for more efficient confined

spaces entry. As was noted by several commenters from industry in the

original rulemaking [Docket S-019, Ex. 149, pp. V-68-71], confined

spaces are frequently production vessels that cannot be used while they

are being entered, and the employer therefore has an incentive to

minimize the amount of time spent in the confined space. Therefore,

extra time spent planning safe and efficient entry beforehand may pay

dividends not only in increased labor productivity but in capital

productivity as well. For example, an employee might have a suggestion

for modifying the job so as to avoid the need to enter the space

entirely.

Economic Impact

To assess the economic impact of these amendments to the permit

required confined spaces standard, the Agency compared the estimated

annual costs of these provisions against the revenues and profits of

affected businesses. Revenue data were taken from the Bureau of the

Census' Standard Statistical Establishment List data base; profit data

were taken from Dun and Bradstreet's Norms and Key Business Ratios [Dun

& Bradstreet]. Sales, profit and relevant cost data are all from 1994,

the most recent year for which highly detailed small business data is

currently available to the Agency.

The comparison of costs with revenue and profits for all affected

establishments is shown in Table III. It indicates that costs to

affected establishments in all industries are no more than .006% of

revenues and are less than .07% of profits. Costs of this magnitude

cannot be considered large enough to impose regulatory burdens on

employers or to raise issues of economic feasibility.

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[[Page 66034]]

The Agency has also, as required by the Regulatory Flexibility Act

(as amended) analyzed the impact of the standard specifically on small

entities potentially affected by the revisions being made to the final

rule. The Agency examined the impact of the revisions both on

establishments with fewer than 20 employees and on firms with fewer

than 500 employees. An industry profile for establishments with fewer

than 20 employees is available in the RIA accompanying the original

rule (Ex. 149, Docket S-019). For firms with fewer than 500 employees,

industry profile data were not readily available; the Agency therefore

analyzed impacts using a ``worst case'' impact scenario. Under this

scenario, OSHA assumed that all of the costs of the revised final rule

would be borne by firms in this size class, i.e., that no impacts would

be borne by larger firms, a highly unlikely scenario. The impacts

projected in Table III for firms in the 500-employee size class thus

substantially overstate costs for these firms. Nonetheless, as shown in

Tables IV and V, even under this worst case scenario, costs were very

small relative to sales and profits. Costs did not exceed .006 percent

of sales or more than .08 percent of profits for establishments with

fewer than 20 or fewer than 500 employees in any affected industry.

Certification of No Significant Impact

Based on the results of the analysis presented above, OSHA

certifies, in accordance with the Regulatory Flexibility Act (as

amended) that the revised rule for permit required confined spaces will

not have a significant economic impact on a substantial number of small

entities.

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[[Page 66036]]

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[[Page 66037]]

Unfunded Mandates Reform Act

This amendment to the confined spaces standard has been reviewed by

OSHA in accordance with the Unfunded Mandates Reform Act of 1995 (UMRA)

(2 USC 1501 et seq.) and Executive Order 12875. OSHA has determined, as

explained below, that this regulatory action will not impose a

significant cost on employers in the public sector and will impose

costs of substantially less than $100 million on establishments in the

private sector. This rule is therefore not a significant regulatory

action within the meaning of Section 202 of UMRA (2 U.S.C. 1532). OSHA

standards do not apply to state and local governments except in states

that have voluntarily elected to adopt an OSHA State Plan.

Consequently, the confined spaces standard does not meet the definition

of a ``federal intergovernmental mandate'' (Section 421(5) of UMRA (2

USC 658(5)). Further, OSHA has found that any impact on such entities

would be insignificant. In sum, this amendment to the confined spaces

standard does not impose unfunded mandates on state, local, or tribal

governments.

However, this action may have some benefits to state and local

governments. The record indicates that fire departments around the

country have been bearing the burden of rescuing employees from

confined spaces [Ex. 161-41], typically the result of inadequate or

nonexistent entry procedures. To the extent that the opportunity to

observe monitoring results in better adherence to preventive measures

required by the existing standard, or that employee participation in

program development and implementation improves the effectiveness of

the underlying permit spaces plan, these entities will garner benefits

from the rule. Additionally, to the extent that employers better

understand their obligations for rescue preparedness under the existing

standard and coordinate with fire departments more effectively, local

fire departments will also benefit.

Environmental Assessment

The final permit required confined spaces standard has been

reviewed in accordance with the requirements of the National

Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.), the

regulations of the Council of Environmental Quality (CEQ) (40 CFR part

1500), and DOL NEPA procedures (29 CFR part 11). As a result of this

review, OSHA has concluded that the rule will not have a significant

environmental impact.

References

Dun and Bradstreet, Norms and Key Business Ratios, Desk-Top

Edition, 1994-1995.

U.S. Department of Labor, Bureau of Labor Statistics, Employment

and Earnings, October 1994.

U.S. Department of Labor, Bureau of Labor Statistics, ``Employer

Costs for Employer Compensation'', News Release, June 22, 1995.

U.S. Department of Labor, Bureau of Labor Statistics, ``Number

of nonfatal occupational injuries and illnesses involving days away

from work by event or exposure leading to injury or illness and

industry division, 1993''. Available at BLS Web site at: ftp://

146.142.4.23/pub/special.requests/ocwc/osh/

Weil, Working Paper 112, Economic Policy Institute, 1994.

IV. Federalism

This standard has been reviewed in accordance with Executive Order

12612 (52 FR 31685, October 30, 1987) regarding Federalism. This order

requires that agencies, to the extent possible, refrain from limiting

State policy options and consult with States prior to taking any

action. Agencies may act only when there is clear constitutional

authority and the presence of a problem of national scope. The order

provides for preemption of State law only if there is a clear

congressional intent for the Agency to do so. Any such preemption is to

be limited to the extent possible.

Section 18 of the Occupational Safety and Health Act of 1970

expresses Congress' clear intent to preempt State laws relating to

issues on which Federal OSHA has promulgated occupational safety and

health standards. Under the OSH Act, a State can avoid preemption only

if it submits, and obtains Federal approval of, a plan for the

development of such standards and their enforcement. Occupational

safety and health standards developed by State Plan States must, among

other things, be at least as effective in providing safe and healthful

employment and places of employment as Federal standards. Where state

standards are applicable to products distributed or used in interstate

commerce, those standards may not unduly burden commerce and must be

justified by compelling local conditions (see Section 18(c)(2) of the

OSH Act).

This final rule has been drafted so that employees in every State

will be protected by general, performance-oriented standards. To the

extent that there are State or regional peculiarities caused by the

terrain, the climate or other factors, States would be able, under the

OSH Act, to develop their own State standards to deal with any special

problems. And, under the Act, if a State develops an approved State

program, it could set additional requirements in its standards.

Moreover, the performance-oriented nature of this standard, of and by

itself, allows flexibility to provide as much safety as possible using

varying methods consonant with conditions in each State.

In short, there is a clear national problem related to occupational

safety and health concerning entry into permit-required confined

spaces. Those States that elect to participate in State plans under the

statute would not be preempted by this standard and would be able to

address special, local conditions within the framework provided by this

performance-oriented standard, while ensuring that the state standards

are at least as effective as that standard.

V. OMB Review Under the Paperwork Reduction Act

The collection of information requirements in this final rule are

essentially the same as those in the current rule. OSHA does not

believe the clarified language of the final rule increases or decreases

the burden associated with the preparation, maintainence or disclosure

of information beyond the current rule. OMB has approved the collection

of information requirements in Sec. 1910.146 under control number 1218-

0203. The approval expires on June 30, 1999. OSHA anticipates that it

will seek public comment on the burden associated with the information

collection requirements in the entire standard in the early part of

1999, allowing the public the opportunity to comment on the need for,

and the burden associated with, all collection of information

requirements in the standard on permit required confined spaces.

VI. State Plans

The 25 states and territories with their own OSHA-approved

occupational safety and health plans must adopt a comparable amended

standard within six months of the publication date of a final Federal

OSHA standard. These 25 States and territories are: Alaska, Arizona,

California, Connecticut (for state and local government employees

only), Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota,

Nevada, New Mexico, New York (for state and local government employees

only), North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee,

Utah, Vermont, Virginia, Virgin Islands, Washington and Wyoming. Until

such

[[Page 66038]]

time as a comparable standard is promulgated, Federal OSHA will provide

interim enforcement assistance, as appropriate, in these states and

territories.

VII. List of Subjects in 29 CFR Part 1910

Confined spaces, Monitoring, Occupational safety and health,

Personal protective equipment, Rescue equipment, Retrieval lines,

Safety, Testing.

VIII. Authority

This document was prepared under the direction of Charles N.

Jeffress, Assistant Secretary of Labor for Occupational Safety and

Health, U.S. Department of Labor, 200 Constitution Avenue, N.W.,

Washington, D.C. 20210.

Accordingly, pursuant to sections 4, 6(b) and 8 of the Occupational

Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), Secretary of

Labor's Order No. 6-96 (62 FR 111), and 29 CFR part 1911, 29 CFR

1910.146 is amended as set forth below.

Signed at Washington, D.C. this 25th day of November, 1998.

Charles N. Jeffress

Assistant Secretary of Labor

PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS

1. The authority citation for subpart J of part 1910 is revised to

read as follows:

Authority: Secs. 4, 6, and 8, Occupational Safety and Health Act

of 1970, 29 U.S.C. 653, 655, 657; Secretary of Labor's Order No. 12-

71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR

9033), or 6-96 (62 FR 111), as applicable.

Sec. 1950.141 [Amended]

Sections 1910.141, 1910.142, 1910.145, 1910.146, and 1910.147 also

issued under 29 CFR part 1911.

2. Section 1910.146 is amended:

a. By revising paragraphs (c)(5)(i)(E), (c)(5)(ii)(C),

(c)(5)(ii)(F), (c)(5)(ii)(H), (c)(7)(iii), (e)(3), (k)(1), (k)(2), and

(k)(3)(i);

b. By redesignating paragraphs (d)(3)(ii), (d)(3)(iii), (d)(3)(iv),

and (d)(3)(v) as paragraphs (d)(3)(iii), (d)(3)(iv), (d)(3)(v), and

(d)(3)(vi), respectively; and

c. By adding new paragraphs (d)(3)(ii); (d)(5)(iv), and (d)(5)(v),

and (d)(5)(vi) (immediately following paragraph (d)(5)(iii) and before

the Note); and (l), to read as follows:

Sec. 1910.146 Permit-required confined spaces.

* * * * *

(c) * * *

(5) * * *

(i) * * *

(E) The determinations and supporting data required by paragraphs

(c)(5)(i)(A), (c)(5)(i)(B), and (c)(5)(i)(C) of this section are

documented by the employer and are made available to each employee who

enters the permit space under the terms of paragraph (c)(5) of this

section or to that employee's authorized representative; and

* * * * *

(ii) * * *

(C) Before an employee enters the space, the internal atmosphere

shall be tested, with a calibrated direct-reading instrument, for

oxygen content, for flammable gases and vapors, and for potential toxic

air contaminants, in that order. Any employee who enters the space, or

that employee's authorized representative, shall be provided an

opportunity to observe the pre-entry testing required by this

paragraph.

* * * * *

(F) The atmosphere within the space shall be periodically tested as

necessary to ensure that the continuous forced air ventilation is

preventing the accumulation of a hazardous atmosphere. Any employee who

enters the space, or that employee's authorized representative, shall

be provided with an opportunity to observe the periodic testing

required by this paragraph.

* * * * *

(H) The employer shall verify that the space is safe for entry and

that the pre-entry measures required by paragraph (c)(5)(ii) of this

section have been taken, through a written certification that contains

the date, the location of the space, and the signature of the person

providing the certification. The certification shall be made before

entry and shall be made available to each employee entering the space

or to that employee's authorized representative .

* * * * *

(7) * * *

(iii) The employer shall document the basis for determining that

all hazards in a permit space have been eliminated, through a

certification that contains the date, the location of the space, and

the signature of the person making the determination. The certification

shall be made available to each employee entering the space or to that

employee's authorized representative.

* * * * *

(d) * * *

(3) * * *

(ii) Providing each authorized entrant or that employee's

authorized representative with the opportunity to observe any

monitoring or testing of permit spaces;

* * * * *

(5) * * *

(iv) Provide each authorized entrant or that employee's authorized

representative an opportunity to observe the pre-entry and any

subsequent testing or monitoring of permit spaces;

(v) Reevaluate the permit space in the presence of any authorized

entrant or that employee's authorized representative who requests that

the employer conduct such reevaluation because the entrant or

representative has reason to believe that the evaluation of that space

may not have been adequate;

(vi) Immediately provide each authorized entrant or that employee's

authorized representative with the results of any testing conducted in

accord with paragraph (d) of this section.

* * * * *

(e) * * *

(3) The completed permit shall be made available at the time of

entry to all authorized entrants or their authorized representatives,

by posting it at the entry portal or by any other equally effective

means, so that the entrants can confirm that pre-entry preparations

have been completed.

* * * * *

(k) Rescue and emergency services.

(1) An employer who designates rescue and emergency services,

pursuant to paragraph (d)(9) of this section, shall:

(i) Evaluate a prospective rescuer's ability to respond to a rescue

summons in a timely manner, considering the hazard(s) identified;

Note to paragraph (k)(l)(i): What will be considered timely will

vary according to the specific hazards involved in each entry. For

example, Sec. 1910.134, Respiratory Protection, requires that

employers provide a standby person or persons capable of immediate

action to rescue employee(s) wearing respiratory protection while in

work areas defined as IDLH atmospheres.

(ii) Evaluate a prospective rescue service's ability, in terms of

proficiency with rescue-related tasks and equipment, to function

appropriately while rescuing entrants from the particular permit space

or types of permit spaces identified;

(iii) Select a rescue team or service from those evaluated that:

(A) Has the capability to reach the victim(s) within a time frame

that is appropriate for the permit space hazard(s) identified;

(B) Is equipped for and proficient in performing the needed rescue

services;

[[Page 66039]]

(iv) Inform each rescue team or service of the hazards they may

confront when called on to perform rescue at the site; and

(v) Provide the rescue team or service selected with access to all

permit spaces from which rescue may be necessary so that the rescue

service can develop appropriate rescue plans and practice rescue

operations.

Note to paragraph (k)(1): Non-mandatory Appendix F contains

examples of criteria which employers can use in evaluating

prospective rescuers as required by paragraph (k)(l) of this

section.

(2) An employer whose employees have been designated to provide

permit space rescue and emergency services shall take the following

measures:

(i) Provide affected employees with the personal protective

equipment (PPE) needed to conduct permit space rescues safely and train

affected employees so they are proficient in the use of that PPE, at no

cost to those employees;

(ii) Train affected employees to perform assigned rescue duties.

The employer must ensure that such employees successfully complete the

training required to establish proficiency as an authorized entrant, as

provided by paragraphs (g) and (h) of this section;

(iii) Train affected employees in basic first-aid and

cardiopulmonary resuscitation (CPR). The employer shall ensure that at

least one member of the rescue team or service holding a current

certification in first aid and CPR is available; and

(iv) Ensure that affected employees practice making permit space

rescues at least once every 12 months, by means of simulated rescue

operations in which they remove dummies, manikins, or actual persons

from the actual permit spaces or from representative permit spaces.

Representative permit spaces shall, with respect to opening size,

configuration, and accessibility, simulate the types of permit spaces

from which rescue is to be performed.

* * * * *

(3) * * *

(i) Each authorized entrant shall use a chest or full body harness,

with a retrieval line attached at the center of the entrant's back near

shoulder level, above the entrant's head, or at another point which the

employer can establish presents a profile small enough for the

successful removal of the entrant. Wristlets may be used in lieu of the

chest or full body harness if the employer can demonstrate that the use

of a chest or full body harness is infeasible or creates a greater

hazard and that the use of wristlets is the safest and most effective

alternative.

* * * * *

(l) Employee participation. (1) Employers shall consult with

affected employees and their authorized representatives on the

development and implementation of all aspects of the permit space

program required by paragraph (c) of this section.

(2) Employers shall make available to affected employees and their

authorized representatives all information required to be developed by

this section.

Appendices to Sec. 1910.146 [Amended]

3. In the Note preceding Appendix A to Sec. 1910.146, the phrase

``Appendices A through E'' is revised to read ``Appendices A through

F''.

4. A new Appendix F to Sec. 1910.146 is added to read as follows:

Non-Mandatory Appendix F--Rescue Team or Rescue Service Evaluation

Criteria

(1) This appendix provides guidance to employers in choosing an

appropriate rescue service. It contains criteria that may be used to

evaluate the capabilities both of prospective and current rescue

teams. Before a rescue team can be trained or chosen, however, a

satisfactory permit program, including an analysis of all permit-

required confined spaces to identify all potential hazards in those

spaces, must be completed. OSHA believes that compliance with all

the provisions of Sec. 1910.146 will enable employers to conduct

permit space operations without recourse to rescue services in

nearly all cases. However, experience indicates that circumstances

will arise where entrants will need to be rescued from permit

spaces. It is therefore important for employers to select rescue

services or teams, either on-site or off-site, that are equipped and

capable of minimizing harm to both entrants and rescuers if the need

arises.

(2) For all rescue teams or services, the employer's evaluation

should consist of two components: an initial evaluation, in which

employers decide whether a potential rescue service or team is

adequately trained and equipped to perform permit space rescues of

the kind needed at the facility and whether such rescuers can

respond in a timely manner, and a performance evaluation, in which

employers measure the performance of the team or service during an

actual or practice rescue. For example, based on the initial

evaluation, an employer may determine that maintaining an on-site

rescue team will be more expensive than obtaining the services of an

off-site team, without being significantly more effective, and

decide to hire a rescue service. During a performance evaluation,

the employer could decide, after observing the rescue service

perform a practice rescue, that the service's training or

preparedness was not adequate to effect a timely or effective rescue

at his or her facility and decide to select another rescue service,

or to form an internal rescue team.

A. Initial Evaluation

I. The employer should meet with the prospective rescue service

to facilitate the evaluations required by Sec. 1910.146(k)(1)(i) and

Sec. 1910.146(k)(1)(ii). At a minimum, if an off-site rescue service

is being considered, the employer must contact the service to plan

and coordinate the evaluations required by the standard. Merely

posting the service's number or planning to rely on the 911

emergency phone number to obtain these services at the time of a

permit space emergency would not comply with paragraph (k)(1) of the

standard.

II. The capabilities required of a rescue service vary with the

type of permit spaces from which rescue may be necessary and the

hazards likely to be encountered in those spaces. Answering the

questions below will assist employers in determining whether the

rescue service is capable of performing rescues in the permit spaces

present at the employer's workplace.

1. What are the needs of the employer with regard to response

time (time for the rescue service to receive notification, arrive at

the scene, and set up and be ready for entry)? For example, if entry

is to be made into an IDLH atmosphere, or into a space that can

quickly develop an IDLH atmosphere (if ventilation fails or for

other reasons), the rescue team or service would need to be standing

by at the permit space. On the other hand, if the danger to entrants

is restricted to mechanical hazards that would cause injuries (e.g.,

broken bones, abrasions) a response time of 10 or 15 minutes might

be adequate.

2. How quickly can the rescue team or service get from its

location to the permit spaces from which rescue may be necessary?

Relevant factors to consider would include: the location of the

rescue team or service relative to the employer's workplace, the

quality of roads and highways to be traveled, potential bottlenecks

or traffic congestion that might be encountered in transit, the

reliability of the rescuer's vehicles, and the training and skill of

its drivers.

3. What is the availability of the rescue service? Is it

unavailable at certain times of the day or in certain situations?

What is the likelihood that key personnel of the rescue service

might be unavailable at times? If the rescue service becomes

unavailable while an entry is underway, does it have the capability

of notifying the employer so that the employer can instruct the

attendant to abort the entry immediately?

4. Does the rescue service meet all the requirements of

paragraph (k)(2) of the standard? If not, has it developed a plan

that will enable it to meet those requirements in the future? If so,

how soon can the plan be implemented?

5. For off-site services, is the service willing to perform

rescues at the employer's workplace? (An employer may not rely on a

rescuer who declines, for whatever reason, to provide rescue

services.)

6. Is an adequate method for communications between the

attendant, employer and prospective rescuer available so that a

rescue request can be transmitted to the rescuer without delay? How

soon after notification can a prospective rescuer dispatch a rescue

team to the entry site?

[[Page 66040]]

7. For rescues into spaces that may pose significant atmospheric

hazards and from which rescue entry, patient packaging and retrieval

cannot be safely accomplished in a relatively short time (15-20

minutes), employers should consider using airline respirators (with

escape bottles) for the rescuers and to supply rescue air to the

patient. If the employer decides to use SCBA, does the prospective

rescue service have an ample supply of replacement cylinders and

procedures for rescuers to enter and exit (or be retrieved) well

within the SCBA's air supply limits?

8. If the space has a vertical entry over 5 feet in depth, can

the prospective rescue service properly perform entry rescues? Does

the service have the technical knowledge and equipment to perform

rope work or elevated rescue, if needed?

9. Does the rescue service have the necessary skills in medical

evaluation, patient packaging and emergency response?

10. Does the rescue service have the necessary equipment to

perform rescues, or must the equipment be provided by the employer

or another source?

B. Performance Evaluation

Rescue services are required by paragraph (k)(2)(iv) of the

standard to practice rescues at least once every 12 months, provided

that the team or service has not successfully performed a permit

space rescue within that time. As part of each practice session, the

service should perform a critique of the practice rescue, or have

another qualified party perform the critique, so that deficiencies

in procedures, equipment, training, or number of personnel can be

identified and corrected. The results of the critique, and the

corrections made to respond to the deficiencies identified, should

be given to the employer to enable it to determine whether the

rescue service can quickly be upgraded to meet the employer's rescue

needs or whether another service must be selected. The following

questions will assist employers and rescue teams and services

evaluate their performance.

1. Have all members of the service been trained as permit space

entrants, at a minimum, including training in the potential hazards

of all permit spaces, or of representative permit spaces, from which

rescue may be needed? Can team members recognize the signs,

symptoms, and consequences of exposure to any hazardous atmospheres

that may be present in those permit spaces?

2. Is every team member provided with, and properly trained in,

the use and need for PPE, such as SCBA or fall arrest equipment,

which may be required to perform permit space rescues in the

facility? Is every team member properly trained to perform his or

her functions and make rescues, and to use any rescue equipment,

such as ropes and backboards, that may be needed in a rescue

attempt?

3. Are team members trained in the first aid and medical skills

needed to treat victims overcome or injured by the types of hazards

that may be encountered in the permit spaces at the facility?

4. Do all team members perform their functions safely and

efficiently? Do rescue service personnel focus on their own safety

before considering the safety of the victim?

5. If necessary, can the rescue service properly test the

atmosphere to determine if it is IDLH?

6. Can the rescue personnel identify information pertinent to

the rescue from entry permits, hot work permits, and MSDSs?

7. Has the rescue service been informed of any hazards to

personnel that may arise from outside the space, such as those that

may be caused by future work near the space?

8. If necessary, can the rescue service properly package and

retrieve victims from a permit space that has a limited size opening

(less than 24 inches (60.9 cm) in diameter), limited internal space,

or internal obstacles or hazards?

9. If necessary, can the rescue service safely perform an

elevated (high angle) rescue?

10. Does the rescue service have a plan for each of the kinds of

permit space rescue operations at the facility? Is the plan adequate

for all types of rescue operations that may be needed at the

facility? Teams may practice in representative spaces, or in spaces

that are ``worst-case'' or most restrictive with respect to internal

configuration, elevation, and portal size. The following

characteristics of a practice space should be considered when

deciding whether a space is truly representative of an actual permit

space:

(1) Internal configuration.

(a) Open--there are no obstacles, barriers, or obstructions

within the space. One example is a water tank.

(b) Obstructed--the permit space contains some type of

obstruction that a rescuer would need to maneuver around. An example

would be a baffle or mixing blade. Large equipment, such as a ladder

or scaffold, brought into a space for work purposes would be

considered an obstruction if the positioning or size of the

equipment would make rescue more difficult.

(2) Elevation.

(a) Elevated--a permit space where the entrance portal or

opening is above grade by 4 feet or more. This type of space usually

requires knowledge of high angle rescue procedures because of the

difficulty in packaging and transporting a patient to the ground

from the portal.

(b) Non-elevated--a permit space with the entrance portal

located less than 4 feet above grade. This type of space will allow

the rescue team to transport an injured employee normally.

(3) Portal size.

(a) Restricted--A portal of 24 inches or less in the least

dimension. Portals of this size are too small to allow a rescuer to

simply enter the space while using SCBA. The portal size is also too

small to allow normal spinal immobilization of an injured employee.

(b) Unrestricted--A portal of greater than 24 inches in the

least dimension. These portals allow relatively free movement into

and out of the permit space.

(4) Space access.

(a) Horizontal--The portal is located on the side of the permit

space. Use of retrieval lines could be difficult.

(b) Vertical--The portal is located on the top of the permit

space, so that rescuers must climb down, or the bottom of the permit

space, so that rescuers must climb up to enter the space. Vertical

portals may require knowledge of rope techniques, or special patient

packaging to safely retrieve a downed entrant.

[FR Doc. 98-31946 Filed 11-30-98; 8:45 am]

BILLING CODE 4510-26-P