Confined Spaces in Construction

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket ID-OSHA-2007-0026]

RIN 1218-AB47

Confined Spaces in Construction

AGENCY:

Occupational Safety and Health Administration (OSHA), Labor.

ACTION:

Proposed rule.

SUMMARY:

OSHA is proposing a rule to protect employees from the hazards resulting from exposure to confined spaces in the construction industry. Under the proposed rule, employers would first determine whether there is a confined space at a job site. If there is a confined space, the employer would determine if there are existing or potential hazards in the space. If there are such hazards, the employer then would classify the space according to the physical and atmospheric hazards found in it. The four classifications are: Isolated-Hazard Confined Space, Controlled-Atmosphere Confined Space, Permit-Required Confined Space, and Continuous System-Permit-Required Confined Space. The proposed requirements for each type of confined space are tailored to control the different types of hazards.

DATES:

Submit comments (including comments to the information-collection (paperwork) determination described under the section titled

SUPPLEMENTARY INFORMATION

of this notice), hearing requests, and other information by January 28, 2008. All submissions must bear a postmark or provide other evidence of the submission date. (See the following section titled

ADDRESSES

for methods you can use in making submissions.)

ADDRESSES:

Comments and hearing requests may be submitted as follows:

•

Electronic:

Comments may be submitted electronically to

http://www.regulations.gov

, which is the Federal eRulemaking Portal. Follow the instructions online for submitting comments.

•

Facsimile:

OSHA allows facsimile transmission of comments and hearing requests that are 10 pages or fewer in length (including attachments). Send these documents to the OSHA Docket Office at (202) 693-1648; hard copies of these documents are not required. Instead of transmitting facsimile copies of attachments that supplement these documents (e.g., studies, journal articles), commenters may submit these attachments, in triplicate hard copy, to the OSHA Docket Office, Technical Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200 Constitution Ave., NW., Washington, DC 20210. These attachments must clearly identify the sender's name, date, subject, and Docket ID (i.e., OSHA-2007-0026) so that the Agency can attach them to the appropriate document.

•

Regular mail, express delivery, hand (courier) delivery, and messenger service:

Submit three copies of comments and any additional material (e.g., studies, journal articles) to the OSHA Docket Office, Docket ID OSHA-2007-0026 or RIN No. 1218-AB47, Technical Data Center, Room N-2625, OSHA, Department of Labor, 200 Constitution Ave., NW., Washington, DC 20210;

telephone:

(202) 693-2350. (OSHA's TTY number is (877) 889-5627.) Please contact the OSHA Docket Office for information about security procedures concerning delivery of materials by express delivery, hand delivery, and messenger service. The hours of operation for the OSHA Docket Office are 8:15 a.m. to 4:45 p.m., e.t.

Instructions:

All submissions must include the Agency name and the OSHA Docket ID (

i.e.

, OSHA-2007-0026). Comments and other material, including any personal information, are placed in the public docket without revision, and will be available online at

http://www.regulations.gov

. Therefore, the Agency cautions commenters about submitting statements they do not want made available to the public, or submitting comments that contain personal information (either about themselves or others) such as social security numbers, birth dates, and medical data.

Docket:

To read or download comments or other material in the docket, go to

http://www.regulations.gov

or to the OSHA Docket Office at the address above. Documents in the docket are listed in the

http://www.regulations.gov

index; however, some information (

e.g.

, copyrighted material) is not publicly available to read or download through this Web site. All submissions, including copyrighted material, are available for inspection and copying at the OSHA Docket Office. Contact the OSHA Docket Office for assistance in locating docket submissions.

FOR FURTHER INFORMATION CONTACT:

•

General information and press inquiries:

Contact Mr. Kevin Ropp, Director, Office of Communications, OSHA, U.S. Department of Labor, Room N-3647, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-1999 or fax (202) 693-1634.

•

Technical inquiries:

Contact Mr. Garvin Branch, Directorate of Construction, Room N-3468, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-2020 or fax (202) 693-1689.

•

Copies of this Federal Register notice:

Available from the OSHA Office of Publications, Room N-3101, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-1888.

•

Electronic copies of this notice:

Go to OSHA's Web site (

http://www.osha.gov

), and select “

Federal Register

,” “Date of Publication,” and then “2007.”

•

Additional information for submitting documents:

See section V.I. (“Public Participation”) of this notice.

SUPPLEMENTARY INFORMATION:

I. General

A. Table of Contents

The following Table of Contents identifies the major preamble sections in this notice and the order in which they are presented:

I. General

A. Table of Contents

B. Hearing

II. Background

A. History

B. Need for a Rule Regulating Confined Spaces in Construction

III. Summary and Explanation of the Proposed Standard

IV. Issues for Comment

V. Procedural Determinations

A. Legal Authority

B. Summary of the Preliminary Economic Analysis and Initial Regulatory Flexibility Analysis

C. OMB Review Under the Paperwork Reduction Act of 1995

D. Federalism

E. State-Plan States

F. Unfunded Mandates Reform Act

G. Applicability of Existing Consensus Standards

H. Review of the Proposed Standard by the Advisory Committee for Construction Safety and Health (ACCSH)

I. Public Participation—Comments and Hearings

B. Hearing

Requests for a hearing should be submitted to the Agency as set forth above under

DATES

and

ADDRESSES

.

II. Background

A. History

On March 25, 1980, OSHA published an Advanced Notice of Proposed Rulemaking (ANPR) on confined spaces for the construction industry (45 FR

19266

1

). The ANPR posed 31 questions concerning confined-space hazards in the construction industry, and the Agency received 75 comments in response to these questions. However, OSHA took no further action on this regulatory initiative at the time.

1

“FR” refers to “

Federal Register

,” with the volume number (for example, 45) before, and the page number (for example, 19266) after, “FR.”

OSHA issued the general industry confined-spaces rule (29 CFR 1910.146) on January 14, 1993 (58 FR 4462), as well as a similar rule for the shipyard industry 29 CFR 1915.7, 11-16) on July 25, 1994 (59 FR 37816). The general industry standard requires employers to classify hazardous confined spaces as “permit-required confined spaces,” and to implement specific procedures to ensure the safety of employees who enter them.

It contains detailed procedures for developing a written confined-space program, monitoring atmospheric hazards, training employees, preventing unauthorized employees from entering these spaces, providing for both non-entry and entry rescue, and maintaining records.

The general industry standard specifies a limited exception from some of the permit-required confined-space requirements when the only hazard in a confined space is an atmospheric hazard and ventilation equipment will control the atmospheric hazard at safe levels. It also provides protection to employees from non-atmospheric (for example, physical) hazards within non-permit-required, as well as permit-required, confined spaces. However, the general industry standard does not apply to construction employers, and, as such, does not specify the appropriate level of employee protection based on the hazards created by construction activities performed in confined spaces. Table 1 provides a description of the key differences between the general industry standard and the proposed standard for confined spaces in construction.

Table 1.—Key Differences in Regulatory Provisions between the General Industry and Proposed Construction Standards

General industry standard

Proposed construction standard

Organization of the Standard

The standard begins with requirements for entering PRCSs

The proposed standard takes a step-by-step approach, explaining how to assess hazards, determine the classification for the space, and how to safely enter it.

Information Exchange

The standard requires a host employer to coordinate entry operations with a contractor when the host employer and the contractor both have employees working in or near a permit space

The proposed standard requires the controlling contractor to coordinate entry operations among contractors who have employees in a confined space regardless of whether or not the controlling contractor has employees in the confined space.

Confined Space with Hazards Isolated

Does not address working in confined spaces in which the hazard has been isolated

Allows employers to establish an Isolated-Hazard Confined Space by isolating or eliminating all physical and atmospheric hazards in a confined space.

Controlled-Atmosphere Permit-Required Confined Space

Monitoring required as necessary

Continuous monitoring required unless the employer demonstrates that periodic monitoring is sufficient.

Permit-Required Confined Spaces (PRCS)

No explicit requirement for entry supervisor to monitor PRCS conditions during entry

Explicit requirement for entry supervisor to monitor PRCS conditions during entry.

Requires a written PRCS plan

No written plan required when employer maintains a copy of the standard at the worksite.

No specific early-warning requirements for up-stream hazards

Early-warning requirement for up-stream hazards in sewer-type spaces.

The Agency recognizes that a number of requirements of the proposed standard for confined spaces in construction duplicate, or are similar to, the provisions of the general industry standard for permit-required confined spaces. Nevertheless, OSHA does not believe that the general industry standard addresses adequately the unique characteristics of confined spaces in construction. Compared to general industry, the construction industry experiences higher employee turnover rates, with construction employees more often working at multiple worksites performing short-term tasks. Unlike most general industry worksites, construction worksites are continually evolving, with the number and characteristics of confined spaces changing as work progresses. Multiple contractors and controlling contractors are found more often at construction worksites than at general industry worksites. Also, in contrast to general industry, OSHA believes that many contractors who perform construction work in sewer systems are unfamiliar with the hazards associated with these worksites. Therefore, OSHA placed

more emphasis in this proposed standard on assessing hazards at sewer worksites than it did in the general industry confined-spaces standard.

The differences in employee and worksite characteristics between the construction industry and general industry prompted OSHA to develop a proposed standard for regulating confined spaces in the construction industry that varied substantially from the general industry confined-spaces standard as described above in Table 1 of this preamble. Because of the regulatory differences between this proposed standard and the general industry standard, the general industry standard would not be considered a substitute for this proposed construction standard except where the provisions are essentially the same.

In 1993, as part of the litigation activity surrounding the newly promulgated general industry standard, OSHA agreed in a settlement with the United Steel Workers of America to issue a proposed rule to extend confined-space protection to construction employees. On February 18, 1994, OSHA submitted a draft proposed standard for confined spaces in construction to the Advisory Committee for Construction Safety and Health (ACCSH) for comment. ACCSH established a work group on March 22, 1994 to address the OSHA draft proposed standard and report its findings to the full committee.

ACCSH adopted the work group report on May 17, 1994, and recommended that OSHA incorporate it into a rulemaking docket. In this report, ACCSH noted that the general industry standard did not meet the needs of the construction industry because it did not provide adequate information to contractors for distinguishing among the different types of confined spaces, or to determine the appropriate level of employee protection based on the hazards resulting from construction activities performed in confined spaces. In addition, ACCSH found that confined spaces encountered or created in construction often are not identified or classified prior to the beginning of a construction project.

Consequently, ACCSH established a work group to draft a proposed standard that would meet the unique needs of the construction industry. The draft proposed standard emphasized identifying different types of confined spaces encountered in construction (for example, where the hazard has been isolated, where atmospheric hazards are controlled at safe levels, and permit-required spaces), inter-contractor information exchange, and the detailed protections necessary to eliminate or control specific hazards.

As the result of the ACCSH work group review, a draft proposed standard for confined spaces in construction was submitted to OSHA in the winter of 1996 and ACCSH recommended that it be used as a proposed confined-spaces standard. OSHA determined that the ACCSH draft proposed standard needed to be reworked to make it easier to understand, especially for small employers who do not employ a separate safety staff. The Agency also determined that certain hazards, such as those encountered in sewer-construction work, were not adequately addressed. Consequently, OSHA determined that it was necessary to develop a new draft proposed standard.

In 1998, OSHA completed a new draft proposed standard but discovered that there were several issues that needed to be resolved before the draft proposed standard could be finalized. To get feedback from the construction community, OSHA held three stakeholders meetings in October of 2000 across the country. The topics discussed were: (1) Typical confined spaces encountered in construction; (2) whether an early-warning system should be required for spaces in which an engulfment hazard cannot be isolated (such as in some sewer situations); (3) the need for, and cost of, continuous monitoring for atmospheric hazards; (4) how a confined-spaces standard for construction could accommodate the needs of small businesses; and (5) whether an attendant should be permitted to monitor more than one confined space at a time.

In late 2003, OSHA completed the new draft proposed standard and convened a panel under the Small Business Regulatory Enforcement Fairness Act (SBREFA) to solicit comments on it from small business entities. The SBREFA panel conducted two conference-call discussions, which were open to the public, in which the small business entities were invited to express their concerns about the draft proposed standard and submit written comments to the record that covered the issues. The SBREFA panel then submitted its recommendations to the Assistant Secretary in November 2003.

This proposed confined-spaces standard for construction reflects input from stakeholder meetings, ACCSH, and the SBREFA review process. For example, a provision that would have addressed working in hazardous-enclosed spaces (spaces designed for human occupancy but subject to a hazardous atmosphere), which small business entities participating in the SBREFA review process considered burdensome and unnecessary, was eliminated because OSHA believes that existing construction standards (for example, 29 CFR 1926.55) adequately address these hazards. This proposed standard uses a confined-space classification approach that is influenced by ACCSH recommendations. The proposed standard is organized as chronologically as possible to help guide the employer, from its initial encounter with a potential confined space, through the steps necessary to ensure that employees are adequately protected. In addition, it addresses the need for coordination and information exchange at construction sites, which typically have multiple employers.

B. Need for a Rule Regulating Confined Spaces in Construction

Fatality and injury data, OSHA enforcement experience, and advice from the Advisory Committee on Construction Safety and Health (ACCSH) indicate that the existing construction standard for confined and enclosed spaces at 29 CFR 1926.21(b)(6) does not adequately protect construction employees in confined spaces from atmospheric, mechanical, and other hazards. In this regard, the existing construction standard only requires employers to: (1) Instruct their employees about confined-space hazards, and (2) comply with other OSHA construction standards that address confined-space hazards. For situations in which none of these construction standards apply, the employer would have to comply with the general-duty requirement of the Occupational Safety and Health Act of 1970 to “furnish to each of [its] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees.” (29 U.S.C. 654.) Therefore, where the existing construction confined-spaces standard applies, it requires only training of employees who work in confined spaces—it does not address how trained employees are to be protected while working in such spaces.

OSHA has preliminarily determined that employees in the construction industry who perform work in confined spaces face a significant risk of death or serious injury, and that this proposed rule would substantially reduce that risk. At present, approximately 20,000 establishments have employees entering at least one confined space as defined by the proposed rule. There are an estimated annual total of 641,000

confined spaces; about half of these confined spaces would be considered permit-required confined spaces under this proposal (Ex. OSHA-2007-0026-0003). OSHA estimates that each year there are 6.44 fatalities and 967 injuries experienced by employees working in confined spaces addressed by this proposed rule. OSHA has preliminary determined that the proposed rule, when implemented properly by employers, would reduce the average number of fatalities and injuries in confined spaces covered by the proposed standard by about 90% (6 fatalities prevented annually and 880 injuries prevented annually). (For further explanation of the significant-risk calculations, see section V.B. (“Summary of the Preliminary Economic Analysis and Initial Regulatory Flexibility Analysis”) of this notice and Ex, OSHA-2007-0026-0003).

III. Summary and Explanation of the Proposed Standard

Section 1926.1201—Introduction

Paragraph (a). This paragraph states the general purpose of the proposed rule. This standard would cover employers who have employees that work in or near a confined space that is subject to a hazard. Appropriate precautions are needed to ensure the safety of these employees. This proposed paragraph also defines a confined space as: a space that is large enough and arranged in such a manner that employees can enter the space, has limited or restricted means of entry/exit and is not designed for continuous employee occupancy.

Spaces with these characteristics are prone to containing hazards that tend to be unseen and unrecognized until it is too late to escape. Consequently, it is necessary to assess these spaces to see if there are actual or potential hazards beforehand, and to implement procedures designed both to protect construction employees from such hazards and to rescue them in the event the protective measures do not work as anticipated.

Paragraph (b). Employers would be required to determine the classification of each confined space that is subject to a hazard. Employers must classify such spaces as one of four types specified by this proposed standard. The classification is based on factors such as the type and level of hazards present in the confined space. If the employer determines that a confined space in its natural state is not subject to a hazard, it would not be classified. (Note that in this proposed rule, the term “hazard” includes both existing hazards and hazards that have a reasonable probability of occurring.) The employer would not have to take any further action unless one of the indications specified in proposed § 1926.1207 (Reassessment) occurred, in which case the employer would be required to take certain actions, including a reassessment of the space. The monitoring of conditions within a confined space is an ongoing process and is necessary for the employer to ensure the safety of its employees while working within that space.

Paragraph (b)(1). This proposed paragraph lists the four classifications of confined spaces ((b)(1)(i) through (b)(1)(iv)).

Paragraph (b)(1)(i). A Continuous System-Permit-Required Confined Space (CS-PRCS) is a confined space that is a part of, and contiguous with, a larger confined space (for example, sewers) that the employer cannot isolate from the larger confined space. It is also subject to a potential hazard release from the larger confined space that would overwhelm personal protective equipment and/or hazard controls, resulting in a hazard that is immediately dangerous to life and health. The proposed rule includes the CS-PRCS classification to ensure that the employer recognizes that, as the construction industry has recognized, there are difficulties associated with isolating the hazards of other larger spaces connected to the CS-PRCS. Special precautions are necessary, in addition to the other PRCS requirements, to ensure adequate protection of the employees.

Paragraph (b)(1)(ii). A Permit-Required Confined Space (PRCS) is a confined space that has any one of the following: A hazardous atmosphere that ventilation will not reduce to and maintain at a safe level; inwardly-converging, sloping, or tapering surfaces that could trap or asphyxiate an employee; or an engulfment hazard or other physical hazard.

Paragraph (b)(1)(iii). A Controlled-Atmosphere Confined Space (CACS) is a confined space where ventilation alone will control its atmospheric hazards at safe levels. Note also that a confined space cannot be classified as a CACS if it has a physical hazard (unless that hazard has been isolated). The proposed rule includes the CACS as a separate classification from the PRCS because fewer precautions are needed to ensure the safety of its employees than for PRCSs, but more precautions are needed than for an Isolated-Hazard Confined Space (discussed below under paragraph (b)(1)(iv)) because the atmospheric hazard is controlled but not eliminated. This option is provided to the employer to allow it to provide a level of employee protection specifically tailored to, and commensurate with, the hazards within the confined space. In a space properly classified as a CACS, OSHA believes that the use of the CACS measures, as compared with the PRCS measures, would be as protective and typically more cost effective.

Paragraph (b)(1)(iv). An Isolated-Hazard Confined Space (IHCS) is a confined space in which the employer has isolated all physical and atmospheric hazards. “Isolated” means the elimination or removal of a physical or atmospheric hazard by preventing its release into a confined space. Isolation includes, but is not limited to, the following methods: Blanking and blinding; misaligning or removing sections of lines, pipes, or ducts; a double-block-and-bleed system; locking out or tagging out energy sources; machine guarding; and blocking or disconnecting all mechanical linkages. Methods must be implemented to ensure that the hazards remain isolated. Isolation methods provide the highest degree of assurance that the hazard will be kept away from the employees in the space, since it consists of methods that do not depend on the continued, proper operation of machinery (such as ventilation equipment) or personal protective equipment (such as respirators). Consequently, this classification of space presents the lowest hazard level to the employees, and is similar to a “non-permit space” described in 29 CFR 1910.146(c)(7) of the general industry standard.

Paragraph (b)(2). This proposed provision gives the employer the option to classify a confined space in any classification, so long as all of the characteristics and requirements for that classification are met. The Agency considered proposing that the employer be required to try to make the space qualify for the lowest possible classification. However, after considering comments from small business entities received through the Small Business Regulatory Enforcement Fairness Act (SBREFA) review, OSHA decided to give employers more flexibility; employers may use any of the classifications, as long as the requirements for the selected classification are met. OSHA believes it is important to allow employers the flexibility to classify confined spaces based on the conditions or circumstances of individual work environments.

The one exception is that a space with the characteristics of a Continuous

System-Permit-Required Confined Space cannot be given a different classification. Where a confined space meets the definition of a CS-PRCS, the employer must classify the space as such and meet all of its requirements. To meet the definition of a CS-PRCS, the employer must have determined that the confined space could not be isolated from its connection to a larger space and its associated hazards. OSHA believes that since the potential hazards of the larger space will always exist, the additional CS-PRCS requirements must be met to address the hazards. Classifying the space to any lower classification would leave the employees exposed to an engulfment or atmospheric hazard that could originate in the connected, larger space (that is, the configuration of CS-PRCSs is such that an employer cannot safely eliminate or isolate the potential hazards so as to meet the criteria for a lower classification).

Paragraph (c). The proposed standard specifies precautions that must be followed if the employees have to enter the space to determine its classification (see paragraph (b) of proposed § 1926.1204). These precautions are necessary because the characteristics and extent of the hazards that may be present would not yet be known at that point.

Paragraph (d). If the contractor makes a determination under proposed § 1926.1204 (Worksite evaluation, information, exchange, and coordination) that the confined space is not subject to any hazards, the confined space would not need to be classified. However, if subsequent to that determination any of the indications specified in proposed § 1926.1207 (Reassessment) were to occur, the contractor would be required to conduct a reassessment as specified in proposed § 1926.1207. This is necessary to ensure that there continue to be no hazards present when employees are in an unclassified confined space.

Section 1926.1202—Scope

The proposed standard provides minimum safety and health requirements and procedures to protect employees who work in or near confined spaces. It addresses how to protect employees from confined-space hazards. The proposed standard includes requirements for training, hazard analysis, classification, entering, working, exiting, and rescue for confined spaces of various hazard levels.

This proposed standard does not replace the more hazard-specific construction standards that are already in place. Rather, this proposed standard is designed to provide additional protections needed to deal with hazards that may arise when employees are working in or near a confined space.

Paragraph (a). This paragraph identifies which employers are covered by the proposed standard. Employers who are engaged in construction work and have confined spaces at their job sites are subject to the provisions of the proposed standard. Further, employers who have confined spaces on their job site and hire subcontractors to operate within those spaces also would have to meet specific requirements in the proposed standard. The note to this paragraph includes a non-exclusive list of potential confined spaces that commonly occur on a construction worksite. This list provides examples for employers who may be unfamiliar with confined spaces in construction.

Paragraph (b). This paragraph explicitly excludes construction work regulated by 29 CFR part 1926 subpart Y (Diving), non-sewer construction work regulated by 29 CFR part 1926 subpart P (Excavation), and non-sewer construction work regulated by 29 CFR part 1926 subpart S (Underground Construction, Caissons, Cofferdams and Compressed Air) from the scope of this proposed standard. Employers operating under one of the three listed exemptions are not required to follow this proposed standard for work within a confined space. Employers who hire contractors to perform work covered by these three standards also are excluded from coverage under this proposed standard. The reason for these exclusions is that the Agency believes that the existing OSHA requirements applicable to these activities are sufficient to address and protect employees from the confined-space hazards in those situations.

Paragraph (c). This provision would require employers, when an activity is covered under both the scope of this proposed standard and the provisions in another OSHA construction standard related to confined-space hazards, to comply with those provisions as well as the applicable provisions in this proposed standard. For example, while subpart D in 29 CFR part 1926 contains requirements for ventilation when working in potentially hazardous atmospheric conditions, it does not address other equipment or workplace conditions that are covered by this proposed standard. Also, some construction standards require the use of specified systems during operations in a confined space, but do not set criteria that those systems must meet; in these cases, the requirements of both the existing construction standard and this proposed standard would apply. For example, 29 CFR part 1926 subpart J (Welding) requires that the employer provide a lifeline when an employee is welding in a confined space entered through a manhole or other small opening. When working in a PRCS, 29 CFR part 1926 subpart J also sets criteria for the use of a lifeline system in the confined space, but does not set criteria for the use of rescue services or provide any other permit-required space procedures to protect the employees. Under those circumstances, the rescue service and entry procedures must meet the requirements of this proposed standard, while the lifeline system would be required to meet the criteria in 29 CFR part 1926 subpart J.

Appendix A of the proposed standard contains a list of existing provisions found in other OSHA construction standards under 29 CFR part 1926 that address work done in confined spaces. This list contains only current construction provisions, and does not preclude the inclusion of future confined-space provisions. The purpose of the information in this appendix is to help employers easily identify other requirements relevant to confined-space hazards that may also have to be met.

Paragraph (d). This proposed provision clarifies that the duties of a controlling contractor specified in paragraph (a) of proposed § 1926.1204 are not exclusive. Proposed § 1926.1204(a) delineates a controlling contractor's duties with respect to the exchange of information concerning confined spaces with subcontractors on multi-employer worksites and does not limit or otherwise affect a controlling contractor's responsibilities under the OSH Act. See OSHA Directive No. CPL 2-00.124 (Dec. 10, 1999).

Section 1926.1203—Definitions

This proposed section lists definitions for key words used in describing the requirements of this proposed standard. Most of the definitions were adopted from the OSHA general industry confined-spaces standard (29 CFR 1910.146) and from the ANSI Z117.1-2003 confined-spaces standard. Many other terms in this proposed standard are defined in other OSHA construction standards, and were included in this proposed section to minimize the need to reference those other standards. While most of the proposed terms are self-explanatory or are consistent with those established in 29 CFR 1910.146 and ANSI 117.1-2003, OSHA believes that it is necessary to provide an expanded discussion for several terms used in this proposed standard. The expanded discussion provides a brief

explanation of the defined terms, justifies any differences between the proposed definitions and those contained in 29 CFR 1910.146 and ANSI 117.1-2003, and addresses comments received during the SBREFA process.

“Continuous System-Permit-Required Confined Space (CS-PRCS)” is a Permit-Required Confine Space that has all of the following characteristics: Is part of, and contiguous with, a larger confined space (for example, sewers); the employer cannot isolate it from the larger confined space; and is subject to a potential hazard release from the larger confined space that would overwhelm personal protective equipment and/or hazard controls, resulting in a hazard that is immediately dangerous to life and health. This classification of space was mentioned in 29 CFR 1910.146(c)(5)(i), and a sample Permit-Required Space program for sewers was provided in Appendix C of that standard. OSHA believes it is important to define this classification of confined space in a way that emphasizes that it is subject to a potential hazard release, such as an engulfment hazard, that the employer will not be able to control.

“Controlled-Atmosphere Confined Space (CACS)” is a confined space that has all of the following characteristics: Contains no physical hazards or only isolated physical hazards; and uses ventilation alone to control atmospheric hazards at safe levels. This term was added to designate a distinct type of confined space in which only one type of hazard (atmospheric) is present that requires a specific type of employee protection—active control of the atmospheric hazard at safe levels by ventilation equipment. OSHA believes that the space described by this definition is similar to the space defined by the alternate procedures specified by paragraph (c)(5) of the general industry standard for confined spaces. Both of these spaces involve conditions in which atmospheric hazards are merely controlled by ventilation instead of eliminated completely. Therefore, if the ventilation system stops or malfunctions, the atmospheric hazards could reemerge in the space. Unlike the general industry standard, the proposed standard for construction assigns a name to the space. OSHA believes that naming the space a Controlled-Atmosphere Confined Space will effectively alert employees, especially employees who have little or no experience with these spaces, to the possibility that atmospheric hazards could reemerge in the space if the ventilation system stops or malfunctions.

“Controlling contractor” is the employer that has overall responsibility for construction at the worksite. In addition, the note to this definition explains that if a host employer has overall responsibility for construction at the worksite, then it is both a host employer and controlling contractor. It is a common practice in the construction industry for there to be a number of contractors working at a construction site at the same time. Also, there often is one contractor that has overall authority of the construction site, including the authority to change worksite conditions and alter work practices with regard to safety. Under this proposed standard, there are specific duties that would apply to the controlling contractor, as distinguished from the host employer and the contractor. Consequently, there is a need to define the term “controlling contractor.”

For the purposes of this preamble, the term “employer” refers to an employer whose employees are exposed to confined-space hazards. Employers whose own employees are exposed to a hazard addressed by this proposed standard would be required to comply with the provisions that identify an obligation on “the employer.” In addition, other employers may also have responsibilities with respect to such provisions through operation of OSHA's multi-employer doctrine.

When a proposed provision designates the “host employer” as the entity responsible for the requirement, only an employer that meets the proposed definition of a “host employer” would be responsible for that requirement. Similarly, when a proposed provision designates the “controlling contractor” or the “contractor” as the entity responsible, only an employer meeting the proposed definitions of “controlling contractor” or “contractor” would be responsible for compliance with the provision. Note that an employer who fits the definition for more than one of these roles would be required to comply with the obligations that pertain to each role. The Agency requests public comment on whether this explanation is clear.

“Early-warning system” is the method used to alert attendants monitoring a CS-PRCS and authorized entrants in a CS-PRCS that an engulfment hazard may be developing. Examples of early-warning systems include, but are not limited to: alarms activated by remote sensors; and lookouts with equipment for immediately communicating with the authorized entrants and attendants. The Agency believes these systems will protect employees from non-isolated engulfment hazards by providing an effective means of warning attendants and authorized entrants that an engulfment hazard may be developing “upstream” of the work area, thereby permitting sufficient time for the authorized entrants to safely exit the CS-PRCS. As illustrated by the non-exclusive list of examples of early-warning systems within this definition, employers would have flexibility as to what type of early-warning system to use for continuously monitoring such engulfment hazards. However, as stated in paragraphs (a)(2) and (b)(2) of proposed § 1926.1215, whatever warning system is selected must alert authorized entrants and attendants in sufficient time for the authorized entrants to safely exit the CS-PRCS.

“Hazardous atmosphere” means an existing or potential atmosphere consisting of at least one of the following: A flammable gas, vapor, or mist in excess of 10 percent of its lower flammable limit; an airborne combustible dust at a concentration that meets or exceeds its lower explosive limit; an atmospheric oxygen concentration below 19.5 percent (“oxygen deficient”) or above 23.5 percent (“oxygen enriched”); an airborne concentration of a substance that exceeds the dose or exposure limit specified by an OSHA requirement; and an atmosphere that presents an immediate danger to life or health. These levels duplicate those in the definition of “hazardous atmosphere” in the general industry confined-spaces standard. The definition clarifies that the concept of a hazardous atmosphere includes one that has a potential for becoming hazardous, since it is necessary to anticipate the potential occurrence of such hazards to effectively protect employees working in a confined space.

“Host employer” owns or manages the property on which construction is taking place. As explained in the definition of “controlling contractor,” this definition was added to clarify the distinction between a “host employer,” a “contractor,” and a “controlling contractor” as each of these entities would have specific obligations under this proposed standard. (See, also, the discussion under “controlling contractor” above.)

“Inspection information” means information obtained about a space from blueprints, schematics, and/or similar documents, documents regarding previous confined-space entries, or physical inspection/testing. This definition was added in response to SBREFA comments to clarify the types of documents and information that

would be considered relevant to making the hazard assessments required by this proposed standard without entering the space.

“Isolated-Hazard Confined Space (IHCS)” is a confined space in which the employer has isolated all physical and atmospheric hazards. This classification differs from a “non-permit space” in the general industry standard that, by definition, does not include confined spaces that have the potential to contain atmospheric hazards capable of causing death or serious physical harm. The proposed classification of IHCS includes confined spaces where that potential continues to exist. In an IHCS, the potential exists because the atmospheric hazard is only “isolated,” which means that its release is only being prevented. The use of the term “isolated” in this context is consistent with the definition of “isolation” in the current American National Standard Institute (ANSI)/American Society of Safety Engineers (ASSE) standard titled “Safety requirements for Confined Spaces,” ANSI/ASSE Z117.1-2003. This ANSI/ASSE standard describes the isolation process in part as follows:

Methods and means shall be selected and used to prevent flammable, toxic, irritating, or oxygen displacing gases and vapors from entering the space. All hazardous material, high pressure, high temperature and other piping that could reasonably be expected to introduce a hazard shall be isolated by utilizing blinding, disconnection, removal, or double block and bleed as needed to prevent entry of material(s) and hazardous contaminant(s).

“Limited or restricted means for entry and exit” refers to a condition that has a potential to impede an employee's movement into or out of a space. Such conditions include, but are not limited to poor illumination, slippery floors, inclining surfaces and ladders. This phrase is used to describe one of the physical characteristics of a confined space and was defined to give the phrase greater clarity.

“Permit-Required Confined Space (PRCS)” is a confined space that has any one of the following characteristics: A hazardous atmosphere; an inwardly converging, sloping, or tapering surfaces that could trap or asphyxiate an employee (for example, a space between walls that narrows towards the base, including, but not limited to, funnels and hoppers); or an engulfment hazard or other physical hazard. This definition is similar to the definition in the general industry standard, but includes more examples of dangerous configurations of confined spaces.

“Physical hazard” means an existing hazard that can cause death or serious physical harm in or near a confined space, or a hazard that has a reasonable probability of occurring in or near a confined space, and that includes, but is not limited to: Explosives (as defined by paragraph (n) of 29 CFR 1926.914 (definition of “explosive”)); mechanical, electrical, hydraulic, and pneumatic energy; radiation; temperature extremes; engulfment; noise; and inwardly converging surfaces. “Physical hazard” also refers to chemicals that can cause death or serious physical harm through skin or eye contact (rather than through inhalation). This definition was added to help employers better understand the characteristics of this type of hazard.

“Planned conditions” are the conditions under which authorized entrants can work safely in a PRCS or CS-PRCS, including both hazard levels and methods of employee protection. The Agency considered using “acceptable entry conditions,” the term used in the general industry standard, for this concept. However, OSHA is concerned that employers and employees, especially those who are not often engaged in construction work in confined spaces, may think “acceptable” means that conditions are safe for entry without the use of personal protective equipment or other protective measures. OSHA believes that the term “planned conditions” more accurately expresses the concept that a variety of actions may be needed, including the use of protective measures, for employees to be able to work safely in the confined space.

“Serious physical harm” means an impairment in which a body part is made functionally useless or is substantially reduced in efficiency. Such impairment may include loss of consciousness or disorientation, and may be permanent or temporary, or chronic or acute. Injuries involving such impairment would usually require treatment by a physician or other licensed health-care professional while an illness resulting in serious physical harm could shorten life or substantially reduce physical or mental efficiency by impairing a normal bodily function or body part. OSHA adapted this definition of “serious physical harm” from its Field Inspection Reference Manual, chapter III, section C.2.b(2)(c).

“Simulated Permit-Required Confined Space” is a confined space or a mock-up of a confined space that has all of the following characteristics: Similar entrance openings, and is similar in size, configuration, and accessibility, to the PRCS the authorized entrants enter but does not need to contain any physical or atmospheric hazards. This definition was included to emphasize that the Simulated PRCSs do not have to contain actual physical or atmospheric hazards to qualify for the training required by this proposed standard. OSHA proposes this clarification to prevent injuries and deaths from occurring during rescue training.

Section 1926.1204—Worksite Evaluation, Information Exchange, and Coordination

Paragraph (a). This paragraph sets forth requirements for exchanging information relevant to construction operations in confined spaces. Controlling contractors and host employers would have to share four pieces of information (listed below) before any employee enters the confined space. This information addresses such issues as: location of confined spaces, hazardous conditions affecting confined spaces, precautions taken to address those hazards, and classifications of the confined spaces. OSHA notes, however, that the proposed standard only places a duty on controlling contractors and host employers to provide any information they already have about the confined spaces specific to their worksite. The Agency makes clear in this proposed paragraph that “[n]either the controlling contractor nor the host employer is required to obtain the information listed * * *”; their only obligation is to provide their contractors with information they already have about a confined space. OSHA also states in a note to this proposed paragraph that controlling contractors or host employers are not required to enter a confined space to collect the relevant information.

On most construction worksites, there are a number of contractors and subcontractors performing jobs. In the case of confined spaces, sometimes employees of different employers will be performing work within the same confined space. In many instances, employees of a subcontractor will enter a confined space after another subcontractor's employees have completed work within the space. On multi-employer worksites, an employer's actions can affect the health and safety of another employer's employees. It is critical for the safety of all employees on a worksite that contractors and subcontractors communicate with each other. Requiring communication between employers is an efficient way to ensure that each employer learns important information about the confined space hazards present so that all employees are adequately protected. OSHA is proposing these information-sharing

requirements in proposed § 1926.1204 so that construction worksites with confined spaces remain safe places of employment for all employees.

The Agency has clear authority to include these multi-employer provisions in the standard. First, the plain language of the OSH Act and its underlying purpose support OSHA's authority to place requirements on employers that are necessary to protect the employees of others. Second, congressional action subsequent to passage of the OSH Act recognizes this authority. Third, OSHA has consistently interpreted its statutory authority as permitting it to impose obligations on employers that extend beyond their own employees, as evidenced by the numerous standards, including several construction standards, that OSHA has promulgated with multi-employer provisions. Finally, OSHA's authority to place obligations on employers that reach beyond an employer's own employees has been upheld by numerous courts of appeals and the Occupational Safety and Health Review Commission (OSHRC).

The purpose of the Act is to assure so far as possible safe and healthful working conditions for every working man and women in the nation. 29 U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary to establish mandatory occupational safety and health standards. The Act broadly defines an OSHA standard as a rule that “requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employments and places of employment.” 29 U.S.C. 652(8).

See Building and Constr. Trades Div., AFL-CIO

v.

Brock,

838 F.2d 1258, 1278 (DC Cir. 1988). OSHA standards must prescribe measures that are appropriate to protect “places of employment”; nothing in the statutory language suggests that OSHA may do so only by regulating an employer's interaction with its own employees. On the contrary, the Act's broad language gives OSHA almost “unlimited discretion” to devise means to reach the statutory goal.

See United Steelworkers

v.

Marshall,

647 F.2d 1189, 1230 (DC Cir. 1980), cert. denied, 453 U.S. 913 (1981).

Similarly, Section 5(a)(2) provides that each employer “shall comply with occupational safety and health standards promulgated under this Act.”

2

Nothing in this language suggests that compliance is required only when necessary to protect the employers' own employees, or that the employer is entitled to endanger other employers' employees at the worksite. Finally, Section 6(b)(7) of the Act authorizes the Secretary to “prescribe the use of labels or other appropriate forms of warning as are necessary to insure that employees are apprised of

all

hazards to which they are exposed.” 29 U.S.C. 655(b)(7) (emphasis added). Again, this authority is not limited to labels that would warn the employer's own employees of the hazard. Given the distribution of potentially hazardous products in commerce, employees are predictably exposed to hazardous conditions created by other employers. Requiring employers to include hazard information needed by downstream employees is a necessary and appropriate means to ensure that the employees are apprised of all hazards to which they are exposed.

2

This language is in marked contrast to the language of Section 5(a)(1) of the Act (known as the “general duty clause”), which requires each employer to “furnish

to each of his employees

employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm

to his employees

.” 29 U.S.C. 654(a)(1) (emphases added).

See Brennan

v.

OSHRC,

513 F.2d 1032, 1037-38 (2nd. Cir. 1975).

In short, the statute focuses on workplace conditions to effectuate the OSH Act's congressional mandate, and not on a particular employment relationship. The OSH Act's underlying purpose is broad—to assure safe and healthful working conditions for working men and women—and Congress made clear that it expected the Act to protect all employees. (H. Rep. No. 91-1291, 91st Cong., 2d Sess., p. 14-16 (July 9, 1970)). Numerous references in the legislative history of the Act require employers to provide a safe and healthful “place of employment” (

see, e.g.

, S. Rep. No. 91-1282, 91st Cong., 2d Sess., p. 10 (October 6, 1970)). The OSH Act tasks OSHA with promulgating rules that will create safe places of employment, notwithstanding the many varied employment relationships that might exist at a worksite.

Subsequent congressional action has also recognized OSHA's authority to impose responsibilities on employers to protect employees who are not their own. For example, Congress directed OSHA to develop a chemical process safety standard (the PSM standard) requiring employers to “ensure contractors and contract employees are provided appropriate information and training” and to “train and educate employees and contractors in emergency response.” (29 U.S.C. note) (quoting Pub.L. 101-549, Title III, Section 304, November 15, 1990, 104 Stat. 2576). This is a clear ratification of the Agency's authority to require employers to protect the employees of others. Congress also approved of the Agency's authority when it relied on the provisions of OSHA's Hazard Communication standard in promulgating the Emergency Planning and Community Right-to-Know Act (42 U.S.C. 11001-11050) (EPCRA). OSHA's Hazard Communication standard, among other things, requires a manufacturer of a hazardous chemical to “inform not only its own employees of the dangers posed by the chemicals, but downstream employers and employees as well.”

Martin

v.

American Cyanamid Co.,

5 F.3d 140, 141 (6th Cir. 1993). Congress incorporated provisions of the Hazard Communication standard in EPCRA as a basis for triggering obligations on owners or operators of facilities producing hazardous chemicals to provide local governments with information needed for emergency response. Had Congress not approved of the multi-employer provisions in the Hazard Communication standard, it would not have approved of it as a basis for obligations in the EPCRA.

Furthermore, OSHA has consistently interpreted the OSH Act as authorizing it to impose multi-employer obligations in its standards. In addition to the Hazard Communication standard and PSM standard discussed above, OSHA included multi-employer provisions in its powered platforms standard, which requires that a building owner inform employers that the building installation has been inspected and is safe to use. 29 CFR 1910.66(c)(3). OSHA has also imposed multi-employer obligations in other construction standards. For example, in the construction asbestos standard, OSHA requires building owners/employers to perform initial monitoring for asbestos and to communicate the presence of asbestos or presumed asbestos containing materials to prospective employers whose employees reasonably can be expected to work in exposed areas. 29 CFR 1101(k)(2). In the recently promulgated steel-erection standard, OSHA imposed duties on controlling contractors to ensure that site conditions are safe for steel erection. 29 CFR 1926.752(c). OSHA just recently proposed in updates to its electric-power transmission and distribution construction standard similar multi-employer communication provisions.

See

70 FR 34947-48. OSHA's inclusion of multi-employer provisions in this proposed rule is fully consistent with its past practice of ensuring the safety and

health of all employees at construction worksites.

Finally, OSHA's authority to impose these provisions is confirmed by the decisions of numerous courts of appeals and the Occupational Safety and Health Review Commission holding that an employer's duties and OSHA standards may extend beyond an employer's own employees.

See Universal Constr. Co.

v.

OSHRC,

182 F.3d 726, 728 (10th Cir. 1999) (following decisions from Second, Sixth, Seventh, Eighth and Ninth Circuits);

Access Equip. Sys.,

18 BNA OSHC 1718, 1722-24 (No. 95-1449, 1999). But see

Melerine

v.

Avondale Shipyards, Inc.,

659 F.2d 706 (5th Cir. 1981). The DC Circuit suggested in

Anthony Crane Rental, Inc.

v.

Reich,

70 F.3d 1298, 1306 (DC Cir. 1995), however, that 29 CFR 1910.12(a)—a rule promulgated by OSHA to adopt Construction Safety Act (CSA) standards as OSHA standards—might limit an employer's obligations under the construction standards in part 1926 to its own employees. The court did not reach the issue, noting that the parties had not briefed it. The proposed confined-spaces in construction standard will be included in part 1926 § 1910.12(a) is consistent with the promulgation of requirements that place obligations on employers necessary to protect the employees of others. The provision states:

The standards prescribed in part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. Each employer shall protect the employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in this paragraph.

The language of the provision supports OSHA's interpretation that an employer's responsibilities can extend beyond the employer's employees. The first sentence makes the construction standards applicable to every employment and to every “place of employment” of every construction employee. This is broad language that does not limit an employer's obligations to its own employees. The second sentence, by providing that each employer must protect the employment and the places of employment of each of his employees, does not limit an employer's obligations to only protecting his or her employees and does not negate the broad reach of the first sentence. The two sentences, read together, require employers to comply with standards at all sites where they are working in order to protect employees who are predictably present at those sites.

The sole purpose of the provision was to “adopt and extend” existing Construction Safety Act (CSA) standards applicable under the OSH Act. 29 CFR 1910.11. Under the CSA, standards applied only to employers with Federally funded contracts, and only with respect to employees engaged on those Federal projects.

See

29 CFR part 1926 Subpart B;

CH2M Hill, Inc.

v.

Herman,

192 F.3d 711, 718 n.1 (7th Cir. 1999). The function of 29 CFR 1910.12(a) was to adopt the CSA standards as OSHA standards and in so doing to make it clear that neither of those limitations would apply. Thus, OSHA stressed that compliance would broadly extend to

each

construction employer (not just those with Federal contracts) and to

every

construction employee (not just those working on Federal projects). In no way did OSHA intend for the language of 29 CFR 1910.12(a) to restrict its authority to promulgate construction standards that establish obligations extending beyond an employer's own employees.

Other factors confirm that OSHA had no intention in § 1910.12(a) to bar multi-employer responsibilities under the construction standards. OSHA issued the regulation without notice and comment under Section 6(a) of the Act. That section provided authority only to adopt established federal standards, such as the CSA standards, without making any substantive changes.

Usery

v.

Kennecott Copper Corp.,

577 F.2d 1113 (10th Cir. 1977). The CSA regulations did not limit multi-employer responsibilities; the regulations expressly provided for them. 29 CFR 1926.16. OSHA could not have intended to limit statutory obligations in an action under Section 6(a).

Moreover, concurrently with issuance of § 1910.12(a), OSHA issued its initial Field Operations Manual, which expressly directed issuance of citations to construction employers who created a hazard endangering their own employees or those of another employer. The Agency has also consistently promulgated rules in 29 CFR part 1926 that expressly extend employers' obligations beyond their own employees. The requirements in proposed § 1926.1204 reflect this consistent interpretation and will ensure that

all

employees on construction worksites are protected from the hazards of confined spaces.

The Occupational Safety and Health Review Commission's recent decision in

Secretary of Labor

v.

Summit Contractors

(OSHRC Docket No. 03-1622 (April 27, 2007), has no application to this proposed rule. In

Summit,

a divided Review Commission vacated citations issued to a controlling employer for violations of a construction standard. The two Commissioners who joined in this result issued separate opinions; each read § 1910.12(a) as establishing a limitation on the Agency's authority to hold controlling employers accountable for violations. OSHA believes this view is mistaken, and has appealed the OSHRC decision to the U.S. Court of Appeals (8th Cir. No. 07-2191).

Moreover,

Summit

has no bearing on the duties established under the proposed rule. The

Summit

opinions interpreted OSHA's intent under then existing rules. They did not question OSHA's authority under the Act to establish multi-employer obligations through rulemaking. OSHA is exercising its authority under Section 6(b) to issue this proposed rule, and nothing in § 1910.12(a) limits an employer's compliance obligations under the rule.

Paragraph (a)(1). The host employer and/or controlling contractor would be required to provide information to contractors that it has about the location of each space that it actually knows is a confined space at the worksite. If the host employer or controlling contractor does not have this information, it is not required by this proposed provision to obtain it. For example, if the locations of confined spaces were obtained by the host employer or controlling contractor while its own employees had worked in or near the spaces, or if it obtained the location of a confined space from other contractors who worked in or near the spaces, that information must be shared with the next employer it contracts to work in or near those confined spaces.

Paragraph (a)(2)(i). For each confined space identified in paragraph (a)(1) above, the host employer and controlling contractor would be required to inform the contractor of any hazards in or near the space that the host employer or controlling contractor knows about. These may be known atmospheric or physical hazards. Examples of these include, but are not limited to: atmospheric contaminants; the presence of energized electrical conduits; construction operations performed near the confined space that may result in a ruptured sewer line; or the existence of construction work that may cause the confined space to collapse. If the host employer or controlling contractor does not have this information, it is not required by this proposed provision to obtain it.

Paragraph (a)(2)(ii). The host employer and/or controlling contractor

would be required to provide information that it has to the contractor about the classifications of previously classified confined spaces on the worksite. For example, if the host employer or controlling contractor knows that an employer had previously classified an electrical vault as an Isolated-Hazard Controlled Space (IHCS), the controlling contractor would have to provide that information to the next employer that it contracts to do work in or near that space. However, if the host employer or controlling contractor does not have this information, it is not required by this proposed provision to obtain it.

During the SBREFA process, some small-business representatives expressed the concern that, as a result of having this provision in the draft proposed standard, some controlling contractors would require the contractor to classify all confined spaces as PRCSs, including those that could be classified as IHCSs or CACSs. This proposed provision would not require the contractor to base its classification determination solely on a previous classification that it learned of from a host employer or controlling contractor. The contractor is responsible, under other sections of the proposed standard, for properly classifying the space; the information provided to the contractor under this proposed paragraph may assist the contractor in making the classification. However, this proposed standard would not preclude a controlling contractor from requiring a contractor, for example, to apply a higher level classification to confined spaces than the level required under the proposed standard.

Paragraph (a)(2)(iii). The host employer and controlling contractor would be required to share with all contractors who work inside a confined space the precautions and procedures, if any, it previously implemented to enter that confined space. However, this proposed provision does not require the host employer or controlling contractor to develop entry programs for its contractors. Also, it is not mandatory for a host employer or controlling contractor to provide previously implemented confined-space entry procedures that are not applicable to the space(s) the contractor must enter (that is, entry procedures used for a different space.)

Paragraph (b). The contractor would be required to first determine what spaces are confined spaces and, if so, whether they are subject to any hazards. Provisions (b)(1) through (b)(4) of this proposed section spell out the procedures for making these assessments. The Agency believes that these procedures are necessary to ensure that the spaces are correctly assessed and to ensure that the employees are protected while conducting the assessments.

Paragraph (b)(1). The contractor would be required to consider information provided by the host employer and controlling contractor (if any), and the contractor's own inspection information (see following paragraph), to determine if the space is a confined space and, if so, if there are any physical or atmospheric hazards. OSHA believes that information obtained from the host employer or controlling contractor would be useful to contractors because it often would be based on work previously done safely within the affected space. Except as noted in paragraph (b)(2) of this proposed section, this initial evaluation must be done without entry into the space by the contractor or their employees.

Paragraph (b)(2). In some cases it may not be feasible to make the required determinations about the space and hazards without entering the space. When the contractor can demonstrate that obtaining the information without entering the space is infeasible, employees may enter, but only to inspect for that information. In doing so, an employer must ensure that any employee entering the unclassified space meets the requirements of proposed §§ 1926.1208 through 1926.1214 for Permit-Required Confined Spaces and, if applicable, proposed § 1926.1215 for Continuous System-Permit-Required Confined Spaces.

Entry into the space before identifying its hazards is potentially dangerous; therefore, OSHA believes it is reasonable to require contractors to be able to demonstrate that a proper assessment of the space without entry is infeasible before employees are allowed to enter. This proposal calls for contractors to follow the entry requirements of a PRCS (or, where applicable, a CS-PRCS) in these situations because, with the hazards as yet undetermined, taking these precautions will ensure the safety of the employees.

Paragraph (b)(3). The contractor would have to determine if there are any atmospheric hazards in the confined space. It would be required to comply with proposed § 1926.1205 (Atmospheric testing and monitoring) below to properly perform atmospheric testing and monitoring. In following proposed § 1926.1205, all testing of the internal atmosphere of the confined space must be done without use of mechanical ventilation or changes to the space's natural ventilation. This is to ensure that the natural atmospheric conditions within the space are assessed for hazards that may affect those employees working in the space.

Paragraph (b)(4). Contractors would be required to meet applicable OSHA requirements, including training requirements, for the use of personal and other protective equipment required by paragraph (c)(2) of proposed § 1926.1213. The training would ensure, as applicable, that the employees have the understanding, knowledge, and skills necessary to use the personal and other protective equipment effectively.

Paragraph (c). This proposed paragraph sets forth the information-exchange requirements for contractors who classify a space as a PRCS, CS-PRCS, CACS, or IHCS.

Paragraph (c)(1). Contractors would have to inform the host and controlling contractor of the procedures the contractors will follow for entry into the space. This proposed requirement will enable the host employer and controlling contractor to provide this information to other contractors who enter the space. Such information would help other contractors in planning their safe entry procedures.

Paragraph (c)(2). When contractors classify a space as a PRCS, CS-PRCS, CACS, or IHCS, they would be required, at the conclusion of entry operations, to inform the host employer and controlling contractor employer about any hazards that were present or that developed during the entry operations. This information would be useful to other employers that the host employer and controlling contractor contracts to do work within the space since it would be relevant to their hazard assessments of the space. OSHA believes that the host employer and controlling contractor are in the best position to disseminate this information to other affected employers on the site.

Paragraph (d). The controlling contractor would be required to coordinate confined-space entry operations when multiple contractors will have employees working within the confined space at the same time. The Agency believes that the controlling contractor is in the best position to ensure adequate coordination between contractors whose work (and associated hazards) may affect one another. Note that this proposed paragraph does not specify any particular process by which the controlling contractor would coordinate entry operations. The purpose of this proposed provision is to ensure that employees are protected from hazards that could result from a

lack of coordination between contractors in the space. This paragraph works in concert with the requirements of paragraph (c)(1) of this proposed section, which specifies that contractors must inform the controlling contractor and host employer of their precautions and entry procedures. The controlling contractor can use this information to coordinate the entry operations performed by multiple contractors in or near a confined space to ensure the safety of employees.

Paragraph (e). This proposed paragraph addresses employee participation and notification, and would require the employer to provide its employees who enter a confined space, and their authorized representatives, an opportunity to observe evaluations of the confined space performed under paragraph (b) of this proposed section, reassessments conducted under proposed § 1926.1207 (Reassessment), and any atmospheric testing and monitoring required by this proposed standard. This proposed paragraph does not require employees and their authorized representatives to observe the specified activities; however, it provides employees and their authorized representatives with the option of observing should they choose to do so. OSHA believes that allowing employees and their authorized representatives to participate in this manner will contribute to the successful implementation of safe entry operations by enhancing their awareness of the hazards present in the confined space.

Section 1926.1205—Atmospheric Testing and Monitoring

This proposed section prescribes minimum procedures for atmospheric testing and monitoring that employers would be required to perform to adequately assess the atmospheric conditions which exist within a confined space. Information of this type is vital to the identification of atmospheric hazards within the space, and is also needed to make accurate determinations for later classification of the space. Maintaining safe atmospheric conditions is essential to the safety of all employees working in the space.

Paragraph (a). Employers would be required to test or monitor a confined space for certain atmospheric hazards in a specific order (oxygen deficiency, combustible gases and vapors, and toxic gases and vapors) unless they test or monitor these hazards simultaneously, and for other atmospheric hazards specified in applicable OSHA requirements (such as those in other OSHA standards). Employers must test or monitor for oxygen deficiency, combustible gases and vapors, and toxic gases and vapors because these are well-recognized atmospheric hazards in confined spaces (see discussion of atmospheric hazards in the general industry final rule for confined spaces at 58 FR 4465). Employers must continue to test or monitor the confined-space atmosphere while employees are operating in the space.

The Agency adopted the requirement to test or monitor for oxygen deficiency, combustible gases and vapors, and toxic gases and vapors in this specific order (unless employers test or monitor these atmospheric hazards simultaneously) from the general industry and the ANSI Z117.1-2003 confined-spaces standards. The preamble to the final general industry confined-spaces standard noted that this procedure represents generally accepted safe work practices, and explained the specified order as follows:

A test for oxygen must be performed first because most combustible gas meters are oxygen dependent and will not provide reliable readings in an oxygen deficient atmosphere. In fact, the Johnson Wax Company (Ex. 14-222) stated that “there is [a] specific (sensor dependent) oxygen level below which the combustible gas sensor will

not

respond at all [emphasis was supplied in original].” Combustible gases are tested for next because the threat of fire or explosion is both more immediate and more life threatening, in most cases, than exposure to toxic gases.

(58 FR 4499.) OSHA remains convinced that the priority assigned to testing or monitoring atmospheric hazards by this proposed provision remains valid, and is critical to the health and safety of employees involved in confined-space operations.

Monitoring must be done periodically and as necessary unless other provisions of this proposed standard or other OSHA requirements specify differently. “As necessary” refers to the monitoring reasonably required to detect atmospheric hazards. Some factors that may affect frequency are: results of tests allowing entry; regularity of entry (daily, weekly, or monthly); effectiveness of previous monitoring activity; and knowledge of the hazards that affect the confined space. Monitoring must be of a frequency and performed in a manner sufficient to protect employees operating in confined spaces from atmospheric hazards.

Paragraph (b). Employers would have to provide medical facilities that treat employees exposed to certain atmospheric hazards (those hazards that could cause an immediate threat to life and health) with information the employer is required to keep under proposed § 1926.1219 (Records) regarding such hazards; if the exposure involves a chemical hazard described by a Material Safety Data Sheet (MSDS) that the employer must maintain at the job site under 29 CFR 1910.1200 (Hazard Communications), the employer must ensure that the medical facility receives the MSDS as well. The information must be provided to the treating medical facilities as soon as is practical after the exposure. Employers can comply with this proposed provision by having that information accompany the employee to the medical facility or by providing it to the facility as soon as practicable after the employee's arrival there.

The Agency recognizes that such information may already be available to medical facilities from other sources (such as state emergency-planning commissions), and that MSDSs or similar written information may not be available in some instances. However, OSHA believes that it would be reasonable and prudent to require employers to provide MSDSs or other written information to a treating medical facility when such MSDSs or other similar written information already is required to be kept at the worksite; for example, as noted earlier, the Agency's Hazard Communication standard at 29 CFR 1910.1200 may require construction employers to keep MSDSs at the job site. Such information may significantly help the medical facility correctly diagnose and treat the employee.

Section 1926.1206—Classification and Precautions

This proposed section would require an employer to use the information about the space that it obtained under proposed § 1926.1204 (Worksite evaluation, information exchange, and coordination) and classify the confined space(s) in which their employees will be working. The employer must then follow the precautions and safety procedures listed in the applicable section. The classifications are: Continuous System-Permit-Required Confined Space (CS-PRCS); Permit-Required Confined Space (PRCS); Controlled-Atmosphere Confined Space (CACS); and Isolated-Hazard Confined Space (IHCS).

Paragraph (a). This proposed paragraph lists the elements of a Continuous System-Permit-Required Confined Space (CS-PRCS). A “confined space,” as defined in proposed § 1926.1203 (Definitions applicable to this subpart), would be classified as a CS-PRCS if it has all the

elements listed in paragraphs (a)(1) through (a)(3) of this proposed section. Such spaces would be protected in accordance with the safety provisions and procedures specified by proposed §§ 1926.1208 through 1926.1215. The Agency believes that employees in this type of space are vulnerable to hazards that can migrate from a larger, contiguous confined space and overwhelm personal protective equipment and/or hazard controls, resulting in a hazard that is immediately dangerous to life and health. For example, employees in one part of a sewer system could be drowned by an unexpected flow of water from upstream in the system. Therefore, a means of warning the employees needs to be in place to protect them.

Paragraph (a)(1). The first element of a CS-PRCS is that the confined space is part of, and contiguous with (connects or contacts), a larger confined space—irrespective of whether the larger space is a CS-PRCS, an Isolated-Hazard Confined Space (IHCS), a Controlled-Atmosphere Confined Space (CACS), or a Permit-Required Confined Space (PRCS). The space to be classified must be contiguous with part of the larger system. For example, if an employer were to perform work in a section of a sewer system, that section would be considered part of and contiguous with a larger space (the entire sewer). As such, it would meet this element.

Paragraph (a)(2). The second element of a CS-PRCS is that the space is not isolated from the larger confined space. In the context of this proposed paragraph, the term “isolated” means completely sealed off from the larger space such that passage of the hazards from the larger space is impossible.

Paragraph (a)(3). The third element of a CS-PRCS is that the space is subject to a potential hazard release from the larger confined space that would overwhelm personal protective equipment (PPE) and/or hazard controls used in the space. In this context, “overwhelm” means that the PPE and/or hazard controls would not be able to cope with the hazard and would not protect employees, posing an immediate danger to the life and health of any employee working in the space. An example would be where employees are in a confined space that is contiguous with a sewer and the water level in the space is being maintained at a safe level with pumping equipment. However, the pumping equipment could not maintain that safe level if there were a surge of storm water from the sewer.

Paragraph (b). For confined spaces other than CS-PRCSs, the employer would have the flexibility to use a PRCS, CACS or IHCS classification, as long as the applicable classification requirements are met. The elements of each classification are in proposed §§ 1926.1208 (PRCS), 1926.1216 (CACS), and 1926.1217 (IHCS). OSHA had planned on proposing that the employer be required to classify the space to the “lowest” classification possible (that is, as an IHCS or, if that was not possible, then as a CACS, and if that was not possible, then as a PRCS). However, one of the recommendations that resulted from the SBREFA review process was that OSHA should consider allowing employers greater flexibility in this regard. The Agency has decided that allowing flexibility in choosing the classification will increase compliance with the standard, and has, therefore, allowed for flexibility in this proposed provision.

Paragraph (c). The employer would be required to meet the accident-prevention and -protection requirements applicable to the confined space as classified. The employer would have to meet those requirements before any employee enters the space. The accident-prevention and -protection requirements for each classification are in proposed §§ 1926.1208 through 1926.1214 (PRCS), 1926.1215 (CS-PRCS), 1926.1216 (CACS), and 1926.1217 (IHCS). The Agency structured the proposed standard in this way so that the accident-prevention and -protection requirements would be tailored specifically to the space classification being used. OSHA believes that this approach will both ensure the protection necessary for the employees and give the employers some flexibility in selecting the classification.

Section 1926.1207—Reassessment

Paragraph (a). This proposed paragraph would require employers to reassess the determinations made in proposed § 1926.1204 (Workplace evaluation, information exchange, and coordination) for a confined space that the contractor had previously determined did not contain any atmospheric or physical hazards when there is an indication that the conditions under which the determinations were made have changed. The Agency believes that this is necessary because conditions around and within confined spaces may change, especially when construction activities are performed around or within it. Consequently, when indications of changes in the previous conditions arise, and to ensure that employees are protected, it is necessary to conduct a reevaluation of the confined space. Such indications include but are not limited to: (1) A change in the configuration or use of, or the type of work conducted or materials used in, the confined space; (2) new information regarding a hazard in or near a confined space; and (3) an employee or authorized representative provides a reasonable basis for believing that a hazard determination is inadequate. OSHA believes that, to ensure the safety of the employees, if any of these three indications occur it is necessary to check to see if new hazards have arisen in the confined space.

Paragraph (b). When an employer has made a determination under proposed § 1926.1204 (Workplace evaluation, information exchange, and coordination) that a confined space was subject to a hazard and the employer implemented protective measures and procedures, the employer would be required to reassess its confined space worksite operations and procedures if there is an indication that those measures may not protect employees working in or near the confined space. This proposed provision lists seven examples of indications that would require the contractor to reassess the confined space in light of the triggering event or new information. These events include, but are not limited to: (1) A change in the configuration or use of, or the type of work conducted or materials used in, the confined space; (2) new information regarding a hazard in or near a confined space; (3) an employee or authorized representative provides a reasonable basis for believing that a hazard determination or protective measure is inadequate; (4) an unauthorized entry into a PRCS; (5) detection of a hazard in or near a PRCS that is not addressed by the entry permit; (6) detection of a hazard level in or near a PRCS that exceeds the planned conditions specified in the entry permit; and (7) the occurrence, during an entry operation, of an injury, fatality or near-miss.

While some specified events, such as the presence of a new hazard in or near the confined space, detection of a hazard not covered by the entry permit, or detection of a hazard that exceeds acceptable levels (see paragraphs (b)(2), (b)(5), and (b)(6) of this proposed section, respectively) may necessitate a full physical and atmospheric retest of the space, full retesting would not be required in all cases. For example, it is unlikely that the unauthorized entry into a space (paragraph (b)(4) of this proposed section) or an accident unrelated to any atmospheric hazard (paragraph (b)(7) of this proposed section) would necessitate a complete review of the atmospheric conditions in the confined space. OSHA recognizes

that while working in a confined space, the environment and/or working conditions may change as a result of unforeseen occurrences. As such, the employer must identify the need for a reassessment of the hazards and working conditions based on changes that may adversely affect safety or health in the confined space.

The indicators specified in paragraphs (b)(1) through (b)(7) of this proposed section are not meant to be a comprehensive list; rather, these indicators are likely or common events that would require a reassessment. The employer also would be required to conduct a reassessment where other, unlisted conditions occur that indicate a need to reassess the effectiveness of hazard controls used in the space.

Paragraph (c). This proposed paragraph specifies the requirements for reassessing a confined space. Prior to performing a reassessment, the contractor must ensure that all employees exit the confined space immediately. The proposed provision also requires the contractor to ensure that no employee reenters the space until the contractor identifies the physical and atmospheric hazards in accordance with paragraph (b) of proposed § 1926.1204; follows the classification procedures specified by proposed § 1926.1206 (Classification and precautions); and meets the accident-prevention and -protection requirements applicable to the space classification selected by the contractor before any employee reenters the space.

The Agency believes this proposed requirement is necessary because once an emergency occurs, the protective systems in place in the PRCS can no longer be relied on to protect the entrants; their safety then depends on their immediately getting out of the PRCS. The Agency also believes that this proposed requirement is necessary to ensure that the: spaces are correctly assessed; employees are protected while conducting a reassessment; and employees receive appropriate protection prior to reentering the confined space.

Section 1926.1208—Permit-Required Confined Spaces

This proposed section would establish (1) the criteria for identifying and classifying a Permit Required Confined Space (PRCS), and (2) the basis for defining the conditions that would enable authorized entrants to work safely in the PRCS (the planned conditions).

Paragraph (a). This proposed paragraph specifies the classification requirements for PRCSs.

Paragraph (a)(1). This proposed paragraph lists several characteristics of PRCSs as defined in proposed § 1926.1203 (Definitions applicable to this subpart): a hazardous atmosphere; inwardly converging, sloping, or tapering surfaces that could trap or asphyxiate an employee; or an engulfment hazard or other physical hazard. The presence of any one of these characteristics in a confined space would require the employer to identify and classify it as a PRCS. For example, a space between walls that narrows towards the base (including but not limited to, funnels and hoppers) would be a PRCS.

Paragraph (a)(2). This proposed paragraph sets forth the requirements regarding physical and atmospheric hazards in PRCSs.

Paragraph (a)(2)(i). In this proposed provision, for each physical hazard identified under paragraph (b) of proposed § 1926.1204, the employer would have to design either an isolation method or use another method of protecting employees from each hazard. The means and methods designed by the employer must meet applicable OSHA requirements. For example, if the confined space contains a physical hazard associated with electrical equipment, the means of isolation or protection must comply with the appropriate OSHA electrical standard (e.g., 29 CFR part 1926 subpart K (Electrical)).

Paragraph (a)(2)(ii). In this proposed provision, for each atmospheric hazard identified under proposed 29 CFR 1926.1205 (Atmospheric testing and monitoring), the employer must isolate or control the atmospheric hazards within the PRCS by either: (1) Ensuring that these hazards are reduced to a safe level

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in the space without the use of personal protective equipment (PPE) (see, for example, 29 CFR 1926.55, 1926.152, 1926.1100 through .1152); or (2) using PPE to protect the employees from the hazard. For example, for non-explosive atmospheric hazards (such as oxygen deficiency or toxic atmosphere), if the employer does not reduce the hazard in the space to a safe level, the method used to protect the employees must include PPE that is sufficient to protect them in accordance with OSHA requirements applicable to the hazard.

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“Safe level” is a defined term in proposed 1926.1203 (Definitions applicable to this subpart) of this proposed standard.

OSHA initially considered requiring employers to isolate all hazards and meet the accident-prevention and -protection requirements of proposed § 1926.1217 (Isolated-hazard confined spaces—classification and accident-prevention and -protection requirements) unless they could demonstrate that isolation of a hazard is infeasible. When employers could demonstrate that they could only isolate physical hazards but not atmospheric hazards, they would have to control the atmospheric hazard and protect their employees in accordance with proposed § 1926.1216 (Controlled-atmosphere confined spaces—classification and accident-prevention and -protection requirements). Only when they could not isolate or control a hazard could employers use personal protective equipment (PPE) to meet the requirements of proposed §§ 1926.1208 through 1926.1214 and 1926.1215 (requirements for PRCSs and Continuous System-PRCSs). However, during the SBREFA process, several Small Entity Representatives (SERs) noted that they and their controlling contractors prefer to classify all confined spaces as PRCSs, thereby providing consistency in training and equipment when working in confined spaces.

OSHA's initial position was consistent with other OSHA standards such as 29 CFR 1926.55 (Gases, Vapors, Fumes, Dusts, and Mists), which require employers to eliminate hazards first using engineering and work-practice controls, and only then with PPE. Nevertheless, the Agency agreed with the comments of the SERs and revised its initial position to allow employers to meet the accident-prevention and -protection requirements of an IHCS or CACS as an option to complying with the PRCS requirements of the proposed standard. OSHA believes this approach to classification of confined spaces will protect employees while allowing employers some flexibility in the methods they choose to manage confined-space hazards. This conclusion is particularly true given the information the Agency received during the SBREFA process when the SERs stated that contractors often prefer to classify all confined spaces as PRCSs so as to provide consistency in training and work practices. The Agency believes that in the construction industry, where there are constantly changing work environments, allowing such an approach may provide additional safety benefits to employees.

Paragraph (b). The two provisions of this proposed paragraph require the employer to define the planned conditions under which authorized entrants can work safely in a PRCS.

Paragraph (b)(1). Under this proposed paragraph, the employer would be required to use the determinations made

under paragraph (a)(2) of this proposed section to define the planned conditions under which the employees can safely work in the PRCS.

Accordingly, the required information would include the hazard levels at which employees can safely work and the procedures and equipment used to protect the employees. For example, when an employer decides to use PPE to protect employees from an atmospheric hazard, the planned conditions would typically include the type of PPE to be used (such as type of respirator) and the levels at which the PPE would protect the employees from the atmospheric hazard.

Paragraph (b)(2). Employers would be required to determine that, in the event the ventilation system stops working, the monitoring procedures will detect an increase in atmospheric hazard levels in sufficient time for the entrants to safely exit the PRCS. As explained for a similar provision in the general industry standard (see 29 CFR 1910.146(c)(5)(i)(B)), for the PRCS to be considered safe, the mechanical ventilation must control the atmospheric hazards at levels that are below the levels at which they are harmful to entrants (that is, at a sufficiently low level that entrants will have time to exit the PRCS safely). In addition, should the forced-air ventilation system cease to function during entry (such as from a power loss), the atmosphere must remain at safe levels until monitoring procedures detect rising atmospheric hazard levels and entrants can safely exit the space or ventilation is restored. The Agency believes that monitoring is the primary method for detecting an increase in atmospheric hazard levels and, therefore, this proposed standard generally requires the use of monitoring to detect ventilation system failure. However, other indicators may be useful in detecting such failures, including changes in noise levels, air flow, and/or pressure; and signs, symptoms, and characteristic effects of exposure to the atmospheric hazard.

In the event the control methods fail, meeting the requirements of this proposed paragraph would provide employees with a safe atmosphere within the PRCS until they evacuate from the confined space, thereby reducing the risk of serious injury and death. Nevertheless, OSHA believes that if the atmospheric hazards would rapidly rise to unsafe levels in the event of a failure in the mechanical-ventilation system, and employees could not exit safely from the PRCS under these conditions, then mechanical ventilation may be an inappropriate method for controlling atmospheric hazards in the PRCS.

Section 1926.1209—PRCS—Initial Tasks

Paragraph (a). One of the keys to protecting employees from PRCS hazards is for both employers and employees to know the location of the PRCSs at the job site, the characteristics of the hazards, and their associated dangers. The provisions in this proposed paragraph are designed to achieve this goal.

Paragraph (a)(1). The contractor would be required to notify its employees that it anticipates will be in or near the PRCS and their authorized representatives, and the controlling contractor, about the location of, and the hazards/dangers posed by the PRCSs located at the job site. The Agency believes that it is important for the contractor to provide the controlling contractor with this information because the controlling contractor is in the best position to convey the contractor's information to other employers at the site. This proposed provision will help facilitate the effective sharing of this important information among other contractors at the site, as well as the employees of these contractors that they anticipate will be in or near the PRCS. It also ensures that the contractor's own employees who will be in or near the PRCSs have this information.

Paragraph (a)(2). The employer would be required to post a danger sign at or near the PRCS entrances, which the Agency believes is necessary to ensure that employees are warned of the presence and danger of a PRCS. If the employer can demonstrate that a sign is infeasible, it would have to use an equally effective means of alerting employees. The Agency believes that employees need this information to understand the seriousness of potential hazards in the PRCS. Compliance with this proposed requirement would ensure that employees who are not involved in PRCS operations would be sufficiently informed so that they would not attempt to enter the spaces. However, OSHA notes that only employees who work in PRCSs would need to know more details about the potential hazards. Therefore, this proposed provision would not require employers to list specific PRCS hazards on each sign. The Agency believes that, when properly warned, employees who are not authorized to enter the space would avoid entering the PRCS, thereby preventing harm that could result from the PRCS hazards.

The sign must convey that entering the space is dangerous and that entry without authorization is prohibited. Language such as “Danger—Permit-Required Confined Space—Authorized Employees Only” and “Danger—Do Not Enter Without a Permit” would convey this information. Similar language that prevents unauthorized entry also would meet the requirements of the proposed rule.

OSHA considered allowing the use of a posted copy of the entry permit to meet the sign requirement. However, the Agency rejected this idea because the entry permit is not designed to serve as a warning sign. Unlike a sign that reads “Danger—Permit Required Confined Space—Authorized Employees Only” or “Danger—Do Not Enter Without a Permit,” or similar language, the design and content of an entry permit is unlikely to clearly express to employees (especially those not authorized to enter the PRCS) that entering the space could be dangerous.

When the employer demonstrates that posting a sign at every possible entrance to a PRCS is infeasible, it instead would be permitted to use an equally effective means to warn employees of the presence and danger of the PRCS. Such means must go beyond just generic training in this standard, for example, since generic training would not identify the location of permit spaces at a specific worksite. Therefore, an equally effective means would identify the PRCS locations so that employees at the job site who may work near the PRCSs would be aware of these locations and would understand the importance of not entering them.

Paragraph (b). The employer would be required to decide if any employees would be authorized to enter the PRCS. If no employees will be authorized to enter, entry must be prevented by implementing the three measures specified below in paragraphs (b)(1) through (b)(3) of this proposed section. The Agency believes that these measures would effectively prevent unauthorized entry into PRCSs and so protect employees from encountering PRCS hazards.

Paragraph (b)(1). The employer would be required to use barriers to permanently close the PRCS to prevent access to the PRCS. The use of barriers helps ensure that the PRCS remains inaccessible to employees. A barrier is a physical obstruction that blocks access to the PRCS; for example, a plywood sheet could be installed to cover the entrance, or 2x4s installed in such a manner that some or all of the barrier would have to be removed to easily enter the space.

Paragraph (b)(2). Under this proposed provision the employer would be

required to post danger signs in accordance with paragraph (a)(2) of proposed § 1926.1209. The Agency believes that it is necessary to use such signs in conjunction with the barrier because, without such signs, an employee may not understand that the purpose of the barrier is to keep all employees out of the PRCS. Such signs are particularly important at construction sites, where construction employees are accustomed to removing material to gain access to an area.

Paragraph (b)(3). Employers would be required to inform their employees and the controlling contractor of the location of the closed PRCS and the measures used to prevent entry into the space. The purpose of this proposed paragraph is to ensure that all employees, including employees who are not authorized to enter a PRCS, are informed directly of the locations of the closed PRCSs and the dangers they pose. As a result, employees, including those employees who have no experience working near or within a PRCS, would recognize, and avoid entering, a PRCS.

Paragraph (c). Under this proposed paragraph, if the employer decides that one or more employees will be authorized to enter the PRCS, it would be required to implement specific measures to limit entry into the PRCS to only those employees authorized to enter. Compared to the general industry standard, the provisions in this proposed paragraph provide more specific information to employers about how to limit PRCS access to authorized entrants at construction worksites.

Paragraph (c)(1)(i). OSHA believes that to effectively limit entry into a PRCS, it is necessary to make it physically difficult for non-authorized employees to enter the space since employees may not take note of other types of warnings (such as signs) before entering the space. Therefore, under this proposed provision, employers would be required to use either barriers or high-visibility physical restrictions, such as warning lines with flags, installed across the entrances to the PRCS. High-visibility physical restrictions such as warning lines with flags would be allowed as an option in this proposed provision since these restrictions allow authorized employees to enter the space. Unlike the barriers described above in paragraph (b)(1) of this proposed section, which must prevent any employee from entering the PRCS, the purpose of the barriers required by this paragraph is to warn non-authorized employees not to enter the space while allowing entry into the PRCS by authorized entrants.

This proposed provision serves a different purpose than the barrier required below in paragraph (c) of proposed § 1926.1210. As discussed below, the barrier in paragraph (c) of proposed § 1926.1210 would be designed to protect authorized entrants from external hazards presented by pedestrians and vehicles. In contrast, the barrier or high-visibility physical restriction in this proposed provision is designed to prevent non-authorized entrants from entering the PRCS, while allowing authorized entrants ready access to the PRCS.

Paragraph (c)(1)(ii). Employers would be required to post signs that comply with paragraph (a)(2) of this proposed section at or near the entrances to the PRCS. The sign required by this proposed paragraph would warn employees that it is dangerous to enter the PRCS. The sign would work in conjunction with the physical restrictions specified in paragraph (c)(1)(i) of this proposed section to communicate the presence of hazards within the PRCS.

Paragraph (c)(1)(iii). The employer would have to inform its non-authorized employees and the controlling contractor of the location of, and hazards in, the PRCS and the measures used to prevent unauthorized entry. As with the requirements in paragraphs (a)(1) and (b)(3) of this proposed section, OSHA believes that it is important for the employer to communicate the location and hazards of the PRCS to its non-authorized employees. In addition, the controlling contractor is typically in the best position to disseminate the information about the PRCS to the other affected employers. OSHA believes that inadvertent entry into the PRCS by non-authorized employees is less likely to occur where this information is disseminated.

Paragraph (c)(2). The employer would be required to allow only employees who are “authorized entrants” as defined above under proposed § 1926.1203 (Definitions applicable to this subpart) to enter the PRCS. Paragraph (g) of proposed § 1926.1210 would require the employer to designate which employees are authorized entrants and to ensure that these individuals are identified on the current entry permit in accordance with paragraph (a)(2)(ii) of proposed § 1926.1214. Only these individuals may enter the PRCS. The Agency believes that this proposed requirement will help maintain safe PRCS operations, which to a significant extent depend on the entrants knowing about the hazards and proper PRCS procedures. Non-authorized entrants would not typically be trained regarding the hazards and safety procedures required by the applicable sections of this proposed standard. Consequently, their presence could compromise not only their own safety and health, but also the safety and health of other employees in the PRCS.

Paragraph (d). This proposed paragraph establishes an employer's duties to train employees the employer anticipates will be in or near the PRCS.

Paragraph (d)(1). The employer would have to ensure that employees who will be in or near a PRCS acquire the knowledge and skills necessary for the safe performance of their duties as specified by the applicable sections of this proposed standard. The proposed provision specifically identifies “employees who will be in or near a PRCS” as entry supervisors, attendants, authorized entrants, and rescue-service employees. The training must also result in the employees understanding the hazards in the PRCS that they will be working in or near, and the methods used to isolate, control, or protect them from these hazards. For example, if an authorized entrant enters the space to isolate an identified hazard or to set up ventilation to control an atmospheric hazard, the employer would be required to ensure that the employee is trained not only in accordance with the PRCS entry requirements, but also to perform the tasks necessary to isolate and control the specific hazards in accordance with other appropriate OSHA requirements applicable to construction. All employees who enter the space thereafter must also be trained to understand how the hazards within the space, if any, have been isolated or controlled. OSHA believes that the training employees receive under this provision will enable them to associate the signs, symptoms and characteristic effects (discussed elsewhere in this preamble) to failure of methods to control or isolate the hazards. Therefore, this training will enable employees to safely perform their requisite duties while working in or near the PRCS, and to respond appropriately if the hazard-protection methods fail.

Paragraph (d)(2). Multiple fatalities could occur when one employee discovers that another employee has been incapacitated inside a confined space and goes into the space to rescue the victim, only to become incapacitated as well. OSHA believes one of the ways the proposed standard would prevent this type of tragic sequence is by having separate requirements for those employees who are specifically authorized to enter the PRCS for rescue and those employees who are not.

Under this proposed paragraph, the employer would be required to train employees the employer anticipates will be in or near the PRCS, and who are not authorized to perform entry rescues, about the dangers of trying to perform a rescue. This training is especially important for authorized entrants, attendants, and supervisors since they are most likely the first to become aware that an employee in the PRCS is incapacitated.

Paragraph (d)(3). This proposed paragraph specifies when the employees, notably entry supervisors, attendants, authorized entrants, and rescue-service employees, would have to be trained under the requirements of paragraphs (d)(1) and (d)(2) of this proposed section. The provisions of this proposed paragraph are designed to ensure that the training would be provided before the employees encounter a PRCS hazard, thereby ensuring that they can respond promptly and appropriately to hazards, and that they are aware of the dangers of attempting entry rescues.

Paragraph (d)(3)(i). The employer would have to ensure that specified employees (that is, entry supervisors, attendants, authorized entrants, and rescue-service employees) receive the training required above in paragraphs (d)(1) and (d)(2) of this proposed section prior to the beginning of PRCS entry operations (that is, when an authorized entrant enters the PRCS). This proposed requirement ensures that employees receive adequate training regarding PRCS hazards before authorized entrants are exposed to these hazards.

Paragraph (d)(3)(ii). Under this proposed provision, if employees receive a change in assigned tasks and these changes affect the planned conditions for the PRCS, then the employer must train these employees before they enter the PRCS on the newly assigned tasks, including how to maintain the conditions of the PRCS classification when performing the tasks. For example, an employee's assignment changes so that he/she must maintain the proper functioning of ventilation equipment in the PRCS or perform atmospheric monitoring; before reentering the space, the employee must be trained to perform such tasks and to understand their significance to safe PRCS entry operations. This additional training only applies when employees have not received previous training on these newly assigned tasks. This proposed provision would ensure that employees have the knowledge and skills necessary to perform their newly assigned tasks safely within a PRCS, thereby preventing errors that could result in substantial harm to themselves and/or other employees.

Paragraph (d)(3)(iii). The employer would be required to ensure that authorized entrants exit the PRCS when a new hazard is introduced or occurs in the PRCS for which the authorized entrants have not previously received training. The employer then would have to ensure that all untrained employees the employer anticipates will be in or near the space to complete training that provides the necessary skills and knowledge regarding the new hazard before the space is reentered.

An example would be authorized entrants working in a PRCS who, in the course of their work, discover a previously unknown gas line; none of the authorized entrants has been trained on the hazards associated with working in a PRCS that has a gas line. This proposed provision would require that the employees exit the PRCS (not just the area near the gas line) until they receive the required training.

Paragraph (d)(4). The employer would have to ensure that employees that the employer anticipates will be in or near the PRCS can demonstrate proficiency in the duties required by this proposed standard, including any new or revised PRCS procedures. This proposed provision would ensure that employees would not enter a PRCS without being able to apply the knowledge and procedures addressed in their training. In other words, the employer must determine that, for each employee, the training has been effective—that it has resulted in the employee understanding the information sufficiently so that he/she can apply it and be proficient in the required duties.

Paragraph (d)(5). The employer would be required to maintain training records for each employee. The training records would have to meet several requirements specified by this proposed paragraph. As explained in the following paragraph, the Agency believes that maintaining such records is necessary to ensure that employees that need to be trained in PRCS hazards have received the appropriate training.

Paragraphs (d)(5)(i) and (d)(5)(ii). The training records would have to show that the employee accomplished the training requirements specified in paragraphs (d)(1) through (d)(4) of this proposed section when required. This documentation can take any form that reasonably demonstrates the employee's completion of the training. Examples include attachment of test scores, a photocopied card certifying completion of a class, or any other reasonable means. The records would also have to contain the employee's name, names of the trainers, and dates of the training. These records may be stored electronically.

OSHA recognizes that the turnover rate for employees on construction sites is higher than in many other industries, and that employees are also likely to work at several different worksites based on the type of work that needs to be performed. For example, an employer could designate an employee to be an authorized entrant in several different confined spaces at the same worksite, which may require the employee to perform different assigned tasks under various planned conditions. In this situation, OSHA believes that this documentation is necessary to keep track of whether the employee has been effectively trained to perform the various tasks under the planned conditions. Compliance with this provision would provide employers with an administrative tool that they can use to confirm which employees will be able to perform the duties required by this proposed standard. By providing an easily accessible reference for determining employee training status, this provision would ensure a safer workplace within the PRCS.

Paragraph (d)(6). The provisions of this proposed paragraph would require that an employer ensure that employees be retrained when specified circumstances occur.

Paragraph (d)(6)(i). Retraining would be required when the employer has reason to believe that the employee has deviated from the PRCS entry procedures in proposed §§ 1926.1209 through 1926.1214. By retraining employees who deviate from entry procedures, the employer can better ensure the safety of all employees in a PRCS. OSHA believes that even one employee can adversely affect the safety of others in a confined space if he/she deviates from correct entry procedures.

Paragraph (d)(6)(ii). Retraining would also be required when the employer finds indications that the employee does not have adequate knowledge and skills regarding PRCS entry procedures. OSHA believes that employees in a PRCS with inadequate knowledge or skills regarding these procedures could endanger their lives and also the lives of other employees in the space.

Paragraph (e). Before any employees enter a PRCS, the employer would be required to complete arrangements for the rescue of these employees in accordance with proposed § 1926.1213 (PRCS—rescue criteria). The Agency believes that this proposed provision is necessary to ensure that rescue and emergency services will actually be readily available if they are needed.

Note that, in paragraph (e)(2)(iv) of proposed § 1926.1210, the entry supervisor is specifically required to verify that this arrangement has been made before authorizing a PRCS entry.

Paragraph (f). The employer would have to develop procedures for safely terminating entry operations under both planned and emergency conditions. For example, if ventilation equipment is being used to help control an atmospheric hazard, safe termination procedures under planned conditions or emergency conditions would include sequencing shut-down operations so that the ventilation was not turned off until the end of the termination process (that is, after employees exit the PRCS).

Section 1926.1210—PRCS—Preparing for Entry

Once the initial tasks under proposed § 1926.1209 (PRCS—initial tasks) have been completed, the employer would then have to meet several requirements under this proposed section before allowing an employee to enter a PRCS.

Paragraph (a). Before any authorized entrant enters a PRCS, the employer would be required to prepare an entry permit that meets the requirements of proposed § 1926.1214 (PRCS—entry permits), and then post this entry permit where the authorized entrants enter the PRCS. OSHA believes that making the permit available to all authorized entrants is necessary because they need to know, and be able to refer back to, the information that is in the permit to work safely in the PRCS.

Paragraph (b). This proposed paragraph would require, prior to removing an entrance cover, that employers eliminate any condition that makes it unsafe to remove the entrance cover. For example, conditions such as heat and pressure within the PRCS may pose a danger to employees removing an entrance cover. In such cases, the cover may be blown off in the process of its removal, or superheated steam may suddenly escape and burn the employee. Another example would be where a sealed cover is removed and toxic gases are released.

To protect employees from these hazards inside the PRCS, the employer would be required to make a hazard assessment before any cover is removed. Removal of the cover to the PRCS would not be permitted until the employer identifies any hazardous conditions related to the cover's removal and then eliminates those hazards.

Paragraph (c). The purpose of this proposed paragraph is to protect employees in and around the PRCS from being struck by individuals or objects outside the PRCS that may fall into the space, or that could injure the employees when they are near the PRCS. When necessary to achieve this purpose, this proposed provision requires employers to promptly: use guardrails or covers as specified in 29 CFR 1926.502 (Fall protection systems criteria and practices) of subpart M (Fall Protection) to guard holes and openings into the space from falling individuals and objects, and institute measures to control pedestrian and vehicle traffic in accordance with the requirements in 29 CFR Part 1926 subpart G (Signs, Signals, and Barricades).

Paragraph (d). Employers would be required to ensure that a safe method of entering and exiting a PRCS (such as stairways or ladders) is provided and used, and that it meets applicable OSHA requirements (such as 29 CFR Part 1926 subpart X (Stairways and Ladders)). For example, where the employees are working in an underground vault, the employer would be required to provide and ensure the use of a safe means of entry into and exit from an underground vault, and, if applicable, ensure that the method complies with OSHA standards.

This proposed paragraph also would require that if a hoisting system is used, it must be designed and manufactured for personnel hoisting. This proposed provision also allows for the use of job-made hoisting systems if these systems are approved for personnel hoisting by a registered professional engineer prior to use in PRCS entry operations.

However, commercial hoisting systems not designed and manufactured specifically for personnel hoisting would not be permissible under this proposed provision because OSHA believes they cannot be used safely for this purpose. This proposed requirement would eliminate further injuries and deaths of employees that could occur from the use of a hoisting system that was not designed specifically for personnel hoisting. The provision would give the employer flexibility in its choice of personnel hoisting systems by allowing a registered professional engineer to approve a job-made system. OSHA believes that either option would ensure that the personnel hoisting system will meet the design specifications needed for employees to safely access the PRCS.

This proposed provision would ensure that authorized entrants always have a safe and effective means of entering and exiting the space, including escaping from it in an emergency. These means include systems that are designed and manufactured for personnel hoisting and job-made hoisting systems approved by a registered professional engineer, even when these systems are not covered by an OSHA standard.

Paragraph (e). The provisions under this proposed paragraph delineate the requirements for an entry supervisor. These proposed requirements focus overall coordination of PRCS entry operations on the entry supervisor, and provide that person with authority to terminate PRCS entry operations and to cancel the entry permit. By centralizing these duties in a single individual who is highly knowledgeable regarding PRCS entry operations, these proposed requirements would substantially enhance the safety of affected employees, especially authorized entrants.

Paragraph (e)(1). The employer would be required to assign at least one entry supervisor for each worksite where there is a PRCS. OSHA believes that many of the accidents that occur in confined spaces are the result of an employer's failure to implement confined-space entry procedures. To help prevent such accidents, the Agency believes that it is necessary for the employer to not only establish safe procedures for PRCS entry, but to also ensure that these protective procedures are implemented. Therefore, to ensure that the protective entry procedures are implemented, this proposed paragraph requires the employer to assign an entry supervisor for the PRCS who would coordinate procedures for entering the PRCS. Accordingly, the entry supervisor has specific duties that must be fulfilled to ensure a safe workplace for those employees the employer anticipates will be in or near the PRCS. The employer would be required to ensure that the assigned individual meets the qualifications and performs the duties specified in paragraph (e)(2) of this proposed section.

Paragraph (e)(2)(i). The employer would be required to ensure that the entry supervisor knows the physical and atmospheric hazards in the PRCS. It is essential for the entry supervisor to know this information since it forms the basis for the PRCS procedures that would be used to protect the affected employees.

Paragraph (e)(2)(ii). The employer would be required to ensure that the entry supervisor knows how the hazards enter the body (for example, by skin contact or inhalation), as well as the signs, symptoms, and characteristic effects (including behavioral effects) of exposure to these hazards. As an individual with the authority to order the evacuation of the PRCS and cancel the entry permit, it is essential that the entry supervisor recognize hazardous conditions and telltale indications

(signs, symptoms, and characteristic effects) that a hazard is affecting employees in or near the PRCS operations. By meeting the knowledge requirements of this proposed paragraph, the entry supervisor would be better prepared to identify emergency situations by observing employees involved in entry operations.

Paragraph (e)(2)(iii). The employer would have to ensure that the entry supervisor verifies (by checking appropriate entries in the permit) the completion of atmospheric testing specified in the entry permit, that the conditions in the PRCS are within the planned conditions as defined in accordance with paragraph (b) of proposed 1926.1208 and as listed in the entry permit, and that any other procedures and equipment specified in the entry permit are in place. These preliminary checks are necessary to ensure that the conditions in the space are within the planned conditions—hazard levels are as planned, and protective measures are already in place, working properly, and are effective—before entry operations commence.

Paragraph (e)(2)(iv). The employer would be required to ensure that the entry supervisor verifies that the entry rescue service (selected in accordance with paragraph (e) of proposed §§ 1926.1209 and proposed 1926.1213) is available to perform their rescue duties and that the means for timely summoning the entry rescue service is operating properly. Since the employer would be required to assign authority for safe permit entry operations to the entry supervisor, it is reasonable and consistent with the rescue provisions to specify that the entry supervisor verify that the entry rescue service is available and the means of summoning it in a timely manner is functioning properly.

Paragraph (e)(2)(v). After the entry supervisor makes the verifications required by paragraphs (e)(2)(iii) and (e)(2)(iv) of this proposed section, the employer would be required to ensure that the entry supervisor signs the entry permit to authorize employees to enter the PRCS. OSHA believes that it is important for all employees the employer anticipates will be in or near the PRCS to be able to know who the persons are who have authority and responsibility with respect to maintaining safe conditions during entry operations. If an employee discovers an unsafe condition or symptoms caused by an unsafe condition, it is important for the employee to be able to notify a person (such as the entry supervisor) with the authority and responsibility for correcting the hazard and for evacuating the PRCS. In addition, the signature requirement underscores to the employer and the entry supervisor the importance of their determination that the prerequisites for safe entry listed in the permit have been met.

Paragraph (e)(2)(vi). The employer would be required to ensure that the entry supervisor terminates PRCS entry operations in accordance with paragraph (b) of proposed § 1926.1212 (Supervisor requirements) of this proposed standard. For an explanation of this proposed requirement, see the discussion under paragraph (b) of proposed § 1926.1212 of this preamble.

Paragraph (f). The provisions of this proposed paragraph specify the requirements for attendants. These proposed requirements would help to ensure the safety of employees in or near the PRCS.

Paragraph (f)(1). The employer would be required to station an attendant outside the PRCS for the duration of the entry operation. The rationale for assigning attendants to a PRCS is similar to the rationale for assigning entry supervisors to these confined spaces (see paragraph (e)(1) of this proposed section). Although an attendant does not have the overall responsibility for employee safety and health assigned to the entry supervisor, the attendant is a crucial link in the communication chain between the entry supervisor, rescue operations, and the authorized entrants.

It is extremely important that the attendants understand their duties, stay in contact with the entrants, and remain alert to conditions inside and outside the PRCS. The attendant may be in the best position to warn the entrants of hazardous conditions developing outside the space and impending danger within the space, and to recognize physical and behavioral changes in the entrants that would indicate that conditions within the space may be deteriorating. In cases where the entrant becomes incapacitated, the attendant often is an entrant's only contact with individuals outside the confined space. Without the attendant, many emergencies in the space would not be detected and help would not be summoned until it is too late.

One of the main duties of the attendant is to recognize hazardous conditions that are occurring inside the PRCS and to communicate this information to rescue personnel in emergency situations. If the attendant was inside the space, the attendant could become incapacitated if an emergency occurred and rendered unable to perform the very duties that are necessary to protect the other employees. The attendant would often be the first (and sometimes only) person to recognize unacceptable conditions or signs of hazardous conditions within the space. Therefore, it is imperative that the attendant remain outside of the PRCS to monitor the space and to contact and help coordinate rescue personnel during times of emergency.

Paragraph (f)(2). The employer would be required to ensure that the attendant knows the hazards associated with the PRCS, how these hazards enter the body, and the signs, symptoms, and characteristic effects that can result from those hazards. Knowing this information is crucial for the attendants to perform their duties because they must be able to recognize when there are indications that the planned conditions in the PRCS are not being met—that something is wrong with the system of employee protection. Because attendants would be able to easily communicate with entrants and entry supervisors, their recognition of deviations from the planned conditions and of the signs, symptoms and characteristic effects that might indicate exposure to a hazard will help enable a timely evacuation of the PRCS.

Paragraph (f)(2)(i). The employer would be required to ensure that attendants know the physical and atmospheric hazards in the PRCS. OSHA believes that knowing the hazards within the space includes being able to both recognize and understand them.

Paragraph (f)(2)(ii). The employer would be required to ensure that attendants know how the hazards may potentially enter the body (for example, skin contact and inhalation), the signs and symptoms of coming into contact with a hazard, and characteristic effects (including behavioral effects) of the hazards. OSHA believes this proposed requirement is necessary because the attendant is likely to be in a position to quickly recognize deteriorating conditions within the space and communicate the need for an immediate evacuation. For instance, subtle behavioral changes/effects detected in an entrant's speech or deviations in established communication procedures could alert the attendant that it is necessary for the entrant to evacuate the space or to be rescued.

Paragraph (f)(3). Under this proposed provision, the employer would be permitted to assign a single attendant to monitor more than one PRCS only when the requirements in this proposed paragraph are met. OSHA acknowledges that, although it is best to have one attendant outside each PRCS, there may be situations when one attendant can

effectively monitor multiple PRCSs. The ability to monitor multiple PRCS sites allows employers maximum flexibility in providing for the safety of employees where site-specific factors permit the attendant to do so. For instance, in some circumstances a single attendant equipped with modern technologies such as automated monitor/alarm systems and audio-video equipment may be able to monitor multiple sites and react to emergency conditions as effectively as a single attendant at each space.

Paragraph (f)(3)(i). The employer would be required to ensure that attendants are able to completely and accurately perform all duties assigned to them under paragraph (f) of proposed § 1926.1211 (Attendant duties). The attendants must be able to perform these duties at each individual PRCS without compromising the performance of their duties at any other PRCS site they are responsible for monitoring. Therefore, OSHA believes that to effectively monitor multiple PRCSs without compromising the safety of the entrants in any one of the PRCSs, employers must meet the requirements of paragraph (f) of proposed § 1926.1211 for each PRCS.

Paragraph (f)(3)(ii). The employer would be required to provide the equipment and procedures needed by an attendant to respond to an emergency affecting any of the PRCSs he/she is assigned to monitor. Examples of such equipment include electronic equipment (for example, electronic audio and video tools) that enables the attendant to detect what is occurring inside the multiple PRCSs without the attendant having to simultaneously be physically present at each PRCS entrance. If an employer chooses to require an attendant to monitor multiple PRCSs, the employer would have to provide all of the equipment necessary for the attendant to fulfill the required duties. OSHA believes that it is unrealistic to expect an attendant to be able to adequately perform those duties without the equipment necessary to accomplish the tasks assigned in paragraph (f) of proposed § 1926.1211. z

Paragraph (g). The provisions of this proposed paragraph address requirements regarding authorized entrants. OSHA believes that these employees face the greatest danger from the PRCS because they will be working in or near the hazards that pose serious safety and/or health risks. To ensure safe PRCS entry operations it is necessary for employers to limit PRCS entry to those employees who have the requisite knowledge about the hazards.

Paragraph (g)(1). The employer would be required to designate which employees are authorized to enter a specific PRCS. For example, when there is a worksite with five separate PRCSs where employees will be performing construction activities, the employer would be required to designate the specific employees who are authorized to enter specific PRCSs. Only those employees whom the employer designates as authorized (and are documented in the entry permit) are allowed to enter the designated PRCS.

Paragraph (g)(2). This proposed paragraph would require the employer to ensure that the authorized entrants know about the hazards associated with the PRCS they will be entering, and the characteristics associated with each particular hazard. This knowledge would afford authorized entrants with the information they need to protect themselves from these hazards.

Paragraph (g)(2)(i). The employer would be required to ensure that the authorized entrants know the physical and atmospheric hazards in PRCSs they are authorized to enter. This proposed requirement is similar to requirements described above for entry supervisors and attendants in §§ 1926.1210(e) (Entry supervisor) and (f) (Attendant) of this proposed section.

Paragraph (g)(2)(ii). The employer would be required to ensure that authorized entrants know how the hazards may enter the body (skin contact, inhalation), as well as signs and symptoms, and characteristic effects (including behavioral effects) that the hazards may cause. This proposed provision is similar to paragraphs (e)(2)(ii) and (f)(2)(ii) of this proposed section, which specify knowledge requirements for entry supervisors and attendants. It is particularly important for the authorized entrants to have this knowledge, since it may help them avoid PRCS hazards. For example, if an accident occurs in which an employee's protective equipment is cut, a hazardous chemical gets on his/her skin, and the employee knows that the chemical can enter the body through skin contact, the likelihood that the employee will immediately seek help is enhanced. Another example is if an authorized entrant sees unusual behavior in another authorized entrant and knows that the behavior is a symptom of exposure to a hazard, the authorized entrant will more likely recognize that an emergency is occurring and take appropriate action.

Paragraph (h). This proposed paragraph sets forth the criteria for assigning simultaneous roles to authorized entrants, attendants, and entry supervisors.

Paragraph (h)(1). The employer would be required to ensure that employees do not serve as authorized entrants and attendants simultaneously. OSHA believes that the roles of authorized entrant and attendant are fundamentally incompatible since, under paragraph (f)(1) of proposed § 1926.1210, the attendant must be stationed outside the space for the duration of the entry operation (as explained in the discussion of paragraph (f)(1) of proposed § 1926.1210). In addition, the Agency believes that trying to perform both roles simultaneously would be too distracting to perform either position effectively.

Paragraph (h)(2) and (h)(3). An employer would be permitted to have an attendant or authorized entrant serve simultaneously as an entry supervisor only if the employer ensures that the person meets all the requirements under this proposed standard applicable to that person's assigned roles. These provisions would, in effect, require employers to first assess the type and extent of the assigned tasks associated with each role and determine that the roles do not interfere with each other.

Paragraph (i). OSHA is reserving this paragraph because it is difficult for readers to have to distinguish if the letter (i) is being used as a letter or as a roman numeral.

Paragraph (j). The employer would be required to provide, and ensure the use of, equipment necessary to maintain safe conditions in a PRCS. OSHA believes that providing such equipment, and using it correctly, would prevent injuries and fatalities in PRCSs. Accordingly, the purpose of this proposed paragraph is to ensure the availability and proper use of whatever equipment is necessary to reduce the dangers posed by PRCSs.

Paragraph (j)(1). The employer would be required to provide communication equipment necessary for compliance with paragraphs (f)(5), (g)(2), and (h)(2) of proposed § 1926.1211 (requirements for entrant-to-attendant communication and rescue-service summoning requirements, respectively). Such equipment may be of a variety of types (for example, cell phones, two-way hand-held radios), so long as it is effective. If there is weak or unpredictable signal strength where the device is used, the device would not meet the requirements of the proposed standard. Properly operating communication equipment is essential in relaying information to persons of authority regarding potentially dangerous changes in the PRCS

conditions. Such information is necessary to monitor the hazards within the space and to provide guidance on methods appropriate for protecting or removing employees from those hazards.

Paragraph (j)(2). The employer would be required to provide lighting equipment to illuminate PRCSs that provides the illumination levels specified by 29 CFR 1926.56 (Illumination). OSHA believes that this proposed requirement would assist employees in conducting safe PRCS operations, including safe escape from a PRCS if necessary.

Paragraph (j)(3). The employer would be required to provide railings, covers, or barriers as required in paragraphs (b) and (c) of proposed § 1926.1209 and paragraph (c) of proposed § 1926.1210. OSHA believes that this proposed requirement is necessary to keep unauthorized employees from entering the PRCS and to help protect employees inside the PRCS from being struck by objects and individuals falling into the PRCSs. When providing this equipment, employers must ensure that it complies with the requirements of other applicable OSHA standards (for example, guardrails must meet the requirements of 29 CFR 1926.502(b) (Guardrail systems), covers must conform to 29 CFR 1926.502(i) (Covers)).

Paragraph (j)(4). The employer would be required to provide and ensure the use of equipment, such as ladders, needed for safe entry into and exit from the PRCS. In doing so, employers must ensure that this equipment, including its use by employees, complies with the requirements of the applicable OSHA standards (for example, 29 CFR Part 1926 subpart X for ladders and stairways, 29 CFR Part 1926 subpart L for scaffolds). This equipment is critical under emergency-egress conditions to ensure that employees exit a PRCS in a timely and safe manner.

Paragraph (j)(5). The employer would be required to provide rescue and emergency equipment that complies with proposed § 1926.1213 (PRCS—rescue criteria), unless an entry rescue service provides its own rescue and emergency equipment. This proposed paragraph would ensure that the proper equipment is provided for rescuing authorized entrants in the event of an emergency in a PRCS.

Paragraph (j)(6). The employer would be required to provide any other equipment necessary for the safe rescue of employees working in or near a PRCS. OSHA believes this proposed requirement would address hazards that are unique to a PRCS rescue, thereby ensuring that employees receive adequate protection from these hazards under emergency conditions. Accordingly, the employer would have to identify this additional equipment, if any, after conducting an assessment of the PRCS as required by the applicable sections of this proposed standard.

Paragraph (k). The employer would be required to document in the entry permit determinations made and actions taken pursuant to the paragraphs (b) through (j) of this proposed section. OSHA believes that proper implementation of these complex and critical safe-entry procedures depends on adequate documentation. Therefore, this proposed provision requires employers to document relevant information about the PRCS in the permit that it obtains while preparing for entry operations; this information pertains to the isolation of hazards, planned conditions, and other information required for safe PRCS entry. For example, the actions an employer takes to remove a pressurized or extremely heavy manhole cover (a physical hazard) as required by paragraph (b) of this proposed section is the type of information that employers would have to include in the entry permit. In contrast, this provision would not require employers to document all the information specified in paragraphs (b) through (j) of this proposed section, “only determinations made” and “actions taken”; for example, employers would not have to document on the entry permit whether an entry supervisor meets the requirements specified in paragraph (e)(2) of this proposed section (Entry supervisor requirements) before assigning the applicable duties, nor would they have to document information already required under paragraph (a) of proposed § 1926.1214. (See the sample entry permit in Appendix B of this proposed standard for an example of the type of information that may be required under this proposed provision.)

The information provided in the entry permit under this proposed paragraph would help the entry supervisor ensure that all required safety steps are complete before authorizing entry into the PRCS. Furthermore, including this information in the entry permit provides a ready reference for questions that may arise from authorized entrants and their authorized representative about whether conditions in or around the PRCS deviate from planned conditions and, if so, for the entrants to initiate an evacuation of the PRCS.

Section 1926.1211—PRCS—During Entry

This proposed section details the requirements that would apply while any employee is in a PRCS. The proposed requirements address the duties of entry supervisors, attendants, and authorized entrants, as well as hazard monitoring and rescue.

Paragraph (a). The employer would be required to ensure that physical and atmospheric hazards in the PRCS remain isolated or controlled, or that the employees remain protected from them, in accordance with the determinations made under proposed § 1926.1208 (Permit-required confined spaces), while any employee is in the PRCS. If the employer cannot maintain isolation or control of the physical and atmospheric hazards, or protect employees from these hazards, within the parameters established under proposed § 1926.1208, then the employer would be required to terminate the entry.

Paragraph (b). The employer would be required to monitor atmospheric hazards in accordance with the requirements specified in proposed § 1926.1205 (Atmospheric testing and monitoring) while employees are in the PRCS. Monitoring must be continuous unless the employer can demonstrate that the equipment is not commercially available or periodic monitoring is sufficient. In contrast to many general industry PRCSs, in the typical PRCS construction setting, it is often difficult for the employer to predict with reasonable certainty the levels of hazardous atmospheres. In many instances the employer will have little or no past experience with the particular PRCS, and will lack reliable historical data on hazard levels. Also, the PRCS may be altered as construction work progresses in ways that may cause unexpected increases in hazard levels. For example, changes to the wall of a PRCS may allow hazardous gasses to enter the space at higher levels than before the wall was altered.

In addition, construction equipment in the space may not operate as expected and may discharge hazardous gasses at a higher rate than anticipated. In short, construction work tends to follow a less predictable course than work covered by the general industry standard and, thus, requires atmospheric monitoring more frequently. Because of this high level of unpredictability, OSHA believes that continuous monitoring will normally be needed to ensure that affected employees, especially the entrants, are protected. This proposed provision

would enable deteriorating conditions to be recognized quickly and new atmospheric hazards identified in time to take the actions required to protect the employees.

The Agency recognizes, however, that in some PRCSs, especially when the same PRCS has been repeatedly entered and monitored and found to have a stable atmosphere (such as a remote location that is not proximate to potential sources of atmospheric hazards), the employer may be able to show that periodic monitoring will be sufficient to ensure that the conditions in the PRCS remain within planned conditions. However, when periodic monitoring is used, it must be of sufficient frequency to ensure that atmospheric hazards are being controlled as planned and that new hazards would be detected in time to protect the employees. In some cases, continuous monitoring may not be possible; for example, continuous monitoring typically is not available when the atmospheric hazard is a particulate. Therefore, when the employer can show that periodic monitoring is adequate, or demonstrate that the technology for continuous monitoring is not available, OSHA would permit the employer to use effective periodic monitoring instead of continuous monitoring.

Paragraph (c). This proposed paragraph specifies that the employer must document the procedures used, and the monitoring results obtained, under paragraphs (a) and (b) of this proposed section by entering this information in the entry permit in accordance with paragraph (a) of proposed § 1926.1214 (Contents). OSHA believes that it is important that the entry supervisor have before him/her readily available evidence that pre-entry conditions have been checked and the results of the tests noted. Additionally, the authorized entrants will be able to check the permit to confirm that testing has been done and that safe conditions exist. The entrants and attendants would have this information readily available to facilitate identifying when current conditions in or near the confined space begin to deviate from pre-entry conditions and take appropriate precautions.

Paragraph (d). This proposed paragraph specifies the duties of the entry supervisor that the employer would have to ensure are met while employees are in the PRCS.

Paragraph (d)(1). The entry supervisor would have the duty of ensuring that entry conditions are being properly monitored and that they remain consistent with the planned conditions specified in the entry permit. By requiring the employer to have an individual on site with this authority, the likelihood that the required monitoring and adherence to planned conditions will be met, which is critical to the successful implementation of safe PRCS procedures, would be enhanced.

Paragraph (d)(2). The employer would be required to ensure that the entry supervisor removes individuals who are not authorized entrants who enter or attempt to enter a PRCS. Unauthorized entrants lack the safety training necessary to work in the PRCS, and their presence was not planned for in developing the entry permit. Their presence not only poses a danger to themselves, but may also endanger the authorized entrants in the space.

Paragraph (d)(3). The provisions of this proposed paragraph identify the conditions under which employers are to ensure that an entry supervisor evacuates authorized entrants from a PRCS as quickly as possible. For example, the employer would be required to ensure that the entry supervisor orders authorized entrants to exit the PRCS when the entry supervisor detects (such as by seeing a reading on a gas monitor) or learns of (such as by hearing a warning from an employee) one of the conditions listed in paragraph (d)(3)(i) of this proposed section. OSHA believes that each of these conditions represents potential precursors to serious safety hazards that threaten the health and well being of employees working in and near the PRCS.

Paragraph (d)(3)(i)(A). The employer would be required to ensure that the entry supervisor orders authorized entrants to exit the PRCS when the entry supervisor detects or learns of an unplanned condition (for example, a new hazard or a hazard level that exceeds the planned level) in or near the PRCS. Employees need to be removed from the PRCS as quickly as possible in such cases because the safety procedures delineated in the permit are designed to work in the context of conditions in the space staying within the planned parameters.

Paragraph (d)(3)(i)(B). The employer would be required to ensure that the entry supervisor orders the PRCS evacuated if he/she detects or learns of a sign, symptom, unusual behavior, or other effect of a hazard in authorized entrants. OSHA believes that these effects may indicate that conditions within the PRCS are deviating from the conditions specified in the entry permit. Such indications may result from a new hazard, a hazard level that exceeds planned levels, or from personal protective equipment that is not working as planned. In such circumstances, removal from the space is necessary to protect the employees.

Paragraph (d)(3)(i)(C). The employer would be required to ensure that the entry supervisor orders authorized entrants to exit the PRCS when an evacuation alarm, if used, indicates an emergency. These alarms may be atmospheric or engulfment-hazard monitor alarms or alarms manually activated by an authorized entrant or other employee. This proposed provision would provide protection to entrants by removing them from a PRCS in the event of a warning of impending danger.

Paragraph (d)(3)(i)(D). The employer would be required to ensure that the entry supervisor orders the authorized entrants to exit the space when a situation outside the PRCS occurs that could endanger the entrants. OSHA recognizes that the work environment on construction sites often involves multiple tasks occurring simultaneously, often by different contractors. Sometimes conditions or activities outside the PRCS can pose a hazard for employees inside the PRCS. Some examples are equipment or materials blocking a PRCS entrance, dangerous approaching storms, and exhaust from vehicles or generators. Another example that would trigger this proposed requirement would be a spilling of a toxic chemical outside the PRCS where there is a possibility that the chemical or its gasses could migrate into the PRCS.

Paragraph (d)(3)(ii). The employer would be required to ensure that the entry supervisor orders the authorized entrants to exit the space if the entry supervisor can no longer perform effectively and safely all of the duties specified by paragraph (e)(2) of proposed § 1926.1210 (Entry supervisor requirements), and no new entry supervisor was immediately available to serve as a replacement. OSHA believes this proposed requirement is necessary because of the importance of the entry supervisor in implementing safe entry procedures.

Paragraph (d)(4). Under this proposed paragraph, employers must ensure that the entry supervisor cancels the entry permit under the three specified circumstances. Nothing in this proposed standard precludes an entry supervisor from being given authority to cancel permits for additional reasons not specified by this proposed paragraph. However, under this proposed provision, if any of these three circumstances occurs, then the employer must ensure that the entry supervisor cancels the entry permit.

If an evacuation is required under paragraph (d)(3) of proposed § 1926.1211 (Evacuation), or any of the conditions that require a reassessment under paragraph (b) of proposed § 1926.1207 occurs, the entry supervisor would be required to cancel the entry permit. This proposed requirement is necessary because if either of these circumstances arises, safe operations cannot be assured until the entry conditions and entry procedures are reassessed. It also is necessary to cancel the entry permit once the entry operations covered by the entry permit have been completed because, at the completion of those operations, conditions in the space may have changed. Safe re-entry would, therefore, necessitate a new permit.

Paragraph (e). In the event that supervisor duties are transferred from one entry supervisor to another entry supervisor, the employer would be required to ensure that the new entry supervisor meets the requirements specified for entry supervisors before assuming these duties. OSHA recognizes that entry supervisors will need to be replaced occasionally for various reasons (for example, shift changes, lunch breaks, and regular rotations to other tasks at the job site). This proposed requirement is necessary to ensure that the new entry supervisor has the requisite knowledge and authority to assume this role.

Paragraph (e)(1). The employer would be required to ensure that a new entry supervisor meets the requirements specified in paragraph (e)(2) of proposed § 1926.1210 (Entry supervisor requirements). In such cases, it is imperative that the replacement supervisor have the requisite knowledge and authority for serving as the entry supervisor.

Paragraph (e)(2). The employer would be required to ensure that the new entry supervisor reviews the entry permit and verifies that entry conditions are consistent with the planned conditions specified in the entry permit. OSHA believes that it is important for a new entry supervisor to review the entry permit and determine whether the planned entry conditions have been maintained, just as it was important for the original entry supervisor to do so upon initial entry into the space. Furthermore, by reviewing the permit the new entry supervisor will become familiar with the current entry conditions and check for consistency with the planned entry conditions specified in the permit. By ensuring that each entry supervisor verifies entry conditions immediately upon taking responsibility for the PRCS, the overall continuity of safety can be better maintained.

Paragraph (e)(3). The employer would be required to ensure that the new entry supervisor also signs the entry permit. The purpose of this proposed requirement is to distinguish the current entry supervisor on the job site from the individual he/she has replaced. Because the entry supervisor may need to be summoned in time of emergency, it is a benefit to have information about the conditions of the PRCS, and the persons responsible for safe entry into the space, available in one place. In addition, the signature requirement underscores to the employer and the entry supervisor the importance of his/her determination that the prerequisites for safe entry listed in the permit are being met.

Paragraph (f). The provisions of this proposed paragraph list the duties an attendant must perform to maintain a safe work environment in the PRCS while any authorized entrant is in a PRCS.

Paragraph (f)(1). The employer would be required to ensure that each attendant continuously maintains an accurate count of the authorized entrants who are in the PRCS. A continuously accurate count is necessary because, in the event of an evacuation, it would be needed to ascertain if all of the entrants have exited the space.

Paragraph (f)(2). The employer would be required to ensure that the attendant has the means to accurately identify authorized entrants who are in the PRCS; paragraph (a)(2)(ii) of proposed § 1926.1214 (Personnel, equipment, and procedures) provides information regarding methods that employers may use to meet this proposed requirement. The Agency believes that this proposed requirement is necessary because in some instances, in the event of an evacuation in which not all authorized entrants exit the space, having the names of the authorized entrants can help in determining the location of the employees who remain in the PRCS, thereby assisting in their rescue.

Paragraph (f)(3). The employer would be required to ensure that an attendant remains at a location outside of the PRCS that allows the attendant to fully perform the duties and responsibilities specified in this proposed section, and does so until properly relieved by another attendant. Accordingly, the attendant would be prohibited from entering the PRCS while performing attendant duties. The reasons for prohibiting the attendant from entering the space were explained above with respect to paragraph (f) of proposed § 1926.1210 (Attendant). The attendant also is prohibited from entering for rescue purposes unless all of the following occur: He/she is relieved of his/her assignment as an attendant and replaced by another attendant, and has been trained and equipped to perform an entry rescue in accordance with proposed § 1926.1213 (PRCS—rescue criteria).

Note that, under this proposed provision, an attendant must remain outside the PRCS and therefore is prohibited from simultaneously serving as an attendant and authorized entrant. This prohibition is needed because the two functions are incompatible. The attendant must be outside the space at all times so that, if an unsafe condition arises in the space, the attendant will not be affected by that condition. As the key link in arranging for the rescue of the entrants, it is critical that the attendant not be affected by those conditions.

Paragraph (f)(4). The employer would be required to ensure that an attendant monitors entry conditions to determine if they are consistent with the entry permit. Given the speed with which some PRCS hazards can incapacitate and kill authorized entrants, it is essential that the attendant recognize any changes in entry conditions that would indicate that the PRCS must be evacuated. OSHA believes that the earlier the attendant detects changes in entry conditions, the more probable that self-rescue of the entrants can be achieved in lieu of performing other rescue procedures. Monitoring the conditions within the PRCS is a critical element in such a system.

Paragraph (f)(5). The employer would be required to ensure that the attendant communicates with authorized entrants as necessary to monitor their status and to alert them of the need to evacuate the PRCS as specified below in paragraph (g)(2) of proposed § 1926.1211. OSHA believes that an authorized entrant's communication with the attenda

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