employer simply to perform the evaluations required. The employer also
must use the results of those evaluations to select a rescue service
that will meet the requirements of this standard.
    Final Sec.  1926.1211(a)(3)(i), which is identical to the general
industry

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

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

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

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

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

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

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

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

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

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

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

Section 1926.1212--Employee Participation

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

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

Section 1926.1213--Provision of Documents to Secretary

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

IV. Agency Determinations

A. Legal Authority

    The purpose of the OSH Act, 29 U.S.C. 651 et seq., is ``to assure
so far as possible every working man and woman in the Nation safe and
healthful working conditions and to preserve our human resources.'' 29
U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary
of Labor to promulgate and enforce occupational safety and health
standards. 29 U.S.C. 654, 655(b), 658.
    A safety or health standard ``requires conditions, or the adoption
or use of one or more practices, means, methods, operations, or
processes, reasonably necessary or appropriate to provide safe or
healthful employment and places of employment.'' 29 U.S.C. 652(8). A
safety standard is reasonably necessary or appropriate within the
meaning of 29 U.S.C. 652(8) if:
     It substantially reduces a significant risk of material
harm in the workplace;
     It is technologically and economically feasible;
     It uses the most cost-effective protective measures;
     It is consistent with, or is a justified departure from,
prior Agency action;
     It is supported by substantial evidence; and
     It is better able to effectuate the purposes of the OSH
Act than any relevant national consensus standard.
    See United Auto Workers v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994)
(Lockout/Tagout II). In addition, safety standards must be highly
protective. See id. at 669.
    A standard is technologically feasible if the protective measures
it requires already exist, available technology can bring these
measures into existence, or there is a reasonable expectation for
developing the technology that can produce these measures. See, for
example, American Iron and Steel Inst. v. OSHA (Lead II), 939 F.2d 975,
980 (D.C. Cir. 1991) (per curiam). A standard is economically feasible
when industry can absorb or pass on the costs of compliance without
threatening

industry's long-term profitability or competitive structure. See
American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 530 n. 55
(1981); Lead II, 939 F.2d at 980. A standard is cost effective if the
protective measures it requires are the least costly of the available
alternatives that achieve the same level of protection. See, for
example, Lockout/Tagout II, 37 F.3d at 668.
    Section 6(b)(7) of the OSH Act authorizes OSHA to include among a
standard's requirements labeling, monitoring, medical testing, and
other information-gathering and information-transmittal provisions. 29
U.S.C. 655(b)(7). Finally, the OSH Act requires that when promulgating
a rule that differs substantially from a national consensus standard,
OSHA must explain why the promulgated rule is a better method for
effectuating the purposes of the Act. 29 U.S.C. 655(b)(8). OSHA
explains deviations from relevant consensus standards elsewhere in this
preamble.

B. Final Economic Analysis and Final Regulatory Flexibility Analysis

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

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

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

    The remainder of this FEA contains the following chapters:

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

    \28\ The average Federal tax rate for 2009 for the middle
quintile of household income was 11.1 percent (Urban Institute/
Brookings, 2012).
---------------------------------------------------------------------------

    In the second case, as discussed below, the costs employers pay in
compensation for damages or wage premiums are not fully responsive to
changes in employer-specific workplace risk. Accordingly, most
employers cover compensation for injured employees

through workers' compensation insurance. (Some very large employers may
self-insure in some states.) States highly regulate premiums for
workers'-compensation insurance and, generally, employ a combination of
a class rating and an experience rating in deriving premiums (NCCI,
2013; Ashford, 2006). States base the class rating on the average risk
for employees in the same occupations as those working for the
employer. The basis of the experience rating is the employer's actual
workers'-compensation claims over the past several years. States use
class rating for almost all very small firms and some medium-sized
firms. Very large firms use either experience rating, but it takes
several years before their insurance premiums account fully for changes
in their workplace safety performance. States assign many firms a
combination of class and experience ratings.\29\ As a result, most
employers will not receive full or prompt reductions in their workers'
reduced premiums for the expenditures they made to prevent workplace
injuries, illnesses, and fatalities. From a societal perspective, the
result is an insufficient level of worker protection.
---------------------------------------------------------------------------

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

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

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

    Having to pay wage premiums for risk is another economic incentive
for employers to mitigate occupational risk. However, wage premiums do
not respond strongly to variations in risk level due to information
asymmetries. For an employer to have an adequate incentive to implement
measures that will prevent workplace incidents, it is not sufficient
that employees simply know that their work is dangerous, or even know
quantitatively that their occupation has a specific risk. Employees
must know the exact types, and the likely quantitative effects, of
safety measures and systems used by their employers; have a reasonable
expectation that their employer will continue to provide existing
safety measures in the future; and be able to act on their knowledge of
risk by readily changing workplaces or wage demands in response to
differences in levels of risk.\31\ OSHA believes that even skilled
construction workers (including some workers injured in accidents
preventable by the final rule who fall into that category) lack such
detailed employer-specific knowledge, or the ability to act on it.
Further, construction employees who typically work at a variety of
different sites, including sites controlled by multiple employers, will
find it particularly challenging to determine future risk levels, as
these levels will vary from site to site.
---------------------------------------------------------------------------

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

    In summary, OSHA believes that: (1) Neither employers nor employees
absorb the full costs of occupational injuries and fatalities; and (2)
wage premiums and workers'-compensation insurance are not sufficiently
responsive to variations in risk to assure that employers will reduce
risk to the socially optimal level. This final rule, therefore, is
necessary to address market failures and insufficient levels of worker
safety that result from externalities and information asymmetries.
    OMB's Circular A-4 (OMB, 2003) states that ``a demonstration of
compelling social purpose and the likelihood of effective action'' may
provide the basis for a Federal regulation. The OSH Act provides a
Congressional finding as to the compelling social need for assuring
occupational safety. Congress declared that the purpose of the OSH Act
is ``to assure so far as possible every working man and woman in the
Nation safe and healthful working conditions.'' 29 U.S.C. 651(b).
Further, by emphasizing ``every working man and woman,'' Congress
expressed an interest in preventing unsafe workplaces to the extent
feasible, not simply in assuring that, on average, workplaces are safe.
Thus, while some employers are excessively cautious about risk, while
others are insufficiently cautious, OSHA's concern needs to be with the
insufficiently cautious employers.
3. Profile of Affected Industries
    This chapter presents a profile of the industries affected by the
final standard for confined spaces in construction. It includes, for
each affected industry, estimates of the number of firms,
establishments, and employees, as well as the estimated number of
establishments affected annually by the final standard. It also
includes the number and characteristics of entries into confined spaces
covered by the final standard.
    A preliminary profile of industries appeared in OSHA's Preliminary
Economic Analysis (PEA) that accompanied the proposed standard (ID-
002). For this final analysis, OSHA updated the profile to reflect the
latest available data from the Bureau of Labor Statistics, the Bureau
of the Census, the Internal Revenue Service, and other authoritative
sources and to address public comments. In addition, the Agency
organized the industries in this final analysis according to the North
American Industry Classification System (NAICS) rather than the
Standard Industry Classification (SIC) system used in the PEA. This was
necessary because OSHA wished to update the analysis using more recent
economic data and the more recent economic data uses the NAICS rather
than the SIC system.
    An analysis conducted by CONSAD Research Corporation under contract
with OSHA served as the basis for the PEA (ID-003). The CONSAD report
relied on a variety of sources, including information provided by a
panel of construction industry safety experts in 1995 regarding
characteristics of, and entries into, confined spaces for 25 categories
of construction projects, as well as compliance rates for provisions of
the proposed standard. CONSAD used F.W. Dodge data to estimate the
number of construction-project starts for each project category, by
size of project
    One commenter, the Associated General Contractors of America
(AGCA), presented an alternative economic analysis of the proposed
rule, prepared by Dr. N. Mike Helvacian, based in part on a survey of
AGCA's members (ID-222). That economic analysis suggested that the PEA
omitted five affected industries, including, by NAICS code: 238210
(Electrical Contractors); 221119 (Utilities--Other Electric Power
Generation); 221310 (Utilities--Water Supply Irrigation); 236118
(General Contractors in Residential Modeling); and 238220 (Plumbing,
Heating and Air Conditioning Contractors). OSHA included these five
industries, other than NAICS 221119 (Utilities--Other

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

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

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

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

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

Natural Gas Plants:
    Small Upgrade..................           4           3           0           2           2           7           1           2           7           2           7           4           13
    Major Renovation...............           4           3           0           8           8          27          12          64         218         768       2,611       4,608       15,667
    New Construction...............           8           7           8          28          36         265          12         728       5,358       8,728      64,238      24,135      177,631
Space Facilities:
    Small Project..................          37          37           0          15          15         555           1          43       1,591          54       1,998         196        7,252
    Medium Project.................           1           1           0          27          27          27           1          78          78          95          95         342          342
    Large Project..................           1           1           0          44          44          44           1         126         126         152         152         572          572
Manufacturing Facilities:
    Major Renovation...............       1,204           0           0           0           0           0           0           0         n/a           0         n/a           0          n/a
    New Construction...............       1,067         107           0           2           2         213          11          51       5,442       1,001     106,807      24,000    2,560,818
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Data in this column rounded to the nearest whole hour.
n/a = not applicable (no confined spaces in this category).
Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety.

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

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

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

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

Table IV-5--Profile of Very Small Entities (Fewer Than 20 Employees) Within Industries Affected by the Final Standard on Confined Spaces in Construction
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Total number                      Estimated       Estimated
                                                                           Total number         of             Total       annual number     number of
              NAICS                               Industry                  of firms in   establishments   employment in    of projects   establishments
                                                                           industry-size   in  industry-   industry-size   with confined     affected
                                                                             grouping      size grouping     grouping         spaces         annually
--------------------------------------------------------------------------------------------------------------------------------------------------------
221310...........................  Water Supply and Irrigation Systems..           3,413           3,428          12,676              11              11
236115...........................  New Single-Family Housing                      59,376          59,385         185,153             580             580
                                    Construction (except Operative
                                    Builders).
236116...........................  New Multifamily Housing Construction            3,760           3,761          15,035             271             271
                                    (except Operative Builders).
236118...........................  Residential Remodelers...............          97,291          97,294         258,012           7,105           7,105
236210...........................  Industrial Building Construction.....           3,225           3,227          16,136               8               8
236220...........................  Commercial and Institutional Building          33,977          33,992         174,975           1,329           1,329
                                    Construction.
237110...........................  Water and Sewer Line and Related               11,242          11,242          57,685             642             642
                                    Structures Construction.
237130...........................  Power and Communication Line and                3,973           3,976          21,403              17              17
                                    Related Structures Construction.
237310...........................  Highway, Street, and Bridge                     8,011           8,014          42,634             601             601
                                    Construction.
237990...........................  Other Heavy and Civil Engineering               4,321           4,323          18,871             166             166
                                    Construction.
238190...........................  Other Foundation, Structure, and                5,244           5,244          19,607             706             706
                                    Building Exterior Contractors.
238210...........................  Electrical Contractors and Other               71,144          71,156         297,375             544             544
                                    Wiring Installation Contractors.
238220...........................  Plumbing, Heating, and Air-                    89,245          89,255         388,409             655             655
                                    Conditioning Contractors.
238310...........................  Drywall and Insulation Projects......          18,832          18,837          77,284             336             336
238910...........................  Site Preparation Contractors.........          37,690          37,691         139,196              64              64
                                                                         -------------------------------------------------------------------------------
                                      Total.............................         450,744         450,825       1,724,451          13,035          13,032
--------------------------------------------------------------------------------------------------------------------------------------------------------

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

         Table IV-6--Estimated Compliance Rates for Construction Projects Affected by OSHA's Final Standard for Confined Spaces in Construction
                                                                  [By project category]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Written
                                                    Entrant                   programs     Classify
                                                    training   Information  (and formal   spaces and    Lockout/    Mechanical   Attendants     Rescue
                Project category                      (a)        exchange      annual       issue        tagout    ventilation   (percent)    capability
                                                   (percent)    (percent)     review)      permits     (percent)    (percent)                 (percent)
                                                                             (percent)    (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Commercial and Public Buildings:
    Small Project...............................           65           75           50           83           83           86           83          N/A
    Medium Project..............................           83           75           70           93           86           90           86           79
    Large Project...............................           86           80           80           97           93           93           93           86
Warehouses:
    Small Project...............................           62           50           50           69           65           48          100          N/A
    Medium Project..............................           62           50           50           69           86           48          100          N/A
    Large Project...............................           62           50           50           69           86           48          100          N/A
Health Facilities and Laboratories:
    Small Project...............................           58           65           25           58           58           58          100          N/A
    Medium Project..............................           58           65           25           58           58           58          100          N/A
    Large Project...............................           58           65           25           58           58           58          100          N/A
Detention Facilities:
    New Construction............................          100           20            0           45          N/A           93           65           86
Athletic and Entertainment Facilities:
    All Projects................................           33           75           20           47           37           47          N/A          N/A
Airline Terminals:
    New Construction............................          100           20            0           45          N/A           93           65           86
Aircraft Service:
    All Projects................................           34           75           20           48          N/A           48          N/A          N/A
Auto, Bus, and Truck Service:
    Small Renovation............................           38           20           10           65          N/A           31          N/A           72