[Federal Register: November 28, 2007 (Volume 72, Number 228)]
[Proposed Rules]
[Page 67351-67425]
[DOCID:fr28no07-17]

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Part II

Department of Labor

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Occupational Safety and Health Administration

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29 CFR Part 1926

Confined Spaces in Construction; Proposed Rule

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket ID-OSHA-2007-0026]
RIN 1218-AB47

Confined Spaces in Construction

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

ACTION: Proposed rule.

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

DATES: Submit comments (including comments to the information-
collection (paperwork) determination described under the section titled
SUPPLEMENTARY INFORMATION of this notice), hearing requests, and other
information by January 28, 2008. All submissions must bear a postmark
or provide other evidence of the submission date. (See the following
section titled ADDRESSES for methods you can use in making
submissions.)

ADDRESSES: Comments and hearing requests may be submitted as follows:
     Electronic: Comments may be submitted electronically to
http://www.regulations.gov, which is the Federal eRulemaking Portal.
Follow the instructions online for submitting comments.
     Facsimile: OSHA allows facsimile transmission of comments
and hearing requests that are 10 pages or fewer in length (including
attachments). Send these documents to the OSHA Docket Office at (202)
693-1648; hard copies of these documents are not required. Instead of
transmitting facsimile copies of attachments that supplement these
documents (e.g., studies, journal articles), commenters may submit
these attachments, in triplicate hard copy, to the OSHA Docket Office,
Technical Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200
Constitution Ave., NW., Washington, DC 20210. These attachments must
clearly identify the sender's name, date, subject, and Docket ID (i.e.,
OSHA-2007-0026) so that the Agency can attach them to the appropriate
document.
     Regular mail, express delivery, hand (courier) delivery,
and messenger service: Submit three copies of comments and any
additional material (e.g., studies, journal articles) to the OSHA
Docket Office, Docket ID OSHA-2007-0026 or RIN No. 1218-AB47, Technical
Data Center, Room N-2625, OSHA, Department of Labor, 200 Constitution
Ave., NW., Washington, DC 20210; telephone:<PHONE_NUMBER>. (OSHA's TTY
number is<PHONE_NUMBER>.) Please contact the OSHA Docket Office for
information about security procedures concerning delivery of materials
by express delivery, hand delivery, and messenger service. The hours of
operation for the OSHA Docket Office are 8:15 a.m. to 4:45 p.m., e.t.
    Instructions: All submissions must include the Agency name and the
OSHA Docket ID (i.e., OSHA-2007-0026). Comments and other material,
including any personal information, are placed in the public docket
without revision, and will be available online at http://
www.regulations.gov. Therefore, the Agency cautions commenters about
submitting statements they do not want made available to the public, or
submitting comments that contain personal information (either about
themselves or others) such as social security numbers, birth dates, and
medical data.
    Docket: To read or download comments or other material in the
docket, go to http://www.regulations.gov or to the OSHA Docket Office
at the address above. Documents in the docket are listed in the http://
www.regulations.gov index; however, some information (e.g., copyrighted
material) is not publicly available to read or download through this
Web site. All submissions, including copyrighted material, are
available for inspection and copying at the OSHA Docket Office. Contact
the OSHA Docket Office for assistance in locating docket submissions.

FOR FURTHER INFORMATION CONTACT:  General information and press
inquiries: Contact Mr. Kevin Ropp, Director, Office of Communications,
OSHA, U.S. Department of Labor, Room N-3647, 200 Constitution Avenue,
NW., Washington, DC 20210; telephone<PHONE_NUMBER> or fax (202) 693-
1634.
     Technical inquiries: Contact Mr. Garvin Branch,
Directorate of Construction, Room N-3468, OSHA, U.S. Department of
Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone
(202) 693-2020 or fax<PHONE_NUMBER>.
     Copies of this Federal Register notice: Available from the
OSHA Office of Publications, Room N-3101, U.S. Department of Labor, 200
Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-
1888.
     Electronic copies of this notice: Go to OSHA's Web site
(http://www.osha.gov), and select ``Federal Register,'' ``Date of
Publication,'' and then ``2007.''
     Additional information for submitting documents: See
section V.I. (``Public Participation'') of this notice.

SUPPLEMENTARY INFORMATION:

I. General

A. Table of Contents

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

I. General
    A. Table of Contents
    B. Hearing
II. Background
    A. History
    B. Need for a Rule Regulating Confined Spaces in Construction
III. Summary and Explanation of the Proposed Standard
IV. Issues for Comment
V. Procedural Determinations
    A. Legal Authority
    B. Summary of the Preliminary Economic Analysis and Initial
Regulatory Flexibility Analysis
    C. OMB Review Under the Paperwork Reduction Act of 1995
    D. Federalism
    E. State-Plan States
    F. Unfunded Mandates Reform Act
    G. Applicability of Existing Consensus Standards
    H. Review of the Proposed Standard by the Advisory Committee for
Construction Safety and Health (ACCSH)
    I. Public Participation--Comments and Hearings

B. Hearing

    Requests for a hearing should be submitted to the Agency as set
forth above under DATES and ADDRESSES.

II. Background

A. History

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

19266 \1\). The ANPR posed 31 questions concerning confined-space
hazards in the construction industry, and the Agency received 75
comments in response to these questions. However, OSHA took no further
action on this regulatory initiative at the time.
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    \1\ ``FR'' refers to ``Federal Register,'' with the volume
number (for example, 45) before, and the page number (for example,
19266) after, ``FR.''
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    OSHA issued the general industry confined-spaces rule (29 CFR
1910.146) on January 14, 1993 (58 FR 4462), as well as a similar rule
for the shipyard industry 29 CFR 1915.7, 11-16) on July 25, 1994 (59 FR
37816). The general industry standard requires employers to classify
hazardous confined spaces as ``permit-required confined spaces,'' and
to implement specific procedures to ensure the safety of employees who
enter them.
    It contains detailed procedures for developing a written confined-
space program, monitoring atmospheric hazards, training employees,
preventing unauthorized employees from entering these spaces, providing
for both non-entry and entry rescue, and maintaining records.
    The general industry standard specifies a limited exception from
some of the permit-required confined-space requirements when the only
hazard in a confined space is an atmospheric hazard and ventilation
equipment will control the atmospheric hazard at safe levels. It also
provides protection to employees from non-atmospheric (for example,
physical) hazards within non-permit-required, as well as permit-
required, confined spaces. However, the general industry standard does
not apply to construction employers, and, as such, does not specify the
appropriate level of employee protection based on the hazards created
by construction activities performed in confined spaces. Table 1
provides a description of the key differences between the general
industry standard and the proposed standard for confined spaces in
construction.

 Table 1.--Key Differences in Regulatory Provisions between the General
              Industry and Proposed Construction Standards
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       General industry standard          Proposed construction standard
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                      Organization of the Standard
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The standard begins with requirements    The proposed standard takes a
 for entering PRCSs.                      step-by-step approach,
                                          explaining how to assess
                                          hazards, determine the
                                          classification for the space,
                                          and how to safely enter it.
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                          Information Exchange
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The standard requires a host employer    The proposed standard requires
 to coordinate entry operations with a    the controlling contractor to
 contractor when the host employer and    coordinate entry operations
 the contractor both have employees       among contractors who have
 working in or near a permit space.       employees in a confined space
                                          regardless of whether or not
                                          the controlling contractor has
                                          employees in the confined
                                          space.
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                  Confined Space with Hazards Isolated
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Does not address working in confined     Allows employers to establish
 spaces in which the hazard has been      an Isolated-Hazard Confined
 isolated.                                Space by isolating or
                                          eliminating all physical and
                                          atmospheric hazards in a
                                          confined space.
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          Controlled-Atmosphere Permit-Required Confined Space
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Monitoring required as necessary.......  Continuous monitoring required
                                          unless the employer
                                          demonstrates that periodic
                                          monitoring is sufficient.
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                 Permit-Required Confined Spaces (PRCS)
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No explicit requirement for entry        Explicit requirement for entry
 supervisor to monitor PRCS conditions    supervisor to monitor PRCS
 during entry.                            conditions during entry.
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Requires a written PRCS plan...........  No written plan required when
                                          employer maintains a copy of
                                          the standard at the worksite.
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No specific early-warning requirements   Early-warning requirement for
 for up-stream hazards.                   up-stream hazards in sewer-
                                          type spaces.
------------------------------------------------------------------------

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

more emphasis in this proposed standard on assessing hazards at sewer
worksites than it did in the general industry confined-spaces standard.
    The differences in employee and worksite characteristics between
the construction industry and general industry prompted OSHA to develop
a proposed standard for regulating confined spaces in the construction
industry that varied substantially from the general industry confined-
spaces standard as described above in Table 1 of this preamble. Because
of the regulatory differences between this proposed standard and the
general industry standard, the general industry standard would not be
considered a substitute for this proposed construction standard except
where the provisions are essentially the same.
    In 1993, as part of the litigation activity surrounding the newly
promulgated general industry standard, OSHA agreed in a settlement with
the United Steel Workers of America to issue a proposed rule to extend
confined-space protection to construction employees. On February 18,
1994, OSHA submitted a draft proposed standard for confined spaces in
construction to the Advisory Committee for Construction Safety and
Health (ACCSH) for comment. ACCSH established a work group on March 22,
1994 to address the OSHA draft proposed standard and report its
findings to the full committee.
    ACCSH adopted the work group report on May 17, 1994, and
recommended that OSHA incorporate it into a rulemaking docket. In this
report, ACCSH noted that the general industry standard did not meet the
needs of the construction industry because it did not provide adequate
information to contractors for distinguishing among the different types
of confined spaces, or to determine the appropriate level of employee
protection based on the hazards resulting from construction activities
performed in confined spaces. In addition, ACCSH found that confined
spaces encountered or created in construction often are not identified
or classified prior to the beginning of a construction project.
    Consequently, ACCSH established a work group to draft a proposed
standard that would meet the unique needs of the construction industry.
The draft proposed standard emphasized identifying different types of
confined spaces encountered in construction (for example, where the
hazard has been isolated, where atmospheric hazards are controlled at
safe levels, and permit-required spaces), inter-contractor information
exchange, and the detailed protections necessary to eliminate or
control specific hazards.
    As the result of the ACCSH work group review, a draft proposed
standard for confined spaces in construction was submitted to OSHA in
the winter of 1996 and ACCSH recommended that it be used as a proposed
confined-spaces standard. OSHA determined that the ACCSH draft proposed
standard needed to be reworked to make it easier to understand,
especially for small employers who do not employ a separate safety
staff. The Agency also determined that certain hazards, such as those
encountered in sewer-construction work, were not adequately addressed.
Consequently, OSHA determined that it was necessary to develop a new
draft proposed standard.
    In 1998, OSHA completed a new draft proposed standard but
discovered that there were several issues that needed to be resolved
before the draft proposed standard could be finalized. To get feedback
from the construction community, OSHA held three stakeholders meetings
in October of 2000 across the country. The topics discussed were: (1)
Typical confined spaces encountered in construction; (2) whether an
early-warning system should be required for spaces in which an
engulfment hazard cannot be isolated (such as in some sewer
situations); (3) the need for, and cost of, continuous monitoring for
atmospheric hazards; (4) how a confined-spaces standard for
construction could accommodate the needs of small businesses; and (5)
whether an attendant should be permitted to monitor more than one
confined space at a time.
    In late 2003, OSHA completed the new draft proposed standard and
convened a panel under the Small Business Regulatory Enforcement
Fairness Act (SBREFA) to solicit comments on it from small business
entities. The SBREFA panel conducted two conference-call discussions,
which were open to the public, in which the small business entities
were invited to express their concerns about the draft proposed
standard and submit written comments to the record that covered the
issues. The SBREFA panel then submitted its recommendations to the
Assistant Secretary in November 2003.
    This proposed confined-spaces standard for construction reflects
input from stakeholder meetings, ACCSH, and the SBREFA review process.
For example, a provision that would have addressed working in
hazardous-enclosed spaces (spaces designed for human occupancy but
subject to a hazardous atmosphere), which small business entities
participating in the SBREFA review process considered burdensome and
unnecessary, was eliminated because OSHA believes that existing
construction standards (for example, 29 CFR 1926.55) adequately address
these hazards. This proposed standard uses a confined-space
classification approach that is influenced by ACCSH recommendations.
The proposed standard is organized as chronologically as possible to
help guide the employer, from its initial encounter with a potential
confined space, through the steps necessary to ensure that employees
are adequately protected. In addition, it addresses the need for
coordination and information exchange at construction sites, which
typically have multiple employers.

B. Need for a Rule Regulating Confined Spaces in Construction

    Fatality and injury data, OSHA enforcement experience, and advice
from the Advisory Committee on Construction Safety and Health (ACCSH)
indicate that the existing construction standard for confined and
enclosed spaces at 29 CFR 1926.21(b)(6) does not adequately protect
construction employees in confined spaces from atmospheric, mechanical,
and other hazards. In this regard, the existing construction standard
only requires employers to: (1) Instruct their employees about
confined-space hazards, and (2) comply with other OSHA construction
standards that address confined-space hazards. For situations in which
none of these construction standards apply, the employer would have to
comply with the general-duty requirement of the Occupational Safety and
Health Act of 1970 to ``furnish to each of [its] employees employment
and a place of employment which are free from recognized hazards that
are causing or are likely to cause death or serious physical harm to
[its] employees.'' (29 U.S.C. 654.) Therefore, where the existing
construction confined-spaces standard applies, it requires only
training of employees who work in confined spaces--it does not address
how trained employees are to be protected while working in such spaces.
    OSHA has preliminarily determined that employees in the
construction industry who perform work in confined spaces face a
significant risk of death or serious injury, and that this proposed
rule would substantially reduce that risk. At present, approximately
20,000 establishments have employees entering at least one confined
space as defined by the proposed rule. There are an estimated annual
total of 641,000

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

III. Summary and Explanation of the Proposed Standard

Section 1926.1201--Introduction

    Paragraph (a). This paragraph states the general purpose of the
proposed rule. This standard would cover employers who have employees
that work in or near a confined space that is subject to a hazard.
Appropriate precautions are needed to ensure the safety of these
employees. This proposed paragraph also defines a confined space as: a
space that is large enough and arranged in such a manner that employees
can enter the space, has limited or restricted means of entry/exit and
is not designed for continuous employee occupancy.
    Spaces with these characteristics are prone to containing hazards
that tend to be unseen and unrecognized until it is too late to escape.
Consequently, it is necessary to assess these spaces to see if there
are actual or potential hazards beforehand, and to implement procedures
designed both to protect construction employees from such hazards and
to rescue them in the event the protective measures do not work as
anticipated.
    Paragraph (b). Employers would be required to determine the
classification of each confined space that is subject to a hazard.
Employers must classify such spaces as one of four types specified by
this proposed standard. The classification is based on factors such as
the type and level of hazards present in the confined space. If the
employer determines that a confined space in its natural state is not
subject to a hazard, it would not be classified. (Note that in this
proposed rule, the term ``hazard'' includes both existing hazards and
hazards that have a reasonable probability of occurring.) The employer
would not have to take any further action unless one of the indications
specified in proposed Sec.  1926.1207 (Reassessment) occurred, in which
case the employer would be required to take certain actions, including
a reassessment of the space. The monitoring of conditions within a
confined space is an ongoing process and is necessary for the employer
to ensure the safety of its employees while working within that space.
    Paragraph (b)(1). This proposed paragraph lists the four
classifications of confined spaces ((b)(1)(i) through (b)(1)(iv)).
    Paragraph (b)(1)(i). A Continuous System-Permit-Required Confined
Space (CS-PRCS) is a confined space that is a part of, and contiguous
with, a larger confined space (for example, sewers) that the employer
cannot isolate from the larger confined space. It is also subject to a
potential hazard release from the larger confined space that would
overwhelm personal protective equipment and/or hazard controls,
resulting in a hazard that is immediately dangerous to life and health.
The proposed rule includes the CS-PRCS classification to ensure that
the employer recognizes that, as the construction industry has
recognized, there are difficulties associated with isolating the
hazards of other larger spaces connected to the CS-PRCS. Special
precautions are necessary, in addition to the other PRCS requirements,
to ensure adequate protection of the employees.
    Paragraph (b)(1)(ii). A Permit-Required Confined Space (PRCS) is a
confined space that has any one of the following: A hazardous
atmosphere that ventilation will not reduce to and maintain at a safe
level; inwardly-converging, sloping, or tapering surfaces that could
trap or asphyxiate an employee; or an engulfment hazard or other
physical hazard.
    Paragraph (b)(1)(iii). A Controlled-Atmosphere Confined Space
(CACS) is a confined space where ventilation alone will control its
atmospheric hazards at safe levels. Note also that a confined space
cannot be classified as a CACS if it has a physical hazard (unless that
hazard has been isolated). The proposed rule includes the CACS as a
separate classification from the PRCS because fewer precautions are
needed to ensure the safety of its employees than for PRCSs, but more
precautions are needed than for an Isolated-Hazard Confined Space
(discussed below under paragraph (b)(1)(iv)) because the atmospheric
hazard is controlled but not eliminated. This option is provided to the
employer to allow it to provide a level of employee protection
specifically tailored to, and commensurate with, the hazards within the
confined space. In a space properly classified as a CACS, OSHA believes
that the use of the CACS measures, as compared with the PRCS measures,
would be as protective and typically more cost effective.
    Paragraph (b)(1)(iv). An Isolated-Hazard Confined Space (IHCS) is a
confined space in which the employer has isolated all physical and
atmospheric hazards. ``Isolated'' means the elimination or removal of a
physical or atmospheric hazard by preventing its release into a
confined space. Isolation includes, but is not limited to, the
following methods: Blanking and blinding; misaligning or removing
sections of lines, pipes, or ducts; a double-block-and-bleed system;
locking out or tagging out energy sources; machine guarding; and
blocking or disconnecting all mechanical linkages. Methods must be
implemented to ensure that the hazards remain isolated. Isolation
methods provide the highest degree of assurance that the hazard will be
kept away from the employees in the space, since it consists of methods
that do not depend on the continued, proper operation of machinery
(such as ventilation equipment) or personal protective equipment (such
as respirators). Consequently, this classification of space presents
the lowest hazard level to the employees, and is similar to a ``non-
permit space'' described in 29 CFR 1910.146(c)(7) of the general
industry standard.
    Paragraph (b)(2). This proposed provision gives the employer the
option to classify a confined space in any classification, so long as
all of the characteristics and requirements for that classification are
met. The Agency considered proposing that the employer be required to
try to make the space qualify for the lowest possible classification.
However, after considering comments from small business entities
received through the Small Business Regulatory Enforcement Fairness Act
(SBREFA) review, OSHA decided to give employers more flexibility;
employers may use any of the classifications, as long as the
requirements for the selected classification are met. OSHA believes it
is important to allow employers the flexibility to classify confined
spaces based on the conditions or circumstances of individual work
environments.
    The one exception is that a space with the characteristics of a
Continuous

System-Permit-Required Confined Space cannot be given a different
classification. Where a confined space meets the definition of a CS-
PRCS, the employer must classify the space as such and meet all of its
requirements. To meet the definition of a CS-PRCS, the employer must
have determined that the confined space could not be isolated from its
connection to a larger space and its associated hazards. OSHA believes
that since the potential hazards of the larger space will always exist,
the additional CS-PRCS requirements must be met to address the hazards.
Classifying the space to any lower classification would leave the
employees exposed to an engulfment or atmospheric hazard that could
originate in the connected, larger space (that is, the configuration of
CS-PRCSs is such that an employer cannot safely eliminate or isolate
the potential hazards so as to meet the criteria for a lower
classification).
    Paragraph (c). The proposed standard specifies precautions that
must be followed if the employees have to enter the space to determine
its classification (see paragraph (b) of proposed Sec.  1926.1204).
These precautions are necessary because the characteristics and extent
of the hazards that may be present would not yet be known at that
point.
    Paragraph (d). If the contractor makes a determination under
proposed Sec.  1926.1204 (Worksite evaluation, information, exchange,
and coordination) that the confined space is not subject to any
hazards, the confined space would not need to be classified. However,
if subsequent to that determination any of the indications specified in
proposed Sec.  1926.1207 (Reassessment) were to occur, the contractor
would be required to conduct a reassessment as specified in proposed
Sec.  1926.1207. This is necessary to ensure that there continue to be
no hazards present when employees are in an unclassified confined
space.

Section 1926.1202--Scope

    The proposed standard provides minimum safety and health
requirements and procedures to protect employees who work in or near
confined spaces. It addresses how to protect employees from confined-
space hazards. The proposed standard includes requirements for
training, hazard analysis, classification, entering, working, exiting,
and rescue for confined spaces of various hazard levels.
    This proposed standard does not replace the more hazard-specific
construction standards that are already in place. Rather, this proposed
standard is designed to provide additional protections needed to deal
with hazards that may arise when employees are working in or near a
confined space.
    Paragraph (a). This paragraph identifies which employers are
covered by the proposed standard. Employers who are engaged in
construction work and have confined spaces at their job sites are
subject to the provisions of the proposed standard. Further, employers
who have confined spaces on their job site and hire subcontractors to
operate within those spaces also would have to meet specific
requirements in the proposed standard. The note to this paragraph
includes a non-exclusive list of potential confined spaces that
commonly occur on a construction worksite. This list provides examples
for employers who may be unfamiliar with confined spaces in
construction.
    Paragraph (b). This paragraph explicitly excludes construction work
regulated by 29 CFR part 1926 subpart Y (Diving), non-sewer
construction work regulated by 29 CFR part 1926 subpart P (Excavation),
and non-sewer construction work regulated by 29 CFR part 1926 subpart S
(Underground Construction, Caissons, Cofferdams and Compressed Air)
from the scope of this proposed standard. Employers operating under one
of the three listed exemptions are not required to follow this proposed
standard for work within a confined space. Employers who hire
contractors to perform work covered by these three standards also are
excluded from coverage under this proposed standard. The reason for
these exclusions is that the Agency believes that the existing OSHA
requirements applicable to these activities are sufficient to address
and protect employees from the confined-space hazards in those
situations.
    Paragraph (c). This provision would require employers, when an
activity is covered under both the scope of this proposed standard and
the provisions in another OSHA construction standard related to
confined-space hazards, to comply with those provisions as well as the
applicable provisions in this proposed standard. For example, while
subpart D in 29 CFR part 1926 contains requirements for ventilation
when working in potentially hazardous atmospheric conditions, it does
not address other equipment or workplace conditions that are covered by
this proposed standard. Also, some construction standards require the
use of specified systems during operations in a confined space, but do
not set criteria that those systems must meet; in these cases, the
requirements of both the existing construction standard and this
proposed standard would apply. For example, 29 CFR part 1926 subpart J
(Welding) requires that the employer provide a lifeline when an
employee is welding in a confined space entered through a manhole or
other small opening. When working in a PRCS, 29 CFR part 1926 subpart J
also sets criteria for the use of a lifeline system in the confined
space, but does not set criteria for the use of rescue services or
provide any other permit-required space procedures to protect the
employees. Under those circumstances, the rescue service and entry
procedures must meet the requirements of this proposed standard, while
the lifeline system would be required to meet the criteria in 29 CFR
part 1926 subpart J.
    Appendix A of the proposed standard contains a list of existing
provisions found in other OSHA construction standards under 29 CFR part
1926 that address work done in confined spaces. This list contains only
current construction provisions, and does not preclude the inclusion of
future confined-space provisions. The purpose of the information in
this appendix is to help employers easily identify other requirements
relevant to confined-space hazards that may also have to be met.
    Paragraph (d). This proposed provision clarifies that the duties of
a controlling contractor specified in paragraph (a) of proposed Sec.
1926.1204 are not exclusive. Proposed Sec.  1926.1204(a) delineates a
controlling contractor's duties with respect to the exchange of
information concerning confined spaces with subcontractors on multi-
employer worksites and does not limit or otherwise affect a controlling
contractor's responsibilities under the OSH Act. See OSHA Directive No.
CPL 2-00.124 (Dec. 10, 1999).

Section 1926.1203--Definitions

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

explanation of the defined terms, justifies any differences between the
proposed definitions and those contained in 29 CFR 1910.146 and ANSI
117.1-2003, and addresses comments received during the SBREFA process.
    ``Continuous System-Permit-Required Confined Space (CS-PRCS)'' is a
Permit-Required Confine Space that has all of the following
characteristics: Is part of, and contiguous with, a larger confined
space (for example, sewers); the employer cannot isolate it from the
larger confined space; and is subject to a potential hazard release
from the larger confined space that would overwhelm personal protective
equipment and/or hazard controls, resulting in a hazard that is
immediately dangerous to life and health. This classification of space
was mentioned in 29 CFR 1910.146(c)(5)(i), and a sample Permit-Required
Space program for sewers was provided in Appendix C of that standard.
OSHA believes it is important to define this classification of confined
space in a way that emphasizes that it is subject to a potential hazard
release, such as an engulfment hazard, that the employer will not be
able to control.
    ``Controlled-Atmosphere Confined Space (CACS)'' is a confined space
that has all of the following characteristics: Contains no physical
hazards or only isolated physical hazards; and uses ventilation alone
to control atmospheric hazards at safe levels. This term was added to
designate a distinct type of confined space in which only one type of
hazard (atmospheric) is present that requires a specific type of
employee protection--active control of the atmospheric hazard at safe
levels by ventilation equipment. OSHA believes that the space described
by this definition is similar to the space defined by the alternate
procedures specified by paragraph (c)(5) of the general industry
standard for confined spaces. Both of these spaces involve conditions
in which atmospheric hazards are merely controlled by ventilation
instead of eliminated completely. Therefore, if the ventilation system
stops or malfunctions, the atmospheric hazards could reemerge in the
space. Unlike the general industry standard, the proposed standard for
construction assigns a name to the space. OSHA believes that naming the
space a Controlled-Atmosphere Confined Space will effectively alert
employees, especially employees who have little or no experience with
these spaces, to the possibility that atmospheric hazards could
reemerge in the space if the ventilation system stops or malfunctions.
    ``Controlling contractor'' is the employer that has overall
responsibility for construction at the worksite. In addition, the note
to this definition explains that if a host employer has overall
responsibility for construction at the worksite, then it is both a host
employer and controlling contractor. It is a common practice in the
construction industry for there to be a number of contractors working
at a construction site at the same time. Also, there often is one
contractor that has overall authority of the construction site,
including the authority to change worksite conditions and alter work
practices with regard to safety. Under this proposed standard, there
are specific duties that would apply to the controlling contractor, as
distinguished from the host employer and the contractor. Consequently,
there is a need to define the term ``controlling contractor.''
    For the purposes of this preamble, the term ``employer'' refers to
an employer whose employees are exposed to confined-space hazards.
Employers whose own employees are exposed to a hazard addressed by this
proposed standard would be required to comply with the provisions that
identify an obligation on ``the employer.'' In addition, other
employers may also have responsibilities with respect to such
provisions through operation of OSHA's multi-employer doctrine.
    When a proposed provision designates the ``host employer'' as the
entity responsible for the requirement, only an employer that meets the
proposed definition of a ``host employer'' would be responsible for
that requirement. Similarly, when a proposed provision designates the
``controlling contractor'' or the ``contractor'' as the entity
responsible, only an employer meeting the proposed definitions of
``controlling contractor'' or ``contractor'' would be responsible for
compliance with the provision. Note that an employer who fits the
definition for more than one of these roles would be required to comply
with the obligations that pertain to each role. The Agency requests
public comment on whether this explanation is clear.
    ``Early-warning system'' is the method used to alert attendants
monitoring a CS-PRCS and authorized entrants in a CS-PRCS that an
engulfment hazard may be developing. Examples of early-warning systems
include, but are not limited to: alarms activated by remote sensors;
and lookouts with equipment for immediately communicating with the
authorized entrants and attendants. The Agency believes these systems
will protect employees from non-isolated engulfment hazards by
providing an effective means of warning attendants and authorized
entrants that an engulfment hazard may be developing ``upstream'' of
the work area, thereby permitting sufficient time for the authorized
entrants to safely exit the CS-PRCS. As illustrated by the non-
exclusive list of examples of early-warning systems within this
definition, employers would have flexibility as to what type of early-
warning system to use for continuously monitoring such engulfment
hazards. However, as stated in paragraphs (a)(2) and (b)(2) of proposed
Sec.  1926.1215, whatever warning system is selected must alert
authorized entrants and attendants in sufficient time for the
authorized entrants to safely exit the CS-PRCS.
    ``Hazardous atmosphere'' means an existing or potential atmosphere
consisting of at least one of the following: A flammable gas, vapor, or
mist in excess of 10 percent of its lower flammable limit; an airborne
combustible dust at a concentration that meets or exceeds its lower
explosive limit; an atmospheric oxygen concentration below 19.5 percent
(``oxygen deficient'') or above 23.5 percent (``oxygen enriched''); an
airborne concentration of a substance that exceeds the dose or exposure
limit specified by an OSHA requirement; and an atmosphere that presents
an immediate danger to life or health. These levels duplicate those in
the definition of ``hazardous atmosphere'' in the general industry
confined-spaces standard. The definition clarifies that the concept of
a hazardous atmosphere includes one that has a potential for becoming
hazardous, since it is necessary to anticipate the potential occurrence
of such hazards to effectively protect employees working in a confined
space.
    ``Host employer'' owns or manages the property on which
construction is taking place. As explained in the definition of
``controlling contractor,'' this definition was added to clarify the
distinction between a ``host employer,'' a ``contractor,'' and a
``controlling contractor'' as each of these entities would have
specific obligations under this proposed standard. (See, also, the
discussion under ``controlling contractor'' above.)
    ``Inspection information'' means information obtained about a space
from blueprints, schematics, and/or similar documents, documents
regarding previous confined-space entries, or physical inspection/
testing. This definition was added in response to SBREFA comments to
clarify the types of documents and information that

would be considered relevant to making the hazard assessments required
by this proposed standard without entering the space.
    ``Isolated-Hazard Confined Space (IHCS)'' is a confined space in
which the employer has isolated all physical and atmospheric hazards.
This classification differs from a ``non-permit space'' in the general
industry standard that, by definition, does not include confined spaces
that have the potential to contain atmospheric hazards capable of
causing death or serious physical harm. The proposed classification of
IHCS includes confined spaces where that potential continues to exist.
In an IHCS, the potential exists because the atmospheric hazard is only
``isolated,'' which means that its release is only being prevented. The
use of the term ``isolated'' in this context is consistent with the
definition of ``isolation'' in the current American National Standard
Institute (ANSI)/American Society of Safety Engineers (ASSE) standard
titled ``Safety requirements for Confined Spaces,'' ANSI/ASSE Z117.1-
2003. This ANSI/ASSE standard describes the isolation process in part
as follows:

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

    ``Limited or restricted means for entry and exit'' refers to a
condition that has a potential to impede an employee's movement into or
out of a space. Such conditions include, but are not limited to poor
illumination, slippery floors, inclining surfaces and ladders. This
phrase is used to describe one of the physical characteristics of a
confined space and was defined to give the phrase greater clarity.
    ``Permit-Required Confined Space (PRCS)'' is a confined space that
has any one of the following characteristics: A hazardous atmosphere;
an inwardly converging, sloping, or tapering surfaces that could trap
or asphyxiate an employee (for example, a space between walls that
narrows towards the base, including, but not limited to, funnels and
hoppers); or an engulfment hazard or other physical hazard. This
definition is similar to the definition in the general industry
standard, but includes more examples of dangerous configurations of
confined spaces.
    ``Physical hazard'' means an existing hazard that can cause death
or serious physical harm in or near a confined space, or a hazard that
has a reasonable probability of occurring in or near a confined space,
and that includes, but is not limited to: Explosives (as defined by
paragraph (n) of 29 CFR 1926.914 (definition of ``explosive''));
mechanical, electrical, hydraulic, and pneumatic energy; radiation;
temperature extremes; engulfment; noise; and inwardly converging
surfaces. ``Physical hazard'' also refers to chemicals that can cause
death or serious physical harm through skin or eye contact (rather than
through inhalation). This definition was added to help employers better
understand the characteristics of this type of hazard.
    ``Planned conditions'' are the conditions under which authorized
entrants can work safely in a PRCS or CS-PRCS, including both hazard
levels and methods of employee protection. The Agency considered using
``acceptable entry conditions,'' the term used in the general industry
standard, for this concept. However, OSHA is concerned that employers
and employees, especially those who are not often engaged in
construction work in confined spaces, may think ``acceptable'' means
that conditions are safe for entry without the use of personal
protective equipment or other protective measures. OSHA believes that
the term ``planned conditions'' more accurately expresses the concept
that a variety of actions may be needed, including the use of
protective measures, for employees to be able to work safely in the
confined space.
    ``Serious physical harm'' means an impairment in which a body part
is made functionally useless or is substantially reduced in efficiency.
Such impairment may include loss of consciousness or disorientation,
and may be permanent or temporary, or chronic or acute. Injuries
involving such impairment would usually require treatment by a
physician or other licensed health-care professional while an illness
resulting in serious physical harm could shorten life or substantially
reduce physical or mental efficiency by impairing a normal bodily
function or body part. OSHA adapted this definition of ``serious
physical harm'' from its Field Inspection Reference Manual, chapter
III, section C.2.b(2)(c).
    ``Simulated Permit-Required Confined Space'' is a confined space or
a mock-up of a confined space that has all of the following
characteristics: Similar entrance openings, and is similar in size,
configuration, and accessibility, to the PRCS the authorized entrants
enter but does not need to contain any physical or atmospheric hazards.
This definition was included to emphasize that the Simulated PRCSs do
not have to contain actual physical or atmospheric hazards to qualify
for the training required by this proposed standard. OSHA proposes this
clarification to prevent injuries and deaths from occurring during
rescue training.

Section 1926.1204--Worksite Evaluation, Information Exchange, and
Coordination

    Paragraph (a). This paragraph sets forth requirements for
exchanging information relevant to construction operations in confined
spaces. Controlling contractors and host employers would have to share
four pieces of information (listed below) before any employee enters
the confined space. This information addresses such issues as: location
of confined spaces, hazardous conditions affecting confined spaces,
precautions taken to address those hazards, and classifications of the
confined spaces. OSHA notes, however, that the proposed standard only
places a duty on controlling contractors and host employers to provide
any information they already have about the confined spaces specific to
their worksite. The Agency makes clear in this proposed paragraph that
``[n]either the controlling contractor nor the host employer is
required to obtain the information listed * * *''; their only
obligation is to provide their contractors with information they
already have about a confined space. OSHA also states in a note to this
proposed paragraph that controlling contractors or host employers are
not required to enter a confined space to collect the relevant
information.
    On most construction worksites, there are a number of contractors
and subcontractors performing jobs. In the case of confined spaces,
sometimes employees of different employers will be performing work
within the same confined space. In many instances, employees of a
subcontractor will enter a confined space after another subcontractor's
employees have completed work within the space. On multi-employer
worksites, an employer's actions can affect the health and safety of
another employer's employees. It is critical for the safety of all
employees on a worksite that contractors and subcontractors communicate
with each other. Requiring communication between employers is an
efficient way to ensure that each employer learns important information
about the confined space hazards present so that all employees are
adequately protected. OSHA is proposing these information-sharing

requirements in proposed Sec.  1926.1204 so that construction worksites
with confined spaces remain safe places of employment for all
employees.
    The Agency has clear authority to include these multi-employer
provisions in the standard. First, the plain language of the OSH Act
and its underlying purpose support OSHA's authority to place
requirements on employers that are necessary to protect the employees
of others. Second, congressional action subsequent to passage of the
OSH Act recognizes this authority. Third, OSHA has consistently
interpreted its statutory authority as permitting it to impose
obligations on employers that extend beyond their own employees, as
evidenced by the numerous standards, including several construction
standards, that OSHA has promulgated with multi-employer provisions.
Finally, OSHA's authority to place obligations on employers that reach
beyond an employer's own employees has been upheld by numerous courts
of appeals and the Occupational Safety and Health Review Commission
(OSHRC).
    The purpose of the Act is to assure so far as possible safe and
healthful working conditions for every working man and women in the
nation. 29 U.S.C. 651(b). To achieve this goal, Congress authorized the
Secretary to establish mandatory occupational safety and health
standards. The Act broadly defines an OSHA standard as a rule that
``requires conditions, or the adoption or use of one or more practices,
means, methods, operations, or processes, reasonably necessary or
appropriate to provide safe or healthful employments and places of
employment.'' 29 U.S.C. 652(8). See Building and Constr. Trades Div.,
AFL-CIO v. Brock, 838 F.2d 1258, 1278 (DC Cir. 1988). OSHA standards
must prescribe measures that are appropriate to protect ``places of
employment''; nothing in the statutory language suggests that OSHA may
do so only by regulating an employer's interaction with its own
employees. On the contrary, the Act's broad language gives OSHA almost
``unlimited discretion'' to devise means to reach the statutory goal.
See United Steelworkers v. Marshall, 647 F.2d 1189, 1230 (DC Cir.
1980), cert. denied, 453 U.S. 913 (1981).
    Similarly, Section 5(a)(2) provides that each employer ``shall
comply with occupational safety and health standards promulgated under
this Act.''\2\ Nothing in this language suggests that compliance is
required only when necessary to protect the employers' own employees,
or that the employer is entitled to endanger other employers' employees
at the worksite. Finally, Section 6(b)(7) of the Act authorizes the
Secretary to ``prescribe the use of labels or other appropriate forms
of warning as are necessary to insure that employees are apprised of
all hazards to which they are exposed.'' 29 U.S.C. 655(b)(7) (emphasis
added). Again, this authority is not limited to labels that would warn
the employer's own employees of the hazard. Given the distribution of
potentially hazardous products in commerce, employees are predictably
exposed to hazardous conditions created by other employers. Requiring
employers to include hazard information needed by downstream employees
is a necessary and appropriate means to ensure that the employees are
apprised of all hazards to which they are exposed.
---------------------------------------------------------------------------

    \2\ This language is in marked contrast to the language of
Section 5(a)(1) of the Act (known as the ``general duty clause''),
which requires each employer to ``furnish to each of his employees
employment and a place of employment which are free from recognized
hazards that are causing or are likely to cause death or serious
physical harm to his employees.'' 29 U.S.C. 654(a)(1) (emphases
added). See Brennan v. OSHRC, 513 F.2d 1032, 1037-38 (2nd. Cir.
1975).
---------------------------------------------------------------------------

    In short, the statute focuses on workplace conditions to effectuate
the OSH Act's congressional mandate, and not on a particular employment
relationship. The OSH Act's underlying purpose is broad--to assure safe
and healthful working conditions for working men and women--and
Congress made clear that it expected the Act to protect all employees.
(H. Rep. No. 91-1291, 91st Cong., 2d Sess., p. 14-16 (July 9, 1970)).
Numerous references in the legislative history of the Act require
employers to provide a safe and healthful ``place of employment'' (see,
e.g., S. Rep. No. 91-1282, 91st Cong., 2d Sess., p. 10 (October 6,
1970)). The OSH Act tasks OSHA with promulgating rules that will create
safe places of employment, notwithstanding the many varied employment
relationships that might exist at a worksite.
    Subsequent congressional action has also recognized OSHA's
authority to impose responsibilities on employers to protect employees
who are not their own. For example, Congress directed OSHA to develop a
chemical process safety standard (the PSM standard) requiring employers
to ``ensure contractors and contract employees are provided appropriate
information and training'' and to ``train and educate employees and
contractors in emergency response.'' (29 U.S.C. note) (quoting Pub.L.
101-549, Title III, Section 304, November 15, 1990, 104 Stat. 2576).
This is a clear ratification of the Agency's authority to require
employers to protect the employees of others. Congress also approved of
the Agency's authority when it relied on the provisions of OSHA's
Hazard Communication standard in promulgating the Emergency Planning
and Community Right-to-Know Act (42 U.S.C. 11001-11050) (EPCRA). OSHA's
Hazard Communication standard, among other things, requires a
manufacturer of a hazardous chemical to ``inform not only its own
employees of the dangers posed by the chemicals, but downstream
employers and employees as well.'' Martin v. American Cyanamid Co., 5
F.3d 140, 141 (6th Cir. 1993). Congress incorporated provisions of the
Hazard Communication standard in EPCRA as a basis for triggering
obligations on owners or operators of facilities producing hazardous
chemicals to provide local governments with information needed for
emergency response. Had Congress not approved of the multi-employer
provisions in the Hazard Communication standard, it would not have
approved of it as a basis for obligations in the EPCRA.
    Furthermore, OSHA has consistently interpreted the OSH Act as
authorizing it to impose multi-employer obligations in its standards.
In addition to the Hazard Communication standard and PSM standard
discussed above, OSHA included multi-employer provisions in its powered
platforms standard, which requires that a building owner inform
employers that the building installation has been inspected and is safe
to use. 29 CFR 1910.66(c)(3). OSHA has also imposed multi-employer
obligations in other construction standards. For example, in the
construction asbestos standard, OSHA requires building owners/employers
to perform initial monitoring for asbestos and to communicate the
presence of asbestos or presumed asbestos containing materials to
prospective employers whose employees reasonably can be expected to
work in exposed areas. 29 CFR 1101(k)(2). In the recently promulgated
steel-erection standard, OSHA imposed duties on controlling contractors
to ensure that site conditions are safe for steel erection. 29 CFR
1926.752(c). OSHA just recently proposed in updates to its electric-
power transmission and distribution construction standard similar
multi-employer communication provisions. See 70 FR 34947-48. OSHA's
inclusion of multi-employer provisions in this proposed rule is fully
consistent with its past practice of ensuring the safety and

health of all employees at construction worksites.
    Finally, OSHA's authority to impose these provisions is confirmed
by the decisions of numerous courts of appeals and the Occupational
Safety and Health Review Commission holding that an employer's duties
and OSHA standards may extend beyond an employer's own employees. See
Universal Constr. Co. v. OSHRC, 182 F.3d 726, 728 (10th Cir. 1999)
(following decisions from Second, Sixth, Seventh, Eighth and Ninth
Circuits); Access Equip. Sys., 18 BNA OSHC 1718, 1722-24 (No. 95-1449,
1999). But see Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th
Cir. 1981). The DC Circuit suggested in Anthony Crane Rental, Inc. v.
Reich, 70 F.3d 1298, 1306 (DC Cir. 1995), however, that 29 CFR
1910.12(a)--a rule promulgated by OSHA to adopt Construction Safety Act
(CSA) standards as OSHA standards--might limit an employer's
obligations under the construction standards in part 1926 to its own
employees. The court did not reach the issue, noting that the parties
had not briefed it. The proposed confined-spaces in construction
standard will be included in part 1926 Sec.  1910.12(a) is consistent
with the promulgation of requirements that place obligations on
employers necessary to protect the employees of others. The provision
states:

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

    The language of the provision supports OSHA's interpretation that
an employer's responsibilities can extend beyond the employer's
employees. The first sentence makes the construction standards
applicable to every employment and to every ``place of employment'' of
every construction employee. This is broad language that does not limit
an employer's obligations to its own employees. The second sentence, by
providing that each employer must protect the employment and the places
of employment of each of his employees, does not limit an employer's
obligations to only protecting his or her employees and does not negate
the broad reach of the first sentence. The two sentences, read
together, require employers to comply with standards at all sites where
they are working in order to protect employees who are predictably
present at those sites.
    The sole purpose of the provision was to ``adopt and extend''
existing Construction Safety Act (CSA) standards applicable under the
OSH Act. 29 CFR 1910.11. Under the CSA, standards applied only to
employers with Federally funded contracts, and only with respect to
employees engaged on those Federal projects. See 29 CFR part 1926
Subpart B; CH2M Hill, Inc. v. Herman, 192 F.3d 711, 718 n.1 (7th Cir.
1999). The function of 29 CFR 1910.12(a) was to adopt the CSA standards
as OSHA standards and in so doing to make it clear that neither of
those limitations would apply. Thus, OSHA stressed that compliance
would broadly extend to each construction employer (not just those with
Federal contracts) and to every construction employee (not just those
working on Federal projects). In no way did OSHA intend for the
language of 29 CFR 1910.12(a) to restrict its authority to promulgate
construction standards that establish obligations extending beyond an
employer's own employees.
    Other factors confirm that OSHA had no intention in Sec.
1910.12(a) to bar multi-employer responsibilities under the
construction standards. OSHA issued the regulation without notice and
comment under Section 6(a) of the Act. That section provided authority
only to adopt established federal standards, such as the CSA standards,
without making any substantive changes. Usery v. Kennecott Copper
Corp., 577 F.2d 1113 (10th Cir. 1977). The CSA regulations did not
limit multi-employer responsibilities; the regulations expressly
provided for them. 29 CFR 1926.16. OSHA could not have intended to
limit statutory obligations in an action under Section 6(a).
    Moreover, concurrently with issuance of Sec.  1910.12(a), OSHA
issued its initial Field Operations Manual, which expressly directed
issuance of citations to construction employers who created a hazard
endangering their own employees or those of another employer. The
Agency has also consistently promulgated rules in 29 CFR part 1926 that
expressly extend employers' obligations beyond their own employees. The
requirements in proposed Sec.  1926.1204 reflect this consistent
interpretation and will ensure that all employees on construction
worksites are protected from the hazards of confined spaces.
    The Occupational Safety and Health Review Commission's recent
decision in Secretary of Labor v. Summit Contractors (OSHRC Docket No.
03-1622 (April 27, 2007), has no application to this proposed rule. In
Summit, a divided Review Commission vacated citations issued to a
controlling employer for violations of a construction standard. The two
Commissioners who joined in this result issued separate opinions; each
read Sec.  1910.12(a) as establishing a limitation on the Agency's
authority to hold controlling employers accountable for violations.
OSHA believes this view is mistaken, and has appealed the OSHRC
decision to the U.S. Court of Appeals (8th Cir. No. 07-2191).
    Moreover, Summit has no bearing on the duties established under the
proposed rule. The Summit opinions interpreted OSHA's intent under then
existing rules. They did not question OSHA's authority under the Act to
establish multi-employer obligations through rulemaking. OSHA is
exercising its authority under Section 6(b) to issue this proposed
rule, and nothing in Sec.  1910.12(a) limits an employer's compliance
obligations under the rule.
    Paragraph (a)(1). The host employer and/or controlling contractor
would be required to provide information to contractors that it has
about the location of each space that it actually knows is a confined
space at the worksite. If the host employer or controlling contractor
does not have this information, it is not required by this proposed
provision to obtain it. For example, if the locations of confined
spaces were obtained by the host employer or controlling contractor
while its own employees had worked in or near the spaces, or if it
obtained the location of a confined space from other contractors who
worked in or near the spaces, that information must be shared with the
next employer it contracts to work in or near those confined spaces.
    Paragraph (a)(2)(i). For each confined space identified in
paragraph (a)(1) above, the host employer and controlling contractor
would be required to inform the contractor of any hazards in or near
the space that the host employer or controlling contractor knows about.
These may be known atmospheric or physical hazards. Examples of these
include, but are not limited to: atmospheric contaminants; the presence
of energized electrical conduits; construction operations performed
near the confined space that may result in a ruptured sewer line; or
the existence of construction work that may cause the confined space to
collapse. If the host employer or controlling contractor does not have
this information, it is not required by this proposed provision to
obtain it.
    Paragraph (a)(2)(ii). The host employer and/or controlling
contractor

would be required to provide information that it has to the contractor
about the classifications of previously classified confined spaces on
the worksite. For example, if the host employer or controlling
contractor knows that an employer had previously classified an
electrical vault as an Isolated-Hazard Controlled Space (IHCS), the
controlling contractor would have to provide that information to the
next employer that it contracts to do work in or near that space.
However, if the host employer or controlling contractor does not have
this information, it is not required by this proposed provision to
obtain it.
    During the SBREFA process, some small-business representatives
expressed the concern that, as a result of having this provision in the
draft proposed standard, some controlling contractors would require the
contractor to classify all confined spaces as PRCSs, including those
that could be classified as IHCSs or CACSs. This proposed provision
would not require the contractor to base its classification
determination solely on a previous classification that it learned of
from a host employer or controlling contractor. The contractor is
responsible, under other sections of the proposed standard, for
properly classifying the space; the information provided to the
contractor under this proposed paragraph may assist the contractor in
making the classification. However, this proposed standard would not
preclude a controlling contractor from requiring a contractor, for
example, to apply a higher level classification to confined spaces than
the level required under the proposed standard.
    Paragraph (a)(2)(iii). The host employer and controlling contractor
would be required to share with all contractors who work inside a
confined space the precautions and procedures, if any, it previously
implemented to enter that confined space. However, this proposed
provision does not require the host employer or controlling contractor
to develop entry programs for its contractors. Also, it is not
mandatory for a host employer or controlling contractor to provide
previously implemented confined-space entry procedures that are not
applicable to the space(s) the contractor must enter (that is, entry
procedures used for a different space.)
    Paragraph (b). The contractor would be required to first determine
what spaces are confined spaces and, if so, whether they are subject to
any hazards. Provisions (b)(1) through (b)(4) of this proposed section
spell out the procedures for making these assessments. The Agency
believes that these procedures are necessary to ensure that the spaces
are correctly assessed and to ensure that the employees are protected
while conducting the assessments.
    Paragraph (b)(1). The contractor would be required to consider
information provided by the host employer and controlling contractor
(if any), and the contractor's own inspection information (see
following paragraph), to determine if the space is a confined space
and, if so, if there are any physical or atmospheric hazards. OSHA
believes that information obtained from the host employer or
controlling contractor would be useful to contractors because it often
would be based on work previously done safely within the affected
space. Except as noted in paragraph (b)(2) of this proposed section,
this initial evaluation must be done without entry into the space by
the contractor or their employees.
    Paragraph (b)(2). In some cases it may not be feasible to make the
required determinations about the space and hazards without entering
the space. When the contractor can demonstrate that obtaining the
information without entering the space is infeasible, employees may
enter, but only to inspect for that information. In doing so, an
employer must ensure that any employee entering the unclassified space
meets the requirements of proposed Sec. Sec.  1926.1208 through
1926.1214 for Permit-Required Confined Spaces and, if applicable,
proposed Sec.  1926.1215 for Continuous System-Permit-Required Confined
Spaces.
    Entry into the space before identifying its hazards is potentially
dangerous; therefore, OSHA believes it is reasonable to require
contractors to be able to demonstrate that a proper assessment of the
space without entry is infeasible before employees are allowed to
enter. This proposal calls for contractors to follow the entry
requirements of a PRCS (or, where applicable, a CS-PRCS) in these
situations because, with the hazards as yet undetermined, taking these
precautions will ensure the safety of the employees.
    Paragraph (b)(3). The contractor would have to determine if there
are any atmospheric hazards in the confined space. It would be required
to comply with proposed Sec.  1926.1205 (Atmospheric testing and
monitoring) below to properly perform atmospheric testing and
monitoring. In following proposed Sec.  1926.1205, all testing of the
internal atmosphere of the confined space must be done without use of
mechanical ventilation or changes to the space's natural ventilation.
This is to ensure that the natural atmospheric conditions within the
space are assessed for hazards that may affect those employees working
in the space.
    Paragraph (b)(4). Contractors would be required to meet applicable
OSHA requirements, including training requirements, for the use of
personal and other protective equipment required by paragraph (c)(2) of
proposed Sec.  1926.1213. The training would ensure, as applicable,
that the employees have the understanding, knowledge, and skills
necessary to use the personal and other protective equipment
effectively.
    Paragraph (c). This proposed paragraph sets forth the information-
exchange requirements for contractors who classify a space as a PRCS,
CS-PRCS, CACS, or IHCS.
    Paragraph (c)(1). Contractors would have to inform the host and
controlling contractor of the procedures the contractors will follow
for entry into the space. This proposed requirement will enable the
host employer and controlling contractor to provide this information to
other contractors who enter the space. Such information would help
other contractors in planning their safe entry procedures.
    Paragraph (c)(2). When contractors classify a space as a PRCS, CS-
PRCS, CACS, or IHCS, they would be required, at the conclusion of entry
operations, to inform the host employer and controlling contractor
employer about any hazards that were present or that developed during
the entry operations. This information would be useful to other
employers that the host employer and controlling contractor contracts
to do work within the space since it would be relevant to their hazard
assessments of the space. OSHA believes that the host employer and
controlling contractor are in the best position to disseminate this
information to other affected employers on the site.
    Paragraph (d). The controlling contractor would be required to
coordinate confined-space entry operations when multiple contractors
will have employees working within the confined space at the same time.
The Agency believes that the controlling contractor is in the best
position to ensure adequate coordination between contractors whose work
(and associated hazards) may affect one another. Note that this
proposed paragraph does not specify any particular process by which the
controlling contractor would coordinate entry operations. The purpose
of this proposed provision is to ensure that employees are protected
from hazards that could result from a

lack of coordination between contractors in the space. This paragraph
works in concert with the requirements of paragraph (c)(1) of this
proposed section, which specifies that contractors must inform the
controlling contractor and host employer of their precautions and entry
procedures. The controlling contractor can use this information to
coordinate the entry operations performed by multiple contractors in or
near a confined space to ensure the safety of employees.
    Paragraph (e). This proposed paragraph addresses employee
participation and notification, and would require the employer to
provide its employees who enter a confined space, and their authorized
representatives, an opportunity to observe evaluations of the confined
space performed under paragraph (b) of this proposed section,
reassessments conducted under proposed Sec.  1926.1207 (Reassessment),
and any atmospheric testing and monitoring required by this proposed
standard. This proposed paragraph does not require employees and their
authorized representatives to observe the specified activities;
however, it provides employees and their authorized representatives
with the option of observing should they choose to do so. OSHA believes
that allowing employees and their authorized representatives to
participate in this manner will contribute to the successful
implementation of safe entry operations by enhancing their awareness of
the hazards present in the confined space.

Section 1926.1205--Atmospheric Testing and Monitoring

    This proposed section prescribes minimum procedures for atmospheric
testing and monitoring that employers would be required to perform to
adequately assess the atmospheric conditions which exist within a
confined space. Information of this type is vital to the identification
of atmospheric hazards within the space, and is also needed to make
accurate determinations for later classification of the space.
Maintaining safe atmospheric conditions is essential to the safety of
all employees working in the space.
    Paragraph (a). Employers would be required to test or monitor a
confined space for certain atmospheric hazards in a specific order
(oxygen deficiency, combustible gases and vapors, and toxic gases and
vapors) unless they test or monitor these hazards simultaneously, and
for other atmospheric hazards specified in applicable OSHA requirements
(such as those in other OSHA standards). Employers must test or monitor
for oxygen deficiency, combustible gases and vapors, and toxic gases
and vapors because these are well-recognized atmospheric hazards in
confined spaces (see discussion of atmospheric hazards in the general
industry final rule for confined spaces at 58 FR 4465). Employers must
continue to test or monitor the confined-space atmosphere while
employees are operating in the space.
    The Agency adopted the requirement to test or monitor for oxygen
deficiency, combustible gases and vapors, and toxic gases and vapors in
this specific order (unless employers test or monitor these atmospheric
hazards simultaneously) from the general industry and the ANSI Z117.1-
2003 confined-spaces standards. The preamble to the final general
industry confined-spaces standard noted that this procedure represents
generally accepted safe work practices, and explained the specified
order as follows:

    A test for oxygen must be performed first because most
combustible gas meters are oxygen dependent and will not provide
reliable readings in an oxygen deficient atmosphere. In fact, the
Johnson Wax Company (Ex. 14-222) stated that ``there is [a] specific
(sensor dependent) oxygen level below which the combustible gas
sensor will not respond at all [emphasis was supplied in
original].'' Combustible gases are tested for next because the
threat of fire or explosion is both more immediate and more life
threatening, in most cases, than exposure to toxic gases.

(58 FR 4499.) OSHA remains convinced that the priority assigned to
testing or monitoring atmospheric hazards by this proposed provision
remains valid, and is critical to the health and safety of employees
involved in confined-space operations.
    Monitoring must be done periodically and as necessary unless other
provisions of this proposed standard or other OSHA requirements specify
differently. ``As necessary'' refers to the monitoring reasonably
required to detect atmospheric hazards. Some factors that may affect
frequency are: results of tests allowing entry; regularity of entry
(daily, weekly, or monthly); effectiveness of previous monitoring
activity; and knowledge of the hazards that affect the confined space.
Monitoring must be of a frequency and performed in a manner sufficient
to protect employees operating in confined spaces from atmospheric
hazards.
    Paragraph (b). Employers would have to provide medical facilities
that treat employees exposed to certain atmospheric hazards (those
hazards that could cause an immediate threat to life and health) with
information the employer is required to keep under proposed Sec.
1926.1219 (Records) regarding such hazards; if the exposure involves a
chemical hazard described by a Material Safety Data Sheet (MSDS) that
the employer must maintain at the job site under 29 CFR 1910.1200
(Hazard Communications), the employer must ensure that the medical
facility receives the MSDS as well. The information must be provided to
the treating medical facilities as soon as is practical after the
exposure. Employers can comply with this proposed provision by having
that information accompany the employee to the medical facility or by
providing it to the facility as soon as practicable after the
employee's arrival there.
    The Agency recognizes that such information may already be
available to medical facilities from other sources (such as state
emergency-planning commissions), and that MSDSs or similar written
information may not be available in some instances. However, OSHA
believes that it would be reasonable and prudent to require employers
to provide MSDSs or other written information to a treating medical
facility when such MSDSs or other similar written information already
is required to be kept at the worksite; for example, as noted earlier,
the Agency's Hazard Communication standard at 29 CFR 1910.1200 may
require construction employers to keep MSDSs at the job site. Such
information may significantly help the medical facility correctly
diagnose and treat the employee.

Section 1926.1206--Classification and Precautions

    This proposed section would require an employer to use the
information about the space that it obtained under proposed Sec.
1926.1204 (Worksite evaluation, information exchange, and coordination)
and classify the confined space(s) in which their employees will be
working. The employer must then follow the precautions and safety
procedures listed in the applicable section. The classifications are:
Continuous System-Permit-Required Confined Space (CS-PRCS); Permit-
Required Confined Space (PRCS); Controlled-Atmosphere Confined Space
(CACS); and Isolated-Hazard Confined Space (IHCS).
    Paragraph (a). This proposed paragraph lists the elements of a
Continuous System-Permit-Required Confined Space (CS-PRCS). A
``confined space,'' as defined in proposed Sec.  1926.1203 (Definitions
applicable to this subpart), would be classified as a CS-PRCS if it has
all the

elements listed in paragraphs (a)(1) through (a)(3) of this proposed
section. Such spaces would be protected in accordance with the safety
provisions and procedures specified by proposed Sec. Sec.  1926.1208
through 1926.1215. The Agency believes that employees in this type of
space are vulnerable to hazards that can migrate from a larger,
contiguous confined space and overwhelm personal protective equipment
and/or hazard controls, resulting in a hazard that is immediately
dangerous to life and health. For example, employees in one part of a
sewer system could be drowned by an unexpected flow of water from
upstream in the system. Therefore, a means of warning the employees
needs to be in place to protect them.
    Paragraph (a)(1). The first element of a CS-PRCS is that the
confined space is part of, and contiguous with (connects or contacts),
a larger confined space--irrespective of whether the larger space is a
CS-PRCS, an Isolated-Hazard Confined Space (IHCS), a Controlled-
Atmosphere Confined Space (CACS), or a Permit-Required Confined Space
(PRCS). The space to be classified must be contiguous with part of the
larger system. For example, if an employer were to perform work in a
section of a sewer system, that section would be considered part of and
contiguous with a larger space (the entire sewer). As such, it would
meet this element.
    Paragraph (a)(2). The second element of a CS-PRCS is that the space
is not isolated from the larger confined space. In the context of this
proposed paragraph, the term ``isolated'' means completely sealed off
from the larger space such that passage of the hazards from the larger
space is impossible.
    Paragraph (a)(3). The third element of a CS-PRCS is that the space
is subject to a potential hazard release from the larger confined space
that would overwhelm personal protective equipment (PPE) and/or hazard
controls used in the space. In this context, ``overwhelm'' means that
the PPE and/or hazard controls would not be able to cope with the
hazard and would not protect employees, posing an immediate danger to
the life and health of any employee working in the space. An example
would be where employees are in a confined space that is contiguous
with a sewer and the water level in the space is being maintained at a
safe level with pumping equipment. However, the pumping equipment could
not maintain that safe level if there were a surge of storm water from
the sewer.
    Paragraph (b). For confined spaces other than CS-PRCSs, the
employer would have the flexibility to use a PRCS, CACS or IHCS
classification, as long as the applicable classification requirements
are met. The elements of each classification are in proposed Sec. Sec.
1926.1208 (PRCS), 1926.1216 (CACS), and 1926.1217 (IHCS). OSHA had
planned on proposing that the employer be required to classify the
space to the ``lowest'' classification possible (that is, as an IHCS
or, if that was not possible, then as a CACS, and if that was not
possible, then as a PRCS). However, one of the recommendations that
resulted from the SBREFA review process was that OSHA should consider
allowing employers greater flexibility in this regard. The Agency has
decided that allowing flexibility in choosing the classification will
increase compliance with the standard, and has, therefore, allowed for
flexibility in this proposed provision.
    Paragraph (c). The employer would be required to meet the accident-
prevention and -protection requirements applicable to the confined
space as classified. The employer would have to meet those requirements
before any employee enters the space. The accident-prevention and -
protection requirements for each classification are in proposed
Sec. Sec.  1926.1208 through 1926.1214 (PRCS), 1926.1215 (CS-PRCS),
1926.1216 (CACS), and 1926.1217 (IHCS). The Agency structured the
proposed standard in this way so that the accident-prevention and -
protection requirements would be tailored specifically to the space
classification being used. OSHA believes that this approach will both
ensure the protection necessary for the employees and give the
employers some flexibility in selecting the classification.

Section 1926.1207--Reassessment

    Paragraph (a). This proposed paragraph would require employers to
reassess the determinations made in proposed Sec.  1926.1204 (Workplace
evaluation, information exchange, and coordination) for a confined
space that the contractor had previously determined did not contain any
atmospheric or physical hazards when there is an indication that the
conditions under which the determinations were made have changed. The
Agency believes that this is necessary because conditions around and
within confined spaces may change, especially when construction
activities are performed around or within it. Consequently, when
indications of changes in the previous conditions arise, and to ensure
that employees are protected, it is necessary to conduct a reevaluation
of the confined space. Such indications include but are not limited to:
(1) A change in the configuration or use of, or the type of work
conducted or materials used in, the confined space; (2) new information
regarding a hazard in or near a confined space; and (3) an employee or
authorized representative provides a reasonable basis for believing
that a hazard determination is inadequate. OSHA believes that, to
ensure the safety of the employees, if any of these three indications
occur it is necessary to check to see if new hazards have arisen in the
confined space.
    Paragraph (b). When an employer has made a determination under
proposed Sec.  1926.1204 (Workplace evaluation, information exchange,
and coordination) that a confined space was subject to a hazard and the
employer implemented protective measures and procedures, the employer
would be required to reassess its confined space worksite operations
and procedures if there is an indication that those measures may not
protect employees working in or near the confined space. This proposed
provision lists seven examples of indications that would require the
contractor to reassess the confined space in light of the triggering
event or new information. These events include, but are not limited to:
(1) A change in the configuration or use of, or the type of work
conducted or materials used in, the confined space; (2) new information
regarding a hazard in or near a confined space; (3) an employee or
authorized representative provides a reasonable basis for believing
that a hazard determination or protective measure is inadequate; (4) an
unauthorized entry into a PRCS; (5) detection of a hazard in or near a
PRCS that is not addressed by the entry permit; (6) detection of a
hazard level in or near a PRCS that exceeds the planned conditions
specified in the entry permit; and (7) the occurrence, during an entry
operation, of an injury, fatality or near-miss.
    While some specified events, such as the presence of a new hazard
in or near the confined space, detection of a hazard not covered by the
entry permit, or detection of a hazard that exceeds acceptable levels
(see paragraphs (b)(2), (b)(5), and (b)(6) of this proposed section,
respectively) may necessitate a full physical and atmospheric retest of
the space, full retesting would not be required in all cases. For
example, it is unlikely that the unauthorized entry into a space
(paragraph (b)(4) of this proposed section) or an accident unrelated to
any atmospheric hazard (paragraph (b)(7) of this proposed section)
would necessitate a complete review of the atmospheric conditions in
the confined space. OSHA recognizes

that while working in a confined space, the environment and/or working
conditions may change as a result of unforeseen occurrences. As such,
the employer must identify the need for a reassessment of the hazards
and working conditions based on changes that may adversely affect
safety or health in the confined space.
    The indicators specified in paragraphs (b)(1) through (b)(7) of
this proposed section are not meant to be a comprehensive list; rather,
these indicators are likely or common events that would require a
reassessment. The employer also would be required to conduct a
reassessment where other, unlisted conditions occur that indicate a
need to reassess the effectiveness of hazard controls used in the
space.
    Paragraph (c). This proposed paragraph specifies the requirements
for reassessing a confined space. Prior to performing a reassessment,
the contractor must ensure that all employees exit the confined space
immediately. The proposed provision also requires the contractor to
ensure that no employee reenters the space until the contractor
identifies the physical and atmospheric hazards in accordance with
paragraph (b) of proposed Sec.  1926.1204; follows the classification
procedures specified by proposed Sec.  1926.1206 (Classification and
precautions); and meets the accident-prevention and -protection
requirements applicable to the space classification selected by the
contractor before any employee reenters the space.
    The Agency believes this proposed requirement is necessary because
once an emergency occurs, the protective systems in place in the PRCS
can no longer be relied on to protect the entrants; their safety then
depends on their immediately getting out of the PRCS. The Agency also
believes that this proposed requirement is necessary to ensure that
the: spaces are correctly assessed; employees are protected while
conducting a reassessment; and employees receive appropriate protection
prior to reentering the confined space.

Section 1926.1208--Permit-Required Confined Spaces

    This proposed section would establish (1) the criteria for
identifying and classifying a Permit Required Confined Space (PRCS),
and (2) the basis for defining the conditions that would enable
authorized entrants to work safely in the PRCS (the planned
conditions).
    Paragraph (a). This proposed paragraph specifies the classification
requirements for PRCSs.
    Paragraph (a)(1). This proposed paragraph lists several
characteristics of PRCSs as defined in proposed Sec.  1926.1203
(Definitions applicable to this subpart): a hazardous atmosphere;
inwardly converging, sloping, or tapering surfaces that could trap or
asphyxiate an employee; or an engulfment hazard or other physical
hazard. The presence of any one of these characteristics in a confined
space would require the employer to identify and classify it as a PRCS.
For example, a space between walls that narrows towards the base
(including but not limited to, funnels and hoppers) would be a PRCS.
    Paragraph (a)(2). This proposed paragraph sets forth the
requirements regarding physical and atmospheric hazards in PRCSs.
    Paragraph (a)(2)(i). In this proposed provision, for each physical
hazard identified under paragraph (b) of proposed Sec.  1926.1204, the
employer would have to design either an isolation method or use another
method of protecting employees from each hazard. The means and methods
designed by the employer must meet applicable OSHA requirements. For
example, if the confined space contains a physical hazard associated
with electrical equipment, the means of isolation or protection must
comply with the appropriate OSHA electrical standard (e.g., 29 CFR part
1926 subpart K (Electrical)).
    Paragraph (a)(2)(ii). In this proposed provision, for each
atmospheric hazard identified under proposed 29 CFR 1926.1205
(Atmospheric testing and monitoring), the employer must isolate or
control the atmospheric hazards within the PRCS by either: (1) Ensuring
that these hazards are reduced to a safe level \3\ in the space without
the use of personal protective equipment (PPE) (see, for example, 29
CFR 1926.55, 1926.152, 1926.1100 through .1152); or (2) using PPE to
protect the employees from the hazard. For example, for non-explosive
atmospheric hazards (such as oxygen deficiency or toxic atmosphere), if
the employer does not reduce the hazard in the space to a safe level,
the method used to protect the employees must include PPE that is
sufficient to protect them in accordance with OSHA requirements
applicable to the hazard.
---------------------------------------------------------------------------

    \3\ ``Safe level'' is a defined term in proposed 1926.1203
(Definitions applicable to this subpart) of this proposed standard.
---------------------------------------------------------------------------

    OSHA initially considered requiring employers to isolate all
hazards and meet the accident-prevention and -protection requirements
of proposed Sec.  1926.1217 (Isolated-hazard confined spaces--
classification and accident-prevention and -protection requirements)
unless they could demonstrate that isolation of a hazard is infeasible.
When employers could demonstrate that they could only isolate physical
hazards but not atmospheric hazards, they would have to control the
atmospheric hazard and protect their employees in accordance with
proposed Sec.  1926.1216 (Controlled-atmosphere confined spaces--
classification and accident-prevention and -protection requirements).
Only when they could not isolate or control a hazard could employers
use personal protective equipment (PPE) to meet the requirements of
proposed Sec. Sec.  1926.1208 through 1926.1214 and 1926.1215
(requirements for PRCSs and Continuous System-PRCSs). However, during
the SBREFA process, several Small Entity Representatives (SERs) noted
that they and their controlling contractors prefer to classify all
confined spaces as PRCSs, thereby providing consistency in training and
equipment when working in confined spaces.
    OSHA's initial position was consistent with other OSHA standards
such as 29 CFR 1926.55 (Gases, Vapors, Fumes, Dusts, and Mists), which
require employers to eliminate hazards first using engineering and
work-practice controls, and only then with PPE. Nevertheless, the
Agency agreed with the comments of the SERs and revised its initial
position to allow employers to meet the accident-prevention and -
protection requirements of an IHCS or CACS as an option to complying
with the PRCS requirements of the proposed standard. OSHA believes this
approach to classification of confined spaces will protect employees
while allowing employers some flexibility in the methods they choose to
manage confined-space hazards. This conclusion is particularly true
given the information the Agency received during the SBREFA process
when the SERs stated that contractors often prefer to classify all
confined spaces as PRCSs so as to provide consistency in training and
work practices. The Agency believes that in the construction industry,
where there are constantly changing work environments, allowing such an
approach may provide additional safety benefits to employees.
    Paragraph (b). The two provisions of this proposed paragraph
require the employer to define the planned conditions under which
authorized entrants can work safely in a PRCS.
    Paragraph (b)(1). Under this proposed paragraph, the employer would
be required to use the determinations made

under paragraph (a)(2) of this proposed section to define the planned
conditions under which the employees can safely work in the PRCS.
    Accordingly, the required information would include the hazard
levels at which employees can safely work and the procedures and
equipment used to protect the employees. For example, when an employer
decides to use PPE to protect employees from an atmospheric hazard, the
planned conditions would typically include the type of PPE to be used
(such as type of respirator) and the levels at which the PPE would
protect the employees from the atmospheric hazard.
    Paragraph (b)(2). Employers would be required to determine that, in
the event the ventilation system stops working, the monitoring
procedures will detect an increase in atmospheric hazard levels in
sufficient time for the entrants to safely exit the PRCS. As explained
for a similar provision in the general industry standard (see 29 CFR
1910.146(c)(5)(i)(B)), for the PRCS to be considered safe, the
mechanical ventilation must control the atmospheric hazards at levels
that are below the levels at which they are harmful to entrants (that
is, at a sufficiently low level that entrants will have time to exit
the PRCS safely). In addition, should the forced-air ventilation system
cease to function during entry (such as from a power loss), the
atmosphere must remain at safe levels until monitoring procedures
detect rising atmospheric hazard levels and entrants can safely exit
the space or ventilation is restored. The Agency believes that
monitoring is the primary method for detecting an increase in
atmospheric hazard levels and, therefore, this proposed standard
generally requires the use of monitoring to detect ventilation system
failure. However, other indicators may be useful in detecting such
failures, including changes in noise levels, air flow, and/or pressure;
and signs, symptoms, and characteristic effects of exposure to the
atmospheric hazard.
    In the event the control methods fail, meeting the requirements of
this proposed paragraph would provide employees with a safe atmosphere
within the PRCS until they evacuate from the confined space, thereby
reducing the risk of serious injury and death. Nevertheless, OSHA
believes that if the atmospheric hazards would rapidly rise to unsafe
levels in the event of a failure in the mechanical-ventilation system,
and employees could not exit safely from the PRCS under these
conditions, then mechanical ventilation may be an inappropriate method
for controlling atmospheric hazards in the PRCS.

Section 1926.1209--PRCS--Initial Tasks

    Paragraph (a). One of the keys to protecting employees from PRCS
hazards is for both employers and employees to know the location of the
PRCSs at the job site, the characteristics of the hazards, and their
associated dangers. The provisions in this proposed paragraph are
designed to achieve this goal.
    Paragraph (a)(1). The contractor would be required to notify its
employees that it anticipates will be in or near the PRCS and their
authorized representatives, and the controlling contractor, about the
location of, and the hazards/dangers posed by the PRCSs located at the
job site. The Agency believes that it is important for the contractor
to provide the controlling contractor with this information because the
controlling contractor is in the best position to convey the
contractor's information to other employers at the site. This proposed
provision will help facilitate the effective sharing of this important
information among other contractors at the site, as well as the
employees of these contractors that they anticipate will be in or near
the PRCS. It also ensures that the contractor's own employees who will
be in or near the PRCSs have this information.
    Paragraph (a)(2). The employer would be required to post a danger
sign at or near the PRCS entrances, which the Agency believes is
necessary to ensure that employees are warned of the presence and
danger of a PRCS. If the employer can demonstrate that a sign is
infeasible, it would have to use an equally effective means of alerting
employees. The Agency believes that employees need this information to
understand the seriousness of potential hazards in the PRCS. Compliance
with this proposed requirement would ensure that employees who are not
involved in PRCS operations would be sufficiently informed so that they
would not attempt to enter the spaces. However, OSHA notes that only
employees who work in PRCSs would need to know more details about the
potential hazards. Therefore, this proposed provision would not require
employers to list specific PRCS hazards on each sign. The Agency
believes that, when properly warned, employees who are not authorized
to enter the space would avoid entering the PRCS, thereby preventing
harm that could result from the PRCS hazards.
    The sign must convey that entering the space is dangerous and that
entry without authorization is prohibited. Language such as ``Danger--
Permit-Required Confined Space--Authorized Employees Only'' and
``Danger--Do Not Enter Without a Permit'' would convey this
information. Similar language that prevents unauthorized entry also
would meet the requirements of the proposed rule.
    OSHA considered allowing the use of a posted copy of the entry
permit to meet the sign requirement. However, the Agency rejected this
idea because the entry permit is not designed to serve as a warning
sign. Unlike a sign that reads ``Danger--Permit Required Confined
Space--Authorized Employees Only'' or ``Danger--Do Not Enter Without a
Permit,'' or similar language, the design and content of an entry
permit is unlikely to clearly express to employees (especially those
not authorized to enter the PRCS) that entering the space could be
dangerous.
    When the employer demonstrates that posting a sign at every
possible entrance to a PRCS is infeasible, it instead would be
permitted to use an equally effective means to warn employees of the
presence and danger of the PRCS. Such means must go beyond just generic
training in this standard, for example, since generic training would
not identify the location of permit spaces at a specific worksite.
Therefore, an equally effective means would identify the PRCS locations
so that employees at the job site who may work near the PRCSs would be
aware of these locations and would understand the importance of not
entering them.
    Paragraph (b). The employer would be required to decide if any
employees would be authorized to enter the PRCS. If no employees will
be authorized to enter, entry must be prevented by implementing the
three measures specified below in paragraphs (b)(1) through (b)(3) of
this proposed section. The Agency believes that these measures would
effectively prevent unauthorized entry into PRCSs and so protect
employees from encountering PRCS hazards.
    Paragraph (b)(1). The employer would be required to use barriers to
permanently close the PRCS to prevent access to the PRCS. The use of
barriers helps ensure that the PRCS remains inaccessible to employees.
A barrier is a physical obstruction that blocks access to the PRCS; for
example, a plywood sheet could be installed to cover the entrance, or
2x4s installed in such a manner that some or all of the barrier would
have to be removed to easily enter the space.
    Paragraph (b)(2). Under this proposed provision the employer would
be

required to post danger signs in accordance with paragraph (a)(2) of
proposed Sec.  1926.1209. The Agency believes that it is necessary to
use such signs in conjunction with the barrier because, without such
signs, an employee may not understand that the purpose of the barrier
is to keep all employees out of the PRCS. Such signs are particularly
important at construction sites, where construction employees are
accustomed to removing material to gain access to an area.
    Paragraph (b)(3). Employers would be required to inform their
employees and the controlling contractor of the location of the closed
PRCS and the measures used to prevent entry into the space. The purpose
of this proposed paragraph is to ensure that all employees, including
employees who are not authorized to enter a PRCS, are informed directly
of the locations of the closed PRCSs and the dangers they pose. As a
result, employees, including those employees who have no experience
working near or within a PRCS, would recognize, and avoid entering, a
PRCS.
    Paragraph (c). Under this proposed paragraph, if the employer
decides that one or more employees will be authorized to enter the
PRCS, it would be required to implement specific measures to limit
entry into the PRCS to only those employees authorized to enter.
Compared to the general industry standard, the provisions in this
proposed paragraph provide more specific information to employers about
how to limit PRCS access to authorized entrants at construction
worksites.
    Paragraph (c)(1)(i). OSHA believes that to effectively limit entry
into a PRCS, it is necessary to make it physically difficult for non-
authorized employees to enter the space since employees may not take
note of other types of warnings (such as signs) before entering the
space. Therefore, under this proposed provision, employers would be
required to use either barriers or high-visibility physical
restrictions, such as warning lines with flags, installed across the
entrances to the PRCS. High-visibility physical restrictions such as
warning lines with flags would be allowed as an option in this proposed
provision since these restrictions allow authorized employees to enter
the space. Unlike the barriers described above in paragraph (b)(1) of
this proposed section, which must prevent any employee from entering
the PRCS, the purpose of the barriers required by this paragraph is to
warn non-authorized employees not to enter the space while allowing
entry into the PRCS by authorized entrants.
    This proposed provision serves a different purpose than the barrier
required below in paragraph (c) of proposed Sec.  1926.1210. As
discussed below, the barrier in paragraph (c) of proposed Sec.
1926.1210 would be designed to protect authorized entrants from
external hazards presented by pedestrians and vehicles. In contrast,
the barrier or high-visibility physical restriction in this proposed
provision is designed to prevent non-authorized entrants from entering
the PRCS, while allowing authorized entrants ready access to the PRCS.
    Paragraph (c)(1)(ii). Employers would be required to post signs
that comply with paragraph (a)(2) of this proposed section at or near
the entrances to the PRCS. The sign required by this proposed paragraph
would warn employees that it is dangerous to enter the PRCS. The sign
would work in conjunction with the physical restrictions specified in
paragraph (c)(1)(i) of this proposed section to communicate the
presence of hazards within the PRCS.
    Paragraph (c)(1)(iii). The employer would have to inform its non-
authorized employees and the controlling contractor of the location of,
and hazards in, the PRCS and the measures used to prevent unauthorized
entry. As with the requirements in paragraphs (a)(1) and (b)(3) of this
proposed section, OSHA believes that it is important for the employer
to communicate the location and hazards of the PRCS to its non-
authorized employees. In addition, the controlling contractor is
typically in the best position to disseminate the information about the
PRCS to the other affected employers. OSHA believes that inadvertent
entry into the PRCS by non-authorized employees is less likely to occur
where this information is disseminated.
    Paragraph (c)(2). The employer would be required to allow only
employees who are ``authorized entrants'' as defined above under
proposed Sec.  1926.1203 (Definitions applicable to this subpart) to
enter the PRCS. Paragraph (g) of proposed Sec.  1926.1210 would require
the employer to designate which employees are authorized entrants and
to ensure that these individuals are identified on the current entry
permit in accordance with paragraph (a)(2)(ii) of proposed Sec.
1926.1214. Only these individuals may enter the PRCS. The Agency
believes that this proposed requirement will help maintain safe PRCS
operations, which to a significant extent depend on the entrants
knowing about the hazards and proper PRCS procedures. Non-authorized
entrants would not typically be trained regarding the hazards and
safety procedures required by the applicable sections of this proposed
standard. Consequently, their presence could compromise not only their
own safety and health, but also the safety and health of other
employees in the PRCS.
    Paragraph (d). This proposed paragraph establishes an employer's
duties to train employees the employer anticipates will be in or near
the PRCS.
    Paragraph (d)(1). The employer would have to ensure that employees
who will be in or near a PRCS acquire the knowledge and skills
necessary for the safe performance of their duties as specified by the
applicable sections of this proposed standard. The proposed provision
specifically identifies ``employees who will be in or near a PRCS'' as
entry supervisors, attendants, authorized entrants, and rescue-service
employees. The training must also result in the employees understanding
the hazards in the PRCS that they will be working in or near, and the
methods used to isolate, control, or protect them from these hazards.
For example, if an authorized entrant enters the space to isolate an
identified hazard or to set up ventilation to control an atmospheric
hazard, the employer would be required to ensure that the employee is
trained not only in accordance with the PRCS entry requirements, but
also to perform the tasks necessary to isolate and control the specific
hazards in accordance with other appropriate OSHA requirements
applicable to construction. All employees who enter the space
thereafter must also be trained to understand how the hazards within
the space, if any, have been isolated or controlled. OSHA believes that
the training employees receive under this provision will enable them to
associate the signs, symptoms and characteristic effects (discussed
elsewhere in this preamble) to failure of methods to control or isolate
the hazards. Therefore, this training will enable employees to safely
perform their requisite duties while working in or near the PRCS, and
to respond appropriately if the hazard-protection methods fail.
    Paragraph (d)(2). Multiple fatalities could occur when one employee
discovers that another employee has been incapacitated inside a
confined space and goes into the space to rescue the victim, only to
become incapacitated as well. OSHA believes one of the ways the
proposed standard would prevent this type of tragic sequence is by
having separate requirements for those employees who are specifically
authorized to enter the PRCS for rescue and those employees who are
not.

    Under this proposed paragraph, the employer would be required to
train employees the employer anticipates will be in or near the PRCS,
and who are not authorized to perform entry rescues, about the dangers
of trying to perform a rescue. This training is especially important
for authorized entrants, attendants, and supervisors since they are
most likely the first to become aware that an employee in the PRCS is
incapacitated.
    Paragraph (d)(3). This proposed paragraph specifies when the
employees, notably entry supervisors, attendants, authorized entrants,
and rescue-service employees, would have to be trained under the
requirements of paragraphs (d)(1) and (d)(2) of this proposed section.
The provisions of this proposed paragraph are designed to ensure that
the training would be provided before the employees encounter a PRCS
hazard, thereby ensuring that they can respond promptly and
appropriately to hazards, and that they are aware of the dangers of
attempting entry rescues.
    Paragraph (d)(3)(i). The employer would have to ensure that
specified employees (that is, entry supervisors, attendants, authorized
entrants, and rescue-service employees) receive the training required
above in paragraphs (d)(1) and (d)(2) of this proposed section prior to
the beginning of PRCS entry operations (that is, when an authorized
entrant enters the PRCS). This proposed requirement ensures that
employees receive adequate training regarding PRCS hazards before
authorized entrants are exposed to these hazards.
    Paragraph (d)(3)(ii). Under this proposed provision, if employees
receive a change in assigned tasks and these changes affect the planned
conditions for the PRCS, then the employer must train these employees
before they enter the PRCS on the newly assigned tasks, including how
to maintain the conditions of the PRCS classification when performing
the tasks. For example, an employee's assignment changes so that he/she
must maintain the proper functioning of ventilation equipment in the
PRCS or perform atmospheric monitoring; before reentering the space,
the employee must be trained to perform such tasks and to understand
their significance to safe PRCS entry operations. This additional
training only applies when employees have not received previous
training on these newly assigned tasks. This proposed provision would
ensure that employees have the knowledge and skills necessary to
perform their newly assigned tasks safely within a PRCS, thereby
preventing errors that could result in substantial harm to themselves
and/or other employees.
    Paragraph (d)(3)(iii). The employer would be required to ensure
that authorized entrants exit the PRCS when a new hazard is introduced
or occurs in the PRCS for which the authorized entrants have not
previously received training. The employer then would have to ensure
that all untrained employees the employer anticipates will be in or
near the space to complete training that provides the necessary skills
and knowledge regarding the new hazard before the space is reentered.
    An example would be authorized entrants working in a PRCS who, in
the course of their work, discover a previously unknown gas line; none
of the authorized entrants has been trained on the hazards associated
with working in a PRCS that has a gas line. This proposed provision
would require that the employees exit the PRCS (not just the area near
the gas line) until they receive the required training.
    Paragraph (d)(4). The employer would have to ensure that employees
that the employer anticipates will be in or near the PRCS can
demonstrate proficiency in the duties required by this proposed
standard, including any new or revised PRCS procedures. This proposed
provision would ensure that employees would not enter a PRCS without
being able to apply the knowledge and procedures addressed in their
training. In other words, the employer must determine that, for each
employee, the training has been effective--that it has resulted in the
employee understanding the information sufficiently so that he/she can
apply it and be proficient in the required duties.
    Paragraph (d)(5). The employer would be required to maintain
training records for each employee. The training records would have to
meet several requirements specified by this proposed paragraph. As
explained in the following paragraph, the Agency believes that
maintaining such records is necessary to ensure that employees that
need to be trained in PRCS hazards have received the appropriate
training.
    Paragraphs (d)(5)(i) and (d)(5)(ii). The training records would
have to show that the employee accomplished the training requirements
specified in paragraphs (d)(1) through (d)(4) of this proposed section
when required. This documentation can take any form that reasonably
demonstrates the employee's completion of the training. Examples
include attachment of test scores, a photocopied card certifying
completion of a class, or any other reasonable means. The records would
also have to contain the employee's name, names of the trainers, and
dates of the training. These records may be stored electronically.
    OSHA recognizes that the turnover rate for employees on
construction sites is higher than in many other industries, and that
employees are also likely to work at several different worksites based
on the type of work that needs to be performed. For example, an
employer could designate an employee to be an authorized entrant in
several different confined spaces at the same worksite, which may
require the employee to perform different assigned tasks under various
planned conditions. In this situation, OSHA believes that this
documentation is necessary to keep track of whether the employee has
been effectively trained to perform the various tasks under the planned
conditions. Compliance with this provision would provide employers with
an administrative tool that they can use to confirm which employees
will be able to perform the duties required by this proposed standard.
By providing an easily accessible reference for determining employee
training status, this provision would ensure a safer workplace within
the PRCS.
    Paragraph (d)(6). The provisions of this proposed paragraph would
require that an employer ensure that employees be retrained when
specified circumstances occur.
    Paragraph (d)(6)(i). Retraining would be required when the employer
has reason to believe that the employee has deviated from the PRCS
entry procedures in proposed Sec. Sec.  1926.1209 through 1926.1214. By
retraining employees who deviate from entry procedures, the employer
can better ensure the safety of all employees in a PRCS. OSHA believes
that even one employee can adversely affect the safety of others in a
confined space if he/she deviates from correct entry procedures.
    Paragraph (d)(6)(ii). Retraining would also be required when the
employer finds indications that the employee does not have adequate
knowledge and skills regarding PRCS entry procedures. OSHA believes
that employees in a PRCS with inadequate knowledge or skills regarding
these procedures could endanger their lives and also the lives of other
employees in the space.
    Paragraph (e). Before any employees enter a PRCS, the employer
would be required to complete arrangements for the rescue of these
employees in accordance with proposed Sec.  1926.1213 (PRCS--rescue
criteria). The Agency believes that this proposed provision is
necessary to ensure that rescue and emergency services will actually be
readily available if they are needed.

Note that, in paragraph (e)(2)(iv) of proposed Sec.  1926.1210, the
entry supervisor is specifically required to verify that this
arrangement has been made before authorizing a PRCS entry.
    Paragraph (f). The employer would have to develop procedures for
safely terminating entry operations under both planned and emergency
conditions. For example, if ventilation equipment is being used to help
control an atmospheric hazard, safe termination procedures under
planned conditions or emergency conditions would include sequencing
shut-down operations so that the ventilation was not turned off until
the end of the termination process (that is, after employees exit the
PRCS).

Section 1926.1210--PRCS--Preparing for Entry

    Once the initial tasks under proposed Sec.  1926.1209 (PRCS--
initial tasks) have been completed, the employer would then have to
meet several requirements under this proposed section before allowing
an employee to enter a PRCS.
    Paragraph (a). Before any authorized entrant enters a PRCS, the
employer would be required to prepare an entry permit that meets the
requirements of proposed Sec.  1926.1214 (PRCS--entry permits), and
then post this entry permit where the authorized entrants enter the
PRCS. OSHA believes that making the permit available to all authorized
entrants is necessary because they need to know, and be able to refer
back to, the information that is in the permit to work safely in the
PRCS.
    Paragraph (b). This proposed paragraph would require, prior to
removing an entrance cover, that employers eliminate any condition that
makes it unsafe to remove the entrance cover. For example, conditions
such as heat and pressure within the PRCS may pose a danger to
employees removing an entrance cover. In such cases, the cover may be
blown off in the process of its removal, or superheated steam may
suddenly escape and burn the employee. Another example would be where a
sealed cover is removed and toxic gases are released.
    To protect employees from these hazards inside the PRCS, the
employer would be required to make a hazard assessment before any cover
is removed. Removal of the cover to the PRCS would not be permitted
until the employer identifies any hazardous conditions related to the
cover's removal and then eliminates those hazards.
    Paragraph (c). The purpose of this proposed paragraph is to protect
employees in and around the PRCS from being struck by individuals or
objects outside the PRCS that may fall into the space, or that could
injure the employees when they are near the PRCS. When necessary to
achieve this purpose, this proposed provision requires employers to
promptly: use guardrails or covers as specified in 29 CFR 1926.502
(Fall protection systems criteria and practices) of subpart M (Fall
Protection) to guard holes and openings into the space from falling
individuals and objects, and institute measures to control pedestrian
and vehicle traffic in accordance with the requirements in 29 CFR Part
1926 subpart G (Signs, Signals, and Barricades).
    Paragraph (d). Employers would be required to ensure that a safe
method of entering and exiting a PRCS (such as stairways or ladders) is
provided and used, and that it meets applicable OSHA requirements (such
as 29 CFR Part 1926 subpart X (Stairways and Ladders)). For example,
where the employees are working in an underground vault, the employer
would be required to provide and ensure the use of a safe means of
entry into and exit from an underground vault, and, if applicable,
ensure that the method complies with OSHA standards.
    This proposed paragraph also would require that if a hoisting
system is used, it must be designed and manufactured for personnel
hoisting. This proposed provision also allows for the use of job-made
hoisting systems if these systems are approved for personnel hoisting
by a registered professional engineer prior to use in PRCS entry
operations.
    However, commercial hoisting systems not designed and manufactured
specifically for personnel hoisting would not be permissible under this
proposed provision because OSHA believes they cannot be used safely for
this purpose. This proposed requirement would eliminate further
injuries and deaths of employees that could occur from the use of a
hoisting system that was not designed specifically for personnel
hoisting. The provision would give the employer flexibility in its
choice of personnel hoisting systems by allowing a registered
professional engineer to approve a job-made system. OSHA believes that
either option would ensure that the personnel hoisting system will meet
the design specifications needed for employees to safely access the
PRCS.
    This proposed provision would ensure that authorized entrants
always have a safe and effective means of entering and exiting the
space, including escaping from it in an emergency. These means include
systems that are designed and manufactured for personnel hoisting and
job-made hoisting systems approved by a registered professional
engineer, even when these systems are not covered by an OSHA standard.
    Paragraph (e). The provisions under this proposed paragraph
delineate the requirements for an entry supervisor. These proposed
requirements focus overall coordination of PRCS entry operations on the
entry supervisor, and provide that person with authority to terminate
PRCS entry operations and to cancel the entry permit. By centralizing
these duties in a single individual who is highly knowledgeable
regarding PRCS entry operations, these proposed requirements would
substantially enhance the safety of affected employees, especially
authorized entrants.
    Paragraph (e)(1). The employer would be required to assign at least
one entry supervisor for each worksite where there is a PRCS. OSHA
believes that many of the accidents that occur in confined spaces are
the result of an employer's failure to implement confined-space entry
procedures. To help prevent such accidents, the Agency believes that it
is necessary for the employer to not only establish safe procedures for
PRCS entry, but to also ensure that these protective procedures are
implemented. Therefore, to ensure that the protective entry procedures
are implemented, this proposed paragraph requires the employer to
assign an entry supervisor for the PRCS who would coordinate procedures
for entering the PRCS. Accordingly, the entry supervisor has specific
duties that must be fulfilled to ensure a safe workplace for those
employees the employer anticipates will be in or near the PRCS. The
employer would be required to ensure that the assigned individual meets
the qualifications and performs the duties specified in paragraph
(e)(2) of this proposed section.