Paragraph (e)(2). The employer would be required to monitor
atmospheric hazards as specified in proposed Sec.  1926.1205
(Atmospheric testing and monitoring) to ensure that forced-air
mechanical ventilation alone effectively controls atmospheric hazards
at safe levels. This proposed paragraph specifies that employers are to
use continuous monitoring unless they can demonstrate that the
equipment for continuously monitoring a hazard is not commercially
available or periodic monitoring is sufficient. For example, when an
employer demonstrates that atmospheric-testing results in the past for
the CACS have consistently indicated that the change in atmospheric
levels occurs slowly and predictably, periodic monitoring may be
permissible. The Agency believes that this proposed requirement for
continuous monitoring is necessary for the same reasons discussed with
respect to paragraph (b) of proposed Sec.  1926.1211 (Monitoring).
    Paragraph (e)(3). The employer would be required to complete a
written verification of the determinations made under paragraphs (e)(1)
and (e)(2) of this proposed section. The employer would also be
required to ensure that this written verification contains: The
location of the CACS, identity of the physical hazards, methods for
isolating the physical hazards, date and time of determining that
physical hazards remain isolated and the name and signature/initials of
the individual who made this determination, identity and safe level of
atmospheric hazards, methods for controlling the atmospheric hazards,
atmospheric-monitoring results, date and time of atmospheric monitoring
and the name and signature/initials of the individual who completed the
atmospheric monitoring, name and signature/initials of the individual
who completed this document, and the date and time the document was
completed. Lastly, the employer must make the document available to
each employee entering the space and to the employee's authorized
representative.
    The information in this verification document would serve as a
reference to help employees recognize developing

hazards (for example, increases in atmospheric hazards) during entry
operations, so that entrants would know to exit the CACS. Also, after
completing an entry operation, employers could use the information to
evaluate the effectiveness of methods used to isolate physical hazards
and control atmospheric hazards, or to determine the cause of an
accident; in either case, the information would assist the employer in
identifying the necessary corrective action. Making the documentation
available to employees and their authorized representatives would help
ensure that employees have the reference information necessary to
recognize when hazards are developing while engaged in entry
operations.
    To lessen the paperwork burden of this proposed requirement,
employers do not have to document CACS information that remains fixed,
and only need to document information that is likely to vary from the
information used to classify the CACS (see the sample verification
document in proposed Appendix B). Therefore, employers do not need to
document the location of the CACS, identity of the physical hazards,
methods for isolating the physical hazards, identity and safe level of
atmospheric hazards, and methods for controlling the atmospheric
hazards, but must document the date and time of determining that
physical hazards remain isolated and the name and signature/initials of
the individual who made this determination, the results of atmospheric
monitoring, the date and time of atmospheric monitoring and the name
and signature/initials of the individual who completed the atmospheric
monitoring, the name and signature/initials of the individual who
completed the verification document, and the date and time the document
was completed.
    Paragraph (f). This proposed paragraph specifies requirements
employers must follow when an emergency occurs during entry operations,
including the presence of a non-isolated physical hazard or an
atmospheric hazard at unsafe levels.
    Paragraph (f)(1). Under this proposed provision, when an emergency
requires evacuation from a CACS, employers would be required to ensure
that employees exit the space immediately. The Agency believes this
proposed requirement is necessary because once an emergency occurs, the
protective systems in place in the CACS can no longer be relied on to
protect the entrants; their safety then depends on their immediately
getting out of the CACS.
    Paragraph (f)(2). This proposed paragraph requires employers to
identify the physical and atmospheric hazards in accordance with
paragraph (b) of proposed Sec.  1926.1204. Under paragraph (b)(2) of
proposed Sec.  1926.1204, employers must reclassify the space as a PRCS
when it is necessary for the entrant to enter the space to obtain the
required information. The Agency believes that this proposed
requirement is necessary to ensure that the spaces are correctly
assessed, and to ensure that the employees are protected while
conducting the assessments.
    Paragraph (f)(3). This proposed provision requires an employer to
use the information about the confined space that it obtained above
under paragraph (f)(2) of this proposed section, and reclassify the
evacuated space as either a CS-PRCS, PRCS, CACS, or IHCS. The employer
must then follow the precautions and safety procedures listed for the
space classification in the applicable sections of this proposed
standard. The employees cannot reenter the space to perform their
assigned tasks until the employer determines that the conditions within
the confined space meet the classification and prevention/protection
requirements specified for the space. This requirement would ensure
that employees receive appropriate protection prior to reentering the
confined space.

Section 1926.1217--Isolated-Hazard Confined Spaces--Requirements for
Classification and Accident Prevention and Protection

    Paragraph (a). The provisions of this proposed paragraph specify
the requirements for classifying a confined space as an Isolated-Hazard
Confined Space (IHCS). When an employer isolates or eliminates all
atmospheric and physical hazards in a space, the space would qualify
for the IHCS classification. Employers applying that classification
would be required to comply with these proposed provisions before an
employee enters the space. The Agency believes that, in some instances,
employers will meet IHCS classification requirements instead of
classifying a space as a PRCS or CACS; the IHCS classification will
sometimes be more efficient and less costly to implement than the PRCS
or CACS requirements.
    Paragraph (a)(1). The employer would be required to isolate each
physical hazard in the space identified under paragraph (b) of proposed
Sec.  1926.1204. The definition of the terms ``isolate'' or
``isolation'' provided in paragraph (b) of proposed Sec.  1926.1203
(Definitions applicable to this subpart) is ``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.'' In some
situations, employers may perform isolation by de-energizing machinery
or systems using appropriate lockout-tagout procedures (for example, 29
CFR 1926.417 (Lockout and tagging of circuits)).
    While the proposed provision would allow employers flexibility in
the methods and procedures they use to identify and isolate physical
hazards, it would not relieve them from conducting a thorough
assessment of the space and identifying hazards that include, but are
not limited to: Existing or potential liquids, solid materials, and
electricity associated with processes; the use of equipment, ductwork,
and conduits with exposed valves or that terminate in the confined
space; exposed and energized electrical conduits; connected rooms and
reservoirs that present engulfment hazards; and any other recognized
hazards covered by OSHA construction standards. OSHA believes that
isolating all the physical hazards within the space protects employees
while working in the IHCS.
    Paragraph (a)(2). This proposed provision would require employers
to isolate the atmospheric hazards identified in the space as specified
in paragraph (b) of proposed Sec.  1926.1204. In doing so, the employer
must make a determination regarding atmospheric hazards, and adopt an
appropriate method of isolating these hazards that would prevent their
release into the confined space. Properly identifying and implementing
an isolation method increases the likelihood that employees will be
safe while working within the IHCS because all atmospheric hazards will
have been isolated or eliminated.
    Paragraph (a)(3). The employer would be required to isolate the
atmospheric and physical hazards without entering the space. However,
when the employer demonstrates that it is infeasible to isolate the
hazards without entering the space, it may only enter the space if it
complies with the requirements for PRCSs in proposed Sec. Sec.
1926.1208 through 1926.1214 or, when applicable, the requirements for
CS-PRCSs in proposed Sec.  1926.1215. Even when the employer is able to
isolate some of the hazards without entering the space, the space would
remain a PRCS until the

employer isolates every physical and atmospheric hazard in the space.
By maintaining the PRCS classification for these spaces until the
employer completes hazard isolation, this proposed provision would
protect employees from any atmospheric and/or physical hazards during
the isolation process.
    Paragraph (a)(4). Employers would be required to verify in writing
that all of the physical and atmospheric hazards in the space have been
isolated as required by paragraphs (a)(1) and (a)(2) of this proposed
section, and to make this documentation available to each employee who
is entering the space, and to their authorized representatives. The
proposal specifies that the verification document must contain the:
Location of the IHCS, identity of the physical hazards, methods for
isolating the physical hazards, date and time the physical hazards were
isolated and name and signature/initials of the individual who
completed the isolation work, the identity of atmospheric hazards,
methods for isolating the atmospheric hazards, the date and time the
atmospheric hazards were isolated and the name and signature/initials
of the individual who completed the isolation work, name and signature/
initials of the individual who completed this document, and the date
and time the document was completed.
    OSHA believes the information on the verification document would
ensure that employers confirm the effectiveness of protective measures
implemented prior to IHCS entry. This proposed provision is necessary
as an administrative tool to ensure that employees are protected from
physical or atmospheric hazards upon initial entry into an IHCS, and
that the space remains safe during entry operations. The testing
results would also serve as a baseline against which employers and
employees could compare current conditions within the IHCS during entry
operations. The proposed requirement to make the documentation
available to employees and their authorized representatives would
ensure that entrants have the information necessary to detect
developing hazards while they are working in the space. OSHA believes
that when employers and employees have access to these verification
documents, deficiencies in isolation methods can be readily identified,
which would reduce the probability that employees will be injured by
hazards within the IHCS.
    Paragraph (b). The provisions of this proposed paragraph list the
minimum IHCS training requirements. The employer would be required to
ensure that employees performing this work meet these proposed training
requirements before they enter an IHCS, thereby expediting recognition
of hazardous conditions and development of appropriate responses.
    A note to this proposed paragraph states that employers do not need
to document the IHCS training requirements, unlike the training
provisions proposed for PRCSs, CS-PRCSs, and CACSs, which do require
documentation. However, in contrast to PRCSs, CS-PRCSs, and CACSs,
IHCSs contain no hazards or contain isolated hazards. The Agency
believes that IHCS conditions afford employees optimum protection
because the likelihood of employee exposure to a hazard during entry
operations is extremely low. In addition, the training requirements
proposed for IHCSs, which are informational only, are similar to the
training provisions currently specified for confined and enclosed
spaces by 29 CFR 1926.21(b)(6), which does not require training
documentation. OSHA concludes that requiring employers to document this
minimal training requirement would discourage them from classifying
confined spaces as IHCSs, thereby denying employees the safety and
health benefits associated with this classification.
    Paragraph (b)(1). Employers would be required to ensure that
employees who enter IHCSs acquire the knowledge and skills necessary to
recognize the signs, symptoms, and characteristic effects associated
with exposure to the hazards identified under paragraphs (a)(1) and
(a)(2) of this proposed section, and to understand the methods used to
isolate these hazards. OSHA believes that this training is necessary to
prevent accidents caused by an employee's inexperience with working in
an IHCS. This training would allow employees to detect failures in the
methods used to isolate IHCS hazards, and to recognize the physical and
behavioral effects that result from these failures.
    Paragraph (b)(2). Employers would be required to train employees
the employer anticipates will be in or near the IHCS, and who are not
authorized to perform entry rescues, about the dangers of attempting
such rescues. This requirement would deter untrained employees from
attempting entry rescues, thereby preventing them from being
incapacitated, injured, or killed from the hazards in the space.
    Paragraph (c). The requirements of this proposed paragraph address
general preparation for IHCS entry.
    Paragraph (c)(1). 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. The employer would be
required to evaluate the hazards that may be associated with removing
the cover, and then take whatever measures are necessary to ensure that
these hazards are eliminated. For instance, if high-pressure exists
inside the IHCS, the employer would have to determine and implement
measures to address that hazard so that the cover could be removed
safely.
    Paragraph (c)(2). The purpose of this proposed paragraph is to
protect employees in and around the IHCS from being struck by
individuals or objects outside the IHCS that may fall into the space,
or that could injure the employees when they are near the IHCS. 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 (c)(3). Employers would be required to ensure that a safe
method of entering and exiting an IHCS (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.
    The proposed paragraph also would require that if a hoisting system
is used, it must be designed and manufactured for personnel hoisting.
This proposed provision specifies an exception to this requirement that
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 IHCS 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 which 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 IHCS.
    This proposed provision would ensure that employees 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 (d). The three provisions of this proposed paragraph
address the requirements that employers would be required to follow
prior to having employees enter an IHCS.
    Paragraph (d)(1). Employers would be required to ensure that the
physical hazards identified in paragraph (a)(1) of this proposed
section remain isolated. This proposed requirement would ensure that
employees are safe from exposure to physical hazards after entering an
IHCS.
    Paragraph (d)(2). Employers would be required to confirm, through
testing, that the atmospheric hazards identified in paragraph (a)(2) of
this proposed section are isolated. In conducting this testing,
employers must comply with the requirements of paragraph (a) of
proposed Sec.  1926.1205. This proposed provision would protect
employees from atmospheric hazards during initial entry into an IHCS.
    Paragraph (d)(3). Employers would be required to verify in writing
the determinations made and the actions taken under paragraphs (d)(1)
and (d)(2) of this proposed section. The information provided in this
documentation must include the: Location of the IHCS, identity of the
physical hazards, methods for isolating the physical hazards, date and
time the physical hazards were isolated, date and time of determining
that physical hazards remain isolated and the name and signature/
initials of the individual who made this determination, identity of the
atmospheric hazards, methods for isolating the atmospheric hazards,
date and time the atmospheric hazards were isolated, date and time of
determining that atmospheric hazards remain isolated and the name and
signature/initials of the individual who made this determination, name
and signature/initials of the individual who completed this document,
and date and time the document was completed. In addition, the document
shall be made available by posting or other methods to employees
entering the IHCS and to the employee's authorized representative.
    This proposed requirement would provide assurance that the IHCS is
safe to enter, as well as information that could be used to detect a
developing hazard (for example, indication of an atmospheric
contaminant during subsequent entry operations). Therefore, this
information would provide employees with protection against physical or
atmospheric hazards while entering an IHCS. Other employers, including
subcontractors, may benefit from this information since it would be
relevant to (though not a substitute for) their own hazard assessment
of the space.
    This information nearly duplicates the information specified above
in paragraph (a)(4) of this proposed section. To lessen the paperwork
burden of this proposed requirement, employers do not have to document
IHCS information that remains fixed, and only need to document
information that is likely to vary from the information used to
classify the IHCS (see the sample verification document in proposed
Appendix B). Therefore, employers do not need to document the location
of the IHCS, identity of the physical hazards, methods for isolating
the physical hazards, date and time the physical hazards were isolated,
identity of atmospheric hazards, methods for isolating the atmospheric
hazards, and date and time the atmospheric hazards were isolated, but
must document the date and time of determining that physical hazards
remain isolated and the name and signature/initials of the individual
who made this determination, the date and time of determining that
atmospheric hazards remain isolated and the name and signature/initials
of the individual who made this determination, name and signature/
initials of the individual who completed the verification document and
the date and time the document was completed.
    Paragraph (e). This proposed paragraph contains two provisions
regarding IHCSs during entry operations. Employers would be prohibited
from having employees continue to engage in entry operations unless
these proposed provisions are met.
    Paragraph (e)(1). Employers would be required to ensure that the
physical and atmospheric hazards identified in paragraphs (a)(1) and
(a)(2) of this proposed section remain isolated during entry
operations. For example, following the requirements of paragraph (a) of
proposed Sec.  1926.1205 would allow an employer to determine the
effectiveness of methods used to isolate atmospheric contaminants; for
some physical hazards, employers may perform periodic inspections of
blocking, blanking, and lockout-tagout methods to ensure their
continuing effectiveness. By requiring employers to ensure that
physical and atmospheric hazards remain isolated, this proposed
provision would prevent physical and atmospheric hazards from entering
an IHCS occupied by employees.
    Paragraph (e)(2). This proposed paragraph specifies requirements
employers must follow when an emergency occurs during entry operations,
including the presence of a non-isolated physical hazard or an
atmospheric hazard.
    Paragraph (e)(2)(i). Under this proposed provision, when an
emergency requires evacuation from an IHCS, employers would be required
to ensure that employees exit the space immediately. The Agency
believes this proposed requirement is necessary because once an
emergency occurs, the protective systems in place in the IHCS can no
longer be relied on to protect the entrants; their safety then depends
on their immediately getting out of the IHCS. This provision would
ensure that employees minimize their exposure to physical or
atmospheric hazards.
    Note that this proposed provision does not require employers
engaged in IHCS operations to have a rescue service available during
emergencies. OSHA believes that, unlike PRCSs and CS-PRCSs, IHCSs
contain no hazards or contain isolated hazards. The Agency believes
that IHCS conditions afford employees optimum protection because the
likelihood of employee exposure to a hazard during entry operations is
extremely low. OSHA believes that requiring employers to have entry
rescue services available during IHCSs entry operations would
discourage them from classifying confined spaces as IHCSs, thereby
denying employees the safety and health benefits associated with this
classification. Nevertheless, employers must be able to rescue
employees during IHCS operations when required to do so by other OSHA
standards. For instance, if employers use fall-arrest systems in IHCSs,
then 29 CFR 1926.502(d)(20) requires that they promptly rescue
employees who experience an arrested fall, or assure that the employees
are able to rescue themselves.
    Paragraph (e)(2)(ii). This proposed paragraph requires employers to
identify the physical and atmospheric

hazards in accordance with paragraph (b) of proposed Sec.  1926.1204.
Under paragraph (b)(2) of proposed Sec.  1926.1204, employers must
reclassify the space as a PRCS when it is necessary for the entrant to
enter the space to obtain the required information. When doing so,
employers must comply with the accident-prevention and protection
requirements specified for PRCSs by proposed Sec. Sec.  1926.1208
through 1926.1214 (and, if applicable, proposed Sec.  1926.1215 for CS-
PRCSs). The Agency believes that this proposed requirement is necessary
to ensure that the spaces are correctly assessed and to ensure that the
employees are protected while conducting the assessments.
    Paragraph (e)(2)(iii). This proposed provision requires an employer
to use the information about the confined space that it obtained under
paragraph (e)(2)(ii) of this proposed section, and reclassify the
evacuated space as either a CS-PRCS, PRCS, CACS, or IHCS. The employer
must then follow the precautions and safety procedures listed for the
space classification in the applicable sections of this proposed
standard. The employees cannot reenter the space to perform their
assigned tasks until the employer determines that the conditions within
the confined space meet the classification and prevention/protection
requirements specified for the space. This requirement would ensure
that employees receive appropriate protection prior to reentering the
confined space.

Section 1926.1218--Equipment

    Paragraph (a). The provisions of this proposed paragraph specify
the equipment employers would have to provide for confined-space
operations. These proposed provisions also require employers to
properly maintain, calibrate, and use the equipment required by this
proposed standard.
    Paragraph (a)(1). The employer would be required to provide and
ensure the use of the atmospheric-testing and -monitoring equipment
needed to comply with this proposed standard. OSHA believes that this
equipment is essential for protecting employees from atmospheric
hazards.
    Paragraph (a)(2). The employer would be required to provide forced-
air mechanical ventilation equipment when needed to meet the
requirements of this proposed standard. For example, the employer would
be required to provide such equipment if it is needed to meet the
requirements of paragraphs (a)(2) and (d)(3) of proposed Sec.
1926.1216 (for control of atmospheric hazards such as dusts, fumes,
mists, vapors, or gases). Forced-air mechanical-ventilation equipment,
when used appropriately under proposed Sec.  1926.1216 (Controlled-
atmosphere confined spaces--requirements for classification and
accident prevention and protection), would protect employees from the
atmospheric hazards. The employer would also be required to provide it
where it is used to help establish planned conditions for entry
operations under proposed Sec. Sec.  1926.1208 through 1926.1214
(PRCSs) or proposed Sec.  1926.1215 (CS-PRCSs). In those instances, use
of the equipment would be a significant factor in protecting the
employees.
    Paragraph (a)(3). The employer would be required to provide
personal protective equipment (PPE), including respirators, when needed
to comply with this proposed standard. When employees use respirators,
the respirator requirements in 29 CFR 1926.103 (Respiratory protection)
must be met.\4\ For example, failure to use the appropriate filters in
a respirator can render its use ineffective, and would be a violation
of 29 CFR 1926.103. OSHA believes that when the appropriate PPE is
provided, maintained, and used in accordance with OSHA standards that
address the identified hazard, the employees will be protected from
serious injury or death. (Note: The issue of employer payment for PPE
is the subject of a separate rulemaking (see 64 FR 15402). The Agency
has indicated that it will complete that rulemaking in the near
future.)
    Paragraph (a)(4). The employer would be required to provide any
equipment not already mentioned that is necessary for safe confined-
space operations. OSHA believes this proposed requirement would ensure
that the appropriate equipment is available at the job site so
employees receive adequate protection from hazards present during
confined-space operations. Accordingly, the employer would have to
identify this additional equipment after conducting an assessment of
the confined space as required by the applicable sections of this
proposed standard, and then provide and ensure the use of it.
---------------------------------------------------------------------------

    \4\ 29 CFR 1926.103 cross-references OSHA's Respiratory
Protection Standard at 29 CFR 1910.134.
---------------------------------------------------------------------------

    Paragraph (b). This proposed paragraph specifies requirements for
equipment, including maintenance, calibration, and use, needed to
comply with this standard. OSHA believes the use of improperly
maintained or calibrated equipment could severely compromise the
testing and monitoring of conditions within the space and result in
employee injury or death. For example, if a gas monitor is not properly
calibrated, it may fail to indicate a dangerous hazard level, leading
employees to incorrectly believe that it is safe to enter the space.
    Under this proposed provision, employers also must ensure that
employees use equipment properly to meet the requirements of this
proposed standard. For instance, the cords of electrical equipment must
not be used to suspend or lower other equipment into a confined space,
or the exhaust from powered equipment shall not be used to provide heat
for employees inside a confined space. Meeting the requirements of this
provision would ensure that employees would not be injured or killed
due to the unsafe use of equipment while performing work in and around
confined spaces.
    Paragraph (b)(1). Under proposed paragraph (b)(1), the employer
would be required to ensure that equipment used to meet requirements of
this standard complies with other applicable OSHA requirements with
regard to maintenance, calibration, and use. Accordingly, the employer
must adhere to other OSHA standards that provide criteria for equipment
such that the equipment will not injure or kill employees who must use
it. For example, ventilation systems and any fall protection used must
meet the requirements of appropriate OSHA standards.
    Paragraph (b)(2). This proposed provision would provide employers
with alternatives in case no applicable OSHA standard is available to
regulate the maintenance, calibration, and use of equipment required by
this proposed standard.
    Paragraph (b)(2)(i). This proposed provision would require
employers to use manufacturers' instructions as the principal
alternative when an OSHA standard is not available. Equipment
manufacturers are most familiar with the components, configuration, and
safe and healthful operation of their equipment; this information
places them in the best position to specify the proper maintenance,
calibration, and use of this equipment when an appropriate OSHA
standard is not available.
    Paragraph (b)(2)(ii). If neither an OSHA standard nor
manufacturers' instructions are available to maintain, calibrate, and
use equipment, this proposed provision would require employers to
follow the recommendations of a qualified individual. As required by 29
CFR 1926.32(m), a properly qualified individual would possess the

recognized training, education, professional standing, experience and/
or demonstrated ability necessary to make decisions that will ensure
the proper maintenance, calibration, and use of equipment used in
confined spaces. In making these recommendations, a qualified
individual may refer to other available sources such as national
standards and industry-recognized safe work practices. The Agency
believes that the recommendations of a qualified individual, in absence
of applicable OSHA standards and manufacturers' instructions, would
assure that equipment required by this proposed standard functions as
it is designed to do, thereby providing safe working conditions for
employees in confined spaces.

Section 1926.1219--Records

    Paragraph (a). This proposed provision would require that the
employer either maintain a copy of this standard at the job sites where
there is a confined space or maintain a copy of a written confined-
space program at the sites that incorporates the standard's
requirements. This proposed standard was drafted and organized to
direct employers through the steps necessary to protect their employees
from confined-space hazards, especially employers who are unfamiliar
with confined-space work and may not initially recognize the potential
dangers of working within a confined space.
    OSHA believes that when an employer has a copy of the construction
confined-spaces standard at the job site, along with the documentation
required for each section, there is no need to also have a written
program. However, if an employer instead prefers to maintain a copy of
a written confined-space program at the job site, the proposed
provision gives such employers that option so long as that program
incorporates the requirements of the proposed standard applicable to
the employer's work at the site. For example, if an employer works
within chemical tanks that are not CS-PRCSs, and prefers to treat them
as PRCSs (rather than meeting CACS or IHCS requirements), such an
employer may opt to maintain a written program at that site that
addresses the requirements for PRCSs but does not address CACS and IHCS
requirements. Whichever option the employer chooses, the Agency
believes that it is necessary for a written copy of this standard or
the written confined-space program be available at the site as a
reference for employees who are involved with implementing safe entry
procedures.
    Paragraph (b). The employer would be required to retain for at
least one year entry permits for all PRCS work performed by their
employees. The one-year time period would begin on cancellation of the
entry permit for any reason (for example, evacuation of the space or
completion of the work specified by the permit). Employers that perform
PRCS work must retain entry permits to conduct the required 12-month
review specified by paragraph (b)(1) of proposed Sec.  1926.1214.
    The note to this paragraph states that, when an entry permit meets
the definition of an ``employee exposure record'' as defined by 29 CFR
1910.1020(c)(5), employers must retain the applicable entry permits for
the period specified in 29 CFR 1910.1020(d) (Preservation of records).
(The provisions of 29 CFR 1910.1020 (Access to employee exposure and
medical records) are made applicable to construction operations by 29
CFR 1926.33.) OSHA believes that requiring employers to maintain these
exposure records will give healthcare providers, in the event of an
emergency, access to information about the substances and exposure
levels the employee may have experienced while working within a
confined space. This information is needed to enable medical care to be
effectively administered to injured employees.
    Paragraph (c). Employers would be required to maintain training
records in accordance with proposed Sec. Sec.  1926.1209(d)(5) (PRCSs)
and 1926.1216(b)(2)(v) (CACSs). OSHA believes that employee training
records are an important administrative tool for tracking which
employees have received required training. Accordingly, these training
records need only be maintained during the time in which the employee
continues to be employed by his/her employer. Requiring employers to
maintain employee training records for a longer period is especially
burdensome to construction employers because of the high employee
turnover rates they typically experience.
    This proposed paragraph requires employers to maintain employee
training documents only for employees who work in PRCSs and CACSs, not
for employees who work in IHCSs. The proposed paragraph did not include
training records for employees who work in IHCSs because, unlike PRCSs
and CACSs in which hazards are still present during confined-space
operations, IHCSs either contain no hazards or employers isolate any
hazards that are identified. Therefore, employees who perform work in
an IHCS are not exposed to any physical or atmospheric hazards related
to conditions within the IHCS, and OSHA believes that requiring
construction employers to maintain employee training records when they
are not required by other OSHA standards would subject them to an
unnecessary burden.
    Paragraph (d). This paragraph would require documents mandated in
paragraphs (a)(3), (d)(4), and (e)(3) of proposed Sec.  1926.1216
(CACSs) and paragraphs (a)(4) and (c)(3) of proposed Sec.  1926.1217
(IHCSs) to be maintained by the employer until the work in the confined
space is completed. OSHA believes these documents are important
administrative tools for employers who perform work in these types of
confined spaces. Employees who work within or around these types of
confined spaces will be able to better recognize deficiencies in
isolation and control methods, or changes in the conditions within the
confined space, when they can reference these documents.
    The Agency recognizes, however, that confined spaces that are
classified as CACSs or IHCSs typically involve more predictable and
less complex hazard-protection scenarios than those usually associated
with CS-PRCSs and PRCSs. Therefore, unlike PRCS entry permits, the
Agency believes that it is not necessary for employers to maintain the
CACS and IHCS verification documents for review and evaluation after
the work is completed. Similar to the note to paragraph (b) of this
proposed section, the note in this proposed paragraph requires that
these documents be maintained for longer periods if they constitute
exposure records under 29 CFR 1910.1020 (Access to employee exposure
and medical records).
    Paragraph (e). Employers would be required to make all documents
required to be retained under this proposed standard available to the
Secretary of Labor upon request. The request from the Secretary or the
Secretary's designee (for example, OSHA) may be either oral or written.
Unless another provision of this proposed standard requires a document
to be maintained at the worksite, these documents may be kept off site
as long as they can be readily produced by the employer. These
documents pertain to the determinations made and actions taken
regarding hazards. They provide valuable information to those
inspecting the worksite in determining whether elements of this
proposed standard have been met.

IV. Issues for Comment

    OSHA requests comments from the public on any issues related to
this

proposed standard. However, OSHA is specifically requesting the public
to comment on, and provide additional information regarding, the issues
listed below. Please provide a detailed rationale for each response
made to these issues.
    1. Comparison to subpart P. In a recent regulatory review of 29 CFR
part 1926 subpart P (Excavations), a commenter stated that the Agency
should clarify that trenches are not confined spaces, while another
commenter recommended that, for ease of use, OSHA combine the
excavation standards in subpart P and this proposed standard for
confined spaces into a single standard (Ex. 2-7, OSHA Docket No. S-
204A). In addition, another commenter noted that 29 CFR
1926.651(g)(1)(iii) of subpart P states that the lower flammable limit
(LFL) is 20 percent for an atmosphere containing a flammable gas, while
the definition of ``hazardous atmosphere'' in paragraph (b) of the
general industry confined-spaces standard specifies an LFL of 10
percent for a flammable gas, vapor, or mist (Ex. 2-4, OSHA Docket No.
S-204A). This proposed standard for confined spaces in construction
adopts an LFL of 10 percent in its definition of ``hazardous
atmosphere,'' which is the same LFL as in the general industry standard
and in the ANSI Z117.1-2003 industry consensus confined-spaces
standard. The commenter requested that OSHA make these LFL requirements
similar.
    In section III (``Summary and Explanation of the Proposed
Standard'') of this proposal, the Agency notes that paragraph (b) of
proposed Sec.  1926.1202 clearly states that excavations covered by
subpart P are not confined spaces covered by this proposed standard.
OSHA believes that subpart P provides sufficient protection from
confined-space hazards during excavation work. However, the Agency
would be interested in comments on this proposed exception, as well as
on the recommendation to combine the excavation standard and this
proposed standard into a single standard. Additionally, OSHA requests
comment on the advisability of reconciling the difference in LFLs
between the excavation standard in subpart P and this proposed
standard, including which LFL (that is, 10 percent or 20 percent)
should be adopted.
    2. Equipment necessary for a single attendant to monitor multiple
PRCSs. Paragraph (f)(3)(ii) of proposed Sec.  1926.1210 requires
employers to provide the equipment needed by an attendant to respond to
an emergency affecting any of the PRCSs the attendant is monitoring. In
the preamble discussion of this proposed provision, OSHA states that
this equipment may include electronic equipment, such as electronic
audio and video tools, and that it is unrealistic to expect a single
attendant to monitor multiple PRCSs and to accomplish the other tasks
assigned to him/her in paragraph (f) of proposed Sec.  1926.1211
without the assistance provided by this electronic equipment. OSHA is
requesting public comment on what means (other than electronic
equipment) are available that employers could use that would allow an
attendant to effectively monitor multiple PRCSs and to accomplish other
assigned tasks, while simultaneously providing employees with the same
level of protection they would receive when an attendant monitors only
a single PRCS.
    3. Mechanical device for vertical retrieval during rescue.
Paragraph (a)(3) of proposed Sec.  1926.1213 would require that
employers use a mechanical device for retrieving employees from a PRCS
when such retrieval involves vertical distances over five feet (1.52
m). In the preamble discussion of this proposed paragraph, OSHA noted
that securing the retrieval line to an anchor point or using a simple
pulley for this purpose could endanger the authorized entrant because
most attendants do not have sufficient strength and stamina to lift a
disabled entrant over a vertical distance of more than five feet.
However, the Agency also noted in this discussion that it recognizes
that using the required mechanical devices may present problems to
employers because some PRCSs may lack room to position the equipment
above the entry point, or employers may need to keep the entry clear
for the attendant to observe the authorized entrants while they are
working. Therefore, OSHA is requesting commenters to provide
information on other alternatives (other than using anchor points and/
or simple pulleys) that employers could use for this purpose that would
not occlude the PRCS entrance, or would be less obtrusive than the
mechanical devices required by this proposed provision.
    4. Timely response to a rescue summons. Paragraph (b)(1)(i) of
proposed Sec.  1926.1213 specifies that the employer must ensure that
the rescue service can respond to a rescue summons in a timely manner,
and defines the term ``timeliness'' as a function of how quickly a
rescue service needs to reach an employee to prevent further serious
physical harm that may result from hazards in the PRCS while waiting to
be rescued. OSHA is soliciting comments on this definition, especially
whether it is adequate as proposed, should remain performance based as
proposed but revised in some fashion, or should specify an exact time
for the rescue service to respond to the summons (for example, three
minutes).
    5. Maintaining CACS and IHCS verification documents. The
requirements of paragraph (d) of proposed Sec.  1926.1219 (Records)
states that employers need only maintain CACS and IHCS verification
documents until they complete the work in the confined space. In
justifying this requirement, OSHA notes that CACSs or IHCSs typically
involve more predictable and less complex hazard-protection conditions
than PRCSs; consequently, the need to review and evaluate CACS and IHCS
verification documents is less than for PRCS entry permits, which
employers must maintain for at least one year to evaluate the safety
and efficacy of entry operations. Therefore, the Agency believes that
it is not necessary for employers to maintain the CACS and IHCS
verification documents for review and evaluation after the work is
completed. OSHA is seeking comment on whether CACS and IHCS entry
operations warrant maintaining the verification documents for a longer
period than specified by this proposed provision. If so, the Agency is
requesting commenters to identify these conditions and recommend how
long the period should be.
    6. Rescue Service Preparation and Changes in Confined-Space
Configuration. The requirements of proposed Sec.  1926.1213(b)(1)
states that employers ``must ensure that the entry rescue service can
effectively perform entry-rescue tasks in the PRCSs the authorized
entrant(s) will enter.'' In addition, proposed Sec.
1926.1213(b)(1)(ii) requires employers to ensure that the entry rescue-
service: ``Prior to beginning operations, has access to the PRCS the
authorized entrants will enter or to a Simulated PRCS so the entry
rescue service can develop appropriate rescue plans and practice rescue
operations.'' OSHA estimates that the majority of construction
employers who perform work within confined spaces will rely upon
public-sector emergency services to perform rescue services.
Accordingly, the Agency is seeking comments from the public regarding
any difficulties employers have experienced with public-sector
emergency services being unable to perform entry rescues in confined
spaces that rapidly change in configuration during the construction
process. For example, have instances occurred when public-sector
emergency services were unable to perform entry

rescues because the configuration of a space changed during the
performance of construction activities, and the size and type of the
rescue service's equipment was unsuitable for the reconfigured space?
Is it feasible for employers to plan for changes in the configuration
of confined spaces, and to communicate this information to public-
sector emergency services so that the rescue services can properly
train and equip themselves to perform entry rescues in the changing
spaces?

V. Procedural Determinations

A. Legal Authority

    The purpose of the Occupational Safety and Health Act of 1970,
(``the Act''; 29 U.S.C. 651 et seq.), is ``to assure so far as possible
every working man and woman in the nation safe and healthful working
conditions and to preserve our human resources.'' (29 U.S.C. 651(b).)
To achieve this purpose, Congress authorized the Secretary of Labor to
promulgate and enforce occupational safety and health standards. (29
U.S.C. 655(b) and 658.)
    Under the Act, a safety or health standard is a standard ``which
requires conditions, or the adoption or use of one or more practices,
means, methods, operations, or processes, reasonably necessary or
appropriate to provide safe or healthful employment or places of
employment.'' (29 U.S.C. 652(8).) A standard is reasonably necessary or
appropriate within the meaning of Section 652(8) when it substantially
reduces or eliminates significant risk, and is technologically and
economically feasible, cost effective, consistent with prior Agency
action or supported by a reasoned justification for departing from
prior Agency action, and supported by substantial evidence; it also
must effectuate the Act's purposes better than any national consensus
standard it supersedes (see International Union, UAW v. OSHA (LOTO II),
37 F.3d 665 (DC Cir. 1994; and 58 FR 16612-16616 (March 30, 1993)).
Rules promulgated by the Agency must be highly protective (see 58 FR
16612, 16614-15 (March 30, 1993); LOTO II, 37 F.3d 665, 669 (DC Cir.
1994)). Moreover, Section 8(g)(2) of the Act authorizes OSHA ``to
prescribe such rules and regulations as [it] may deem necessary to
carry out its responsibilities under the Act'' (see 29 U.S.C.
657(g)(2)).
    OSHA based the proposed rule on evidence that its provisions are
necessary to ensure proper employee protection when they are exposed to
confined spaces. Accordingly, the Agency believes that the proposed
provisions will substantially reduce the significant risk faced by
employees working in confined spaces (see Industrial Union Dept. v.
American Petroleum Institute, 448 U.S. 607, 655 (1980); International
Union v. Pendergrass, 878 F.2d 389, 392-93 (DC Cir. 1989); Building and
Construction Trades Dept., AFL-CIO v. Brock, 838 F.2d 1258, 1264-65 (DC
Cir. 1988)). OSHA also made a preliminary finding that the proposed
rule is technologically feasible because the protective measures it
requires already exist (see American Textile Mfrs. Institute v. OSHA
(Cotton Dust), 452 U.S. 490, 513 (1981); American Iron and Steel
Institute v. OSHA (Lead II), 939 F.2d 975, 980 (DC Cir. 1991)).
    The Agency believes that the proposed rule is economically feasible
because the construction industry can absorb or pass on the costs of
compliance without threatening its long-term profitability or
competitive structure (see Cotton Dust, 452 U.S. at 530 n. 55 (1981);
Lead II, 939 F.2d 975, 980 (DC Cir. 1991)). Moreover, the preliminary
economic analysis of the proposed rule describes the benefits and costs
of the proposed rule (see section V.B. of this preamble, ``Summary of
the Preliminary Economic Analysis and Initial Regulatory Flexibility
Analysis''). Based on this information, OSHA made a preliminary
determination that the proposed rule is an economically feasible means
of meeting its statutory objective of reducing the risk associated with
employee exposure to confined spaces (see Cotton Dust, 453 U.S. at 514
n. 32 (1981); LOTO II, 37 F.3d 665, 668 (DC Cir. 1994)).

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

    Under Section 6(b) of the Occupational Safety and Health Act of
1970 (``the Act''; 29 U.S.C. 655), OSHA must ensure and demonstrate
that standards promulgated under the Act are reasonably necessary or
appropriate, as well as technologically and economically feasible.
Executive Order 12866, the Regulatory Flexibility Act, and the Unfunded
Mandates Reform Act also require OSHA to estimate the costs, assess the
benefits, and analyze the impacts of certain rules that the Agency
promulgates. Accordingly, OSHA has prepared a Preliminary Economic
Analysis (PEA) for this proposed standard. The complete PEA can be
found in OSHA Docket OSHA-2007-0026 (Ex. OSHA-2007-0026-0002); a
summary of the analysis is presented here. OSHA based the PEA largely
on research conducted for this purpose by CONSAD Research Corporation
(Ex. OSHA-2007-0026-0003).
Need for Regulation
    Employees in work environments addressed by the proposed standard
are exposed to a variety of significant hazards that can and do cause
serious injury and death. The risks to employees are excessively large
due to the existence of market failures, and existing and alternative
methods of alleviating these negative consequences have been shown to
be insufficient. After carefully weighing the various potential
advantages and disadvantages of using a regulatory approach to improve
upon the current situation, OSHA preliminarily concludes that in this
case the proposed mandatory standard represents the best choice for
reducing the risks to employees.
Affected Industries
    The proposal would affect employers and employees in a variety of
different construction industries in which confined spaces are entered
as part of the performance of work duties. These industries include
firms involved in construction projects such as multi-family housing;
industrial buildings and warehouses; other non-residential buildings;
highway and street construction; water, sewer, power, and communication
line construction; and other construction projects in which confined
spaces may be present. The firms that would be primarily affected by
the proposed standard would be those that have overall responsibility
for the work done on a particular construction project involving a
confined space, including the work of their own employees and that of
any subcontractors.
Benefits, Net Benefits, and Cost Effectiveness
    The proposed standard is expected to result in an increased degree
of safety for the affected employees. Compliance with the relevant
provisions of the standard is expected to reduce the numbers of
accidents, fatalities, injuries, and illnesses associated with the
affected projects (Ex. OSHA-2007-0026-0002).
    Preliminary estimates indicate that about six fatalities and 880
injuries could be avoided annually through full compliance with the
provisions of the proposed standard. Applying an average monetary value
of $50,000 per prevented injury, and an average monetary value of $6.8
million per prevented fatality, results in an estimated monetized
benefit of about $85 million annually.

    Additional benefits associated with this rulemaking involve
providing updated, clear, and comprehensive information about
appropriate safety requirements and procedures regarding construction
work in confined spaces to the relevant employers, employees, and
interested members of the public. OSHA believes that the updated
standard would enhance employee safety and would be easier to
understand and to apply than the various requirements currently
applicable to such work. They will benefit employers and employees by
facilitating compliance, while improving safety. The benefits
associated with providing updated and clear safety standards have not
been monetized or quantified.
    Table 2 below provides a summary of the costs and benefits of the
proposed standard, and shows the net benefits and cost effectiveness of
the standard. Net benefits are estimated to be $8.2 million annually.
The cost effectiveness of the standard can be expressed as the
prevention of approximately one fatality and 147 injuries per $13
million in costs, or alternatively, $1.11 of benefits per dollar of
cost.

              Table 2.--Net Benefits and Cost Effectiveness
------------------------------------------------------------------------
               Requirement                             Cost
------------------------------------------------------------------------
                            Annualized Costs
------------------------------------------------------------------------
Evaluation, classification, and          $5.6 million.
 notification.
------------------------------------------------------------------------
Issue permits, verify safety, and        $6.1 million.
 review procedures.
Provide ventilation and isolate hazards  $6.0 million.
Atmospheric monitoring.................  $11.7 million.
Attendant..............................  $14.0 million.
Respiratory protection.................  $10.0 million.
Rescue capability......................  $9.6 million.
Training...............................  $8.1 million.
Other requirements.....................  $5.7 million.
       Total annual costs..............   $76.8 million.
------------------------------------------------------------------------
                Benefit                              Quantity
------------------------------------------------------------------------
                             Annual Benefits
------------------------------------------------------------------------
Number of fatalities prevented.........  6.
------------------------------------------------------------------------
Number of injuries prevented...........  880.
Monetized benefits (assuming $6.8        $85 million.
 million per fatality and $50,000 per
 injury prevented).
OSHA standards updated and clarified...  Not quantified.
Total annual benefits..................  6 fatalities and 880 injuries
                                          prevented.
Net annual benefits (benefits minus      $8.2 million.
 costs).
Cost effectiveness.....................  1 fatality and 147 injuries
                                          prevented per $13 million or
                                          $1.11 of benefits per $1.00 of
                                          cost.
------------------------------------------------------------------------

    Note: Costs represent 2002 dollars.

    OSHA recognizes that uncertainties may be associated with estimates
of benefits. Therefore, OSHA is asking for public comment on the
overall estimates of benefits addressed by the proposed standard, and
the methodology used to determine the effectiveness of the standard in
preventing death and injury.
Compliance Costs
    The estimated compliance costs for this proposed standard represent
the additional costs necessary for employers to achieve full
compliance. They do not include costs incurred by employers who already
are complying with the new requirements that would be imposed by the
proposed standard (Ex. OSHA-2007-0026-0002).
    The total annual cost of compliance with the proposed standard is
estimated to be about $77 million. The major provisions involving
compliance costs include the evaluation, classification, and
notification of confined spaces ($5.6 million); issuing entry permits,
verifying the safety of spaces, and reviewing procedures ($6.1
million); isolating hazards and providing sufficient ventilation ($6.0
million); conducting atmospheric monitoring ($11.7 million); providing
an attendant ($14.0 million); providing a complete respiratory-
protection program as required by 29 CFR 1926.103 ($10.0 million);
providing rescue capability ($9.6 million); providing training ($8.1
million); and other requirements ($5.7 million).
Economic Impacts
    To assess the effects and magnitude of the economic impacts
associated with compliance with the proposed rule, OSHA developed
quantitative estimates of the potential economic impact of the
requirements on entities in each of the affected industry sectors (Ex.
OSHA-2007-0026-0002). The estimated costs of compliance were compared
with industry revenues and profits to provide an assessment of
potential economic impacts.
    The costs of compliance with the proposed rule are not large in
relation to the corresponding annual financial flows associated with
the regulated activities. The estimated costs of compliance represent
about 0.1 percent or less of revenues for each affected industry.
Alternatively, the compliance costs represent less than 1 percent of
profits for most affected industries, and no more than 2.5 percent of
profits for any affected industry.
    The economic impact of the proposed rule is most likely to consist
of a small increase in prices for affected construction projects of
less than 0.03 percent on average. It is unlikely that a price increase
on the magnitude of 0.03 percent or less will significantly alter the
services demanded by the public or any other affected customers or
intermediaries. If the compliance costs of the proposed rule can be
substantially recouped with a minimal increase in

prices, there may be little or no effect on profits.
    OSHA concludes that compliance with the requirements of the
proposed rule is economically feasible in every affected industry
sector. In addition, based on an analysis of the costs and economic
impacts associated with this rulemaking, OSHA preliminarily concludes
that the effects of the proposed standard on international trade,
employment, wages, and economic growth for the United States would be
negligible.
Initial Regulatory Flexibility Analysis
    The Regulatory Flexibility Act, as amended in 1996, requires the
preparation of an Initial Regulatory Flexibility Analysis (IRFA) for
certain proposed rules. (5 U.S.C. 601-612.) Under the provisions of the
law, each such analysis shall contain:
    1. A description of the impact of the proposed rule on small
entities;
    2. A description of the reasons why action by the agency is being
considered;
    3. A succinct statement of the objectives of, and legal basis for,
the proposed rule;
    4. A description of and, where feasible, an estimate of the number
of small entities to which the proposed rule will apply;
    5. A description of the projected reporting, recordkeeping and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities that will be subject to the
requirements and the type of professional skills necessary for
preparation of the report or record;
    6. An identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap or conflict with the proposed
rule; and
    7. A description and discussion of any significant alternatives to
the proposed rule that accomplish the stated objectives of applicable
statutes and that minimize any significant economic impact of the
proposed rule on small entities, including:
    (a) The establishment of differing compliance or reporting
requirements or timetables that take into account the resources
available to small entities;
    (b) The clarification, consolidation, or simplification of
compliance and reporting requirements under the rule for such small
entities;
    (c) The use of performance rather than design standards; and
    (d) An exemption from coverage of the rule, or any part thereof,
for such small entities.
    The Regulatory Flexibility Act further states that the required
elements of the IRFA may be performed in conjunction with or as part of
any other agenda or analysis required by any other law if such other
analysis satisfies the relevant provisions. The following paragraphs
discuss each of the elements of the IRFA.

1. Impact of the Proposed Rule on Small Entities.

    OSHA has analyzed the potential impact of the proposed standards on
small entities. The total annual cost of compliance with the proposal
for small entities is estimated to be $42.4 million, as shown by
industry in Table 3. To assess the potential economic impact of the
proposal on small entities, OSHA calculated the ratios of compliance
costs to profits and to revenues. These ratios are presented for each
affected industry in Table 3. OSHA expects that among small entities
potentially affected by the proposal, the average increase in prices
necessary to completely offset the compliance costs would be 0.02
percent. The average price increase necessary to completely offset
compliance costs would not exceed 0.12 percent among small entities in
any industry.

                                        Table 3.--Potential Economic Impacts for Small Entities (SBA Definition)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Costs as a   Costs as a
                                                                                Small entity     Small entity    percent of   percent of
             Industry code                         Industry name            Compliance costs  revenues  ($000)      profits       revenues     profits
                                                                                ($000)          (%)          (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
SIC 1522...............................  Residential Housing--Multi-family        $5,725,951       $11,495,106        $505,785         0.05         1.13
SIC 1541...............................  Industrial Buildings and                  5,866,386        19,360,399         793,776         0.03         0.74
                                          Warehouses.
SIC 1542...............................  Other Nonresidential Buildings...        11,180,340        91,307,565       3,287,072         0.01         0.34
SIC 1611...............................  Highway and Street Construction..         6,010,530        26,957,228       1,186,118         0.02         0.51
SIC 1622...............................  Bridges, Tunnels, and Elevated            4,842,583         3,933,715         110,144         0.12         4.40
                                          Highways.
SIC 1623...............................  Water, Sewer, Power, and                  1,494,314        18,867,729         641,503         0.01         0.23
                                          Communication Lines.
SIC 1629...............................  Heavy Construction, Not Elsewhere         5,304,682        15,031,723         977,062         0.04         0.54
                                          Classified.
SIC 1791...............................  Structural Steel Erection                 2,023,887         5,160,641         258,032         0.04         0.78
                                          Contractors.
                                        ----------------------------------------------------------------------------------------------------------------
    Total \1\..........................  .................................        42,448,675       192,114,106       7,759,492         0.02        0.55
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ For all Affected Industries.

    Only to the extent that such price increases are not possible would
there be any effect on the average profits of small entities. Even in
the unlikely event that no costs could be passed through, the
compliance costs could be completely absorbed through an average
reduction in profits of 0.55 percent. In most affected industries the
compliance costs could be completely absorbed through an average
reduction in profits of less than 1 percent; the reduction would be no
more than 4.4 percent in any of the affected industries.
    To further ensure that potential impacts on small entities were
fully analyzed and considered, OSHA also separately examined the
potential impacts of the proposed standards on very small entities,
defined as those with fewer than 20 employees. To assess the potential
economic impact of the proposed standards on very small entities, OSHA
calculated the ratios of compliance costs to profits and to revenues.
These ratios are presented for each affected industry in Table 4. OSHA
expects that among very small entities potentially affected by the
proposed standards, the average increase in prices necessary to
completely offset the compliance costs would be 0.03 percent.

                                  Table 4.--Potential Economic Impacts on Very Small Entities (Fewer than 20 Employees)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Costs as a   Costs as a
                                                                                Very small       Very small     percent of   percent of
             Industry code                         Industry name            Compliance costs   entity revenues  entity profits    revenues     profits
                                                                                ($000)           ($000)          (%)          (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
SIC 1522...............................  Residential Housing--Multi-family        $3,654,087        $7,366,193        $103,127         0.05         3.54
SIC 1541...............................  Industrial Buildings and                  2,790,417         8,612,408         310,047         0.03         0.90
                                          Warehouses.
SIC 1542...............................  Other Nonresidential Buildings...         5,186,374        36,053,770       1,117,667         0.01         0.46
SIC 1611...............................  Highway and Street Construction..         1,880,936         6,869,911          82,439         0.03         2.28
SIC 1622...............................  Bridges, Tunnels, and Elevated            1,234,911           797,366          45,450         0.15         2.72
                                          Highways.
SIC 1623...............................  Water, Sewer, Power, and                    531,241         6,186,875         327,904         0.01         0.16
                                          Communication Lines.
SIC 1629...............................  Heavy Construction, Not Elsewhere         4,256,837        10,014,249          80,114         0.04         5.31
                                          Classified.
SIC 1791...............................  Structural Steel Erection                   817,833         2,023,377          22,257         0.04         3.67
                                          Contractors.
                                        ----------------------------------------------------------------------------------------------------------------
    Total \1\..........................  .................................        20,352,635        77,924,149       2,089,005         0.03        0.97
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ For All Affected Industries

    Only to the extent that such price increases are not possible would
there be any effect on the average profits of very small entities. Even
in the unlikely event that no costs could be passed through, the
compliance costs could be completely absorbed through an average
reduction in profits of 0.97 percent among affected very small
entities.

2. A Description of the Reasons Why Action by the Agency is Being
Considered

    Employees performing construction work in confined spaces are
potentially exposed to a variety of significant hazards that can and do
cause serious injury and death. Based on research conducted by CONSAD
(Ex. OSHA-2007-0026-0003), OSHA estimates that an average of 967
serious injuries and 6.5 fatalities occur annually among these workers,
and that an estimated six fatalities and 880 injuries would be
prevented annually through full compliance with the proposed standard.
    Additional benefits associated with this rulemaking involve
providing updated, clear, and comprehensive safety standards regarding
construction work in confined spaces to the relevant employers,
employees, and interested members of the public. The existing OSHA
standards for the construction industry do not directly address work in
confined spaces in a comprehensive manner. An additional and more
complete discussion of the reasons why this standard is being proposed
by the Agency is provided in other sections of the preamble of this
proposal.

3. Statement of the Objectives of, and Legal Basis for, the Proposed
Rule

    The primary objective of the proposed standard is to provide an
increased degree of occupational safety for employees performing
construction work in confined spaces. As stated above, an estimated 880
injuries and six fatalities would be prevented annually through
compliance with the proposed standard. Another objective of the
proposed rulemaking is to provide updated, clear, and comprehensive
safety standards regarding construction work in confined spaces to the
relevant employers, employees, and interested members of the public.
    The legal basis for the rule is the responsibility given the
Department of Labor through the Occupational Safety and Health (OSH)
Act of 1970. The OSH Act authorizes and obligates the Secretary of
Labor to promulgate mandatory occupational safety and health standards
as necessary ``to assure so far as possible every working man and woman
in the Nation safe and healthful working conditions and to preserve our
human resources.'' 29 U.S.C. 651(b). The legal authority can also be
cited as 29 U.S.C. 655(b); 40 U.S.C. 333.

4. Description of and Estimate of the Number of Small Entities To Which
the Proposed Rule Will Apply

    OSHA has completed a preliminary analysis of the impacts associated
with this proposal, including an analysis of the type and number of
small entities to which the proposed rule would apply, as described
above. In order to determine the number of small entities potentially
affected by this rulemaking, OSHA used the definitions of small
entities developed by the Small Business Administration (SBA) for each
industry.
    For the construction industry generally, SBA defines small
businesses using revenue-based criteria. For most of the affected
construction industries, including those which are mostly comprised of
general contractors, firms with annual revenues of less than $28.5
million are classified as small businesses. For specialty contractors,
such as structural steel erection contractors, firms with annual
revenues of less than $12 million are considered to be small
businesses.
    The proposed standard would primarily impact firms that are general
contractors on projects for which employees must enter confined spaces
for purposes of performing construction work. Based on the definitions
of small entities developed by SBA for each industry, the proposal is
estimated to potentially affect a total of 86,012 small entities, as
shown in Table 5. Included in this number are an estimated 74,088
entities with fewer than 20 employees.

                            Table 5.--Profile of Potentially Affected Small Entities
----------------------------------------------------------------------------------------------------------------
                                               Number of                                 Number of    Number of
                                                 small     Establishments   Number of    very small   employees
    Industry code          Industry name        entities     operated by    employees     entities     of very
                                                  (SBA          small        of small       (<20        small
                                              definition)     entities       entities    employees)    entities
----------------------------------------------------------------------------------------------------------------
SIC 1522............  Residential Housing--         7,328          7,334        46,593        6,879       29,734
                       Multi-family.
SIC 1541............  Industrial Buildings          8,342          8,353        80,498        7,254       38,290
                       and Warehouses.
SIC 1542............  Other Nonresidential         29,483         29,523       311,451       25,710      144,477
                       Buildings.
SIC 1611............  Highway and Street           10,068         10,113       149,342        7,940       46,735
                       Construction.
SIC 1622............  Bridges, Tunnels, and           996          1,001        20,360          673        5,192
                       Elevated Highways.
SIC 1623............  Water, Sewer, Power, &       10,582         10,597       144,659        8,470       51,427
                       Communication Lines.
SIC 1629............  Heavy Construction,          15,173         15,194       120,414       13,888       96,629
                       Not Elsewhere
                       Classified.
SIC 1791............  Structural Steel              4,040          4,043        48,514        3,274       19,604
                       Erection Contractors.
                     -------------------------------------------------------------------------------------------
    Totals..........  ......................       86,012         86,158       921,831       74,088     432,088
----------------------------------------------------------------------------------------------------------------
Source: CONSAD (Ex. OSHA-2007-0026-0003), Tables 7.1 and 7.2.

5. Description of the Projected Reporting, Recordkeeping and Other
Compliance Requirements of the Proposed Rule

    OSHA is proposing a standard that would address the work practices
to be used, and other requirements to be followed, for performing
construction work in confined spaces. Employers would be required to
keep records associated with work in confined spaces as specified by
the standard. Records would include entry permits and verification
documents. Regular reporting would not be required by the proposed
standard; however, employers would be required to demonstrate
compliance with the recordkeeping requirements as part of OSHA
compliance inspections.
    Other compliance requirements of the proposed standard include, as
required, the evaluation and classification of confined spaces,
isolating hazards and providing sufficient ventilation, conducting
atmospheric monitoring, providing an attendant, providing respiratory
protection, providing rescue capability, and providing training.
    The preamble to the proposed standard provides a comprehensive
description of, and further detail regarding, the provisions of the
proposed rulemaking. A description of the types of entities that would
be subject to the new and revised requirements, and the types of
professional skills necessary for compliance with the requirements, is
presented in greater detail in the preliminary economic analysis (Ex.
OSHA-2007-0026-0002).

6. Federal Rules Which May Duplicate, Overlap or Conflict With the
Proposed Rule

    OSHA recognizes that this proposed standard may overlap with
provisions in other part 1926 standards, such as those generically
addressing obligations to provide training or to provide respiratory
protection when appropriate. OSHA has clarified the relationship
between the proposed standard and other pre-existing construction
standards that may be applicable in a confined space. In Sec.
1926.1202(c), as well as Appendix A, OSHA has explained how overlapping
standards would interact with each other, and the obligations of an
employer in such situations. OSHA has also explained in the preamble
how practical situations would be evaluated under the requirements of
the draft standard when it overlaps with another OSHA requirement. OSHA
has not identified any other Federal rules that may duplicate, overlap,
or conflict with the proposal, and requests comments from the public
regarding this issue.

7. Alternatives to the proposed rule which accomplish the stated
objectives of applicable statutes and which minimize any significant
economic impact of the proposed rule on small entities

    OSHA evaluated many alternatives to the proposed standards to
ensure that the proposed requirements would accomplish the stated
objectives of applicable statutes and would minimize any significant
economic impact of the proposal on small entities. In developing the
proposal, and especially in establishing compliance or reporting
requirements or timetables that affect small entities, the resources
available to small entities were taken into account. Compliance and
reporting requirements under the proposal applicable to small entities
were clarified, consolidated, and simplified to the extent practicable.
Wherever possible, OSHA has proposed the use of performance rather than
design standards. An exemption from coverage of the rule for small
entities was not considered to be a viable option under the OSH Act
because the safety and health of the affected employees would be unduly
jeopardized. The OSH Act contains no explicit provision that permits an
exemption of small entities for purposes of setting safety and health
standards.
    Many other specific alternatives to the proposed requirements were
considered and discussed elsewhere in the preamble. The Small Business
Advocacy Review Panel, which was convened for purposes of soliciting
comments on the proposal from affected small entities, addressed
several alternatives. A discussion of these alternatives is provided
below in Table 6. Nonregulatory alternatives were also considered in
determining the appropriate approach to reducing occupational hazards
associated with construction work in confined spaces. These
alternatives were discussed in Chapter III of the preliminary economic
analysis (Ex. OSHA-2007-0026-0002).
Recommendations of the Small Business Advocacy Review Panel
    On September 26, 2003, OSHA convened a Small Business Advocacy
Review Panel (``Panel'') for this rulemaking in accordance with the
provisions of the Small Business Regulatory Enforcement Fairness Act of
1996 (Pub. L. 104-121), as codified at 5 U.S.C 601 et seq. The Panel
consisted of representatives of OSHA, of the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB),
and of the Office of Advocacy within the U.S. Small Business
Administration (SBA). The Panel received oral and written comments on a
draft proposal and a draft economic analysis from small entities that
would potentially be affected by this rulemaking. The Panel, in turn,
prepared a written report which

was delivered to the Assistant Secretary for Occupational Safety and
Health. The report summarized the comments received from the small
entities, and included recommendations from the Panel to OSHA regarding
the proposal and the associated analysis of compliance costs. Table 6
below lists each of the recommendations made by the Panel and describes
the corresponding answers or changes made by OSHA in response to the
issues raised.

        Table 6.--Summary of Small Business Advocacy Review Panel
                   Recommendations and OSHA Responses
------------------------------------------------------------------------
          Panel recommendation                   OSHA's response
------------------------------------------------------------------------
1. The SERs generally believed that      The Agency relied on the
 OSHA had underestimated the costs of     comments from the SERs to help
 the draft proposed standard. OSHA is     ensure that the estimated
 committed by law to develop its          costs of compliance with the
 analyses using the best available        proposed standard would
 evidence, and it will consider           reflect the actual costs that
 carefully the SER comments in the        businesses could be expected
 light of this test. The Panel            to incur when complying with
 recommends that OSHA revise its          the requirements specified by
 economic and regulatory flexibility      the draft proposed standard.
 analysis as appropriate to reflect the   OSHA incorporated the comments
 SERs' comments on underestimation of     from the SERs in the
 costs, and that the Agency compare       development of the proposed
 OSHA's revised estimates to              standard and the associated
 alternative estimates provided by the    analysis in three ways. First,
 SERs. For those SER estimates that       some requirements (such as
 OSHA does not adopt, OSHA should         those addressing hazardous-
 explain its reasons for preferring an    enclosed spaces) were eased or
 alternative estimate, and solicit        eliminated altogether in light
 comment on the issue.                    of the information provided
                                          and issues raised by the SERs
                                          with regard to achieving
                                          compliance in real-world
                                          situations. Second, some
                                          requirements (such as those
                                          involving communications to/
                                          from controlling employers and
                                          the classification of spaces)
                                          were revised or clarified to
                                          avoid the potential for
                                          misinterpretations regarding
                                          the applicability of
                                          requirements and the specific
                                          actions necessary to ensure
                                          compliance, which appeared to
                                          be a source of
                                          misinterpretation among the
                                          SERS when they reviewed the
                                          estimates of compliance costs
                                          in the draft proposed
                                          standard. Third, OSHA revised
                                          upwards the estimated costs of
                                          compliance associated with
                                          some requirements (such as
                                          those involving training and
                                          atmospheric monitoring). The
                                          revisions are each discussed
                                          in further detail below in the
                                          responses to the specific
                                          Panel recommendations
                                          separately addressing each of
                                          these issues.
2. Many SERs observed that OSHA had      The Agency reviewed its
 underestimated the cost of training.     estimates of the costs of
 They were concerned particularly about   complying with the training
 the length of time required for          requirements in the proposed
 training, training the trainers,         standard in light of the
 renewal training, and multilingual       additional information
 training. The SERs also noted that       provided by the SERs. Many
 much retraining could be avoided if      SERs expressed that they
 OSHA adopted the general industry rule   already train employees to
 because most firms already have          comply with the general
 trained their employees on that rule.    industry standard. While some
 Some SERs also noted that they still     new terms, equipment, and
 need to train employees on the general   information exchange
 industry standard because some of        requirements have been
 their work would come under the          introduced in the proposed
 general industry standard. In these      construction standard, the
 situations, they would need to           core provisions in the
 continue training on the general         proposed construction standard
 industry standard while adding           are already required by the
 training on the Construction standard,   general industry standard.
 and on how employees should determine    Therefore, OSHA believes that
 which standard applies. Because OSHA's   because the proposed standard
 economic analysis examined training on   retains most of the
 a project basis, it is difficult to      requirements of the general
 compare OSHA's cost estimates to the     industry standard, there will
 estimates provided by the SERs. The      be only minimal additional
 Panel recommends that OSHA carefully     costs for employers in
 analyze the SERs' comments on training   training employees to comply
 costs by developing methods for          with the construction
 comparing these cost estimates to        standard. As such, it is
 those estimates provided in OSHA's       anticipated that employers who
 economic analysis. OSHA then should      are already familiar with the
 compare these costs to its present       general industry standard will
 cost estimates, and revise its           find that they already comply
 training costs as necessary based on     with the draft construction
 all of the available information.        standard in everyday work,
                                          therefore minimizing the
                                          amount of possible
                                          ``retraining'' necessary.
                                          However, under the proposed
                                          standard, OSHA has decided not
                                          to allow compliance with the
                                          general industry standard in
                                          lieu of compliance with the
                                          construction industry standard
                                          for construction projects
                                          since there are situations
                                          where the general industry
                                          standard would not adequately
                                          protect construction employees
                                          because of the unique
                                          characteristics of
                                          construction work (see section
                                          II.B. (``History'') of this
                                          notice for a discussion of
                                          this issue.).
                                         As a result of the comments
                                          submitted by the SERs, OSHA
                                          incorporated additional cost
                                          elements in its estimates of
                                          training costs that
                                          effectively doubled the cost
                                          estimates initially provided
                                          to the SERs. To facilitate
                                          comparability, OSHA also
                                          converted the estimated costs
                                          from project-based estimates
                                          to employer-based estimates.
                                          Under the proposed standard,
                                          on an average annual basis,
                                          estimated training costs would
                                          be equivalent to ten hours of
                                          employee time plus one hour of
                                          supervisor time for each
                                          employee; in addition, 32
                                          hours of supervisory time plus
                                          eight hours of clerical time
                                          (or an equivalent cost) would
                                          be spent every five years to
                                          develop and review the
                                          training program.

3. Many SERs stated that OSHA had        The Agency reviewed its
 neglected some elements of monitoring    estimates of the costs of
 costs, such as the need for a            complying with the atmospheric-
 competent person to conduct the          monitoring requirements in the
 monitoring, the need for the entire      proposed standard in light of
 crew to wait while a supervisor          the additional information
 performs the monitoring, the short       provided by the SERs. As a
 life span in the field of monitoring     result of the comments
 equipment, and costs associated with     submitted by the SERs, OSHA
 calibrating the equipment. Those SERs    incorporated additional cost
 affected by the hazardous-enclosed       elements in its estimates of
 spaces portion of the draft proposed     monitoring costs that
 rule were concerned particularly about   increased the cost estimate
 increased monitoring costs. The Panel    initially provided to the SERs
 notes that if the SERs' views about      by almost $6 million per year.
 the life of equipment and the need for   The costs associated with
 the entire crew to suspend work during   setting up monitoring
 monitoring are correct, and no other     equipment were increased to 20
 assumptions are changed, the costs of    minutes (instead of 10
 monitoring would be three to five        minutes) to reflect the
 times higher than OSHA estimated,        possibility of additional
 adding $6 to $12 million to the cost     losses of productive work time
 of the draft proposed standard. The      by other employees. The costs
 Panel recommends that OSHA consider      associated with purchasing and
 these factors and revise its             maintaining the necessary
 monitoring-cost estimates accordingly,   monitoring equipment were
 and that monitoring costs reflect the    doubled from $1,400 every five
 total actual costs associated with       years to $1,400 every 2.5
 conducting monitoring, including the     years to reflect various
 cost of transporting and maintaining     incidental costs identified by
 equipment, and the costs associated      the SERs, and to reflect less-
 with crew members waiting for the        than-ideal real world
 completion of monitoring activities.     conditions and unanticipated
                                          occurrences that can increase
                                          actual costs. OSHA also
                                          doubled the costs associated
                                          with periodic calibration of
                                          the equipment to reflect
                                          possible additional time and
                                          costs associated with the
                                          transportation of equipment
                                          and other incidental expenses.
4. Many SERs were concerned that the     As recommended by the Panel,
 hazardous-enclosed spaces provisions     OSHA carefully examined the
 of the draft proposed rule would         hazardous-enclosed space
 result in extensive costs with few       portion of the draft proposed
 benefits. Some SERs thought the          standard. OSHA also reexamined
 provisions required little               applicable existing
 recordkeeping beyond what they           requirements, the effects and
 currently do. Also, some SERs noted      extent of occupational risks
 that OSHA had underestimated the costs   involved, and the potential
 associated with recordkeeping. The       for risk reduction with the
 Panel is concerned that the hazardous-   promulgation of additional
 enclosed spaces provision would          regulatory requirements for
 require major atmospheric-testing and -  hazardous-enclosed spaces.
 monitoring burdens not identified in     Based on this reexamination,
 the cost analysis. The Panel             the Agency concluded that, for
 recommends that OSHA carefully examine   now, no new or additional
 the benefits and costs of this portion   requirements will be proposed
 of the rule, and compare these           for hazardous-enclosed spaces.
 requirements carefully to what is        OSHA believes that potential
 required under other existing            hazards associated with these
 regulations, and to existing             spaces are adequately covered
 construction industry practice.          by other standards (for
                                          example, 29 CFR 1926.55).
                                          Therefore, all requirements
                                          involving hazardous-enclosed
                                          spaces have been eliminated
                                          from the proposed standard for
                                          confined spaces in
                                          construction.
5. Most SERS were concerned that the     The Agency has since clarified
 treatment of controlling employers in    the duties of the controlling
 the draft proposed standard would        employer in Sec.   1926.1204
 result in additional costs for           of the proposed standard (Work
 controlling employers in the form of     evaluation, information
 increased monitoring and supervision     exchange, and coordination).
 of subcontractor activities. SERs also   In addition to explaining in
 were concerned with the costs and time   paragraph (a) of this proposed
 required to meet the coordination and    section that the controlling
 communication requirements of the        employer is only required to
 draft proposed standard. The Panel       share specific information it
 recommends that, if OSHA does not        may already have about the
 clarify these provisions, then it        space with its subcontractors,
 should examine further the possible      OSHA has further clarified in
 costs of the controlling-employer        a note to this paragraph that
 provisions in the draft proposed rule.   the controlling or host
 Also, OSHA should be certain that it     employer is not required to
 has accounted for all of the burdens     enter a confined space to
 associated with this provision.          collect the specified
                                          information for its
                                          subcontractors. Therefore, we
                                          believe that compliance with
                                          proposed Sec.   1926.1204
                                          would not be an added cost to
                                          controlling employers. Its
                                          purpose is to aid them in
                                          their duties to safely
                                          coordinate the activities of
                                          their subcontractors within
                                          the space.
6. Many SERs were concerned that the     The Agency has revised the
 increased complexity of the              classification system to
 classification system would add not      clarify and simplify how
 only to the training costs but also to   confined spaces are to be
 the costs associated with classifying    classified. The Agency
 confined spaces. The Panel recommends    believes that this system is
 that, if the classification process is   an improvement over the
 not simplified, OSHA should further      general industry standard when
 analyze the costs associated with        applied to the construction
 classifying confined spaces.             industry because it explicitly
                                          defines possible
                                          classifications, some of which
                                          enable compliance burdens for
                                          employers to be reduced where
                                          appropriate.

7. OSHA estimated that the draft         As noted in the Agency's
 proposed standard potentially affects    response to item 4 above, the
 small entities performing construction   requirements addressing
 work in confined and enclosed spaces.    hazardous-enclosed spaces that
 Small entities in eight specific         the Panel believed may impose
 construction industry classifications    a burden on the industrial
 were identified as being potentially     sector for General Contractors
 affected by the draft proposed           for Single Family Homes have
 standard. These classifications          been deleted from the proposed
 include Residential Housing (SIC         standard.
 1522); Industrial Buildings (SIC
 1541); Other Nonresidential Buildings
 (SIC 1542); Highway and Street
 Construction (SIC 1611); Bridge and
 Tunnel Construction (SIC 1622); Water,
 Sewer, and Pipeline Construction (SIC
 1623); Other Heavy Construction (SIC
 1629); and Structural Steel Erection
 (SIC 1791). For each of these industry
 classifications, Table 3 in the Panel
 report shows estimates of the total
 number of small firms in the industry,
 the number of establishments operated
 by these firms, the number of
 employees of these firms, and the
 total sales of these firms. These
 figures represent the best available
 estimates for the numbers of
 potentially affected small entities
 meeting the definition of a small
 entity established by the Small
 Business Administration for these
 particular industry sectors. In
 summary, an estimated 86,012 small
 entities are potentially affected by
 the draft proposed standard. These
 firms operate an estimated 86,158
 establishments, employ an estimated
 921,831 employees, and generate total
 sales estimated at $192 billion. In
 addition to the small entities
 identified above, small entities in
 another industry classification,
 General Contractors for Single Family
 Homes (SIC 1521), may be affected by
 the provisions of the draft proposed
 standard addressing hazardous-enclosed
 spaces. The Panel recommends that
 prior to publishing a proposed
 standard, OSHA should clarify these
 requirements and include the
 associated compliance costs, impacts,
 and benefits in the analysis of the
 proposal.
8. Almost all of the SERs found the      OSHA addressed the concerns of
 draft proposed standard difficult to     the SERs about the difficulty
 follow. The SERs stated that they        in following the text of the
 currently were using the general         proposed standard. OSHA has
 industry standard and were familiar      reorganized the regulatory
 with it. A few SERs saw some             text in such a manner that an
 advantages to the differences between    employer will be led step-by-
 the draft proposed standard and the      step through the
 general industry standard, but even      classification and safety-
 these SERs did not believe that these    precaution requirements for
 advantages were sufficient to justify    each type of confined space.
 the amount of training the draft         In addition, OSHA has included
 proposed standard would require. The     sample forms (Appendix B) to
 Panel recommends that OSHA either make   aid employers in following the
 the standard easier to follow,           proposed standard. OSHA has
 consider a standard closer to the        recognized and addressed
 general industry standard, or develop    problematic situations common
 a standard in which the classification   to construction sites that are
 provisions that provide greater          not clearly addressed by the
 flexibility to employers are optional    general industry standard
 rather than required.                    (i.e., sites where there is no
                                          host, the kind of information
                                          that needs to be exchanged
                                          between entities, doing the
                                          initial hazard assessment of a
                                          previously unclassified space,
                                          etc.). OSHA has adopted many
                                          of the general industry
                                          provisions, and adjusted them
                                          for use on a construction
                                          worksite.
9. Most SERs were confused by the        OSHA has revised the regulatory
 distinctions between types of confined   text to allow an employer to
 spaces. One SER referred to the          choose, to a degree, the level
 distinctions as ``metaphysical.'' The    of protection provided by a
 Panel recommends that if these           classification of a confined
 distinctions are retained, they should   space that is most appropriate
 be made clearer, or OSHA should          for the hazards within the
 consider making such classifications     space. One exception is, as
 optional.                                stated in proposed Sec.
                                          1926.1206(a)(1), employers
                                          must classify any confined
                                          space as a CS-PRCS if that
                                          space meets the definition of
                                          a CS-PRSC. For all other
                                          spaces, proposed Sec.
                                          1926.1206(a)(2) allows
                                          employers to classify a space
                                          as a PRCS or, alternatively,
                                          as a CACS or IHCS if the
                                          employer can meet the
                                          applicable requirements.
10. Many SERs noted that the hazardous-  See the Agency's response to
 enclosed spaces requirements would       item 4 above.
 result in a major recordkeeping
 burden. Some SERs believed that these
 requirements represented major new
 requirements for many contractors.
 OSHA notes that a few of the SERs
 seemed unacquainted with some of the
 requirements of existing regulations.
 The Panel notes that the requirement
 to evaluate each potentially hazardous
 space, implicit in Sec.
 1926.1225(a)(3), could radically alter
 the compliance requirements and the
 costs of the rule in ways not
 reflected in OSHA's Preliminary
 Initial Regulatory Flexibility
 Analysis. The Panel recommends that
 OSHA more carefully explain the
 relation of these requirements to
 existing requirements and practice,
 and explain the need for different
 requirements.

11. SERs were concerned that the         As stated above, OSHA has
 provisions addressing controlling        clarified the responsibilities
 employers would require general          of controlling employers in
 contractors to develop confined-space    proposed Sec.   1926.1204. In
 expertise and provide confined-space     addition to sharing specific
 supervision. OSHA's intent with these    information that it may have
 provisions was not to change existing    about the space with its
 relations between general contractors    affected subcontractors, the
 and their subcontractors, but rather     note to that section clearly
 to assure that general contractors       states that employers are not
 provide subcontractors with the          required to enter a confined
 information they possess relevant to     space to gather such
 confined spaces. Some SERs agreed that   information for its
 additional information could be          subcontractors. OSHA's intent
 useful. The Panel recommends that OSHA   is not to change existing
 clarify this requirement to indicate     relations between general
 that the role of the controlling         contractors and their
 employer is only to provide any          subcontractors, but rather to
 information they possess concerning      assure that general
 confined spaces.                         contractors provide
                                          subcontractors with the
                                          information they possess
                                          relevant to their
                                          subcontractors working safely
                                          within a confined space. The
                                          proposed standard does not
                                          require controlling employers
                                          to develop ``confined-space
                                          expertise'' to fulfill their
                                          duties in the proposed
                                          standard.
12. OSHA's Hazard Communication          OSHA recognizes that the draft
 standard also provides guidance to       proposed standard may overlap
 employers on the use of certain          with provisions in other 1926
 chemicals in the workplace. However,     standards. OSHA has clarified
 OSHA does not see any conflict between   the relationship between the
 this standard and the draft proposed     draft proposed standard and
 standard. The Hazard Communication       other pre-existing
 standard provides general                construction standards which
 precautionary information regarding      may be applicable in a
 the use of certain chemicals and         confined space. In Sec.
 products; the draft proposed standard    1926.1202(c), as well as
 provides more explicit requirements      Appendix A, of the proposed
 for conditions specific to confined      standard, OSHA has explained
 and enclosed spaces. Also, many          how overlapping standards
 construction contractors still will      would interact with each
 need to follow the general industry      other, and the obligations of
 standard [for confined spaces] in some   an employer in such
 types of work, and thus need to train    situations. OSHA has also
 their workers in using two different     explained in the preamble of
 standards, and when to apply each        the proposal how practical
 standard. The SERs identified other      situations would be evaluated
 federal standards that they believe      under the requirements of the
 address the hazards associated with      proposed standard when it
 confined and enclosed spaces,            overlaps with another OSHA
 including OSHA standards for             requirement. OSHA is currently
 Ventilation (Sec.   1926.57) and for     unaware of any other Federal
 Gases, Vapors, Fumes, Dusts, and Mists   agency standards that overlap
 (1926.55), and EPA and HUD rules on      or conflict with those of
 abatement work. Accordingly, the Panel   OSHA.
 recommends that OSHA clarify the exact
 relation between the draft proposed
 standard and other standards affecting
 work by construction employers in
 confined or enclosed spaces, including
 the Hazard Communication standard, the
 general industry standard, the
 Permissible Exposure Limit standards,
 the Ventilation standard, the Gases,
 Vapors, Fumes, Dusts, and Mists
 standard, and applicable EPA and HUD
 standards.
13. Alternatives to adopting the draft   OSHA considered alternatives to
 proposed standard developed by OSHA      drafting its own confined-
 include adopting the draft proposed      space standard for
 standard developed by the Advisory       construction. The general
 Committee for Construction Safety and    industry standard was
 Health [ACCSH], the industry consensus   considered, but found to be
 standard developed by the American       unsuitable for the
 National Standards Institute [ANSI],     construction industry. OSHA
 or the existing OSHA general industry    believes that the general
 standard [for confined spaces].          industry standard does not
 Additional alternatives include          adequately address some
 modifying the OSHA draft proposed        problematic situations common
 standard by removing provisions          to construction sites. These
 addressing hazardous-enclosed spaces,    concerns include multiple
 removing the requirement to classify     subcontractors working within
 spaces in the least hazardous            one space and hazards created
 category, revising requirements for      as a confined space is built
 atmospheric monitoring to allow          around employees. ANSI is
 periodic monitoring instead of           presently considering whether
 continuous monitoring, and/or reducing   it is feasible to begin
 or eliminating recordkeeping             drafting a confined-spaces
 requirements. The Panel recommends       standard for application
 that OSHA continue to consider these     specifically in construction.
 alternatives, and discuss and solicit    OSHA addressed major concerns
 comment on them in the proposed rule.    of the SERs regarding the
                                          hazardous-enclosed space
                                          requirements in the draft
                                          proposed standard by removing
                                          that section completely. As
                                          previously stated above, OSHA
                                          has also revised the draft
                                          proposed standard to allow
                                          employers greater flexibility
                                          in choosing the classification
                                          of a confined space that
                                          provides the best protection
                                          for its employees from the
                                          hazards within the particular
                                          space. Finally, OSHA has
                                          worked to reduce employers'
                                          recordkeeping requirements by
                                          minimizing the time necessary
                                          for employers to maintain
                                          documentation. For example, in
                                          proposed Sec.   1926.1218, an
                                          employer will only be required
                                          to maintain entry permits for
                                          one year, while verification
                                          documents must only be kept so
                                          long as there is ongoing work
                                          in that confined space.

14. Most SERs indicated a preference     As stated before, the draft
 for using the general industry           proposed confined-spaces
 standard for construction work, as       standard for construction
 opposed to the draft proposed            addresses some concerns that
 standard. OSHA is concerned that not     are unique to the construction
 all construction employers are as        industry. OSHA believes that
 familiar with the general industry       the reorganization of the
 standard as the SERs are, and that       proposed standard and the
 some employers might benefit from a      elimination of the section on
 standard designed to provide greater     hazardous-enclosed spaces
 compliance flexibility. The Panel        address the safety concerns of
 recommends that OSHA consider the        confined spaces in
 alternative of adopting the general      construction in a manner that
 industry standard and, if this           makes it easier to read and to
 alternative is not adopted, discuss      comply with than the general
 and solicit comment on this              industry standard for confined
 alternative in the proposed rule. If     spaces.
 OSHA does not adopt a standard closer   OSHA requests that the public
 to the general industry standard, the    submit comments regarding the
 Panel recommends that OSHA revise its    degree of flexibility granted
 comparative cost analysis of the         to employers in classifying
 general industry rule and the draft      confined spaces. In addition,
 proposed standard to take account of     OSHA solicits comment on how
 SERs' concerns about the increased       an alternative standard
 training, communication, and             similar to the general
 classification costs associated with     industry standard could be
 the draft proposed standard. The Panel   adapted to the construction
 also recommends that OSHA solicit        sector. [Note that the general
 comment on how an alternative standard   industry standard and other
 similar to the general industry          alternatives to the proposed
 standard could be adapted to the         rule are discussed above under
 construction sector. In addition, the    item 13 of this table. In
 Panel recommends that OSHA analyze and   addition to the general
 solicit comment on the nonregulatory     industry standard, other
 alternative of not issuing a final       alternatives include the ANSI
 standard, relying instead on existing    and draft ACCSH standards for
 standards and improved outreach.         confined spaces. The
                                          applicability and relationship
                                          of the general industry
                                          standard and the other
                                          alternative standards to this
                                          proposed standard are
                                          discussed elsewhere in this
                                          preamble (i.e., in the section
                                          entitled ``History'' for the
                                          general industry and draft
                                          ACCSH standards, and in the
                                          section entitled
                                          ``Applicability of Existing
                                          Consensus Standards'' for the
                                          ANSI standard).]
15. The SERs were confused by the        The Agency has reduced the
 variety of distinctions among confined   number of classifications by
 spaces, and generally believed that      removing the classification of
 the training required by these           ``Hazardous-Enclosed Space.''
 provisions negated any advantages that   We have further clarified the
 might arise from the flexibility of      four remaining categories by
 different types of confined spaces.      reorganizing the text of the
 The Panel recommends that OSHA examine   proposed standard to ensure
 and solicit comment on alternatives      that all requirements for each
 that reduce the number of types of       classification type can be
 confined spaces, and that OSHA           found in one section. OSHA
 consider alternatives that would allow   requests that the public
 employers the choice of using or         submit comments regarding
 ignoring these provisions.               other alternatives to the
                                          proposed rule. The Agency
                                          believes that, because the
                                          proposed standard is based on
                                          many of the requirements
                                          already required in the
                                          general industry standard,
                                          there will be minimal
                                          additional costs for employers
                                          to train their employees on
                                          the proposed construction
                                          standard.
16. Many SERs viewed the requirements    As recommended by the Panel,
 for hazardous-enclosed spaces as         OSHA has removed the
 highly burdensome. The Panel             provisions for Hazardous-
 recommends that OSHA remove this         Enclosed Spaces.
 provision unless OSHA can (1) clarify
 exactly how the requirements of this
 provision are different from other
 existing requirements and practices;
 (2) develop a detailed cost analysis
 of this provision; (3) quantify the
 hazards associated with hazardous-
 enclosed spaces; and (4) explain how
 the hazardous-enclosed space
 provisions can serve to reduce these
 hazards. If OSHA retains this
 requirement or one like it, OSHA also
 should solicit comment on the need for
 the recordkeeping requirements in the
 provision. In addition, OSHA should
 solicit comment on removing this
 provision entirely.
17. Most SERs were concerned that the    As stated previously, proposed
 provisions for controlling employers     Sec.   1926.1204(a), and the
 would alter the existing relationship    note to that section, clarify
 between contractors and subcontractors   the duties of the controlling
 with little gain in reduced risk to      employer and explain that a
 employees. OSHA notes that the purpose   controlling employer will not
 of this provision was only to ensure     be required to enter a
 that contractors share available         confined space to gather the
 information at multi-employer            specified information for the
 worksites. OSHA cannot regulate          subcontractor. [As noted above
 contractual matters between parties or   in the preamble discussion to
 prevent terms of contracts that          proposed Sec.   1926.1204(a),
 require subcontractors to follow         employees of subcontractors on
 instructions of general contractors.     multi-employer worksites,
 Some SERs agreed that information        which are common in the
 sharing would be helpful, but were       construction industry, may
 concerned that the OSHA draft went far   enter a confined space after
 beyond this purpose. The Panel           another subcontractor's
 recommends that OSHA consider removing   employees have completed work
 this provision or clarifying the         within the space. In these
 purpose of this provision, and solicit   confined space situations, the
 comment in the proposal on the need      completed work can affect the
 for this provision.                      health and safety of employees
                                          who subsequently enter the
                                          confined space. Therefore, it
                                          is critical for the safety of
                                          all employees on a worksite
                                          that contractors and
                                          subcontractors communicate the
                                          following information with
                                          each other: the location of
                                          confined spaces, hazardous
                                          conditions affecting confined
                                          spaces, precautions taken to
                                          address those hazards, and
                                          classifications of the
                                          confined spaces. 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.]
------------------------------------------------------------------------

C. OMB Review Under the Paperwork Reduction Act of 1995

    The proposed Confined Spaces in Construction Standard contains
collection-of-information (paperwork) requirements that are subject to
review by the Office of Management and Budget (``OMB'') under the
Paperwork Reduction Act of 1995 (``PRA-95''), 44 U.S.C. 3501 et seq.,
and OMB's regulations at 5 CFR part 1320. The Paperwork Reduction Act
defines ``collection of information'' as ``the obtaining, causing to be
obtained, soliciting, or requiring the disclosure to third parties or
the public of facts or opinions by or for an agency regardless

of form or format * * *'' (44 U.S.C. 3502(3)(A)). OSHA submitted the
collection-of-information requirements identified in the NPRM to OMB
for review (44 U.S.C. 3507(d)). OSHA solicits comments on the
collection-of-information requirements and the estimated burden hours
associated with these collections, including comments on the following:
     Whether the proposed collection-of-information
requirements are necessary for the proper performance of the Agency's
functions, including whether the information is useful;
     The accuracy of OSHA's estimate of the burden (time and
cost) of the information-collection requirements, including the
validity of the methodology and assumptions used;
     The quality, utility, and clarity of the information
collected; and
     Ways to minimize the burden on employers who must comply,
for example, by using automated or other technological techniques for
collecting and transmitting information.
    The title, description of the need for and proposed use of the
information, description of the respondents, and frequency of response
of the information collections are described below, along with an
estimate of the annual reporting burden and cost as required by 5 CFR
1320.5(a)(1)(iv) and 1320.8(d)(2).
    Title: Confined Spaces in Construction (29 CFR part 1926 subpart
AA).
    Description and Proposed Use of the Collections of Information: The
proposed standard would impose new information-collection requirements
for purposes of PRA-95. The collection-of-information requirements in
the proposed standard have not been approved by OMB. These provisions
are needed to protect the health and safety of employees who work in