[Federal Register Volume 80, Number 85 (Monday, May 4, 2015)]
[Rules and Regulations]
[Pages 25365-25526]
[FR Doc No: 2015-08843]

Vol. 80

Monday,

No. 85

May 4, 2015

Part II

Department of Labor

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Occupational Safety and Health Administration

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29 CFR Part 1926

Confined Spaces in Construction; Final Rule

Federal Register / Vol. 80 , No. 85 / Monday, May 4, 2015 / Rules and
Regulations

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

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

Confined Spaces in Construction

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

ACTION: Final rule.

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SUMMARY: OSHA is adding a new subpart to provide protections to
employees working in confined spaces in construction. This new subpart
replaces OSHA's one training requirement for confined space work with a
comprehensive standard that includes a permit program designed to
protect employees from exposure to many hazards associated with work in
confined spaces, including atmospheric and physical hazards. The final
rule is similar in content and organization to the general industry
confined spaces standard, but also incorporates several provisions from
the proposed rule to address construction-specific hazards, accounts
for advancements in technology, and improves enforceability of the
requirements.

DATES: The final rule becomes effective on August 3, 2015.

ADDRESSES: In accordance with 28 U.S.C. 2112(a), the Agency designates
Ms. Ann Rosenthal, the Associate Solicitor of Labor for Occupational
Safety and Health, Office of the Solicitor of Labor, Room S4004, U.S.
Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210,
to receive petitions for review of the final rule.

FOR FURTHER INFORMATION CONTACT:
    General information and press inquiries: Mr. Frank Meilinger,
Office of Communications, Room N3647, OSHA, U.S. Department of Labor,
200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1999; email<EMAIL_ADDRESS>    Technical information: Ms. Jessica L. Douma, Directorate of
Construction, Room N-3468, OSHA, U.S. Department of Labor, 200
Constitution Avenue NW., Washington, DC 20210; telephone<PHONE_NUMBER>
or fax<PHONE_NUMBER>; email<EMAIL_ADDRESS>    For additional copies of this Federal Register document, contact:
OSHA, Office of Publications, U.S. Department of Labor, Room N3101, 200
Constitution Avenue NW, Washington, DC, 20210; telephone (202) 693-
1888. Electronic copies of this Federal Register document are available
at http://www.regulations.gov. Electronic copies of this Federal
Register document, as well as news releases and other relevant
documents, are available at OSHA's Web page at http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
    A. Introduction
    B. Need for Regulation
    C. Affected Establishments
    D. Benefits, Net Benefits, and Cost Effectiveness
    E. Compliance Costs
    F. Economic Impacts
    G. Final Regulatory Flexibility Analysis
II. Background
    A. Record Citations
    B. History
    C. Need for a Rule Regulating Confined Spaces in Construction
III. Summary and Explanation of the Final Standard
    1926.1201--Scope
    1926.1202--Definitions
    1926.1203--General Requirements
    1926.1204--Permit Required Confined Space Program
    1926.1205--Permitting process
    1926.1206--Entry permit
    1926.1207--Training
    1926.1208--Duties of Authorized Entrants
    1926.1209--Duties of Attendants
    1926.1210--Duties of Entry Supervisors
    1926.1211--Rescue
    1926.1212--Employee Participation
    1926.1213--Provision of Documents to the Secretary
IV. Agency Determinations
    A. Legal Authority
    B. Final Economic Analysis and Regulatory Flexibility Analysis
    1. Introduction
    2. Need for Regulation
    3. Profile of Affected Industries
    4. Benefits and Net Benefits
    5. Technological Feasibility
    6. Costs of Compliance
    7. Economic Feasibility and Regulatory Flexibility Determination
    8. Final Regulatory Flexibility Analysis
    9. Sensitivity Analysis
    10. References
    C. Office of Management and Budget Review Under the Paperwork
Reduction Act of 1995
    D. Federalism
    E. State-Plan States
    F. Unfunded Mandates Reform Act
    G. Consultation and Coordination With Indian Tribal Governments
    H. Applicability of Existing Consensus Standards
V. Authority and Signature
VI. Amendments to Standards

I. Executive Summary

A. Introduction

    OSHA last issued rules addressing work in confined spaces in 1993;
however, those provisions applied only to general industry work. A
single training provision, issued in 1979, applies to confined space
work in construction. Following the promulgation of the general
industry rule, OSHA agreed to propose a standard for confined spaces in
construction as part of a settlement of a legal challenge filed by the
United Steelworkers of America. After consulting with the Advisory
Committee for Construction Safety and Health (ACCSH) on a draft, and
holding several stakeholder meetings in locations across the country,
OSHA developed a draft and conducted a Small Business Advocacy Review
Panel (SBAR Panel) in 2003. The Agency published its proposed rule for
confined spaces in construction on November 28, 2007 (72 FR 67351). The
proposal incorporated feedback from ACCSH, the stakeholder meetings,
and the SBAR Panel, and addressed issues unique to the construction
industry, such as higher employee turnover rates, worksites that change
frequently, and the multi-employer business model that is common on
construction worksites.
    During the SBAR Panel, some small entity representatives expressed
a preference for the general industry rule and requested that OSHA
consider adopting that rule for the construction industry. When the
proposed rule was published, OSHA requested comment on how the Agency
could adapt a standard similar to the general industry rule for the
construction sector. Commenters indicated that they had been following
the general industry rule for quite some time and suggested adopting
that standard with some modifications for the construction industry.
OSHA considered the unique challenges faced by the construction
industry as well as the requests by commenters for more consistency
between the general industry and construction standards. The final rule
reflects the organization, language, and most of the substantive
requirements of the general industry rule. Some of the aspects of the
construction industry that are not present in general industry work are
addressed by modifications such as information exchange requirements to
ensure that multiple employers have shared vital safety information.
OSHA also adjusted the construction rule to account for advances in
technology and equipment that allow for continuous monitoring of
hazards. Other differences between the regulatory text of the general
industry rule and this standard reflect improvements in clarity of
language and enforcement considerations that have been addressed

in interpretations of the general industry rule.

B. Need for Regulation

    Prior to the promulgation of this rule, OSHA had one provision in
its construction standards for a general training requirement when
employees work in confined spaces. This provision at 29 CFR
1926.21(b)(6) provided limited guidance, instructing employers to train
employees as to the nature of the hazards involved, the necessary
precautions to be taken, and in the use of protective emergency
equipment required. OSHA has determined that this final rule, which
provides a higher level of guidance and safety information to employers
engaged in this kind of work, will reduce the average number of
fatalities and injuries in confined spaces covered by this standard by
96 percent.

C. Affected Establishments

    The final rule affects establishments in several sectors of the
construction industry, including work involving buildings, highways,
bridges, tunnels, utility lines, and other types of projects. Also
potentially affected are general contractors, as well as specialty-
trade construction contractors and employers engaged in some types of
residential construction work.

D. Benefits, Net Benefits, and Cost Effectiveness

    OSHA expects the final rule to improve the safety of workers who
encounter confined spaces in construction. The programmatic approach of
the final rule includes provisions for: Identifying confined spaces and
the hazards they may contain; allowing employers to organize the work
to avoid entry into a potentially hazardous space; removing hazards
prior to entry to avoid employee exposure; restricting entry through a
permit system where employers cannot remove the hazard; providing
appropriate testing and equipment when entry is required; and arranging
for rescue services to remove entrants from a confined space when
necessary.
    An estimated 6 fatalities and 812 injuries occur annually among
employees involved in construction work in confined spaces addressed by
the provisions of this rulemaking. Based on a review and analysis of
the incident reports associated with the reported injuries and
fatalities, OSHA expects full compliance with the final rule to prevent
96 percent of the relevant injuries and fatalities. Thus, OSHA
estimates that the final rule will prevent approximately 5.2 fatalities
and 780 additional injuries annually. Applying an average monetary
value of $62,000 per prevented injury and a value of $8.7 million per
prevented fatality (value of statistical life) results in estimated
monetized benefits of $93.6 million annually.
    OSHA estimated the net monetized benefits of the final rule to be
about $33 million annually when costs are annualized at 7 percent
($93.6 million in benefits minus $60.3 million in costs). Table IV-1
summarizes the costs, benefits, net benefits, and cost effectiveness of
the final rule.

                        Table IV-1--Net Benefits
                       [Millions of 2009 dollars]
------------------------------------------------------------------------
                                            7% discount     3% discount
                                               rate            rate
------------------------------------------------------------------------
                            Annualized Costs
------------------------------------------------------------------------
Evaluation, Classification, Information            $12.4           $12.2
 Exchange and Notification..............
Written Program, Issue Permits, Verify               4.2             4.2
 Safety, Review Procedures..............
Provide Ventilation and Isolate Hazards.             2.8             2.7
Atmospheric Monitoring..................            11.4            11.3
Attendant...............................             3.6             3.6
Rescue Capability.......................             8.2             7.6
Training................................            11.3            11.3
Other Requirements......................             6.4             6.3
                                         -------------------------------
    Total Annual Costs..................            60.3            59.2
------------------------------------------------------------------------
                             Annual Benefits
------------------------------------------------------------------------
Number of Injuries Prevented............................             780
Number of Fatalities Prevented..........................             5.2
Monetized Benefits......................................            93.6
------------------------------------------------------------------------
           Net Annual Monetized Benefits (Benefits Less Costs)
------------------------------------------------------------------------
                                                    33.3            34.4
------------------------------------------------------------------------
Totals may not equal the sum of the components due to rounding.
Source: Office of Regulatory Analysis, OSHA. Details provided in text.

E. Compliance Costs

    The estimated costs of compliance with this rule represent the
additional costs necessary for employers to achieve full compliance.
They do not include costs for employers that are already in compliance
with the new requirements imposed by the final rule; nor do they
include costs employers must incur to achieve full compliance with
existing applicable requirements.
    OSHA based the Preliminary Economic Analysis and Initial Regulatory
Flexibility Analysis for the proposed rule, in part, on a report
prepared by CONSAD Corp. [2] \1\ under contract to OSHA. For the final
economic analysis (FEA), OSHA updated data on establishments,
employment, wages, and revenues, and updated the analyses in the final
rule with these new cost inputs. OSHA estimated the total annualized
cost of compliance with the present rulemaking to be between about
$59.2 million (when costs are annualized at 3 percent)

and $60.3 million (when costs are annualized at 7 percent). The final
rule's requirements for employers to evaluate, classify, and exchange
information account for the largest component of the total compliance
costs, at approximately $12.2 million to $12.4 million (when costs are
annualized at 3 and 7 percent, respectively). Other compliance costs
associated with the final rule include costs related to atmospheric
monitoring--($11.3 million to $11.4 million), training ($11.3 million),
rescue capability ($7.6 million to $8.2 million), written programs,
permits, and review procedures ($4.2 million), attendants ($3.6
million),--and ventilation and hazard isolation ($2.7 million to $2.8
million).
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    \1\ References are available at the end of this section of the
preamble.
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F. Economic Impacts

    To assess the economic impacts associated with compliance with the
final rule, OSHA developed quantitative estimates of the potential
economic impact of the requirements in this rule on entities in each
affected industry. OSHA compared the estimated costs of compliance with
industry revenues and profits to provide an assessment of potential
economic impacts.
    The costs of compliance for the final rule are not large in
relation to the corresponding annual financial flows associated with
the regulated activities. The estimated costs of compliance (when
annualized at 7 percent) represent about 0.08 percent (less than 1
percent) of revenues and 1.6 percent of profits, on average, across all
entities. One industry, NACIS 23621 Industrial Building Construction,
showed the potential for compliance costs to exceed 10 percent of
annual profits (10.5 percent), but the Agency concludes that the final
standard is still feasible for this industry because it affects less
than 2 percent of all firms in that industry sector each year, and OSHA
believes that firms engaged in confined spaces work are larger and more
profitable than average. Moreover, OSHA does not believe that
industries will absorb all or most of the final standard costs in lost
profits, as the price elasticity of demand in construction is
sufficiently inelastic for minor price increases to offset costs--here,
a price increase of less than 0.5 percent (or one-half of 1 percent).
    OSHA concludes that compliance with the requirements of the final
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 concludes that the effects of the
final rule on international trade, employment, wages, and economic
growth for the United States are negligible.

G. Final Regulatory Flexibility Analysis

    The Regulatory Flexibility Act, as amended in 1996 by the Small
Business Regulatory Enforcement Fairness Act, requires the preparation
of a Final Regulatory Flexibility Analysis for certain rules
promulgated by agencies (5 U.S.C. 601-612). Under the provisions of the
law, each such analysis must contain: (1) A statement of the need for,
and objectives of, the rule; (2) a statement of the significant issues
raised by the public comments in response to the initial regulatory
flexibility analysis, a statement of the assessment of the agency of
such issues, and a statement of any changes made in the final rule as a
result of such comments; (3) a response to any comments filed by the
Chief Counsel for Advocacy of the Small Business Administration, and a
detailed statement of any change made to the proposed rule in the final
rule as a result of those comments; (4) a description and an estimate
of the number of small entities to which the rule will apply or an
explanation of why no such estimate is available; (5) a description of
the projected reporting, recordkeeping, and other compliance
requirements of the rule, including an estimate of the classes of small
entities that will be subject to the requirement, and the type of
professional skills necessary for preparation of the report or record;
and (6) a description of the steps the agency took to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule, and why the agency rejected each one of the
other significant alternatives to the rule considered by the agency
which affect the impact on small entities.
    OSHA analyzed the potential impact of the final rule on small and
very small entities, as described further under the heading ``Final
Regulatory Flexibility Analysis,'' later in this preamble (see Section
IV). OSHA concludes that the compliance costs are equivalent to
approximately 1.64 percent of profits for affected small entities
generally, and less than approximately 0.10 percent (less than 1
percent) of annual revenues for very small industries, though the
inelasticity of demand in construction would allow the costs to be
offset by price increases in most industries.

II. Background

A. Record Citations

    References in parentheses are to exhibits or transcripts in the
docket for this rulemaking. Documents from the subpart AA rulemaking
record are available under Docket OSHA-2007-0026 on the Federal
eRulemaking Portal at http://www.regulations.gov or in the OSHA Docket
Office. The term ``ID'' refers to the column labeled ``ID'' under
Docket No. OSHA-2007-0026 on http://www.regulations.gov. This column
lists individual records in the docket. This document will identify
each of these records only by the last three digits of the record, such
as ``ID-032'' for OSHA-2007-0026-0032. Identification of records from
dockets other than records in OSHA-2007-0026 will be by their full ID
number. In addition, the transcripts for the public hearings OSHA held
on July 22-23, 2008 are identified by the docket number in the record
under Docket No. OSHA-2007-0026-0210 and -0211. To aid readers in
locating citations to the transcripts, this document refers to these
citations using the abbreviation ``Tr.'' and the corresponding page
numbers, such as ID-201, Tr. pp. 10-15.

B. History

    On March 25, 1980, OSHA published an Advanced Notice of Proposed
Rulemaking (ANPR) on confined spaces for the construction industry (45
FR 19266). The ANPR posed 31 questions concerning confined-space
hazards in the construction industry, and the Agency received 75
comments in response to these questions. However, OSHA took no further
action on this regulatory initiative at the time.
    The Agency subsequently published a Notice of Proposed Rulemaking
(NPRM) for a general industry confined spaces rule on June 5, 1989 (54
FR 24080). OSHA issued the general industry confined spaces rule (29
CFR 1910.146) on January 14, 1993 (58 FR 4462).
    The general industry standard requires employers to classify
hazardous confined spaces as ``permit-required confined spaces'' and to
implement specific procedures to ensure the safety of employees who
enter them. It contains detailed procedures for developing a written
confined-space program, monitoring atmospheric hazards, isolating
physical hazards through lock out tag out procedures, training
employees, preventing unauthorized employees from entering these
spaces, providing rescue (both non entry and entry rescue), and
maintaining records. The general industry standard specifies a limited

exception from some of the permit-required confined-space requirements
when the only hazard in a confined space is an atmospheric hazard and
ventilation equipment will control the atmospheric hazard at safe
levels. It also provides protection to employees from non-atmospheric
hazards (for example, physical hazards) in confined spaces. However,
the general industry standard does not apply to construction employers,
and, as such, does not specify the appropriate level of employee
protection based on the hazards created by construction activities
performed in confined spaces.
    In 1993, as part of the litigation activity associated with the
newly promulgated general industry standard, OSHA agreed in a
settlement with the United Steel Workers of America to issue a proposed
rule to extend confined-space protection to construction employees. On
February 18, 1994, OSHA submitted a draft proposed standard for
confined spaces in construction to the Advisory Committee for
Construction Safety and Health (ACCSH) for comment. ACCSH established a
work group on March 22, 1994, to address the OSHA draft proposed
standard and report its findings to the full committee. ACCSH adopted
the work group report on May 17, 1994 and recommended that OSHA
incorporate it into a rulemaking docket. In this report, ACCSH noted
that the general industry standard did not meet the needs of the
construction industry. ACCSH found that employers often do not identify
or classify confined spaces encountered or generated at construction
worksites prior to the beginning of a construction project, and noted
the difficulties faced by employers generally on construction
worksites, where conditions often change rapidly and many different
subcontractors may perform work simultaneously.
    Consequently, ACCSH established a work group to draft a proposed
standard that would meet the unique needs of the construction industry.
The draft proposed standard emphasized identifying different types of
confined spaces encountered in construction (for example, spaces in
which the employer isolates all hazards or controls atmospheric hazards
at safe levels, and spaces that are permit-required spaces), as well as
inter-contractor information exchange and the detailed protections
necessary to eliminate or control specific hazards.
    As the result of the ACCSH work group review, ACCSH submitted a
draft proposed standard for confined spaces in construction to OSHA in
1996. ACCSH recommended that OSHA use the draft as a proposed confined
spaces standard. OSHA determined that the ACCSH draft proposed standard
needed revision to make it easier to understand, especially for small
employers that do not employ a separate safety staff. The Agency also
determined that the draft proposed standard did not address adequately
certain hazards, such as hazards encountered in sewer-construction
work. Consequently, OSHA determined that it was necessary to develop a
new draft proposed standard.
    In 1998, OSHA completed a new draft proposed standard, but
discovered that there were several issues that the Agency needed to
resolve before it could finalize the draft proposed standard. To get
feedback from the construction community, OSHA held three stakeholders
meetings in October of 2000 across the country. The topics discussed at
the stakeholder meetings were: (1) Typical confined spaces encountered
in construction; (2) whether the proposed standard should require an
early-warning system for spaces in which the employer could not isolate
an engulfment hazard (such as in some sewer situations); (3) the need
for, and cost of, continuous monitoring for atmospheric hazards; (4)
how a confined spaces standard for construction could accommodate the
needs of small businesses; and (5) whether the proposed standard should
permit an attendant to perform his or her duties for more than one
confined space at a time.
    In late 2003, OSHA completed drafting the proposed standard and
convened a panel under the Small Business Regulatory Enforcement
Fairness Act (SBREFA) to solicit comments on the proposal from small
business entities. The SBREFA panel conducted two conference-call
discussions, which were open to the public, in which small entity
representatives expressed their concerns about the draft proposed
standard; these representatives also submitted written comments to the
record that covered the issues. The SBREFA panel then submitted its
recommendations to the Agency in November 2003.
    The Agency published a proposed rule for confined spaces in
construction on November 28, 2007 (72 FR 67351). The proposed confined
spaces standard for construction reflected input from stakeholder
meetings, ACCSH, and the SBREFA review process. For example, OSHA
removed a provision that addressed working in hazardous enclosed spaces
(i.e., spaces designed for human occupancy but subject to a hazardous
atmosphere), which small business entities participating in the SBREFA
review process considered burdensome and unnecessary; OSHA removed this
provision because it believes that existing construction standards (for
example, 29 CFR 1926.55) adequately address these hazards. The proposed
standard used a confined-space classification approach consistent with
the ACCSH recommendations. OSHA organized the proposed standard
chronologically to guide the employer from its initial encounter with a
potential confined space through the steps necessary to ensure adequate
protection for employees. In addition, it addressed the need for
coordination and information exchange at construction sites, which
typically have multiple employers.
    The Agency recognized that a number of requirements in the proposed
standard for confined spaces in construction duplicated, or were
similar to, the provisions of the general industry standard for permit-
required confined spaces. Nevertheless, OSHA had concerns about whether
the general industry standard adequately addressed the unique
characteristics of confined spaces in construction. The feedback that
OSHA received from ACCSH, stakeholders, and the SBREFA process
indicated that, compared to general industry, the construction industry
experiences higher employee turnover rates because construction
employees often work at multiple worksites performing short-term tasks.
Unlike most general industry worksites, construction worksites are
continually evolving, with the number and characteristics of confined
spaces changing as work progresses. Also, multiple contractors and
controlling contractors are more common on construction worksites than
general industry worksites. Therefore, a construction standard for
confined spaces, even more so than the general industry standard for
confined spaces, must emphasize training, continuous worksite
evaluation, and communication requirements
    Decision to abandon the proposed new classification system and
adapt an alternative that is more similar to the general industry
standard.
    During the SBREFA review process, some small entity representatives
urged OSHA to consider adopting the general industry standard for
construction, and to solicit comment on how the Agency could adapt an
alternative standard similar to the general industry standard to the
construction sector. When the Agency published the proposed
construction standard, it requested

public comments on how to adapt an alternative standard similar to the
general industry standard for the construction industry (72 FR 67352,
67401 (Nov. 28, 2007)). During the comment period and the public
hearings OSHA held on July 22-23, 2008, OSHA received many comments and
much testimony regarding the issue of using an adapted version of the
general industry standard as the basis for the final rule rather than
the new classification systems proposed in the NPRM. A clear majority
of comments were in favor of finalizing a confined spaces in
construction standard that more closely resembles the general industry
standard for confined spaces. (See, e.g., ID-032; -047; -075; -088; -
092; -095; -105; -106; -115; -117; -118; -119; -120; -121; -125; 150; -
152; -153; 185; -189; -210, Tr. pp. 54-60, 74-76, 174-175, 282-284; -
211, Tr. pp. 73, 172, and 238-239.) Several commenters proposed
adopting the general industry standard with some adaptations for the
construction context, though not all of these commenters specified, or
agreed on, what specific adaptations were appropriate (see, e.g., ID-
092; -117; -125). The Agency received a number of comments suggesting
that many construction employers were currently following the general
industry confined spaces standard (see, e.g., ID-075; -085; -088; -092;
-095; -112; -117; -118; -120; -121; -125; -147).
    For the reasons discussed in the preamble to the proposed rule, and
in light of the comments and testimony the Agency received, OSHA
remains convinced that the general industry standard does not
adequately address confined-space hazards as these hazards arise in the
construction industry. Moreover, the 19 years of experience that
employers have working with the general industry rule, and that OSHA
has enforcing the general industry rule, highlight several areas in
which additional clarification in the language of the general industry
standard could improve the effectiveness of a new construction
standard. Therefore, OSHA is not simply incorporating the general
standard by reference into the construction standards.
    OSHA believes that the particular duties and obligations in the
general industry standard and the proposed construction standard are
similar, and that the public's confusion over the re-organized
structure in the proposed rule is the result of the degree of detail in
the proposed rule, as well as its organization. Most notably, compared
to the general industry rule, the proposed rule added specificity to
the general industry standard's broad, performance-based requirements,
and defined a larger number of confined-space classifications.
    Nevertheless, in recognition of the commenter requests for more
consistency between the two standards, OSHA is using the organization,
language, and most of the substantive requirements in the general
industry confined spaces standard as the basis for the final confined
spaces in construction rule. However, differences in employee and
worksite characteristics between the construction industry and general
industry, as well as the comments and testimony of the regulated
community indicating the need for consistency and continuity in OSHA
requirements, prompted OSHA to develop a final rule for confined spaces
in the construction industry that contains important requirements from
the proposed rule and some additional changes. Many of these changes,
such as the information exchange requirements, are designed to address
the heightened need, on constantly evolving construction worksites for
communication, worksite evaluation, and training for confined spaces in
construction. In addition, several regulatory provisions in the general
industry rule differ from the regulatory provisions of this final rule
because the provisions of this final rule: (1) Address construction-
specific issues; (2) account for advancements in technology; (3)
address concerns raised by the regulated community through comment and
at the hearing; or (4) reflect improvements in language for modern
regulatory drafting (``must'' in place of ``shall''), clarity and
enforcement considerations. In most cases, the preamble that follows
this introductory section explains the differences between the
provisions of the final rule and the general industry rule.
    The Agency believes that it provided adequate notice of the
substantive terms of the final rule, as well as an extensive
description of the subjects and issues involved. Accordingly, the
Agency fairly apprised interested persons of the content of the
rulemaking, and the comments and hearing testimony provide ample
evidence that interested parties to the rulemaking understood the
issues and potential outcomes of the rulemaking. See, e.g., Nat'l
Mining Ass'n v. Mine Safety & Health Admin., 512 F.3d 696, 699 (D.C.
Cir. 2008); Miami-Dade County v. U.S. E.P.A., 529 F.3d 1049, 1059 (11th
Cir. 2008); United Steelworkers of America, AFL-CIO-CLC v. Marshall,
647 F.2d 1189, 1221 (D.C. Cir. 1980) (``a final rule may properly
differ from a proposed rule and indeed must so differ when the record
evidence warrants the change. . . . Where the change between proposed
and final rule is important, the question for the court is whether the
final rule is a `logical outgrowth' of the rulemaking proceeding'').
The resulting final standard is a logical outgrowth of the proposal,
and the number of comments urging an adapted version of the general
industry standard provides a clear indication that the affected members
of the public are not only familiar with the general industry standard,
but also viewed the inclusion of part or all of the general industry
standard's structure and language as a potential outcome of this
rulemaking. The confined-space issues the Agency addresses in the final
rule are the same as in the proposed rule, and the Agency addressed the
criticisms and suggestions made by interested parties in response to
the proposed rule. In short, the combination of OSHA's request for
comment on the approach that it ultimately adopted in the final rule,
the explanation of the hazards it sought to address in proposal, and
the comments and testimony received in response to the proposal
provided the regulated community with adequate notice regarding the
outcome of the rulemaking. Therefore, the Agency concludes that there
is no basis for further delaying promulgation of the standard to obtain
comment on the approach adopted in this final rule.
    Many of the comments OSHA received on the proposal related to
specific requirements included in the detailed procedures of the
proposed standard. As a result of finalizing a confined spaces in
construction standard that closely resembles the general industry
standard, much of this detailed language does not appear in this final
rule. In some cases, OSHA addressed the substance of the comment in the
discussion of the most relevant preamble section in this final rule. In
other instances, the issue raised in the comment became moot as a
result of OSHA's decision not to include the proposed text in the final
rule. Therefore, OSHA is not directly responding to each of these
particular comments in the summary and explanation of the final rule.
    OSHA considered, but ultimately rejected, several other regulatory
alternatives based on the comments submitted to the Agency. For
example, some commenters suggested that employers should have the
option of following either 29 CFR 1910.146 or this final rule (ID-089,
p. 2; -147, p. 4). This suggestion relates to some commenters' concern
that having separate rules for confined spaces in construction and

general industry makes it confusing for employers that perform both
construction and maintenance inside a confined space to comply with the
different requirements of each rule based on the type of the work they
are performing (see, e.g., ID-119, p. 3). OSHA developed this standard
because of the unique hazards of confined-space work in construction
and, although this final rule is similar to Sec.  1910.146, there are
differences when certain procedures are necessary to protect employees
from the unique hazards of construction confined-space work. Therefore,
an employer does not have the option of bypassing the procedures that
are unique to this final rule by complying instead with Sec.  1910.146.
Such a policy would severely undermine OSHA's effort to protect
employees from the unique hazards present during confined-space
operations in construction.
    OSHA recognizes that the differences between Sec.  1910.146 and
this final rule can make it more complicated for employers to comply
with two different sets of procedures if they perform maintenance and
construction work at the same time in the same confined space. In order
to ease the compliance burden on these employers, OSHA will consider
compliance with this final rule as compliance with Sec.  1910.146. This
enforcement policy was suggested by at least one commenter (ID-211, Tr.
p. 303).
    Another commenter suggested that OSHA issue a directive on
confined-space work in construction instead of a final rule (ID-100, p.
5). OSHA generally issues a directive on a particular work practice
after the Agency issues a rule, not in lieu of a rule; accordingly, the
directive provides guidance as to how the Agency will enforce a
standard. The rulemaking process, on the other hand, provides the
public with notice and an opportunity to comment on the Agency's
proposed action, and the Agency may use the information gathered during
this process to impose substantive duties on employers, such as
employers engaged in confined-space construction work. The information
gathered by the Agency during the rulemaking process for this final
rule supports issuing a final rule for confined-space work in
construction. Therefore, OSHA rejects the alternative approach
suggested by the commenter.
    A different set of commenters focused on individual states'
confined spaces standards. One commenter asserted that several State-
Plan States have effective confined space standards and that this rule
will unnecessarily force those states to change these standards (ID-
135, p. 3). A similar comment discussed Virginia's confined spaces
rule, but did not suggest OSHA adopt that rule (ID-047, p. 1). Another
commenter suggested OSHA adopt the majority of California's confined
spaces rule (ID-077, p. 1). OSHA notes that the Occupational Safety and
Health Act of 1970 (OSH Act) allows for different regulatory schemes to
address the hazards of confined-space work provided those standards are
at least as effective as the Federal OSHA standard. The record
indicates that, by issuing a final rule that is similar to Sec.
1910.146, OSHA is not drastically changing industry practice for
addressing confined-space hazards. (See, e.g., ID-047; -075; -085; -
088; -092; -095; -112; -117; -118; -120; -121; -125; -147; -189.)
Therefore, OSHA believes that State-Plan States that have standards
applicable to construction work in confined spaces that are similar to
Sec.  1910.146 will not have to make major changes to their existing
rules to ensure that these rules are at least as effective as this
final rule. When a State-Plan State's confined spaces rule is not as
effective as this final rule, OSHA believes that the record warrants a
change in the State-Plan State's rule so that it will provide
construction employees with the same level of protection afforded to
them by this final rule. For a full discussion of State-Plan States,
see Section IV.E (``State-Plan States'') later in this preamble.

C. Need for a Rule Regulating Confined Spaces in Construction

    Before promulgating this final rule, OSHA had one existing
provision in its construction standards that included a general
training requirement for employers working in confined spaces. A broad
``safety and training'' requirement in 29 CFR 1926.21(b)(6), adopted by
the Agency in 1979, provided limited guidance: Under this provision,
employers were only required to instruct employees required to enter
into confined or enclosed spaces as to the nature of the hazards
involved, the necessary precautions to be taken, and in the use of
protective and emergency equipment required. Fatality and injury data,
OSHA enforcement experience, and advice from ACCSH indicate that Sec.
1926.21(b)(6) did not adequately protect construction employees in
confined spaces from atmospheric, physical, and other hazards. Even
when Sec.  1926.21(b)(6) applied, it required employers only to train
employees who work in confined spaces--it did not address how to
protect trained employees while they are working in such spaces, nor
did it address the actions of employers outside the spaces engaged in
activities that might harm employees inside the spaces. For situations
in which none of the construction standards apply, the employer was
still required to comply with the general-duty requirement of the OSH
Act to ``furnish to each of [its] employees employment and a place of
employment which are free from recognized hazards that are causing or
are likely to cause death or serious physical harm to [its] employees''
(29 U.S.C. 654), but this ``general duty'' is often more difficult for
OSHA to enforce and does not provide the same level of guidance and
safety information provided in a standard.
    As noted in the economic analysis section of the preamble to this
final rule, OSHA determined that employees in the construction industry
who perform work in confined spaces face a significant risk of death or
serious injury, and that this final rule would substantially reduce
that risk. At present, OSHA estimates that 20,479 establishments
annually have employees entering at least one confined space as defined
by this final rule. OSHA estimates that, each year, 6 fatalities and
900 injuries occur among employees working in confined spaces covered
by this final rule. OSHA determined that the final rule, when
implemented properly by employers, will reduce the average number of
fatalities and injuries in confined spaces covered by this standard by
96 percent (5.2 fatalities prevented annually, and 780 injuries
prevented annually). (For further explanation of the significant-risk
calculations, see section V.B. (``Final Economic Analysis and
Regulatory Flexibility Analysis'') of this document.)

III. Summary and Explanation of the Final Standard

Explanation of Changes to Subpart V--Power Transmission and
Distribution

    Subpart V of part 1926 governs construction work involving power
transmission, generation, and distribution. OSHA recently updated
subpart V (79 FR 20316 (April 11, 2014). When it did so, OSHA required
compliance with the general industry confined-spaces standard at Sec.
1910.146 in several provisions of subpart V. OSHA did so because at
that time there was no comprehensive confined-spaces standard for
construction, but the Agency explained in the subpart V preamble that
``the references to the general industry standard in final Sec.
1926.953 are included as a placeholder

pending the promulgation of the confined spaces in construction
standard. OSHA intends to change these references to refer to the
construction standard when it promulgates that standard.'' (79 FR
20376) OSHA is, therefore, amending subpart V in this rulemaking to
replace references to the general industry confined spaces standard
with references to this final construction rule, because OSHA
specifically tailored this final rule to construction work, making the
confined spaces in construction rule more appropriate than the general
industry standard for construction work addressed by subpart V.
Amendments to Definition of ``Enclosed Space'' in Sec.  1926.968
    An ``enclosed space'' is a term of art under subpart V and the
corresponding general industry standard for electric power generation,
transmission, and distribution (Sec.  1910.269) describing a workspace
such as a manhole or vault that is designed for periodic employee entry
under normal operating conditions, and that, under normal conditions,
does not contain a hazardous atmosphere, but may contain a hazardous
atmosphere under abnormal conditions (Sec.  1910.269(x) and Sec.
1926.968). There is overlap between an enclosed space and a ``permit-
required confined space'' (permit space) as defined in the confined
spaces standards for general industry (Sec.  1910.146) and construction
(new subpart AA): An enclosed space meets the definition of a permit
space--while it is not expected to contain a hazardous atmosphere, it
has the potential to contain one--but the definition of permit-space is
broader than the definition of enclosed space. For instance, if a space
contains a hazardous atmosphere under normal conditions, that space is
a permit space under Sec.  1910.146 or new subpart AA, but it is not an
enclosed space under final Sec.  1910.269 or subpart V.
    The note to the definition of ``enclosed space'' in Sec.
1910.269(x) states that enclosed spaces expected to contain a hazardous
atmosphere meet the definition of permit spaces in Sec.  1910.146, and
entry into them must conform to that standard. Subpart V, however, did
not have any definition of ``enclosed space'' until OSHA amended it in
2014 by adding a definition that matched the general industry
definition in Sec.  1910.269(x) except that it did not include the
note. OSHA explained in the preamble to the subpart V amendments that
it did not include the note at that time because there was no
comprehensive corresponding confined spaces construction standard to
reference in place of Sec.  1910.146, but OSHA intended to add a
corresponding note to Sec.  1926.268 when it promulgated the new
construction confined spaces standard (see 79 FR 20376-20377). As part
of this rulemaking, OSHA is therefore adding a note to the definition
of ``enclosed space'' in Sec.  1926.968 that corresponds to the note in
Sec.  1910.269(x), replacing the reference to Sec.  1910.146 with a
reference to subpart AA.
Amendments to Sec.  1926.953
    Prior to this rulemaking, Sec.  1926.953(a) in subpart V, as
amended in 2014, required that entry into an enclosed space to perform
construction work meet the permit-space entry requirements of
paragraphs (d) through (k) of Sec.  1910.146 when the precautions taken
under Sec. Sec.  1926.953 and 1926.965 were insufficient to eliminate
hazards in the enclosed space that could endanger the life of an
entrant or interfere with escape from the space. Similarly, Sec.
1926.953(g) stated that employees may not enter any enclosed space
while it contains a hazardous atmosphere, unless the entry conforms to
the permit-required confined spaces standard in Sec.  1910.146. OSHA is
amending Sec. Sec.  1926.953(a) and 1926.953(g) by replacing each
reference to Sec.  1910.146 with a reference to subpart AA so that the
appropriate construction standard, rather than a general industry
standard, will apply.
    OSHA is also adding a sentence to Sec.  1926.953(a) to clarify that
employers may comply with the requirements of Sec.  1926.953 ``in lieu
of'' most of the requirements in new subpart AA when the entry into the
enclosed space is a routine entry for subpart V work and there is no
hazardous atmosphere in the space. Without this clarifying sentence,
employers could have been confused about which standard applied. OSHA
determined that Sec.  1926.953 provides adequate protection to
employees in that situation and announced in the subpart V preamble
that it intended to add the sentence when it issued this final rule
(see 79 FR 20376).
    The new ``in lieu of'' sentence in Sec.  1926.953(a) corresponds to
a similar sentence in Sec.  1910.269(e) specifying that employers are
not required to comply with Sec.  1910.146(d) through (k) for the same
type of routine entries into enclosed spaces. OSHA has used slightly
different wording from the language in Sec.  1910.269 to emphasize that
``in lieu of'' language is only applicable where the entry is routine
and the space does not contain hazards that could cause death or impede
exit. As with the general industry standard, the new sentence in Sec.
1926.1953(a) only exempts employers from compliance with some, but not
all, of subpart AA's requirements. In the ``in lieu of'' sentence in
Sec.  1910.269, OSHA only excuses employers from compliance with Sec.
1910.146(d) through (k) for these routine entries, but employers must
still comply with the requirements in Sec.  1910.146(c) and (l),
including the requirements to assess the space, prevent unauthorized
entry, communicate with and coordinate with the host employer when
applicable, and to involve entrants and their representatives in the
process. Likewise, in Sec.  1926.953(a), the enclosed spaces
requirements apply in lieu of the permit requirements in Sec.
1926.1204 through Sec.  1211, but employers still need to comply with
subpart AA's corresponding requirements in Sec.  1926.1203 to assess
the space, prevent unauthorized entry, and coordinate with and
communicate with the controlling contractor, in addition to the
requirements in Sec.  1211 to involve entrants and their
representatives in the process.
    Finally, in addition to some minor, non-substantive grammatical
changes to improve the paragraph, OSHA is also revising the note to
paragraph Sec.  1926.953, which appears at the end of the section, by
replacing its reference to Sec.  1910.146 with a reference to new
subpart AA. The note clarifies that OSHA considers employers who comply
with new subpart AA when entering an enclosed space as in compliance
with Sec.  1926.353(a). Some employers may prefer to comply with new
subpart AA rather than Sec.  1926.353(a), and subpart AA protects
employees entering enclosed spaces at least as effectively as the
provisions in Sec.  1926.353.

Section 1926.1201--Scope

    The scope of new 29 CFR part 1926, subpart AA--Confined Spaces in
Construction is set forth in 29 CFR 1926.1201. This subpart provides
minimum safety and health requirements and procedures to protect
employees who work in confined spaces. It addresses how to protect
employees from confined-space hazards. The final rule includes
requirements for training, identification and assessment of confined
spaces, hazard analysis, entering, working, exiting, and rescue for
confined spaces containing a variety of different hazards.
    The proposed rule contained an ``Introduction'' section that
provided a general overview of the standard and stated that the
proposed standard would cover ``working within or near a confined space
that is subject to a

hazard'' (see proposed Sec.  1926.1201(a)). OSHA removed the
``Introduction'' section to make this final rule similar to Sec.
1910.146, and to avoid confusion caused by potential overlap with the
``Scope'' provisions. Section 1926.1201 in the final rule is the scope
section.
    Paragraph (a). Although many commenters urged OSHA to conform this
final rule to the general industry standard as much as possible, the
scope section for confined spaces in general industry at Sec.
1910.146(a) expressly excludes construction work. Therefore, it is
impractical for OSHA to change the language in final rule Sec.
1926.1201 to mirror Sec.  1910.146(a). Instead, OSHA structured the
scope section in final rule Sec.  1926.1201 in a manner that draws from
the language in the scope sections of the general industry standard and
the proposed rule. As with the scope of the general industry standard,
which states that it protects employees from the hazards of entry in
permit-required confined spaces (Sec.  1910.146(a)), OSHA phrased final
Sec.  1926.1201(a) in terms of the employees protected by the final
standard. In contrast, the scope of the proposed rule focused on
employers (see proposed Sec.  1926.1202(a)). While the final standard
necessarily imposes the duties exclusively on employers, OSHA concluded
that phrasing the scope in terms of employers ``who have confined
spaces at their job site'' was potentially more problematic than the
general industry approach because the regulated community could
misinterpret the proposed language as requiring some analysis of the
extent to which the employer exercised control over a particular part
of a construction site.
    A number of commenters expressed confusion about the description of
the standard included in the proposed introduction, which appeared to
function as an additional statement about the scope of the rule (see,
e.g., ID-032.0; -100.1; -105.1; -114.1; -119.1; -120.1; -125.1; -
135.0.) In particular, many commenters asserted that the reference to
work ``within or near a confined space,'' as used in the proposed
description of the standard, was too vague, and requested that OSHA
clarify its meaning. (See, e.g., ID-031, p. 4; -061, p. 7; -095, p. 1;
-101, p. 2; p. 1; -106, p. 1; -117, p. 7; -120, p. 2; -121, p. 8; -124,
p. 4; p.-125, p. 5.) In response, OSHA did not include the phrase
``within or near a confined space'' in the scope section in this final
rule. Instead, in final Sec.  1926.1201(a), OSHA describes the scope in
more definite terms by stating that the new standard protects employees
engaged in construction activities at a worksite with one or more
confined spaces, which is similar to the language of the proposed rule
except that it avoids the reference to ``their job site.'' The language
in final Sec.  1926.1201(a) incorporates a bright-line test (whether or
not the worksite has a confined space) to underscore two important
points in the final rule that also are true for the general industry
standard and the proposed rule: First, all employers engaged in
construction have a duty under the final standard to ensure that their
employees do not enter a confined space except in accordance with the
requirements of the standard, and the presence of a confined space on
the worksite triggers this duty rather than the type of work the
employer is performing. Second, there are critical components of this
standard, such as information sharing and coordination of work, that
apply to certain employers that, regardless of whether their employees
are authorized to enter a confined space, have information necessary
for the protection of employees working inside confined spaces, or are
engaged in activities that could, either alone or in conjunction with
activities inside the confined space, endanger the employees working
inside a confined space. Final Sec.  1926.1201(a) makes it clear that
the focus of the final standard is on the type of work performed, and
whether that work could produce, and expose employees to, confined
space hazards. Although final Sec.  1926.1201(a) differs slightly from
proposed Sec.  1926.1202(a), this difference does not affect the scope
of the final rule; it merely makes the scope more precise than the
scope of the proposed rule. This change also is consistent with the
proposed ``Introduction'' section in proposed Sec.  1926.1201(a).
    Final Sec.  1926.1201(a) includes a note with a non-exhaustive list
of potential confined spaces that commonly occur on a construction
worksite. This list provides examples for employers who may be
unfamiliar with confined spaces in construction. The note to final
Sec.  1926.1201(a) is identical to the note to proposed Sec.
1926.1202(a).
    One commenter asserted that OSHA should exclude steel tanks, which
OSHA included in the list of examples of confined spaces in
construction in the proposed rule, from the new standard when the tanks
are under construction because this activity does not produce an
atmospheric hazard (ID-138, p. 2; -214.1, p. 4; -210, Tr. p. 217). In
particular, the commenter asserted that contractors typically do not
close entirely steel tanks under construction until the final phase of
construction and that, prior to the final phase, the tanks typically
have sufficient natural ventilation to prevent a hazardous atmosphere
from forming. The final phase is typically conducted without any
employees inside the tank (ID-210, Tr. p. 5).
    Whether a confined space exists is a separate analysis from whether
a hazard exists, unless the hazard prevents unrestricted egress from
the space. A steel tank is a confined space at any stage of
construction when it has limited or restricted means for entry and exit
(see the definition of a confined space in Sec.  1926.1202, which is
discussed later in this preamble). However, OSHA recognizes that a
significant portion of steel-tank construction activity may not result
in work inside a confined space if contractors generally do not
assemble the tank sections in a manner that would place an employee
inside a space with limited egress. Even when construction of the tank
results in such a space, the space may not contain a hazard that would
render it a permit-required confined space. If the space is not a
permit-required confined space, then the employer's duties are very
limited. In such spaces, the employer's responsibility under this
standard would be limited to verifying what the commenter asserts is
true: There is no atmospheric hazard or other hazard. Nevertheless, the
commenter acknowledged that welding activities in some steel tank
construction, particularly for relatively small tanks, could produce
the types of hazardous atmospheres this standard is intended to address
(ID-210, Tr. pp. 228-229). Thus, OSHA is not categorically excluding
steel tanks from coverage under this standard and continues to include
steel tanks in the list of potential confined spaces to alert employers
that the process of steel-tank construction could place employees in a
space that meets the definition of a permit-required confined space.
    Another commenter asserted that the note did not include wind
turbines (ID-210, Tr. p. 154). This commenter misunderstood the
reference to ``turbines'' in the note in the proposed and final rules.
The reference to ``turbines'' is general, and applies to all turbines
that meet the definition of a confined space.
    It is important to note that only the presence of a hazard inside a
confined space will trigger the majority of procedures required by this
final rule. One commenter asserted that limited egress is a continual
hazard to every employee in a confined space, regardless of whether any
other hazards exist (ID-060, p. 3). Therefore, the

commenter argued that the permit requirements of this final rule,
including the requirement to have a rescue service available, should
apply to all confined spaces, even those spaces in which another hazard
does not exist. This approach would apparently treat all confined
spaces as permit spaces, which would be a radical departure from OSHA's
longstanding treatment of confined spaces in the general industry. OSHA
does not agree that such a departure, or the additional costs that
employers would incur because of such departure, are warranted in the
absence of employee exposure to some hazard inside the confined space.
Limited egress in a confined space is a safety concern only when an
employee cannot readily exit a confined space to avoid being exposed to
a hazard within the space. Limited egress, by itself, is unlikely to
injure or kill an employee. If limited egress is the only safety
concern, then OSHA concludes that it is not reasonable to require
employers to comply with the provisions of this final rule that pertain
to permit spaces. In such a circumstance, employers already must follow
existing construction standards that apply to work in an enclosed space
(for example, Sec.  1926.353--Ventilation and protection in welding,
cutting, and heating at, and Sec.  1926.55--Gases, vapors, fumes,
dusts, and mists).
    Another commenter noted that the shipyard employment standard at 29
CFR part 1915 includes confined spaces requirements and was unsure
whether this new construction standard will apply to confined space
construction work performed in a shipyard (ID-028, p. 1). It will. OSHA
focuses on the type of work activity, not necessarily the location of
the work activity, in determining whether this confined spaces in
construction standard or the shipyard employment standard, part 1915,
applies. See, e.g., Feb. 9, 2004, letter to Jack Swarthout.\2\ The
shipyard employment standards apply to ship repairing, shipbuilding,
ship breaking, and related employment. This confined spaces in
construction standard covers confined space work in shipyards to the
extent that it is construction work and is not ship repairing,
shipbuilding, ship breaking, or related employment. An example in which
this confined spaces in construction standard applies is the
construction of a building on the grounds of a shipyard. Non-
construction work performed in a shipyard is not subject to this final
rule; either Sec.  1910.146 or the shipyard employment standard at 29
CFR part 1915, subpart B--Confined and Enclosed Spaces and Other
Dangerous Atmospheres in Shipyard Employment would cover such work.
---------------------------------------------------------------------------

    \2\ All of the letters and memoranda included in this preamble
are available at www.osha.gov.
---------------------------------------------------------------------------

    Paragraph (b) Exceptions. This paragraph explicitly excludes
construction work regulated by 29 CFR part 1926, subpart Y--Diving,
construction work regulated by 29 CFR part 1926, subpart P--Excavation,
and construction work regulated by 29 CFR part 1926, subpart S--
Underground Construction, Caissons, Cofferdams and Compressed Air from
the scope of this final rule. Accordingly, this provision exempts
employers operating under one of the three listed exemptions from
complying with this final rule for work within a confined space, so
long as that work falls within the scope of one of the listed subparts.
    The Agency exempted each type of work covered by the listed
subparts from the requirements of this standard because OSHA
specifically tailored the existing requirements in these subparts to
protect employees from the hazards associated with confined spaces. In
addition, OSHA believes that overlapping standards covering these
activities could be unnecessarily burdensome to employers, or cause
some confusion about the appropriate procedures to use.
    Under Sec.  1926.1201(b)(3), this confined spaces standard does not
apply to construction activities covered by 29 CFR part 1926, subpart
Y, which encompasses diving and related support operations conducted in
connection with all types of work and employments, including
construction (29 CFR 1926.701, referencing 29 CFR 1910.401). As defined
in subpart Y, a ``diver'' is an employee working in water using
underwater apparatus which supplies compressed breathing gas at the
ambient pressure (Sec.  1926.701, referencing Sec.  1910.402). The
Agency notes that, if a diver engages in construction activity in an
area that meets the definition of a confined space under this final
rule, and is not working in water or removes his/her underwater
breathing apparatus, then, in most cases, the activity is outside the
scope of subpart Y because the employee is no longer a ``diver''; in
such a case, the requirements of this confined spaces standard apply
instead.
    The other exemptions set forth in final Sec.  1926.1201(b) are
identical to the proposed exemptions except that OSHA removed the
``non-sewer'' limitation for the exemption that applies to 29 CFR part
1926, subpart P--Excavations and 29 CFR part 1926, subpart S--
Underground Construction. Under Sec.  1926.1201(b)(1) and (b)(2), OSHA
exempted construction activities covered by subparts P and S. In its
explanation in the proposed rule, the Agency noted that subparts P and
S generally provide adequate protections against hazards in excavations
and underground work (72 FR 67356 (Nov. 28, 2007)). In light of the
additional hazards associated with sewers as continuous systems that
often have hazardous atmospheres and engulfment hazards, the Agency
proposed limiting the Excavations, and Underground Construction
exemptions to ``non-sewer'' work, which would have the effect of
applying this final standard, in addition to subpart P or subpart S,
whenever an employer performed excavation or trenching construction
work related to a sewer system. One commenter urged OSHA to limit the
exemption further, characterizing subpart P as ``insufficient for
addressing potential worker exposures to hazardous atmospheres,'' and
asserting that this final rule should apply to excavations where a
hazardous atmosphere exists because the confined spaces standard would
provide more comprehensive protection for employees than the excavation
standard (ID-105, p. 5). The commenter did not, however, provide any
basis for this assessment. Two commenters emphasized the significance
of the hazards posed by excavation, and urged OSHA to protect employees
from those hazards; however, they did not discuss subpart P--
Excavations and did not provide a clear rationale for why those
standards do not provide adequate protection for employees working in
excavations (ID-032, p. 4; -034, p. 1).
    A different commenter asserted that OSHA should apply the confined
spaces standard to hazards in excavation work not covered by the
excavation requirements (ID-025, p. 2). In other words, OSHA should
exempt excavation work unless there is a hazard present not addressed
by subpart P--Excavations, but addressed by this confined spaces
standard, in which case the confined-space requirements applicable to
addressing that specific hazard would apply. The commenter did not
provide an example of a hazard that could be present in excavations but
not addressed by subpart P. Also, OSHA believes that the approach
advocated by the commenter would lead to confusion, and may not promote
safety. OSHA designed the confined spaces standard to work as a
comprehensive system, not through piecemeal application. Therefore,
OSHA concludes that it is

not appropriate to limit the exemption as requested by the commenter.
    Another commenter asserted that the excavation standards in subpart
P do not provide protection against hazards associated with applying
waterproofing products on building foundations below grade level (ID-
106). OSHA disagrees with this commenter. Even assuming that the
particular waterproofing product used would constitute an atmospheric
hazard, 29 CFR 1926.651(g) requires an employer to test for atmospheric
hazards and to take adequate precautions to protect employees
accordingly.
    Most of the commenters who addressed the issue of the potential
overlap between this final standard and the excavation and underground
construction requirements in subparts P and S, respectively, requested
that OSHA expand the exemption to exclude all work subject to those
standards from the scope of the final rule, regardless of whether the
excavation or underground work connects to a sewer, because other OSHA
standards, primarily subpart P, adequately cover such work (ID-060, p.
1; -108, p. 2; -117, p. 6; -124, p. 3; -140, p. 6; -143, p. 1). One of
these commenters noted that subpart P's requirements ``include testing
the trench/excavation(s) before workers enter them when a hazardous
atmosphere exists or could reasonably be expected to exist (e.g.
excavations near landfills or in areas where hazardous substances may
be stored) and providing proper respiratory protection or ventilation
to prevent exposure to harmful levels of atmospheric contaminants and
to assure acceptable atmospheric conditions,'' and also include
appropriate rescue provisions (ID-117, pp. 6 and 7). Furthermore,
several of the commenters asserted that applying both this final rule
and the excavation standards to work inside all excavations would
result in a confusing and disjointed regulatory scheme that could
reduce employee safety (ID-060, p. 1; -108, p. 2; -117, p. 6; -140, p.
6). OSHA agrees with these comments and, therefore, the Agency excluded
all excavation work from the scope of the final rule (see Sec.
1926.1201(b)(1)).
    Although the exemption in the final rule may be broader than the
proposed exemption because the final rule does not cover underground
sewer work and sewer excavation work, the expanded exemption is still
consistent with OSHA's intent in the proposed rule. In proposing to
apply the confined spaces standard to all sewer work, the Agency
emphasized the extraordinary dangers associated with sewer systems,
including the difficulties in isolating hazards in a contiguous system,
and the extremely hazardous atmospheres that can develop in sewers and
quickly cause fatalities. These dangers, however, primarily involve
existing sewer structures, rather than construction of new sewer
systems; new systems would not necessarily present such hazards until
connected to an existing sewer system. Under this final rule, the
limitations on the scope of subparts P and S will ensure that the
confined-space requirements apply to most construction work within
existing sewer structures, as explained in the following discussion of
the interaction between this confined spaces standard and subparts P
and S. In the context of sewer work, the principal hazards associated
with the excavation work around the sewer lines are likely to be
atmospheric hazards that arise from the soil surrounding an existing
sewer pipe (from leaching or other sources), as well as potential
hazards associated with the release of hazardous substances from the
sewer pipe. These hazards are similar to the hazards encountered during
excavation and underground work near landfills and water mains that
OSHA exempted from coverage in the proposed rule because OSHA regarded
the protections of subparts P and S as sufficient (see 72 FR 67356).
    OSHA considered the common scenario in which an employer digs down
to an existing sewer line, then excavates a new trench in which it lays
new sewer pipe and connects it to an existing sewer line. During the
``tie in'' process of connecting the new sewer pipe to the existing
sewer line, employees could potentially be exposed to atmospheric
hazards and physical hazards emanating from the existing sewer line.
While any entry into the existing sewer line, including placing any
part of the body inside existing line (see definition of ``entry'' in
Sec.  1926.1202), would be governed by the confined spaces standard,
OSHA does not believe that hazards from the existing sewer line should
subject the entire excavation project to the confined spaces standard.
Employers already have a duty under subpart P to address the
atmospheric and physical hazards in the excavation, and employers must
anticipate and address the hazards that might come from the existing
sewer line. Employers must use extreme caution in unsealing the
existing sewer line. Before opening the existing line, employers must,
whenever possible, isolate the existing line to be opened from the rest
of the sewer and ensure that employees are removed from the excavation.
    Based on the record, OSHA concludes that subparts P and S are also
sufficient to address the hazards associated with excavation work
around sewers and the construction of new sewers, while the confined
spaces standard will address the work inside the sewer pipes where the
atmospheric and physical hazards are greatest.

Clarification of the Scope of Subparts P and S

    OSHA does not intend for this final standard to overlap with 29 CFR
part 1926, subpart P or 29 CFR part 1926, subpart S. Each of these
standards contains specific provisions addressing many of the same
hazards that could arise in the same space. The Agency is, therefore,
taking this opportunity to clarify the scope of subparts P and S
relative to the scope of this final confined spaces standard, thereby
simplifying the regulatory scheme for employers working in these
spaces.
    Subpart P applies to ``all open excavations made in the earth's
surface,'' including trenches (Sec.  1926.650(a)). For example, the
work of digging trenches, shoring up the trenches, and placing a sewer
pipe or other materials into the trenches are subject to subpart P.
When an employer is excavating a trench to install a new storm drain,
subpart P applies to all excavation and trenching activities. The final
confined spaces standard applies, however, to non-excavation work
within a confined space located in an excavation, as this work would
expose employees to additional hazards besides excavation-related
hazards. For example, this final standard covers entry into a
prefabricated storm drain, other pipe, or manhole even if located at
the bottom of an open excavation.
    Subpart S applies to the construction of underground tunnels,
shafts, chambers, and passageways and cut-and-cover excavations which
are both physically connected to ongoing underground construction
operations within the scope of the subpart, and covered in such a
manner as to create conditions characteristic of underground
construction (Sec.  1926.800(a)(1)). For subpart S to apply, ``the
tunnel or other underground structure must be under `construction.' ''
See October 1, 2010, letter #20061017-7300. For example, the
construction of an underground structure by boring a tunnel through
soil and providing the concrete or metal supports necessary to preserve
the opening is subject to subpart S, as are structural modifications
such as upgrading a

tunnel wall to construct a new structure following a collapse.\3\ OSHA
developed subpart S to protect employees from the hazards associated
with the construction of underground structures, and OSHA concludes
that the subpart S standard provides more appropriate protections in
these situations than this final confined spaces standard.
---------------------------------------------------------------------------

    \3\ OSHA previously determined that the underground construction
requirements in subpart S also apply to tunnels placed underwater.
See August 8, 2002, memorandum to K. Frank Gravitt. This new
confined spaces standard does not affect that previous
determination. However, this confined spaces standard does cover
construction work that occurs inside an underwater tunnel following
the initial construction of that tunnel.
---------------------------------------------------------------------------

    In the context of underground work, this final standard applies
mainly to construction activities inside an existing underground
confined space, as opposed to the initial construction of that
underground space.\4\ Examples of activities covered by this confined
spaces standard include: installing a structure within an existing
tunnel, working inside a large pipe or vault located within an existing
sewer tunnel, laying a new cable inside an existing sewer tunnel,
upgrading a grate in an existing sewer system, installing a new lining
in a sewer pipe, adding tile or grout or other sealant to an existing
concrete tunnel, or attaching equipment to the walls of an existing
tunnel.\5\ OSHA recognizes that, in large underground construction
projects, the distinction between an existing portion of a tunnel and
the construction of a new tunnel might not be clear when the same
employees are working to construct a tunnel, or employees add equipment
or structures to tunnel walls at the same time they are digging the
tunnel. To avoid requirements that could potentially cause confusion
and extra burdens by forcing employers to switch back and forth between
different standards during the same general tunnel-construction
project, OSHA will treat non-structural work performed in conjunction
with initial construction of an underground space as covered by subpart
S. For example, if employees install a cable as part of the initial
sewer tunnel-construction project, subpart S would cover both the
employees engaged in tunnel construction and those engaged in cable
installation. Otherwise, the result would be different employees
working on the same construction project in the same space, but under
different standards with significantly different requirements.
---------------------------------------------------------------------------

    \4\ Note that the distinctions discussed here are solely for the
purposes of determining which construction standard applies. This
discussion does not impact OSHA's analysis of whether an activity
constitutes construction work as opposed to maintenance work.
    \5\ OSHA notes that in a 1991 memorandum the Agency applied
subpart S to the ``rehabilitation'' of a sewer tunnel originally
completed in 1932. January 21, 1991, memorandum to Michael Connors.
OSHA issued the memorandum before it issued either this standard or
the general industry standard for confined spaces, and, thus, before
it had reason to consider potential overlap between a confined
spaces standard and other construction standards, or could point to
any other employee protections. Depending on the extent of the
``rehabilitation'' and the activities involved, the new confined
spaces standard may apply instead to such projects in the future.
For example, subpart S would cover the ``rehabilitation'' of an
existing tunnel that involves expansion of the existing sewer or an
improvement of a collapsed wall. However, this final confined spaces
standard would cover ``rehabilitation'' that consists of adding
sealant to the existing tunnel structure, or attaching equipment or
new materials to the tunnel walls. To the extent that the 1991
memorandum requires a different result, this final standard
supersedes it.
---------------------------------------------------------------------------

    One commenter representing homebuilders asserted that house
foundations and basement excavations become ``trenches'' when
contractors construct formwork, foundations, or walls, and, therefore,
subpart P, rather than the final confined spaces standard, should cover
these work areas (ID-117, pp. 6 and 7). According to the commenter,
OSHA should not consider this type of work area a confined space
because it is subject to natural ventilation. Whether a work area is
subject to natural ventilation is not dispositive in determining
whether the area meets the definition of a confined space in final
Sec.  1926.1202. However, if the work is ``excavation'' work or
``trench'' work under subpart P, then this final rule would not apply.
OSHA agrees that subpart P, and not this confined spaces standard,
would apply to the construction of most house foundations in an
excavated area until the contractor backfills the area adjacent to the
foundation or otherwise covers the foundation or the other areas.
However, depending on the particular circumstances at the worksite,
once the backfill or other covering occurs, the area inside the
foundation space could be a confined space subject to this final rule
if it meets all of the criteria in the definition of a confined space
in Sec.  1926.1201.

Other Requests for Exemptions

1. Home Construction
    One commenter requested that OSHA exempt the following areas from
coverage under this standard: attics, crawl spaces, basements,
cabinets, and ``similar areas in home building'' (ID-117, pp. 6 and 7).
The commenter's rationale for these exemptions was that these spaces
``do not contain hazardous atmospheres or engulfment hazards'' (id).
The commenter did not provide any basis for the assertion that these
areas are inherently free of the identified hazards, and OSHA does not
agree that these spaces are always inherently free from such hazards.
Hazardous gases or other substances may occur in almost any confined
space. For example, one employee may store or apply an epoxy or other
chemical in a crawl space, which could expose that employee or a
subsequent entrant to a hazardous atmosphere. A different commenter
noted that surface coatings such as paints and epoxies are seemingly
stable, and, while generally undetectable through air monitoring once
applied and dried, could result in significant safety and health
hazards to employees who are welding or involved in other hot work in a
confined space (ID-213.1, pp. 6 and 7).
    Moreover, hazardous atmospheres and engulfment hazards are only two
types of hazards that could cause death or serious injury to employees
in a confined space. The commenter requesting the exemption did not
provide any indication that the spaces would be free of physical
hazards that could trap, kill, or seriously injure the employees. In
fact, the final economic analysis for this rule cites several
fatalities that resulted from exposure to physical hazards (generally
electrical) in crawlspaces under homes. Therefore, a categorical
exemption for these types of spaces is inappropriate, and would be
inconsistent with the purpose of the standard.
    However, while a categorical exemption is not appropriate, OSHA
anticipates that, in new construction, employers may be able to
organize work practices to avoid placing workers in areas that meet the
definition of a confined space (for example, complete work in what will
eventually become a crawl space before constructing the overhead
portion of the crawl space, apply insulation to an attic floor before
the underlying ceiling below it is installed, complete basement work
before the overhead structure is installed or after stairways are in
place). Furthermore, if the commenter is correct that the majority of
the spaces it identified do not contain a hazardous atmosphere or other
hazards, then the employer would have only a limited duty under this
standard because a permit program would not be necessary if the spaces
do not contain such hazards. Accordingly, employers would only need to
identify the spaces and ensure that the confined spaces remain free of
hazards.
2. 29 CFR Part 1926, Subpart V Work
    Commenters representing the electric utilities asserted that OSHA
should not

require employers engaged in 29 CFR part 1926, subpart V work to follow
two different confined spaces standards (ID-112, pp. 3 and 4; -134, p.
2; -210, Tr. pp. 106-108, 142). These commenters stated that general
industry electric-utility work practices are similar to construction
electric-utility work practices. OSHA addresses the commenters'
preference to have identical confined-space provisions applicable to
both general industry and construction earlier in this preamble where
the Agency explains why it chose to adopt a modified version of the
general industry standard as the confined spaces in construction final
rule. As discussed there, OSHA will also treat compliance with this new
rule as compliance with the general industry confined spaces rule when
one or more employers are engaged in both general industry work and
construction work at the same time in the same space.
    To the extent that the commenters were requesting that OSHA exempt
all subpart V work from all of the new confined-space requirements in
final subpart AA, OSHA declines to do so. First, the general industry
standard includes no such broad exemption, and the record does not
indicate why electric-utility industry work in confined spaces is less
hazardous or otherwise less suitable for coverage by a confined spaces
standard than the work of any other industry. The general industry
electric power generation, transmission, and distribution rule, Sec.
1910.269, does not exempt that industry from the general industry
confined-space requirements at Sec.  1910.146: to the contrary, the
``enclosed spaces'' provision in Sec.  1910.269(e) expressly requires
employers to comply with the requirements in Sec.  1910.146 when the
enclosed-space entry will not be routine in nature or the space
contains a hazardous atmosphere that cannot be controlled through the
steps specified in Sec.  1910.269(e).
    As explained earlier in this preamble, OSHA anticipated in its
recent amendments to the corresponding construction rule, 29 CFR part
1926, subpart V--Electric Power Generation, Transmission, and
Distribution; Electrical Protective Equipment, that the confined spaces
in construction standard would provide the parallel integral
protections to employers engaged in construction work that involves
conducting non-routine entries into enclosed spaces, or where the
enclosed spaces contain hazards that are not controlled by the enclosed
spaces requirement (see Sec.  1926.953(a) and its explanation at 79 FR
20375-20376).). OSHA explained that the enclosed spaces provisions in
Sec.  1926.953(a) are only intended to address routine entries with a
limited type of hazard, while the general industry confined spaces
standard (which the Agency noted it intended replace with the
construction version in this final rule) applies to all other entries
into enclosed spaces. The confined space standard ``ensures that
employees working in enclosed spaces will be afforded protection in
circumstances in which the Subpart V provisions are insufficiently
protective'' (79 FR 20376). If OSHA exempts employers engaged in
subpart V work from the confined spaces standard, it would be creating
a regulatory gap that is not present in the general industry context.
    The commenter asserted that electric utility work in ``power
generation facilities and other electric utility installations'' is
sufficiently similar that OSHA has previously acknowledged it should be
regulated in the same manner, regardless of whether the employer is
engaged in construction or general industry activity (ID-112.1, p. 4-
5). To the extent that this commenter is requesting greater consistency
between the construction rule and the general industry rule, OSHA has
provided that in this final rule. To the extent that this commenter is
requesting an exemption from the construction standard so that it could
comply instead with the general industry standard, OSHA disagrees
because such an approach would result in a regulatory gap. Section
1910.146 is a general industry standard that, by its own terms, could
not apply to construction activities beyond the scope of the previous
Sec.  1926.953 incorporation, but that incorporation of Sec.  1910.146
was limited: it only applied to routine entries into enclosed spaces.
Not all enclosed spaces are permit-required confined spaces and not all
entries are routine. Further, while in general industry, ``routine''
entries for maintenance work covers a relatively broad range of
activities, in the context of construction work a ``routine'' entry
would be much narrower. In practice, a complete exemption from the new
construction rule for confined spaces would leave many subpart V
workers completely unprotected from the hazards in many confined
spaces.
    Paragraph (c)--Other Standards. This final rule replaces the
confined spaces training requirement previously specified in Sec.
1926.21(b), but does not replace any other construction standards.
Rather, OSHA developed this final rule to work in conjunction with
other construction standards to provide additional protections needed
to address hazards that may arise when employees are working in or near
a confined space. No requirement in this confined spaces final rule
supplants or diminishes employer duties imposed by any other OSHA
standard, and the Agency included Sec.  1926.1201(c) in this final
standard to emphasize that point. When both the scope of final Sec.
1926.1201 and the provisions in another OSHA construction standard
related to confined-space hazards cover an activity, OSHA requires
employers to comply with both provisions (Sec.  1926.1201(c)). For
example, while 29 CFR part 1926, subpart D--Occupational Health and
Environmental Controls contains requirements for ventilation when
working in potentially hazardous atmospheric conditions, it does not
address other equipment or workplace conditions covered by this final
rule. Therefore, where a potential hazardous atmosphere exists and this
final confined spaces rule requires ventilation to control that hazard,
the employer must ventilate in accordance with Sec.  1926.57. However,
the remaining provisions of this confined spaces rule will still apply:
for example, if the situation requires rescue, the employer must
provide rescue in accordance with this final rule.
    In the preamble to the proposal, OSHA also discussed the overlap of
the confined-spaces standard with its construction welding standard in
subpart J of 29 CFR part 1926. The Agency explained that both standards
would apply, noting for example that subpart J sets criteria for the
use of a lifeline system in the confined space, but does not set
criteria for the use of rescue services or provide the same level of
procedures and controls for permit-required confined spaces (72 FR
67356 (Nov. 28, 2007)). OSHA designed the welding standard to protect
employees solely from the hazards of welding, which include metal fume,
gases, and smoke hazards associated with the welding process, physical
hazards from the welding device or contact with the hot welding
surface, potential explosion of the gas tanks, and hazards from working
with specific materials. The confined-spaces standard, however,
addresses a wider range of hazards than the welding standard, and OSHA
considers the confined-spaces standard more detailed and comprehensive
than the welding standard in its protection of employees from those
other hazards for purposes of 29 CFR 1910.5(c).\6\ Although the

welding standard has a section designed to address the hazards of
welding in a confined space, the Agency is applying the provisions of
the confined-spaces standard to all other hazards associated with
confined-spaces work to the extent these provisions of the confined-
spaces standard do not conflict with employee protections in subpart J.
Therefore, as OSHA explained in the proposal, the rescue service and
entry procedures must meet the requirements of this confined-spaces
standard, while the employer must use a lifeline system as required to
meet the criteria in subpart J. Specifically, employers must comply
with the requirements of Sec.  1926.1203(c) to prevent unauthorized
entry, and the subpart AA requirements to implement a permit program
(including posting a permit) to provide for entry in accordance with
Sec. Sec.  1926.1203(d), 1926.1204, 1926.1205, and 1926.1206. Employers
must comply with the ventilation requirements in Sec.  1926.353(a) of
subpart J to address atmospheric hazards produced by welding fumes, but
employers also must comply with Sec.  1926.1204(c), which requires
ventilation as necessary to control any atmospheric hazards beyond
those generated by welding because the welding standard does not
address those hazards. Employers also must comply with the
identification, assessment, and information-exchange and coordination
requirements in Sec.  1926.1203(a), (b), and (h), and the relevant
training required by Sec.  1926.1207. Employers must develop a rescue
plan in accordance with Sec.  1926.353(b)(3) of subpart J, but also
must assess and select a rescue service in accordance with Sec. Sec.
1926.1204(i) and 1926.1211(a) and (c), and equip and train its in-house
rescue services pursuant to Sec.  1926.1211(a) and (b). Finally,
employers must comply with additional confined-spaces requirements not
addressed in the welding standard, such as the requirement to make
Safety Data Sheets available to the medical facility treating any
entrant exposed to hazardous substance (Sec.  1926.1211(d)), and the
employee-participation requirements in Sec.  1926.1212.
---------------------------------------------------------------------------

    \6\ The OSHA regulation addressing the overlap of different
standards is in 29 CFR 1910.5. Paragraph (c)(1) of that regulation
states that if a particular standard is specifically applicable to a
condition, practice, means, method, operation, or process, it shall
prevail over any different general standard which might otherwise be
applicable to the same condition, practice, means, method,
operation, or process. Paragraph (c)(2), however, provides that any
standard shall apply according to its terms even though particular
standards are also prescribed for the industry to the extent that
none of such particular standards applies. The Agency interprets
this regulation in this context to mean that the welding standard is
the more specific standard addressing welding hazards and,
therefore, applies to welding activities even when conducted in
confined spaces; however, several provisions of the confined-spaces
standard apply to confined-space hazards not addressed by the
welding standard (see examples later in this paragraph), and
employers must comply with these provisions when their employees are
exposed to these hazards during confined-space operations.
---------------------------------------------------------------------------

    Subpart D--Occupational Health and Environmental Controls, at Sec.
1926.64(f)(4) and (j), discussed above, and in subpart V--Power
Distribution and Transmission, at Sec.  1926.950(a), provide other
examples of potential overlap with existing standards. In general, the
final confined-spaces standard applies to hazards not addressed by
subpart V. Subpart V generally protects employees from electrical
hazards but does not necessarily address a hazardous atmosphere or
other physical hazards in the confined space; the requirements of the
confined-spaces standard address those hazards, and employers must
comply with these requirements during confined-spaces operations. For
example, in Sec.  1926.953 of subpart V OSHA specifically addresses the
overlap between the ``enclosed spaces'' requirements of subpart V and
the confined spaces standard, mandating compliance with the confined-
spaces requirements when hazards remain even after an employer has
complied with all of the measures described in subpart V.
    Language in proposed Sec.  1926.1202(d) not included--Statement on
other duties of controlling contractors. Proposed Sec.  1926.1202(d)
contained a statement that the information-sharing requirements in the
rule do not limit a controlling contractor's responsibilities under any
other provisions of the rule or the OSH Act, including those
responsibilities described in OSHA Directive CPL 02-00-124: Multi-
Employer Citation Policy (Dec. 10, 1999). The proposed rule text listed
several specific examples of controlling contractor duties.
    OSHA is not including that statement or any equivalent statement in
the final rule for several reasons. First, such a statement is
unnecessary because it is only a reminder that OSHA has a wide variety
of health and safety standards that could apply to various activities
of controlling contractors and host employers, depending on their
activities and responsibilities. OSHA does not typically include such a
reminder in the regulatory text of its standards. For example, OSHA
does not include a similar statement in the general industry confined
spaces standard even though that standard includes specific duties for
host employers, and the host employers could also have additional
duties under other standards or if they qualify as controlling
employers or exposing employers under OSHA's multi-employer citation
policy.
    Second, OSHA is concerned that the regulated community will view
the inclusion of such a statement in this standard as implying that
standards without the same statement preempt other potentially
applicable standards or policies. OSHA did not intend such an
implication, and it does not have the time or resources to revise all
of its standards to include this statement.
    Third, several commenters found fault with the statement in the
proposed rule. One commenter noted the statement was incomplete because
it addressed controlling contractors, not host employers (ID-117, p.
19). Another commenter implied that the statement would not be helpful
unless it listed all of the other potential duties to which controlling
contractors could be subject (ID-211, Tr. p. 76).

1926.1202--Definitions

    Final rule Sec.  1926.1202 provides definitions for key words used
to describe the requirements of this final rule. OSHA adopted most of
the definitions from its general industry confined spaces standard (29
CFR 1910.146); most definitions also are generally consistent with the
voluntary consensus standard on confined spaces, ANSI Z117.1-2003.
Unless otherwise noted, these definitions are applicable only to this
confined spaces in construction standard; OSHA added an introductory
statement to that effect in Sec.  1926.1202 of the final rule. OSHA
took many of the definitions of the terms used in final rule Sec.
1926.1202 from other OSHA construction standards; the Agency included
these definitions in this final rule to minimize the need to reference
those other standards.
    Several commenters objected that some of the definitions of terms
used in the proposed confined spaces in construction standard were
different than the definitions for identical terms in the general
industry confined spaces standard at Sec.  1910.146(b) (ID-086, p. 3; -
112, p. 7; -147, pp. 2-3). For the reasons set forth in section II.B
(History) of this preamble, in the final rule OSHA revised many of
these definitions so that the terms are consistent with the general
industry terms defined at Sec.  1910.146(b): entry, entry supervisor,
hazardous atmosphere, immediately dangerous to life and health, permit-
required confined space, rescue service, retrieval system, and testing.
    In addition, OSHA included some terms in the Definitions section of
this final rule not defined in the proposed rule, but defined in the
general industry confined spaces standard at

Sec.  1910.146(b), including: acceptable entry conditions, hot work,
inerting, line-breaking, non-permit confined space, and prohibited
condition. Again, for the reasons explained in preamble section II.B
(History), OSHA made definitions of these terms in this final rule
consistent with Sec.  1910.146(b). In general, OSHA defined the terms
identically to the general industry standard or revised the definition
slightly to make grammatical improvements or to clarify the meaning of
the term. When OSHA deviated substantively in the final definition from
the term as defined in Sec.  1910.146(b), the Agency explains its
reasons for doing so in the individual preamble paragraph addressing
that definition.
    One commenter urged OSHA to define certain terms exactly as ANSI Z-
117.1-.2003 defines the terms (ID-086, p. 3). The Agency does not agree
that such an approach is appropriate. The commenter did not explain why
the definitions as proposed were inappropriate, how the change would
improve safety, or why the consensus standard was preferable to the
longstanding definitions in the general industry standard that most
commenters supported. OSHA selected the definitions in this final rule
specifically for the activities and equipment covered by this final
rule and, to the extent possible, to be consistent with the definitions
in Sec.  1910.146(b) so as to reduce confusion among the regulated
community and facilitate compliance. In many cases, the ANSI standards
were not as clear or comprehensive as the final language, and therefore
less preferable for a mandatory and legally enforceable standard.
    Some commenters also noted that OSHA proposed definitions for many
terms not defined in Sec.  1910.146(b) (ID-112, p. 9; -147, pp. 2-3).
These commenters did not, however, specifically object to these
definitions, identify errors, suggest improvements, or otherwise give a
reason why OSHA should not include these definitions in the final rule.
In this regard, the final standard uses some terms, such as early
warning system and controlling contractor, not used in the general
industry confined spaces standard. The general industry confined spaces
standard uses other terms not defined in Sec.  1910.146(b). In general,
for definitions in either of these categories, OSHA made the definition
in this final rule identical to the definition in the proposed rule.
When the Agency includes in the final rule a definition that does not
have a parallel definition in the general industry standard, and when
the Agency revises a definition from the proposed definition, it
explains the reasons for its decision below in the discussion
accompanying that definition.
    OSHA also decided not to include several of the proposed
definitions, such as definitions of contractor, controlled atmosphere
confined space, and isolated hazard confined space in this final rule
because OSHA did not use these terms in this final rule. In addition,
the final rule does not include a definition of ``protect'' or
``protection'' because the Agency believes these terms, as used in this
final rule, are sufficiently clear from their ordinary use. The general
industry standard uses these terms without definition. In addition, the
general industry standard does not include a definition of ``control,''
but OSHA is including a definition of this term in this final rule to
clarify that ventilation and other atmospheric controls provide some
level of worker protection, even if such measure are not fully
protective.
    OSHA believes that the construction industry readily understands
most of the defined terms in the final rule because these terms are
self-explanatory or are consistent with the definitions used in Sec.
1910.146 and ANSI 117.1-2003. Nevertheless, OSHA includes an expanded
discussion for several of the defined terms, and, when necessary,
explains differences between the definition in the final rule and the
definitions contained in either the proposed rule or Sec.  1910.146(b).
The Agency also addresses comments on terminology received during the
SBREFA process and the public comment period, including comments made
through testimony during the public hearing.
1. Defined Terms
    Acceptable entry conditions means the conditions that must exist in
a permit space, before an employee may enter that space, to ensure that
employees can safely enter into, and safely work within, the space. The
definition differs slightly from the definition of the term in Sec.
1910.146(b). OSHA added ``before an employee may enter that space'' to
clarify that employers are to measure and determine ``acceptable entry
conditions'' before entry. Once entry occurs, the employer must
continue to monitor the permit space and terminate the entry if a
prohibited condition (i.e., a condition that is not an ``acceptable
entry condition'') arises. (See the discussion of final Sec.
1926.1204(c)(1) for an explanation of how an employer must consider the
work it will perform inside a confined space when identifying
``acceptable entry conditions.'') In the NPRM, OSHA defined ``planned
condition'' in a similar manner. In the final rule, OSHA uses and
defines the term in the same manner as the general industry standard to
provide consistency between the two standards.
    Attendant means an individual stationed outside one or more permit
spaces who assesses the status of authorized entrants and who must
perform the duties specified in Sec.  1926.1209--Duties of Attendants.
The general industry definition of ``attendant'' refers to an attendant
who performs ``all attendant duties assigned. . ..'' In the final
construction rule, the attendant's duties are specified in Sec.
1926.1209--Duties of Attendants. OSHA refers to an attendant's
responsibility to ``assess,'' rather than ``monitor'' as in the general
industry standard, because ``monitor'' is a term of art in the new
standard (but not under the general industry standard). However, there
is no substantive difference from the definition in the general
industry standard.
    Authorized entrant means an employee who is authorized by the entry
supervisor to enter a permit space. The general industry rule defines
``authorized entrant'' based on who the employer authorizes to enter
the permit space. OSHA shifted the focus to who the entry supervisor
authorizes to enter the space to avoid confusion about who the
authorizing employer is on a multi-employer worksite. This revision
clarifies that an entry supervisor has the duty to identify the
authorized entrants on the entry permit, regardless of whether or not
they are employees of another employer.
    Barrier means a physical obstruction that blocks or limits access.
One commenter suggested that OSHA place a note under the definition of
``barrier'' explaining that a barrier does not block or limit egress
(ID-025, p. 2). This revision is unnecessary because there are
provisions in the final rule that require employers to provide
unobstructed egress when employees are inside a confined space. For
example, final rule Sec.  1926.1204(d)(7) requires an employer to
provide equipment needed for safe egress from a Permit-Required
Confined Space (``PRCS'' or ``permit space''), and final rule Sec.
1926.1208(e) requires the authorized entrant to exit a PRCS as quickly
as possible under certain circumstances. Therefore, an employer would
be in violation of this final rule when a barrier that prohibits or
limits persons from entering a PRCS from outside the space also
prohibits or limits

egress for authorized entrants seeking to exit the permit space, even
though the definition of ``barrier'' does not address egress
explicitly. Locking a bolt on a door that is the only means of egress
from a permit space, for example, could constitute a prohibited barrier
that would interfere with egress from the permit space.
    Blanking or blinding means the absolute closure of a pipe, line, or
duct by fastening a solid plate (such as a spectacle blind or a skillet
blind) that completely covers the bore, and that is capable of
withstanding the maximum pressure of the pipe, line, or duct with no
leakage beyond the plate. OSHA took this definition directly from Sec.
1910.146, and uses this term the same way in this final rule as in the
general industry standard.
    Competent person means a person capable of identifying existing and
predictable hazardous conditions, and who has the authority to address
them promptly. Section 1926.1203 of the proposed rule did not use or
define ``competent person,'' but required the employer to identify and
assess confined spaces. Several commenters suggested that OSHA clarify
that a competent person make these determinations, and to include in
the final rule the same definition for ``competent person'' as the one
contained in other OSHA construction standards (ID-025, p. 2; -028, p.
4; -095, p. 2; -124, p. 7; -150, p. 3). OSHA agrees with these
commenters and, therefore, added its customary definition to the final
rule. OSHA uses this well-known definition in several of its
construction standards. See, e.g., Sec. Sec.  1926.32(f), 1926.450(b),
1926.650(b), 1926.751, and 1926.1401; see also the discussion of final
Sec.  1926.1203(a) for a further explanation of why OSHA included a
competent person requirement in this final rule.
    Confined space means a space that: (1) Is large enough and so
configured that an employee can bodily enter it; (2) has limited or
restricted means for entry and exit; and (3) is not designed for
continuous employee occupancy. OSHA based the definition of ``confined
space'' on the definition of ``confined space'' in the general industry
confined spaces standard at Sec.  1910.146(b). It describes a space
where three elements exist. First, the configuration of the space is
such that a person can enter into it with his/her entire body (although
the ``entry'' occurs as soon as any part of the body crosses into the
confined space).\7\ Second, there is limited or restricted entry or
exit from the space. Third, the space is not designed for continuous
employee occupancy.
---------------------------------------------------------------------------

    \7\ See March 5, 2008, letter to Andrew Lewis (no confined space
where it is impossible for employee to fit his entire body into the
space); October 18, 1995, letter to Charles M. Bessey (entry occurs
when any part of the body breaks the plane of the opening of a space
large enough to allow full entry, regardless of intent to fully
enter).
---------------------------------------------------------------------------

    OSHA is not including in the definition of ``confined space'' in
the final rule the requirement that employees be able to ``perform
assigned work,'' which it included in the general industry definition
in Sec.  1910.146(b). OSHA did not include this phrase in this final
standard because it was superfluous, and to avoid arguments that it
added ambiguity. Some in the regulated community might attempt to
interpret the phrase incorrectly to suggest that this final standard,
and the majority of the protections provided by the standard, would not
apply if the entrant did not have an assignment to perform on entering
the space, or if the employee was unable to perform work inside the
space. Therefore, this final rule addresses confined spaces in terms of
the hazards present, rather than the purpose for entering the space. By
removing the unnecessary language from the proposed definition of
``confined space,'' OSHA makes it clear that this final standard covers
any entry into a confined space. This does not imply that ``performed
assigned work'' has a substantive meaning in the general industry
standard; OSHA is simply taking the opportunity to improve the language
of the definition as it proposed. OSHA did not include the ``perform
assigned work'' language in the proposed definition of ``confined
space'' adopted in this final rule, and received no comment on the
absence of that language.
    The final definition also includes an additional change from the
general industry standard. The definition of ``confined space'' in
Sec.  1910.146(b) contains examples of different types of confined
spaces in a parenthetical to the second part of the definition. OSHA
did not include this parenthetical in this final rule to avoid
confusing these examples with a note to Sec.  1926.1201(a) that
provides a more comprehensive, but not exclusive, list of examples of
confined spaces.
    One commenter asserted that the proposed definition of a confined
space is too broad because it includes attics, crawlspaces, cabinets,
unfinished basements, swimming pools, window wells or utility closets
that contain water heaters in single-family residential homes, but
those spaces ``do not present the kind of risk the standard is intended
to address.'' (ID-117, p. 5). Although some of these spaces could meet
the definition of a confined space, the Agency does not agree that this
definition is too broad. As noted earlier when OSHA rejected the same
commenter's request for a complete exemption from the standard, the
commenter provides no support for the assertion that these spaces do
not present the kind of risks this standard is addressed and the crawl-
space fatalities included in the final economic analysis clearly
demonstrate that these spaces are not inherently safe. OSHA defined the
term broadly to ensure that employers perform the requisite evaluation
to determine whether a known or potential hazard exists in those
spaces. The majority of the requirements of this final rule would apply
only if a known or potential hazard is found to exist in the confined
space, but the initial assessment required by this standard is crucial
to discovering whether such hazards are present. Therefore, an employer
performing construction work inside attics or any of the other spaces
noted by this commenter must comply with only the reevaluation
provisions in this final rule when no atmospheric or physical hazard
exists in a confined space. If an employer does not wish to conduct an
evaluation, then the employer can either prevent its employees from
entering the space or design the construction process to avoid the need
for entry into a confined space.
    One commenter expressed confusion as to the meaning of the third
element of the confined space definition: ``not designed for continuous
employee occupancy'' (ID-119, p. 5). The third element captures all
spaces where conditions are such that employees would normally exit the
space relatively soon after entering, absent the construction activity.
When determining whether a space is designed for continuous occupancy,
it is appropriate to focus on the design of the space and whether that
space is still configured as designed. See October 22, 1993, letter to
Robert Bee; December 20, 1994, letter to Edward Donoghue; June 22,
1995, letter to Dan Freeman (noting difference between the ``primary
function'' and ``design'' of a confined space). For example, if a space
that meets the definition of a confined space has a powered ventilation
system that allows for continuous occupancy, but that system is not
functional or the construction activity would interfere with the proper
function of that system, then the space would be a confined space
subject to this final standard. See

October 27, 1995, letter to William Taylor.
    The same commenter also asked for additional examples of confined
spaces (ID-119, p. 5). The note in final rule Sec.  1926.1201(a)
provides examples of locations where confined spaces may occur. In
addition, OSHA notes that numerous letters of interpretation are
available providing additional guidance as to the meaning of a
``confined space'' in the context of the general industry standard.
OSHA is adopting into its construction rule the guidance regarding the
definition of a confined space provided by the letters of
interpretation referenced in the previous paragraph. In addition, the
following letters apply with respect to the definition of a confined
space in this final standard as they did to the general industry
standard: September 19, 1994, letter to Edward Donoghue Associates,
Inc. (elevator pit can be a confined space); June 15, 1992, letter to
George Kennedy (storm sewer manhole entrance can be a confined space);
July 11, 1995, letter to Alan Sefton (entry by a robot does not trigger
the standard); October 23, 1995, letter to Mark Arriens (roll off
container, dump truck bed, and truck trailer can be confined spaces);
October 27, 1995, letter to James Sharpe (entry limited if employee
must bend down to avoid striking the top of an opening or step over a
raised threshold); February 8, 1996, letter to Remi Morrissette
(personnel airlock can be a confined space when both sets of doors
cannot open at the same time); April 24, 1998, letter to Gregory Faeth
(30-inch deep chest-type freezer not a confined space when person can
simply stand up to get out); December 2, 2002, letter to Art Varga
(dock leveler pit can be a confined space); March 8, 2005, letter to
Ron Sands (box van of truck is not a confined space as normally used
and configured). The Agency notes, however, that any guidance
previously provided with respect to its previous confined spaces in
construction standard, 29 CFR 1926.21, is no longer applicable or in
effect. See, e.g., July 10, 2006, letter to John Williams II.
    One commenter requested that OSHA clarify the distinction between
an ``enclosed space'' and a ``confined space,'' and another commenter
suggested that OSHA provide additional discussion of the hazards of an
``enclosed space'' in this final rule (ID-119, p. 6; -140, p. 4). As
OSHA stated in the preamble to the proposed rule, the Small Business
Advocacy Review Panel recommended that OSHA examine the benefits and
costs associated with provisions addressing hazardous-enclosed spaces
(72 FR 67398 (Nov. 28, 2007)). Consequently, the Agency decided not to
include any new or additional requirements for hazardous-enclosed
spaces in the final rule. Instead, OSHA relies on existing standards,
such as Sec.  1926.55--Gases, vapors, fumes, dusts, and mists, to
address the hazards of working inside enclosed spaces. OSHA Technical
Information Bulletin 02-05-30 is available to employers who are looking
for guidance on the particular hazards of working in enclosed spaces.
For example, this bulletin states that the OSHA respirator standard may
apply when employees are working in enclosures that do not meet the
definition of ``confined space.''
    Another commenter questioned the inclusion of spaces equipped with
ladders or stairways for employee entry or exit in the proposed
definition of ``confined space'' (ID-013, p. 5). Both the proposed and
final definitions of ``confined space'' include ``limited or
restricted'' entry or exit. A space where an employee can enter or exit
only with the use of a stairway or a ladder, like an attic, generally
meets this definition of a confined space. See, e.g., October 27, 1995,
letter to James Sharpe. The following guidance provided earlier by OSHA
with respect to the general industry standard definition of this term
also is applicable to this construction standard:

    Ladders, and temporary, movable, spiral, or articulated stairs
will usually be considered a limited or restricted means of egress.
Fixed industrial stairs that meet OSHA standards will be considered
a limited or restricted means of egress when the conditions or
physical characteristics of the space, in light of the hazards
present in it, would interfere with the entrant's ability to exit or
be rescued in a hazardous situation.

OSHA Directive CPL 02-00-100: Application of the Permit-Required
Confined Spaces (PRCS) Standards, 29 CFR 1910.146 (May 5, 1995),
Appendix E.
    OSHA also clarified in the context of the general industry confined
spaces standard that, although the Agency does not generally consider
doorways and other portals through which a person can walk to be
limited means of entry or exit, it may deem a space containing such a
door or portal to be a confined space if the door or portal hinders an
entrant's ability to escape from the confined space in an emergency
(see 59 FR 55208 (Nov. 4, 1994)). The same interpretation applies in
the construction context. OSHA provided the following explanation in
its compliance directive on the general industry rule, which also
applies in the construction context:

    A space has limited or restricted means of entry or exit if an
entrant's ability to escape in an emergency would be hindered. The
dimensions of a door and its location are factors in determining
whether an entrant can easily escape; however, the presence of a
door does not in and of itself mean that the space is not a confined
space. For example, a space such as a bag house or crawl space that
has a door leading into it, but also has pipes, conduits, ducts, or
equipment or materials that an employee would be required to crawl
over or under or squeeze around in order to escape, has limited or
restricted means of exit. A piece of equipment with an access door,
such as a conveyor feed, a drying oven, or a paint spray enclosure,
will also be considered to have restricted means of entry or exit if
an employee has to crawl to gain access to his or her intended work
location. Similarly, an access door or portal which is too small to
allow an employee to walk upright and unimpeded through it will be
considered to restrict an employee's ability to escape.

OSHA Directive CPL 02-00-100: Application of the Permit-Required
Confined Spaces (PRCS) Standards, 29 CFR 1910.146 (May 5, 1995),
Appendix E.
    Another commenter asked OSHA to clarify whether a space that is
temporary can still meet the definition of a confined space in the
final rule (ID-136, p. 2). For example, the commenter asserted that a
space constructed for the sole purpose of allowing employees to
temporarily work over the end of a large open gas pipe could qualify as
a confined space. In this particular example, the commenter emphasized
the need for an employer to address the hazard of establishing an
oxygen-deficient atmosphere as a result of purging the pipe with
nitrogen.
    OSHA agrees that a temporary space, including the temporary space
provided in the commenter's example, can be a ``confined space.'' The
fact that the space described by the commenter is temporary does not
prevent the space from meeting the definition of a confined space in
this final rule. The temporary character of the space may be the most
readily apparent factor in determining whether a temporary space would
permit continuous employee occupancy.
    OHSA did not define the term ``contractor'' in the final rule, as
it did in the proposed rule. One commenter recognized that OSHA's
proposed definition of ``contractor'' excluded controlling contractors
(ID-099, p. 1). To simplify the terminology used throughout the
standard, to address the inconsistency identified by the commenter, and
to avoid other confusion with the term ``controlling contractor,'' OSHA
is using terms more precisely in the final rule. OSHA uses

the term ``employer'' to refer generically to employers, including
employers that meet the final rule's definitions of ``controlling
contractor'' or ``host employers.'' OSHA also added the term ``entry
employer'' to refer to employers performing confined-space entry. As
discussed elsewhere in this preamble the Agency also is using
``controlling contractor'' and ``host employer'' to refer to other
specific types of employers when necessary.
    Control, as defined in this final standard, is an action taken,
through engineering methods, to reduce the hazard level inside a
confined space, including the maintenance of this reduced hazard level.
This definition is consistent with the use of the term in the general
industry confined spaces standard, although OSHA did not define the
term in Sec.  1910.146(b). The proposed rule's definition of
``control'' provided isolation as an example of a control action.
However, controlling a hazard provides less protection to an employee
than isolating the hazard because it does not result in the elimination
or removal of the hazard. For example, ventilation is a control method
that merely reduces the hazard level below its Permissible Exposure
Limit (PEL) or Lower Explosive Limit (LEL) for the duration needed to
protect employees in or near a confined space. Therefore, OSHA deleted
the reference to isolation from the final standard to clarify the
distinction between control and isolation. Otherwise, the final
standard defines the term as proposed.
    Controlling contractor is the employer that has overall
responsibility for construction at the worksite. In addition, the note
to this definition explains that, if a host employer has overall
responsibility for construction at the worksite, then the host employer
also is the controlling contractor under this final rule. The final
rule's definition of ``controlling contractor'' is identical to the
proposed rule's definition. The general industry confined spaces
standard does not use the term ``controlling contractor'' and,
therefore, Sec.  1910.146(b) does not define the term.
    OSHA included a definition of ``controlling contractor'' in this
final rule because it is a common practice in construction work for a
number of employers to be working at a construction site at the same
time. Also, there often is one employer that has overall authority over
the construction site, including the authority to change worksite
conditions, set schedules, and alter work practices with regard to
safety. This definition is nearly identical to the definition of the
term as used in the OSHA's Steel Erection standard at 29 CFR part 1926,
subpart R. The definition reflects the core principle of general
supervisory control over the construction site. Under this final rule,
OSHA clarified the responsibilities of different employers on the site
and assigned specific duties to the controlling contractor, as
distinguished from the host employer and the other employers (see final
Sec.  1926.1203(h)). Consequently, there is a need to define the term
``controlling contractor.''
    Some commenters were unsure whether an employer with no contractual
authority for the overall safety of a project could qualify as a
``controlling contractor'' (ID-106, p. 2; -129, p. 2). Another
commenter asserted that an employer will have extreme difficulty
exercising the control required by the standard without explicit
contractual authority to do so (ID-120, p. 2). The facts and
circumstances present at the job site determine whether an employer is
a controlling contractor under this final rule: explicit contractual
authority is sufficient to indicate a controlling contractor, but the
absence of contractual authority is not definitive. In this regard,
OSHA intends the controlling contractor's authority to be established
in the same manner that a controlling employer's authority is
established under OSHA's Multi-Employer Citation Policy. For more
information about the role of the controlling employer, see OSHA
Directive CPL 02-00-124: Multi-Employer Citation Policy.
    Double block and bleed means the closure of a line, duct, or pipe
by closing and locking or tagging two in-line valves and by opening and
locking or tagging a drain or vent valve in the line between the two
closed valves. This can be done to eliminate the potential for
substances in the sections of the pipes to enter the space. OSHA took
this term directly from Sec.  1910.146. The proposed definition was
different grammatically, and also specified the exact position in which
the closures were to be locked or tagged, but there is no substantive
difference between the final language and the language in the proposed
rule.
    Early-warning system is the method used to alert attendants, as
well as authorized entrants in a permit space, that an engulfment
hazard may be developing. Examples of early-warning systems include:
alarms activated by remote sensors and lookouts with equipment for
immediately communicating with the authorized entrants and attendants.