space entry operation, as well as a reference for guiding and directing
supervisors and employees alike. A written program also will serve to
assign accountability for all functions related to permit-space entry,
and will aid in avoiding mistakes and misunderstandings. Additionally,
because of the compliance flexibility and discretion that the standard
provides to the employer, a written plan is essential to demonstrate
that the employer took all aspects of permit-space entry into
consideration. For these reasons, OSHA decided to specify in the final
rule that the permit-space program be in writing. The written plan
must, in combination with the permit itself, address the employer's
particular facts

and circumstances to ensure that the procedures will protect employees'
safety. For all of the reasons above, requiring an employer to have and
implement a written permit-space program, rather than simply relying on
a copy this final rule, will enhance the protection afforded to
employees from confined space hazards.
    Final Sec.  1926.1203(d) explicitly requires employers to implement
their written permit-space program at the jobsite. A program that is
drafted but not implemented at the jobsite will not protect employees
from the hazards of permit-space entry. This requirement is implicit in
the general industry standard, but OSHA has made it explicit in this
final rule. Additionally, this final provision requires employers to
make the written program available for inspection by employees and
their authorized representatives. The Agency believes that such access
is essential for the successful implementation of a permit-space entry
program. Finally, final Sec.  1926.1203(d) clarifies that the employer
must make the program available to employees prior to, and during,
entry operations, which are the periods that the written program is
most important. During these periods, employees must understand the
program to ensure their safety. The general industry rule requires that
the program be available, and this final rule simply clarifies that it
must be available during these critical periods.
    Paragraph (e). Final Sec.  1926.1203(e) authorizes an employer to
use alternate procedures for permit-space operations under limited
circumstances. The standard permits these alternative procedures when
an employer can demonstrate that it eliminated or isolated all physical
hazards through engineering controls and controls atmospheric hazards
through continuous forced-air ventilation. OSHA notes that continuous
ventilation is a control method, and not a method suitable for
eliminating or isolating an atmospheric hazard, so final Sec.
1926.1203(e) spaces remain permit-required spaces, but can be entered
without a permit program under the alternate procedures specified in
this final section. OSHA believes that in the context of construction
work, these alternative procedures provide adequate safety measures
while being more efficient, and less costly to implement, than
complying with the full permit-program requirements specified by final
rule Sec.  1926.1204. The requirements for the alternate procedures
allowed under the final construction rule are similar to the
corresponding provisions of the general industry confined spaces
standard at Sec.  1910.146(c)(5), but contain some substantive
modifications explained in the following paragraphs. OSHA also added
the word ``only'' to the introductory provision to clarify that an
employer cannot use these alternate procedures under any other
circumstances. In addition, final Sec.  1926.1203(e) is similar to
proposed Sec.  1926.1216.
    Paragraph (e)(1). Final Sec.  1926.1203(e)(1), which is
substantively identical to Sec.  1910.146(c)(5)(i), sets forth the six
conditions that an employer must meet before employees can enter a
permit space under the alternative procedures specified in paragraph
(e)(2). OSHA modified final Sec.  1926.1203(e)(1) slightly from the
general industry rule to state explicitly that employers must meet all
of the conditions listed in final Sec.  1926.1203(e)(1) before using
the alternate procedures specified by final Sec.  1926.1203(e). If
employers meet all of these conditions, the employer need not comply
with final Sec. Sec.  1926.1204-1206 (addressing permits and permit
programs) or final Sec. Sec.  1926.1208-1211 (setting forth specific
duties for permit-required confined spaces). Employers in permit spaces
qualified to use the alternate procedures, however, still must comply
with final Sec.  1926.1207 (training requirements), final Sec. Sec.
1926.1212-1213 (Employee participation and provision of documents to
the Secretary), and the other provisions of final Sec.  1926.1203,
including the information exchange requirements in final Sec.
1926.1203(h).
    One commenter asserted that any space that requires ventilation to
protect employees should have an attendant to monitor conditions in the
space (ID-060, p. 3). The general industry standard does not require an
attendant for entry under its parallel alternative entry procedures,
and OSHA disagrees with this commenter, who offered no explanation for
this assertion. Employers are only eligible to use the alternate
procedures in final Sec.  1926.1203(e) when the employer can
demonstrate that the only hazard posed by the permit space is an actual
or potential hazardous atmosphere, can demonstrate that continuous
forced-air ventilation alone provides adequate safety, and the employer
continuously monitors the space during entry. These requirements make
the eligible spaces safe for employee entry. The more extensive
requirements of final Sec.  1926.1204 apply to those permit spaces with
hazards that employers cannot isolate by engineering controls, or that
the employer cannot control by ventilation. The Agency notes that the
alternative entry procedures are only available for as long as the
physical hazards remain isolated and the atmospheric hazards
controlled. Employers must take care to ensure that physical hazards
remain isolated and must exit the space and implement a full permit
program if there is any indication that workers might be exposed.
    Another commenter requested that the final rule clarify that
employers need not provide attendants and rescue services for final
Sec.  1926.1203(e) spaces (ID-099, p. 3). Final Sec.  1926.1203(e)(1)
clarifies that spaces qualifying for the alternate procedures under
Sec.  1926.1203(e) do not need to comply with final Sec. Sec.
1926.1204-1206 (addressing permits and permit programs) and Sec. Sec.
1926.1208-1211 (setting forth specific duties for permit-required
confined spaces).
    Paragraph (e)(1)(i). Final Sec.  1926.1203(e)(1)(i), which is
similar to the general industry standard at Sec.  1910.146(c)(5)(i)(A),
sets out the first condition that employers must meet before using the
alternative procedures. It provides that an employer may use these
alternate procedures only when the employer can demonstrate that it
eliminated or isolated all physical hazards using engineering controls,
and that the only hazard posed by the space is an actual or potential
hazardous atmosphere. OSHA modified this provision from the general
industry rule by adding language that an employer can use the
alternative procedures when it can demonstrate that all physical
hazards are ``eliminated or isolated'' by engineering controls within a
confined space, rather than just ``eliminated.'' OSHA adopted this
change from proposed Sec.  1926.1216(a), which provided that employers
could use the equivalent provisions when they could demonstrate the
isolation of physical hazards.
    One commenter supported the proposed rule's provisions for entry
into ``controlled-atmosphere confined spaces'' in proposed Sec.
1926.1216, which the commenter described as requiring the elimination
of all physical hazards (ID-220, p. 6). Proposed Sec.  1926.1216 did
not, however, specify that physical hazards must be eliminated before
an employer could use the alternative ventilation-only procedures in
that section; it required the employer to ``determine and implement an
isolation method'' for each of the physical hazards identified (see
proposed Sec.  1926.1216(a)(1); see also proposed Sec.
1926.1216(a)(3), which required the documentation of the method for
``isolating'' each physical hazard). The

final rule, which defines ``isolate or isolation'' in final Sec.
1926.1202 to allow employers to isolate physical hazards within a
confined space like the proposed rule, and provides for isolation using
the same methods specified in the proposed definition, which include
the elimination or removal of hazards. (See the discussion of this
definition earlier in this preamble.)
    Another commenter expressed concern that, in construction work,
employers would almost never be able to use these alternate procedures
because the complete elimination of all physical hazards, such as an
iron angle at head level, from such a space would, in many cases, not
be feasible or necessary (ID-061, p. 6). OSHA believes that isolating
physical hazards using methods such as wrapping a low-hanging pipe with
foam or locking out pieces of equipment (see the definition of
``isolate or isolation'' in final Sec.  1926.1202) can be sufficient to
prevent injury from those hazards. Thus, the Agency decided that
isolating or eliminating physical hazards is the most appropriate
approach in the construction context where potentially isolated
physical hazards are likely to be more prevalent because of the nature
of construction, and adopted the proposed requirement accordingly.\14\
---------------------------------------------------------------------------

    \14\ The general industry standard does not allow employers to
use the alternative entry procedures in Sec.  1910.146(c)(5)(ii) if
any physical hazard remains in the space, even if that hazard is
temporarily ``removed'' or ``isolated'' in accordance with the
standard. See October 12, 1995, memorandum to Linda Anku. OSHA does
not adopt that interpretation for this construction rule.
---------------------------------------------------------------------------

    Paragraph (e)(1)(ii). Final Sec.  1926.1203(e)(1)(ii), which
corresponds to the general industry standard at Sec.
1910.146(c)(5)(i)(B), sets out the second condition required for
employees to use the alternative procedures: An employer must be able
to demonstrate that continuous forced-air ventilation alone provides
adequate safety from hazardous atmospheres and that entrants can safely
exit the space in the event the ventilation system stops working. For
the space to be safe under this final provision, the mechanical
ventilation must control the hazardous atmosphere at levels that are
below the levels at which they are harmful to entrants so that, if the
ventilation shuts down for any reason (such as loss of power), the
employees will have sufficient time to recognize the hazard and exit
the space. Employers have a responsibility to specify a hazard level
that is adequate for employees to escape the confined space before the
hazard reaches unsafe levels. As with the general industry standard,
employers must account for the introduction of additional hazards from
the work conducted in the permit space, such as additional gases
generated by painting or application of coating, and ensure that the
ventilation is adequate to account for the introduced hazards (see 58
FR 4462, 4488 (Jan. 14, 1993)). In addition, certain types of work are
inherently unsuitable for entries under Sec.  1926.1203(e). In the
preamble to Sec.  1910.146(c)(5) of the general industry standard, OSHA
explained that ``work with hazardous quantities of flammable or toxic
substances and hot work are not permitted'' because they would
``introduce hazards beyond those accounted for by the determination
that the permit space can be maintained safe for entry'' through
mechanical ventilation alone (id). For the same reasons, OSHA does not
permit this work for entries under Sec.  1926.1203(e).
    Final Sec.  1926.1203(e)(1)(ii) also requires that the employer be
able to demonstrate that in the event the ventilation system stops
working, entrants can exit the space safely. OSHA based this
requirement on proposed Sec.  1926.1216(a)(2)(ii) which would have
required employers to document their determination that monitoring
procedures would give sufficient warning to allow entrants to exit. In
the final rule, OSHA moved the monitoring requirement to
1926.1203(e)(2)(vi). However, the Agency retained the determination
requirement in (e)(1)(ii) to make clear that safe exit time must be
factored into the selection of monitoring procedures, intervals, and
detection levels, including the levels at which monitoring alarms are
triggered. Safe exit time is a precondition for reliance on alternative
procedures.
    One commenter asserted that determining what is a sufficient time
to exit, as required by the proposed rule, would require an industrial
hygienist (ID-114, p. 2). OSHA does not believe an industrial hygienist
is the only person capable of making this determination because the
final rule bases the time required for a safe exit on the physical
attributes of the space. Any person trained in confined-space
operations under final Sec.  1926.1207 should be able to use these
attributes to determine the time needed by entrants to safely exit the
confined space as required by Sec.  1926.1203(e)(1)(ii). For example,
if the employer is unsure how quickly the atmosphere would return to a
hazardous atmosphere following a ventilation failure, the employer can
run a test by shutting off the ventilation when no one is in the space
to determine the amount of time before the continuous monitor alarm
sounds. The rest of the calculation would depend on the amount of time
necessary for employees to exit the space from their work locations
inside the permit space, which could also be tested, factoring in an
appropriate safety buffer of time.
    Several commenters asserted that OSHA should allow an employer to
use natural ventilation alone, or suction, to control a hazard under
the alternate procedures specified by final Sec.  1926.1203(e). OSHA
addressed these comments in the earlier discussion of the definition of
``ventilate or ventilation'' in this preamble.
    There was a considerable amount of discussion in the record about
whether the alternative procedures should be available for isolated
spaces in sewers and other continuous spaces (see, e.g., ID-75.1, p. 4;
-210, Tr. pp. 176-177, 185-93, 206-208; -211, Tr. pp. 144-159). For an
employer to apply final Sec.  1926.1203(e) to a sewer, the employer
would have to demonstrate total isolation of the section of the sewer
from other potential sources of hazards (e.g., the sewer distribution
system) to guard against the introduction of new hazards into the
space; the employer then must demonstrate that the ventilation system
is maintaining the space sufficiently below the trigger limits for the
atmospheric hazard (e.g., below 10 percent LFL or an applicable PEL) so
that employees would have time to escape if the ventilation failed.
Total isolation of sewer manholes or selected sections of piping may
not be practical or feasible to prevent hazards (e.g., flammable gases)
from entering the space because employers normally perform entries with
the system in service. See Aug. 15, 1996, letter to Larry Brown. Final
Sec.  1926.1203(e)(1)(ii) includes a clear requirement that an employer
that relies on continuous forced-air ventilation to maintain spaces
safe for entry must be able to establish that other measures are not
necessary to protect entrants. For additional information about
isolating spaces within sewers and other continuous confined spaces,
see the discussion of Sec.  1926.1204(c)(3).
    Paragraph (e)(1)(iii). Final Sec.  1926.1203(e)(1)(iii), which is
identical to the general industry standard at Sec.
1910.146(c)(5)(i)(C), is the third condition required before an
employer may use the alternative procedures. It also is substantively
similar to proposed Sec.  1926.1216(a)(2) and (a)(3), which provided
that employers must test the atmosphere and document the results; this
final provision, however, is less detailed than the proposed
provisions. This final provision requires the

employer to develop monitoring and inspection data that supports the
demonstrations required by paragraphs (e)(1)(i) and (e)(1)(ii), i.e.,
the elimination or isolation of physical hazards such that the only
hazard in the space is an actual or potential hazardous atmosphere, and
that continuous forced-air ventilation is sufficient to maintain the
space safe for entry. The atmospheric-monitoring data must show that
ventilation will keep the atmosphere inside the permit space safe for
entry. In this context, the final rule uses ``monitoring'' to match the
general industry language, but the term encompasses both the initial
testing of atmosphere and the subsequent measurements. The data
required by paragraph (e)(1)(iii) are essential for the employer and
employees, as well as OSHA, to determine whether the employer can
maintain the space safe for entry with the use of ventilation alone.
    Paragraph (e)(1)(iv). Final Sec.  1926.1203(e)(1)(iv), which is
identical to the general industry standard at Sec.
1910.146(c)(5)(i)(D), is the fourth criterion employers must meet to
use the alternative procedures. This provision also is similar to
proposed Sec.  1926.1204(b)(2). This final provisions specifies that,
if an initial entry into the permit space is necessary to obtain the
data required by paragraph (e)(1)(iv), the employer must perform the
entry in compliance with final Sec. Sec.  1926.1204-1211 (i.e., the
full permit-space program).\15\ This entry requirement, which was in
the proposed rule, is necessary to protect employees from hazards that
the employer did not fully identify or assess. The rule requires
employers to obtain monitoring and inspection data without entry when
feasible, but acknowledges that in many instances it will be necessary
to perform an initial entry into the space to make the necessary
determinations. This requirement will ensure that the initial entry is
safe.
---------------------------------------------------------------------------

    \15\ OSHA recognizes that compliance with final Sec.
1926.1204(e)(1) requires employers to test conditions in the permit
space to determine if acceptable entry conditions exist before entry
is authorized to begin. An employer will be in compliance if the
employer can demonstrate that initial entry is necessary to gather
the data to comply with Sec.  1926.1203(e)(1)(iii), and enters under
a permit program that complies with all other provisions except the
pre-entry testing in Sec.  1926.1204(e)(1). Note that the
alternative entry procedures are not available if the work space is
part of a continuous system and has not been effectively isolated.
---------------------------------------------------------------------------

    Paragraph (e)(1)(v). Final Sec.  1926.1203(e)(1)(v), which is
identical to the general industry standard at Sec.
1910.146(c)(5)(i)(E), sets out the fifth criterion for using the
alternate procedures. It also is similar to proposed Sec.
1926.1216(a)(3), though less detailed. This final provision mandates
that employers document the determinations and supporting data required
by paragraphs (e)(1)(i) through (e)(1)(iii) of this final rule, and
make this documentation available to employees who enter the spaces
under the terms of final Sec.  1926.1203(e), or to their authorized
representatives. This documentation will enable the employer,
employees, their authorized representatives, and OSHA to evaluate the
validity of the determinations made under final Sec.  1926.1203(e) for
a particular permit space.
    Paragraph (e)(1)(vi). Final Sec.  1926.1203(e)(1)(vi), which is
identical to the general industry standard at Sec.
1910.146(c)(5)(i)(F), is the final condition that employers must meet
to use the alternate procedures. The section does not correspond to any
section of the proposed rule due to the different organization of the
proposal. It requires that employers perform entry under the alternate
procedures specified by final Sec.  1926.1203(e) in accordance with the
specific procedures required by final Sec.  1926.1203(e)(2).
    Paragraph (e)(2). Final Sec.  1926.1203(e)(2), which is similar to
Sec.  1910.146(c)(5)(ii), sets forth the procedures that employers must
follow for permit-space entries made under final Sec.  1926.1203(e)(1).
The introductory paragraph in Sec.  1926.1203(e)(2) is identical to the
introductory paragraph in the general industry standard. This
introductory paragraph does not correspond to any section of the
proposed rule due to the different organization of the proposal.
    Paragraph (e)(2)(i). Final Sec.  1926.1203(e)(2)(i), which is
identical to the general industry standard at Sec.
1910.146(c)(5)(ii)(A), requires that employers must, before removing an
entrance cover, eliminate any conditions that make it unsafe to do so.
It also is similar to proposed Sec.  1926.1216(c)(1). Some conditions
in a permit space may make it hazardous to remove a cover from the
space. For example, if the atmospheric hazards within the space cause
high pressure in the space, the cover may blow off in the process of
removing it. To protect employees from such hazards, employers must
make a determination as to whether it is safe to remove the cover. Such
a determination requires the employer to examine the conditions
expected to be in the permit space. Under high-pressure conditions,
employers must check the cover to determine if it is hot; if so, the
employer must loosen a cover fastened in place gradually to release any
residual pressure. The employer also must determine whether conditions
at the site could cause a hazardous atmosphere to accumulate in the
space, which would make it unsafe for employees to remove the cover.
The employer must not remove the cover until it is safe to do so.
    Paragraph (e)(2)(ii). Final Sec.  1926.1203(e)(2)(ii), which is
nearly identical to the general industry standard at Sec.
1910.146(c)(5)(ii)(B), requires employers to guard openings to permit
spaces after removing entrance covers to protect employees from falling
into the space and to protect employees in the permit space from
injuries caused by objects entering the space. It also is similar to
proposed Sec.  1926.1216(c)(2), though less specific than the proposed
provision. The guard could be in the form of a railing, a temporary
cover, or any other temporary barrier that provides the required
protection. If the opening to the space would not allow employees and
objects to fall into the space, then no additional guarding is
necessary. Final Sec.  1926.1203(e)(2)(ii) differs from Sec.
1910.146(c)(5)(ii)(B) in that it requires the opening to be
``immediately'' guarded by a railing, temporary cover, or other
temporary barrier. The general industry rule requires employers to
provide the guarding promptly. The Agency made this change to clarify
that the guarding must happen as soon as possible.
    Paragraph (e)(2)(iii). Final Sec.  1926.1203(e)(2)(iii), which is
substantively identical to the general industry standard at Sec.
1910.146(c)(5)(ii)(C), requires the employer to test the internal
atmosphere of the permit space with a calibrated, direct-reading
instrument before any employee enters the space. This provision also is
similar to proposed Sec. Sec.  1926.1216(d)(2) and 1926.1205(a)(1),
though not as detailed as the testing required by proposed Sec.
1926.1205(a). If the employer can demonstrate that testing prior to
entry is infeasible, then the employer must at a minimum comply with
permit program requirements during the testing process in accordance
with Sec.  1926.1203(e)(1)(iv).
    The employer must test the atmosphere, in sequence, for oxygen
content, flammable gases and vapors, and potential toxic gases and
vapors. Employers must first perform a test for oxygen because most
combustible gas meters are oxygen dependent and will not provide
reliable readings in an oxygen-deficient atmosphere. Employers must
test for combustible

gases next because, in most cases, the threat of fire or explosion is
both more immediate and more life threatening than exposure to toxic
gases. The testing must be appropriate for the space; for example, if
there is a stratified atmosphere where gases of different densities
layer within a confined space, the employer must perform testing at
different depths.
    This testing is necessary to determine whether ventilation alone
will maintain the space safe for entry. The results of this testing
must be within the expected range for the space, based on the
employer's determination under paragraph (e)(1)(ii), or the employer
may not enter under the alternative procedure.
    Paragraph (e)(2)(iv). Final Sec.  1926.1203(e)(2)(iv), which is
identical to the general industry standard at Sec.
1910.146(c)(5)(ii)(D), prohibits employees from occupying the space
when a hazardous atmosphere is present in the space. This provision has
the same purpose as proposed Sec.  1926.1216(e)(2)--namely, to ensure
that there is no hazardous atmosphere in an alternate procedures space
during entry. However, due to the different organization of the
proposed and final rules, the language and organization of these two
provisions are different. To ensure that there is no hazardous
atmosphere in a permit space when an employer enters using the
alternate procedures, final Sec.  1926.1203(e)(2)(iv) requires
employers conducting any entry into a permit space containing a
hazardous atmosphere to comply with the full permit-space program
requirements in final Sec. Sec.  1926.1204-1211. See also the
discussion of final Sec.  1926.1203(e)(2)(vii)(A) below.
    Paragraph (e)(2)(v). Final Sec.  1926.1203(e)(2)(v), which is
identical to the general industry standard at Sec.
1910.146(c)(5)(ii)(E), sets out requirements for using continuous
forced-air ventilation to maintain the permit space safe for entry.
Final Sec.  1926.1203(e)(2)(v)(A) also is identical to Sec.
1910.146(c)(5)(ii)(E)(1) and similar to proposed Sec.  1926.1216(d)(3).
It requires that no employee may enter the space until the forced-air
ventilation eliminates any hazardous atmosphere in the space. Final
Sec.  1926.1203(e)(2)(v)(B) is identical to Sec.
1910.146(c)(5)(ii)(E)(2), and shares the purpose of proposed Sec.
1926.1216(e)(2) to ensure that the ventilation will continue to control
the atmospheric hazards while the employer is conducting entry
operations. It requires the employer to direct the ventilation so as to
ventilate the immediate areas where an employee is, or will be, present
in the space, and requires the ventilation to continue until all
employees leave the space. Final Sec.  1926.1203(e)(2)(v)(C) is
identical to Sec.  1910.146(c)(5)(ii)(E)(3), and has no corresponding
section in the proposed rule. It requires that the air supply for the
ventilation must be from a clean source, and must not increase the
hazards in the space. These provisions ensure that the atmosphere in
the permit space will remain safe during the entire entry operation.
    Paragraph (e)(2)(vi). Final Sec.  1926.1203(e)(2)(vi), which is
similar to the general industry standard at Sec.
1910.146(c)(5)(ii)(F), requires entry employers to continuously monitor
the atmosphere in the permit space. Employers may use periodic
monitoring, rather than continuous monitoring, only if the employer can
demonstrate that the equipment for continuous monitoring is not
commercially available or that periodic monitoring is sufficient to
ensure that the conditions in the PRCS remain within planned limits.
This final provision also clarifies that employers must use some form
of monitoring during confined space operations, and that they must use
periodic monitoring if continuous monitoring is not used to ensure that
there is always monitoring of the space occurring.
    OSHA retained in this final rule the requirement in the proposal
that employers use continuous monitoring (see proposed Sec.
1926.1216(e)(2)). This requirement for continuous monitoring differs
from the general industry rule, which requires ``periodic testing.'' In
the typical PRCS found at construction sites, it is often difficult for
the employer to predict with reasonable certainty the levels of
hazardous atmospheres in a PRCS. In many instances, the employer will
have little or no past experience with the particular PRCS, and will
lack reliable historical data on hazardous atmosphere levels. Also,
conditions in a PRCS may vary as construction work progresses, causing
unexpected increases in hazardous atmosphere levels. For example,
alterations to the wall of a PRCS may allow a hazardous gas to enter
the PRCS, thereby increasing the level of the hazardous gas in the PRCS
from the level measured before altering the wall. In addition,
construction equipment in the space may not operate as expected,
resulting in a discharge of hazardous gasses into the space at a higher
rate than anticipated. In short, construction work tends to follow a
somewhat unpredictable course and, thus, requires frequent atmospheric
monitoring. Because of this high level of unpredictability, OSHA
believes that continuous monitoring is necessary to ensure that
affected employees, especially entrants, receive adequate protection.
Continuous monitoring enables employers to quickly recognize
deteriorating conditions, including the introduction of new atmospheric
hazards into the confined space, and then to take timely actions to
protect employees. For additional discussion of the need for continuous
monitoring and its implementation, see the discussion of final Sec.
1926.1204(e)(2) (discussion of continuous monitoring of permit spaces
entered under a full permit program, rather than the alternative
procedures).
    Final Sec.  1926.1203(e)(2)(vi) also requires the continuous-
monitoring equipment to have a functional alarm that will notify all
entrants when an atmospheric hazard reaches a specified threshold
designed to give entrants an opportunity to escape before a ``hazardous
atmosphere'' develops, or check the monitor with sufficient frequency
to alert other entrants when an atmospheric hazard reaches that
specified threshold. The purpose of continuous monitoring is to protect
entrants by ensuring that the atmospheric hazards remain at or below
levels specified by final Sec.  1926.1203(e)(1)(ii), and having an
alarm will immediately warn entrants when the atmospheric hazards reach
those levels. The monitoring equipment serves no purpose if the
employer does not convey the monitoring results to entrants in a timely
manner. Requiring employers to check the monitor ``with sufficient
frequency'' is a performance measure that means that the employer must
demonstrate that the permit space is monitored such that a change in
atmosphere or other potential hazard will be identified in time to
allow entrants to exit the permit space safely. Checking the monitor
regularly also will alert entrants if the monitor malfunctions.
    Several commenters supported the requirement for continuous
monitoring (ID-106, p. 2; -220, p. 7; -211, Tr. pp. 44-45). However,
some of these commenters also urged the Agency to require continuous
monitoring without exception (ID-106, p. 3; -220, p. 7). The Agency
recognizes that in some PRCSs, especially when an employer conducts
numerous entry operations in the same PRCS and finds through repeated
monitoring that the atmosphere in the PRCS is stable, the employer may
be able to show that periodic monitoring is sufficient to ensure that
the conditions in the PRCS remain within planned limits. Nevertheless,
when the employer uses periodic monitoring, it must be of sufficient
frequency to ensure the

control of atmospheric hazards as planned and must be able to detect
new hazards in time to protect employees. In some cases, continuous
monitoring may not be possible; for example, continuous monitoring may
not be available when the atmospheric hazard is a particulate.
Therefore, when the employer shows that periodic monitoring is
adequate, or demonstrates that the technology for continuous monitoring
is not available, this final provision permits the employer to use
effective periodic monitoring instead of continuous monitoring. The
proposed rule contained the same exceptions.
    The Agency also retained the language from the general industry
rule that the monitoring must ensure that the continuous forced-air
ventilation is preventing the accumulation of a hazardous atmosphere.
The monitoring required by final Sec.  1926.1203(e)(2)(vi), in
combination with the continuous forced-air ventilation required by
final Sec.  1926.1203(e)(2)(v), ensure that entrants remain protected
the entire time they are present within the permit space.
    Finally, final Sec.  1926.1203(e)(2)(vi) specifies that the
employer must provide any entrant, or his or her authorized
representative, with the opportunity to observe the monitoring required
by this paragraph. This paragraph does not require employees and their
authorized representatives to observe the monitoring; however, it
provides employees and their authorized representatives with the option
of observing should they choose to do so. OSHA believes that allowing
employees and their authorized representatives to participate in this
manner will contribute to the successful implementation of safe entry
operations by enhancing their awareness of the status of the hazards in
the confined space.
    Paragraph (e)(2)(vii). Final Sec.  1926.1203(e)(2)(vii), which is
similar to the general industry standard at Sec.
1910.146(c)(5)(ii)(G), specifies what an employer must do if it detects
a hazard in a space regulated by the Sec.  1926.1203(e) alternate
procedures during entry. Final Sec.  1926.1203(e)(2)(vii) differs from
the general industry rule in that it expressly applies to any hazard,
not just a hazardous atmosphere. This final provision is similar to
proposed Sec.  1926.1216(f), which also referred to physical, as well
as atmospheric, hazards. The Agency made this change to ensure that
this paragraph was consistent with final Sec.  1926.1203(e)(1)(i),
which allows employers to use the alternate procedures of final Sec.
1926.1203(e) after eliminating or isolating all physical hazards in the
space. Thus, the employer must implement the requirements of this final
paragraph when there is a new physical hazard, a previously recognized
physical hazard no longer remains isolated, or there is a hazardous
atmosphere present.
    Paragraphs (e)(2)(vii)(A)-(C). Final Sec. Sec.
1926.1203(e)(2)(vii)(A)-(C), which are similar to general industry
Sec. Sec.  1910.146(c)(5)(ii)(G)(1)-(3), set the requirements for what
an employer must do after detecting a hazard in a space regulated by
Sec.  1926.1203(e) during entry. Final Sec.  1926.1203(e)(2)(vii)(A) is
identical to the general industry standard at Sec.
1910.146(c)(5)(ii)(G)(1), and requires employees to exit the permit
space immediately after detecting a hazard. Final Sec.
1926.1203(e)(2)(vii)(B) is similar to the general industry standard at
Sec.  1910.146(c)(5)(ii)(G)(2), except that it applies to all hazards,
not just atmospheric hazards as the general industry requirement does.
The final rule requires the employer to evaluate the permit space to
determine how the hazard developed. Final Sec.  1926.1203(e)(2)(vii)(C)
is similar to the general industry standard at Sec.
1910.146(c)(5)(ii)(G)(3), though it too refers to all hazards (physical
and atmospheric). It requires the employer to implement measures to
protect employees from the hazard before reentering the space under the
alternate procedures specified by final Sec.  1926.1203(e). Detecting a
hazardous atmosphere during entry indicates that the employer did not
maintain the permit space safe for entry, so before authorizing any
subsequent entries into the space under final Sec.  1926.1203(e), the
employer must determine what went wrong and take whatever measures are
necessary to prevent a recurrence.
    Paragraph (e)(2)(viii). Final Sec.  1926.1203(e)(2)(viii) requires
an employer to provide a safe means of access and egress during
confined space entries under final Sec.  1926.1203(e). For example,
when employees are working in an underground vault, the employer must
provide, and ensure the use of, a safe means of entry into and exit
from the underground vault, and ensure that the method complies with
applicable OSHA requirements (e.g., 29 CFR part 1926, subpart X--
Stairways and Ladders). Providing proper entry and exit equipment such
as ladders is critical under emergency-egress conditions to ensure that
employees exit a PRCS in a timely and safe manner. Proposed Sec.
1926.1216(c)(3) required that employers provide a safe method of entry
and exit, and that this method comply with applicable OSHA
requirements. This final provision retains the proposed requirement for
a safe means of entry and exit, but did not retain the language
requiring compliance with other ``applicable OSHA requirements''
because it is unnecessary: Such requirements apply regardless of
whether this statement is included in the final rule. If another OSHA
standard covers the means of entry and exit, the employer must comply
with that applicable standard.
    One commenter supported the proposed rule's requirement for safe
entry and exit (ID-220, p. 8). Two others commenters agreed that
assuring safe entry and exit is necessary, but asserted that it is
often infeasible to use stairways that meet the requirements for
stairways or ladders that comply with 29 CFR part 1926, subpart X's 4:1
ratio because of the configuration of these spaces (ID-075, p. 10; ID-
124, p. 9). Subpart X contains many requirements for safe stairways and
ladders, including the spacing between steps and rungs, the condition
of the ladders, and the ratio of 4:1 for the vertical angle of portable
non-self-supporting ladders relative to the structures supporting the
ladders (see 29 CFR 1926.1050 et seq.). These comments seem to be
requesting a blanket exemption from these OSHA requirements, but this
request is overly broad. Even these commenters did not argue that all
requirements of subpart X would be infeasible, or that the requirements
in question are always infeasible. Employers may assert on a case-by-
case basis under this standard, as they could under any other OSHA
standard, that a requirement is infeasible in a particular situation.
In such a situation, the employer has the burden of proving
infeasibility. The employer also must make every effort to abate the
hazard caused by having the ladder at a steeper angle than permitted,
possibly by securing the top and bottom of the ladder while it is in
use so it will not slip, and by training employees on climbing at a
steeper angle.
    Final Sec.  1926.1203(e)(2)(viii) also requires that an employer
use hoisting systems designed and manufactured specifically for
personnel hoisting. This provision includes an exception to this
requirement that allows for the use of job-made hoisting systems if a
registered professional engineer approves these systems for personnel
hoisting prior to use in entry operations regulated by Sec.
1926.1203(e). Unlike the proposed rule, the final rule requires
engineer's approval to be in writing to ensure that the specifications
and limitations of use are conveyed accurately to the employees
implementing the job-made

hoist, and that the approval can be verified. However, the final rule
prohibits the use of commercial hoisting systems not designed and
manufactured specifically for personnel hoisting because OSHA believes
that employers cannot use such hoisting systems safely for this
purpose. The requirements of final Sec.  1926.1203(e)(2)(viii) for
hoisting systems will eliminate further injuries and deaths of
employees that could occur from the use of a hoisting system not
designed specifically for personnel hoisting. This final rule provides
employers with flexibility in choosing personnel hoisting systems by
allowing a registered professional engineer to approve a job-made
system. OSHA believes that either option ensures that the personnel
hoisting system will meet the design specifications needed for
employees to safely access a space. This final provision ensures that
authorized entrants will always have a safe and effective means of
entering and exiting the space, including escaping during an emergency.
    There is no corresponding general industry provision that has
requirements similar to final Sec.  1926.1203(e)(2)(viii) for the
alternative entries regulated under Sec.  1910.146(c)(5). Section
1910.146(d)(4)(vii) requires safe access and egress, but that provision
does not explicitly apply to the alternate procedures used under Sec.
1910.146(c)(5). However, hazardous conditions may still arise in these
spaces, particularly if the ventilation system stops functioning, thus
making safe exit of entrants necessary. None of the comments OSHA
received on proposed Sec.  1926.1216(c)(3) provided a reason to exclude
these requirements from the final standard. The same reasons provided
in this preamble for requiring safe access and egress during permit-
space operations governed by final Sec.  1926.1204 also apply to the
spaces regulated under final Sec.  1926.1203(e) and, therefore, OSHA
adopted the proposed requirement in this final rule.
    Paragraph (e)(2)(ix). Final Sec.  1926.1203(e)(2)(ix), which is
identical to general industry Sec.  1910.146(c)(5)(ii)(H), requires the
employer to verify that the permit space is safe for entry and that the
employer took the measures required by final Sec.  1926.1203(e)(2).
This provision also is similar to proposed Sec.  1926.1216(d)(4),
though it is less detailed than that proposed provision. The
verification must be in the form of a certification that contains the
date, the location of the space, and the signature of the certifying
individual; the employer must make the certification available to
entrants. The certification, in combination with the documentation
required under final Sec.  1926.1203(e)(1)(v), will document the
employer's efforts to comply with final Sec.  1926.1203(e)(2), enable
OSHA and the employer to evaluate compliance with the standard, and, if
permit-space incidents occur, assist OSHA and the employer in
ascertaining the causes of those incidents.
    One commenter supported the more detailed documentation
requirements specified by the proposed rule, and the requirement in
proposed Sec.  1926.1216(a)(3) and (d)(1) to verify prior to entry that
physical hazards remain isolated (ID-220, pp. 6-7). The commenter noted
that these requirements serve as an ``important check that measures
that may have been taken in weeks, days, or . . . a previous work shift
are still in place and effective'' (id.). This final rule preserves the
important check function because it also requires documentation of the
isolation or elimination of physical hazards, in final Sec.
1926.1203(e)(1)(v), and provides that entry under final Sec.
1926.1203(e)(2) can occur only under the conditions set forth in final
Sec.  1926.1203(e)(1). This final rule, however, does so with the
flexibility of the more performance-orientated language of the general
industry standard.
    Final Sec.  1926.1203(e)(2)(ix) also requires that the employer
date the certification and make it available to entrants. This
requirement ensures that the certification provides information to the
entrants about the latest conditions in the space the entrants will
soon be entering. One commenter complained that requiring the name and
signature of the individual who completed the isolation work, as the
proposed rule did, could cause unspecified logistical problems (ID-114,
p. 2). OSHA believes that requiring the signature only of the
individual who provides the certification, as required by the general
industry standard, will resolve any logistical problems.
    Another commenter noted that using the term ``verification
document'' in the proposed rule for spaces equivalent to the spaces
regulated by final Sec.  1926.1203(e), while using the term ``entry
permits'' for other permit spaces in the proposed rule, was confusing
(ID-099, p. 3). The documentation requirement in proposed Sec.
1926.1216 was more detailed than the documentation requirement in this
final rule and, thus, more similar to an entry permit. Final Sec.
1926.1203(e)(2)(ix) uses the term ``certification,'' and this
certification contains much less information than the entry permits
required for other permit spaces and, therefore, is distinct (see final
Sec.  1926.1206). The general industry standard also uses this
terminology, and, given the differences in documentation for the two
types of spaces in the final rule, the Agency believes that the
terminology is clear.
    Paragraph (f). Final Sec.  1926.1203(f), which is nearly identical
to the general industry standard at Sec.  1910.146(c)(6), addresses the
reevaluation of confined spaces. This final provision requires each
entry employer to reevaluate non-permit required confined spaces when
there is a change in use or configuration that may increase the hazards
to entrants, and to reclassify the space as a permit space if
necessary. The Agency believes this requirement is necessary because
conditions around and in confined spaces may change, especially when
multiple employers are performing various construction activities
around or in the space. Consequently, when indications of changes in
the previous conditions arise that may increase the likelihood for a
hazard to develop, the employer must reevaluate the confined space to
ensure adequate employee protection. Final Sec.  1926.1203(f) differs
from the general industry rule in that it refers to ``each entry
employer'' rather than ``the employer'' to emphasize that reevaluation
is the responsibility of each employer that conducts entry operations
in a confined space.
    Several commenters were unsure what type of new information would
trigger reevaluation under final Sec.  1926.1203(f) (ID-098, p. 1; ID-
124, p. 8). These commenters asked, for example, whether working with
gasoline equipment near a confined space or driving a vehicle near a
confined space would trigger reevaluation. Whether these conditions
would trigger a reevaluation depends on whether it is foreseeable that
the operation of the equipment or vehicle could increase the hazards in
the space, such as by creating emissions that could enter the space or
sparks that could ignite a fire in the space. Indications of a need for
reevaluation may include, but are not limited to: (1) A change in the
configuration or use of, or in the type of work conducted or materials
used in, the confined space; (2) new information regarding a hazard in
or near a confined space; and (3) when an employee or authorized
employee representative provides a reasonable basis for believing that
a hazard determination is inadequate (see also Sec.  1926.1204(e)(5)).
OSHA does not expect employers to reevaluate spaces when trivial
changes occur that do not affect the

characteristics of the space or the work performed in the space.
    One commenter suggested that OSHA include the time lapse since the
initial evaluation as an indication of the need for a reevaluation (ID-
013, p. 4). This commenter seems to be addressing situations in which
several days or weeks could elapse between entries into a confined
space, during which changes in environmental conditions and other
conditions could occur that may increase hazards in the confined space.
For example, a container of coating chemicals left slightly ajar in a
space, or a substance that is leaching slowly through the soil into a
new construction space, might release fumes at a slow rate so that they
would not become concentrated or hazardous over the course of a single
day if the space has some ventilation, but could create a hazardous
atmosphere if left in a closed and non-ventilated confined space for a
longer period of time. OSHA agrees that employers should consider
elapsed time since the last evaluation in determining when to
reevaluate a confined space because of the possibility that hazards may
increase during this period. Unlike proposed Sec.  1926.1207, which
listed conditions that would require reassessment, this final provision
uses the more performance-oriented language of the general industry
rule. Therefore, this final provision does not list all the conditions
that could trigger a reevaluation of the space because the
circumstances that could increase the hazards in a space and prompt a
reevaluation are too numerous to list.
    One commenter was unsure how the entry employer would be able to
detect whether changing conditions would require reevaluation (ID-086,
p. 5). According to this commenter, the language of proposed Sec.
1926.1204(b) did not require the employer to obtain information
necessary to classify a space. The commenter's reading of the proposed
rule is incorrect, and would also be incorrect of the final rule. Final
Sec.  1926.1203(a) requires each employer that has employees who may
work in a confined space to ensure that a competent person identifies
all confined spaces on the site, and to determine, through initial
testing as necessary, which of these spaces are permit spaces, and to
consider and evaluate other elements of the confined space. Therefore,
under Sec.  1926.1203(f) of this final rule, the entry employer must
also ensure that a competent person compile the information necessary
to determine whether a reevaluation is necessary, and conduct the
reevaluation when necessary.
    Paragraph (g). Final Sec.  1926.1203(g), which is similar to the
general industry standard at Sec.  1910.146(c)(7), allows an employer
to reclassify a permit space as a non-permit confined space only under
the limited circumstances set forth in final Sec.  1926.1203(g)(1)-(4).
Final Sec.  1926.1203(g) is substantively similar to proposed Sec.
1926.1217(a). When there is no actual or potential hazardous atmosphere
present in the space, and the employer eliminates all physical hazards
in a space, this section allows an employer to reclassify the space as
a non-permit confined space. The Agency believes that, in some
instances, the procedures specified by final Sec.  1926.1203(g) will be
more efficient and less costly to implement than permit-space
requirements. The Agency made three non-substantive changes from Sec.
1910.146(c)(7) in the introductory paragraph of final Sec.
1926.1203(g). First, OSHA added the word ``only'' to the provision.
Second, OSHA changed ``under the following procedures'' to ``when all
of the applicable requirements in paragraphs (g)(1) through (g)(4) have
been met.'' OSHA made these non-substantive changes to clarify that an
employer may use only these procedures to reclassify a permit space
under this rule, and that the employer must comply with each of the
provisions under final Sec.  1926.1203(g) to reclassify a permit space.
Third, to provide consistency with the requirement that an employer use
a competent person to conduct the initial evaluation of the space, the
final rule specifies that a competent person must also conduct the
reevaluation and reclassification of the space.
    One commenter requested that OSHA clarify whether employers must
provide attendants or retrieval systems for spaces when final Sec.
1926.1203(g) applies (ID-099, p. 4). Another commenter asserted that
OSHA should require attendants for spaces regulated by final Sec.
1926.1203(g) (ID-060, p. 3). Final Sec.  1926.1203(g) does not require
compliance with the attendant or rescue provisions of this final rule
once the space has been reclassified as a non-permit space. Prior to
the reclassification, however, the full permit program requirements
apply. In general, such requirements are unnecessary for a space that
has been reclassified as a non-permit space under Sec.  1926.1203(g)
because, to qualify as a non-permit space, there can be no actual or
potential hazards in the space. However, an employer may elect to
comply with the PRCS requirements, including the attendant and rescue
provisions, even if the employer reclassifies the space as a non-permit
space under final Sec.  1926.1203(g).
    Paragraph (g)(1). Final Sec.  1926.1203(g)(1), which is identical
to general industry Sec.  1910.146(c)(7)(i), ensures that an employer
may only reclassify a PRCS as a non-permit space if no actual or
potential atmospheric hazards are present and the employer eliminates
all other hazards in the space. This final provision also is similar to
proposed Sec.  1926.1217(a)(1) and (d)(1). OSHA expects that this
provision will apply primarily to spaces where the employer eliminated
or isolated the physical hazards. While this final provision would
allow employers flexibility in the methods and procedures they use to
identify and eliminate physical hazards, it would not relieve them from
conducting a thorough assessment of the space and identifying hazards
that include: Existing or potential liquids, solid materials, and
electricity associated with processes; the use of equipment, ductwork,
and conduits with exposed valves or that terminate in the confined
space; exposed and energized electrical conduits; connected rooms and
reservoirs that present engulfment hazards; and any other recognized
hazards covered by OSHA construction standards or the general duty
clause, 29 U.S.C. 654(a)(1). OSHA believes that eliminating or
isolating all physical hazards in the space protects employees who
perform construction work in the space. For additional information
about isolating spaces within sewers and other continuous confined
spaces, see the discussion of Sec.  1926.1204(c)(3).
    Paragraph (g)(2). Final Sec.  1926.1203(g)(2), which is similar to
the general industry standard at Sec.  1910.146(c)(7)(ii), requires an
entry employer considering reclassification to eliminate or isolate
confined space hazards, when possible, without entering the space. This
requirement parallels the requirement in final Sec.
1926.1203(e)(1)(iv), and OSHA is including the requirement here for the
same reasons, although it applies to different spaces. If it is not
possible for an entry employer to eliminate or isolate confined space
hazards without entering the space, then final Sec.  1926.1203(g)(2)
requires the entry employer to comply with all PRCS procedures in final
Sec. Sec.  1926.1204-1211 until elimination or isolation of the hazards
is complete.
    Final Sec.  1926.1203(g)(2) differs slightly from the general
industry requirement in that it contains a new first sentence
clarifying that the entry employer must eliminate or isolate the
hazards without entering the space unless it is infeasible to do so.
This slight revision, which

OSHA based on proposed Sec.  1926.1217(a)(3), improves employee
protection by reducing unnecessary entry into permit spaces for
classification purposes. OSHA received no comments on the parallel
provision in the proposed rule.
    In the final rule, OSHA also allows employers to isolate physical
hazards, rather than eliminate them entirely. The effect must be the
same--employees must be effectively protected from any potential
exposure to any hazard--and it is therefore substantively similar to
the general industry rule. OSHA included the isolation option, however,
in response to comments indicating that full permit program
requirements were not necessary when employers can use engineering
controls to prevent employee exposure to physical hazards, even if the
item causing the hazard is not totally removed from the space (see,
e.g., ID-210, Tr. pp. 56, 308-309, 327-328).
    For the purpose of reclassifying a permit-required confined space
that has potential energy sources in it, the methods the employer must
use depend on the types of energies requiring elimination or isolation.
OSHA's lockout/tagout requirements address electro-mechanical hazards,
but lockout/tagout will not eliminate hazards associated with flowable
materials such as steam, natural gas, and other substances that can
cause hazardous atmospheres or engulfment hazards in a confined space.
See OSHA Directive CPL 02-00-147: The Control of Hazardous Energy--
Enforcement Policy and Inspection Procedures, at pp. 3-10 (Feb. 11,
2008). Employers can isolate these hazards by using the techniques
described in the definition of the terms ``isolate'' or ``isolation'':
blanking, blinding, misaligning or removing sections of lines or pipes,
and a double-block and bleed system. See also August 25, 1995, letter
to William K. Principe.
    ``Elimination'' means no on-going measures are necessary to keep
the space free of a hazard; if continued operation of ventilation is
required to address a hazard, for example, then the hazard is
controlled, not eliminated. See, e.g., September 19, 1994, letter to
Edward Donoghue. If the employer uses ventilation to eliminate an
atmospheric hazard from a space (as opposed to controlling the hazard),
the employer must perform verification monitoring with the ventilation
system off to establish the elimination of any atmospheric hazards
before reclassifying the space. See November 11, 1993, letter to Trey
Mayfield. Employers usually may not reclassify some confined spaces,
such as tank containers, as non-permit spaces because residues may
persist, resulting in potential atmospheric hazards. For example, the
tank shell could oxidize, former contents could leach after absorption
into the tank coating or lining, and contents trapped between the
lining and the tank shell could leak. See September 20, 1994, letter to
J.B. Saunders.
    OSHA notes that the elimination of a hazard as required by final
rule Sec.  1926.1203(g)(2) will not necessarily result in the re-
classification of the space as a non-permit space. The employer must
still ensure that a competent person performs a full reevaluation of
the permit space before reclassifying the space. For example, if an
employer completes an initial evaluation of a space and determines that
there is a single electrical hazard that can be locked out, but no
atmospheric hazards, the employer must lock out the electrical hazard,
entering the permit space under the full permit program requirements of
Sec.  1926.1204 if entry is necessary. Because the person who locks out
the energy hazard may or may not be focused on the evaluation of the
entire permit space, that employer's competent person must still verify
that that the hazard is properly isolated, and that no other hazards
are present, before the employer may re-classify the space as a non-
permit space.
    Final Sec.  1926.1203(g)(2) also includes the note from the general
industry standard stating that control of atmospheric hazards through
forced-air ventilation does not constitute elimination of the hazards.
Final Sec.  1926.1203(e), not Sec.  1926.1203(g), covers permit-space
entry when the employer can demonstrate that the forced-air ventilation
alone will control any atmospheric hazards within in the space. Final
1926.1203(g) requires the complete elimination of such hazards.
    OSHA revised ``hazards'' to ``atmospheric hazards'' in the second
sentence to reflect the change in final Sec.  1926.1203(e)(1)(i), which
will permit employers to use the alternative procedures if they isolate
or eliminate all physical hazards. Employers may reclassify the space
as a non-permit space under final Sec.  1926.1203(g) even if a physical
hazard remains, so long as the hazard is completely isolated such that
employees cannot be exposed to it. OSHA does not view this as a
substantive change from the general industry standard, which allowed
employers to treat isolation of physical hazards as elimination of
those hazards for purposes of reclassifying a permit space. See October
12, 1995, memorandum to Linda Anku.
    OSHA refers to ``atmospheric hazards'' in the note to Sec.
1926.1203(g), rather than using the term ``hazardous atmosphere'' as in
Sec.  1926.1203(e), to emphasize the distinction between control and
elimination of airborne hazards. A ``hazardous atmosphere'' requires
certain levels of contaminants in the air (e.g., a flammable gas over
10 percent of its LFL or a concentration of a substance exceeding its
PEL). The alternative procedures in final Sec.  1926.1203(e) may be
used when the employer eliminates any ``hazardous atmosphere'' even if
the employer anticipates some presence in the air of a hazardous
substance that must be controlled through practices to keep the
substance at safe levels. Therefore a Sec.  1926.1203(e) space remains
a permit-required space that can be entered without a permit so long as
the controls remain effective. Final Sec.  1926.1203(g), in contrast,
requires the total elimination of ``atmospheric hazards'' prior to
entry, which means that the breathing atmosphere contains no
potentially hazardous substance that would make it a potentially
hazardous atmosphere; therefore, the employer has no need to maintain
practices to control it (hence, it is not a permit-required space). For
example, an employer can eliminate a ``hazardous atmosphere'' of
methane by reducing the concentration of methane in the space from 12
percent of its LFL to 9 percent. However, the methane is still an
``atmospheric hazard'' at the lower 9 percent concentration because,
without the alternative procedures that include ventilation, the level
of methane could rise and injure or kill the workers inside the space.
To eliminate the ``atmospheric hazard'' caused by methane, the employer
must eliminate all of the methane from the space, and maintain this
condition without forced-air ventilation or other practices.
    Paragraph (g)(3). Final Sec.  1926.1203(g)(3), which is nearly
identical to the general industry rule at Sec.  1910.146(c)(7)(iii),
requires an entry employer seeking to reclassify a permit space to
document the basis for determining that it eliminated all permit-space
hazards through a certification that contains the date, the location of
the space, and the signature of the certifying individual. In addition,
the employer must make the certification available to each employee
entering the space or his or her authorized representative. The
employer must substantiate all determinations so that employers,
employees, and the Agency have the means necessary to evaluate those
determinations and

ensure compliance with the conditions that would enable the employer to
conduct entry operations using the alternate procedures following
reclassification.
    This final provision is necessary to protect employees from
physical or atmospheric hazards on initial entry into the space under
final Sec.  1926.1203(g), and to ensure that the space remains safe
during entry operations. The requirement to make the certification
available to employees or their authorized representatives ensures that
entrants have the information necessary to detect developing hazards
while they are working in the space.
    Proposed Sec.  1926.1219(d) provided that the employer must
maintain an equivalent verification document until the work in the
confined space is complete. One commenter asserted that OSHA should
require employers to maintain records of these determinations for years
to aid OSHA and the National Institute for Occupational Safety and
Health (NIOSH), and to protect a company from potential litigation in
the future; the commenter, however, did not specify exactly how OSHA
and NIOSH would use these records (ID-060, p. 2). Another commenter
stated that employers only need to maintain the certification until the
completion of the project (i.e., as long as there are entrants, the
certification must be available to those entrants) (ID-108, p. 3).
Nevertheless, the Agency recognizes that confined spaces not classified
as PRCSs do not involve hazards as defined in this standard. Therefore,
unlike permit-space entry permits, the Agency believes that it is not
necessary for entry employers to maintain the certification required
under final Sec.  1926.1203(g)(3) for review and evaluation after
completion of the work. The Agency agrees with the latter commenter
that the purpose of certification is to allow employees and employers
to detect any changes from the original entry conditions during
confined space operations, and believes that the minimal useful
information gained from these records likely would not justify the
burden of maintaining them. Furthermore, no provision in this final
rule prohibits an entry employer from maintaining this information for
a period longer than the period required by the final rule.
    Paragraph (g)(4). Final Sec.  1926.1203(g)(4), which is similar to
Sec.  1910.146(c)(7)(iv), requires that whenever a hazard arises in a
space reclassified under final Sec.  1926.1203(g), employees must
evacuate the space, and the entry employer must reevaluate the space.
This final provision also is similar to proposed Sec.  1926.1217(e)(2).
The Agency believes that this final provision is necessary to protect
entrants when conditions around and in confined spaces change,
especially when performing construction activities around or in the
space. Having a hazard arise in a reclassified space indicates that the
previous evaluation was insufficient or that there has been a
significant departure from the previous conditions; therefore, a
thorough reevaluation of the entire space is critical.
    This provision indicates clearly that entry employers retain
responsibility for the safety of employees who enter spaces after they
reclassify the spaces as non-permit confined spaces. The employer must
determine if it is still appropriate, under the circumstances
identified through the reevaluation, to classify the space where the
hazard arose as a non-permit confined space. A reevaluation aimed at
reestablishing compliance with final Sec.  1926.1203(g) will involve
the demonstrations, testing, inspection, and documentation required in
paragraphs (g)(1) through (g)(3) of this final rule. OSHA anticipates
that some employers will seek to reestablish compliance with final
Sec.  1926.1203(g), while others will choose to conduct the remainder
of its entries in that space in accordance with the full permit-space
program requirements specified by final Sec. Sec.  1926.1204-1211. The
Agency's concern is that the approach chosen must adequately protect
employees who enter the spaces.
    In some cases employers might need to require their employees to
exit the space temporarily during a limited event where the hazard is
already known and temporary, such as when an employer temporarily
removes workers from an underground confined space while other work is
conducted above the underground confined space. In this situation, the
employer can allow employees to re-enter without re-classifying the
space as a permit space after completing a reevaluation of the
structural integrity of the space to make sure that the work above the
underground confined space did not affect that space. In other cases,
however, a new unanticipated hazard in the space means that the status
of the space reverts to a permit-required confined space until the
employer can identify and address the hazard and reclassify the space
as a non-permit space under Sec.  1926.1203(g). As a result, all of the
provisions of this standard applying to a permit space apply, and entry
must be conducted in accordance with the permit program requirements of
Sec.  1926.1204 and permitting requirements of Sec.  1926.1205. The
fact that the spaces addressed in Sec.  1926.1203(g) were previously
permit spaces before reclassification as non-permit spaces means that
it is imperative for the entry employer to proceed with caution
whenever a new hazard emerges.
Section 1926.1203(h) and (i)--Information Sharing and Coordination
Duties at Multi-Employer Worksites
    The discussion of paragraphs (h) and (i) has three parts:
    (1) An overview of host employers and controlling contractor
responsibilities;
    (2) OSHA's authority to require host employers and controlling
contractors to share information to protect the employees of others;
and
    (3) A paragraph-by-paragraph explanation of Sec.  1203(h) and (i).
(1) Overview of Host Employers and Controlling Contractor
Responsibilities
    Timely information exchanges and coordination of work activities
can be critical in safeguarding employees performing confined-space
work, particularly on multi-employer worksites where one employer's
actions can affect the health and safety of another employer's
employees. As OSHA noted in its explanation of the proposed rule, there
are a number of contractors and subcontractors performing jobs on most
construction worksites, and there may be employees of different
employers performing work within the same confined space. In many
instances, employees of one subcontractor will enter a confined space
after another subcontractor's employees complete their work within the
space.
    OSHA recognizes that both the controlling contractor and the host
employer may have crucial information about confined spaces at a
construction worksite. Therefore, in the proposed standard, OSHA
adopted the information-sharing duties specified for the host employer
in the general industry standard (Sec.  1910.146(c)(8)) and proposed
applying them to both the host employer and the controlling contractor.
As one labor organization noted, based on the experience of its members
in both general industry and construction settings, worker safety is
affected by timely information sharing in both general industry work
and construction:

    [T]he problem posed by contracting out work in both situations
is nonetheless the same--how to ensure that subcontractors that are
in a work location for a limited period of time have the best
possible information to

identify the location of confined spaces, assess their hazards, and
ensure that their employees can perform their assigned duties
safely.

(220.2, pg. 10.)
    The same commenter also explained that information sharing may be
even more critical in the construction setting because different
workers may perform many different activities in the same space at
different times, which can result in hidden dangers:

    Many chemical substances used in the construction industry, once
in place, are neither detectable nor hazardous until exposed to a
particular work process. For example, surface coatings such as
paints and epoxies are seemingly stable--and are generally
undetectable through air monitoring--once applied and dried.
However, these same substances may create significant safety and
health hazards to employees who perform welding and other processes
involving heat while working in a confined space. A contractor that
performs the routine assessment of physical and atmospheric hazards
required by the standard would not necessarily identify these
potential hazards.

(ID-213.1, pg. 1.) Similarly, polyurethane is often used for spray foam
insulation. When welding or heating in a confined space is performed
near spray foam insulation that contains polyurethanes, the heat could
cause the polyurethanes to break down and produce hazardous fumes. A
contractor may not recognize this hazard during a routine assessment of
the space, and would rely on information from a host employer or
controlling contract about the potential hazard.
    Hidden dangers may also arise while working with equipment in
confined spaces. For example, operating internal combustion engines,
such as air compressors, pressure washers, and generators in a confined
space could lead to carbon monoxide exposure. Because carbon monoxide
is a colorless, odorless gas, it is difficult to detect without a
monitor or testing equipment. A host employer, controlling contractor,
or subsequent entry employer may not realize that carbon monoxide
levels in a confined space have changed without communicating with the
employer who operated the engine in the space. Similarly, when working
with live circuits, an entry employer may reenergize a once de-
energized circuit to perform work in a confined space. Communication
about reenergized circuits will give the host employer, controlling
contractor, and any subsequent entry employer's indication that
conditions within the confined space may have changed.
    In this final rule, as in the proposed rule, OSHA requires
communication and coordination among controlling contractors and
subcontractors, and between host employers and controlling contractors.
The coordination and information-exchange duties in the final rule are
largely the same as the duties required by the proposed rule, although
the final rule makes communication with entry contractors the
responsibility of the controlling contractor rather than the host
employer, and does not contain the proposed rule's additional
requirements for identifying the separate classifications of spaces.
(See proposed Sec.  1926.1204.)
    Based on the record as a whole, OSHA finds that the information-
sharing and coordination responsibilities of host employers and
controlling contractors required by this final standard are critical
means of identifying hidden or latent dangers in permit spaces and for
preventing the actions of one employer from exposing another's
employees to hazards in a permit space. These provisions will enhance
the safety of workers in confined spaces by ensuring that all employers
have the previously identified information at their disposal before
entry to avoid hidden hazards and to make adequate preparations to
protect employees entering permit spaces.
    The rule places controlling contractors at the center of this
process. Before any employer enters a permit space, the final rule
requires controlling contractors to obtain relevant information about
confined spaces on the worksite from the host employer, and then to
relay that information, along with any other relevant information, to
each contractor that will enter the confined space or that will be
performing work that could foreseeably result in a hazard within that
confined space. (See Sec.  1926.1203(h)(1) and (h)(2).) The controlling
contractor is also responsible for coordinating work in and around
confined spaces so that no contractor working at the site will create a
hazard inside the confined space. (See Sec.  1926.1203(h)(4).) After
the entry employer performs entry operations, the controlling
contractor must debrief the entry employer to gather information that
the controlling contractor then must share with the host employer and
other contractors who enter the space later. (See Sec.
1926.1203(h)(5).) Section 1926.1203(i) assigns the role of the
controlling contractor to a particular employer in the event there is
no controlling contractor for the project. Please see the discussion of
Sec.  1926.1203(i), below.
    Some commenters expressed concern that the final rule imposes a
duty on controlling contractors or host employers to verify the
accuracy of the information they receive from other employers (ID-117,
pg. 21; ID-078, pg. 1; ID-098, pg. 1). Consequently, one commenter
predicted that this duty would cause controlling contractors and host
employers to spend too much time and money overseeing their
subcontractors' work (ID-120, pg. 2). Two different commenters,
however, indicated that a controlling contractor should have even more
responsibility, particularly when multiple employers will be working in
the same area. The latter commenters argued that the controlling
contractor should ``share in'' the ``responsibility'' and costs of
permit space entries, including verifying the training of subcontractor
employees and communications among employers, particularly when
multiple employers enter and work in the permit spaces at the same time
(ID-108, pg. 4; ID-210, pg. 60). One of these latter commenters
expressed concern that, without controlling contractor verification,
``untrained or unqualified persons would be likely to enter the spaces
where a self-declaring system of monitoring is employed'' (ID-108, pg.
4).
    The final rule does not require the controlling contractor or host
employer to verify entry-employer information (testing, monitoring,
etc.) or to have its own employees enter any confined space or take
other direct actions to discover new information; requiring controlling
contractor employees to enter permit spaces might increase exposure of
unqualified persons to the hazards of permit spaces. Unless the
controlling or host employer allows its own employees into a permit
space, the final rule only requires the controlling contractor or host
employer to share information that is already in its possession or that
it receives from other employers. OSHA agrees that it is important to
prevent untrained or unqualified persons from entering the space. The
type of information that the controlling contractor must share with
subcontractors, and that the host employer must share with the
controlling contractor, is identical to the type of information that
the host employer must share with contractors under the general
industry standard. (See Sec.  1910.146(c)(8).) Separately, controlling
contractors still have the same duty they have always had to exercise
reasonable care to ensure compliance with the requirements of other
applicable standards (e.g., welding standard, respirator standard) in
accordance with OSHA's multi-

employer citation policy. The specific communication and coordination
requirements imposed by this rule are discussed in the paragraph-by-
paragraph explanation of Sec.  1926.1203(h) that follows the discussion
of OSHA's authority for these requirements.
(2) OSHA's Authority To Require Host Employers and Controlling
Contractors To Share Information To Protect the Employees of Others
    Two commenters argued that OSHA lacks the authority to impose any
requirements on host employers or controlling contractors except with
respect to their own employees. (112.1, p. 14-15; and 117.1, pg. 7-12.)
One of these commenters stated that a ``controlling contractor . . .
may not be cited if it did not create a cited hazard and it has no
employees exposed to the hazard,'' explaining that the ``legal analysis
supporting this point is set forth well'' in the Occupational Safety
and Health Review Commission (OSHRC) decision in Secretary of Labor v.
Summit Contractors, Inc., 21 BNA OSHC 2020 (No. 03-1622, 2007). (112.1,
p. 15.) OSHA notes that both the reviewing federal court and the
Commission itself subsequently rejected that view in Solis v. Summit
Contractors, Inc., 558 F.3d 815 (8th Cir. 2009) and Secretary of Labor
v. Summit Contractors, Inc., 23 BNA OSHC 1196, 1202-03 (No. 05-0839,
2010).
    OSHA has clear authority to require host employers and controlling
contractors to comply with the information-sharing and coordination
provisions in the final rule. The preamble to the proposed rule
discussed in detail OSHA's authority to impose the duties in this
standard (see 72 FR 67358-67360, Nov. 28, 2007), and the Agency
reasserts the same basis with respect to this final rule, along with
the 2009 and 2010 Summit decisions. First, the plain language of the
OSH Act and its underlying purpose support OSHA's authority to place
requirements on employers that are necessary to protect the employees
of others. As explained later in this section of the preamble, the
overall sharing of information that will occur in accordance with the
final host-contractor provisions will help protect the employees of
both host employers and contract employers. Second, congressional
action subsequent to passage of the OSH Act recognizes this authority.
Third, OSHA consistently interprets its statutory authority as
permitting it to impose obligations on employers that extend beyond
their own employees, as evidenced by the numerous standards (including
several construction standards) that OSHA promulgated previously with
multiemployer provisions. OSHA provided several examples of these
standards in the preamble to the proposed rule, and OSHA subsequently
promulgated additional rules requiring controlling entities and
utilities to take steps to protect other employers' employees during
crane operations. (See 29 CFR 1926.1402(c), 1926.1402(e), 1926.1407(e),
1926.1408(c), and 1926.1424(b).) Finally, numerous courts of appeal and
the OSHRC have upheld OSHA's authority to place obligations on
employers that reach beyond their own employees. In addition to the
authorities listed in the preamble to the proposed rule, the Third
Circuit upheld the information-sharing requirements in the Asbestos
Standard for the construction industry, noting: ``We are not convinced
that the Secretary is powerless to regulate in this [way], especially
given the findings she has made regarding the importance of building
owners in the discovery and communication of asbestos hazards.''
Secretary of Labor v. Trinity Indus., Inc. (Trinity), 504 F.3d 397, 402
(3d Cir. 2007).
(3) Paragraph-by-Paragraph Explanation of Sec.  1926.1203(h) and (i)
    Final Sec.  1926.1203(h) is substantively similar to the
corresponding provision for general industry confined spaces at Sec.
1910.146(c)(8), but modified to include requirements for controlling
contractors that were included in the proposed rule. The type of
information that the controlling contractor must share with entry
contractors, and that the host employer must share with the controlling
contractor, is identical to the type of information that the host
employer must share with contractors under the general industry
standard. The primary difference in this area between this rule and the
general industry standard is that this rule makes the controlling
contractor the central point of the information exchange, while the
host employer is the central point in the general industry standard.
The final rule also structures the requirements in chronological order
to make them easier to follow, setting out the information sharing and
coordination duties prior to entry, and then setting out the duties
during and after the entry. These requirements are an efficient and
necessary way to ensure that all employers have important information
about the confined-space hazards so each employer can provide adequate
protection to employees it directs.
    OSHA is designating the controlling contractor, rather than the
host employer, as the information hub for confined-spaces information-
sharing and coordination because the controlling contractor's function
at a construction site makes it better situated than the host employer
(assuming the host employer is not also the controlling contractor) to
contribute to, and to facilitate, a timely and accurate information
exchange among all employers that have employees involved in confined-
space work. General industry worksites, such as a refinery or factory,
are likely to be stable, and owned and under the control of the host
employer for a substantial length of time. The host employer is well
suited in that scenario to facilitate information sharing because the
host employer is most likely to have control of the site and
information about it before another employer performs confined space
work there. On a construction worksite, the controlling contractor has
overall authority for the site and is best situated to receive and
disseminate information about the previous and current work performed
there. Evidence introduced at the hearing indicated that the
controlling contractor communicates with entry employers more
frequently than the host employer does (ID-210, pg. 315-320). In
contrast, the record shows that host employers are not always directly
involved in the construction process and, therefore, are often less
well situated than controlling contractors to facilitate information-
sharing (ID-220, pg. 14-15).
    The final rule is substantively similar to the proposed rule,
except that the proposal would have required the host employers to
communicate directly with entry employers. For the reasons discussed in
the prior paragraph, OSHA assigned the controlling contractor that
function in this final rule, giving only limited information-exchange
requirements to the host employer. In the final rule, OSHA also
clarified the scope of the information exchanges by requiring the
controlling contractor to coordinate and share information with
entities whose activities could foreseeably result in a hazard in the
confined space, as opposed to all contractors ``near'' the permit
space. Most other differences between these requirements in the
proposed rule and the final rule are stylistic in nature and intended
to bring it closer to the text of general industry rule.
    In the following, more detailed discussion, paragraph (h)(1)
contains the pre-entry duties of host employers, (h)(2) the pre-entry
duties of controlling employers, and (h)(3) the pre-entry duties of
entry employers. Paragraph

(h)(4) then describes the coordinating responsibilities of controlling
and entry employers, and (h)(5) explains their duties during and after
entry. Finally, paragraph (i) explains requirements when there is no
controlling employer.
    Paragraph (h)(1)--Pre-entry duties of host employer. The host
employer serves an important role in providing information because the
host employer is likely to be the employer most familiar with the
property and the most likely to retain, between separate construction
projects, information about permit spaces on the property, particularly
in construction involving existing facilities. (ID-141, pg. 3.) As a
result, the host employer may have information about hidden dangers or
other information that can help reduce employee exposure to hazards in
permit spaces.
    Final Sec.  1926.1203(h)(1) requires the host employer to share
information it has about the location of known permit spaces, and any
previous steps that it took, or that other employers took, to protect
workers from the hazards in those spaces. Telling other employers about
each known permit space on the worksite is essential to achieving the
purpose of the information-exchange requirements, which is to ensure
that contractors with employees entering confined-spaces are aware of
the type and degree of these hazards and can take necessary safety
precautions. Having information about the previously identified hazards
in a space, and the previous efforts to address them, will assist the
entry employer in ascertaining if those hazards still exist, and help
the entry employer avoid problems addressing the hazards that previous
entry employers encountered. Final paragraph (h)(1) is similar to the
corresponding provision for general industry confined spaces and to
proposed Sec.  1926.1204(a), although the host employer must share the
information with the controlling contractor instead of the entrants.
The controlling contractor then shares it with the entry employers.
OSHA did not receive any comments specifically opposing the inclusion
of this information in the information-exchange requirements.
    The proposed rule provided that host employers had to share the
information about known hazards only ``if they have it,'' and to
identify confined spaces when the host employer or controlling
contractor ``actually knows'' that they are confined spaces. (See 72 FR
67407.) The purpose of including these phrases in the proposed rule was
to clarify that the controlling contractor and host employer need not
engage in extensive and burdensome investigations of the history of the
worksite, and, most importantly, that these employers ``are not
required to enter a confined space to collect the relevant
information.'' (See 72 FR 47933.) OSHA is retaining the same approach
in the final rule, but refers to ``known'' permit spaces instead of the
more awkward ``space that the host actually knows is a confined
space.'' The final rule also narrows the requirement by focusing
specifically on known permit spaces, rather than to all confined
spaces, because these spaces pose the greatest hazards to employees.
Narrowing the requirement also reduces the number of information
exchanges and matches the type of information that the host employer
must share, which is linked to the nature of the space as a permit
space, i.e., information about the hazards that make the space a permit
space, and the previous efforts to address those hazards. This narrowed
approach will appropriately focus the exchanges on those spaces with
known hazards. In the event that an employer is both a host employer
and the controlling contractor, the employer has the information that
complies with the provisions of final Sec.  1926.1203(h)(1), (h)(2),
(h)(4), and (h)(5).
    For example, a host employer hires a controlling contractor to
build an underground storage facility and discovers during that process
that there is an underground stream below the property. Years later the
host employer hires a different controlling contractor to expand the
underground storage facility in a manner that will include several
confined spaces. In this example, the host employer must share the
plans for the existing storage facility and identify the location of
the underground stream so that the controlling contractor and the
relevant subcontractors can develop a permit-space program appropriate
to address potential engulfment hazards. The host employer also would
be responsible for disclosing the storage of any potentially hazardous
chemicals or other substances in the existing storage facility.
However, the final rule would not require the host employer to drill
for additional undiscovered underground rivers, conduct soil tests, or
test the air in the existing storage facilities.
    Paragraph (h)(2)--Pre-entry information-sharing duties of
controlling contractors. In paragraph (h)(2), OSHA requires controlling
contractors to obtain the information specified in paragraph (h)(1)
from the host employer (i.e., the location of permit spaces, the known
hazards in those spaces, measures employed previously to protect
employees in that space). Then, before permit space entry, it must
relay that information to any entity entering the permit space and to
any entity whose activities could foreseeably result in a hazard in the
confined space. (See Sec.  1926.1203(h)(2)(ii).) The controlling
contractor must also share any other information that it has gathered
about the permit space, such as information received from prior
entrants.
    The final rule varies slightly from the proposal in requiring
controlling contractors to share the information with any ``entity,''
rather than other contractors or employers, to ensure that the
controlling contractors also share this information with independent
contractors who are not ``employers'' under the OSH Act. These
contractors pose the same issues as do employers when working in or
around permit spaces, i.e., they may increase hazards for others
working in or around the space if they do not comply with the
provisions of this standard. OSHA concludes that it is equally
important for controlling contractors to pass along information about
permit space hazards to independent contractors, and to coordinate
their activities as required in this standard. Although OSHA is not
directly requiring independent contractors to share information in
accordance with the standard, OSHA expects that controlling contractors
will be able to obtain the necessary information as a result of their
control over the worksite.
    OSHA requires the controlling contractor to obtain the information
from the host employer before entry operations begin so that the
controlling contractor can share the information with the entities
specified in Sec.  1926.1203(h)(2)(ii) in time to minimize potential
employee exposure to hazards in the confined spaces. This provision was
not in the proposal; the proposal required both the host employer and
controlling contractor to share information directly with the entry
employer. (See proposed Sec.  1926.1204(a).) OSHA added this provision
to the final rule to conform to the final rule requirement that the
host employer share information with the controlling contractor rather
than the entry employer. The final standard makes it explicit that the
controlling contractor and host employer have separate duties with
respect to the same information: the controlling contractor must obtain
it under final Sec.  1926.1203(h)(2)(i) and the host employer must
share it under final Sec.  1926.1203(h)(1).
    These complementary duties also address the concerns of some

commenters that host employers are often state or local government
entities not subject to the OSH Act. (ID-78, p. 2; ID-141, pg. 3.) The
commenters expressed concern that it might be difficult for the
controlling contractor to obtain the information from a government
entity not subject to Sec.  1926.1203(h)(1), and that the host's
failure to provide the information could subject the controlling
contractor to heightened liability. In such cases, OSHA expects the
controlling contractor to exercise due diligence in attempting to
obtain the information from the host employer, and believes that most
hosts will provide it when the controlling contractor explains that it
needs the information in order to perform the job safely and in accord
with law.
    Final Sec.  1926.1203(h)(2) is similar to the corresponding
provisions for general industry confined spaces with a few
distinctions. General industry Sec.  1910.146(c)(8)(i) requires the
host employer to share the specified information with ``the
contractor.'' This final rule requires an exchange of the same
information, but Sec.  1926.1203(h)(2) requires the controlling
contractor to exchange that information with both the entity entering
the permit space and with other contractors working around the permit
space.
    The general industry rule requires the host employer to inform
other employers that they can conduct permit-space entry only by
complying with a permit-space program meeting the requirements of the
standard (see Sec.  1910.146(c)(8)(i)). There was no specific parallel
in the proposed construction rule. This final rule also does not
contain a specific parallel requirement because the entry employer's
duty to use a valid permit program is explicit in Sec.  1926.1203(d).
    OSHA has clarified the requirements for communication with entities
whose activities outside a confined space may affect workers inside the
space. Many commenters found the terminology of the general industry
rule (referring to work ``in or near permit spaces'' in Sec.
1910.146(c)(8)(iii)) and the proposed rule (referring to ``employers''
in proposed Sec.  1926.1209(b)(3).) confusing in the context of a
construction worksite.\16\ Therefore in this final rule, OSHA refines
this requirement by requiring the controlling contractor to provide the
information to other entities on the worksite when the activities of
these other entities could foreseeably result in a hazard within the
confined space. This information-exchange requirement also is similar
to the information-exchange requirement in Sec.  1926.65(b)(1)(iv)
(Hazardous waste operations and emergency response). Both rules require
employers to inform contractors and subcontractors about hazards of the
work the contractor will be performing, including hazards of the
worksite.
---------------------------------------------------------------------------

    \16\ For a discussion of the term ``near'' see the overview of
Sec.  1926.1205 in this preamble.
---------------------------------------------------------------------------

    OSHA designed this requirement to protect authorized entrants and
others who are part of the permit-space entry process (e.g., the
attendant) from a wide variety of potential activities, including those
that may be beyond the scope of the permitting process. Therefore, the
information-exchange requirement applies to activities outside the
permit space that could foreseeably result in a hazard within the
permit space, either alone or in conjunction with the activities inside
the space. Examples include use of a heavy gas that could enter the
space and cause oxygen deficiency or sparks from a welding operation
outside the space that could ignite flammable gas inside a confined
space. To prevent the creation of confined-space hazards, final Sec.
1926.1203(h)(4) supplements this requirement by requiring the
controlling contractor to coordinate the activities of entities either
entering the permit space or engaged in actions that could foreseeably
result in a hazard within the space.
    Paragraph (h)(2)(i). As noted above, final Sec.  1926.1203(h)(2)(i)
requires the controlling contractor to obtain from the host employer,
before permit-space entry, the host's information regarding permit-
space hazards and previous entry operations. OSHA included this
provision in the final rule as part of the change to limit the host
employer's involvement in the information-exchange process, and to
centralize the role of the controlling contractor. The controlling
contractor needs this information for dissemination to entities
entering permit spaces (final Sec.  1926.1203(h)(2)(ii)), and to
fulfill its duty to coordinate permit-entry activities with other work
occurring in and around the permit space (see final Sec.
1926.1203(h)(4)).
    Paragraph (h)(2)(ii). The final rule requires the controlling
contractor to pass along the information it received from the host
employer about the permit spaces on the worksite. The controlling
contractor is at the hub of the information exchanges in the final
rule, so this step is critical to ensuring that the host employer's
information reaches the entities entering the permit space and others
whose work may create hazards inside the permit space. The parallel
provision of the proposed rule, Sec.  1926.1204(a)(1), was potentially
duplicative and ambiguous because it required the controlling
contractor and host employer to provide the same information to the
same entities.
    Final Sec.  1926.1203(h)(2)(ii)(A) and (B) require the controlling
contractor to share with the entities entering the permit space, and
any other entity at the worksite whose activities could foreseeably
result in a hazard in the permit space, the information that the
controlling contractor received from the host employer, as well as any
additional information the controlling contractor has about the topics
listed in paragraphs (h)(1)(i) through (iii) (i.e., the location of
permit spaces, the hazards in those spaces, and any previous efforts to
address those hazards). These paragraphs are substantively similar to
the general industry requirements at Sec.  1910.146(c)(8)(ii) and
(iii). Having information about the previously identified hazards in a
space will help the entry employer ascertain whether those hazards
still exist.
    For employers or other entities whose activities could foreseeably
result in a hazard in the confined space, this information will improve
their ability to assess whether those activities will create such a
hazard, to avoid creating the hazard or to minimize any hazard they
create, to prevent their employees' unauthorized entry into a permit
space, and to help them prepare for coordination of their activities
under final Sec.  1926.1203(h)(4).
    Final Sec.  1926.1203(h)(2)(ii)(C) is similar to the general
industry standard at Sec.  1910.146(c)(8)(iii) in that it requires the
controlling contractor to share with each specified entity any
precautions or procedures that the host employer, controlling
contractor, or any entry employer implemented earlier for the
protection of employees working in permit spaces. This provision also
is similar to the proposed standard at Sec.  1926.1204(a)(2)(iii). This
final provision requires the controlling contractor to notify the
specified entity of the procedures currently used, or previously used,
at the permit space, thereby alerting each new entering entity to
information that it can use to improve its entry plans and permit
program. This provision does not require the controlling contractor to
develop entry programs for its contractors.
    One commenter urged OSHA to alter the information-exchange
requirements in proposed Sec.  1926.1204(a) by requiring the
controlling contractor to share all information about precautions or
procedures implemented by any employer within a given permit space,

not merely the precautions and procedures the host employer or
controlling contractor implemented for that space (ID-220, pg. 16).
OSHA agrees, and the final rule requires controlling contractors to
share this information because it is likely to be helpful to subsequent
entry employers as they assess the spaces and develop their own
procedures. This information may also reduce the amount of time it
takes subsequent entry employers to develop their own entry procedures.
The controlling contractor's experience with a permit space includes
information gathered from other entry employers and other sources; the
controlling contractor will share this information with subsequent
entry employers. If the information about previous procedures came from
an entry employer who worked on projects before the controlling
contractor became involved, then the controlling contractor would
obtain that information from the host employer. If the previous
procedures came from an entry employer who worked under the controlling
contractor, then the controlling contractor would have obtained the
information pursuant to other provisions of this rule.

Examples of Pre-Entry Information-Exchange Duties of Host Employers and
Controlling Contractors

    Example 1.  A controlling contractor is walking the worksite and
notices a significant amount of water pooling so that it might enter
an underground permit space. The controlling contractor must alert
the subcontractor working in that space of the potential for water
entering the space or weakening the structure, and must also inform
other entities in the area whose activities could foreseeably result
in a hazard inside the confined space (e.g., entities whose
activities may be contributing to the pooling water, may convey an
electric charge through the water into the confined space, or may
weaken the structure around the confined space to allow the water to
enter the space).
    Example 2.  The controlling contractor hires a subcontractor to
apply a flammable epoxy coating to the walls of a confined space;
the subcontractor does so under a permit program, and then cancels
the permit in compliance with this final rule. The controlling
contractor must inform subsequent employers entering the space about
the application of that epoxy and the procedures used to address
hazards in the space.
    Example 3.  If a host employer stored hazardous chemicals in a
confined space during a period when leaching of the chemicals could
occur, the host employer must disclose that previous use of the
space.
    Example 4.  The controlling contractor hires a welder to weld a
new structure inside a fully-enclosed above-ground permit-required
confined space. The welder sets up a ventilation system that
complies with all applicable OSHA requirements. The controlling
contractor also hires a different subcontractor to perform unrelated
excavation work 75 yards away from the permit space. The controlling
contractor must alert the excavation contractor to the fact that a
welder is working in the confined space, that the space has been
designated a permit space and must not be entered by any of the
excavation contractor's employees, and that the welder is relying on
a ventilation system that must not be impacted by the excavation
contractor's activities, such as by blocking the ventilation system
or by operating heavy machinery, generators, etc. in such a way that
their fumes could enter the confined space. In this example it is
foreseeable that the excavator might otherwise place dirt from the
excavation (the ``spoil pile'') in a location that could interfere
with the welder's ventilation system, or add fumes into the confined
space. Either action would foreseeably result in a hazard in the
permit space. However, absent some other abnormal condition such as
an underground gas pipeline running between the excavation site and
the permit space, the controlling contractor would not need to
ensure any coordination between the excavating activities and the
welding activities because the excavation itself (aside from the
placement of the spoil pile) is 75 yards away and would not
foreseeably result in a hazard in the permit space.

    In example 1, the entry employer might not be aware of the hazard
from the pooling water or of other hazards that could arise from the
activities of others outside the site in conjunction with the pooling
water. In examples 2 and 3, both types of information could be critical
to employers performing subsequent welding or other tasks that might
ignite remaining fumes or release vapors inadvertently.
    These information exchanges, in combination with separate OSHA
requirements that entry employers share specific information about the
permit spaces with controlling contractors, will ensure that each
``downstream'' employer (the employer performing the permit-space
entry) receives important information about the relevant permit space
in time to address hazards that could endanger employees it directs.
    One commenter questioned whether the information duties would apply
to all information--both written and oral--the host employer or
controlling contractor may receive, rather than merely information that
is readily available (ID-153, pg. 18). The obligations in this final
rule apply to all information, including both written and oral
information the host employer or controlling contractor receives about
hazards or potential hazards in a permit space. It is the
responsibility of the host employer and controlling contractor to
retain this information, which protects employees who are performing
permit-space work, and to communicate this information to entry
employers and the others identified in the standard.
    A different commenter asserted that employers will have difficulty
managing and recording the information they are required to communicate
(ID-078, pg. 2). However, the record indicates that many construction
employers already are following the general industry confined spaces
standard, which requires host employers to share similar information
(see Sec.  1910.146(c)(8)(ii) and (c)(8)(iii)). This final rule also
does not prescribe how employers are to gather, record, or maintain
this information. This commenter urged OSHA to provide a database of
relevant information that all employers could access; however, such an
action is beyond the scope of this rulemaking.
    The National Association of Home Builders asserted that the
information-exchange requirements would not be beneficial in the
context of residential construction because conditions change too
rapidly (making it likely that the information will be inaccurate when
exchanged), and that the ``small likelihood that the provision would
ever be of any use to employee safety'' should not outweigh the
``burden of compliance'' in residential construction (ID-117, pg. 20).
This comment misses the point: this is an important safety issue
because the information exchange protects workers from exposure to
harmful conditions. The rapidly changing confined-space conditions on
residential construction sites is a major reason OSHA is requiring
these information exchanges. Moreover, only the presence of a permit-
required confined space triggers the information-sharing requirements,
and every entry into a permit-required confined space, by definition,
exposes the entrants to a hazardous atmosphere or other serious hazard
absent the measures implemented through the permit program. The
commenter offers no support for the assertion that sharing information
to help entry employers identify these hazards as quickly as possible,
and before employee exposure occurs, would not be of ``any use to
employee safety.'' In light of the record as a whole, OSHA believes
that there will be an important safety benefit, and, therefore, does
not find the commenter's argument persuasive.
    The same commenter offers another reason for objecting to the
information-sharing requirement: On large commercial construction
projects, it is common to exchange information at the start of the
project, but this information

may be incomplete or partial (ID-117, pg. 20). In some cases, as
construction progresses, the controlling contractor obtains more
information as it becomes available. Consequently, this commenter
asserted that the controlling contractor or host employer will exchange
information with the entry contractor in a piecemeal fashion unless
OSHA requires the entry employer to request all of the information
available (See also ID-219.2, pg. 37 (marked as pg. 34)). The
commenter's suggested approach to avoiding piecemeal information
exchanges is to have the controlling contractor or host employer
withhold relevant information if the contractor does not request it.
This approach is contrary to the purpose of this paragraph: To ensure
that employers have as much information as possible, and in a timely
manner, when preparing to work safely in a confined space.
Subcontractors are not likely to be aware of hidden dangers, and are,
therefore, unlikely to request information about them. To protect their
employees working inside a confined space, subcontractors would likely
submit a pro forma request for information to the controlling
contractor and host when they initially begin work at any site, but it
is not clear that such a process would be substantively different from
the approach specified in this final rule, except that it would be
involve an extra step.
    In any event, OSHA has specified when the controlling contractor
must share the information: ``before entry operations begin.'' The
controlling contractor must share the information obtained from the
host employer, and any other information that the controlling
contractor gathered from other sources (e.g., previous entries into the
same space as part of the same construction project), with the entry
employer before entry. If such permit-space work is to occur near the
midpoint of a project, a single conversation shortly before the
evaluation and entry may fulfill the requirements of the final rule.
There is no reason the controlling contractor cannot send all of the
information at once rather than sending updated information in a
piecemeal fashion as the commenter noted, as long as the information is
shared with the entry employer prior to entry. The key parts of the
provision are that the controlling contractor remains informed, and
ensures that the information is conveyed to the entrants. Therefore,
employers involved in permit-space entry on construction worksites have
flexibility to decide the manner in which to exchange this information
(e.g., whether orally or in writing, whether the entry employer or
controlling contractor initiates the exchange); however, they all have
a duty to ensure that they share the information.
    Paragraph (h)(3)--Pre-entry information-sharing duties of entry
employers.
    This provision, which sets forth the information-exchange
requirements for entry employers, is similar to the proposed provision
and to the corresponding provision for general industry confined spaces
standard at Sec.  1910.146(c)(9), although it uses slightly different
terminology. Here, OSHA uses the term ``entry employer'' to clarify
that the paragraph applies to employers who perform permit-space entry
operations. And as in the rest of this section, the controlling
contractor, rather than the host employer, is the focal point of the
information exchange. OSHA believes that these requirements will
contribute significantly to the increased safety and health of the
employees of entry employers involved in permit-space entry operations.
    Paragraph (h)(3)(i). This provision requires an entry employer to
obtain information about the permit-space entry operations from the
controlling contractor, and works with final Sec.  1926.1203(h)(2),
which requires the controlling contractor to share information about
permit-space entry operations with the entry employer. OSHA believes
that the reciprocal obligations in this final rule, which are
consistent with the general industry standard, will increase the
effectiveness of the information exchange by placing the duty to share
this information on both parties. Both employers will now have the duty
to exchange information, although they will likely accomplish their
duties in a single interaction. The information exchange will ensure
that the entry employer understands the type of space it will be
evaluating, and will allow it to anticipate the permit-space hazards
that may be present during entry.
    Paragraph (h)(3)(ii). The final rule requires an entry employer to
inform the controlling contractor of the permit-space program that the
entry employer will follow, including information about any hazards
likely to be confronted or created in each permit space. This exchange
must take place prior to entry to ensure that the controlling
contractor is informed of all the hazards in a timely manner and can
take action, if needed, to prevent an accident or injury before entry
operations begin. OSHA expects this exchange to occur after the
employer has completed its assessment of the permit space, which is
generally necessary to identify the hazards in the space and ensure
that a proper permit-space program is selected. Consistent with the
approach in the proposed rule, separating this pre-entry exchange from
the subsequent entry report required by Sec.  1926.1203(h)(5)(ii)
clarifies that these two information exchanges must take place at two
distinct stages of permit-entry operations.
    One commenter objected to the proposed requirement that the entry
employer inform both the controlling contractor and host employer of
the procedures the entry employer planned to use in the permit space.
The commenter asserted that the proposed provision was ``an unnecessary
burden [that] in some cases may be infeasible'' (ID-124, pg. 6). This
final rule eliminates the requirement that the entry employer share
this information with the host employer, eliminating any difficulties
an entry employer may have communicating with a host employer, and is
consistent with the rule's overall designation of the controlling
contractor as the focal point of the information-exchange process. As
explained elsewhere, the controlling contractor needs this information
to coordinate entry as necessary, and the exchange provides the
controlling contractor with another opportunity to inform the entry
employer about the hazards of the permit space as required by Sec.
1926.1203(h)(2).
    Paragraph (h)(4)--Coordination duties of controlling contractors
and entry employers. Final Sec.  1926.1203(h)(4) requires controlling
contractors and entry employers to coordinate permit-space entry
operations in two circumstances: (1) When more than one entity performs
entry operations at the same time, or (2) when permit-space entry is
performed at the same time any activities that could foreseeably result
in a hazard in the permit space are performed. The controlling
contractor and each entry employer have separate duties under this
provision, and each can be cited for failing to perform its part of the
coordination. Similar obligations were included in the proposal, but
were not stated as clearly as they are here, and also are present in
the general industry standard. Minor differences between this final
rule and the general industry and proposed rules are matters of
terminology or reflect the key role of the controlling contractor in
this construction rule.
    There is a need to coordinate entry operations whenever multiple
entities are performing work simultaneously in or around a permit-space
because of the

possibility that one entity's activity might create a hazard for
workers employed by a different entity (e.g., welding next to the
application of a flammable coating). The purpose of this provision is
to protect employees from foreseeable hazards that could result from a
lack of coordination between entry entities in the permit space, or
with entities outside the space whose activities could create hazards
inside the permit space. This paragraph works in concert with the
requirement that entry employers inform the controlling contractor of
the permit-space program that the employer will use and the hazards
they are likely to encounter in the space, including hazards created
after entry. The controlling contractor can use this information to
coordinate the entry operations to ensure safety for all workers in the
space.
    It is important for the controlling contractor to participate in
each coordination effort because construction worksites are constantly
evolving, with multiple employers performing work. Consequently, the
controlling contractor, as the employer with overall responsibility on
the worksite, is in the best position to coordinate the entry
operations. This provision also requires the entry employer to
coordinate entry with the controlling contractor because it is the
entry employer who evaluates a confined space, who will have employees
it directs entering the space, and who may have the most current
information about the space.
    For example, a properly informed controlling contractor will be
aware of excavation work on a site directly above an underground permit
space, and will coordinate work to ensure that no employees are in the
permit space when the excavation work could foreseeably cause part of
the underground space to collapse. Similarly, the controlling
contractor must ensure that, when an employer is using a crane in the
vicinity of a permit space, lifts are planned and implemented so that
the crane would not be carrying its load over an occupied permit space
or its entry/exit. In those scenarios, the entry employer would be
responsible for informing the controlling contractor when it plans to
have employees inside the permit space. Coordination would typically
involve the controlling contractor scheduling the activities
appropriately, working with all of the employers involved to ensure
that they adhere to the schedule, implementing a plan to remove the
employees from the permit space at the appropriate times, and
designating locations to keep the employees clear of the load during
the lifting operation.
    This coordination requirement responds to a concern that proposed
Sec.  1926.1204(d) did not account for the fact that work taking place
near a permit space can create hazards that could harm other employers'
employees inside the space (ID-210, pg. 317-18). The commenter raising
this concern provided an example of an employer that uses gas that is
heavier than air near a confined space; such a gas could create an
atmospheric hazard in the space by displacing oxygen.
    OSHA agrees with this comment and the final standard requires the
type of coordination that will address this concern. It specifically
requires the controlling contractor to coordinate entry operations of
any entities whose activities could foreseeably result in a hazard in
the confined space. This requirement is consistent with the
requirements of final Sec. Sec.  1926.1204(k) and 1926.1210(f). Final
Sec.  1926.1204(k) requires an entry employer to account for such
coordination as part of its permit program, while final Sec.
1926.1210(f) requires the entry supervisor to determine, on
transferring responsibility for permit operations, that entry
operations remain consistent with the terms of the entry permit and
that entry conditions are acceptable.
    Other commenters objected that controlling contractors are not in
the best position to coordinate because they often are not on the site
to provide coordination, do not have the knowledge or experience to
correctly identify the hazards of a permit space, and may not know of
the planned entry (ID-117, pg. 21; ID-075, pg. 6). These commenters
also argued that if the final standard requires coordination, such
coordination should be between the involved host employer and entry
employer(s), as is the case under the general industry standard (ID-
117, pg. 22; ID-075, pg. 6).
    OSHA disagrees with these comments. An employer that meets the
standard's definition of controlling contractor has ``overall
responsibility for construction at the worksite.'' As noted earlier,
other commenters agreed that controlling contractors were better suited
than host employers to serve at the center of this process in
construction activities. (ID-210, pg. 315-20; ID-220.2, pg. 14-15). By
virtue of their responsibility for the entire worksite, controlling
contractors schedule and coordinate activities among different
subcontractors to ensure that they perform construction tasks in the
correct sequence, in the proper manner, and with minimal delay between
the steps on a project. The vague hypothetical scenarios presented by
the commenters do not persuade the Agency that the coordination
required by this final rule is a significant departure from the type of
coordination required on a regular basis under existing work practices.
Accordingly, OSHA concludes that controlling contractors, as the
entities actually managing construction activities at a worksite, are
better able than host employers to coordinate the activities of the
other employers whose employees work in or around a permit space.
Coordination of entry operations under final Sec.  1926.1203(h)(4) is a
critical component of this standard.
    Nevertheless, OSHA has structured the coordination provision in the
final rule to minimize additional responsibilities and provide
appropriate flexibility for controlling contractors. If the controlling
contractor's employees will not enter the permit space, the controlling
contractor may fulfill its coordination duty by relying on information
provided by entry employers. The controlling contractor does not
necessarily have to be on the site at all times or have expertise on
permit space hazards to coordinate entry operations, just as the
controlling contractor does not need to be on site at all times to
coordinate material deliveries or subcontractor assignments. In
addition, the final rule does not specify how the controlling
contractor and entry employers must coordinate entry operations.
Controlling contractors and entry employers may coordinate entry
operations using any method that is effective, and this coordination
need not involve a lengthy process.
    One commenter expressed a concern that the coordination
requirements would impose strict liability on controlling contractors
for safe permit-space entry operations, meaning that the controlling
contractor would be liable for another employer's breach of safety
policy (ID-141, pg. 2). The final rule does not impose strict liability
or any responsibility to ensure other contractors' compliance with the
standard. Controlling contractors who are not entry employers have
information sharing and coordination duties.
    Another commenter asserted that, in an effort to comply with this
coordination duty, the controlling contractor may impose redundant and
unnecessary safety measures on other employers to protect the
controlling contractor from liability (ID-120, pg. 2). This comment is
speculative and unsupported by specific examples, so it is difficult
for the Agency to respond to it other than to note that the final rule
does not impose duplicative

requirements on employers, nor does the final rule require the
controlling contractor to do so. OSHA believes that the final rule
provides employers with sufficient flexibility in discharging their
coordination duties. This flexibility should reduce duplication of
effort and any associated costs.
    Lastly, this commenter asserted that it would be difficult for a
controlling contractor to fulfill the coordination duties absent
explicit contractual authority to do so. Id. But under this final rule,
controlling contractors are the only employers at a worksite that
``have overall responsibility'' for the site, so they are in the best
position to coordinate the work schedule. If controlling contractors
prefer to augment their authority through contractual provisions with
subcontractors or host employers, this final rule does not prevent them
from doing so.
    Paragraph (h)(5)--Post-entry duties of controlling contractors and
entry employers. This paragraph, which imposes obligations similar to
those in the general industry standard, requires the controlling
contractor to debrief an entry employer at the end of entry operations
about the permit-space program followed and any hazards confronted or
created during entry operations, and then relay appropriate information
to the host employer. It also requires the entry employer to share the
same information with the controlling contractor. These requirements
serve three purposes. First, they ensure that the controlling
contractor requests the information. Second, they establish an
affirmative duty for the entry employer to provide this information.
Third, they ensure that the host employer will receive information
relevant to future permit-space entries. The intent is for entry
employers to identify and share information about additional hazards,
new procedures, or other new information not previously identified in