[Federal Register Volume 59, Number 141 (Monday, July 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16976]


[[Page Unknown]]

[Federal Register: July 25, 1994]


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Part II





Department of Labor





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Occupational Safety and Health Administration



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29 CFR Part 1915




Confined and Enclosed Spaces and Other Dangerous Atmospheres in 
Shipyard Employment; Final Rule
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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1915

[Docket No. S-050]

 
Confined and Enclosed Spaces and Other Dangerous Atmospheres in 
Shipyard Employment

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

ACTION: Final rule.

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SUMMARY: The previous Subpart B of part 1915 sets out requirements for 
work in explosive and other dangerous atmospheres in vessels and vessel 
sections and applies to shipbuilding, ship repairing, and shipbreaking 
operations and to related employment. The final rule being promulgated 
today extends the protection afforded by these previous rules to 
employees entering any confined or enclosed space or working in any 
other dangerous atmosphere in or out of a shipyard. The final rule also 
simplifies and clarifies some of the requirements in the previous 
standards.
    The final rule includes requirements for a shipyard competent 
person, a Marine Chemist, a Certified Industrial hygienist, or a Coast 
Guard authorized person to evaluate conditions within a confined or 
enclosed space and to institute measures to ensure that entrants are 
protected. It also contains requirements for posting unsafe spaces, for 
safe performance of cleaning, cold work, and hot work, and for 
classifying a person as a shipyard competent person.

EFFECTIVE DATE: The Final Rule becomes effective on October 24, 1994.

ADDRESSES: In compliance with 28 U.S.C. 2112(a), the Agency designates 
for receipt of petitions for review of the standard the Associate 
Solicitor of Labor for Occupational Safety and Health, Office of the 
Solicitor, room S4004, U.S. Department of Labor, 200 Constitution Ave. 
NW., Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT: Mr. James F. Foster, U.S. Department 
of Labor, Occupational Safety and Health Administration, room N3647, 
200 Constitution Ave., NW., Washington, DC 20210 (202-219-8148).

SUPPLEMENTARY INFORMATION: The principal authors of this final rule are 
Joseph V. Daddura, Project Officer and Odet Shaw, Office of Maritime 
Standards; Michael B. Moore, Office of Fire Protection Engineering and 
Safety Systems; Paul Bolon, Office of Regulatory Analysis: and Claudia 
Thurber, Project Attorney, Office of the Solicitor, U.S. Department of 
Labor.

Table of Contents

I. Background
II. Summary and Explanation of Final Rule
III. Statutory Considerations
IV. Summary of Final Regulatory Impact Analysis, Regulatory 
Flexibility Certification, and Environmental Impact Assessment
V. Effective Date
VI. Information Collection Requirements
VII. Federalism
VIII. State Plans
IX. Authority

I. Background

A. History of the Regulation

    In May 1971, the Occupational Safety and Health Administration 
(OSHA), under authority granted by section 6(a) of the Occupational 
Safety and Health Act of 1970 (OSH Act, 84 Stat. 1590; 29 U.S.C. 
655(a)), adopted established Federal standards issued under section 41 
of the Longshore and Harbor Workers' Compensation Act (44 Stat. 1444, 
as amended; 33 U.S.C. 941), as standards applicable to ship repairing 
(29 CFR part 1915), shipbuilding (29 CFR part 1916), and shipbreaking 
(29 CFR part 1917) operations. Additionally, other Federal standards 
and national consensus standards were similarly adopted as general 
industry standards (29 CFR part 1910) and were made applicable to all 
aspects of shipyard operations not specifically covered by parts 1915, 
1916, and 1917. On April 20, 1982 (47 FR 16984), parts 1915, 1916, and 
1917 were consolidated into a single part 1915, for shipyard 
employment. The consolidated set of standards, entitled ``Occupational 
Safety and Health Standards for Shipyard Employment,'' eliminated 
duplicate and overlapping provisions within the former three parts, but 
did not alter any substantive requirements. The consolidation had no 
effect on the applicability of the general industry standards, in part 
1910, to hazards or conditions in shipyard employment not specifically 
addressed in the shipyard standards.
    On November 29, 1988, OSHA published a proposed rule in the Federal 
Register (53 FR 48092) that would revise its previous standards on 
explosive and other dangerous atmospheres in vessels and vessel 
sections, contained in Subpart B of part 1915. The proposed standards 
covered safe entry into and work on board vessels and vessel sections 
in shipyards. The NPRM proposed the following revisions to the previous 
Subpart B:
    * Expanding the scope so that the entire subpart applied to all 
phases of shipyard work on board vessels and vessel sections;
    * Adding several definitions; changing the sequence of testing so 
that requirements for oxygen, flammability, and toxicity testing are 
presented in that order (the proposal would not, however, have required 
testing in that order);
    * Increasing the oxygen content required for unprotected confined 
or enclosed space entry from 16.5 percent by volume to 19.5 percent by 
volume; adding a requirement that spaces containing concentrations of 
toxic contaminants above the permissible exposure limit be labeled 
``Not Safe for Workers'';
    * Adding a requirement for hot work that the concentration of 
oxygen not exceed 22 percent by volume; adding a requirement to label 
spaces if those spaces contain, or are adjacent to a space containing, 
concentrations of flammable gases or vapors at or above 10 percent of 
their lower explosive limit; and
    * Adding two new appendices to aid employers and employees.
    The NPRM also proposed a revision of Sec. 1915.7, Competent Person. 
The previous Sec. 1915.7, which is contained in Subpart A of the 
Shipyard Standards, defines a competent person for the purposes of 
Subparts B, C (Surface Preparation and Preservation), D (Welding, 
Cutting, and Heating), and H (Tools and Related Equipment). The 
proposed revision was intended to eliminate the paperwork burden 
involved in designating competent persons, to clarify the skills 
required of them, and to simplify requirements relating to logging of 
inspections and tests.
    The notice of proposed rulemaking (NPRM) gave interested persons 
until February 27, 1989, to submit comments with respect to the 
proposal, to file objections, and to request a hearing. OSHA received 
over 40 comments in response to the proposed rulemaking. There were no 
hearing requests, and no hearing was held.
    A short time after the shipyard proposed rule (Subpart B) was 
published, in November 1988, the Shipyard Employment Standards Advisory 
Committee (SESAC) was established to provide OSHA with guidance in 
revising its shipyard standards and in developing a vertical standard 
for the shipyard industry. At several SESAC meetings, the proposed 
rules in Subpart B were on the agenda.
    Subsequently, on June 5, 1989 (several months after the comment 
period closed for the proposed revision of Subpart B), OSHA published a 
proposed rule for permit-required confined spaces in general industry 
(54 FR 24080). This general industry permit space proposal was intended 
to apply to land-side (that is, other than on vessels or vessel 
sections) operations within shipyards, including all operations and 
work areas, such as fabricating shops, machine shops, and staging 
areas. As a result, shipyard employers would have been required to 
comply with one set of standards for shipboard operations (part 1915, 
Subpart B) and another for land-side operations (part 1910, 
Sec. 1910.146).
    The general industry permit space proposal was discussed at several 
SESAC meetings with a view toward incorporating applicable requirements 
into a vertical confined space standard for the entire shipyard. This 
would make it unnecessary for the general industry standard to apply to 
hazardous atmospheres in confined spaces in shipyards, as had been 
proposed in the 1910 rulemaking.
    At SESAC's meeting of April 25-26, 1990, the Committee recommended 
that the scope of the proposed shipyard standard on vessels and vessel 
sections be expanded to include all confined and enclosed space 
operations within the shipyard (Tr. 102, 4/25/90). The committee also 
recommended that the title of the subpart, originally called 
``Explosive and Dangerous Atmospheres in Vessels and Vessel Sections,'' 
be changed to clarify that this standard addresses all confined and 
enclosed spaces and dangerous atmospheres encountered in shipyard 
employment. Additionally, SESAC recommended that several provisions 
similar to those proposed for general industry be added to subpart B to 
make it a comprehensive standard for shipyard employment. The 
provisions they recommended included a paragraph covering training 
requirements and duties of confined space entrants; a new paragraph on 
self-rescue and rescue teams; and a new paragraph addressing the duties 
of employers with respect to on-site contractors. As recommended by 
SESAC, the additional provisions would make subpart B a comprehensive 
set of requirements applicable to the hazards posed by confined and 
enclosed spaces and dangerous atmospheres encountered throughout 
shipyard employment.
    In response to issues raised in various comments submitted to the 
docket concerning the general industry permit-required confined spaces 
proposal and to enable OSHA to place the SESAC recommendations into the 
subpart B rulemaking record, the Agency reopened the subpart B record 
for additional comment (57 FR 28152). In the notice reopening the 
record, which was published on June 24, 1992, OSHA invited public 
comment on seven issues. These issues were:
    (1) Whether or not land-side confined and enclosed spaces and other 
dangerous atmospheres should be treated separately from spaces in 
vessels and vessel sections.
    (2) What kind of training should shipyard confined space workers 
receive.
    (3) Whether or not subpart B should require attendants for shipyard 
confined spaces.
    (4) What should be a shipyard employer's duty with respect to 
rescue services.
    (5) What should be a shipyard employer's duty with respect to 
contractors and other employers.
    (6) Whether or not hot work permits should be required.
    (7) What are the costs associated with applying requirements from 
the generic confined spaces standard to shipyards.
    Interested persons were given until September 22, 1992, to submit 
comments. OSHA received 53 comments in response to the notice reopening 
the record on the revision of subpart B.
    The final rule on general industry permit-required confined spaces 
was published in the Federal Register on January 14, 1993 (58 FR 4462). 
Shipyards were omitted from the scope of the final general industry 
standard because the Agency felt that it would be more appropriate to 
address them in the revision of subpart B of part 1915. The 
relationship between subpart B and Sec. 1910.146 and OSHA's reasons for 
adopting a separate rule in subpart B are presented in the summary and 
explanation discussion of the scope and application section for subpart 
B (Sec. 1915.11).
    The information OSHA relied upon to prepare the Notice of Proposed 
Rulemaking (NPRM), comments received in response to the (NPRM), to the 
notice of the reopening of the record, and the exhibits (including the 
written transcripts of relevant SESAC meetings) submitted during the 
period allowed for such submissions, constitute the rulemaking record 
for this proceeding. The entire record was carefully considered in the 
preparation of this final rule.

B. Significant Risk

    The Occupational Safety and Health Administration (OSHA) has 
determined that there is a significant risk to the health and safety of 
workers who enter confined spaces in shipyards. According to the most 
recent data from the Bureau of Labor Statistics (BLS), SIC 3731 (Ship 
building and Repairing) has the highest lost workday case incidence 
rate for injuries of any industry (``Occupational Injuries and 
Illnesses in the United States by Industry, 1991,'' Bureau of Labor 
Statistics, May, 1993).
    The industry as a whole therefore poses the highest risk of injury 
from all hazards for its employees in the U.S. Within shipyards, 
confined space operations are one of the riskiest activities, which is 
why the industry developed its own effective confined space procedures 
that were adopted by OSHA as subpart B in 29 CFR part 1915 in the early 
1970s.
    At the present time, work in confined spaces on vessels is covered 
by the current shipyard confined space regulations in subpart B of part 
1915, but work in ``land-side'' confined spaces is not. This work on 
land-side operations is therefore not currently addressed by a specific 
OSHA regulation. These operations were originally included in the scope 
of the proposed general industry confined space rule (Sec. 1910.146) 
but were omitted in the final rule. In the preamble to that final rule, 
the Agency noted its intention to cover confined spaces, both on 
vessels and on land, in its revision of subpart B of part 1915. (58 FR 
4471)
    Confined space work on ships is extremely hazardous, and accidents 
and fatalities still occur when the procedures of subpart B are not 
adhered to. OSHA has recorded 20 deaths in the shipyard and boat-
building industries from 1983 to 1992 from confined space accidents. 
The Agency has concluded that the new elements in final subpart B will 
address non-compliance and lack of discipline in applying subpart B and 
will reduce significant risk in confined and enclosed spaces and other 
dangerous atmosphere work. These new elements include training, duty to 
employers (contractors), and rescue. In addition, the Agency concludes 
that other additions in the final will reduce risk in confined and 
enclosed spaces and other dangerous atmospheres work, including: 
specifying the order of testing of atmospheres, increasing the required 
oxygen content from 16.5 percent to 19.5 percent by volume, restricting 
oxygen content of spaces for hot work to 22 percent by volume, and 
posting notification if spaces contain or are adjacent to spaces that 
contain, concentration of flammable gases or vapors at or above 10 
percent of there LEL.

II. Summary and Explanation of the Final Rule

A. Introduction

    The final rule consists of two parts--a revision of the previous 
shipyard competent person requirements found in subpart A and a 
revision of the requirements for explosive and other dangerous 
atmospheres found in subpart B. In this section of the preamble, OSHA 
is providing a brief explanation of these two revisions to help explain 
the final rule, together with a brief overview and explanation of the 
revised standards. A later section will provide a full summary and 
explanation of individual provisions, with complete details and 
discussion of the rulemaking record.
    OSHA is revising Sec. 1915.7, which sets out requirements for the 
designation and qualification of competent persons. Under this section, 
employers must designate one or more competent persons. The employer 
must provide a roster of competent persons, which must contain the 
names of these persons and the dates of their training. Competent 
persons are required to know and understand the requirements of subpart 
B (confined and enclosed spaces and other dangerous atmospheres), C 
(surface preparation and preservation), D (welding, cutting, and 
heating), and H (tools and related equipment); to know the locations 
and designations of spaces where work is to be performed; to have the 
ability to calibrate and use test equipment and perform the tests 
required by subparts B, C, D, and H; to be able to evaluate whether 
spaces need to be tested further by a Marine Chemist, Certified 
Industrial Hygienist, or Coast Guard authorized person; to have the 
ability to understand and carry out instructions and other information 
provided by Marine Chemists, Certified Industrial Hygienists, or U.S. 
Coast Guard authorized persons; and to have the ability to maintain the 
records required by Sec. 1915.7. The final rule eliminates the 
requirement for the employer to complete OSHA Forms 73 (Designation of 
Competent Persons) and 74 (Log of Inspection and Tests by Competent 
Person); however, the employer must continue to keep records of all 
testing performed under subparts B, C, D, and H.
    OSHA is also revising subpart B of part 1915. This subpart sets out 
requirements for safe entry into and work in shipyard confined spaces, 
enclosed spaces, and other dangerous atmospheres. The provisions of 
this subpart apply to spaces that might contain oxygen-deficient, 
oxygen-enriched, flammable, or toxic atmospheres. Examples of such 
spaces include spaces that have been sealed, spaces that contain or 
have contained materials that are flammable, toxic, corrosive, or 
irritant, and spaces that are adjacent to these spaces. These spaces 
must be tested by a competent person to determine whether or not it is 
safe for an employee to enter into and work within or on the space.
    The revised subpart B uses a two-tiered approach for evaluating the 
hazards posed by confined and enclosed spaces and dangerous 
atmospheres. The initial evaluation of all spaces is performed by a 
shipyard competent person. When this evaluation discovers hazards 
greater than those that a competent person is capable of handling, the 
services of a Marine Chemist or certified industrial hygienist are 
necessary. The shipyard competent person and these other qualified 
individuals work in tandem to ensure the safe entry into and work in 
confined and enclosed spaces and other dangerous atmospheres.
    If the tests demonstrate that it is safe, then employees may enter 
the space. If the tests show that it is not safe, then the space must 
undergo further evaluation by a Marine Chemist or certified industrial 
hygienist, and corrective action must be taken before employees may 
enter. After further evaluation, the space must be designated as ``Not 
Safe for Workers--Enter with Restrictions'' (for example, when 
ventilation is necessary to maintain flammable concentrations below 10 
percent of the lower explosive limit of a gas or vapor) or ``Not Safe 
for Workers'' (for example, spaces with atmospheres that are 
immediately dangerous to life or health). Spaces designated as ``Not 
Safe for Workers--Enter with Restrictions'' or ``Not Safe for Workers'' 
must be posted with their designation so that employees do not enter 
the spaces accidentally.
    Employees who enter confined or enclosed spaces or dangerous 
atmospheres must be trained to perform their work safely. The standard 
requires training in hazard recognition, in the use of protective 
equipment, and in self-rescue techniques. The employer must certify 
that entrants have been trained before they are allowed to enter 
confined and enclosed spaces or dangerous atmospheres. In addition, 
employers must provide for rescue, either by having an on-site rescue 
team or by arranging for the use of outside rescue services.
    A space that has contained a flammable or toxic substance must be 
cleaned before it can be made ``Safe for entry'' without restrictions. 
The final rule sets requirements for performing the necessary cold work 
(such as cleaning, scraping, inspecting the structure, and surveying 
the space) usually to prepare the spaces for hot work. First, residues 
of hazardous materials must be removed (for example, flammable liquids 
are pumped out, then the space is cleaned). The atmosphere within the 
space must be tested for flammability, and these tests must be repeated 
as often as necessary throughout the course of work to ensure that the 
concentration of flammable gases and vapors is in a safe range. (These 
tests are in addition to the tests required before entry.) The standard 
also requires ignition sources to be controlled or eliminated during 
cold work to limit further the possibility of explosion or fire.
    If hot work is to be performed, confined and enclosed spaces and 
dangerous atmospheres are classified in two groups. If the spaces 
contain or have contained flammable liquids or gases or if the spaces 
are adjacent to such spaces, then a Marine Chemist or Coast Guard 
authorized person must test and certify the space as safe for hot work. 
Other types of confined and enclosed spaces and hazardous atmospheres 
must be tested for safety by a competent person before hot work is 
allowed.
    The standard also contains provisions for maintaining safe working 
conditions. Pipelines that carry hazardous materials must be blocked or 
flushed and cleaned to prevent hazardous materials from discharging 
into a space. The space must be tested periodically to ensure that safe 
working conditions are maintained. Additionally, work operations must 
be halted and the space exited when conditions change and the space no 
longer meets the criteria specified by the Marine Chemist or Coast 
Guard authorized person for safe work in or on the space.
    The standard sets requirements for the posting of confined and 
enclosed spaces and dangerous atmospheres. The signs must be understood 
by all employees working in the area and must be posted at the means of 
access to the work area.
    The following summary and explanation of the individual provisions 
within the standard discusses the important elements of the final 
standard, explains the purpose of the individual requirements, and 
explains any differences between the final rule and previous standards. 
This section also discusses and resolves issues that were raised during 
the rulemaking period, significant comments received as part of the 
rulemaking record, and substantive changes from the language of the 
proposed rule. References in parentheses are to exhibits (Ex.) and 
transcripts (Tr.)1 in the rulemaking record.
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    \1\ Transcript of the SESAC meeting of September 2-3, 1992, 
Baltimore, MD.
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B. Subpart A, Sec. 1915.7--Competent Person

    In this final rule, OSHA is revising various requirements related 
to the designation and use of competent persons. Among the revised 
provisions are the following: allowing an employer to avoid designating 
competent persons if their tasks are always performed by a Marine 
Chemist; allowing employers to select the form in which they may keep 
records on competent persons; clarifying the criteria competent persons 
must meet; and simplifying the way the competent person's records of 
tests and inspections may be kept. In this regard, and as proposed, 
OSHA is only revising Sec. 1915.7, which establishes both the duty for 
employers to designate competent persons and the criteria for 
designating such persons. The definition for competent person in 
Sec. 1915.4 remains the same. The duties of competent persons, other 
than the duties contained in Subpart B and addressed below in this 
rulemaking, also remain the same.
    In addition to substantive and editorial revisions to the 
regulatory text of Sec. 1915.7 contained in the final rule, OSHA has 
reorganized the paragraphs for clarity and coherence. OSHA prefers to 
place paragraphs addressing the scope or application of a regulation at 
the beginning of the applicable paragraphs, sections, or subparts of 
that regulation. The previous paragraph addressing the application of 
Sec. 1915.7 is contained in paragraph (d) located at the end of 
Sec. 1915.7. To be consistent with other OSHA rulemaking, OSHA has 
redesignated the paragraphs of Sec. 1915.7 so that the previous 
paragraph (d) entitled, ``Application,'' becomes new paragraph (a) in 
the final rule. Previous paragraphs (a), (b), and (c) have been 
redesignated (b), (c), and (d), respectively.
    Application. Paragraph (a) of the final standard sets forth the 
application of Sec. 1915.7 that was previously contained in paragraph 
(d) as discussed above. In addition, editorial changes have been made 
to improve the language. For example, the old paragraph specified that 
application would be to ``employers engaged in general ship repair, 
shipbuilding and shipbreaking'' while in the new paragraph the general 
inclusive term ``shipyard employment'' is used. The coverage provided 
to employees by the new language is identical.
    Designation of a competent person. In paragraph (b)(1), OSHA 
continues the requirement in old paragraph (a)(1) of Sec. 1915.7 that 
the employer designate at least one competent person for the purpose of 
testing the atmospheres of work spaces in shipyard employment unless 
all of the employer's testing under Subpart B is performed by an NFPA 
Certified Marine Chemist.
    OSHA also proposed to delete ``National Fire Protection Association 
Certified Marine Chemist'' in previous paragraph (a)(1) and to replace 
it with ``Marine Chemist.'' The phrase ``National Fire Protection 
Association Certified'' which modifies ``Marine Chemist'' is redundant 
since the term ``Marine Chemist'' will be defined in the final rule as 
``an individual who possesses a current Marine Chemist Certificate 
issued by the National Fire Protection Association.''
    OSHA proposed to allow an employer to avoid designating competent 
persons when the employer states that atmospheric testing is done by 
other qualified individuals, who include NFPA Certified Marine 
Chemists. Some commenters (e.g., Exs. 6-3, 6-12, 6-15) asserted that 
competent persons were as capable as the Marine Chemist in performing 
the atmospheric tests required in Subparts B, C, D, and H. For example, 
Bay Shipbuilding Corp.


(Ex. 6-15) commented:

    If an employer is just dealing with a common element like high 
flash point fuels, oxygen content, carbon monoxide, or hydrogen 
sulfide, which are easily detectable with electronic measuring 
devices, you do not need a skilled chemist, provided you have a well 
trained and equipped competent person.

    OSHA agrees that a competent person is capable of testing 
atmospheric conditions and certifying spaces for entry, and that Marine 
Chemists are certainly capable of performing that testing. However, the 
proposal would also have allowed the employer not to designate a 
competent person if the testing were done by a Coast Guard authorized 
person. OSHA has determined that this would not promote adequate safety 
because the Coast Guard authorized person may not have been trained to 
have all the skills and knowledge of a competent person. In fact, Coast 
Guard authorized persons are only allowed to authorize someone to test 
and certify a space ``Safe for Hot Work.'' (See the text of 46 CFR 
35.01-1(a) through (c), 71.60(c)(1), and 91.50-1(c)(1) in Appendix B to 
subpart B). A shipyard that relied only upon Coast Guard approved 
persons would not have an individual who had all the skills and 
knowledge necessary to protect employees from atmospheric hazards in 
confined and enclosed spaces and other dangerous atmospheres. 
Therefore, consistent with the previous standard, an employer can only 
avoid designating a competent person(s) if the employer states that all 
testing will be done by a Marine Chemist.
    In paragraph (b)(2), OSHA has carried forth most of the 
requirements of previous paragraph (a)(2), which addressed the 
recording of information on employees who have been designated 
competent persons. An employer is still required to keep a list of his 
or her competent persons, but the employer will have more flexibility 
in determining the form of the record, and instead of being required to 
send the list to the OSHA area office, employers will be required to 
maintain the list and make it available upon request.
    Paragraph (a)(2) of the previous rule required the employer to 
indicate on a ``Designation of Competent Person'' (OSHA 73 form) either 
the names of employees designated as competent persons or that the 
prescribed functions of a competent person would always be carried out 
by a NFPA Certified Marine Chemist. In addition, a new OSHA 73 form had 
to be completed when additions or changes were made to the information 
concerning persons designated as competent persons and that it be filed 
with the local OSHA area office.
    The exception in paragraph (b)(1) which allows an employer to 
designate ``any person who meets the applicable portion of the criteria 
[for competent persons] set forth in paragraph (c)'' in certain 
situations was in the previous standard at Sec. 1915.7(d) Application.
    OSHA proposed that the employer prepare a ``certification record,'' 
that would include the employer's name, the identification of the 
designated competent person or a statement that a Marine Chemist or a 
Coast Guard authorized person would be used, the date of training, and 
that the employer maintain the most recent record on file. Coast Guard 
authorized persons were also to be added to the exception from 
designating a competent person. The proposal also eliminated the need 
to use an OSHA 73 form for recording the information required by the 
standard.
    In this final rule, OSHA addresses the proposed requirements under 
three separate paragraphs. In paragraph (b)(2)(i) of the final rule, 
OSHA continues to require employers to keep a record of employees who 
have been designated as competent persons or a statement that the 
employer plans to use a Marine Chemist for the testing of atmospheres.
    Paragraph (b)(2)(ii) continues the requirement that the record of 
designated persons be maintained but adds a requirement that the 
employer make the record available for inspection by OSHA, NIOSH, 
employees, or their designated representatives. This is consistent with 
other OSHA standards including Secs. 1915.1025(l)(2) and 1915.1027(o), 
and with industry practice. OSHA believes it is imperative that 
competent persons be easily identified because their skills are 
critical for the provision and maintenance of a safe workplace. In 
addition, the new requirement will facilitate enforcement of the 
maintenance of records requirement.
    OSHA has eliminated the requirement to use an OSHA 73 because OSHA 
believes that the OSHA 73 form requires more information than is 
necessary. The primary purpose of the ``Designation of Competent 
Person'' form was to provide the identification of employees designated 
as competent persons or to indicate that a Marine Chemist would be used 
to perform tests. OSHA believes that such information can be recorded 
and provided in other ways.
    Since the OSHA 73 form is no longer required, it no longer needs to 
be provided to the OSHA area office each time a change is made. Now 
employers can maintain the record of designated employees at the place 
of employment or other location, such as the main office of the 
employer, so long as the record can be provided for inspection upon 
request.
    The U.S. Coast Guard MIONY (Ex. 6-4) and Mr. Alan Spackman (Ex. 6-
5) supported the elimination of OSHA Form 73, but only if the employer 
is required to maintain the alternative method of certification. Mr. 
Spackman (Ex. 6-5) stated,

    This action is acceptable only if the employer is required to 
either post or make the competent person's certification record 
available upon request and without retaliation to employee and other 
persons who may be in the workplaces. The proposal fails to give 
this assurance.

    OSHA believes that by allowing alternative reporting media for 
identifying designated employees and by requiring that records be 
maintained and made available for inspection rather than submitted to 
the local OSHA area office, the final rule addresses Mr. Spackman's 
concerns. Bay Shipbuilding Corp. (Ex. 6-15) commented,

    Form 73 is non-productive and obsolete. The form could be 
revised to indicate information such as name, date, employment/
experience in shipbuilding/repairs/ship breaking, and schooling or 
training * * *

    Therefore, in the final rule, the employer is permitted to use any 
form or format of reporting that identifies the employees who are 
designated as competent persons and the date they were trained or that 
a Marine Chemist will be used to perform atmospheric testing. Under the 
final rule, OSHA will continue to recognize the OSHA 73 form as an 
acceptable recordkeeping medium, but will not require its use. 
Employers are free to use whatever recordkeeping medium they choose as 
long as the record contains the minimum information required in the 
final rule and can be presented for inspection upon request. By 
requiring that the record be made available for inspection upon 
request, OSHA is eliminating the need for employers to file new OSHA 73 
forms or certifications of designated persons with the nearest OSHA 
area office as required in the previous language of Sec. 1915.7(a)(2).
    In paragraph (b)(2)(iii), OSHA has reorganized the requirements of 
the certificate designating employees as competent persons, keeping 
most that were proposed, but eliminating the requirement to include the 
date the record was made and adding a requirement to include the date 
the competent person was trained. As long as the list of competent 
persons represents the current situation, there is no need to know when 
it was created. However, knowing when a competent person was trained 
will enable OSHA to determine easily that the employee was trained, 
thus facilitating enforcement and ensuring that the employer is aware 
of the date the employee was trained.
    Criteria for a competent person. In the proposal, the Agency 
requested public comment on whether there should be OSHA-approved or 
OSHA-required training for competent persons, whether competent persons 
should be certified, when such requirements could be implemented, and 
how many persons would need training and certification.
    Several commenters believed that OSHA should not require training 
or certification of shipyard competent persons. For example, the 
Shipbuilders Council of America (SCA) (Ex. 6-3) and Newport News 
Shipbuilding (Ex. 6-6), commented:

    The vast majority of confined space entry incidents are the 
result of poor application of confined space entry procedures. There 
are few, if any, confined space incidents involving errors by a 
competent person. The criteria for designating competent persons in 
the present standard in Sec. 1915.7 are sufficiently specific and 
rigorous to ensure qualified individuals, and should be retained.

    SCA (Ex. 6-3) additionally suggested that,

    OSHA should continue to offer and support Shipyard Competent 
Person training courses. However, the fact that an individual has 
taken the course alone does not ensure competency.

    Other commenters urged OSHA to institute mandatory training and 
certification (e.g., Ex. 6-14, 6-24, 6-31). For instance, NIOSH 
recommended that OSHA require and take responsibility for the 
certification and training of shipyard competent persons (Ex. 6-14).
    The U.S. Navy's Environmental Health Center (Ex. 6-31) related the 
issue of shipyard competent persons to their Gas Free Engineers by 
stating that:

    OSHA should adopt a formal policy on this issue. Naval shipyards 
currently have a 3 week Gas Free Engineer (GFE) course which is 
given to Navy personnel so that they may perform as Gas Free 
Engineering Technicians.

    Another commenter, Independent Testing and Consulting, Inc. (Ex. 6-
24) expressed this viewpoint:

    The NFPA in conjunction with OSHA has re-introduced a voluntary 
training program for Competent Persons * * *. The provision of 
training by outside agencies lifts a burden from the employer and 
the benefits outweigh the costs.
    The requirements of 1915.7 are adequate but every effort should 
be made to provide employers with the opportunity to send personnel 
to training courses which should be OSHA approved. Such approval 
should require that persons be recertified periodically, say every 
3-5 years. This would assure that competent persons keep abreast of 
changes in technology, law etc.

    OSHA received support for periodic re-training and many suggestions 
with a variety of time limits (Ex. 6-4, 6-12, 6-14, 6-21, 6-22, 6-27, 
6-28, 6-33, 6-36). For example, the U.S. Coast Guard MIONY (Ex. 6-4) 
and the Navy's Sea Systems Command (Ex. 6-12) believe that competent 
persons should attend initial training and then attend refresher 
training each year thereafter. NIOSH (Ex. 6-14) recommended that annual 
training of the competent person be required for recertification.
    Several commenters, however, believed that the criteria for 
designating a competent person should remain the same as the previous 
standard. The NFPA (Ex. 6-10), for example, stated :

    * * * Emphasis should be placed upon enforcement of existing 
requirements (the performance requirements to be designated for a 
competent person) and that formal training be directed toward the 
existing duties and responsibilities of a competent person.

    And as expressed by Delta Laboratory and Gas Testing, Inc. (Ex. 6-
35):

    * * * the present system provides a tried and tested system of 
confined space entry and work * * *. To change the basic format of 
the system would be sheer folly and would benefit the few at the 
expense of many.

    While OSHA supports the need for training requirements, OSHA agrees 
with the position of the majority of commenters that the competent 
person criteria contained in Sec. 1915.7 achieve the same result, that 
is, a highly trained individual who has knowledge of the unique aspects 
of shipyard operations and the ability to carry out and perform the 
required atmospheric tests. The criterion in paragraph (c) of 
Sec. 1915.7 requires the shipyard competent person to have the skill 
and knowledge necessary to perform atmospheric testing. Because each 
shipyard is unique, how much training a shipyard competent person must 
have and how often it must be repeated is left to the employer who is 
in the best position to determine what skills and knowledge must be 
reinforced and what resource information needs to be presented. As 
such, OSHA is of the opinion that by continuing the previous competent 
person criteria, employers will ensure that the necessary training will 
continue to be provided to shipyard employers who are so designated as 
competent persons. Furthermore, OSHA believes that this performance-
oriented approach will allow the most flexibility in ensuring the 
availability of competent person services and in ensuring that the 
unique conditions in each shipyard can be addressed.
    Paragraph (c)(1) is the same as previous paragraph (b)(1) except 
that the competent person is now required to be able to understand and 
carry out the written or oral instructions left by the Certified 
Industrial Hygienist as well as the Marine Chemist and the Coast Guard 
Authorized Person. Certificates issued by the Marine Chemist, Certified 
Industrial Hygienist, or Coast Guard authorized person are written 
instructions. OSHA had proposed to separate the requirements to 
understand certificates and to carry out verbal instructions left by 
the Marine Chemist or Certified Industrial Hygienist or Coast Guard 
authorized person but the Agency has concluded that the requirements 
are sufficiently interrelated that they can continue to be listed 
together in paragraph (c)(1).
    Paragraph (c)(2) continues the requirement of previous paragraph 
(b)(3) that competent persons have a knowledge of Subparts B, C, D, and 
H of part 1915. OSHA did not propose to change this requirement, and 
has made only an editorial change in order to improve clarity.
    Paragraph (c)(3) is the same as old paragraph (b)(4), requiring 
that competent persons have a familiarity with the structure and 
knowledge of the location and designation of spaces on the types of 
vessels on which repair work is done. OSHA did not propose to change 
this requirement but in the final rule reflects OSHA's decision to 
expand the scope of Subpart B to cover all phases of shipyard 
employment.
    In paragraph (c)(4), OSHA continues to require competent persons to 
have the ability to use and interpret the readings of oxygen 
indicators, combustible gas indicators, and carbon dioxide indicators, 
but consistent with the proposal, the Agency has added a requirement 
that the competent person be able to calibrate the testing equipment 
and that the equipment not be limited to these monitors.
    The proposed language in paragraph (b)(3) was performance-oriented 
in that it did not limit the testing equipment to the types recognized 
specifically in paragraph (b)(2) of the previous rule. As new 
technologies develop and new chemical hazards are encountered in the 
shipyard working environment, it becomes necessary for competent 
persons to use new types of environmental monitors and detectors. Skill 
in the use of this new equipment is necessary for competent persons to 
be able to identify sources of hazardous exposures in shipyard 
employment. In addition, OSHA believes that in order for the competent 
person to have the ability to read and interpret the readings of any 
type of chemical indicator that may be needed to test atmospheres in 
the shipyard, a competent person must be familiar enough with the 
instrumentation to capably calibrate it.
    In paragraph (c)(5), OSHA continues the requirement contained in 
the first portion of paragraph (b)(5) in the previous rule. Paragraph 
(b)(5) of the previous rule contains two requirements and OSHA has 
decided to divide the previous rule into two separate requirements in 
the final rule: Paragraphs (c)(5) and (c)(7). Paragraph (c)(5) requires 
that competent persons must have the capability to perform the tests 
and inspections required by Subparts B, C, D, and H of part 1915. The 
requirement in the final rule is consistent with the language proposed 
in paragraph (b)(6) of the proposal. There were no comments objecting 
to this change and OSHA considers it to be editorial.
    In paragraph (c)(6) OSHA is adding a new requirement to the final 
rule that coincides with shipyard industry practice. Paragraph (c)(6) 
requires competent persons to have the ability to evaluate spaces after 
a test to determine the need for further testing by Marine Chemists, 
Certified Industrial Hygienists, or by the U.S. Coast Guard authorized 
persons. OSHA has added this new language to make it clear that there 
may be atmospheric conditions present in the shipyard that can not be 
evaluated effectively by a person trained only to the competent person 
level and that more highly trained individuals may be needed to 
accurately evaluate an atmosphere. In such cases, OSHA believes this 
new language would make it clear that an individual such as a Marine 
Chemist, a Certified Industrial Hygienist, or a Coast Guard authorized 
person must be called for assistance.
    The State of Washington, Department of Transportation (WADOT) (Ex. 
6-26) noted the ``tremendous responsibility'' placed upon the competent 
person and even recommended further training.
    WADOT commented,

    Regarding changes to 1915.7 Competent person: Throughout the 
existing and proposed regulation, the competent person is given 
tremendous responsibility to ensure worker safety through inspection 
and testing. * * *
    * * * a requirement should be added at 1915.7(b)(8): Knowledge 
of the physical hazards and the air contaminants which may be 
produced in the course of the work to be done, the means of 
preventing employee exposure to them.'' The regulation could even go 
so far as to require the competent person to attend a 2-day training 
class certified by the National Fire Protection Association. NFPA 
maintains a list of certified classes.

    OSHA agrees that it may appear from the proposal that competent 
persons are expected to perform some duties equivalent to those of the 
Marine Chemist, Certified Industrial Hygienist, or Coast Guard 
authorized person. This was not the intent. OSHA does not believe, 
based upon the duties that are expected from a competent person, that 
it is necessary to specify the competent persons be trained by the NFPA 
as suggested by Washington State. Rather, OSHA believes the knowledge 
and training requirements in paragraph (c) are appropriate for the 
testing that a competent person is allowed to do. However, the 
competent person needs to be trained to recognize the need for more 
sophisticated assistance and must know how to call for that assistance. 
This new requirement makes it clear that competent persons, rather than 
perform all tests and evaluations alone, must have the ability to 
determine when the expert assistance of the Marine Chemist, Certified 
Industrial Hygienist, or Coast Guard authorized person is needed.
    In paragraph (c)(7) OSHA is continuing the requirement found in the 
second part of paragraph (b)(5) in the previous rule. Paragraph (c)(7) 
requires that a competent person must have the capability to maintain 
the records required by the standard. As noted earlier, OSHA has 
divided the previous requirements of paragraph (b)(5) into two separate 
paragraphs, (c)(5) and (c)(7). There were no objections to this change 
as it was proposed in paragraph (b)(6) and (b)(7). Therefore, OSHA 
considers paragraph (c)(7) to be an editorial change to previous 
paragraph (b)(5).
    Recordkeeping. OSHA has redesignated the logging of inspections and 
test requirements as paragraph (d) Recordkeeping. The changes proposed 
to the requirements of previous paragraph (c) addressing logging of 
inspections and tests were contained in paragraph (c) of the proposal.
    In paragraph (d)(1) OSHA has made substantive changes to the 
language of previous paragraph (c)(1). OSHA is requiring that the 
employer ensure that the competent person, Marine Chemist or Certified 
Industrial Hygienist performing any tests required by Subparts B, C, D, 
or H of this part, records the test locations, time, date, location of 
inspected spaces, and the operations performed, as well as the test 
results and any instructions. OSHA has combined paragraphs (c)(1) and 
(c)(2) of the proposal and eliminated the need for the OSHA 74 form. 
The new language continues the previous requirement that persons 
conducting tests and inspections record the results of those tests and 
inspections. However, it eliminates the mandated use of the OSHA 74 
form. OSHA believes that the format or instrument of the test report is 
not important, so long as the information required by OSHA is contained 
in the record.
    OSHA received a number of comments urging the Agency to allow other 
forms of reporting the atmospheric testing results in addition to the 
OSHA 74 form.
    The Navy's Sea Systems Command (Ex. 6-12) commented that,

    [Section] 1915.7(c) requires that all tests be logged on the 
OSHA Form 74. Recommend insertion of the words ``or equivalent'' to 
allow for use of locally developed (e.g. computer-generated) forms 
which include at least all of the information required by the OSHA 
Form 74.

    Marine Hydraulics International (Ex. 6-21), Colonna's Shipyard (Ex. 
6-22), S.T.A.S. (Ex. 6-37) and Moon Engineering (Ex. 6-38) agreed and 
submitted identical comments that stated:

    We suggest that the following words be added to the end of this 
paragraph: ``or equivalent.'' The OSHA 74 does not possess room for 
additional instructions to workers, and by allowing the use of an 
equivalent form, workers could be informed of other requirements 
that the Shipyard Competent Person may invoke.

    In previous paragraph (c)(1), competent persons were required to 
make a record of the locations, operations performed and the date, 
time, and results of any test they performed on a ``Log of Inspections 
and Tests by Competent Person'' (OSHA 74 form). Competent persons were 
also required under previous paragraph (c)(1) to use a separate form 
for each vessel on which tests and inspections were made. By allowing 
the use of alternative forms to record atmospheric test results, the 
employer will have more flexibility in complying. However, employees 
will be protected and OSHA will be aided in its enforcement by the fact 
that employers will still be required to maintain records of tests and 
inspections.
    In paragraph (d)(2) of the final rule, OSHA continues the 
maintenance of records requirement of previous paragraph (c)(2). OSHA 
is requiring the employer to ensure that records created to comply with 
the recordkeeping requirements of this section are posted in the 
immediate vicinity of the affected operations while work is progress 
and for a period of at least three months from the completion date of 
the specific job for which they were generated. OSHA considers the new 
language to be a non-substantive change.
    In paragraph (d)(3) of the final rule, OSHA continues the 
availability of records requirement of previous paragraph (c)(2). 
Paragraph (d)(2) requires the employer to ensure that the records 
required in this section are available for inspection by the Assistant 
Secretary, Director, employees, or their representatives while work in 
the affected spaces is in progress. The new language contains editorial 
corrections for clarity and consistency with other OSHA record 
inspection requirements. OSHA considers the changes to this paragraph 
to be non-substantive.

C. Subpart B, Sections 1915.11 through 1915.16

1. Sec. 1915.11 Scope and Application
    The scope contained in previous Sec. 1915.11 applies the 
requirements in Subpart B to vessels and vessel sections found in 
shipyards during ship repair and ship breaking; Sec. 1915.16 applies to 
ship repair only. On November 29, 1988, OSHA proposed to amend its 
shipyard standards addressing safe entry into and work within spaces 
containing explosive and other dangerous atmospheres on board vessels 
and vessel sections in shipyards (53 FR 48092). Under this proposal, 
OSHA would have applied Subpart B to all types of shipyard work on 
vessels and vessel sections, including ship building, ship repair, and 
shipbreaking. The Agency proposed extending the scope of Subpart B in 
this manner to protect employees entering and working in explosive and 
other dangerous atmospheres, regardless of the type of work they were 
performing.
    Subsequently, after the closing date for comments on this proposed 
shipyard rule, OSHA also proposed new rules for confined spaces in 
general industry (54 FR 24080, June 5, 1989). The general industry 
proposal would have had the effect of covering land-side (that is, 
other than shipboard) confined spaces in shipyards, such as piping 
systems in shops or confined spaces in staging areas.
    As noted earlier, SESAC reviewed the general industry proposal and 
made recommendations regarding its possible application to shipyard 
work. In June 1992, OSHA reopened the record for Subpart B (57 FR 
28172, June 24, 1992), to place the SESAC recommendations in the 
rulemaking record and to gather additional information on whether or 
not the proposed general industry confined spaces standard was 
appropriate for land-side confined spaces entered during shipyard work.
    The scope of revised Subpart B has been expanded so that the final 
rule covers all shipyard work, and the title of the Subpart, originally 
called ``Explosive and Other Dangerous Atmospheres in Vessel and Vessel 
Sections,'' has been changed to ``Confined and Enclosed Spaces and 
Other Dangerous Atmospheres in Shipyard Employment.'' OSHA believes 
this change more accurately reflects the scope of this Subpart, which 
now addresses all shipyard employment operations and which is not 
limited to confined spaces. The entire subpart applies regardless of 
whether shipbuilding, ship repair, or shipbreaking is being done.
    The scope of the 1988 proposal differed from the previous standard 
in two major respects:
    (1) The proposed standard would have extended coverage to employees 
in shipbuilding, who were not protected by previous Secs. 1915.12 
through 1915.16, and
    (2) the proposed standard would have extended coverage to employees 
in shipbreaking who were not protected by the previous Sec. 1915.16.
    The notice of proposed rulemaking listed two reasons for extending 
the scope of Subpart B in this manner:
    (1) That the national consensus standard corresponding to Subpart B 
(NFPA 306, Control of Gas Hazards on Vessels) imposes the same basic 
requirements to all shipyard work, regardless of whether ship building, 
ship breaking, or ship repair is being performed; and
    (2) that the protective measures required under the previous 
Secs. 1915.12 through 1915.16 are current industry practice in all 
aspects of shipyard work.
    NFPA 306 (1988) is the national consensus standard that applies to 
work covered by revised Subpart B. Like Subpart B, it contains 
requirements for atmospheric testing, for cold work and hot work, and 
for maintaining safe atmospheres for employees while shipbuilding, 
shipbreaking, or ship repairing is being performed. Under section 
6(b)(8) of the OSH Act, any standard that OSHA adopts in regard to 
atmospheric hazards on vessels must be at least as protective as the 
NFPA document unless another standard would be more consistent with the 
purpose of the act.2 Expanding the scope of the current standard 
to all of shipyard employment is consistent with the scope of NFPA 306 
and therefore providing at least equivalent protection.
---------------------------------------------------------------------------

    \2\ Section 6(b)(8) of the OSH Act reads as follows:
    Whenever a rule promulgated by the Secretary differs 
substantially from an existing national consensus standard, the 
Secretary shall, at the same time, publish in the Federal Register a 
statement of the reasons why the rule as adopted will better 
effectuate the purposes of this Act than the national consensus 
standard.
---------------------------------------------------------------------------

    Before the publication of the 1988 proposal, 30 groups, 
representing government agencies, employers, unions, and associations, 
commented on the first draft rewrite of Subpart B. All of these groups 
supported the concept of expanding Subpart B coverage to both 
shipbuilding and shipbreaking (53 FR 48094). As noted in the preamble 
to the proposal, OSHA believes that this is because the shipyard 
industry was already applying the requirements of previous Subpart B to 
the entire shipyard. In fact, the preliminary regulatory impact 
analysis identified no cost impact from the application of the proposal 
to shipbuilding, shipbreaking, and ship repair (53 FR 48104).
    In response to the 1988 notice of proposed rulemaking, OSHA 
received no comments in opposition to the extension of this coverage 
and several expressions of support for applying the standard uniformly 
throughout the shipyard (Ex. 6-3, 6-6, 6-23). The position of the 39 
commenters is best expressed by the following statements. The 
Shipbuilders Council of America (SCA) (Ex. 6-3), which represents 25 
major U.S. shipyards that employ 95 percent of shipyard production 
workers, stated:

    * * * having a single standard addressing this issue would 
achieve the objective of providing employees and employers with one 
set of rules for given situations.

    Newport News Shipbuilding (Ex. 6-6), the largest shipyard in the 
western hemisphere:

    * * * the industry treats confined spaces ashore and afloat in a 
similar manner.

    The American Waterways Shipyard Conference (AWSC) (Ex. 6-23), 
representing the interests of small- to medium-sized commercial 
shipbuilding and repair industry stated:

    AWSC is very supportive of OSHA's efforts to develop this 
vertical standard. The end product will eliminate the confusion 
which currently exists concerning the applicability of the General 
Industry Standards to the shipbuilding and repair industry, and will 
up-date all standards to the existing technology level.
* * * * *
    The alternative to the expansion of the scope of this subpart 
appears to be the institution of a different program for [shore-
side] confined spaces. To introduce a new type of confined space 
entry program into a shipyard facility which already has a workable 
program seems ludicrous. Two programs would only confuse the 
employee. By extending the current program, employees will be 
protected and will immediately recognize the program.

    OSHA has concluded that the requirements contained in revised 
Subpart B are necessary for the protection of employees exposed to 
hazardous atmospheres in shipyards, regardless of the type of work 
being performed. Hazardous atmospheres can be found in shipbuilding, as 
well as in shipbreaking and ship repair. The work practices implemented 
by employees working in vessels and vessel sections should be the same 
from one job to the next. The atmospheric hazards will basically be the 
same and the employees move from job to job within the entire shipyard, 
so the work practices should be consistent. Using one set of work 
procedures for atmospheric hazards in a shipbuilding job and another 
for the same hazards for a ship repair job would serve to confuse the 
employee and could easily lead to accidents. Therefore, revised Subpart 
B applies to shipbuilding, shipbreaking, and ship repair.
    A short time after the November 1988 publication of the proposed 
rule on Explosive and Other Dangerous Atmospheres in Vessel and Vessel 
Sections, the Shipyard Employment Standards Advisory Committee (SESAC) 
was established. SESAC was chartered to provide OSHA with guidance in 
revising, consolidating, and modernizing the varying sets of 
regulations that were being applied in the shipyard industry into what 
is ultimately intended to be a truly vertical standard for all shipyard 
employment. Shipyard employers would be required to comply with a 
single set of occupational safety and health standards as opposed to a 
mixture of shipyard and general industry standards. Consequently, the 
newly developed shipyard employment standards would apply to all 
shipyard employment regardless of the type of work being performed (for 
example, vessel repair or fabrication of railroad cars) or location 
(for example, in the traditional shipyard or ``up river'' or on sea 
trials). As a step towards this goal, SESAC recommended that the scope 
of the proposed Subpart B be expanded beyond vessels and vessel 
sections, to cover all land-side confined space and hazardous 
atmosphere situations (Tr. 101, 4/25/90).
    In order for OSHA to include SESAC's recommendations into the 
rulemaking record and to consider fully comments submitted to the 
docket concerning the general industry confined spaces proposal, OSHA 
reopened the record on Subpart B (57 FR 28152, June 24, 1992). The 
Agency raised a number of questions in the notice reopening the record. 
The most significant issue that underlines a number of the specific 
questions is rooted in the unique concept of confined space entry that 
has been the accepted practice in the shipyard industry for over 25 
years (36 FR 10466, May 29, 1971). The fundamental basis of OSHA's 
shipyard standard has been a reliance on preventing employees from ever 
being exposed to confined space atmospheric hazards. This has been 
accomplished by the built-in system of testing and ventilating that has 
become industry practice and has been very successful at preventing 
confine and enclosed spaces and other dangerous atmospheres accidents.
    The concept of a single standard, Subpart B, for all shipyard 
employment was unanimously endorsed by SESAC as well as supported by 
all of the commenters who addressed this issue in the June 1992, notice 
(Ex. 11-3, 11-4, 11-5, 11-6, 11-8, 11-10, 11-13, 11-14, 11-15, 11-16, 
11-18, 11-19, 11-20, 11-21, 11-24, 11-26, 11-29, 11-31, 11-33, 11-34, 
11-35, 11-39, 11-41, 11-48, 11-50). For example, the National Fire 
Protection Association (Ex. 11-19), a voluntary membership organization 
dedicated to the protection of people and property from fire and 
related hazards, set out this position as follows:

    NFPA favors the development of a single standard which provides 
for safety during entry and work in confined spaces within the 
shipyard.
* * * * *
    In general, application of two distinctly different standards 
for vessels and [land-side] operations would be a burden on the 
industry and would be confusing to employees. Specific points are as 
follows:
    First, * * * employees in the shipyard are familiar with the 
dangers of all confined spaces, not just those confined spaces 
associated with tanks aboard ships. This has occurred due to the 
absence of prior safety requirements for general industry.
    The shipyards have already adapted the practices and procedures 
derived from the vessel requirements and applied them to the [land-
side], as appropriate.
    Second, the shipyard industry has demonstrated the effectiveness 
of the current and proposed 29 CFR 1915, Subpart B requirements over 
the past 10 years.
    Third, requiring the 1910 general industry requirements for 
[land-side] activities instead of the current and proposed 1915 
shipyard requirements complicates the training element, by 
necessitating dual procedures. The training for both sets of 
requirements will be incompatible, since the standards each take a 
different approach--1915 Subpart B utilizes a ``performance 
oriented'' approach, while 1910.146 relies on specifications to 
achieve its objectives.

    Ingalls Shipbuilding (Ex. 11-20) agreed, stating:

    The SESAC recommendation stresses preventions, training and 
self-rescue. This approach, which relies on testing before entry and 
use of engineering controls to eliminate the hazards is, in our 
opinion, much safer than the general industry standard which 
requires the use of attendants at each confined space to summon 
rescue personnel when an emergency occurs. (SESAC'S recommendations 
put the emphasis on prevention). In addition to being safer it is 
also more economical than the general industry standard.

    The industry has adopted a single approach to working in and around 
explosive and dangerous atmospheres throughout the shipyard for several 
reasons:
    (1) The number and type of atmospheric hazards associated with 
products contained in the spaces is unpredictable. Some vessel 
repairers encounter over 100 different chemical cargoes (Ex. 11-27);
    (2) The complexity of confined spaces is increased due to the 
extensive internal structures, adjacent spaces, pipelines, vent 
systems, heating coils, and the like (Ex. 11-7, 11-27); and
    (3) The cross-contamination of previous and successive products 
complicates the atmospheric evaluation process (Ex. 11-7).
    (4) The nature of the work associated with the confined space entry 
in shipyards tends to be more complex. This work frequently involves 
hot work which can greatly affect atmospheric conditions within the 
space (Ex. 11-7, 11-27).
    Based on the record, OSHA has made a determination that a single 
standard should be applied for entry into confined and enclosed spaces 
and other dangerous atmospheres throughout the shipyard industry, 
following the Subpart B approach. OSHA has arrived at this conclusion 
for two basic reasons:
    (1) A single procedure, applicable throughout the shipyard and 
addressing hazards related to confined and enclosed spaces and other 
dangerous atmospheres will best protect employees, and
    (2) That the provisions adopted in revised Subpart B will provide 
shipyard employees with a comprehensive set of protective safety 
measures.
    A single standard applying to all shipyard confined and enclosed 
spaces and other dangerous atmospheres will provide employees with one 
procedure for working in any shipyard location, whether on a vessel or 
on land. The commenters overwhelmingly agreed that this approach would 
best protect employees (Ex. 11-3, 11-6, 11-9, 11-13, 11-14, 11-15, 11-
18, 11-19, 11-20, 11-24, 11-25, 11-26, 11-29, 11-35, 11-39, 11-41, 11-
50). OSHA agrees with these commenters that two procedures for dealing 
with confined and enclosed space and dangerous atmosphere hazards would 
confuse employees who have to implement those procedures. The Agency is 
concerned that the confusion resulting from different standards for 
shipboard and land-side spaces would actually lead to accidents rather 
than prevent them.
    As in the past, the primary focus of Subpart B will continue to be 
atmospheric hazards. Non-atmospheric hazards such as those relating to 
slips, trips, or falls are covered by other provisions of the shipyard 
standards. A more specific detailed discussion of non-atmospheric 
hazards is contained in the following paragraph.
    OSHA believes that land-side confined spaces in shipyards pose 
hazards similar in nature to those found in vessels and vessel sections 
covered by revised Subpart B. The evidence in the record demonstrates 
that the atmospheric and non-atmospheric hazards in vessels and vessel 
sections are also present in land-side confined spaces (Ex. 11-19, 11-
26, 11-27, 11-32, 11-39, 11-41, 11-47). The Agency agrees with the vast 
majority of commenters who stated that the procedures used to protect 
workers from these hazards in vessels and vessel sections could readily 
be adopted for use in land-side confined space operations (Ex. 11-1, 
11-3, 11-6, 11-9, 11-10, 11-11, 11-13, 11-14, 11-15, 11-18, 11-19, 11-
20, 11-24, 11-25, 11-26, 11-29, 11-30, 11-31, 11-32, 11-33, 11-34, 11-
37, 11-39, 11-41, 11-42, 11-44, 11-45, 11-46, 11-47, 11-49, 11-50, 11-
51).
    A few commenters stated that vessels and vessel sections pose 
greater hazards (Ex. 11-7, 11-8, 11-11, 11-13, 11-22, 11-27, 11-30, 11-
35, 11-46). They noted such differences as greater complexity with 
respect to the hazards involved in vessels and vessel sections, 
movement of the vessel (which causes movement of atmospheric hazards), 
the total number of spaces involved, the multitude of systems (for 
example, fuel, refrigeration, and compressed air) present on-board 
ships, and the interrelationships between adjacent vessel sections 
(that is, hazards in one section can affect procedures to be used in 
adjacent sections). Nonetheless, most of these commenters contended 
that the Subpart B requirements were still appropriate for land-side 
confined spaces (Ex. 11-11, 11-13, 11-30, 11-31, 11-35, 11-44, 11-46). 
They argued that the Subpart B provisions would afford employees with 
greater protection than would be provided by Sec. 1910.146, and that 
procedures necessary to comply with Subpart B were already in place in 
most shipyards.
    OSHA has concluded that it is appropriate to apply revised Subpart 
B to all phases of shipyard work. The Agency has determined, based on 
the record, that shipyard employers can readily adapt their ship-side 
procedures which already conform to these requirements, for use in 
land-side confined space entry, as well.
    OSHA has included the phrase ``regardless of geographic location'' 
in the scope only as a clarification since it has been the Agency's 
position that this section, and indeed the entire Part 1915, apply to 
inland shipyard employment.
    SESAC examined requirements proposed in the general industry 
confined space standard Sec. 1910.146, to determine to what extent that 
proposal should address shipyard work and to determine whether or not 
specific provisions within that proposal were appropriate for 
application to work in shipyard confined and enclosed spaces and other 
dangerous atmospheres. The committee agreed that a single standard 
should apply to this work and recommended the addition to Subpart B of 
several provisions based on proposed Sec. 1910.146 so that the shipyard 
standard would be as comprehensive as its part 1910 counterpart (Tr. 
102, 4/25/90). As noted earlier, OSHA reopened the record on the 
proposed revision of Subpart B to request comments on SESAC's 
recommendations in this regard, as well as to explore the possible 
expansion of the scope of Subpart B to all aspects of shipyard work. 
The issues raised in the notice reopening the record addressed how 
Subpart B could be revised to make it as protective as the general 
industry permit space standard.
    Paragraph (c)(1) of Sec. 1910.146 requires employers to evaluate 
the workplace to determine if any spaces are permit-required confined 
spaces. Paragraph (c)(6) of that standard requires employers to 
reevaluate non-permit confined spaces whenever there are changes that 
might increase the hazards to entrants. The notice reopening the record 
on Subpart B requested comments on whether or not shipyard employers 
should similarly evaluate their workplaces.
    Most commenters agreed that the shipyard standard should not adopt 
requirements comparable to paragraphs (c)(1) and (c)(6) of 
Sec. 1910.146 (Ex. 11-1, 11-3, 11-6, 11-7, 11-9, 11-10, 11-11, 11-13, 
11-14, 11-15, 11-18, 11-19, 11-20, 11-22, 11-24, 11-25, 11-26, 11-29, 
11-30, 11-31, 11-34, 11-39, 11-41, 11-42, 11-45, 11-47, 11-49, 11-50, 
11-51). They argued that proposed Subpart B was adequate since it 
already required testing before initial entry of all confined spaces 
that could contain atmospheric hazards and additional frequent testing 
to ensure that atmospheric conditions are maintained. A few contended 
that the shipyard industry treated all confined spaces alike, 
evaluating them for hazardous conditions before entry (Ex. 11-13, 11-
19, 11-31, 11-49). For example, Mr. Joseph J. Ocken (Ex. 11-31) stated:

    The present practice is to consider ANY confined space NOT SAFE 
until currently tested and posted otherwise. This is a simple fail-
safe work practice for workers. To expect every space to have been 
evaluated and posted properly invites simple error to lead to 
catastrophe. There are too many confined spaces in shipyards to 
count on 100% perfection at all times. Enclosed spaces can also 
contain confined space hazards and must be approached with suspicion 
by workers as well.

    On the other hand, a few commenters stated that OSHA should adopt 
requirements similar to those in Sec. 1910.146 for evaluating confined 
spaces (Ex. 11-2, 11-28, 11-33, 11-37, 11-38). They believed that 
evaluating confined spaces for the types and extent of hazards is a 
useful tool in any confined space program. Con-Space Communications, 
Ltd. (Ex. 11-28), argued as follows:

    Evaluation of a workplace to determine if it contains Confined 
Spaces is the very first step that an employer must take in a 
serious company wide entry program. An inventory of Confined Spaces 
would be a permanent reference which, if updated on each entry, 
could be a useful planning tool. In the event of a rescue, this 
information would be invaluable especially if the Confined Space is 
assigned a number along with a list of potential hazards associated 
with it and special equipment needed for safe entry. Physical 
attributes of the space could also be listed.

    Section 1910.146 places confined spaces into two categories: 
permit-required confined spaces and non-permit-required confined 
spaces. The purpose of paragraphs (c)(1) and (c)(6) of Sec. 1910.146 is 
to ensure that employers have properly identified confined spaces 
posing hazards to entrants. The large class of confined spaces are 
determined not to be permit entry spaces, are evaluated only as 
required in these two paragraphs. Entry into such spaces is essentially 
performed without reference to the permit entry procedures of 
Sec. 1910.146 (unless the entrants bring a hazard into the space or 
create one during entry operations).
    By contrast, Subpart B treats all confined spaces and other spaces 
that might contain a hazardous atmosphere equally. Initial testing and 
inspection, followed by continuous ventilation and further testing, is 
required of all these spaces to ensure the safety of employees working 
within them. Because of these additional protection which Subpart B 
requires on a routine bases, OSHA has determined that no separate, 
formal evaluation requirements need be adopted in Subpart B.
    Paragraph (e) of Sec. 1910.146 requires general industry employers 
to institute a permit system for permit space entry operations. This 
paragraph requires the employer to document, by means of a permit, the 
completion of measures required for the safety of entrants. A permit 
must be completed before entry is allowed into any permit space. The 
notice, reopening the record on Subpart B, requested comments on 
whether or not such permits should be required for entry into spaces 
addressed by the shipyard standard.
    The vast majority of commenters stated that a permit system as set 
out in proposed Sec. 1910.146 was unnecessary for incorporation into 
Subpart B (Ex. 11-1, 11-3, 11-6, 11-7, 11-9, 11-10, 11-11, 11-13, 11-
14, 11-15, 11-18, 11-19, 11-20, 11-22, 11-24, 11-25, 11-26, 11-29, 11-
31, 11-32, 11-35, 11-36, 11-39, 11-40, 11-41, 11-42, 11-44, 11-45, 11-
46, 11-47, 11-49, 11-50, 11-51). They argued that shipyard employee 
safety would not be increased through the imposition of such a 
requirement. Many also argued that the system in use in shipyards and 
required by proposed Subpart B was the equivalent of a permit system 
(Ex. 11-3, 11-6, 11-10, 11-11, 11-13, 11-14, 11-18, 11-20, 11-24, 11-
25, 11-26, 11-29, 11-32, 11-35, 11-36, 11-39, 11-41, 11-44, 11-49, 11-
50, 11-51). These commenters noted that the only spaces employees were 
permitted to enter were those designated as ``Safe for Workers'' after 
initial inspection and testing. For example, Moon Engineering Co., Inc. 
(Ex. 11-14), stated:

    Moon Engineering feels a permit system is necessary for any 
confined space entry aboard vessels or any land-side operations. We 
do not believe the proposed system described in 1910.146 is feasible 
for shipboard applications.
    The system, used successfully by Moon Engineering since the 
early 1970's, is simple and applicable to our operation. The 
individual shipyard shops communicate with the Safety Department on 
a daily basis and advises what spaces they will be working the 
following day. The Safety Department uses OSHA Competent Persons 
and/or NFPA certified Marine Chemist to test all spaces due to be 
worked for that particular day. The results of inspection are posted 
at the entrance of the space and highlight inspection date, time, 
tester and whether the space is SAFE FOR WORKERS/SAFE FOR HOT WORK 
or whatever the status. This designation is consistent with the 
language of the existing 1915 standard. This Log of Inspections is 
available and it is the responsibility of all employees to view this 
documentation prior to beginning their work. This system works and 
has an excellent track record.

    Other commenters believed that a permit system similar to that 
required under Sec. 1910.146(e) should be imposed (Ex. 11-2, 11-28, 11-
30, 11-33, 11-34, 11-37). NIOSH (Ex. 11-33) explained this position as 
follows:

    NIOSH recommends that entry into a confined space be by permit 
only. * * * The permit is an authorization and approval in writing 
that specifies the location and type of work to be done, certifies 
that all existing hazards have been evaluated by the qualified 
person, and that necessary protective measures have been taken to 
ensure the safety of each worker. The permit requirements will vary 
by the nature of the space, the nature of the hazard, and the work 
to be performed. All confined spaces should be evaluated by 
appropriately trained and qualified persons to determine that the 
space involved and the work to be performed will not present a 
hazard to the worker; the permit system ensures that this evaluation 
has been performed.

    OSHA has not incorporated a requirement for a formal permit system 
in the final revised subpart B. The Agency agrees with the commenters 
who stated that subpart B provides an informal permit system that 
contains evaluation mechanisms, tracking criteria, and control measures 
that are as protective as the formal one required under 
Sec. 1910.146(e). Confined and enclosed spaces on vessels and vessel 
sections that might contain a dangerous atmosphere are certified ``Safe 
for Workers'' when they are safe for employees to enter, and entry is 
not permitted until that certification. Shipyard employees are also 
trained to remain outside of any space not so certified. Additionally, 
under Sec. 1915.14(a)(1), a Marine Chemist (or, with certain 
restrictions, a Coast Guard authorized person) must inspect and test 
the space and certify its safety before work in the most hazardous 
conditions can begin. Furthermore, OSHA believes that imposing a 
Sec. 1910.146-type permit system for shipyard work because of the 
content and placement of the permits could undermine the effectiveness 
of the Marine Chemist's certificate, which is the primary vehicle for 
certifying certain spaces ``Safe for Hot Work.''
    Paragraph (d)(6) of Sec. 1910.146 requires at least one attendant 
outside a permit space while entry operations are underway. This 
attendant monitors entrants and conditions inside and outside the 
space, prevents the entry of unauthorized persons, and summons rescue 
services in an emergency. The notice reopening the record requested 
comments on whether attendants should be required for ``permit-
required'' confined spaces covered by Subpart B.
    Nearly every commenter stated that attendants were unnecessary for 
the safety of employees performing work in dangerous atmospheres or in 
confined or enclosed spaces in shipyards (Ex. 11-1, 11-2, 11-3, 11-6, 
11-7, 11-9, 11-10, 11-11, 11-13, 11-14, 11-15, 11-18, 11-19, 11-20, 11-
22, 11-24, 11-25, 11-26, 11-29, 11-30, 11-31, 11-33, 11-34, 11-36, 11-
37, 11-38, 11-39, 11-40, 11-41, 11-42, 11-43, 11-44, 11-45, 11-46, 11-
49, 11-50, 11-51). They argued that the procedures required by Subpart 
B would make spaces safe for workers and that, as a result, there would 
be no need for an attendant. Many of these commenters also contended 
that the cost of providing attendants for every entry, if such would be 
necessary, would be prohibitive (Ex. 11-1, 11-3, 11-11, 11-13, 11-25, 
11-29, 11-43, 11-44, 11-49, 11-50).
    One commenter supported a requirement for an attendant to monitor 
any confined space that was designated as a permit space (Ex. 11-28). 
Other commenters, who opposed a general requirement for attendants, 
acknowledged that there is a need for an attendant to monitor spaces 
posing unusual hazards, such as entry into IDLH atmospheres, entry by 
an employee working alone, and non-routine entry (Ex. 11-2, 11-3, 11-7, 
11-10, 11-13, 11-14, 11-15, 11-18, 11-19, 11-20, 11-24, 11-25, 11-29, 
11-30, 11-31, 11-33, 11-34, 11-41, 11-51). The statement of the NFPA 
(Ex. 11-19) typified these comments, as follows:

    NFPA believes that the permit described in proposed 
1910.146(b)(9) contains information that is not needed by entrants 
into confined spaces and could be confusing. NFPA believes that such 
a permit would not be feasible for confined spaces in the vessel 
construction and repair industry, for either vessel or shore-side 
activities. The proposed 1910.146 permit systems, described in 
1910.146(d) establishes specifications for a permit system designed 
to satisfy several problems with one form.
    Accident statistics indicate that workers do not recognize the 
dangers of confined spaces. Statistics also point out that workers 
involved in accidents have commonly been authorized to enter the 
space (source (NIOSH FACE study). Additionally, a high percentage of 
fatalities in confined space incidents are personnel attempting to 
effect worker rescue. OSHA, with this permit system, has attempted 
to alert the worker (entrant), establish a control point (person 
authorizing entry), and ensure safe rescue attempts are performed by 
specifying relevant information on one form.
    Throughout the industry, shipyards have adapted entry permit 
systems to make the system simple. Frequently, shipyards have 
incorporated a color-coded tag and sign system. The foundation for 
the various shipyard systems is linked to the Marine Chemist 
Certificate and Shipyard Competent Person Inspection Form (OSHA 74 
Log of Inspections and Tests). This allows individual shipyards to 
tailor their system to the type of confined spaces and work 
performed at their yard. In the larger shipyards, the permit and 
sign system has been incorporated throughout the yard, including 
both vessel and shore-side work sites.
    NFPA believes that a specification requiring a permit system as 
described in 1910.146 would be excessive for many shipyards since 
the nature of the spaces and hazards is so variable. NFPA also 
believes that such a requirement would not provide any increase in 
the level of safety. The key to the effectiveness of any permit 
system will be its simplicity and the training of workers on its 
implementation. The 1910.146 proposed system introduces increased 
confusion for many of the shipyard applications and will not 
necessarily result in increased safety. OSHA needs to recognize that 
the shipyard industry currently uses a dual permit system for 
documenting initial and follow-up conditions for its vessel confined 
space activities. The advantage of this system has been the lack of 
specification, thus enabling individual shipyards to adapt their 
systems with the performance requirements of current proposed 
Subpart B. This approach would work in land-side confined spaces 
within the shipyard, as well. Use of one system throughout the 
shipyard facilitates the training of all workers.

    The final revised Subpart B does not require the presence of an 
attendant for confined and enclosed spaces or for work in dangerous 
atmospheres. OSHA notes that the purpose of Subpart B is to ensure that 
a space is completely safe to enter and work in. In this regard, 
Sec. 1910.146(c)(5) of the general industry generic confined space 
standard sets detailed requirements for atmospheric testing and 
ventilation for some spaces, and also, recognizes that there are some 
permit spaces which can be made safe for entry without the need for 
written permits or attendants. Final revised Subpart B provides 
equivalent requirements for confined and enclosed spaces and for work 
in dangerous atmospheres in shipyards. If the testing requirements 
contained in Subpart B do not indicate a safe atmosphere, then entry is 
restricted to emergencies and periods of short duration to accomplish 
ventilation and additional precautions are required (such as posting 
the space as Not Safe for Workers, continuous monitoring, and the 
absence of ignition sources), by Sec. 1915.152 (such as air line 
respirators, attendants and life lines) and by Sec. 1915.94 (frequent 
checks of employees working in a confined or enclosed space or alone in 
an isolated location). Once the hazard is removed and the space is safe 
for entry, the employer is required to test frequently to monitor and 
maintain the space as safe for workers. As a result, OSHA does not 
believe it is necessary to require attendants in Subpart B as well.
    Paragraph (c)(2) of Sec. 1910.146 requires general industry 
employers to post signs or use other effective means of informing 
employees about the existence and location of and the danger posed by 
permit spaces; paragraphs (c)(3) and (d)(1) require general industry 
employers to take measures to prevent unauthorized entry into permit 
spaces; and paragraph (i)(8) requires attendants to take measures to 
keep unauthorized persons out of permit spaces. The notice reopening 
the record requested comments on whether or not shipyard employers 
should be required to take measures, such as those proposed in 
Sec. 1910.146, to prevent unauthorized entry into work areas covered by 
Subpart B.
    The commenters agreed that the systems being employed by the 
shipyard industry have been effective at preventing unauthorized access 
under the previous Subpart B (Ex. 11-3, 11-6, 11-7, 11-10, 11-11, 11-
13, 11-14, 11-15, 11-18, 11-19, 11-20, 11-24, 11-25, 11-26, 11-31, 11-
32, 11-39, 11-41, 11-42, 11-43, 11-44, 11-45, 11-49, 11-50). They 
contended that all spaces are made safe before entry and that the 
posting and training requirements proposed in Subpart B and outlined in 
the notice reopening the record would keep employees from entering 
unsafe areas. The Jonathan Corporation (Ex. 11-18) presented these 
arguments as follows:

    As a result of routine training, our employees are cognizant of 
the fact that only spaces which have been tested and posted as being 
SAFE FOR WORKERS are cleared for entry. This system has served our 
company very well. This proposal does not recognize our daily 
involvement with confined spaces.

    Mr. Joseph J. Ocken (Ex. 11-31) agreed, stating:

    Any expectation that every confined space (or enclosed space 
presenting confined space hazards) will somehow be properly 
barricaded courts disaster. My Coast Guard training emphasizes a 
straight forward safe work practice: ANY SPACE presenting confined 
space hazards must be RECENTLY tested by THOROUGHLY trained and 
equipped individuals and have appropriate ENGINEERING CONTROLS 
applied BEFORE ENTRY. Any other space, REGARDLESS OF BARRIERS, is 
treated as UNSAFE.

    OSHA concurs with these comments. The revised Subpart B protects 
employees from ``unauthorized'' entry through the use of several 
protective techniques. First, Sec. 1915.12(d) requires employees to be 
trained to recognize the characteristics of confined spaces and the 
hazards involved. They are also required to be trained to perform their 
duties safely (Sec. 1915.12(d)) and to understand all warning signs and 
labels (Sec. 1915.16(a)). Second, confined spaces and spaces containing 
dangerous atmospheres must be tested and found safe before entry under 
paragraphs (a), (b), and (c) of Sec. 1915.12. Third, under these same 
paragraphs, spaces found not to be safe for entry are labeled ``Not 
Safe for Workers''. Under the unique conditions of shipyard employment, 
these measures are effective at preventing unauthorized employees from 
entering spaces containing dangerous atmospheres. To illustrate, when a 
space is marked ``Not Safe for Workers,'' the only authorized entrants 
are those who are entering for emergencies or for short durations to 
accomplish ventilation to make the space safe. It is not until the 
space is retested and certified as ``Safe for Workers'' that employees 
are allowed to do work in the space.
    Under the general industry standard, only a confined space 
containing a hazard that may expose an employee to the risk of death, 
incapacitation, or impairment of ability to self-rescue is deemed to be 
a permit space, requiring the adoption of the protective measures set 
out in Sec. 1910.146. The general industry standard addresses hazards 
that are exacerbated by the lack of adequate means of access and egress 
and by the enclosing nature of the space. By contrast, Subpart B treats 
all confined and enclosed spaces and other dangerous atmospheres that 
could present an atmospheric hazard as having this potential, and 
requires protective measures before entry takes place. In the shipyard 
context, this approach provides an effective means of protecting 
employees who must enter confined and enclosed spaces and other 
dangerous atmospheres.
    Section 1910.146 also requires employers to consider non-
atmospheric hazards, such as engulfment and internal configuration of 
the space, in determining whether or not a confined space is a permit 
space. The proposed revision of Subpart B did not address non-
atmospheric issues. Because OSHA was considering the expansion of 
Subpart B to land-side confined spaces in lieu of applying 
Sec. 1910.146, the notice reopening the record requested comments on 
whether or not Subpart B, as expanded, would adequately address non-
atmospheric hazards that may be encountered in confined space work 
(Specific Issue B-1, Question J).
    The vast majority of commenters agreed that Subpart B, in 
combination with other requirements in part 1915, adequately protected 
employees (Ex. 11-2, 11-3, 11-6, 11-9, 11-13, 11-14, 11-15, 11-18, 11-
19, 11-20, 11-24, 11-25, 11-26, 11-28, 11-29, 11-30, 11-31, 11-35, 11-
37, 11-39, 11-40, 11-41, 11-45, 11-47, 11-49, 11-50). These commenters 
contended that non-atmospheric hazards are readily identified, are 
covered by other part 1915 standards, and are the responsibility of 
line supervisors and employees. The statement of Ingalls Shipbuilding 
(Ex. 11-30) was typical of these comments:

    Ingalls believes that such non-atmospheric hazards are 
adequately addressed by their current respective standards.
    Ingalls further believes the foreman or supervisor of the 
workers is responsible for the above listed non-atmospheric hazards. 
Subsequent to an 'inspection by the competent person, non-
atmospheric hazards may develop as a result of ongoing work (for 
example, a welder installing his welding leads which create a 
tripping hazard). The foreman or supervisor is responsible for the 
health and safety of his employees and for the actions of his 
employees on a continual basis throughout the workday. Non-
atmospheric hazards are obvious without the need for special 
instrumentation, whereas, the tests performed by the competent 
person are used to detect unseen atmospheric hazards using 
specialized instrumentation.

    The Department of the Navy (Ex. 11-30) noted that while Subpart B 
does not address non-atmospheric hazards, it should not be amended to 
address such hazards:

    As proposed, Subpart B does not address other dangers in 
confined spaces. However, the dangers from slips, falls, 
electricity, machine guarding etc. are not unique to or necessarily 
intensified in confined spaces. Precautions to guard against general 
non-atmospheric shipyard hazards should be specified for the entire 
shipyard (all workplaces). Therefore, it is recommended that Subpart 
B not be expanded to include general safety hazards; rather, these 
should be covered elsewhere in 29 CFR 1915 (e.g., Subpart E/Access 
and Egress, Subpart F/General Working Conditions, and/or Subpart M/
Fall Protection).

    OSHA does believe that a confined or enclosed space can exacerbate 
the risk faced by an employee working in a confined space containing 
serious non-atmospheric hazards. If an employee is injured in a 
confined space the limited means of access and egress makes emergency 
medical assistance problematic. For this reason, OSHA adopted language 
in Sec. 1910.146 for general industry so as to define permit-required 
confined space ``in the broadest possible terms'' so that employers are 
required to protect affected employees from any serious hazards which 
may be confronted in a permit space [58 FR 4478-4479].''
    The Agency believes that shipyard employees will be adequately 
protected under revised Subpart B without incorporating additional 
requirements directed towards non-atmospheric hazards. As part of the 
pre-entry test, the competent person is required to make a visual 
inspection of the confined or enclosed space. At this time, they can 
alert the employer to non-atmospheric hazards that are addressed by 
other standards. For further information, see the discussion of visual 
inspection in the preamble to Sec. 1915.12 below.
    The notice reopening the record on Subpart B also requested 
comments on whether or not OSHA should adopt various provisions from 
proposed Sec. 1910.146 that SESAC had recommended for inclusion in 
revised Subpart B. These provisions included those on training, rescue, 
and exchanging information between employers. The summary and 
explanation of Sec. 1915.12 discusses comments received on these 
provisions. Additionally, OSHA requested comments on whether any other 
requirements from proposed Sec. 1910.146 would be appropriate for 
inclusion in revised Subpart B. No one suggested the adoption of any 
proposed Sec. 1910.146 provisions other than those relating to 
attendants, permits, and unauthorized entry discussed earlier.
    Paragraph (b) of Sec. 1915.11 sets definitions for revised Subpart 
B. These definitions, derived in large part from NFPA 306, are intended 
to facilitate compliance with the revised standard.
    Previous Subpart B contains no definitions. The few definitions 
relating to the previous subpart are contained in Sec. 1915.4, which 
defines the following Subpart B related terms: hazardous substance, 
competent person, confined space, enclosed space, hot work, and cold 
work.
    In Sec. 1915.11(b), the NPRM proposed to add definitions 
specifically applicable to revised Subpart B. This paragraph in the 
proposed rule included the terms ``competent person'' and ``hot work,'' 
which as noted previously, are also defined in existing Sec. 1915.4. 
The NPRM also raised issues regarding the definitions of ``inert or 
inerted atmospheres,'' ``Marine Chemist,'' and ``Not Safe for 
Workers.''
    The definitions contained in revised Subpart B are discussed in the 
following summary and explanation of Sec. 1915.11(b). This discussion 
provides a brief explanation of each defined term, justifies any 
differences between the existing or proposed definitions and those 
contained in the final rule, and discusses comments received regarding 
the three terms that were raised as issues in the NPRM (no substantive 
comments were received on any other terms proposed in Sec. 1915.11(b)).
    ``Adjacent spaces'' means spaces bordering another space in all 
directions. The wording of the definition of this term has been revised 
editorially from the definition in the proposal for consistency with 
NFPA 306. Additionally, the final rule defines the term ``adjacent 
spaces,'' whereas the proposal defined the term ``adjacent compartments 
or spaces,'' because the final rule does use the term ``adjacent 
compartments''.
    The final rule includes a definition of the term ``Assistant 
Secretary'', which means the Assistant Secretary of Labor for 
Occupational Safety and Health or his or her designated representative. 
This term is used in revised Subpart B, so OSHA has adopted a 
definition based on Sec. 1910.2.
    OSHA has not carried forward into the final rule the proposed 
definition of ``bulk''. The Agency believes that a definition of this 
term is not necessary to the meaning of the standard.
    ``Certified Industrial Hygienist'' (CIH) means an industrial 
hygienist certified by the American Board of Industrial Hygiene. This 
definition is unchanged from the proposal.
    A ``Coast Guard authorized person'' is one who meets the U.S. Coast 
Guard regulations concerning persons designated to perform the 
functions of a Marine Chemist when a Marine Chemist is not reasonably 
available. The definition in the final rule is essentially the same as 
that contained in proposed Sec. 1915.11(b); however, substantive 
requirements proposed in that definition have not been carried forward, 
as they are inappropriate for use in a definition.
    OSHA has not carried forward into the final rule the proposed 
definition of ``competent person''. As noted earlier, this term is 
defined in Sec. 1915.4, and this definition is appropriate for 
application to revised Subpart B.
    ``Dangerous atmosphere'' means an atmosphere that may expose 
employees to the risk of death, incapacitation, impairment of ability 
to self-rescue (i.e., escape unaided from a confined or enclosed 
space), injury, or acute illness. Although no definition of this term 
was proposed, the Agency believes that it is essential for employers 
and employees to know what a dangerous atmosphere is in the application 
of revised Subpart B.
    The final rule includes a definition of the term ``Director'', 
which means the Director of the National Institute for Occupational 
Safety and Health or his or her designated representative. This term is 
used in revised Subpart B, so OSHA has adopted a definition based on 
Section 3 of the OSH Act.
    The term ``entry'' refers to the act by which a person passes 
through an opening into a space and to the work performed in that 
space. Entry is considered to have occurred as soon as any part of the 
entrant's body breaks the plane of an opening into the space. This term 
was not included in the proposed revision of Subpart B, but OSHA 
believes that its inclusion is necessary for clarity. The definition 
has been taken from Sec. 1910.146(b).
    The term ``Enter with Restrictions'' denotes a space where entry is 
only permitted under specified conditions of engineering controls, 
personal protective equipment, clothing, and time. Although this term 
was not defined in the proposal, the definition of this term has been 
included in the final rule to help clarify when entry is permitted and 
when it is prohibited.
    In the NPRM, the term ``Not Safe for Workers'' was used to describe 
compartments or spaces that do not meet the minimum safety criteria 
necessary to permit unrestricted entry. The term was used to describe 
either of two situations that occur. In the first, the space was not 
safe for workers to enter unless personal protective equipment was worn 
or unless the length of time of employee exposure was limited. In the 
second, the space was not safe for entry under any circumstances, 
regardless of whether personal protective equipment was worn. To 
address this seeming contradiction, OSHA requested comments on the 
issue of whether or not a separate category of ``Safe with 
Restrictions'' should be included in proposed Subpart B.
    Three commenters opposed the adoption of an additional category of 
spaces (Ex. 6-4, 6-5, 6-8). They argued that the term ``Safe with 
Restrictions'' might not be understood by all workers and that the term 
``Not Safe for Workers'' was not only more appropriate, but safer as 
well. For example, Sound Testing, Inc. (Ex. 6-8), stated:

    If everyone, or even if most people, in the shipyards wore 
respirators, I would see ``safe with restrictions'' as a primary 
designation. But, that's not the case. Moreover, some one third of 
shipyard workers are reputed to be functionally illiterate. Thus, 
``Safe with Restrictions'' needlessly complicates certificate 
language. In the most simple terms, a tank is either safe or not 
safe, and the workman deserves to be told straightforwardly which is 
the case.

    Other commenters supported the additional designation (Ex. 6-10, 6-
13, 6-15, 6-18, 6-21, 6-22, 6-23, 6-24, 6-27, 6-28, 6-33, 6-34, 6-37, 
6-38). They believed that the extra designation would recognize 
existing safe work practices under the OSHA standard. For example, the 
U.S. Department of Transportation (Ex. 6-13) stated:

    Engineering controls are not always capable of reducing confined 
space hazards to ``safe'' levels. By recognizing and addressing the 
existing use of certificates with restrictions, additional 
protection may be realized. Particular restrictions will be placed 
on a space after consideration by the Marine Chemist and an 
employer's representative.
    Such certificates should not be issued for convenience or for 
the purpose of avoiding the use of preferred control measures. In 
addressing this practice under Part 1915, OSHA should specify that 
entering such spaces is only allowed when preferred engineering 
controls are used to the greatest extent feasible and found to be 
inadequate.

    Some of these rulemaking participants believed that the term 
``Enter with Restrictions'' was a more appropriate description of the 
type of location involved (Ex. 6-10, 6-21, 6-22, 6-23, 6-24, 6-27, 6-
28, 6-33, 6-34, 6-37, 6-38). NFPA (Ex. 6-10) stated their reasoning 
behind this suggested term, as follows:

    NFPA supports the addition of some provision for ``restricted 
entry''. NFPA does not support the use of the word ``safe'' in this 
case since it may be misconstrued and it would be inconsistent with 
the ``Enter With Restrictions'' designation in NFPA 306.

    OSHA agrees with the commenters who supported the use of the term 
``Enter with Restrictions''. The Agency believes that this term better 
describes the intent of requirements that are intended to limit rather 
than strictly prohibit employee entry under all conditions. For 
example, Sec. 1915.12(c)(3) recognizes that a Marine Chemist or a 
Certified industrial hygienist may designate a space as ``Enter with 
Restrictions'' and may provide a list of protective measures to be 
taken before entry is allowed. Additionally, this term is consistent 
with the terminology used in NFPA 306, with which most shipyard 
employers are familiar and with which they are complying. For these 
reasons, OSHA is incorporating this term in revised Subpart B wherever 
entry is permitted under certain conditions and is using the term ``Not 
Safe for Workers'' wherever entry is strictly forbidden.
    ``Hot work'' means any activity involving fire- or heat-producing 
operations, such as riveting, welding, and burning. The definition of 
this term also indicates that grinding, drilling, abrasive blasting, 
and similar spark-producing operations are also considered to be hot 
work unless they are isolated from atmospheres containing a 
concentration of any flammable or combustible substance greater than 10 
percent of the lower explosive limit of that substance. While the 
definition in the final rule is substantially the same as that 
contained in the proposed standard, it has been editorially revised for 
clarity. It should be noted that the definition of ``hot work'' in 
revised Subpart B will be applied to Subpart B whereas the definition 
of the same term in Sec. 1915.4 applies to the rest of part 1915.
    ``Immediately dangerous to life or health''3 (IDLH) means an 
atmosphere that poses an immediate threat to life or that is likely to 
result in acute or immediate severe health effects. This definition has 
been adopted without substantive change from the proposal.
---------------------------------------------------------------------------

    \3\The definition of ``immediately dangerous to life or health'' 
in Sec. 1910.146 reads as follows:
    Immediately dangerous to life or health (IDLH) means any 
condition that poses an immediate or delayed threat to life or that 
would cause irreversible adverse health effects or that would 
interfere with an individual's ability to escape unaided from a 
permit space.
---------------------------------------------------------------------------

    ``Inert or inerted atmosphere'' means an atmospheric condition in 
which:
    (1) The oxygen content of the atmosphere is maintained at a level 
less than or equal to 8 percent by volume or at a level of 50 percent 
of the amount required to support combustion, whichever is lower, or
    (2) The space is flooded with water and the vapor concentration of 
flammable or combustible materials in the free space above the water 
line is less than 10 percent of the lower explosive limit for the 
material. This definition has been adopted without substantive change 
from the proposal.
    In the NPRM, OSHA raised the issue of whether or not the proposed 
definition of ``inert or inerted atmosphere'' was appropriate, 
especially with respect to the maximum permissible level of oxygen. The 
Agency asked for guidance on whether or not specific oxygen levels for 
various substances should be published along with the rule.
    The persons who commented on this issue felt that OSHA should not 
publish specific levels in the final rule (Ex. 6-10, 6-18, 6-23, 6-24, 
6-27, 6-28, 6-33, 6-34). They argued that since a Marine Chemist would 
be the person authorizing and monitoring the inerting of atmospheres 
and since Marine Chemists are thoroughly familiar with the selection of 
appropriate procedures involved, specifying oxygen levels in the OSHA 
standard was unnecessary. Endorsing this view, NFPA (Ex. 6-10) stated:

    Inerting in the marine industry is overseen by Marine Chemists 
in accordance with the requirements of the ``Control of Gas Hazards 
on Vessels--NFPA 306 (1988).'' The provisions for inerting as 
contained in NFPA 306, 2-3.7(a), are based upon the industry 
accepted practice for inerting. It takes into account the 
theoretical lower limit for the amount of oxygen to support 
combustion, which is approximately 11% by volume for most petroleum 
products. The procedure specifies either reducing the oxygen content 
to 8% by volume or 50% of the amount to support combustion, 
whichever is less. In practice, because the value of 50% of the 
amount to support combustion is usually less than 8% by volume, an 
even greater margin of safety is achieved. The minimum oxygen for 
combustion values are contained in Appendix B, ``Explosion 
Prevention Systems--NFPA 69 (1986)''. NFPA 306 requires in 2-3.7(a), 
(c) that the selection and disposal of the inert gas medium be 
acceptable to the Marine Chemist who provides specific instructions 
on his/her Marine Chemist Certificate.
    NFPA supports the addition of the definition for inerting and 
the levels as specified in the definition since these levels are 
industry accepted and provide for an adequate level of safety when 
administered by a Marine Chemist in accordance with NFPA 306.

    The Marine Chemist Association, Inc. (Ex. 6-34), agreed stating:

    The Marine Chemist Association feels that inerting is not a 
procedure free of potential hazards and that inerting for hot work 
should only be attempted with the proper skill to determine each of 
the above mentioned factors. If OSHA provides only partial details 
of these factors, it may lead to unauthorized personnel attempting 
the procedure outside current regulatory requirement, and could 
possibly result in the generation of hazardous situations.

    For the reasons stated by NFPA and the Marine Chemist Association, 
OSHA is not specifying the precise levels of oxygen acceptable under 
the definition of ``inert or inerted atmosphere'', either directly in 
the definition or in an appendix. Under Sec. 1915.14(a), an atmosphere 
to be inerted must be tested and certified by a Marine Chemist or a 
U.S. Coast Guard authorized person, who would be thoroughly familiar 
with the proper techniques involved. The Agency fully concurs with the 
Marine Chemist Association that setting out these levels within the 
standard itself might encourage unqualified persons to undertake the 
inerting of a hazardous atmosphere, possibly leading to a severe 
accident.
    ``Labeled'' means identified with a sign, placard, or other form of 
written communication that informs all employees of the status or 
condition of the work space to which it is attached. This term was not 
included in the proposed revision of Subpart B, but OSHA believes that 
its inclusion is necessary for clarity.
    ``Lower explosive limit'' (LEL) means the minimum concentration of 
vapor below which propagation of a flame does not occur in the presence 
of an ignition source. This definition is unchanged from the proposal.
    ``Marine Chemist'' means an individual who possesses a current 
Marine Chemist Certificate issued by the National Fire Protection 
Association. This definition is substantially the same as the one in 
the proposal.
    In the NPRM, OSHA requested comments related to the definition of 
``Marine Chemist''. Although some comments were received on this 
subject, they all related to the issue of whether or not anyone else 
could perform the duties required of a Marine Chemist. These comments 
are discussed under the summary and explanation of Secs. 1915.12(c)(3) 
and 1915.14(a)(1), later in this preamble.
    ``Nationally Recognized Testing laboratory'' (NRTL) means a 
laboratory recognized by OSHA as meeting the provisions of Appendix A 
of Sec. 1910.7. In the previous standard, OSHA referred to 
``Underwriters Laboratories'' as one of the organizations that could 
approve lamps for use in Class I, Group D atmospheres. Since OSHA has 
promulgated the NRTL standard, laboratories meeting that standard are 
the appropriate organizations to approve such lamps.
    ``Not Safe for Hot Work'' denotes a space where hot work may not be 
performed. This definition is substantially the same as the one in the 
proposal.
    ``Not Safe for Workers'' denotes a space that employees may not 
enter. The proposed definition of ``Not Safe for Workers'' contained 
criteria to be used to determine whether or not a space was safe for 
entry. OSHA has not carried these criteria forward into the definition 
of this term in the final rule. The same criteria also appeared under 
the proposed definition of ``Safe for Workers''. OSHA believes that 
removing the redundancy will help clarify revised Subpart B. (See the 
summary and explanation of the definition of ``Enter with 
Restrictions'', earlier in this preamble, for additional discussion of 
issues regarding the use of the term ``Not Safe for Workers''.)
    ``Oxygen-deficient atmosphere'' means an atmosphere having an 
oxygen concentration of less than 19.5 percent by volume. ``Oxygen-
enriched atmosphere'' means an atmosphere that contains 22.0 percent or 
more oxygen by volume. These two definitions have been carried forward 
from the proposal without substantive change.
    ``Safe for Hot Work'' denotes a space that meets the following 
criteria:
    (1) The atmosphere is not oxygen-enriched;
    (2) The concentration of flammable vapors in the atmosphere is less 
than 10 percent of the LEL;
    (3) Residues or materials within the space, under existing 
atmospheric conditions in the presence of hot work and while maintained 
as directed by the Marine Chemist or competent person, are not capable 
of producing a higher concentration of oxygen or flammable vapors than 
permitted under the first two criteria; and
    (4) All adjacent spaces have been cleaned or inerted or otherwise 
treated sufficiently to prevent the spread of fire.
    The definition in the final rule is substantively the same as the 
corresponding definition in the proposal; however, the language has 
been improved for clarity.
    ``Safe for Workers'' denotes a space that meets the following 
criteria:
    (1) The atmosphere is neither oxygen-deficient nor oxygen- 
enriched;
    (2) The concentration of flammable vapors is below 10 percent of 
the LEL;
    (3) Any toxic materials associated with cargo, fuel, tank coatings, 
inerting mediums, or fumigants are within permissible concentrations at 
the time of inspection; and
    (4) Residues or materials associated with the work authorized by 
the Marine Chemist, Certified Industrial Hygienist, or competent person 
will not produce uncontrolled toxic materials under existing 
atmospheric conditions while maintained as directed.
    The definition in the final rule is substantively the same as the 
corresponding definition in the proposal, except that the language has 
been improved for clarity and the ``exception'' in the proposal 
regarding the concentration of flammable vapors has not been carried 
forward. OSHA believes that this exception, which is recognized in 
Sec. 1915.13(b)(6) in the final rule, more properly falls under the new 
term ``Enter with Restrictions''.
    ``Space'' means an area on a vessel, vessel section or within a 
shipyard such as, but not limited to, a cargo tank or hold, pump or 
engine room, storage locker, tank containing flammable or combustible 
liquids, gases, or solids; a room within a building, crawl space, 
tunnel, and accessway. Although no definition of this word was 
proposed, its meaning is essential to the content of revised Subpart B. 
The final rule uses the word ``space'' broadly to encompass all the 
different types of areas in a shipyard where dangerous atmospheres 
might be found. The definition of this word in the final rule is 
intended to convey this meaning to employers and employees who must 
comply with the standard.
    ``Upper explosive limit'' (UEL) means the maximum concentration of 
flammable vapor above which propagation of flame does not occur on 
contact with a source of ignition. This definition is unchanged from 
the proposal.
    ``Vessel section'' means a subassembly, module, or other component 
of a vessel being built, repaired, or broken. This definition is 
unchanged from the proposal.
    ``Visual inspection'' means the physical survey of the space, 
surroundings and contents by the competent person, Marine Chemist, or 
Certified Industrial Hygienist to identify hazards such as, but not 
limited to, restricted accessibility, residues, unguarded machinery, 
and piping or electrical systems that could create or enhance hazards. 
This term is defined in the final rule to clarify what is required of 
the person preforming the inspection.
    OSHA has not carried forward into the final rule the proposed 
definition of ``weather deck''. The Agency believes that a definition 
of this term is not necessary to the meaning of the standard.
2. Sec. 1915.12 Precaution Before Entering Spaces.
    OSHA has made several significant changes to Sec. 1915.12. First, 
OSHA has reformatted this section to address more appropriately the 
order of atmospheric testing to be conducted by competent persons when 
determining hazards within confined and enclosed spaces and other 
dangerous atmospheres prior to employee entry. Second, OSHA has raised 
the minimum level of oxygen for entry and addressed oxygen-enriched 
atmospheres in this section. Third, the Agency has specified when and 
under what conditions an employee may enter a space that has been found 
``not safe for workers.'' Finally, OSHA has added new paragraphs to 
this section to address: (1) The training of individuals who enter 
dangerous and confined spaces (paragraph (d)), (2) rescue teams 
(paragraph (e)), and (3) the exchange of hazard information between 
employers (paragraph (f)).
    OSHA is also making the requirement to visually inspect each space 
explicit in this final standard. In the NPRM, comments were solicited 
on whether the shipyard competent person should be required to conduct 
a physical examination of the tank and pipelines when making an 
inspection. Many commenters supported OSHA's decision (Ex. 6-4, 6-10, 
6-12, 6-13, 6-15, 6-18, 6-24, 6-28, 6-31, 6-33, 6-34). For example, 
NFPA (Ex. 6-10) stated:

    NFPA strongly supports the inclusion of a requirement that in 
addition to atmospheric testing the shipyard competent person should 
also be required to conduct a physical examination of the space and 
associated pipelines. NFPA 306, 2-1 requires the Marine Chemist to 
conduct a physical inspection and to conduct test within the space. 
For high flash point, low vapor pressure products such as diesel, a 
test for flammable or combustible vapors is not sufficient, since at 
atmospheric temperatures there are not enough vapors being evolved 
for the combustible gas indicator to detect. It is essential that 
physical inspections be conducted.

    OSHA has decided that a visual inspection is a crucial element in 
ascertaining that confined and enclosed spaces and other dangerous 
atmospheres are safe for entrants. Based on the visual inspection and 
other information available to the employer about non-atmospheric 
hazards, the employer is required to take specific actions as required 
by other subparts. For example, precautions to be taken for electrical 
hazards are covered by Sec. 1915.181 (shipboard) and Sec. 1910.147 
(shipboard) and machinery is addressed by Sec. 1915.164 (for vessels) 
and Sec. 1910.212 (land-side).
    In paragraphs (a), (b), and (c) of final Sec. 1915.12, OSHA is 
requiring atmospheres to be tested for oxygen content first, 
flammability second, and toxicity third. The format of the previous 
standard implied that atmospheres be tested for flammability first, 
toxicity second, and oxygen deficiency third.
    Even before the revision of Subpart B was proposed, Newport News 
Shipbuilding and Harbor Testing Laboratory commented that the proper 
sequence is testing for oxygen, then flammability, then toxicity (53 FR 
48096). To address this problem, OSHA proposed to present the testing 
requirements in the proper sequence. However, as noted in the NPRM, the 
proposed rule would not have required testing in any particular order.
    OSHA believes that it is important for atmospheric testing to be 
conducted in the proper sequence. The Agency reached the same 
conclusion in the rulemaking on Sec. 1910.146, which adopted a rule 
requiring atmospheric testing in the correct order in that final rule, 
for the following reasons:

    A test for oxygen must be performed first because most 
combustible gas meters are oxygen dependent and will not provide 
reliable readings in an oxygen deficient atmosphere. In fact, the 
Johnson Wax Company (Ex. 14-222) stated that ``there is [a] specific 
(sensor dependent) oxygen level below which the combustible gas 
sensor will not respond at all [emphasis was supplied in 
original].'' Combustible gases are tested for next because the 
threat of fire or explosion is both more immediate and more life 
threatening, in most cases, than exposure to toxic gases. [53 FR 
48096]

    This reasoning applies to the revision of Subpart B as well. 
Atmospheric testing in confined and enclosed spaces and other dangerous 
atmospheres in shipyards is basically the same as atmospheric testing 
in general industry permit spaces. Therefore, the revision of 
Sec. 1915.12 requires shipyard employers to perform atmospheric testing 
in the following sequence: oxygen content, flammability, toxicity.
    In paragraph (a)(1), OSHA continues the requirement (in 
Sec. 1915.12(c)(1)) for competent persons to test atmospheres of 
specific spaces that may contain oxygen-deficient atmospheres. These 
spaces are listed specifically as follows:
    (1) Spaces that have been sealed,
    (2) Spaces and adjacent spaces that contain or have contained 
combustible or flammable liquids or gases,
    (3) Spaces and adjacent spaces that contain or have contained 
liquids, gases, or solids that are toxic, corrosive, or irritant,
    (4) Spaces that have been fumigated, and
    (5) Spaces containing materials or residues that could create an 
oxygen-deficient atmosphere. This final rule adopts the language from 
the NPRM to require competent persons to test atmospheres of these 
spaces for ``oxygen content'' rather than just ``oxygen deficiency.'' 
Paragraph (a)(2) of final Sec. 1915.12 addresses the maximum 
permissible oxygen concentration within confined and enclosed spaces 
and other dangerous atmospheres. Therefore, the testing to be performed 
must be for content rather than for oxygen deficiency alone. (The 
rationale for adopting a requirement for maximum permissible oxygen 
exposure is discussed under the summary and explanation of final 
Sec. 1915.12(a)(2).)
    In the previous rule Sec. 1915.12(c)(1) required tests to be 
conducted ``[b]efore employees are initially permitted to enter'' any 
of the regulated spaces. Paragraphs (b)(1) and (c)(1) contain this 
identical language for pre-entry testing for flammable gases and vapors 
and for toxic substances. The NPRM used the language ``prior to initial 
entry'' in proposed Sec. 1915.12(a)(1) and the language ``prior to 
entry'' in proposed Sec. 1915.12 (b)(1) and (c)(1). The preamble to the 
proposal noted that questions had arisen regarding what was intended by 
``initial entry'' in the previous standard and that the Coast Guard had 
interpreted the OSHA standard to require retesting if more than 24 
hours had elapsed since the previous testing. The NPRM raised the 
issues of whether ``initial entry'' should be defined in Subpart B and, 
if so, what that definition should be.
    Several commenters believed that OSHA should not specify the 
maximum time permitted to elapse before additional testing is required 
(Ex. 6-3, 6-6, 6-8, 6-12, 6-18). They argued that the length of time 
between testing and entry could vary depending on the space and the 
possible hazards involved. For example, Mr. Charles K. Klein, 
representing Newport News Shipbuilding, stated:

    OSHA should not specify a time limit regarding re-certification 
of spaces after ``initial entry'' certification has been given. The 
Coast Guard's interpretation for re-certification is based on a 24-
hour lapse period since a tank has been previously determined safe 
for entry. However, we feel that as long as conditions have not 
changed since the space was certified for ``initial entry'', 
additional certification is not required. Periods longer than 24 
hours may be appropriate in cases where a confined space does not 
contain a hazardous substance, is not connected to a system which 
contains a hazardous substance and has not been closed except for an 
air or hydrostatic test. However, certain evolutions involving 
hazardous substances in or near confined spaces may require testing 
on a shift basis or more often. A time limit imposed on ``initial 
entry'' is unnecessarily restrictive and reduces the employer's 
flexibility in providing a safe and healthful work environment in an 
effective, cost-efficient manner. [Ex. 6-6]

    Two commenters maintained that the certificate issued by a Marine 
Chemist would control whether or not a space had to be retested beyond 
a certain period (Ex. 6-8, 6-18). They believed that retesting was 
unnecessary unless conditions changed or unless the Marine Chemist's 
certificate required it. Sound Testing, Inc., expressed this position 
as follows:

    It should be made clear that a Marine Chemist's certificate is 
voided not by the passage of time, but by the change of conditions. 
Therefore, if a competent person can ascertain that conditions have 
not drastically changed, the chemist's certificate remains in force, 
regardless of how long between competent person inspections. The 
corollary of this is that there should be no explicit time limit on 
the chemist's certificate unless the chemist himself sees a reason 
for such a limit. [Ex. 6-8]

    Other rulemaking participants argued that the regulation should 
clarify what constitutes initial entry or when additional testing is 
required before the first entry into the space (Ex. 6-4, 6-5, 6-10, 6-
13, 6-21, 6-22, 6-24, 6-27, 6-28, 6-33, 6-34, 6-37, 6-38). Several of 
these commenters stated that the standard should specify the maximum 
interval permitted before additional testing would have to be performed 
(Ex. 6-4, 6-5, 6-10, 6-24, 6-27). The intervals suggested ranged from 
immediately before the entry (Ex. 6-24) to 24 hours (Ex. 6-27). For 
example, the U.S. Coast Guard stated:

    It has been our experience that if a minimum is not set the 
retesting is not done or is done infrequently because of the 
competent person's other work obligations. Our policy does not 
prohibit the inspector from requiring additional testing if he feels 
the conditions warrant. We have required additional retesting 
because of rises in temperature, excess quantity of cargo residues, 
and lack of confidence in the competent person. [Ex. 6-4]

    Other commenters thought that a definition of ``initial entry'' 
would clarify the standard (Ex. 6-21, 6-22, 6-23, 6-28, 6-33, 6-34, 6-
37, 6-38). Four of them recommended that ``initial entry'' refer to the 
first entry after testing and that additional testing be required for 
entry on subsequent days to ensure that safe conditions are still 
present (Ex. 6-21, 6-22, 6-37, 6-38). Two of them suggested that it 
refer to the time immediately after the initial opening of a space, 
when the tests and inspections performed to determine whether or not 
the space is safe for entry are conducted (Ex. 6-28, 6-34). The 
American Waterways Shipyard Conference (AWSC) maintained that ``initial 
entry'' should be defined as the first entry by shipyard personnel 
after the space has been certified by the Marine Chemist (Ex. 6-23). 
They explained the reasons for their position as follows:

    The United States Coast Guard has interpreted the term to mean 
``more than 24 hours have elapsed since a tank has been determined 
safe for entry and/or hot work.'' If that time period has elapsed 
then the tank must be recertified. However, this interpretation does 
not take into account the shipyard facility's requirements to 
maintain conditions. The shipyard facility must commence work on the 
vessel within 24 hours, after the certificate has been issued or the 
Marine Chemist certificate becomes invalid. As long as the 
conditions listed on the certificate are maintained, then the 
certificate is valid. However, if the conditions, as specified on 
the certificate change, then the Marine Chemist is recalled to 
recheck the space.
    Including the definition for initial entry recommended by AWSC 
will eliminate confusion within the industry and impose a standard 
practice around the country. [Ex. 6-23]

    OSHA believes that it is important to clarify the term ``initial 
entry'' so that employers and employees understand clearly what OSHA 
means by the term. With respect to spaces that require certification by 
a Marine Chemist, it is OSHA's intent that ``initial entry'' means the 
first entry into a certificated space after the Marine Chemist's 
certificate has been posted. The period of time during which the Marine 
Chemist's certificate is valid is established by the Marine Chemist and 
is logged on the certificate as posted. OSHA believes that the Marine 
Chemist performing the tests and inspection of a space to be entered is 
in the best position to determine the duration of the permit's 
validity. With respect to spaces that must be tested but need not be 
certificated by a Marine Chemist, the Agency will interpret the 
``initial entry'' to be the very first entry into the space after 
testing is performed. (No entry is allowed before those tests have been 
performed.) In addition, the tests must be performed close enough to 
the time of entry to ensure that they accurately reflect conditions in 
the spaces. To meet this standard, testing will nearly always be done 
just prior to entry by employees; seldom will tests be performed prior 
to an hour before employees are to enter a space.
    There are also requirements in Sec. 1915.15 for periodic monitoring 
and maintaining atmospheric conditions within a space as found by the 
Marine Chemist, Coast Guard authorized person, or competent person. 
Tests must be repeated as often as necessary to ensure that the 
required atmospheric conditions within the space are maintained 
(paragraphs (c) and (e)). Additionally, when a change occurs that could 
alter conditions within a tested space, work in the space must stop and 
employees must exit, and the area must be retested (paragraphs (b), 
(d), and (f)).
    OSHA believes it is unnecessary to establish within the regulatory 
text of Sec. 1915.12 a specific time limit beyond which the initial 
entry is not permitted after pre-entry testing. As noted in several 
comments, periods longer than 24 hours may be appropriate if a confined 
or enclosed space or other dangerous atmosphere does not contain a 
hazardous substance, is not connected to a piping or exhaust 
ventilation system that contains a hazardous substance, and has not 
been closed except for an air or hydrostatic test (Ex. 6-3, 6-6). OSHA 
has determined that the need for testing is directly related to the 
potential for change to occur within spaces. The duty to test as 
conditions warrant is imposed by Sec. 1915.12 and Sec. 1915.15, in 
combination. These two sections require that, in all cases, testing of 
the space must be conducted before employees enter the space and as 
often as necessary to monitor conditions within the space as work 
progresses. Obviously, any change in conditions that could affect the 
designation of a space as ``Safe for Workers'' require reinspection, 
retesting, and recertification of the space by the competent person or 
Marine Chemist.
    Therefore, for the purposes of this rule, the term ``initial 
entry'' is interpreted by OSHA to mean the first entry into a space. 
The time period between pre-entry testing and initial entry may vary. 
However, the space must be reinspected, retested, and recertified any 
time conditions in the space might have become unsafe for employees.
    As noted earlier, in paragraph (a)(1), OSHA is continuing the 
previous requirement (in Sec. 1915.12(c)(1)) for competent persons to 
test atmospheres of specific spaces that may contain oxygen-deficient 
atmospheres. The following paragraphs describe each of the spaces 
itemized in paragraph (a)(1).
    Paragraph (a)(1)(i) of final Sec. 1915.12 lists spaces that have 
been sealed, e.g., those that have been coated and closed up and those 
that have been painted and that lack ventilation. OSHA has combined the 
spaces listed in paragraphs (c)(1) (ii), (iii), and (iv) of the 
previous Sec. 1915.12 into one paragraph because OSHA considers the 
hazards within these spaces to be similar. The primary hazard of these 
spaces is the lack of proper ventilation and the resultant possible 
lack of oxygen. OSHA considers the consolidation of the previous 
paragraphs into one paragraph to be an editorial change for clarity 
because none of the spaces currently listed have been deleted nor have 
any been added.
    Paragraph (a)(1)(ii) lists spaces and adjacent spaces that contain 
or have contained combustible or flammable liquids or gases. Paragraphs 
(a)(1)(iii) and (a)(1)(iv) list spaces and adjacent spaces that contain 
or have contained liquids, gases, or solids that are toxic, corrosive, 
or irritant or that have been fumigated. These three paragraphs refer 
to spaces that were included under the previous Sec. 1915.12(c)(1)(i), 
which reads as follows:

    (i) Spaces in which the test[s] required by paragraphs (a) and 
(b) of this section indicate that no flammable or toxic contaminants 
are present in the atmosphere.

    Under this previous provision, spaces that require flammability and 
toxicity testing must also be tested for oxygen deficiency. In revised 
subpart B, OSHA has simply named the spaces that are covered under the 
previous Sec. 1915.12 (a) and (b) in lieu of specifying them by 
reference. Additionally, the final rule requires these spaces to be 
tested for oxygen regardless of whether they are found to be safe with 
respect to the hazards of flammable and toxic substances. Under the 
previous standard, which implied that the flammability and toxicity 
tests were performed before the oxygen test, once a space was found to 
be unsafe due to the presence of flammable gases or vapors or toxic air 
contaminants, further testing for oxygen deficiency was unnecessary. 
Under the final rule, tests for oxygen content are conducted first and 
must always be performed.
    Paragraph (a)(1)(v) lists spaces containing materials or residues 
that could create an oxygen-deficient atmosphere. The previous 
Sec. 1915.12(c)(1)(v) covers only cargo spaces containing cargoes or 
residues that can create an oxygen-deficient atmosphere. The 
corresponding paragraph in the proposal (proposed 
Sec. 1915.12(a)(viii)) also addressed only cargo spaces. The proposed 
and previous language also provide examples of cargos that can absorb 
oxygen and create an oxygen-deficient atmosphere (scrap iron, fresh 
fruit and molasses, and various vegetable drying oils).
    As noted in the summary and explanation of final Sec. 1915.11(a), 
earlier in this preamble, the scope of subpart B is being expanded to 
address all confined and enclosed spaces and other dangerous 
atmospheres throughout shipyard employment. While the previous standard 
recognizes that the hazard of oxygen deficiency may be found in cargo 
spaces, many other confined and enclosed spaces in shipyard employment 
also pose this hazard. OSHA believes that it is essential that all such 
spaces be tested for oxygen content before entry to assure their 
safety. Therefore, the Agency is eliminating the reference to cargo 
spaces and is requiring all spaces containing materials or residues 
that could create an oxygen deficiency to be tested.
    Paragraph (a)(2) requires spaces that have been tested and found to 
contain oxygen-deficient atmospheres to be labeled ``Not Safe for 
Workers.'' Spaces found to be oxygen-enriched are required to be 
labeled ``Not Safe for Workers--Not Safe for Hot Work.'' If employees 
are to enter a space that has an oxygen-enriched or oxygen-deficient 
atmosphere, then ventilation must be provided to maintain the oxygen 
content of the atmosphere at or above 19.5 percent and below 22.0 
percent by volume. After the ventilation produces an acceptable level 
of oxygen, the warning signs may be removed.
    The previous Sec. 1915.12(c)(2) only requires ventilation for 
spaces containing less than 16.5 percent oxygen by volume. It does not 
require spaces with oxygen-deficient or oxygen-enriched atmospheres to 
be labeled, nor does it address oxygen-enriched atmospheres. 
Additionally, it requires ventilation to be provided only when the 
oxygen content in the space is below 16.5 percent by volume, rather 
than below 19.5 percent.
    Unlike either the proposal or the previous rule, the final rule 
addresses hazards associated with oxygen-enriched atmospheres. Oxygen-
enriched atmospheres create significant risks to employees entering 
confined and enclosed spaces and other dangerous atmospheres, and 
precautions must be taken before entry into such atmospheres. The 
proposal would have required atmospheres to be tested for oxygen 
content rather than for oxygen deficiency alone. No rulemaking 
participant objected to this requirement. NFPA 306, in Section 2-3.1, 
sets the criteria for compartments and spaces to be found ``Safe for 
Workers.'' The first criterion listed in this section is that the 
oxygen content of the space be ``at least 19.5 percent and not greater 
than 22 percent by volume.'' Thus, OSHA is consistent with the existing 
national consensus standard which has adopted provisions restricting 
entry into oxygen-enriched atmospheres.
    The hazards of working in an oxygen-enriched atmosphere are widely 
recognized. The presence of greater than normal amounts of oxygen 
increases the flammability of materials and lowers the flash point of 
flammable materials. An ignition source, such as a spark, that would 
ordinarily be of insufficient energy to ignite a flammable mixture may 
ignite such mixture in oxygen-enriched atmospheres. The presence of 
greater than normal amounts of oxygen can also increase the chances of 
spontaneous combustion of flammable materials. Thus, an oxygen-enriched 
atmosphere in a confined or enclosed space or other dangerous 
atmosphere can place employees at an unacceptable risk of injury due to 
fire or explosion. Employers must take measures to find the source of 
oxygen and then eliminate that source and ventilate the space in order 
to control the hazards involved.
    For the foregoing reasons, OSHA has adopted requirements in final 
Sec. 1915.12(a) that are intended to eliminate the hazards posed by 
oxygen-enriched atmospheres. The Agency has adopted NFPA's criterion 
for oxygen enrichment (that is, an oxygen concentration of 22 percent 
or more by volume). Thus, the final rule sets a standard that protects 
employees to a level equal to that provided by the relevant national 
consensus standard for the work involved.
    The proposed rule, under Sec. 1915.12(a)(4) and (a)(5), would have 
required labeling spaces with oxygen-deficient (that is less than 19.5 
percent oxygen) atmospheres, but would have permitted employees to 
enter such spaces provided they were wearing respirators.
    The final rule raises the minimum acceptable concentration of 
oxygen from 16.5 percent to 19.5 percent by volume. As noted earlier, 
the NPRM proposed raising the minimum acceptable level of oxygen, and 
several rulemaking participants commented on this issue (Ex. 6-3, 6-6, 
6-10, 6-11, 6-15, 6-18, 6-24, 6-28, 6-33). All of them agreed with the 
proposed minimum oxygen level. For example, the Shipbuilders Council of 
America (Ex. 6-3) stated:

    Routine entry should be allowed only if the oxygen level is at 
least 19.5 percent.

    Northwest Marine Chemist (Ex. 6-18) maintained that the existing 
minimum acceptable concentration of oxygen in Sec. 1915.12(c)(1) was 
outdated, as follows:

    The use of 16.5% oxygen by OSHA is archaic, and not used in the 
industry in my area.

    Additionally, OSHA's generic confined space standard, in 
Sec. 1910.146(b), defines ``oxygen-deficient atmosphere'' as ``an 
atmosphere containing less than 19.5 percent oxygen by volume.''
    OSHA has previously concluded that permitting employees to work in 
atmospheres in which the concentration of oxygen is below 19.5 percent 
by volume presents an unacceptable risk of acute adverse health 
effects. In the preamble to final Sec. 1910.146, OSHA described the 
possible results of exposure to oxygen-deficient atmospheres as: 
dizziness, tiredness, difficulty in breathing, confusion, 
unconsciousness, and death (58 FR 4476). Considering these possible 
consequences, the Agency continues to believe that the minimum 
acceptable concentration of oxygen, in the absence of control measures, 
is 19.5 percent by volume.
    As noted earlier, Sec. 1915.12(a)(2) requires spaces containing 
oxygen-deficient and oxygen-enriched atmospheres to be labeled ``Not 
Safe for Workers'' or ``Not Safe for Workers--Not Safe for Hot Work,'' 
respectively. The previous standard does not require such labeling. The 
proposed rule would have required labeling only for oxygen deficiency, 
under Sec. 1915.12(a)(5). No one objected to the labeling requirement 
proposed in Sec. 1915.12(a)(5), and OSHA believes that this labeling is 
necessary to warn employees to keep out of spaces containing 
insufficient oxygen to work safely. Therefore, the Agency is carrying 
forward the proposed provision that spaces with oxygen-deficient 
atmospheres be labeled ``Not Safe for Workers.'' Because OSHA has found 
it necessary and appropriate to prohibit entry into oxygen-enriched 
atmospheres, the Agency also believes that it is necessary to label 
spaces containing such atmospheres. Because of the increased risk of 
fire and explosion associated with these atmospheres, the final rule 
requires them to be labeled as ``Not Safe for Hot Work'' as well as 
``Not Safe for Workers.''
    Final Sec. 1915.12(a)(2) requires ventilation to be provided to 
maintain the oxygen content of the atmosphere in a safe range. 
Paragraph (c)(2) of the previous Sec. 1915.12 contains the same 
requirement, except that it applies only when an oxygen deficiency is 
found. The proposed revision of Subpart B would not have required 
ventilation but would have permitted employees to enter oxygen-
deficient atmospheres if they were wearing respirators (proposed 
Sec. 1915.12(a)(4)).
    OSHA has decided not to allow employees to enter confined or 
enclosed spaces or other dangerous atmospheres that are designated 
``Not Safe for Workers,'' except under tight restriction. (See the 
summary and explanation of final Sec. 1915.12(c)(3), later in this 
preamble, for a discussion of issues related to employee entry into 
such spaces.) Therefore, the final rule adopts a requirement, similar 
to the one in the previous Sec. 1915.12(c)(2), for ventilation to be 
provided any time a space is hazardous because of oxygen deficiency or 
oxygen enrichment. Once the ventilation brings the oxygen content to a 
safe level, signs labeling the space as ``Not Safe for Workers'' or 
``Not Safe for Workers--Not Safe for Hot Work'' may be removed.
    Paragraph (a)(3) of final Sec. 1915.12 prohibits employees from 
entering any confined or enclosed space or other dangerous atmosphere 
that is oxygen-deficient or is oxygen-enriched. Exceptions are granted 
for emergency rescue and for entries of short duration to install 
ventilation equipment, provided that the atmosphere is continuously 
monitored for oxygen content and that respiratory protection and other 
personal protective equipment and clothing are provided in accordance 
with Subpart I of part 1915.
    The previous Sec. 1915.12 prohibits entry into IDLH atmospheres. 
Paragraph (d) of that section presents exceptions to the general 
prohibition which recognize emergency entries and short duration 
entries performed for the purpose of installing ventilation equipment 
or starting operations, provided the work is performed in accordance 
with paragraphs (a) and (b) of the previous Sec. 1915.152 (contained in 
Subpart I) relating to respiratory protection.
    Proposed Sec. 1915.12(d) presented the same exceptions as the 
previous rule, but with three additional provisos:
    (1) That no ignition sources are present, and
    (2) That the atmosphere in the space is maintained above the upper 
explosive limit, and
    (3) That the atmosphere is monitored continuously.
    The reference to the Subpart I requirements was placed in a note 
following the proposed paragraph. As noted earlier, proposed 
Sec. 1915.12(a)(4) would also have allowed entry into oxygen-deficient 
atmospheres by employees wearing respirators in accordance with Subpart 
I of part 1915. No restrictions on the purpose or length of entry were 
proposed.
    The NPRM requested comments on the issues of whether or not work in 
IDLH atmospheres should ever be permitted and on what control measures 
are necessary for the protection of employees working in IDLH 
atmospheres. In the preamble to the NPRM, OSHA recognized that 
atmospheres containing flammable vapor concentrations greater than the 
UEL for a particular vapor do not present a fire or explosion hazard to 
employees because the atmosphere is too rich in flammable vapors or 
gases to burn. However, OSHA expressed concern about employees who work 
in such atmospheres because such atmospheres may contain chemical 
exposures from the flammable vapor that are above the permissible 
exposure limit (PEL) for the particular chemical creating the vapors.
    Only one commenter supported OSHA's proposal to allow work in IDLH 
atmospheres. The American Waterways Shipyard Conference (Ex. 6-23) 
stated that OSHA should not put a time limit on ``short duration'' and 
that the proposal was appropriate, as follows:

    Due to the vast differences in vessel design, it would be 
extremely difficult to define an ``emergency work'' situation. 
Similarly, a time limit for ``brief duration'' would be difficult to 
ascertain since the work to be performed differs in every situation. 
By instituting a time factor for work of brief duration, shipyard 
employees may be required to skip safety steps in order to finish 
the work in the required time frame.
    Work in atmospheres in the Upper Explosive Limit (UEL) should 
not be prohibited. The work done in an UEL atmosphere is done on a 
very infrequent basis, but it is work that could not be done 
otherwise such as entry of a cargo tank during tank cleaning 
operations to set a cargo suction hose.

    By contrast, many other rulemaking participants believed that work 
in IDLH atmospheres is unnecessary and should be prohibited, either 
under all conditions (Ex. 6-4, 6-15, 6-18, 6-24, 6-31) or under all but 
emergency conditions (Ex. 6-7, 6-8, 6-10, 6-12, 6-21, 6-22, 6-28, 6-33, 
6-34, 6-37, 6-38). Independent Testing and Consultation, Inc. (Ex. 6-
24), presented the following arguments against work in atmospheres 
above the upper explosive limit for a flammable gas or vapor:

    The paragraph 1915.12(d) should be deleted for the following 
reasons.
    (a) There is no way to keep the atmosphere above the upper 
explosive limit (UEL). If entry to the tank is required, it follows 
that there must be a region where the tank atmosphere mixes with the 
outside atmosphere. In this region the concentration of gas will be 
in the explosive range.
    (b) The equipment used to measure gas concentrations above the 
UEL is not usually available.
    (c) All ignition sources cannot easily be eliminated. There 
remains possible ignition due to static electricity. It has been my 
experience that owners and operators would rather clean or otherwise 
make safe a tank or compartment even if the work required in the 
compartment is of the briefest duration.

    NFPA (Ex. 6-10) addressed work in IDLH atmospheres as follows:

    NFPA does not believe that work in IDLH atmospheres should be 
encouraged, except for the purposes of emergency rescue. NFPA does 
not support the proposal of working in UEL atmospheres. The 
potential hazards associated with ignition sources, such as static 
electricity, and the introduction of air to bring an atmosphere 
above the UEL within the flammable range, are significant and 
difficult to control. The additional testing requirements would also 
be significant. NFPA 306 only permits such a practice in the case of 
inerting for flammable compressed gas as described in 2-3.8. In this 
case now work is permitted on the tank or pipelines.

    OSHA agrees with the commenters who stated that working in IDLH 
atmospheres or in atmospheres containing concentrations of flammable 
gases or vapors above their UEL is very hazardous. The limitations on 
maintaining an atmosphere above a gas's or vapor's UEL, as noted by 
Independent Testing and Consultation, Inc., are severe indeed. If a 
mistake is made in such an atmosphere, an explosion will almost 
certainly result. Atmospheres that are IDLH because of toxicity also 
present a very serious danger to employees. A failure of the 
respiratory protective equipment protecting an employee in this type of 
atmosphere could quickly lead to his or her death.
    OSHA further believes that conditions somewhat less hazardous than 
those posed by IDLH atmospheres pose unnecessary dangers for shipyard 
employees. The generic permit-required confined space standard, in 
Sec. 1910.146(b), defines a hazardous atmosphere, in part, as follows:

    Hazardous atmosphere means an atmosphere that may expose 
employees to the risk of death, incapacitation, impairment of 
ability to self-rescue (that is, escape unaided from a permit 
space), injury, or acute illness from one or more of the following 
causes:
    (1) Flammable gas, vapor, or mist in excess of 10 percent of its 
lower flammable limit (LFL);
* * * * *
    (3) Atmospheric oxygen concentration below 19.5 percent or above 
23.5 percent;

    OSHA has already determined that these conditions constitute 
serious hazards, ones that are tightly regulated in the generic permit-
space standard in Sec. 1910.146. These conditions can also be found in 
confined and enclosed spaces and in other dangerous atmosphere in 
shipyard work. In order for Subpart B to be as protective as the 
general industry permit-space standard, which permits employees to work 
in hazardous atmospheres using a system of permits and attendants not 
required by Subpart B, OSHA believes that Subpart B must require 
measures that ensure that employees are not exposed to such hazardous 
conditions. For this reason, the Agency is adopting requirements in 
final Subpart B that prohibit employee entry into confined and enclosed 
spaces and other dangerous atmospheres presenting an oxygen-deficient 
or oxygen-enriched atmosphere or containing concentrations of flammable 
gases or vapors greater than or equal to 10 percent of the gas's or 
vapor's lower explosive limit.
    OSHA concludes, however, that entry into such spaces can safely be 
permitted under certain conditions. First, in emergencies, where 
persons are endangered, entry might be necessary to save the life of an 
entrant or the lives of every person on that transport. Second, because 
these spaces will have to be ventilated to make the atmosphere safe for 
employees, entry might be necessary to set up the proper ventilation 
equipment. For these reasons, final Subpart B permits entry into IDLH 
and other hazardous atmospheres for emergency rescue and for periods of 
short duration to install ventilation equipment necessary for normal 
entry.
    During such emergency or short duration entries, however, 
additional precautions must be taken to protect the entrants. The 
additional precautions to be taken must be appropriate for the hazards 
presented by the particular space involved. Thus, the final rule treats 
oxygen enrichment and deficiency, the presence of flammable gases and 
vapors, and atmospheres containing toxic contaminants at IDLH levels 
separately. For oxygen-enriched and oxygen-deficient atmospheres, the 
space must be continuously monitored for oxygen content (so that 
appropriate control measures can be taken if it changes), and 
respiratory protection and other personal protective equipment and 
clothing must be provided in accordance with Subpart I (so that 
appropriate personal protective equipment is provided and so that an 
attendant will be present if the oxygen content makes the space IDLH). 
The hazards of flammable atmospheres and toxicity are treated 
separately in their respective paragraphs (final Sec. 1915.12 (b)(3) 
and (c)(4)).
    Paragraph (b) of final Sec. 1915.12 sets precautions to be taken 
before employees enter areas that present hazards related to flammable 
atmospheres. Paragraph (b)(1) applies to spaces that contain or have 
contained combustible or flammable liquids or gases and to spaces 
(called, appropriately, ``adjacent spaces'') that are adjacent to those 
spaces. These spaces must be: (1) inspected by a competent person to 
determine whether or not combustible or flammable liquids are present, 
and (2) tested by a competent person before entry by any employee to 
determine the concentration of flammable gases and vapors within the 
space. These precautions also apply to adjacent spaces.
    Previous Sec. 1915.12(a)(1) requires the same spaces to be tested 
by a competent person to determine the concentration of flammable gases 
and vapors.
    The proposed rule contained requirements equivalent to the previous 
standard in paragraphs (b)(1), (b)(2), and (b)(3) of proposed 
Sec. 1915.12.
    The final rule differs from the previous and proposed rules only in 
that Sec. 1915.12(b)(1) includes a requirement for the competent person 
to inspect the space, as well as test it, for the presence of 
combustible or flammable liquids. The inspection is necessary so that 
the competent person will be more likely to be made aware of any 
malfunction in the testing instrument. Obviously, if the inspection 
reveals the presence of a flammable liquid, a flammability test can be 
expected to result in some detectable concentration of flammable gases 
or vapors. The lack of any such reading from the test instrument would 
be an indication that the device might be defective and should lead to 
further investigation of the problem. The inspections will also be 
necessary if a hazardous concentration of flammable gases or vapors is 
found so that the proper precautions can be taken to eliminate the 
hazard. Although in the previous Sec. 1915.12(a) does not specify that 
an inspection is to take place, in the previous Sec. 1915.7(c), which 
requires tests and inspections to be entered into the ``Log of 
Inspections and Tests,'' implies that the competent person is to 
perform inspections in addition to any tests that are required.
    Paragraph (b)(2) requires spaces that have been tested and found to 
contain concentrations of a flammable gas or vapor greater than or 
equal to 10 percent of the gas's or vapor's lower explosive limit (LEL) 
are required to be labeled ``Not Safe for Workers--Not Safe for Hot 
Work.'' If employees are to enter a space that has flammable gases or 
vapors in such concentrations, then ventilation must be provided to 
ensure that the concentration of these gases or vapors is maintained 
below 10 percent of their LELs. After the ventilation produces an 
acceptable atmosphere, the warning signs may be removed.
    Paragraph (a)(2) of the previous Sec. 1915.12 requires spaces 
containing hazardous concentrations of flammable gases or vapors to be 
ventilated until the concentration drops below 10 percent of the gas's 
or vapor's LEL before workers are permitted to enter the space. No 
labeling of these spaces is required under the previous standard.
    Paragraph (b)(5) of proposed Sec. 1915.12 would have required 
labeling of spaces in a manner equivalent to that required under the 
final rule. Paragraph (b)(4) of proposed Sec. 1915.12 would have 
prohibited entry when the concentration of flammable gases or vapors 
was at or above 10 percent of the LEL, but the proposal did not 
specifically require ventilation in Sec. 1915.12. Ventilation 
requirements related to flammable atmospheres were proposed in 
Sec. 1915.13(b)(8).
    No rulemaking participant objected to the proposed labeling 
requirement. Therefore, OSHA has carried it forward into the final 
rule. The final rule, unlike the proposal, continues to require spaces 
that are hazardous because of the presence of flammable gases or vapors 
to be labeled even when employees are permitted to enter for emergency 
purposes or for short durations to install ventilation. The proposal 
did not require the spaces to be labeled during these entries (in 
effect permitting employers to remove the signs at these times). 
However, such entries require the adoption of special precautions (see 
the summary and explanation of final Sec. 1915.12(b)(3), later in this 
preamble). OSHA believes that the labeling must be maintained during 
these entries so that unauthorized, unprotected entry is prevented.
    Paragraph (b)(3) of final Sec. 1915.12 prohibits employees from 
entering spaces containing concentrations of flammable gases or vapors 
at or above their LELs. However, employees may enter these spaces for 
emergency rescue or for a short duration for the installation of 
ventilation equipment provided that:
    (1) No ignition sources are present,
    (2) The atmosphere in the space is monitored continuously;
    (3) The concentrations of flammable gases and vapors in the 
atmosphere in the space are maintained above their upper explosive 
limits (UEL), and
    (4) Respiratory protection and other personal protective equipment 
and clothing must be provided in accordance with Subpart I of part 
1915.
    Previous Sec. 1915.12(a)(2) prohibits workers from entering areas 
containing concentrations of flammable gases or vapors at or above 10 
percent of their LELs. The only exception to this rule is contained in 
the previous Sec. 1915.13(a)(2) for highly volatile residues. (This 
provision has not been carried forward into the final rule. See the 
summary and explanation of final Sec. 1915.13, later in this preamble, 
for a discussion of the reasons why this exception has been dropped.)
    The proposal also contained a general prohibition against employees 
entering spaces containing hazardous concentrations of flammable gases 
or vapors. However, as noted earlier, proposed Sec. 1915.12(d) also 
provided exceptions for emergencies and for brief duration entries. The 
proposal would have required the same precautionary measures required 
by the final rule, except that respiratory equipment and other personal 
protective equipment was identified as being required, under Subpart I, 
through means of a note following proposed Sec. 1915.12(d)(3).
    As explained earlier, OSHA has decided to permit entries for 
emergency rescue and for short duration entries to install ventilation 
equipment even if the space contains a hazardous atmosphere. No one 
objected to the precautionary measures proposed in Sec. 1915.12(d), and 
they have been carried forward into the final rule. The proposed note 
regarding the use of respiratory protection and other personal 
protective equipment has been converted into a requirement 
(Sec. 1915.12(b)(3)(iv)). Even though employers are already obligated 
to comply with these requirements under Subpart I, OSHA believes that 
providing a mandatory reference in the text of the regulation will 
serve to emphasize the importance of the required personal protective 
equipment.
    The Agency has concluded that entry made following the requirements 
contained in the exception to Sec. 1915.12(b)(3) will protect employees 
by controlling and minimizing the hazards involved. No ignition sources 
may be present in the space so that, if the atmosphere becomes 
flammable, there will be no energy source to ignite it. The atmosphere 
in the space must be maintained above the UEL, and the atmosphere must 
be continuously monitored to minimize the possibility that a flammable 
atmosphere could develop. Lastly, personal protective equipment must be 
worn to protect the employee from exposure to the hazardous materials 
involved.
    Paragraph (c) of final Sec. 1915.12 sets precautions to be taken 
before employees enter areas that present hazards related to toxic 
atmospheres. Paragraph (c)(1) of final Sec. 1915.12 requires spaces and 
adjacent spaces that contain or have contained gases, liquids, or 
solids that are toxic, corrosive, or irritant to be:
    (1) Inspected visually by a competent person to determine whether 
or not toxic, corrosive, or irritant residue contaminants are present, 
and
    (2) Tested by a competent person before initial entry by any 
employee, to determine the concentration of toxics, corrosives, and 
irritants in the air within the space.
    The previous Sec. 1915.12(b)(1) requires the following spaces to be 
inspected and tested by a Marine Chemist, industrial hygienist, or 
other qualified person:
    (1) Cargo spaces and other spaces containing or having last 
contained bulk gases, liquids, or solids of a toxic, corrosive, or 
irritant nature,
    (2) Spaces that have been fumigated, and
    (3) Spaces immediately adjacent to these two types of spaces.
    Paragraphs (c)(1), (c)(2), and (c)(3) of proposed Sec. 1915.12 
would have continued the previous language without change, except that 
the proposal specified that the tests had to be performed by a Marine 
Chemist, a certified industrial hygienist, or a U.S. Coast Guard 
authorized person. Although this may have appeared to be a departure 
from the previous standard, the NPRM explained that the proposal simply 
codified OSHA interpretation of the previous standard. The NPRM also 
requested comments on the proposed definition of ``certified industrial 
hygienist.''
    Most commenters agreed that a Marine Chemist or a Certified 
Industrial Hygienist was qualified to perform the toxicity tests 
required under Sec. 1915.12(c) (Ex. 6-10, 6-12, 6-13, 6-20, 6-23, 6-24, 
6-28, 6-33). They noted that the intensive training in toxicology and 
in appropriate control measures these persons receive makes them 
uniquely qualified to test and inspect confined and enclosed spaces and 
other dangerous atmospheres.
    OSHA agrees with these comments, and the final rule recognizes that 
tests and inspections for the presence of toxic, corrosive, or irritant 
substances may be performed by Marine Chemists and Certified Industrial 
Hygienists.
    The rulemaking participants expressed some disagreement, however, 
over whether or not a Coast Guard authorized person had the proper 
qualifications to test and inspect areas for hazards related to the 
toxicity of various chemicals. Some believed that a Coast Guard 
authorized person would be qualified to perform the required tests and 
inspections (Ex. 6-24, 6-28, 6-33). These commenters stated that the 
use of a Coast Guard authorized person would be limited to situations 
in which a Marine Chemist or certified industrial hygienist was not 
available. Several other commenters argued that a Coast Guard 
authorized person is not required to receive training in hazards 
related to the toxicity of various chemicals (Ex. 6-13, 6-15). In fact, 
the U.S. Department of Transportation (Ex. 6-13), which administers 
requirements in Title 46 of the Code of Federal Regulations related to 
Coast Guard authorized persons, stated:

    Testing required by 46 CFR 35.01, 71.60, and 91.50 is primarily 
concerned with oxygen deficiency and combustibility prior to 
conducting hot work. ``Coast Guard authorized persons'' who would be 
expected to conduct such testing under Coast Guard regulations 
should not be considered equivalent to a Marine Chemist or 
Industrial Hygienist for the purpose of evaluating toxic hazards in 
shipyards.
    These persons would be acting under authority of a Coast Guard 
license or document for compliance with regulations contained in 46 
CFR, but it is not clear that they could be effectively held 
accountable for their performance related to OSHA regulations.

    Coast Guard authorized persons do not typically have training in 
hazards related to the toxicity of various chemicals. Since such 
training is necessary so that the required tests and inspections are 
performed safely and appropriately, OSHA concludes that the final rule 
should not automatically permit these persons to perform tests and 
inspections under Sec. 1915.12(c).
    Three commenters urged OSHA to include language permitting any 
qualified person to perform the tests and inspections required under 
Sec. 1915.12(c) (Ex. 6-3, 6-6, 6-12). They argued that requiring these 
tests to be performed by a Marine Chemist or a certified industrial 
hygienist would unnecessarily restrict an employer's means of complying 
with the standard. The Shipbuilders Council of America (Ex. 6-3) stated 
this position as follows:

    SCA recommends that OSHA utilize performance-oriented language 
and require a ``qualified person'' perform the testing.
    The required testing has been performed in the Shipbuilding, 
Ship Repairing and Shipbreaking Industry for years without incident. 
With proper training, competent or other qualified persons can test 
and inspect for toxic substances and provide for safe entry into 
confined spaces. The proposed wording will require shipyards to 
utilize either a Marine Chemist or Certified Industrial Hygienist 
(CIH) for all confined spaces entries or a competent person and a 
Marine Chemist or CIH for confined space entry. This requirement is 
overly restrictive and unnecessarily expensive on the declining 
Shipbuilding, Ship Repairing and Shipbreaking Industry without 
adding any additional degree of safety. SCA recommends that OSHA 
delete all references to Marine Chemists and Certified Industrial 
Hygienists and specify that a ``qualified person'' perform all 
required tests (see Issue #2).

    OSHA has concluded that a two-pronged approach is necessary for the 
protection of employees working in confined and enclosed spaces and 
other dangerous atmospheres from hazards related to the toxicity of 
various chemicals. First, the initial tests and inspections must be 
performed by a competent person (paragraph (c)(1)). Using the results 
provided by the competent person, the employer can then install 
ventilation, if necessary, to render the space safe for entry 
(paragraph (c)(2)). Second, if ventilation fails to bring 
concentrations of air contaminants to acceptable levels, a Marine 
Chemist or Certified Industrial Hygienist must be brought in to develop 
and implement control measures to protect employees entering the space 
(paragraph (c)(4)).
    Under final Sec. 1915.7, competent persons have the following 
skills and knowledge (among others):
    (1) The ability to understand and carry out instructions of Marine 
Chemists and certified industrial hygienists,
    (2) Knowledge of the requirements of Subpart B,
    (3) Knowledge of the structures, locations, and designations of 
spaces where work is to be performed,
    (4) Ability to calibrate and use test instruments, including carbon 
monoxide and carbon dioxide indicators,
    (5) Ability to perform all required tests and inspections required 
of competent persons by Subpart B, and
    (6) Ability to inspect, test, and evaluate spaces to determine the 
need for further testing by a Marine Chemist or a Certified Industrial 
Hygienist.
    These skills and this knowledge provide the competent person the 
ability to perform the initial tests and inspections necessary to 
determine whether or not a space contains hazardous quantities of toxic 
substances, as required by final Sec. 1915.12(c)(1). Once the space has 
been determined to contain hazardous quantities of toxic substances, it 
is then the employer's responsibility to make the space safe for entry 
through ventilation under final Sec. 1915.12(c)(2). If the space cannot 
be made safe for entry through the use of ventilation, OSHA believes 
that it is necessary to require a Marine Chemist or certified 
industrial hygienist to develop and implement appropriate control 
measures to protect employees from the hazards involved. On the basis 
of the record, OSHA has concluded that these two groups of persons are 
the only ones capable of establishing appropriate control measures to 
protect shipyard employees under these circumstances. Considering the 
complexity of the hazards involved and the protective techniques that 
need to be applied, the Agency believes that other, less qualified, 
individuals cannot be relied on to take all the steps necessary to 
protect employees fully.
    Paragraph (c)(2) of final Sec. 1915.12 requires spaces containing a 
concentration of any substance exceeding its permissible exposure limit 
(PEL) or, if the substance has no PEL, its IDLH value, to be labeled 
``Not Safe for Workers''. Ventilation must then be provided to ensure 
that air concentrations of these substances are maintained within their 
PELs or below their IDLH values. After the ventilation renders the 
atmosphere safe for entry, paragraph (c)(2) permits the signs to be 
removed.
    The previous Sec. 1915.12(b)(2) requires spaces to be ventilated if 
they contain a substance in concentrations above a level that is IDLH. 
The ventilation is required to bring the concentration below that 
level.
    The NPRM proposed to continue these previous requirements in 
Sec. 1915.12(c)(4). Requirements for labeling spaces containing 
concentrations of toxic substances above their PELs were proposed in 
Sec. 1915.12(c)(6). The previous standard contains no labeling 
requirement.
    OSHA received no objection to the proposed labeling requirement, 
and it has been incorporated into the final rule.
    The final rule, unlike the previous standard, permits competent 
persons to test and inspect confined and enclosed spaces and other 
dangerous atmospheres for the presence of toxic substances. The 
previous standard requires these tests and inspections to be performed 
by a Marine Chemist or by an industrial hygienist.
    Entry into a confined or enclosed space or other dangerous 
atmosphere for the performance of work is permissible only as long as 
concentrations of toxic materials are maintained below their PELs. As 
noted earlier, OSHA has concluded that a competent person is capable of 
testing and inspecting spaces for hazards related to the toxicity of 
various chemicals. Thus, the competent person can make a determination 
based on these observations and tests that a space is or is not safe 
for entry. If ventilation is necessary, the competent person can make 
this threshold determination, as well. However, the competent person is 
not normally capable of developing the specific control measures 
necessary to protect employees from exposure to any substance above its 
PEL. If a confined or enclosed space or other dangerous atmosphere 
exposes an employee to a substance at concentrations above the 
permissible exposure limit, a Marine Chemist or a Certified Industrial 
Hygienist is required to establish the procedures to be used to protect 
employees. The final rule makes this concept mandatory.
    For spaces in which ventilation cannot maintain an acceptable 
atmosphere, paragraph (c)(3) of final Sec. 1915.12 requires a Marine 
Chemist or certified industrial hygienist to retest the space until it 
can be certified as ``Enter with Restrictions'' or ``Safe for 
Workers.''
    The previous standard, under Sec. 1915.12(b)(3), requires employers 
to comply with the respiratory protection requirements of Subpart I 
whenever concentrations of toxic substances are above their PELs but 
below IDLH levels. The NPRM proposed to continue this requirement in 
Sec. 1915.12(c)(5). However, OSHA believes, as noted in the summary and 
explanation of final Sec. 1915.11(a), that employees should not enter, 
on a routine basis, any confined or enclosed space or other dangerous 
atmosphere containing a serious hazard. Atmospheres containing 
concentrations of toxic substances above their permissible exposure 
limits can pose serious hazards, especially to employees working in the 
exposure area for extended periods of time. As noted earlier, many of 
the rulemaking participants asserted that shipyard employees are better 
protected by industry practice, under which routine entry is permitted 
only if the space involved is certified safe for workers, than by the 
general industry permit space standard. OSHA agrees that the shipyard 
approach provides safety for employees, and is codifying that practice 
in final Sec. 1915.12(c)(3) and (c)(4) (discussed next).
    Paragraph (c)(4) of final Sec. 1915.12 prohibits entry into spaces 
that are ``Not Safe for Workers'' (under paragraph (c)(1)), except for 
emergency rescue or for a short duration for the installation of 
ventilation equipment provided that:
    (1) The atmosphere in the space is monitored continuously, and
    (2) Respiratory protection and other necessary and appropriate 
personal protective equipment and clothing are provided in accordance 
with Subpart I of part 1915.
    As explained earlier, OSHA has decided to permit entries for 
emergency rescue and for short duration entries to install ventilation 
equipment even if the space contains a hazardous atmosphere, which in 
this case refers to toxic substances. The procedures required will 
protect employees from hazards associated with exposure to these toxic 
substances. The atmosphere must be monitored continuously during this 
limited entry to ensure that the control measures are working as 
intended and that the entrant is aware of any changes in conditions in 
the space. Final Sec. 1915.12(c)(4) requires personal protective 
equipment to protect employees from the adverse effects of exposure to 
toxic substances. This control measure is already required by existing 
Subpart I. However, OSHA believes that providing a mandatory reference 
in the text of the regulation will serve to emphasize the importance of 
the required personal protective equipment.
    The Shipyard Employment Standards Advisory Committee (SESAC) 
reviewed OSHA's proposal and made several recommendations concerning 
new areas of shipyard employment that should be regulated in 
Sec. 1915.12 (Tr. 79-80, 90, 99; 4/25/90). These recommendations 
included adding requirements to address the training and duties of 
employees entering confined and enclosed spaces and other dangerous 
atmospheres, rescue teams, and exchanging hazard information between 
employers. SESAC voted unanimously to include training, and 
overwhelmingly supported provisions for rescue teams and exchanging 
hazard information between employers. As noted earlier in this 
preamble, the notice reopening the record on Subpart B published the 
text of the recommended provisions and requested public comment on 
them.
    Paragraph (d) of final Sec. 1915.12 contains requirements for the 
training and duties of employees entering confined and enclosed spaces 
and other dangerous atmospheres.
    The rulemaking participants overwhelmingly approved the adoption of 
the training requirements listed in the notice reopening the record 
(Ex. 11-2, 11-3, 11-4, 11-5, 11-6, 11-9, 11-13, 11-14, 11-15, 11-18, 
11-19, 11-20, 11-24, 11-25, 11-26, 11-29, 11-30, 11-35, 11-37, 11-39, 
11-41, 11-45, 11-47, 11-49, 11-50, 11-51). These rulemaking 
participants advocated that the SESAC recommendations be incorporated 
in their entirety. They stated that training was essential in 
preventing accidents and in promoting self-rescue. The Norfolk 
Shipbuilding and Drydock Corporation (Ex. 11-6) expressed this view as 
follows:

    We feel that training is essential to employees understanding 
the potential dangers in entering confined spaces which have not 
been checked and verified as being safe. We support the SESAC 
recommendations.

    No commenter objected to any of SESAC's recommended requirements. 
Therefore, these provisions have been incorporated into the final rule.
    A few rulemaking participants suggested that the final standard 
also include some requirements in addition to those proposed by SESAC. 
Three commenters recommended the inclusion of provisions requiring the 
training of shipyard competent persons (Ex. 11-10, 11-11, 11-44). 
Marine and Environmental Testing, Inc. (Ex. 11-10), best represented 
the arguments of these commenters as follows:
    Lack of training was evident in all of the confined space 
accidents which I have investigated. The current 1915 standard is 
not adequate when addressing training requirements. While the 1915 
standards state that the SCP [shipyard competent person] must have 
certain abilities it does not require formal training. There are 
also no formal training requirements for personnel working in 
confined spaces. These deficiencies should be addressed.
    The SCP should receive formal training on testing, ventilation, 
fire and explosive and toxic hazards as is being currently covered 
by NFPA SCP courses. General workers do not require the same level 
of training but should be instructed as to the hazards associated 
with confined spaces and the employer's testing, entry, hot work and 
space labeling or identification program. [Ex. 11-10]

    OSHA's requirements for shipyard competent persons are contained in 
final Sec. 1915.7, which is discussed earlier in this preamble. The 
employer is responsible for ensuring that these designated individuals 
have knowledge and skills appropriate for determining whether or not a 
confined or enclosed space or other dangerous atmosphere is safe to 
enter. The employer cannot have the necessary information to designate 
a person as a competent person unless that employer either provides the 
necessary training or ensures that the person has already received it. 
In addition, if the competent person is not an employee, the employer 
will not usually be the source of that person's training. Therefore, 
rather than specifying shipyard competent person training this final 
rule focuses on the abilities and skills of the competent person and 
holds the employer responsible for determining that the competent 
person meets those requirements.
    Other commenters suggested that OSHA require all exposed shipyard 
employees to receive training as outlined in the SESAC recommendation 
(Ex. 11-19, 11-30, 11-50). They argued that all workers that work in 
areas containing confined or enclosed spaces or other dangerous 
atmospheres should be aware of the hazards of unrestricted entry into 
those spaces. For example, the U.S. Department of the Navy (Ex. 11-30) 
stated:

    All workers except those who will never be involved with 
confined space entry/work should be trained. Minimum knowledge 
should be a well understood concept of what a confined or enclosed 
space is, what the potential hazards are, and the need for space 
evaluation by a knowledgeable individual and, in some cases, 
certification by a ``qualified person'' prior to entry and work.

    One commenter, the International Brotherhood of Electrical Workers 
(IBEW) (Ex. 11-51), suggested that the standard specify that employees 
receive classroom-type training. They were concerned that employees 
would receive a simple briefing rather than actual training. They 
stated their concerns as follows:

    The ability to have specific directions to train and provide 
annual review with classroom type instruction, and where the 
instructor has direct inter-play with the employee, is the most 
desirable, as well as preferred. One of the big problems that we 
have always felt has been the issue in training is the addressing of 
specific training. In the training of employees at our facility, 
stand-up safety briefings are used for training in Haz Com. The 
employee is asked to sign the back of this briefing to show they 
have attended and received the training. In the briefings given, the 
person giving the briefing has had little or no formal training on 
the subject material, making it a perfect ``paper program''. The 
only way we know it does not work is through interviews with the 
employees. It is therefore imperative that the recommendations of 
SESAC be followed, as they are most inclusive and specific, and that 
the instructors be knowledgeable of the subject material.

    OSHA has not adopted the IBEW's suggestion. Employers may use 
classroom or ``on-the-job'' instruction or a combination of the two in 
complying with final Sec. 1915.12(d). The primary objective of final 
Sec. 1915.12(d) is to ensure that employees will be familiar with the 
subjects listed under paragraphs (d)(1) through (d)(3). There may be 
wide variations in the combinations of classroom and on-the-job 
training that may be necessary for different work sites, 
configurations, and control measures. On the other hand, OSHA shares 
IBEW's concern that some employers might try to comply with the 
standard through simple briefings that impart little knowledge to 
employees. In enforcing final revised Subpart B, the Agency will 
determine whether employees have learned the subject matter addressed 
by the standard by interviewing employees and reviewing the employer's 
procedures for dealing with communicating hazard information and 
ensuring employees have the skills necessary to do their jobs. In 
addition the Agency will examine the employer's certification that the 
training has been provided as required by final Sec. 1915.12(d)(5). It 
should be noted that, whatever the method of training that is provided, 
it must be provided before an employee enters a confined or enclosed 
space or other dangerous atmosphere, as required by final 
Sec. 1915.12(d)(4).
    The requirements adopted in final Sec. 1915.12(d) are based on the 
recommendations of SESAC as presented in the notice reopening the 
record on Subpart B. The purpose of these requirements, along with an 
explanation of any differences between the final rule and SESAC's 
proposed language, is presented in the following discussion.
    In paragraph (d)(1), OSHA is requiring employers to ensure that 
employees who must enter confined or enclosed spaces or other dangerous 
atmospheres are trained to perform their duties safely. This provision 
is intended to ensure that employees are familiar with the duties 
imposed by final revised Subpart B so that the work practices they use 
will conform to the standard and will protect them from hazards posed 
by these spaces.
    In paragraph (d)(2), OSHA is requiring employers to ensure that 
each employee who must enter confined or enclosed spaces or other 
dangerous atmospheres is trained to recognize and understand the 
hazards or hazardous conditions he or she may encounter during entry. 
The specific hazards or hazardous conditions that OSHA addresses are 
found in paragraphs (d)(2)(i) through (d)(2)(vii) and they include the 
following:
    (1) Recognition of the characteristics of the space,
    (2) Anticipation and awareness of the hazards that may be 
encountered during entry,
    (3) Recognition of the signs, symptoms, or other adverse health 
effects that may be caused by exposure to hazards,
    (4) Understanding of the physical signs and reactions of exposure 
to hazards,
    (5) Knowledge of the types of personal protective equipment that 
may be needed for safe entry into and exit from the space,
    (6) Knowledge of how to use personal protective equipment, and
    (7) When necessary, awareness of the presence and proper use of 
barriers or other devices that may be needed to protect an entrant from 
hazards.
    The final rule combines SESAC's proposed paragraphs (e)(1) and 
(e)(2) to present all the general topics in which employees should be 
instructed in one place. Additionally, the SESAC proposal addressed 
confined spaces only. Because final revised Subpart B covers enclosed 
spaces and other dangerous atmospheres, as well as confined spaces, 
OSHA has applied the training requirements to all employees that enter 
confined and or enclosed spaces or other dangerous atmospheres.
    In paragraph (d)(3), OSHA is requiring the employer to ensure that 
an employee who must enter confined or enclosed spaces or other 
dangerous atmospheres is trained to exit the space under certain 
conditions. The specific conditions for which an entrant must be 
trained to exit include:
    (1) Upon order of the employer,
    (2) Upon the sounding of an evacuation signal, or
    (3) Whenever the entrant perceives that there is a danger or threat 
to his or her safety.
    In paragraph (d)(4), OSHA is requiring employers to ensure that 
employees who must enter confined or enclosed spaces or other dangerous 
atmospheres receive their training:
    (1) Before they begin work addressed by this section and
    (2) Whenever there is a change in operations or in an employee's 
duties that present a hazard about which the employee has not been 
trained previously. This provision was not included in SESAC's 
recommendations on training. Their recommendation specified that 
``appropriate training'' be provided to confined space entrants. OSHA 
believes that it is essential to spell out when the training required 
under paragraph (d)(1) through (d)(3) must be provided and that 
employees must receive this instruction before they are exposed to the 
working conditions and operations covered by the training. To address 
this issue, the Agency has incorporated language based on 
Sec. 1910.146(g)(2) (i) through (iii) of the generic permit-space 
standard, so that the final rule ensures that employees will be trained 
before exposure to the hazards posed by confined or enclosed spaces or 
other dangerous atmospheres.
    In paragraph (d)(5), OSHA is requiring that the employer certify 
that the training required by paragraphs (d)(1) through (d)(4) has been 
accomplished. The rule also lists the information that must be provided 
on the certification: the employee's name, the name of the trainer, and 
the date or dates of the training. Paragraph (d)(5) requires the 
certification of training to be available for inspection by the 
Assistant Secretary, the Director of NIOSH, the employees, and their 
representatives.
    A certification requirement was not included in SESAC's 
recommendations. However, OSHA believes that its inclusion in the final 
rule is necessary for several reasons. Certification of employee 
training provides a valuable record to employers who need to be able to 
keep track of who has been trained. Also, the certification enables 
employees to determine whether or not the employer has accurately 
recorded their training. Lastly, the certification facilitates OSHA's 
enforcement of the standard. Standards on employee training routinely 
incorporate requirements for the certification of training, and OSHA 
has found that such requirements ensure that employees are indeed 
trained in accordance with these standards.
    Paragraph (e) of final Sec. 1915.12 contains requirements for 
rescue teams.
    The rulemaking participants overwhelmingly approved the adoption of 
the rescue team requirements listed in the notice reopening the record 
(Ex. 11-1, 11-2, 11-3, 11-4, 11-5, 11-6, 11-9, 11-13, 11-14, 11-15, 11-
18, 11-19, 11-20, 11-24, 11-25, 11-26, 11-29, 11-35, 11-37, 11-39, 11-
41, 11-45, 11-47, 11-49, 11-50, 11-51). These rulemaking participants 
advocated that the SESAC recommendations be incorporated in their 
entirety. They stated that training was essential in preventing 
accidents and in promoting self-rescue.
    Paragraph (e) requires that employers either make provisions for a 
shipyard rescue team or make an arrangement under which an outside 
rescue team will respond promptly to a request for rescue service.
    Some commenters urged OSHA to consider addressing the response time 
of rescue teams (Ex. 11-10, 11-28, 11-30, 11-51). These commenters 
realized the difficulty involved in specifying an exact response time; 
however, they felt that it was important for rescue efforts to begin 
promptly. For example, Con-Space Communications Ltd. (Ex. 11-28) stated 
their recommendations as follows:

    This could be a difficult thing to regulate but, minimum 
requirements should be set to ensure that trained personnel and 
equipment are available in the event of an incident. Response time 
is the hard item to determine. Obviously the faster the better for 
the person in difficulty, but if OSHA allows outside rescue services 
to be used, response time would be longer than if the rescue team 
was in-house.
    Response time of an outside rescue service would be totally 
dependant on its distance from the problem site.
* * * * *
    Proposed paragraph 1915.12(f) is a practical solution to a 
difficult problem. Plant rescue teams should be able to respond more 
quickly than outside teams but the cost of maintaining an in-plant 
[shipyard] team could be excessive. We are left with a simple 
question, ``is the risk of slow response higher than the possible 
risk to the life of the person waiting for help?''
    If the outside rescue team receives more calls for help than it 
can handle, who waits and who gets penalized, the employer or the 
contracted rescue team or more important--who dies?
    Consideration should be given to a two tier rescue system where 
the employer is required to have a small rescue unit (two man team) 
trained by the outside rescue team for immediate response to a 
problem. Their level of involvement could be dictated by the rescue 
contractor who could also determine what rescue equipment should be 
maintained on-site.

    Most commenters argued that response times should not be addressed 
in the standard (Ex. 11-6, 11-9, 11-11, 11-14, 11-15, 11-18, 11-19, 11-
22, 11-24, 11-26, 11-29, 11-31, 11-36, 11-38, 11-39, 11-40, 11-41, 11-
43, 11-44, 11-50). These commenters argued that there were too many 
variables involved in shipyards for OSHA to be able to specify an 
appropriate response time. Mr. Joseph J. Ocken (Ex. 11-31) went 
further, suggesting that stressing the importance of rescue would lead 
to even more deaths, as follows:

    This entire issue focuses on rescue teams: inside and outside 
teams, team procedures, response times, and protocols/planning. I 
have strong reservations about regulating or mandating rescue 
operations in this manner. There are numerous confined space entries 
made on a daily basis while there are very few rescue attempts made. 
Even so, most confined space deaths are associated with rescue 
attempts. Intentionally or unintentionally the tone of the proposed 
language seems to communicate very dangerous messages:
    RESCUE ATTEMPTS ARE MANDATORY. This may not be intended by OSHA 
but the language could be misconstrued to suggest it. Many concerned 
safety professionals have devoted a lot of energy to communicate the 
opposite message! These teams should not even be referred to as 
``rescue teams'' but rather ``recovery or retrieval teams'' in order 
to avoid any confusion on this point.
    HURRY! OSHA's intent is important in that employers need to be 
reasonable in designating outside rescue resources. The response 
time message however, is that rescuers must hurry. Given the poor 
effectiveness statistics for rescue attempts the emphasis should be 
placed on QUALITY OF RECOVERY rather than SPEED OF RESCUE. Employers 
should be most concerned with selecting a qualified team and 
supporting their familiarization with the shipyard, training and 
drills to avoid further tragedies.
    RELIANCE ON RESCUE. It might be argued that the proposed rescue 
provisions require such attempts to be quite different from the 
haphazard rescue attempts that are notorious for additional 
fatalities (rather than the desired ``rescue''). This argument needs 
to be considered in the context of the environment where it will be 
applied. The very need for a confined space rescue implies that a 
FAILURE HAS ALREADY OCCURRED IN THE PROGRAM. Objectively we should 
be concerned that such a demonstrated failure to ensure safe entry 
in the first place also calls into question the ability to safely 
conduct a much more dangerous rescue attempt. A confined space entry 
standard is being proposed specifically to address a grim body of 
statistics which also tells us that rescue in confined spaces is 
even more dangerous. Rescue teams will be made up of workers needing 
protection too. We should be looking to improve other backups rather 
than emphasizing rescue.

    OSHA has concluded that it is important for rescue attempts to be 
initiated as soon after an accident occurs as possible. If rescue 
attempts are delayed too long, the rescue team could become a body 
retrieval team instead. OSHA also believes that rescue teams must be 
properly equipped and trained so that the dangers noted by Mr. Ocken 
are minimized. Fatalities involving rescuers typically have involved 
untrained or poorly trained individuals who are not properly equipped 
for entry into confined or enclosed spaces or other dangerous 
atmospheres. Final revised Subpart B, generic general industry permit-
space standard, Sec. 1910.146, ensures that rescue personnel are 
properly equipped and fully trained to perform rescue. To address the 
issue of timeliness in responding to requests for emergency services, 
the introductory text to final Sec. 1915.12(e) requires employers to 
provide a shipyard rescue team or to arrange for an outside rescue 
service that can respond promptly. OSHA believes that this requirement 
places a responsibility on employers to take whatever actions are 
necessary to rescue entrants (rather than retrieve bodies) from spaces 
covered by Subpart B. Employers must consider such factors as the 
response time, equipment, and state of training for rescue services not 
composed of the host employer's own employees when he or she chooses to 
arrange for such services. The rescue service selected by the employer 
must be able to arrive at the worksite quickly enough to perform rescue 
and must be equipped to perform rescue for the employer to be in 
compliance with the standard.
    In paragraph (e)(1), OSHA is requiring that shipyard rescue teams 
meet certain criteria. These criteria are intended to ensure that 
shipyard rescue teams are properly trained and equipped to perform 
rescue. Outside rescue services are already covered under the generic 
permit-space standard in Sec. 1910.146(k)(1). Employers providing these 
services are general industry employers (not shipyard employers) who 
will be covered under the general industry standards for the vast 
majority of their work. Therefore, the Agency believes that it is 
reasonable and appropriate to apply existing Sec. 1910.146(k)(1) to 
these employers rather than to adopt separate requirements for outside 
rescue services in the shipyard standards.
    Paragraph (e)(1)(i) requires each employee assigned to the shipyard 
team to be provided with and trained to use the personal protective 
equipment they will need to perform their function safely, including 
respirators and any rescue equipment necessary for making rescues from 
confined or enclosed spaces or other dangerous atmospheres.
    Paragraph (e)(1)(ii) requires that employees assigned to the 
shipyard rescue team be trained to perform their rescue functions 
safely including entry into confined and enclosed spaces and other 
dangerous atmospheres.
    Paragraph (e)(1)(iii) requires that shipyard rescue teams practice 
their skills at least once every 12 months. This provision also 
requires practice drills that include the use of mannequins and rescue 
equipment during simulated rescue operations involving physical 
facilities that approximate closely those facilities from which rescue 
may be needed. OSHA has included a note following this paragraph to 
explain that the standard recognizes the performance of an actual 
rescue as an acceptable substitute for practice drills.
    Paragraph (e)(1)(iv) requires that at least one employee on each 
rescue team maintain current certification in basic first aid skills 
that include maintenance of an airway, control of bleeding, maintenance 
of circulation and cardiopulmonary resuscitation (CPR) skills.
    Paragraph (e)(2) requires the employer to inform outside rescue 
services of the hazards that their teams may encounter when called to 
perform rescues from confined or enclosed spaces or other dangerous 
atmospheres at the employer's facility. The outside rescue service can 
then use this information to train and equip their rescue teams 
appropriately. This will help to ensure the protection of the rescue 
service's employees and to minimize the time needed to rescue an 
injured employee. OSHA has included a note following final 
Sec. 1915.12(e)(2) to encourage employers to use the criteria listed in 
paragraph (e)(1) to evaluate the skills of the outside rescue service 
and to determine what in-house hazard information would be most helpful 
to that service.
    In the notice reopening the record on Subpart B, OSHA requested 
comments on whether or not the standard should require the use of any 
protocols (such as preplanning with local rescue services) to accompany 
the use of an outside rescue service.
    The rulemaking participants agreed that, while preplanning with 
outside rescue services was necessary, the standard should not specify 
any particular protocol (Ex. 11-3, 11-6, 11-13, 11-14, 11-15, 11-18, 
11-20, 11-22, 11-24, 11-25, 11-29, 11-35, 11-37, 11-47). For example, 
the Shipbuilders Council of America (Ex. 11-29) stated:

    We believe that the inclusion of this subject matter will not 
contribute significantly to an increase in the quality or response 
time of a rescue team. Furthermore, such protocols, may be 
inconsistent with ensuring that shipyards have the flexibility to 
independently work out joint efforts that are compatible with local 
conditions.

    Several commenters, however, believed that the standard should 
require cooperation and planning between the shipyard employer and the 
rescue service (Ex. 11-30, 11-39, 11-49, 11-50). These commenters 
argued that this cooperation and planning was necessary, if an employer 
chooses an outside rescue service, in order to ensure effective rescue. 
The U.S. Department of the Navy (Ex. 11-30) presented this view as 
follows:

    In those cases where the employer does not have an in-house 
rescue team, OSHA should require the employer to preplan with the 
outside authority who is expected to provide the rescue services. 
The outside authority must be familiar with the employer's facility 
so that delays in performing a rescue will be avoided or minimized. 
It is recommended that OSHA require periodic drills to document that 
a rescue by an outside authority can be performed in a meaningful 
time frame.

    OSHA agrees with these commenters that planning and cooperation is 
necessary between employers and outside rescue services. Without 
planning, the rescue service will be hindered in getting to the rescue 
site and in equipping their rescue teams. Without cooperation, the 
outside service's rescue team will be on their own when an emergency 
arises. Several commenters stated their belief that the language in 
SESAC's recommendation already required employers to plan for rescue by 
outside services and to cooperate with these services to ensure that 
the rescue teams are properly trained and equipped (Ex. 11-9, 11-26, 
11-39). OSHA agrees with these commenters, and final Sec. 1915.12(e)(2) 
adopts the SESAC recommended language with only minor editorial 
changes.
    Paragraph (f) of final Sec. 1915.12 contains requirements for 
exchanging hazard information between employers. This paragraph 
requires that each employer whose employees work in confined or 
enclosed spaces or other dangerous atmospheres ensure that all 
available information on the hazards, safety rules, and emergency 
procedures concerning those spaces is exchanged with other employers 
whose employees may occupy the same spaces. The purpose of this new 
rule is to assure that knowledge of the hazards in the place of 
employment, particularly those hazards that may change daily or with 
each new contractor or subcontractor, has been communicated to all 
employees.
    The rulemaking participants overwhelmingly approved the adoption of 
the requirements related to exchanging hazard information between 
employers as listed in the notice reopening the record (Ex. 11-1, 11-2, 
11-3, 11-4, 11-5, 11-9, 11-13, 11-15, 11-19, 11-20, 11-24, 11-26, 11-
29, 11-35, 11-37, 11-39, 11-47, 11-49, 11-50, 11-52, 11-53). These 
rulemaking participants advocated that the SESAC recommendations be 
incorporated in their entirety. They maintained that cooperation and 
the exchange of information between contractor and employer was 
essential for the protection of all workers involved. Dreadnought 
Marine, Inc. (Ex. 11-52), expressed this view as follows:

    It is essential that contractors who perform work in confined 
spaces be provided this information by the employer. Contractor 
personnel who work near [confined] spaces need to understand and 
adhere to the signs, placards, or other warnings posted by the 
employer. DMI agrees with SESAC's proposed additions entitled ``(g) 
Duty to other employers.''

    A few commenters believed that OSHA should also require contractors 
to inform the shipyard employer of any hazard the contractor introduces 
into the space (Ex. 11-30, 11-51). They argued that, because the 
contractor can bring hazards into confined or enclosed spaces or other 
dangerous atmospheres that endanger all employees in the space, the 
standard should impose duties on the contractor which correspond to 
those imposed on the employer. The IBEW (Ex. 11-51) expressed their 
recommendations as follows:

    We concur with the statements made in paragraph (C) noting the 
last statement, ``Contractors working on a job site can endanger not 
only their employees, but other employers' employees as well.'' With 
this in mind, we feel that a contractor is also obligated to inform 
the host employer of the hazards they will introduce into the work 
area or confined space.

    OSHA agrees with the IBEW. Contractors create hazards or bring 
hazards into the space which affect the safety of all employees working 
in the space. Therefore, the final rule incorporates the SESAC 
recommendation modified as necessary to obligate all employers to 
exchange necessary hazard information.

3. Sec. 1915.13  Cleaning and Other Cold Work

    This section sets forth locations and further testing and 
precautions that must be observed before and during cleaning and cold 
work.
    In paragraph (a) of the final rule, OSHA describes the spaces to 
which this section applies. The old standard referred to those spaces 
in Sec. 1915.12(a)(1) (i) and (ii) and (b)(1) (i) through (iii). The 
Agency proposed minor editorial changes, the most important of which 
involved listing the spaces that must be tested, and ventilated if 
necessary, before cleaning and cold work is begun. OSHA believes that 
specifying the spaces that will be affected by Sec. 1915.13 in the 
first paragraph will enable the employer to easily determine the scope 
of the section. This listing, which replaces the reference to 
locations, is an editorial revision of the previous requirements.
    Paragraph (b)(1) provides that liquid residues in the tanks shall 
be removed as thoroughly as practicable before manual cleaning starts. 
As in the previous standard, special care is required to be taken to 
prevent the spilling or the draining of these materials into the water 
surrounding the vessel. For consistency with the expanded scope, OSHA 
has added the requirement to take special care to prevent spills onto 
the surrounding work area. If liquid residues were allowed to 
contaminate the surrounding water or worksite, employees would be 
endangered.
    Paragraph (b)(2) requires that tests to determine the concentration 
of flammable, combustible, toxic, corrosive, or irritant vapors must be 
done by a competent person prior to starting cold work. This provision 
has been brought forward from previous Sec. 1915.13(a)(3), which 
required tests to maintain flammable vapors below 10 percent of the 
LEL. OSHA believes that simply requiring tests does not give the 
employer enough guidance about what tests are necessary to protect 
workers during cleaning and other cold work. Therefore, OSHA is 
specifying that tests be done for flammable, combustible, toxic, 
corrosive, or irritant vapors.
    Paragraph (b)(3)(i) of the final rule requires that when the 
concentration of flammable or combustible vapors is equal to or greater 
than 10 percent of the LEL, ventilation must be provided at flow rates 
sufficient to keep the concentration of flammable vapors at a level 
less than 10 percent of the LEL. Toxic, corrosive, or irritant vapors 
are required to be maintained within the permissible exposure limits 
and below IDLH levels by paragraph (b)(3)(ii).
    The previous rule at Sec. 1915.13(a)(2) and the proposed rule at 
Sec. 1915.13(a)(8) (53 FR 48108) allowed employers to ventilate only 
major portions of a compartment when, due to the high volatility of 
residues, concentration of flammable or combustible vapors of less than 
10 percent LEL could not be achieved. In these circumstances, employers 
had to continually monitor the major portion of the space as pockets of 
hazardous vapor could shift into the work area thereby putting workers 
at risk. OSHA does not believe such an approach to the monitoring 
provides adequate protection for employees. The Agency believes that a 
compartment in which any portion is above 10 percent of the LEL is 
unsafe. In addition, conditions at or above 10 percent of the LEL could 
result in air concentrations which exceed the OSHA PEL or IDLH. This 
was clearly illustrated by Marine Chemists, Inc. (Ex. 7-24FF):

    Many flammable products are also toxic or contain toxic 
ingredients and in many cases 10 percent of LEL is well above the 
recommended PEL and in some cases may exceed the IDLH, for example:

STYRENE The LEL is 1% Styrene=10,000 ppm, 10% LEL=0.1% Styrene=1,000 
ppm, PEL for Styrene=100 ppm

    In other words 10 percent for Styrene is 10 times the 
recommended PEL.

    Ventilating only portions of a compartment can mean that pockets of 
hazardous atmospheres containing a variety of unknown levels of 
flammable vapors can remain within a compartment providing a 
significant potential for fire or explosion. Ignition could occur 
through scraping or blasting. For example, the National Fire Protection 
Association (Ex. 6-10) noted that ignition may occur from static 
electricity.

    NFPA does not believe that work in IDLH atmospheres should be 
encouraged, except for the purposes of emergency rescue. NFPA does 
not support the proposal of working in UEL atmospheres. The 
potential hazards associated with ignition sources, such as static 
electricity, and the introduction of air to bring an atmosphere 
above the UEL within the flammable range, are significant and 
difficult to control. The additional testing requirements would also 
be significant.

    This concern was also expressed by Independent Testing and 
Consultation, Inc. (Ex. 6-24).

    All ignition sources cannot easily be eliminated. There remains 
possible ignition due to static electricity. It has been my 
experience that owners and operators would rather clean or otherwise 
make safe a tank or compartment even if the work required in the 
compartment is of the briefest duration.

    The Department of the Navy (Ex. 6-31) stated that the possibility 
of an explosion could still be present when only the major portions of 
a compartment are required to be ventilated. They noted that 
ventilation should be used to alleviate a hazardous atmosphere and that 
continuous monitoring alone will not prevent the possibility of an 
explosion.
    One commenter, Sound Testing, Inc. (Ex. 6-8), questioned OSHA's 
acceptance of the 10 percent LEL level.

    It distresses me that even today we are still using the 10% LEL 
in helping to determine whether a space is ``Safe for Workers''. I 
have written about 10,000 Marine Chemist certificates, involving 
tens of thousands of compartments and I cannot recall a single 
instance where I wrote ``Safe for Workers'' about a tank reading 
even 2% LEL. Why, then, is OSHA giving a ``reference point'' 
significance to 10% LEL as ``Safe for Workers'' criterion?

    OSHA agrees with NFPA, Independent Testing and Consultation, Inc. 
and the Navy and is therefore, persuaded that an entire compartment 
must be ventilated sufficiently to bring the level of flammable and 
combustible materials below 10 percent of the LEL. Because the 
ventilation to maintain conditions in the major portion of a 
compartment would already be in place, increasing or redirecting the 
ventilation so that it now adequately ventilates the entire compartment 
would put little or no additional burden on employers.
    As to the use of the ``less than 10 percent LEL'' as the level to 
be achieved before employees may work in a space, that level is adopted 
from the applicable national consensus standard (NFPA 306, Appendix A), 
which reflects current practices and sampling technology. The shipyard 
industry has followed this standard for the past 23 years, and OSHA 
believes that it provides a sufficient margin of safety. Of course, 
employers are free to use a lower level in their workplaces for 
additional margins of safety.
    Paragraph (b)(4) of the final rule requires that the flammability 
tests be conducted by a competent person ``as often as necessary'' 
during cleaning or cold work to determine the concentration of 
flammable or combustible vapors present in the work space. This 
provision in the final rule is based on the proposal (53 FR 48098, 
48102; Specific Issue 7). The previous standard required a competent 
person to test prior to commencement of cold work and with sufficient 
frequency thereafter, in accordance with temperature, volatility of the 
residues, and other existing conditions in and about the spaces to 
ensure that the concentrations of flammable vapors were below ten (10) 
percent of the LEL. As explained in the preamble to the proposal, some 
interested parties requested clarification of the term ``frequently'' 
contained in the previous Sec. 1915.13(a)(3). (53 CFR 48098) They asked 
OSHA to specify in the regulation how often tanks should be checked. 
However, many more commenters (Ex. 6-3, 6-5, 6-10, 6-12, 6-13, 6-15, 6-
24, 6-28, 6-33, 6-34) urged the Agency to keep the standard flexible 
enough to enable employers and employees to take into consideration all 
the factors which may influence the need to recheck space conditions, 
including temperature, work being performed in the space, time elapsed, 
unattended tanks, work breaks, and ballasting or trimming. For example, 
Bay Shipbuilding Corp. (Ex. 6-15) stated:

    Frequency of testing must be based on the area conditions and 
complexity of the hazard. Ventilation capability is also a major 
factor in hazard control. Once an area has been made safe, and air 
quality can be maintained with natural or mechanical ventilation, 
there are no further steps needed unless the condition is modified 
by some events such as a spill, leak, or injection of an 
environmentally altering element. Otherwise, the only thing to do is 
to continue monitoring (which is cost prohibitive); or base the 
checks on the HMIS scale for health, flammability, and reactivity of 
the product. The higher the HMIS rating, the more frequent the 
checks.

    The Department of the Navy (Ex. 6-31) commented:

    The term frequently is too vague and should be redefined to 
specify that, re-testing should be dependent on alteration of 
specific atmospheric conditions, manipulation of valves, or opening 
of manholes at the worksite.

    Another commenter, Bath Iron Works Corporation (Ex. 6-28), also in 
support of flexibility, stated:

    No easy definition exists for all circumstances requiring 
additional ``frequent'' testing. This is a situation which requires 
the judgment of the Marine Chemist, based on his knowledge of the 
last three cargoes, their properties and the effectiveness of the 
cleaning procedures used. Some cargoes, such as alcohols, light fuel 
oils, etc., leave no harmful residues after adequate tank cleaning 
and ventilation. Under such situation, testing every 24 hours is 
adequate. Other cargoes leave residues, or, particular tank coatings 
partially absorb cargo residues, only to release vapors slowly over 
time, regardless of how the cleaning operations were conducted. 
These conditions require atmospheric testing more frequently.

    OSHA agrees with the commenters' views that the frequency of 
testing an atmosphere is best determined by the specific situation 
encountered and that a requirement to recheck a tank at specified 
intervals would not necessarily raise the level of safety. However, it 
is imperative that the atmosphere be checked often enough to ensure 
that it is safe for workers. To that end, Appendix A to Subpart B in 
the final rule provides supplementary information to assist employers 
and employees in determining the frequency with which a tank must be 
tested in order to ensure atmospheric conditions are being maintained. 
The six most common factors (temperature, work in the tank, period of 
time elapsed, unattended tanks, work breaks, and ballasting or 
trimming) are discussed, and examples are provided as guidance. 
Appendix A is unchanged from the proposal (53 FR 48110).
    Paragraph (b)(5) requires releases of flammable, combustible, 
toxic, corrosive, irritant, and fumigant materials to be cleaned up as 
work progresses. The requirement that liquid residues of flammable and 
toxic materials, which includes all of the contaminants described 
above, were to be cleaned up as work progresses was brought forward 
from the previous provision Sec. 1915.13(a)(1). In this final rule, 
OSHA has listed additional materials, corrosive, and irritant, that 
must be cleaned up as work progresses because they can be dangerous to 
employees working in these hazardous atmospheres.
    Paragraph (b)(6) prohibits entry into spaces where the 
concentration of flammable or combustible vapors equals or exceeds 10 
percent of the lower explosive limit and specifies the limited 
exceptions under which an employee may enter or work in such spaces. 
The exception is unchanged from the previous rule, Sec. 1915.12(d), but 
has been placed in the cleaning and other cold work section for 
clarification. An employee may enter the space for emergency rescue or 
for a short duration to install the ventilation required to start 
operations. In those instances there must be no ignition sources 
present, the space must be monitored continuously, the atmosphere in 
the space must be maintained above the UEL, and appropriate personal 
protective equipment must be provided. A note has been added as a 
reminder that other provisions for work in IDLH and other dangerous 
atmospheres are located in Subpart I, Personal Protective Equipment, of 
this part.
    Paragraph (b)(7) of the final rule requires that a competent person 
test ventilation discharge for possible accumulation in concentrations 
that may be hazardous to employees.
    Paragraph (b)(8) requires that when the test required in paragraph 
(b)(7) above indicates that concentrations of exhaust vapors that are 
hazardous to employees are accumulating, all work in the contaminated 
area shall be stopped and the employees evacuated until the vapors have 
dissipated or been removed. These two requirements are the same as the 
existing requirements in Sec. 1915.13(a)(5). OSHA has separated these 
two requirements for clarity, redesignating them as proposed paragraphs 
(b)(9) and (b)(10) and as paragraphs (b)(7) and (b)(8) of the final 
rule.
    Paragraph (b)(9) of the final rule requires that only approved 
explosion-proof, self-contained portable lamps shall be used in spaces 
described in paragraph (a) of this section before the spaces have been 
certified as ``Safe for Workers.'' The previous rule, Sec. 1915.13(b), 
had the same requirement. Paragraphs (b)(7), (b)(8) and (b)(9) of the 
final rule are being promulgated with several editorial changes for 
clarity.
    Paragraph (b)(10) of the final rule requires that signs that can be 
understood by all employees and that prohibit sources of ignition be 
posted. Sources of ignition include smoking and open flames that were 
specified in the previous Sec. 1915.13(c). This requirement merely 
states what was implicit before; that is, that signs must be clearly 
understood by all employees. Numerous comments were received on the 
subject of signs (Ex. 6-3, 6-4, 6-6, 6-8, 6-10, 6-12, 6-15). A common 
concern was expressed by the U.S. Coast Guard who said that in their 
area, most shipyard workers possessed a limited command of the English 
language. They noted that these workers tended to avoid reading long or 
confusing documents and that for them, a simple statement at each space 
would be most effective (Ex. 6-4). OSHA is addressing this problem by 
requiring that the sign be understood by all employees.
    The previous standards required signs prohibiting smoking and the 
use of open flames to be posted on the open deck adjacent to the access 
to spaces described in Sec. 1915.14(a). With the expansion of the scope 
to include land-side operations, the final rule deletes the reference 
to decks and substitutes directions for posting that apply to the 
entire shipyard. Signs must now be prominently posted at the entrance 
to those spaces, in adjacent spaces, and in the open area adjacent to 
those spaces. Signs must be ``prominently posted,'' i.e., clearly 
visible to affected employees. For example, signs posted behind a door 
do not effectively advise or warn employees of the working conditions. 
The purpose and intent of the language in paragraph (b)(10) of the 
final rule is to ensure that all employees are made aware of the danger 
of ignition sources in the workplace.
    Paragraph (b)(11) of the final rule requires that all air moving 
equipment and component parts that are capable of generating a static 
electrical charge of sufficient energy to create a source of ignition 
be bonded electrically to the structure of a vessel or vessel section 
or, in the case of land-side spaces, grounded to prevent unintentional 
discharge of a static charge. This requirement is the same as the 
previous rule, Sec. 1915.13(d), except that land-side operations are 
now covered.
    Paragraph (b)(12) of the final rule requires that fans have non-
sparking blades and that portable air ducts be of non-sparking 
materials. This requirement is unchanged from the previous rule, 
Sec. 1915.13(e). In its effort to make regulatory text more concise, 
OSHA has combined proposed paragraphs Sec. 1915.13(b)(14) and (15) as 
paragraph (b)(12) of the final rule.
    The Note OSHA proposed to include at the end of this section has 
been rewritten in note format and is carried forward into this final 
rule as follows:

    Note: See Sec. 1915.12(c) of this part and applicable 
requirements of 29 CFR part 1915, subpart Z for other provisions 
affecting cleaning or cold work.

By including this final note in Sec. 1915.13, OSHA is reminding 
employers of other Subparts of part 1915 as well as paragraphs of this 
Subpart that may apply.

4. Sec. 1915.14  Hot Work

    This section addresses the safety precautions that must be taken 
prior to starting hot work in or on spaces and adjacent spaces that 
contain or have contained combustible or flammable liquids or gases, 
related piping and accessories. The requirement that certain spaces 
must be certified ``Safe for Hot Work'' by a Marine Chemist or a Coast 
Guard authorized person before hot work is permitted is retained from 
the previous standard. This section also clearly identifies those 
locations within shipyard employment where a shipyard competent person 
is allowed to approve hot work.
    The scope has been expanded to cover land-side confined and 
enclosed spaces and other dangerous atmospheres in the shipyard as well 
as vessels and vessel sections, in other words, all of shipyard 
employment. The original section covered employees engaged in 
shiprepairing, with certain sections covering only shipbreaking. OSHA 
proposed to expand coverage to all shipbuilding, shipbreaking, and ship 
repair (53 FR 48094) and with the reopening of the record OSHA sought 
comment on expanding the scope to all shipyard employment.
    OSHA requested public comment on whether permits should be required 
for hot-work in all of shipyard employment, and, if so, whether the 
permits need to be posted (57 FR 28155, June 24, 1992). Over 30 
commenters responded (Ex. 11-2, 11-3, 11-6, 11-14, 11-15, 11-18, 11-19, 
11-20, 11-21, 11-24, 11-25, 11-26, 11-27, 11-28, 11-30, 11-36, 11-37, 
11-38, 11-39, 11-40, 11-41, 11-43, 11-44, 11-29, 11-30, 11-31, 11-34, 
11-35, 11-45, 11-47, 11-49, 11-50, 11-51, 11-53). Most of the comments 
set forth the steps that must be taken before hot work may be done, 
regardless of whether a formal permit is issued. They noted that the 
spaces must be evaluated and tested to determine their conditions 
before entry or hot work can begin. For confined spaces determined to 
be ``safe for hot work,'' they said a certificate is issued by a Marine 
Chemist and posted at the work site. They asserted that this practice 
is followed throughout the maritime industry. Most indicated that 
requiring hot work permits in addition to the certificate would not 
increase the safety of hot work.
    The need for hot work permits in shipyards was considered and 
unanimously rejected by SESAC at their September 3, 1992, meeting (Tr. 
470). Chairman Linwood Temple, CMC, argued that a permit system would 
be useless and less protective (SESAC, Tr. September 3, 1992, 468-469). 
Lt. Commander Joe Ocken from the 5th Coast Guard District testified 
that OSHA ``should not * * * take the general industry standard 
language [on permits] and carry that over into 1915.12'' (SESAC Tr. 
September 3, 1992, 461). Captain Lawrence Reed, representing NIOSH, 
stated that he shared:

    * * * The concern of Lt. Commander Joe Ocken * * * that some [of 
the provisions of the permit required confined space standard] * * * 
are less protective than the existing language of 1915.14 and [that 
he] would propose we go with the existing 1915.14. (SESAC Tr. 
September 3, 1992, 467-468)

    Mr. Charles Klein, representing Newport News Shipbuilding, stated:

    * * * What the shipbuilding industry and shiprepairing industry 
is doing right now with respect to confined spaces is working fine. 
The number of explosions that you see, the number of fatalities that 
you see, are virtually nil, and that would suggest that the existing 
language that's found in 1915 is more than adequate, and, in fact, 
probably would be better taken over to the general industry than 
what is proposed for general industry. (SESAC Tr. September 3, 1992, 
465-466)

    Mr. Lou D'Ambrosio, representing the Washington and Northern Idaho 
District Council of Laborers' International Union of North America, 
agreed that the permit system would be less protective (SESAC Tr. 
September 3, 1992, 469).
    OSHA has considered the evidence and agrees with the SESAC 
consensus that workers in shipyard employment are adequately protected 
by the current hot work standards, without the need for a permit 
system. Shipyards are unique in that they rely on Marine Chemist and 
competent persons to oversee confined and enclosed spaces and other 
dangerous atmospheres. In many locations, a Marine Chemist is required 
to issue a certificate before any hot work can be done. The Marine 
Chemist Certificate can only be issued when conditions within and 
adjacent to spaces which have contained a flammable or combustible gas 
or material have been cleaned and inspected and found to be safe (gas 
free). Moreover, the certificate specifies other requirements for entry 
and work such as ventilation, fire watch placement, and personal 
protective equipment, and requires a competent person to reinspect and 
test the space as directed in order to maintain the conditions of the 
Marine Chemist certificate. Similarly, the competent person cannot 
grant permission for hot work in those locations that he or she is 
allowed to test and certify until the conditions are safe for hot work. 
In addition, both the Marine Chemist and the competent person are 
required to produce written certifications that must be posted, as 
required in Secs. 1915.14(a)(2) and 1915.7(d) (1) and (2) respectively. 
As added protection, the Marine Chemist requires a competent person to 
recheck the space to ensure that conditions do not change. If there is 
a change in the space, the competent person must stop work and recall 
the Marine Chemist to recertify that the space is safe for hot work 
before work can restart. These certifications and recordings are 
comparable to permits, in that an employee may not perform hot work in 
a confined or enclosed space or other dangerous atmosphere until a 
certificate is issued. OSHA is persuaded that the current requirements, 
modified for clarity, provide protection comparable to Sec. 1910.146 to 
employees in the shipyard. Therefore, OSHA is not requiring hot work 
permits in subpart B.
    OSHA also requested comment on whether hot work should be 
prohibited on insulated bulkheads and if so, whether all the insulation 
needed to be removed. The Agency asked whether there have been 
situations where toxic vapors have evolved from heated insulation, and 
whether fires have broken out during and after hot work operations. (53 
FR 48102) A number of parties filed comments on this issue (e.g., 6-8, 
6-12, 6-15, 6-18, 6-21, 6-22, 6-23, 6-24, 6-26, 6-31, 6-33, 6-34, 6-36, 
6-37). These comments provided a wide range of views and some anecdotal 
information, but contained insufficient evidence to indicate that hot 
work on insulated bulkheads should be prohibited. Therefore, OSHA is 
not addressing this issue in subpart B.
    Paragraph (a)(1) requires a Marine Chemist or a U.S. Coast Guard 
authorized person to certify certain spaces as ``Safe for Hot Work'' 
before hot-work may be done on or in them. Other than the expansion of 
coverage to land-side, the requirements for hot work are the same as in 
the previous standard. However, Sec. 1915.14 has been reorganized and 
editorial changes have been made to add clarity.
    Paragraph (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) list the confined 
and enclosed spaces and other dangerous atmospheres along with their 
adjacent spaces within shipyard employment that must be inspected and 
tested by a Marine Chemist or Coast Guard authorized person prior to 
hot work. OSHA has deleted all references to tank vessels and dry 
cargo, miscellaneous and passenger vessels because the scope now 
includes all vessels and vessel sections and land-side hot work 
activities. The requirements are unchanged from the previous 
requirements of 1915.14 (a)(1)(i), (a)(1)(ii), and (a)(1)(iii), but 
editorial changes have been made to add clarity.
    Paragraph (a)(1)(iv) has been changed and relocated for clarity and 
consistency. In the previous rule, a Marine Chemist certificate was not 
necessary for hot work on dry cargo, miscellaneous, and passenger 
vessels when the work was performed on spaces adjacent to cargo tanks, 
as long as the gas or liquid in the tanks had a flash point below 
150 deg. Fahrenheit and the work was performed at least 25 feet (7.5 m) 
away from the tank. This exception has been expanded to any work in 
shipyards where the criteria are met, because the criteria are equally 
applicable to land-side operations.
    Paragraph (a)(2) carries forth the requirement that the certificate 
issued by the Marine Chemist or the Coast Guard authorized person be 
posted in the immediate vicinity of the affected area and kept on file 
for a period of at least 3 months from the date of completion of the 
operation for which the certificate was generated.
    Paragraph (b) covers those areas of the vessel and land-side spaces 
within the shipyard where a competent person can give permission for 
hot work to proceed after he or she has inspected and tested the space 
or area for flammability. The substantive requirements of this 
paragraph remain unchanged from the previous requirements except that 
land-side confined and enclosed spaces and other dangerous atmospheres 
are now included.
    Paragraph (b)(1) states that hot work is not permitted in or on any 
of the listed spaces or adjacent spaces in Sec. 1915.14(b)(1) (i) 
through (v) until the spaces have been tested for flammability and 
found to contain no concentrations of flammable vapors equal to or 
greater than 10 percent of the lower explosive limit. These spaces are: 
Dry cargo holds; the bilges; the engine or boiler room where a Marine 
Chemist's or a Coast Guard's authorized person's certificate is not 
required; vessels and vessel sections where a Marine Chemist or Coast 
Guard authorized person's certificate is not required under paragraph 
(a)(1)(i) of this section; and land-side enclosed or confined spaces or 
other dangerous atmospheres not covered in Sec. 1915.14(a). The 
previous rule, in Sec. 1915.14 (b) and (c), contains the same 
requirements found in Sec. 1915.14(b)(1) (i) through (iv). Section 
1915.15(b)(1)(v) extends the coverage to land-side operations within 
shipyard employment.
    In paragraph (b)(2), requires a space or adjacent space that has 
been tested and found to contain a concentration of flammable vapors 
equal to or greater than 10 percent of the lower explosion limit to be 
labeled Not Safe for Hot Work. The space or adjacent space must than be 
ventilated at volumes and flow rates sufficient to ensure that the 
vapor concentration is below 10 percent of the lower explosive limit. 
This requirement is unchanged from the previous Sec. 1915.14 (b) and 
(c).
    Section 1915.14 (c) and (d) of the previous rule have been deleted 
because their contents have been moved to other places in subpart B. 
For example, hot work performed in engine and boiler rooms is now 
covered by paragraph (b)(1)(iii), and the hot work from open decks and 
tanks without overheads previously addressed by Sec. 1915.14(d) is now 
covered in Sec. 1915.14 (a) and (b).
    The previous rule allowed the employer to inert spaces with non-
flammable gas or water in shipbreaking operations. This provision was 
not included in the 1988 proposal and no commenters addressed this 
issue. OSHA is not carrying forth inerting as a specific provision 
because hot work on an inerted space must be approved by a Marine 
Chemist or Coast Guard authorized person. Work requiring a Marine 
Chemist's certificate is thoroughly covered in paragraph 1915.14(a) 
above. Finally Sec. 1915.14 ends with a note referring users to 
Appendix A. Appendix A refers users to various other sections of part 
1915 regulations that are directly relevant to hot work. Those 
sections, especially Subpart D, Welding, need to be reviewed carefully 
prior to starting hot work.

5. Sec. 1915.15  Maintenance of Safe Conditions

    The principal substantive change to this section continues to 
reflect OSHA's general decision to expand the scope of Subpart B to 
cover all phases of shipyard employment as defined in the final rule. 
Operations covered by the previous requirements in Sec. 1915.15 were 
limited to ship repairing and shipbreaking. Under the previous rule, 
only employers engaged in ship repairing operations needed to comply 
with paragraph (a) of Sec. 1915.15 and only employers engaged in 
shipbreaking operations needed to comply with paragraph (b) of 
Sec. 1915.15. Because of the expansion of the scope of Subpart B to 
include all phases of shipyard employment, the final rule consolidates 
the requirements of Sec. 1915.15 paragraphs (a) and (b) into one 
section of requirements that apply to all phases of shipyard 
employment.
    OSHA raised two issues in the proposal that are related to the 
maintenance of safe conditions as regulated in this section. These 
issues concern the frequency of retesting and the need for testing to 
be accompanied by visual inspections.
    Proposed Secs. 1915.13(b)(4) and 1915.15 addressed the requirement 
to conduct atmospheric tests frequently. Proposed Sec. 1915.13(b)(4) 
would have required that factors which influence the frequency of 
rechecking, such as air temperature and residue volatility, be 
considered when determining how often to retest, while proposed 
paragraphs (d) and (f) addressed the need for frequent atmospheric 
tests in order to maintain the initial working conditions in a tank.
    Neither OSHA's previous standard nor the proposal specified how 
frequently a tank should be rechecked. Public comment was solicited as 
to whether OSHA should specify the frequency of testing in the 
standard, and if so, what that frequency should be and why. OSHA also 
asked if the factors which influence the need to check tanks frequently 
should be addressed directly in the standard. Finally, the Agency 
sought comment on whether OSHA should change the term ``frequently'' to 
``as often as necessary'' and if so, why.
    Many commenters addressed this issue and most favored requiring 
testing ``as often as necessary'' and setting forth the conditions that 
determine the actual frequency. For example, the U.S. Navy's 
Environmental Health Center (Ex. 6-31) commented,

    The term frequently is too vague and should be redefined to 
specify that re-testing should be dependent on alteration of 
specific atmospheric conditions, manipulation of valves, or opening 
of manholes at the work site.

    Shipbuilders Council of America, (Ex. 6-3) indicated that OSHA 
should not attempt to define ``frequently.'' SCA stated that,

    If an attempt is made to define the term ``frequently,'' it may 
create more problems than it would solve. Illustrative is defining 
``frequently'' as every two hours. There may be some tanks that only 
need monitoring three times a shift instead of four. There are also 
some tanks that may require continuous monitoring. Using the 
terminology ``as often as necessary'' solves these problems, and 
allows the individuals monitoring the areas a little more discretion 
at utilizing their precious time wisely.

    NFPA (Ex. 6-10) agreed that requiring testing ``as often as 
necessary'' would be appropriate,

    The standard is intended to provide minimum requirements. 
Establishing a predetermined specified frequency for testing spaces 
through regulations may not allow for the various factors which may 
alter conditions * * * Once the initial entry has been authorized, 
retesting is necessary at some frequency to ensure that conditions 
are not changing thus endangering the safety of the workers in the 
space. The frequency of retesting must be determined by the 
individual conditions and circumstances of the work activity. 
Various factors as described in Appendix A to Subpart B may affect 
the initial conditions. Confined spaces need to be prepared on the 
basis of initial entry, subsequent work, and safe exit. Most often 
where accidents have resulted, there was either no testing for 
initial entry or no consideration of the change in conditions which 
might occur due to the work process or other factors. NFPA supports 
the concept * * * that frequency of follow-up testing be expressed 
in terms of ``as often as necessary''.

    On the other hand the Commandant of the U.S. Coast Guard 
recommended OSHA specify a 4 hour retesting minimum, although he also 
acknowledged that Marine Chemists and competent persons must exercise 
their judgment on frequency of testing.

    * * * A minimum frequency should be specified * * * In general 
spaces should be tested ``as often as necessary''. This phrasing 
implies that relevant factors have been considered and a judgment 
made about the need for retesting. Testing ``frequently'' does not 
imply any judgment. * * *
    This period should not exceed 4 hours for an occupied space or 
24 hours for an unoccupied space. No person should be allowed to 
enter an unoccupied space unless it has been tested/retested within 
4 hours. The 24 hour requirement is an extension of NFPA 306-1988 2-
6.1 which states that ``Work authorized by the Certificate must 
commence within 24 hours unless otherwise noted on the 
Certificate.'' This should be extended to competent person testing 
as well as Marine Chemist testing, especially since the role of the 
competent person is one of monitoring conditions of spaces. Even if 
a space is unoccupied it represents a hazard from explosion or 
unauthorized entry.
    The 4 hour requirement for occupied spaces is needed to ensure 
that spaces are not entered unless the on-duty competent person has 
first hand knowledge that the conditions of a tank have remained 
unchanged from those of initial testing and entry authorization.

    NIOSH recommended OSHA set the frequency of testing, but rather 
than specifying as a minimum time interval, they listed the factors 
that should be considered in determining how often an atmosphere must 
be tested (Ex. 6-14),

    NIOSH suggests that OSHA specify the frequency of atmospheric 
testing. The frequency of atmospheric testing depends upon a number 
of factors. These factors should be listed in the standard (such as 
nature of hazard, temperature within tank, type of work in tank, 
elapsed time, unattended tanks, work breaks, residue volatility, 
etc.). Testing intervals should be established according to these 
factors as determined by the following NIOSH-recommended hierarchy: 
(1) Marine Chemist, (2) Certified Industrial Hygienist (CIH) or 
Certified Safety Professional (CSP), or (3) Coast Guard Authorized 
Person [Sec. 1915.11]. Furthermore, NIOSH suggests that `competent 
person' [Sec. 1915.7], as defined by OSHA, is not trained 
sufficiently to determine testing frequency. At a minimum, NIOSH 
suggests that testing be done at `time of entry' and continuously or 
periodically during occupancy, particularly if conditions are 
changing.

    Bay Shipbuilding (Ex. 6-15) commented,

    Frequency of testing must be based on the area conditions and 
complexity of the hazard. Ventilation capability is also a major 
factor in hazard control. Once an area has been made safe, and air 
quality can be maintained with natural or mechanical ventilation, 
there are no further steps needed unless the condition is modified 
by some events such as a spill, leak, or injection of an 
environmentally altering element. Otherwise, the only thing to do is 
to continue monitoring (which is cost prohibitive); or base the 
checks on the HMIS scale for health, flammability, and reactivity of 
the product. The higher the HMIS rating, the more frequent the 
checks.

    The American Waterways Shipyard Conference (AWSC) (Ex. 6-23) 
commented,

    The requirement to frequently test the confined spaces is 
already defined by the nature of the work, i.e., the changing of 
work shifts, etc. There is no need to further define the term in the 
regulation.

    Independent Testing and Consultation (Ex. 6-24) commented,

    There is no way to define all of the parameters which will 
decide how often a tank or compartment should be tested. The Marine 
Chemist or Coast Guard authorized person can indicate on the 
certificate, how often the space is to be tested. The wording in 
1915.15 (d) and (f) should therefore be changed to `as frequently as 
necessary to ensure. * * *

    Bath Iron Works Corporation (Ex. 6-28) commented,

    No easy definition exists for all circumstances requiring 
additional `frequent' testing. This is a situation which requires 
the judgment of the Marine Chemist, based on his knowledge of the 
last three cargoes, their properties and the effectiveness of the 
cleaning procedures used. Some cargoes, such as alcohols, light fuel 
oils, etc., leave no harmful residues after adequate tank cleaning 
and ventilation. Under such situations, testing every 24 hours is 
adequate. Other cargoes leave residues, or, particular tank coatings 
partially absorb cargo residues, only to release vapors slowly over 
time, regardless of how the cleaning operations were conducted. 
These conditions require atmospheric testing more frequently. Long 
term experience at Bath Iron Works dealing with Diesel Fuel Marine 
(DFM), JP-5, and several preservative coatings have shown no changes 
in atmospheric conditions from one 24 hour period to another. In 
these cases, the Coast Guard guidelines of testing once each 24 
hours is adequate.

    OSHA has taken reasonable measures of increasing the awareness 
of the dangers of sealed or confined spaces by providing guidelines 
and situations which could create hazardous atmospheres in the 
discussion presented in Appendix A of the Proposed Rule. This 
information, together with the knowledge that the Marine Chemist has 
of the previous cargoes and his judgment, when passed on to the 
Competent Person via instructions on his Marine Chemist Certificate, 
should be adequate to define testing frequency under specific 
conditions.

    Pacific Marine Testing (Ex. 6-33) stated,

    Frequency of testing atmosphere is determined by the specific 
situation encountered. There are many variables which must be taken 
into account before frequency of testing may be prescribed.

    Finally, the Marine Chemist Association, whose members set the 
frequency of retesting, (Ex. 6-34) commented,

    The frequency of testing cannot be specified. There are too many 
variables that may govern the frequency of testing. Please note 
Appendix A Subpart B to the standard. The term `frequency' should 
not be used and `as often as necessary' should be substituted.

    OSHA agrees with those commenters who suggested that OSHA use the 
performance language ``as often as necessary'' rather than cite a 
specific frequency for retesting. As the majority of commenters 
suggest, spaces vary and conditions within a space are subject to 
change at different time intervals. Therefore, a specific schedule for 
retesting all spaces could lead to unnecessary testing in some 
instances and inadequate testing that may not identify hazardous 
conditions as they arise in others. OSHA has concluded that those 
individuals who test an atmosphere must have the flexibility to 
determine the precise frequency of testing. However, OSHA is specifying 
that the testing be done ``as often as necessary,'' in order to ensure 
that changes in conditions are detected for each atmosphere. It is 
imperative that the atmosphere be checked often enough to ensure that 
it is safe for workers. To that end, Appendix A provides supplementary 
information to assist employers and employees in determining the 
frequency with which a tank must be monitored in order to ensure 
atmospheric conditions are being maintained. OSHA's decision to use 
performance language such as ``as often as necessary'' is also 
consistent with the Agency's continuing position to use performance-
based standards where practicable.
    Therefore, OSHA has amended the language of those requirements in 
this section that previously required ``frequent'' testing to require 
the testing of atmospheres ``as often as necessary'' in order to 
provide flexibility to Marine Chemists and competent persons who test 
spaces to determine the time and need for testing of atmospheres based 
on the conditions in each dangerous atmospheres.
    OSHA sought public comment on whether the shipyard competent person 
should be required to conduct a physical examination of the tank and 
pipelines when making a follow-up inspection.
    The majority of comments on this issue discussed it in terms of 
retesting to maintain safe conditions within all types of work spaces. 
However, because OSHA believes that a visual inspection is an integral 
part of any testing the reasoning in this discussion also pertains to 
initial testing required in Sec. 1915.12, Precautions before entering.
    Most commenters (e.g., Exs. 6-3, 6-4, 6-10, 6-14, 6-18, 6-31) 
indicated it would be appropriate for competent persons to conduct 
physical inspections of spaces they are checking during periodic 
retesting of atmospheres. Some of them and others (Exs. 6-10, 6-18, 6-
31, 6-33, and 6-34) also indicated that it is currently industry 
practice for well trained individuals who conduct follow-up testing to 
physically inspect spaces during these follow-up inspections.
    NIOSH (Ex. 6-14) commented,

    The shipyard `competent person' should be required to conduct a 
physical examination of the tank and pipelines during follow-up 
inspections. Original conditions and intended purposes of tanks and 
pipelines change continually in ship construction and repair. These 
new uses can only be detected by physically examining them during 
follow-up inspections.

    The U.S. Coast Guard MIONY (Ex. 6-4) states,

    Shipyard competent persons should be required to make physical 
examination of each space retested. During ship repair, vessels are 
often listed or trimmed for various reasons. This can cause 
flammable, toxic, and corrosive residues to leak out of pipelines. 
In practice these are rarely blanked and the isolation valves may 
have been opened or leak. These residues may ignite during hot work, 
harm workers on contact, or produce a hazardous atmosphere if there 
is a temperature increase.

    NFPA (Ex. 6-10) agreed, and noted that,

    NFPA strongly supports the inclusion of a requirement that in 
addition to atmospheric tests the shipyard competent person should 
also be required to conduct a physical examination of the spaces and 
associated pipelines. NFPA 306, 2-1 requires the Marine Chemist to 
conduct a physical inspection and to conduct tests within the 
spaces. For high flash point, low vapor pressure products such as 
diesel, a test for flammable or combustible vapors is not 
sufficient, since at atmospheric temperatures there are not enough 
vapors being evolved for the combustible gas indicator to detect. It 
is essential that physical inspections be conducted.

    The Navy's Sea Systems Command (Ex. 6-12) commented,

    The purpose of the follow-up check is to ensure conditions have 
not deteriorated. The requirement [for a physical inspection] is 
endorsed for hot work rechecks.

    Similarly, the Commandant of the U.S. Coast Guard commented,

    Because it is important for a Marine Chemist to make such 
examinations, it is even more important that the competent person 
also conducts such examinations.
    By making a physical examination of the confined space the 
competent person understands the tank conditions better, and it 
helps to stress the importance of looking for other potential 
problems in a confined space. For example, paraffinic residues on 
bulkheads are sometimes partially cleaned in areas where minor 
welding jobs will be done on the opposite side of the bulkhead (in 
the adjacent space). Welders are unable to determine if they are 
welding outside the cleaned area, but the competent person would 
have the opportunity to detect a problem.

    The Marine Chemist Association (Ex. 6-34) commented,

    The shipyard competent person should definitely conduct physical 
examinations of the interior of tanks and pipelines. Instrumentation 
used to test the atmosphere of these structures do not always reveal 
the presence of flammable or combustible materials. If these persons 
are required to maintain safe conditions in enclosed and confined 
spaced they must evaluate conditions other than atmosphere.

    Northwest Marine Chemist (Ex. 6-18) asserted that,

    There is no way to properly determine the condition of a space 
without physically entering.

    Independent Testing and Consulting, Inc. (Ex. 6-24) commented,

    The shipyard competent person should be required to conduct a 
physical examination of the tank (provided it is safe to enter) and 
make any necessary tests of piping provided that the piping has been 
approved for hot work on the Marine Chemists certificate.

    Chemical Engineering Service, Inc. (Ex. 6-25A) commented,

    The original intent for the position of shipyard competent 
person was to detect conditions where, for some reason, there was a 
decrease in oxygen or an accumulation of combustible gas. Left 
undetected, these situations could develop into acute hazards for 
shipyard personnel. While these conditions are relatively rare, 
their occurrence could easily lead to catastrophic loss of life and 
property.
    A much more chronic problem is fire hazards in the shipyard 
resulting from the introduction of flammable or combustible material 
subsequent to the initial internal inspection for hot work. This 
could be the result of leaking piping, accidental or intentional 
contamination, or gradual buildup of trash and other combustible 
materials. With the exception of liquids with a reasonably high 
vapor pressure, these fairly common conditions can only be detected 
with an internal inspection.
    If it is the intent of OSHA to utilize the shipyard competent 
person to control fire hazards in addition to atmospheric hazards, 
internal inspection of all spaces must be required.

    Atlantic Environmental & Marine Services (Ex. 6-27) commented,

    * * * Shipyard Competent Persons should be required to conduct 
an on-site survey of tanks and pipelines when making follow up 
inspections.

    The U.S. Navy's Environmental Health Center (Ex. 6-31) commented,

    Yes, the shipyard competent person should be required to conduct 
a physical examination of the tank and pipelines when making a 
follow-up inspection. The current foundation of the NAVSEA Technical 
Manual lists a requirement in Section 23.4 of reference (c) for 
conducting a physical examination of the tank and pipelines upon 
reinspection. The condition for entry must be defined, such as, use 
of ventilation, PPE, non-sparking tools, and whether there is to be 
continuous or periodic testing.

    Pacific Marine Testing (Ex. 6-33) commented,

    The shipyard competent person, when trained properly by a 
sanctioned training such as the one developed and presented by NFPA 
and its supporters, is taught to conduct a physical examination of 
the tank and pipelines when making a follow-up inspection. A 
determination of a safe condition can be made only when the shipyard 
competent person has conducted a physical examination.

    Only the Shipbuilders Council of America (Ex. 6-3, pg. 3) and the 
Newport News Shipbuilding (Ex. 6-6, pg. 4) urged OSHA to allow a 
qualified person to decide whether a physical examination is necessary.

    The qualified person should not be required to conduct a full 
physical examination of the tank and pipelines when making a follow-
up inspection. . . . the qualified person should be given 
appropriate flexibility when making this determination based on all 
available data, including a physical inspection, where necessary.

    OSHA agrees with the majority of commenters on this issue and has 
concluded that, because of changing conditions, appropriate retesting 
must include a physical inspection of a tank or pipelines for leaks or 
other build-ups of hazardous substance within a certified space. 
Physical inspection of a space is an integral part of an effective 
follow-up inspection or monitoring program. For example, an actual 
physical examination is crucial in eliminating housekeeping debris that 
could be fire hazards such as rags, insulation, or heavy oil residues 
in the tank deep spot. Therefore, OSHA is requiring physical 
inspections be conducted during follow-up inspections of tested spaces.
    In paragraph (a) of the final rule OSHA continues the requirement 
that was found in the first sentence of paragraph (a)(1) in the 
previous text. The employer is required to disconnect, blank off, or 
otherwise block by a positive method all pipelines that could carry 
hazardous materials into spaces that have been tested and found safe 
for work. There were no substantive comments addressing this provision. 
Although OSHA has clarified the language with this rule, the substance 
remains the same.
    The second sentence of paragraph (a)(1) in the previous text 
required that manholes and other closures of a space that were secured 
during the testing of the space remain secured afterwards to prevent 
alteration of the tested space atmosphere. OSHA has eliminated this 
requirement from the final rule. OSHA has decided that it would be more 
appropriate to recognize that closures of tested spaces may be opened 
safely for various reasons during work operations and that a 
requirement for them to remain secured was unnecessary. What is 
critical for safety is that the atmospheric conditions within the space 
remain within permissible levels. Therefore, OSHA will continue to 
recognize the need to test and monitor spaces as necessary. This will 
assure that safe work atmospheres are maintained and if they are not, 
work must be stopped regardless of how the atmosphere becomes 
contaminated.
    Paragraph (b) of the final rule (as was the third sentence of 
paragraph (a)(1) of the previous rule) is intended to ensure that a 
safe working environment is maintained within a previously tested 
space, even if outside contaminants may have been introduced into the 
space after initial testing. The final rule says that when any changes 
occur that could alter conditions within the space or other dangerous 
atmospheres, work shall be stopped until the space is visually 
inspected, retested and found to comply with Secs. 1915.12, 1915.13 and 
1915.14 of this part, as applicable. To provide guidance to employers 
on what changes would require work be stopped, OSHA has included a note 
with examples.
    Paragraph (c) of the final rule requires a competent person to test 
atmospheric conditions within a previously tested space as often as 
necessary to maintain conditions as specified on certificates issued by 
a Marine Chemist or Coast Guard authorized person. The Agency has 
changed the format of the final rule and this new paragraph (c) 
addresses only the language that was found in paragraph (a)(4) of the 
previous rule. The requirements that were found in paragraphs (a)(2) 
and (a)(3) of the previous text are not addressed in this section 
because they are covered elsewhere in OSHA's requirements or they have 
been moved to a more appropriate section of the final rule. For 
example, previous paragraph (a)(3) required employers to ensure that 
employees understand and obey all warning signs, tags, and the language 
of Marine Chemists' certificates. The requirement addressing employee 
understanding of the warning labels is found in Sec. 1915.16 of this 
Subpart. OSHA considers paragraph (c) of the final rule to be an 
editorial change to the language that was found in the first sentence 
of paragraph (a)(4) in the previous rule and therefore, non-
substantive.
    In paragraph (d) of the final rule, OSHA requires that if a 
competent person finds that atmospheric conditions within a space fail 
to meet the applicable requirements of Secs. 1915.12, 1915.13 and 
1915.14 of Subpart B, work in the space must be stopped, the space 
retested by a Marine Chemist or Coast Guard authorized person and a new 
certificate issued in accordance with Sec. 1915.14(a) before work may 
resume. The language found in paragraph (d) is similar to that found in 
the second sentence of paragraph (a)(4) of the previous standard and 
the basic requirement remains the same. Modifications to the previous 
language have changed references to the maintenance of gas-free 
conditions to the maintenance of conditions meeting Secs. 1915.12, 
1915.13, and 1915.14. These sections address not only gas-free 
conditions but also other hazardous atmospheric conditions to which an 
employee may be exposed, which are also within the scope of the 
certificate. OSHA believes that separating the two requirements found 
in paragraph (a)(4) of the previous rule into separate paragraphs (c) 
and (d) of the final rule will improve compliance by making the rule 
easier to understand.
    Paragraph (e) of the final rule requires a competent person to 
continue to test as necessary those spaces he or she has tested 
previously to ensure that the atmospheric conditions within the tested 
space are maintained. This is consistent with both NFPA 306 and 
industry practice. The substance of the final rule is similar to the 
language proposed in 1988 and the first sentence of paragraph (b)(2) of 
the previous rule except that, like paragraph (c) above, tests are to 
be conducted for all relevant atmospheric conditions.
    In paragraph (f) of the final rule, OSHA requires that all work be 
stopped in those spaces tested previously by a competent person when a 
competent person finds that the conditions within the space no longer 
meet the requirements set forth elsewhere in this subpart. The language 
in paragraph (f) of the final rule is similar to the language proposed 
in paragraph (g) of the 1988 proposal and is parallel to the language 
contained in paragraph (d) above.
    Like paragraph (d) above, paragraph (f) of the final rule drops the 
list of specific atmospheric conditions and instead references 
Secs. 1915.12, 1915.13 and 1915.14. The substantive requirement for 
stopping work until a space found to be hazardous has been retested and 
found safe for workers has not changed from the previous language.

6. Sec. 1915.16  Warning Signs and Labels

    The substantive change OSHA has made to this section involves the 
expansion of the scope of the previous requirements to all phases of 
shipyard employment. The previous language limited the scope of 
Sec. 1915.16 to ship repairing operations only. The reasons for the 
expansion in scope of this section are discussed above in Sec. 1915.11, 
Scope and Application.
    The provisions in final Sec. 1915.16 require that signs and labels 
that are posted to meet the specific requirements contained in other 
sections of Subpart B be presented in a manner that can be understood 
by all employees. Like the previous standard, an individual tank or 
other space need not be labeled separately if the whole area has been 
tested and all means of access to the area are labeled with a warning 
sign.
    OSHA solicited public comment on whether Sec. 1915.16 should 
require that all conditions be labeled on tanks. The majority of 
responders who considered this issue (Ex. 6-8, 6-15, 6-21, 6-22, 6-23, 
6-24, 6-36, 6-37, 6-38) supported the continuation of the previous 
requirement that only tanks containing unsafe work conditions need to 
be labeled. Other commenters (Ex. 6-4, 6-12, 6-28, 6-31) supported 
labeling all locations that had been tested, whether safe or unsafe. 
Still other commenters (Ex. 6-3, 6-6) suggested that only tanks 
containing safe work environments be labeled.
    Those commenters who supported continued use of the previous 
requirement of posting only unsafe tanks are best represented by the 
following comments. The American Waterways Shipyard Conference, (Ex. 6-
23) commented,

    Current shipyard operations only provide warning signs for 
unsafe tanks. If both conditions are marked with warning signs, then 
it ceases to be an instant hazard recognition.

    This was further emphasized by a comment from Sound Testing, Inc., 
(Ex. 6-8):

    I have always found the present standard's section on warning 
signs to be very workable. Not much is gained by labeling safe 
places as such, for three reasons: 1. This practice would be very 
costly; 2. The very idea of using a warning sign on a safe place is 
illogical; and 3. Signs would proliferate. The more signs there are, 
the less is the effect of any single sign. Signs should be used as 
sparingly as possible, so that when we really need them they will be 
effective.

    On the other hand, the National Fire Protection Association (NFPA) 
(Ex. 6-10) supported the placing of warning signs on only those tanks 
that have been tested and found to be safe. NFPA states:

    NFPA would support a requirement for placing warning signs on 
tanks if the signs were specifically restricted to indicating spaces 
which have been tested and suitably designated as ``SAFE.'' If signs 
are required for all tanks which are ``SAFE'' then any tank which 
does not have a sign is then interpreted by all employees to be 
``NOT SAFE.''

    OSHA has concluded that requiring only unsafe spaces to be labeled 
as specified in Secs. 1915.12, 1915.13, or 1915.14 will provide the 
most effective notice of atmospheric conditions that could endanger 
employees. The Agency believes that the identification of hazardous 
conditions is the most efficient means of utilizing signs or labels. 
OSHA agrees with commenters who noted that warning signs should be used 
only when necessary so that when they are posted, employees will take 
notice of them. Shipyard employees are familiar with the labeling of 
tanks that have been tested and found to be unsafe. On the other hand, 
OSHA is not prohibiting the posting of other signs and labels an 
employer may find appropriate for that employer's workplace, but the 
Agency cautions employers about the overuse of signs and labels, which 
could lead to decreased effectiveness. Moreover, in response to the 
NFPA and other commenters who supported labeling ``safe'' spaces, OSHA 
notes that spaces that have been tested and found to be safe are 
required to be identified by the Marine Chemist's certificate or the 
competent person's record of testing and recommendations. These 
certificates and records provide the appropriate notice of safe working 
conditions. There is insufficient evidence in the record to show that 
changes to the labeling requirements would increase safety. For all 
these reasons, OSHA is requiring that all tanks and other spaces that 
fail to meet the requirements of Secs. 1915.12, 1915.13, or 1915.14, as 
applicable, be posted with hazard warning signs or labeled with hazard 
warning messages as required in those sections.
    OSHA deleted paragraph (a) of the old and proposed rules which 
required employers to notify employees of dangerous work areas. The 
reason for this is that the posting requirements for various 
atmospheric conditions are specifically addressed in their respective 
sections.
    The final rule text and the proposed rule text differ in that OSHA 
proposed that employers be responsible for ensuring that all employees 
``obey'' all warning signs. One commenter, Bay Shipbuilding Corp., (Ex. 
6-15) addressed the issue of employee compliance with safety 
regulations.

    The employee must share the responsibility to obey and observe 
proper practices along with the employer. Every employee must be 
held accountable for their actions.

    In this regard, OSHA notes that under the OSH Act, employers are 
responsible for compliance with standards issued under Section 6, and 
enforcement is directed at the employer and not the employee.
    In this final rule, OSHA has revised the previous rule by providing 
two basic requirements addressing hazard warning messages to employees.
    In paragraph (a), OSHA is requiring that all hazard warning 
messages that are posted to comply with respective paragraphs of 
Secs. 1915.12, 1915.13, and 1915.14 be presented in a manner or format 
that can be perceived and understood by all employees.
    OSHA proposed in paragraph (a) that the employer ensure that 
employees understand all warning signs and limitations provided by 
Marine Chemists and the OSHA Form 74. OSHA has dropped the reference to 
the OSHA Form 74 since it is no longer required, and has added new 
language to clarify that the employer must present warning materials in 
a manner that can be understood by all of his or her employees. There 
are many methods such as dual language signs or pictorial graphics that 
an employer may use to ensure that employees can and do understand all 
warning signs and instruction addressing dangerous working conditions. 
This is consistent with the position OSHA has taken on other 
rulemakings that address signs, tags, and labels. For example, in 29 
CFR Sec. 1910.145, OSHA permits the use of accident prevention tags 
using graphic or second language text where necessary. Moreover, the 
obligation to present signs and labels in a manner that can be 
perceived by all employees also means that the label or sign must be 
posted in a place where employees will see it in the course of their 
work. Other factors the employer must consider are size, material, and 
methods of attachment. In short, this new performance-oriented language 
requires that employers provide adequate notice to all employees of 
dangerous working conditions, but leaves the method of presentation up 
to the employer.
    In paragraph (b) of the final rule, OSHA continues to allow 
employers to post the warning signs or labels at all means of access 
rather than requiring each tank or space to be labeled, as long as the 
entire space has been tested and certified. This is the same as 
paragraph (c) of the previous standard.

III. Statutory Considerations

A. Introduction

    OSHA has described the hazards found in confined and enclosed 
spaces and other dangerous atmospheres in shipyard employment and the 
measures required to protect affected employees from those hazards in 
Section I, Background, and in Section II, Summary and Explanation of 
the Final Rule, earlier in this preamble. The Agency is providing the 
following discussion of the statutory mandate for OSHA rulemaking 
activity to explain the legal basis for its determination that the 
Confined and Enclosed Spaces and Other Dangerous Atmospheres standard, 
as promulgated, is reasonably necessary to protect affected employees 
from significant risks of injury and death.
    Section 2(b)(3) of the Occupational Safety and Health Act 
authorizes ``the Secretary of Labor to set mandatory occupational 
safety and health standards applicable to businesses affecting 
interstate commerce'', and section 5(a)(2) provides that ``[e]ach 
employer shall comply with occupational safety and health standards 
promulgated under this Act'' (emphasis added). Section 3(8) of the OSH 
Act (29 U.S.C. 652(8)) provides that ``the term `occupational safety 
and health standard' means a standard which requires conditions, or the 
adoption or use of one or more practices, means, methods, operations, 
or processes, reasonably necessary or appropriate to provide safe or 
healthful employment and places of employment.''
    In two recent cases, reviewing courts have expressed concern that 
OSHA's interpretation of these provisions of the OSH Act, particularly 
of section 3(8) as it pertains to safety rulemaking, could lead to 
overly costly or under-protective safety standards. In International 
Union, UAW v. OSHA, 938 F.2d 1310 (D.C. Cir. 1991), the District of 
Columbia Circuit rejected substantive challenges to OSHA's lockout/
tagout standard and denied a request that enforcement of that standard 
be stayed, but it also expressed concern that OSHA's interpretation of 
the OSH Act could lead to safety standards that are very costly and 
only minimally protective. In National Grain & Feed Ass'n v. OSHA, 866 
F.2d 717 (5th Cir. 1989), the Fifth Circuit concluded that Congress 
gave OSHA considerable discretion in structuring the costs and benefits 
of safety standards but, concerned that the grain dust standard might 
be under-protective, directed OSHA to consider adding a provision that 
might further reduce significant risk of fire and explosion.
    OSHA rulemakings involve a significant degree of Agency expertise 
and policy-making discretion to which reviewing courts must defer. (See 
for example, Building & Constr. Trades Dep't, AFL-CIO v. Brock, 838 
F.2d 1258, 1266 (D.C. Cir. 1988); Industrial Union Dep't, AFL-CIO v. 
American Petroleum Inst., 448 U.S. 607, 655 n. 62 (1980).) At the same 
time, the Agency's technical expertise and policy-making authority must 
be exercised within discernable parameters. The lockout/tagout and 
grain handling standard decisions sought clarification of the Agency's 
view of the scope of its expertise and authority. In light of those 
decisions, the preamble to this safety standard states OSHA's views 
regarding the limits of its safety rulemaking authority and explains 
why the Agency is confident that its interpretive views have in the 
past avoided regulatory extremes and continue to do so in this rule.
    Stated briefly, the OSH Act requires that before promulgating any 
occupational safety standard, OSHA demonstrate based on substantial 
evidence in the record as a whole that: (1) The proposed standard will 
substantially reduce a significant risk of material harm; (2) 
compliance is technologically feasible in the sense that the protective 
measures being required already exist, can be brought into existence 
with available technology, or can be created with technology that can 
reasonably be developed; (3) compliance is economically feasible in the 
sense that industry can absorb or pass on the costs without major 
dislocation or threat of instability; and (4) the standard is cost-
effective in that it employs the least expensive protective measures 
capable of reducing or eliminating significant risk. Additionally, 
proposed safety standards must be compatible with prior Agency action, 
must be responsive to significant comment in the record, and, to the 
extent allowed by statute, must be consistent with applicable Executive 
Orders. These elements limit OSHA's regulatory discretion for safety 
rulemaking and provide a decision-making framework for developing a 
rule.

B. Congress Concluded That OSHA Regulations Are Necessary To Protect 
Workers From Occupational Hazards And That Employers Should Be Required 
To Reduce or Eliminate Significant Workplace Health and Safety Threats

    At section 2(a) of the OSH Act (29 U.S.C. 651(a)), Congress 
announced its determination that occupational injury and illness should 
be eliminated as much as possible: ``The Congress finds that 
occupational injury and illness arising out of work situations impose a 
substantial burden upon, and are a hindrance to, interstate commerce in 
terms of lost production, wage loss, medical expenses, and disability 
compensation payments.'' Congress therefore declared ``it to be its 
purpose and policy * * * to assure so far as possible every working man 
and woman in the Nation safe * * * working conditions [29 U.S.C. 
651(b)].''
    To that end, Congress instructed the Secretary of Labor to adopt 
existing Federal and consensus standards during the first 2 years after 
the OSH Act became effective and, in the event of conflict among any 
such standards, to ``promulgate the standard which assures the greatest 
protection of the safety or health of the affected employees [29 U.S.C. 
655(a)].'' Congress also directed the Secretary to set mandatory 
occupational safety standards (29 U.S.C. 651(b)(3)), based on a 
rulemaking record and substantial evidence (29 U.S.C. 655(b)(2)), that 
are ``reasonably necessary or appropriate to provide safe * * * 
employment and places of employment.'' When promulgating permanent 
safety or health standards that differ from existing national consensus 
standards, the Secretary must explain ``why the rule as adopted will 
better effectuate the purposes of this Act than the national consensus 
standard [29 U.S.C. 655(b)(8)].'' Correspondingly, every employer must 
comply with OSHA standards and in addition, ``furnish to each of his 
employees employment and a place of employment which are free from 
recognized hazards that are causing or are likely to cause death or 
serious physical harm to his employees [29 U.S.C. 654(a)].''
    ``Congress understood that the Act would create substantial costs 
for employers, yet intended to impose such costs when necessary to 
create a safe and healthful working environment. Congress viewed the 
costs of health and safety as a cost of doing business. * * * Indeed, 
Congress thought that the financial costs of health and safety problems 
in the workplace were as large as or larger than the financial costs of 
eliminating these problems [American Textile Mfrs. Inst. Inc. v. 
Donovan, 452 U.S. 490, 519-522 (1981) (ATMI); emphasis was supplied in 
original].'' ``[T]he fundamental objective of the Act [is] to prevent 
occupational deaths and serious injuries [Whirlpool Corp. v. Marshall, 
445 U.S. 1, 11 (1980)].'' ``We know the costs would be put into 
consumer goods but that is the price we should pay for the 80 million 
workers in America [S. Rep. No. 91-1282, 91st Cong., 2d Sess. (1970); 
H.R. Rep. No. 91-1291, 91st Cong., 2d Sess. (1970), reprinted in Senate 
Committee on Labor and Public Welfare, Legislative History of the 
Occupational Safety and Health Act of 1970, (Committee Print 1971) 
(``Leg. Hist.'') at 444 (Senator Yarborough)].'' ``Of course, it will 
cost a little more per item to produce a washing machine. Those of us 
who use washing machines will pay for the increased cost, but it is 
worth it, to stop the terrible death and injury rate in this country 
[Id. at 324; see also 510-511, 517].''

    [T]he vitality of the Nation's economy will be enhanced by the 
greater productivity realized through saved lives and useful years 
of labor.
    When one man is injured or disabled by an industrial accident or 
disease, it is he and his family who suffer the most immediate and 
personal loss. However, that tragic loss also affects each of us. As 
a result of occupational accidents and disease, over $1.5 billion in 
wages is lost each year [1970 dollars], and the annual loss to the 
gross national product is estimated to be over $8 billion. Vast 
resources that could be available for productive use are siphoned 
off to pay workmen's compensation and medical expenses. * * *
    Only through a comprehensive approach can we hope to effect a 
significant reduction in these job death and casualty figures. [Id. 
at 518-19 (Senator Cranston)]

    Congress considered uniform enforcement crucial because it would 
reduce or eliminate the disadvantage that a conscientious employer 
might experience where inter-industry or intra-industry competition is 
present. Moreover, ``many employers--particularly smaller ones--simply 
cannot make the necessary investment in health and safety, and survive 
competitively, unless all are compelled to do so [Leg. Hist. at 144, 
854, 1188, 1201].''
    Thus, the statutory text and legislative history make clear that 
Congress conclusively determined that OSHA regulation is necessary to 
protect workers from occupational hazards and that employers should be 
required to reduce or eliminate significant workplace health and safety 
threats.

C. As Construed by the Courts and by OSHA, the OSH Act Sets Clear and 
Reasonable Limits for Agency Rulemaking Action

    OSHA has long followed the teaching that section 3(8) of the OSH 
Act requires that, before it promulgates ``any permanent health or 
safety standard, [it must] make a threshold finding that a place of 
employment is unsafe--in the sense that significant risks are present 
and can be eliminated or lessened by a change in practices [Industrial 
Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 642 
(1980) (plurality) (Benzene); emphasis was supplied in original].'' 
Thus, the national consensus and existing federal standards that 
Congress instructed OSHA to adopt summarily within two years of the OSH 
Act's inception provide reference points concerning the least an OSHA 
standard should achieve (29 U.S.C. 655(a)). As a result, OSHA is 
precluded from regulating insignificant safety risks or from issuing 
safety standards that do not at least lessen risk in a significant way.
    The OSH Act also limits OSHA's discretion to issue overly 
burdensome rules, as the agency also has long recognized that ``any 
standard that was not economically or technologically feasible would a 
fortiori not be reasonably necessary or appropriate' under the Act. See 
Industrial Union Dep't v. Hodgson, [499 F.2d 467, 478 (D.C. Cir. 1974)] 
(Congress does not appear to have intended to protect employees by 
putting their employers out of business.') [American Textile Mfrs. 
Inst. Inc., 452 U.S. at 513 n. 31 (a standard is economically feasible 
even if it portends disaster for some marginal firms,' but it is 
economically infeasible if it threaten[s] massive dislocation to, or 
imperil[s] the existence of,' the industry)].''
    By stating the test in terms of ``threat'' and ``peril,'' the 
Supreme Court made clear in ATMI that economic infeasibility begins 
short of industry-wide bankruptcy. OSHA itself has placed the line 
considerably below this level. (See for example, ATMI, 452 U.S. at 527 
n. 50; 43 FR 27360 (June 23, 1978). Proposed 200 g/m\3\ PEL 
for cotton dust did not raise serious possibility of industry-wide 
bankruptcy, but impact on weaving sector would be severe, possibly 
requiring reconstruction of 90 percent of all weave rooms. OSHA 
concluded that the 200 g/m\3\ level was not feasible for 
weaving and that 750 g/m\3\ was all that could reasonably be 
required. See also 54 FR 29245-29246 (July 11, 1989); American Iron & 
Steel Institute, 939 F.2d at 1003. OSHA raised engineering control 
level for lead in small nonferrous foundries to avoid the possibility 
of bankruptcy for about half of small foundries even though the 
industry as a whole could have survived the loss of small firms.)
    All OSHA standards must also be cost-effective in the sense that 
the protective measures being required must be the least expensive 
measures capable of achieving the desired end (ATMI, at 514 n. 32; 
Building and Constr. Trades Dep't AFL-CIO v. Brock, 838 F.2d 1258, 1269 
(D.C. Cir. 1988)). OSHA gives additional consideration to financial 
impact in setting the period of time that should be allowed for 
compliance, allowing as much as 10 years for compliance phase-in. (See 
United Steelworkers of Am. v. Marshall, 647 F.2d 1189, 1278 (D.C. Cir. 
1980), cert. denied, 453 U.S. 913 (1981).) Additionally, OSHA's 
enforcement policy takes account of financial hardship on an 
individualized basis. OSHA's Field Operations Manual provides that, 
based on an employer's economic situation, OSHA may extend the period 
within which a violation must be corrected after issuance of a citation 
(CPL 2.45B, Chapter III, paragraph E6d(3)(a), Dec. 31, 1990).
    To reach the necessary findings and conclusions, OSHA conducts 
rulemaking in accordance with the requirements of section 6 of the OSH 
Act. The rulemaking process enables the Agency to determine the 
qualitative and, if possible, the quantitative nature of the risk with 
(and without) regulation, the technological feasibility of compliance, 
the availability of capital to the industry and the extent to which 
that capital is required for other purposes, the industry's profit 
history, the industry's ability to absorb costs or pass them on to the 
consumer, the impact of higher costs on demand, and the impact on 
competition with substitutes and imports. (See ATMI at 2501-2503; 
American Iron & Steel Institute generally.) Section 6(f) of the OSH Act 
further provides that, if the validity of a standard is challenged, 
OSHA must support its conclusions with ``substantial evidence in the 
record considered as a whole,'' a standard that courts have determined 
requires fairly close scrutiny of agency action and the explanation of 
that action. (See Steelworkers, 647 F.2d at 1206-1207.)
    OSHA's powers are further circumscribed by the independent 
Occupational Safety and Health Review Commission, which provides a 
neutral forum for employer contests of citations issued by OSHA for 
noncompliance with health and safety standards (29 U.S.C. 659-661; 
noted as an additional constraint in Benzene at 652 n. 59). OSHA must 
also respond rationally to similarities and differences among 
industries or industry sectors. (See Building and Constr. Trades Dep't, 
AFL-CIO v. Brock, 838 F.2d 1258, 1272-73 (D.C. Cir. 1988).)
    OSHA rulemaking is thus constrained first by the need to 
demonstrate that the standard will substantially reduce a significant 
risk of material harm, and then by the requirement that compliance is 
technologically capable of being done and not so expensive as to 
threaten economic instability or dislocation for the industry. Within 
these bounds, further constraints such as the need to find cost-
effective measures and to respond rationally to all meaningful comment 
militate against regulatory extremes.

D. The Confined and Enclosed Spaces and Other Dangerous Atmospheres in 
Shipyard Employment Standard Complies With the Statutory Criteria 
Described Above and Is Not Subject to the Additional Constraints 
Applicable to Section 6(b)(5) Standards

    Standards which regulate hazards that are frequently undetectable 
because they are subtle or develop slowly or after long latency 
periods, are frequently referred to as ``health'' standards. Standards 
that regulate hazards, like explosions or electrocution, that cause 
immediately noticeable physical harm, are called ``safety'' standards. 
(See National Grain & Feed Ass'n v. OSHA (NGFA II), 866 F.2d 717, 731, 
733 (5th Cir. 1989). As noted above, section 3(8) provides that all 
OSHA standards must be ``reasonably necessary or appropriate.'' In 
addition, section 6(b)(5) requires that OSHA set health standards which 
limit significant risk ``to the extent feasible.'' OSHA has determined 
that the Confined and Enclosed Spaces and Other Dangerous Atmospheres 
in Shipyard Employment standard is a safety standard, because the 
standard addresses hazards, such as asphyxiation, explosions, and 
fires, that are immediately dangerous to life or health, not the longer 
term, less obvious hazards subject to section 6(b)(5).
    The OSH Act and its legislative history clearly indicate that 
Congress intended for OSHA to distinguish between safety standards and 
health standards. For example in section 2(b)(6) of the OSH Act, 
Congress declared that the goal of assuring safe and healthful working 
conditions and preserving human resources would be achieved, in part:

    * * *by exploring ways to discover latent diseases, establishing 
causal connections between diseases and work in environmental 
conditions, and conducting other research relating to health 
problems, in recognition of the fact that occupational health 
standards present problems often different from those involved in 
occupational safety.

    The legislative history makes this distinction even clearer:

    [The Secretary] should take into account that anyone working in 
toxic agents and physical agents which might be harmful may be 
subjected to such conditions for the rest of his working life, so 
that we can get at something which might not be toxic now, if he 
works in it a short time, but if he works in it the rest of his life 
might be very dangerous; and we want to make sure that such things 
are taken into consideration in establishing standards. [Leg. Hist. 
at 502-503 (Sen. Dominick), quoted in Benzene at 648-49]

    Additionally, Representative Daniels distinguished between 
``insidious silent killers' such as toxic fumes, bases, acids, and 
chemicals'' and ``violent physical injury causing immediate visible 
physical harm'' (Leg. Hist. at 1003), and Representative Udall 
contrasted insidious hazards like carcinogens with ``the more visible 
and well-known question of industrial accidents and on-the-job injury'' 
(Leg. Hist. at 1004). (See also, for example, S. Rep. No. 1282, 91st 
Cong., 2d Sess. 2-3 (1970), U.S. Code Cong. & Admin. News 1970, pp. 
5177, 5179, reprinted in Leg. Hist. at 142-143, discussing 1967 Surgeon 
General study that found that 65 percent of employees in industrial 
plants ``were potentially exposed to harmful physical agents, such as 
severe noise or vibration, or to toxic materials''; Leg. Hist. at 412; 
id. at 446; id. at 516; id. at 845; International Union, UAW at 1315.)
    In reviewing OSHA rulemaking activity, the Supreme Court has held 
that section 6(b)(5) requires OSHA to set ``the most protective 
standard consistent with feasibility'' (Benzene at 643 n. 48). As 
Justice Stevens observed:

    The reason that Congress drafted a special section for these 
substances * * * was because Congress recognized that there were 
special problems in regulating health risks as opposed to safety 
risks. In the latter case, the risks are generally immediate and 
obvious, while in the former, the risks may not be evident until a 
worker has been exposed for long periods of time to particular 
substances. [Benzene, at 649 n. 54.]

    Challenges to the grain dust and lockout/tagout standards included 
assertions that grain dust in explosive quantities and uncontrolled 
energy releases that could expose employees to crushing, cutting, 
burning or explosion hazards were harmful physical agents so that OSHA 
was required to apply the criteria of section 6(b)(5) when determining 
how to protect employees from those hazards. Reviewing courts have 
uniformly rejected such assertions. For example, the Court in 
International Union, UAW v. OSHA, 938 F.2d 1310 (D.C. Cir. 1991) 
rejected the view that section 6(b)(5) provided the statutory criteria 
for regulation of uncontrolled energy, holding that such a ``reading 
would obliterate a distinction that Congress drew between health and 
safety risks.'' The Court also noted that the language of the OSH Act 
and the legislative history supported the OSHA position (International 
Union, UAW at 1314). Additionally, the Court stated: ``We accord 
considerable weight to an agency's construction of a statutory scheme 
it is entrusted to administer, rejecting it only if unreasonable'' 
(International Union, UAW at 1313, citing Chevron U.S.A., Inc. v. NRDC, 
467 U.S. 837, 843 (1984)).
    The Court reviewing the grain dust standard also deferred to OSHA's 
reasonable view that the Agency was not subject to the feasibility 
mandate of section 6(b)(5) in regulating explosive quantities of grain 
dust (National Grain & Feed Association v. OSHA (NGFA II), 866 F.2d 
717, 733 (5th Cir. 1989)). It therefore applied the criteria of section 
3(8), requiring the Agency to establish that the standard is 
``reasonably necessary or appropriate'' to protect employees.
    As explained in Section I, Background, and Section II, Summary and 
Explanation of the Final Rule, earlier in this preamble, and Section 
IV, Summary of Final Regulatory Analysis, below, OSHA has determined 
that confined and enclosed spaces and other dangerous atmospheres in 
shipyard employment pose significant risks to employees and that the 
provisions of the final rule are reasonably necessary to protect 
affected employees from those risks. OSHA believes that compliance is 
economically feasible, because, as documented in the Regulatory Impact 
Analysis, all regulated sectors can readily absorb or pass on 
compliance costs.
    As presented in Section IV, Summary of Final Regulatory Analysis, 
later in this preamble, and in Table 1, the standard's costs, benefits, 
and compliance requirements are consistent with those of other OSHA 
safety standards, such as the Hazardous Waste Operations and Emergency 
Response (HAZWOPER) standard.
    OSHA assessed employee risk by evaluating exposure to the hazards 
associated with confined and enclosed spaces and other dangerous 
atmospheres in shipyard employment. Section IV, Summary of Final 
Regulatory Analysis, later in this preamble, presents OSHA's estimate 
of the costs and benefits of the Confined and Enclosed Spaces and Other 
Dangerous Atmospheres in Shipyard Employment standard. OSHA has set the 
scope of the Confined and Enclosed Spaces and Other Dangerous 
Atmospheres standard to address situations in which employees are 
exposed to these hazards, regardless of the location, shipboard vs. 
land-side. The Agency believes, based on analysis of the elements of 
the hazards identified, that there is sufficient information for OSHA 
to determine that employees in the covered sectors face significant 
risks related to confined and enclosed spaces and other dangerous 
atmospheres in shipyard employment. Therefore, the Agency has 
determined that all employees within the scope of the Confined and 
Enclosed Spaces and Other Dangerous Atmospheres in Shipyard Employment 
standard face a significant risk of material harm and that compliance 
with these standards is reasonably necessary to protect affected 
employees from that risk.
    OSHA has considered and responded to all substantive comments 
regarding the proposed Confined and Enclosed Spaces and Other Dangerous 
Atmospheres in Shipyard Employment on their merits in Section II, 
Summary and Explanation of the Final Rule, earlier in this preamble. In 
particular, OSHA evaluated all suggested changes to the proposed rule 
in terms of their impact on worker safety, their feasibility, their 
cost effectiveness, and their consonance with the OSH Act.

IV. Final Regulatory Impact Analysis, Regulatory Flexibility 
Certification, and Environmental Impact Assessment

A. Summary

    The Agency has concluded that the final Subpart B standard for 
confined spaces in shipyards is technologically and economically 
feasible. Subpart B incorporates the approach of the previous standard 
and subpart A (as it applies to subpart B) while mandating new, 
comprehensive program elements such as training, duty to other 
employers, and rescue.
    The Agency estimates that the final rule will result in no new 
significant costs for the industry. In addition, the Agency finds that 
the final Subpart B is the most cost-effective approach. The Agency 
agrees with its Shipyard Employment Standards Advisory Committee 
(SESAC) that the current approach of making confined and enclosed 
spaces and other dangerous atmospheres safe before entry and using 
Marine Chemists and competent persons to test and certify spaces has 
succeeded well and will continue to provide a safe working environment 
for employees.

                    Table I.--Summary of Benefits and Costs of Recent OSHA Safety Standards                     
----------------------------------------------------------------------------------------------------------------
                                                               Number of    Number of      Annual               
                                                                 deaths      injuries   costs first  Annual cost
     Standard (CFR cite)         Final rule date (FR cite)     prevented    prevented      5 yrs      next 5 yrs
                                                               annually     annually      (mill)       (mill)   
----------------------------------------------------------------------------------------------------------------
Grain handling (Sec.           12-31-87 (52 FR 49622).......           18          394     5.9-33.4     5.9-33.4
 1910.272).                                                                                                     
HAZWOPER (Sec. 1910.120).....  3-6-89 (54 FR 9311)..........           32       18,700          153          153
Excavations (Subpart P)......  10-31-89 (54 FR 45,954)......           74          800          306          306
Process safety Mgmt (Sec.      2-24-92 (57 FR 6356).........          330        1,917        880.7        470.8
 1910.119).                                                                                                     
Permit-required confined       1-14-93 (58 FR 4462).........           54        5,041        202.4       202.4 
 spaces (Sec. 1910.146).                                                                                        
----------------------------------------------------------------------------------------------------------------

    In addition, extending the scope of Subpart B to land-side 
activities will benefit the industry and its workers by ensuring that 
land-side work activities are covered by a protective standard. Most of 
the industry has been following Subpart B for confined space work on 
land-side for some time. Because workers and the tasks and hazards are 
essentially the same whether on vessels or land-side, employing 
separate standards for each would have the potential to create 
confusion and actually increase the risk of an incident occurring. The 
full regulatory impact analysis is in docket S-050.

B. Introduction

    Executive Order 12866 requires the Agency to perform an analysis of 
the costs, benefits, and regulatory alternatives of its ``significant 
regulatory actions.'' A significant regulatory action is one that is 
likely to result in a rule that may: (1) Have an annual effect on the 
economy of $100 million or more or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or state, local, or tribal 
governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order. This final rule directly affects one well-defined 
industry, the shipbuilding and ship repair industry, but there are no 
new costs of compliance. Accordingly, the promulgation of the confined 
and enclosed spaces and other dangerous atmospheres standard for 
shipyard employment is not a ``significant regulatory action'' for the 
purposes' of E.O. 12866.
    As required by the OSH Act and its judicial interpretations, the 
Agency must demonstrate that this regulation is both technologically 
and economically feasible for the shipyard industry. The Agency has 
concluded that this standard meets both tests of feasibility.
    In addition, the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 
et seq.) requires Federal agencies to determine whether a regulation 
will have a significant economic impact on a substantial number of 
small entities. The Assistant Secretary certifies that this rule will 
not have such an impact, as the rule imposes no new cost on firms.
    The Agency must also review this standard in accordance with the 
requirements of the National Environmental Policy Act (NEPA) of 1969 
(42 U.S.C. 4321 et seq.), the Guidelines of the Council of 
Environmental Quality (CEQ)(40 CFR part 1500), and OSHA's DOL NEPA 
Procedures (29 CFR part 11).
    This summary of the Agency's analysis includes an overview of 
affected industries and employees, estimated benefits, the 
technological feasibility of the standard, estimated compliance costs, 
regulatory flexibility analysis, economic and environmental impacts, a 
discussion of the regulatory and non-regulatory alternatives to this 
final standard, and the existence of significant risk. The full text of 
the regulatory analysis has been placed in the shipyard confined 
space's Docket S-050.
    OSHA created the Shipyard Employment Standards Advisory Committee 
(SESAC) in 1988 to advise the Agency in consolidating the shipyard 
standards. The committee was made up of representatives from industry, 
labor, government, and professional organizations. Besides making 
recommendations to the Agency about its regulations, the committee also 
provided information about current industry practices and the costs and 
benefits of various rules and alternatives. This information has been 
reviewed carefully by the Agency in developing the Regulatory Analysis 
of the final rule.

C. Industry Profile

    The American shipyard industry has been in a long-term decline 
since 1981 when the Federal government ended subsidy programs for 
commercial ship construction. In the period 1976-1980, the industry 
built an average of 64 merchant vessels per year. Only five commercial 
ships have been built since 1988. The decline in merchant vessel 
construction in the 1980s was partially offset by a large increase in 
military ship construction. However, the end of the military 
competition with the former U.S.S.R. has resulted in a sharp drop in 
military ships on order. The recently completed ``bottom-up'' review of 
the armed forces has called for a major reduction in the number of 
active combat ships, and consequently a drop in the number of future 
orders. U.S. Navy orders, which averaged 19 per year in the 1980s, is 
estimated to fall to 8 per year during the period 1994-1999. Ship 
repair and construction of inland vessels and barges has remained 
constant during the past 5 years.
    Employment in the shipbuilding industry had fallen from 177,000 in 
1984 to about 125,000 by 1987 and remained near that level until 1992. 
The Bureau of Labor Statistics estimates that employment in the 
industry had fallen to 106,000 by late 1993. It is likely that 
employment will continue to fall to below 100,000 in the next few 
years. In 1992 the value of output from American shipyards was 
approximately $9.9 billion. Based on Dun & Bradstreet's estimated mean 
return for the shipyard industry of 2.9 percent, the industry earned 
approximately $287 million.
    The Agency estimates that there are approximately 500 firms in SIC 
3731, and a majority of these have fewer than 50 employees. Employment 
in the shipyard industry is highly concentrated. The ten largest 
shipyards employ approximately 70 percent of all shipyard workers, and 
only the 100 largest firms have as many as 100 employees. The Agency 
estimates that approximately 200 firms engaged in ship repair employ 
fewer than 11 employees.

D. Population at Risk

    Based on data in the 1987 Census of Manufacturers, 75 percent of 
shipyard employees are production employees. Data from CONSAD Research 
Corporation's 1986 report to OSHA estimated that 76.6 percent of 
shipyard workers were production workers. Relying on the 1987 Census of 
Manufacturers, the Agency concludes that there are approximately 79,500 
production workers (75 percent of 106,000 total employees) who are 
potentially involved in confined space entry in shipyard employment and 
are therefore exposed to confined space hazards.

E. Technological Feasibility

    The shipyard industry has been applying the previous Subpart B on 
vessels for approximately 30 years--and to some extent on land-side 
activities. While the revised final standard mandates new elements such 
as training, rescue, and duty to other employers, it makes no 
fundamental change in the way shipyards perform confined spaces' work. 
Technologies such as atmospheric testing instruments, ventilation 
equipment, and respirators have been in use for many years throughout 
the industry. As the new standard does not require any new technology 
or engineering or other controls, the Agency concludes that this new 
confined space standard is technologically feasible. The performance-
oriented criteria of the standard should also allow technological 
innovation to achieve compliance.

F. Costs and Benefits

    Several elements in the final rule could impose costs on the 
shipyard industry: requirements for training of production workers; 
duty to other employers (contractors and subcontractors); extending the 
scope to land-side operations; and specifications for self-rescue and 
rescue teams. The Shipyard Employment Safety Advisory Committee (SESAC) 
recommended that all of these provisions be included in the final 
confined spaces standard to make the rule comprehensive. Submissions to 
the docket by the shipyard industry, unions, and professionals in the 
maritime industry indicate that these elements would not impose new 
costs on shipyards but would in essence codify current industry 
practice. Testimony at SESAC's meetings also consistently indicated 
that the elements of the new standard would impose no new costs on the 
industry (SESAC transcript Sept. 3, 1992, pp. 471-503). The Agency 
therefore concludes that the new Subpart B is economically feasible, 
and will have no effect on profits or the cost of output of the 
shipyard industry.
    A benefit of the final rule is to eliminate a paperwork requirement 
of reporting the identity of shipyard competent persons to the Agency 
on two forms and to clarify the duties of the competent person, 
Certified Industrial Hygienist, and Marine Chemist. The Agency believes 
that full compliance with existing Subpart B would eliminate the 
average of one to two annual fatalities. However, the Agency also 
concludes that mandating the new comprehensive elements of the final 
standard (for training, duty to other employers, and rescue) will 
contribute to compliance and discipline in applying Subpart B and will 
reduce the number of fatalities. The Agency also concludes that 
increasing the oxygen content to 19.5 percent by volume, specifying the 
order of atmospheric testing, and limiting oxygen to no more than 22 
percent by volume reduces significant risk relative to the requirements 
of existing Subpart B. The shipyard industry largely conforms to these 
practices at the present time.

G. Regulatory Alternatives

    The Agency also believes that the proposed rule is the most cost-
effective regulatory alternative for this industry. If the general 
industry ``permit-entry confined spaces'' standard (29 CFR 1910.146) 
were applied to land-side activities--or all shipyard work--costs would 
be incurred to re-train shipyard production workers in a second 
procedure for entering and working in confined spaces, for attendants, 
and for establishing a written program. The Agency estimates that this 
would cost the industry approximately $104 million annually. These 
costs are not as high as estimates found in the comments to the docket 
because the final general industry permit spaces rule differed 
significantly from the proposed rule, especially on the number of 
attendants that would be required. Adopting the general industry 
confined spaces for only land-side shipyard operations could also 
result in increased risk of accidents if shipyard workers had to apply 
two distinct standards to their work. Confined space work is routine in 
shipyards and employees frequently shift back and forth between land-
side and vessels.
    A second regulatory alternative would be to apply the general 
industry standard to all shipyard work. Here the program costs would be 
as great as the first alternative but the Agency has concluded that 
there would not be additional benefits. The shipyard confined space 
standard is in many ways a more restrictive subset of the general 
industry standard. The additional program-based elements of 
Sec. 1910.146 would not improve the safety of confined space entry in 
shipyards because the shipyard standard is even more comprehensive in 
its coverage of hazardous atmospheres. Further, its approach to 
inspection, testing, and ventilating spaces has become an integral part 
of the routine work activity in shipyard employment.
    Confined and enclosed space and other dangerous atmosphere work in 
shipyards is unique: it is routine; hazardous atmospheres are common; 
and the work activity itself frequently introduces or creates hazards. 
The confined spaces of each ship are different. A ship's interior 
structure may consist of a series of nested confined spaces, one within 
the other, each of which may be irregular and accessible through small 
hatches. Safety procedures based on attendants or quick rescue are not 
a safe or a practical solution.
    Evidence in the record from the industry attests to the success of 
the shipyard industry in protecting employees during work in confined 
spaces (Docket S-050: 11-3, 11-6, 11-12, 11-13, 11-17, 11-30). However, 
fatalities and injuries do occur: OSHA recorded 20 deaths between 1983-
1992 in its Fatality Investigation Reports for the shipyard and boat-
building industries combined. In every case, OSHA's evaluation 
indicated that the fatality was caused by a failure to follow the 
requirements of the previous Subpart B. Although accidents are 
relatively few given the large number of confined space entries and the 
hazards involved, the continuing number of fatalities and injuries 
indicates that a regulation is necessary to maintain safe work 
practices.

H. International Trade

    In accordance with Executive Order 12866, OSHA assessed the effects 
of the final standard on international trade. The shipyard industry 
actively competes with foreign shipyards for ship repair and 
shipbuilding orders. If this OSHA regulation significantly increased 
the price of products and services of domestic shipyards, foreign 
shipyards could benefit. OSHA believes, however, that there will be no 
significant effect on products or services as a result of this 
regulation.

I. Environmental Impact

    The confined spaces standard has been reviewed in accordance with 
the requirements of the National Environmental Policy Act (NEPA) of 
1969 (42 U.S.C. 4321 et seq.), the regulations of the Council on 
Environmental Quality (40 CFR Part 1500), and DOL NEPA Procedures (29 
CFR Part 11). This rule will not result in a significant incremental 
increase release of hazardous substances into the ambient air. Releases 
of substances regulated under EPA's SARA Title III or EPA NESHAP 
standards are subject to reporting and control requirements in those 
rules.

J. References

    1. U.S. Department of Commerce. International Trade 
Administration. 1993 U.S. Industrial Outlook. 30th Annual Edition.
    2. U.S. Department of Transportation. Maritime Administration. 
Report on Survey of U.S. Shipbuilding and Repair Facilities, 1990.
    3. U.S. Department of Commerce. Bureau of the Census. 
Preliminary Report Industry Service 1987 Census of Manufacturers: 
Shipbuilding and Repairing (Industry 3731). Washington, D.C.: 
Government Printing Office, 1990.
    4. U.S. Department of Commerce. Bureau of the Census. 
Preliminary Report Industry Service 1987 Census of Manufacturers: 
Shipbuilding and Repairing (Industry 3731). Washington, D.C.: 
Government Printing Office, 1989.
    5. CONSAD Research Corp. Data to Support a Regulatory Analysis 
of the Proposed Standard for Shipbuilding and Repairing. Final 
Report. Prepared for the U.S. Department of Labor, Occupational 
Safety and Health Administration, under Contract No. J-9-F-4-0024. 
Pittsburgh: CONSAD, November 1985.
    6. CONSAD Research Corp. Data to Support a Regulatory Analysis 
of the Proposed Standard for Shipbuilding and Repairing: Subpart B. 
Prepared for the U.S. Department of Labor, Occupational Safety and 
Health Administration, under Contract No. J-9-F-4-0024. Pittsburgh: 
CONSAD, June 1986.
    7. Commission on Merchant Marine and Defense. First Report of 
the Commission of Merchant Marine and Defense, Appendices. 
Washington, D.C., September 30, 1987.
    8. Dun and Bradstreet Financial Data. 1989, 1991.
    9. Bureau of Labor Statistics, Employment and Earnings, Nov., 
1993.
    10. Executive Office of the President. OMB. Standard Industrial 
Classification Manual. 1987.
    11. Main Hurdman/KGM. Profile of the Shipbuilding and Repairing 
Industry. Prepared for the U.S. Department of Labor, Occupational 
Safety and Health Administration. Washington, D.C., October 1984. 62 
Pp.
    12. Shipyard Council of America. ``Merchant Shipbuilding'' 
September, 1987; ``Naval Shipbuilding'' January, 1992; ``Ship 
Construction Report'' July, 1991.
    13. American Waterways Shipyard Conference. 1989 and 1992 Annual 
Shipyard Survey. Arlington, Va.
    14. Bureau of Labor Statistics, Occupational Injuries and 
Illnesses in the U.S. by Industry 1992.
    15. Selected Occupational Fatalities Related to Ship Building 
and Repairing as Found in Reports of OSHA Fatality/ Catastrophe 
Investigations, U.S. Dept. of Labor, OSHA, 1990.

V. Effective Date

    In developing the final rule, OSHA has considered whether a delayed 
effective date is necessary for any of the provisions of the standard. 
Employers will need time to integrate their procedures for complying 
with the provisions in this standard as applied to land-side confined 
and enclosed spaces and other dangerous atmospheres. Although the 
record indicates that the new provisions (training, rescue, and duties 
to other employers) being used on board vessels and vessel sections are 
current industry practice, under this standard they also have been 
expanded to include land-side operations. OSHA believes that a period 
of 90 days will be adequate for this purpose, since most of the 
requirements in the final rule do not require extensive training or 
major modifications of existing work practices. This amount of time 
will be adequate for employers to ensure that their work practices 
conform to the requirements of the revised standard.

VI. Information Collection Requirements

    5 CFR part 1320 sets forth procedures for agencies to follow in 
obtaining OMB clearance for information collection requirements under 
the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. The final 
Confined and Enclosed Spaces and Other Dangerous Atmospheres standard 
requires the employer to allow OSHA access to the competent person 
roster, testing and inspection results, and training records. In 
accordance with the provisions of the Paperwork Reduction Act and the 
regulations issued pursuant thereto, OSHA certifies that it has 
submitted the information collection to OMB for review under section 
3504(b) of that Act.
    Public reporting burden for this collection of information is 
estimated to average five minutes per response to allow OSHA compliance 
officers access to the employer's records. Send comments regarding this 
burden estimate, or any other aspect of this collection of information, 
including suggestions for reducing this burden, to the Office of 
Information Management, Department of Labor, room N-1301, 200 
Constitution Avenue, NW., Washington, DC 20210; and to the Office of 
Management and Budget, Paperwork Reduction Project (Confined and 
Enclosed Spaces and Other Dangerous Atmospheres). Washington, DC 20503.

VII. Federalism

    This final rule has been reviewed in accordance with Executive 
Order 12612 (52 FR 41685, October 30, 1987), regarding Federalism. This 
Order requires that agencies, to the extent possible, refrain from 
limiting state policy options, consult with states before taking any 
actions which would restrict state policy options, and take such 
actions only if there is clear constitutional authority and the 
presence of a problem of national scope. The Order provides for 
preemption of state law only if there is a clear Congressional intent 
for the Agency to do so. Any such preemption is to be limited to the 
extent possible.
    Section 18 of the Occupational Safety and Health Act (OSH Act) 
expresses Congress' clear intent to preempt state laws relating to 
issues on which Federal OSHA has promulgated occupational safety and 
health standards. Under the OSH Act, a state can avoid preemption only 
if it submits, and obtains Federal approval of, a plan for the 
development of such standards and their enforcement. Occupational 
safety and health standards developed by such Plan-States must, among 
other things, be at least as effective in providing safe and healthful 
employment and places of employment as the Federal standards. Where 
such standards are applicable to products distributed or used in 
interstate commerce, they may not unduly burden commerce and must be 
justified by compelling local conditions. (See section 18(c)(2) of the 
OSH Act.)
    The Federal standards on confined and enclosed spaces and other 
dangerous atmospheres address hazards which are not unique to any one 
state or region of the country. Nonetheless, states with occupational 
safety and health plans approved under section 18 of the OSH Act will 
be able to develop their own state standards to deal with any special 
problems which might be encountered in a particular state. Moreover, 
because these standards are written in general, performance-oriented 
terms, there is considerable flexibility for state plans to require, 
and for affected employers to use, methods of compliance which are 
appropriate to the working conditions covered by the standard.
    In brief, this final rule addresses a clear national problem 
related to occupational safety and health in shipyard employment. 
States which have elected to participate under section 18 of the OSH 
Act are not preempted by this standard and will be able to address any 
special conditions within the framework of the Federal Act, while 
ensuring that the state standards are at least as effective as this 
standard.

VIII. State Plan Standards

    The 23 states and 2 territories with their own OSHA-approved 
occupational safety and health plans must adopt a comparable standard 
within 6 months of the publication date of the final standard. These 
states and territories are: Alaska, Arizona, California, 
Connecticut,4 Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, 
Minnesota, Nevada, New Mexico, New York,5 North Carolina, Oregon, 
Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin 
Islands, Washington, and Wyoming. Until such time as a state standard 
is promulgated, Federal OSHA will provide interim enforcement 
assistance, as appropriate, in these states.
---------------------------------------------------------------------------

    \4\Plan covers only State and local government employees.
    \5\Plan covers only State and local government employees.
---------------------------------------------------------------------------

IX. Authority

    This document was prepared under the direction of Joseph A. Dear, 
Assistant Secretary of Labor for Occupational Safety and Health, U.S. 
Department of Labor, 200 Constitution Avenue, N.W., Washington, DC 
20210.

List of Subjects in 29 CFR Part 1915

    Confined spaces, Emergency medical services, Hazardous substances, 
Marine safety, Occupational Safety and Health, Signs and Symbols, 
Vessels, Welding.

    Accordingly, pursuant to section 41 of LHWCA (33 U.S.C. 941), 
sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 
(29 U.S.C. 653, 655, 657), Secretary of Labor's Order No. 1-90 (55 FR 
9033), and 29 CFR part 1911, 29 CFR part 1915 is amended as set forth 
below.

    Signed at Washington, DC, this 8th day of July 8, 1994.
Joseph A. Dear,
Assistant Secretary of Labor.

    Part 1915 of Title 29 of the Code of Federal Regulations is amended 
as follows:

PART 1915--[AMENDED]

    1. The authority citation for part 1915 continues to read as 
follows:

    Authority: Sec. 41, Longshore and Harbor Workers' Compensation 
Act (33 U.S.C. 941); secs. 4, 6, 8, Occupational Safety and Health 
Act of 1970 (29 U.S.C. 653, 655, 657); Sec. 4 of the Administrative 
Procedure Act (5 U.S.C. 553); Secretary of Labor's Order No. 12-71 
(36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), or 1-90 (55 FR 
9033) as applicable; 29 CFR Part 1911.

Subpart A--General Provisions

    2. Section 1915.7 is revised to read as follows:


Sec. 1915.7  Competent person.

    (a) Application. This section applies to shipyard employment.
    (b) Designation. (1) One or more competent persons shall be 
designated by the employer in accordance with the applicable 
requirements of this section, unless the requirements of Subparts B, C, 
D and H of this part are always carried out by a Marine Chemist. 
Exception: The employer may designate any person who meets the 
applicable portions of the criteria set forth in paragraph (c) of this 
section as a competent person who is limited to performing testing to 
the following situations:
    (i) Repair work on small craft in boat yards where only combustible 
gas indicator tests are required for fuel tank leaks or when using 
flammable paints below decks;
    (ii) Building of wooden vessels where only knowledge of the 
precautions to be taken when using flammable paints is required;
    (iii) The breaking of vessels where there is no fuel oil or other 
flammable hazard; and
    (iv) Tests and inspections performed to comply with 
Secs. 1915.35(b)(8) and 1915.36(a)(5).
    (2)(i) The employer shall maintain either a roster of designated 
competent persons or a statement that a Marine Chemist will perform the 
tests or inspections which require a competent person.
    (ii) The employer shall make the roster of designated persons or 
the statement available to employees, the employee's representative, 
the Director or the Assistant Secretary upon request.
    (iii) The roster shall contain, as a minimum, the following:
    (A) The employers' name,
    (B) The designated competent person's name(s), and
    (C) The date the employee was trained as a competent person.
    (c) Criteria. The employer shall ensure that each designated 
competent person has the following skills and knowledge:
    (1) Ability to understand and carry out written or oral information 
or instructions left by Marine Chemist, Coast Guard authorized persons 
and Certified Industrial Hygienists;
    (2) Knowledge of Subparts B, C, D and H of this part;
    (3) Knowledge of the structure, location, and designation of spaces 
where work is done;
    (4) Ability to calibrate and use testing equipment including but 
not limited to, oxygen indicators, combustible gas indicators, carbon 
monoxide indicators, and carbon dioxide indicators, and to interpret 
accurately the test results of that equipment;
    (5) Ability to perform all required tests and inspections which are 
or may be performed by a competent person as set forth in Subparts B, 
C, D and H of this part.
    (6) Ability to inspect, test, and evaluate spaces to determine the 
need for further testing by a Marine Chemist or a Certified Industrial 
Hygienist; and
    (7) Ability to maintain records required by this section.
    (d) Recordkeeping. (1) When tests and inspections are performed by 
a competent person, Marine Chemist, or Certified Industrial Hygienist 
as required by any provisions of subparts B, C, D, or H of this part, 
the employer shall ensure that the person performing the test and 
inspection records the location, time, date, location of inspected 
spaces, and the operations performed, as well as the test results and 
any instructions.
    (2) The employer shall ensure that the records are posted in the 
immediate vicinity of the affected operations while work in the spaces 
is in progress. The records shall be kept on file for a period of at 
least three months from the completion date of the specific job for 
which they were generated.
    (3) The employer shall ensure that the records are available for 
inspection by the Assistant Secretary, Director, and employees and 
their representatives.
    3. Subpart B of part 1915 is revised to read as follows:
Subpart B--Confined and Enclosed Spaces and Other Dangerous Atmospheres 
in Shipyard Employment
Sec.
1915.11  Scope, application, and definitions applicable to this 
subpart.
1915.12  Precautions before entering confined and enclosed spaces 
and other dangerous atmospheres.
1915.13  Cleaning and other cold work.
1915.14  Hot work.
1915.15  Maintenance of safe conditions.
1915.16  Warning signs and labels.

Appendix A to Subpart B--Compliance Assistance Guidelines for Confined 
and Enclosed Spaces and Other Dangerous Atmospheres

Appendix B to Subpart B--Reprint of U.S. Coast Guard Regulations 
Referenced in Subpart B, for Determination of Coast Guard Authorized 
Persons


Sec. 1915.11  Scope, application and definitions applicable to this 
Subpart.

    (a) Scope and application. This Subpart applies to work in confined 
and enclosed spaces and other dangerous atmospheres in shipyard 
employment, including vessels, vessel sections, and on land-side 
operations regardless of geographic location.
    (b) Definitions applicable to this Subpart.
    Adjacent spaces means those spaces bordering a subject space in all 
directions, including all points of contact, corners, diagonals, decks, 
tank tops, and bulkheads.
    Assistant Secretary means the Assistant Secretary of Labor for 
Occupational Safety and Health, or designated representative.
    Certified Industrial Hygienist (CIH) means an industrial hygienist 
who is certified by the American Board of Industrial Hygiene.
    Coast Guard authorized person means an individual who meets the 
requirement of Appendix B to subpart B of this part 1915 for tank 
vessels, for passenger vessels, and for cargo and miscellaneous 
vessels.
    Dangerous atmosphere means an atmosphere that may expose employees 
to the risk of death, incapacitation, impairment of ability to self-
rescue (i.e., escape unaided from a confined or enclosed space), 
injury, or acute illness.
    Director means the Director of the National Institute for 
Occupational Safety and Health, U.S. Department of Health and Human 
Services, or designated representative.
    Enter with Restrictions denotes a space where entry for work is 
permitted only if engineering controls, personal protective equipment, 
clothing, and time limitations are as specified by the Marine Chemist, 
Certified Industrial Hygienist, or the shipyard competent person.
    Entry means the action by which a person passes through an opening 
into a space. Entry includes ensuing work activities in that space and 
is considered to have occurred as soon as any part of the entrant's 
body breaks the plane of an opening into the space.
    Hot work means any activity involving riveting, welding, burning, 
the use of powder-actuated tools or similar fire-producing operations. 
Grinding, drilling, abrasive blasting, or similar spark-producing 
operations are also considered hot work except when such operations are 
isolated physically from any atmosphere containing more than 10 percent 
of the lower explosive limit of a flammable or combustible substance.
    Immediately dangerous to life or health (IDLH) means an atmosphere 
that poses an immediate threat to life or that is likely to result in 
acute or immediate severe health effects.
    Inert or inerted atmosphere means an atmospheric condition where:
    (1) The oxygen content of the atmosphere in the space is maintained 
at a level equal to or less than 8.0 percent by volume or at a level at 
or below 50 percent of the amount required to support combustion, 
whichever is less; or
    (2) The space is flooded with water and the vapor concentration of 
flammable or combustible materials in the free space atmosphere above 
the water line is less than 10 percent of the lower explosive limit for 
the flammable or combustible material.
    Labeled means identified with a sign, placard, or other form of 
written communication, including pictograms, that provides information 
on the status or condition of the work space to which it is attached.
    Lower explosive limit (LEL) means the minimum concentration of 
vapor in air below which propagation of a flame does not occur in the 
presence of an ignition source.
    Marine Chemist means an individual who possesses a current Marine 
Chemist Certificate issued by the National Fire Protection Association.
    Not Safe for Hot Work denotes a space where hot work may not be 
performed because the conditions do not meet the criteria for Safe for 
Hot Work.
    Nationally Recognized Testing Laboratory (NRTL) means an 
organization recognized by OSHA, in accordance with Appendix A of 29 
CFR 1910.7, which tests for safety and lists or labels or accepts 
equipment and materials that meet all the criteria found in 
Sec. 1910.7(b)(1) through (b)(4)(ii).
    Not Safe for Workers denotes a space where an employee may not 
enter because the conditions do not meet the criteria for Safe for 
Workers.
    Oxygen-deficient atmosphere means an atmosphere having an oxygen 
concentration of less than 19.5 percent by volume.
    Oxygen-enriched atmosphere means an atmosphere that contains 22.0 
percent or more oxygen by volume.
    Safe for Hot Work denotes a space that meets all of the following 
criteria:
    (1) The oxygen content of the atmosphere does not exceed 22.0 
percent by volume;
    (2) The concentration of flammable vapors in the atmosphere is less 
than 10 percent of the lower explosive limit;
    (3) The residues or materials in the space are not capable of 
producing a higher concentration than permitted in paragraph (1) or (2) 
of the above, under existing atmospheric conditions in the presence of 
hot work and while maintained as directed by the Marine Chemist or 
competent person, and
    (4) All adjacent spaces have been cleaned, or inerted, or treated 
sufficiently to prevent the spread of fire.
    Safe for Workers denotes a space that meets the following criteria:
    (1) The oxygen content of the atmosphere is at least 19.5 percent 
and below 22 percent by volume;
    (2) The concentration of flammable vapors is below 10 percent of 
the lower explosive limit (LEL);
    (3) Any toxic materials in the atmosphere associated with cargo, 
fuel, tank coatings, or inerting media are within permissible 
concentrations at the time of the inspection; and
    (4) Any residues or materials associated with the work authorized 
by the Marine Chemist, Certified Industrial Hygienist, or competent 
person will not produce uncontrolled release of toxic materials under 
existing atmospheric conditions while maintained as directed.
    Space means an area on a vessel or vessel section or within a 
shipyard such as, but not limited to: cargo tanks or holds; pump or 
engine rooms; storage lockers; tanks containing flammable or 
combustible liquids, gases, or solids; rooms within buildings; crawl 
spaces; tunnels; or accessways. The atmosphere within a space is the 
entire area within its bounds.
    Upper explosive limit (UEL) means the maximum concentration of 
flammable vapor in air above which propagation of flame does not occur 
on contact with a source of ignition.
    Vessel section means a sub-assembly, module, or other component of 
a vessel being built, repaired, or broken.
    Visual inspection means the physical survey of the space, its 
surroundings and contents to identify hazards such as, but not limited 
to, restricted accessibility, residues, unguarded machinery, and piping 
or electrical systems.


Sec. 1915.12  Precautions before entering confined and enclosed spaces 
and other dangerous atmospheres.

    (a) Oxygen content. (1) The employer shall ensure that the 
following spaces are visually inspected and tested by a competent 
person to determine the atmosphere's oxygen content prior to initial 
entry into the space by an employee:
    (i) Spaces that have been sealed, such as, but not limited to, 
spaces that have been coated and closed up, and non-ventilated spaces 
that have been freshly painted;
    (ii) Spaces and adjacent spaces that contain or have contained 
combustible or flammable liquids or gases;
    (iii) Spaces and adjacent spaces that contain or have contained 
liquids, gases, or solids that are toxic, corrosive, or irritant;
    (iv) Spaces and adjacent spaces that have been fumigated; and
    (v) Spaces containing materials or residues of materials that 
create an oxygen-deficient atmosphere.
    (2) If the space to be entered contains an oxygen deficient 
atmosphere, the space shall be labeled ``Not Safe for Workers'' or, if 
oxygen-enriched, ``Not Safe for Workers--Not Safe for Hot Work.'' If an 
oxygen-deficient or oxygen-enriched atmosphere is found, ventilation 
shall be provided at volumes and flow rates sufficient to ensure that 
the oxygen content is maintained at or above 19.5 percent and below 
22.0 percent by volume. The warning label may be removed when the 
oxygen content is equal to or greater than 19.5 and less than 22.0 
percent by volume.
    (3) An employee may not enter a space where the oxygen content, by 
volume, is below 19.5 percent or above 22.0 percent. Exception: An 
employee may enter for emergency rescue or for a short duration for 
installation of ventilation equipment necessary to start work in the 
space provided:
    (i) The atmosphere in the space is monitored for oxygen content, by 
volume, continuously; and
    (ii) Respiratory protection and other appropriate personal 
protective equipment and clothing are provided in accordance with 
Subpart I of this part.

    Note to paragraph (a): Other provisions for work in IDLH 
atmospheres are located in Subpart I of this part.

    (b) Flammable atmospheres. (1) The employer shall ensure that 
spaces and adjacent spaces that contain or have contained combustible 
or flammable liquids or gases are:
    (i) Inspected visually by the competent person to determine the 
presence of combustible or flammable liquids; and
    (ii) Tested by a competent person prior to entry by an employee to 
determine the concentration of flammable vapors and gases within the 
space.
    (2) If the concentration of flammable vapors or gases in the space 
to be entered is equal to or greater than 10 percent of the lower 
explosive limit, the space shall be labeled ``Not Safe for Workers'' 
and ``Not Safe for Hot Work.'' Ventilation shall be provided at volumes 
and flow rates sufficient to ensure that the concentration of flammable 
vapors is maintained below 10 percent of the lower explosive limit. The 
warning labels may be removed when the concentration of flammable 
vapors is below 10 percent of the lower explosive limit.
    (3) An employee may not enter a space where the concentration of 
flammable vapors or gases is equal to or greater than 10 percent of the 
lower explosive limit. Exception: An employee may enter for emergency 
rescue or for a short duration for installation of ventilation 
equipment necessary to start work in the space, provided:
    (i) No ignition sources are present;
    (ii) The atmosphere in the space is monitored continuously;
    (iii) The atmosphere in the space is maintained above the upper 
explosive limit; and
    (iv) Respiratory protection and other appropriate personal 
protective equipment and clothing are provided in accordance with 
Subpart I of this part.

    Note 1 to paragraph (b): Additional provisions for work in IDLH 
atmospheres are located in Subpart I of this part.
    Note 2 to paragraph (b): Additional provisions for work in 
spaces containing a flammable substance which also has a permissible 
exposure limit, are located in Subpart Z of 29 CFR part 1915, and 
Sec. 1915.12(c).

    (c) Toxic, corrosive, irritant or fumigated atmospheres and 
residues. (1) The employer shall ensure that spaces or adjacent spaces 
that contain or have contained liquids, gases, or solids that are 
toxic, corrosive or irritant are:
    (i) Inspected visually by the competent person to determine the 
presence of toxic, corrosive, or irritant residue contaminants; and
    (ii) Tested by a competent person prior to initial entry by an 
employee to determine the air concentration of toxics, corrosives, or 
irritants within the space.
    (2) If a space contains an air concentration of a material which 
exceeds a part 1915 subpart Z permissible exposure limit (PEL) or is 
IDLH, the space shall be labeled ``Not Safe for Workers.'' Ventilation 
shall be provided at volumes and flow rates which will ensure that air 
concentrations are maintained within the PEL or, in the case of 
contaminants for which there is no established PEL, below the IDLH. The 
warning label may be removed when the concentration of contaminants is 
maintained within the PEL or below IDLH level.
    (3) If a space cannot be ventilated to within the PELs or is IDLH, 
a Marine Chemist or CIH must re-test until the space can be certified 
``Enter with Restrictions'' or ``Safe for Workers.''
    (4) An employee may not enter a space whose atmosphere exceeds a 
PEL or is IDLH. Exception: An employee may enter for emergency rescue, 
or for a short duration for installation of ventilation equipment 
provided:
    (i) The atmosphere in the space is monitored continuously;
    (ii) Respiratory protection and other necessary and appropriate 
personal protective equipment and clothing are provided in accordance 
with Subpart I of this part.

    Note to paragraph (c): Other provisions for work in IDLH 
atmospheres are located in Subpart I of this part.

    (d) Training of employees entering confined and enclosed spaces or 
other dangerous atmospheres. (1) The employer shall ensure that each 
employee that enters a confined or enclosed space and other areas with 
dangerous atmospheres is trained to perform all required duties safely.
    (2) The employer shall ensure that each employee who enters a 
confined space, enclosed space, or other areas with dangerous 
atmospheres is trained to:
    (i) Recognize the characteristics of the confined space;
    (ii) Anticipate and be aware of the hazards that may be faced 
during entry;
    (iii) Recognize the adverse health effects that may be caused by 
the exposure to a hazard;
    (iv) Understand the physical signs and reactions related to 
exposures to such hazards;
    (v) Know what personal protective equipment is needed for safe 
entry into and exit from the space;
    (vi) Use personal protective equipment; and
    (vii) Where necessary, be aware of the presence and proper use of 
barriers that may be needed to protect an entrant from hazards.
    (3) The employer shall ensure that each entrant into confined or 
enclosed spaces or other dangerous atmospheres is trained to exit the 
space or dangerous atmosphere whenever:
    (i) The employer or his or her representative orders evacuation;
    (ii) An evacuation signal such as a alarm is activated ; or
    (iii) The entrant perceives that he or she is in danger.
    (4) The employer shall provide each employee with training:
    (i) Before the entrant begins work addressed by this section; and
    (ii) Whenever there is a change in operations or in an employee's 
duties that presents a hazard about which the employee has not 
previously been trained.
    (5) The employer shall certify that the training required by 
paragraphs (d)(1) through (d)(4) of this section has been accomplished.
    (i) The certification shall contain the employee's name, the name 
of the certifier, and the date(s) of the certification.
    (ii) The certification shall be available for inspection by the 
Assistant Secretary, the Director, employees, and their 
representatives.
    (e) Rescue teams. The employer shall either establish a shipyard 
rescue team or arrange for an outside rescue team which will respond 
promptly to a request for rescue service.
    (1) Shipyard rescue teams shall meet the following criteria:
    (i) Each employee assigned to the shipyard team shall be provided 
with and trained to use the personal protective equipment he or she 
will need, including respirators and any rescue equipment necessary for 
making rescues from confined and enclosed spaces and other dangerous 
atmospheres.
    (ii) Each employee assigned to the shipyard rescue team shall be 
trained to perform his or her rescue functions including confined and 
enclosed and other dangerous atmosphere entry.
    (iii) Shipyard rescue teams shall practice their skills at least 
once every 12 months. Practice drills shall include the use of 
mannequins and rescue equipment during simulated rescue operations 
involving physical facilities that approximate closely those facilities 
from which rescue may be needed.

    Note to paragraph (e)(1)(iii): If the team preforms an actual 
rescue during the 12 month period, an additional practice drill for 
that type of rescue is not required.

    (iv) At least one person on each rescue team shall maintain current 
certification in basic first aid which includes maintenance of an 
airway, control of bleeding, maintenance of circulation and 
cardiopulmonary resuscitation (CPR) skills.
    (2) The employer shall inform outside rescue teams of the hazards 
that the team may encounter when called to perform confined and 
enclosed space or other dangerous atmosphere rescue at the employer's 
facility so that the rescue team can be trained and equipped.

    Note to paragraph (e): The criteria for in-house rescue, listed 
in paragraph (e)(1) can be used by the employer in evaluating 
outside rescue services.

    (f) Exchanging hazard information between employers. Each employer 
whose employees work in confined and enclosed spaces or other dangerous 
atmospheres shall ensure that all available information on the hazards, 
safety rules, and emergency procedures concerning those spaces and 
atmospheres is exchanged with any other employer whose employees may 
enter the same spaces.


Sec. 1915.13  Cleaning and other cold work.

    (a) Locations covered by this section. The employer shall ensure 
that manual cleaning and other cold work are not performed in the 
following spaces unless the conditions of paragraph (b) of this section 
have been met:
    (1) Spaces containing or having last contained bulk quantities of 
combustible or flammable liquids or gases; and
    (2) Spaces containing or having last contained bulk quantities of 
liquids, gases or solids that are toxic, corrosive or irritating.
    (b) Requirements for performing cleaning or cold work. (1) Liquid 
residues of hazardous materials shall be removed from work spaces as 
thoroughly as practicable before employees start cleaning operations or 
cold work in a space. Special care shall be taken to prevent the 
spilling or the draining of these materials into the water surrounding 
the vessel, or for shore-side operations, onto the surrounding work 
area.
    (2) Testing shall be conducted by a competent person to determine 
the concentration of flammable, combustible, toxic, corrosive, or 
irritant vapors within the space prior to the beginning of cleaning or 
cold work.
    (3) Continuous ventilation shall be provided at volumes and flow 
rates sufficient to ensure that the concentration(s) of:
    (i) Flammable vapor is maintained below 10 percent of the lower 
explosive limit; and

    Note to paragraph (b)(3)(i): Spaces containing highly volatile 
residues may require additional ventilation to keep the 
concentration of flammable vapors below 10 percent of the lower 
explosive limit and within the permissible exposure limit.

    (ii) Toxic, corrosive, or irritant vapors are maintained within the 
permissible exposure limits and below IDLH levels.
    (4) Testing shall be conducted by the competent person as often as 
necessary during cleaning or cold work to assure that air 
concentrations are below 10 percent of the lower explosive limit and 
within the PELs and below IDLH levels. Factors such as, but not limited 
to, temperature, volatility of the residues and other existing 
conditions in and about the spaces are to be considered in determining 
the frequency of testing necessary to assure a safe atmosphere.

    Note to paragraph (b)(4): See Appendix A for additional 
information on frequency of testing.

    (5) Spills or other releases of flammable, combustible, toxic, 
corrosive, and irritant materials shall be cleaned up as work 
progresses.
    (6) An employee may not enter a confined or enclosed space or other 
dangerous atmosphere if the concentration of flammable or combustible 
vapors in work spaces exceeds 10 percent of the lower explosive limit. 
Exception: An employee may enter for emergency rescue or for a short 
duration for installation of ventilation equipment provided:
    (i) No ignition sources are present;
    (ii) The atmosphere in the space is monitored continuously;
    (iii) The atmosphere in the space is maintained above the upper 
explosive limit; and
    (iv) Respiratory protection, personal protective equipment, and 
clothing are provided in accordance with subpart I of this part.

    Note to paragraph (b)(6): Other provisions for work in IDLH and 
other dangerous atmospheres are located in Subpart I of this part.

    (7) A competent person shall test ventilation discharge areas and 
other areas where discharged vapors may collect to determine if vapors 
discharged from the spaces being ventilated are accumulating in 
concentrations hazardous to employees.
    (8) If the tests required in paragraph (b)(7) of this section 
indicate that concentrations of exhaust vapors that are hazardous to 
employees are accumulating, all work in the contaminated area shall be 
stopped until the vapors have dissipated or been removed.
    (9) Only explosion-proof, self-contained portable lamps, or other 
electric equipment approved by a National Recognized Testing Laboratory 
(NRTL) for the hazardous location shall be used in spaces described in 
paragraph (a) of this section until such spaces have been certified as 
``Safe for Workers.''

    Note to paragraph (b)(9): Battery-fed, portable lamps or other 
electric equipment bearing the approval of a NRTL for the class, and 
division of the location in which they are used are deemed to meet 
the requirements of this paragraph.

    (10) The employer shall prominently post signs that prohibit 
sources of ignition within or near a space that has contained flammable 
or combustible liquids or gases in bulk quantities:
    (i) At the entrance to those spaces;
    (ii) In adjacent spaces; and
    (iii) In the open area adjacent to those spaces.
    (11) All air moving equipment and its component parts, including 
duct work, capable of generating a static electric discharge of 
sufficient energy to create a source of ignition, shall be bonded 
electrically to the structure of a vessel or vessel section or, in the 
case of land-side spaces, grounded to prevent an electric discharge in 
the space.
    (12) Fans shall have non-sparking blades, and portable air ducts 
shall be of non-sparking materials.

    Note to paragraph (b): See Sec. 1915.12(c) of this part and 
applicable requirements of 29 CFR part 1915, subpart Z for other 
provisions affecting cleaning and cold work.


Sec. 1915.14  Hot work.

    (a) Hot work requiring testing by a Marine Chemist or Coast Guard 
authorized person. (1) The employer shall ensure that hot work is not 
performed in or on any of the following confined and enclosed spaces 
and other dangerous atmospheres, boundaries of spaces or pipelines 
until the work area has been tested and certified by a Marine Chemist 
or a U.S. Coast Guard authorized person as ``Safe for Hot Work'':
    (i) Within, on, or immediately adjacent to spaces that contain or 
have contained combustible or flammable liquids or gases.
    (ii) Within, on, or immediately adjacent to fuel tanks that contain 
or have last contained fuel; and
    (iii) On pipelines, heating coils, pump fittings or other 
accessories connected to spaces that contain or have last contained 
fuel.
    (iv) Exception: Within spaces adjacent to spaces in which the 
flammable gases or liquids have a flash point below 150 deg. F 
(65.6 deg. C) and the distance between such spaces and the work is 
greater than 25 feet (7.5 m).

    Note to paragraph (a)(1): The criteria for safe for hot work is 
located in the definition section of subpart B.

    (2) The certificate issued by the Marine Chemist or Coast Guard 
authorized person shall be posted in the immediate vicinity of the 
affected operations while they are in progress and kept on file for a 
period of at least three months from the date of the completion of the 
operation for which the certificate was generated.
    (b) Hot work requiring testing by a competent person. (1) Hot work 
is not permitted in or on the following spaces or adjacent spaces or 
other dangerous atmospheres until they have been tested by a competent 
person and determined to contain no concentrations of flammable vapors 
equal to or greater than 10 percent of the lower explosive limit:
    (i) Dry cargo holds,
    (ii) The bilges,
    (iii) The engine room and boiler spaces for which a Marine Chemist 
or a Coast Guard authorized person certificate is not required under 
paragraph (a)(1)(i) of this section, and
    (iv) Vessels and vessel sections for which a Marine Chemist or 
Coast Guard authorized person certificate is not required under 
paragraph (a)(1)(i) of this section, and
    (v) Land-side confined and enclosed spaces or other dangerous 
atmospheres not covered by paragraph (a)(1) of this section.
    (2) If the concentration of flammable vapors or gases is equal to 
or greater than 10 percent of the lower explosive limit in the space or 
an adjacent space where the hot work is to be done, then the space 
shall be labeled ``Not Safe for Hot Work'' and ventilation shall be 
provided at volumes and flow rates sufficient to ensure that the 
concentration of flammable vapors or gases is below 10 percent by 
volume of the lower explosive limit. The warning label may be removed 
when the concentration of flammable vapors and gases are below 10 
percent lower explosive limit.

    Note to Sec. 1915.14: See appendix A for additional information 
relevant to performing hot work safely.


Sec. 1915.15  Maintenance of safe conditions.

    (a) Preventing hazardous materials from entering. Pipelines that 
could carry hazardous materials into spaces that have been certified 
``Safe for Workers'' or ``Safe for Hot Work'' shall be disconnected, 
blanked off, or otherwise blocked by a positive method to prevent 
hazardous materials from being discharged into the space.
    (b) Alteration of existing conditions. When a change that could 
alter conditions within a tested confined or enclosed space or other 
dangerous atmosphere occurs, work in the affected space or area shall 
be stopped. Work may not be resumed until the affected space or area is 
visually inspected and retested and found to comply with Secs. 1915.12, 
1915.13, and 1915.14 of this part, as applicable.

    Note to paragraph (b): Examples of changes that would warrant 
the stoppage of work include: The opening of manholes or other 
closures or the adjusting of a valve regulating the flow of 
hazardous materials.

    (c) Tests to maintain the conditions of a Marine Chemist's or Coast 
Guard authorized person's certificates. A competent person shall 
visually inspect and test each space certified as ``Safe for Workers'' 
or ``Safe for Hot Work,'' as often as necessary to ensure that 
atmospheric conditions within that space is maintained within the 
conditions established by the certificate after the certificate has 
been issued.
    (d) Change in the conditions of a Marine Chemist's or Coast Guard 
authorized person's certificate. If a competent person finds that the 
atmospheric conditions within a certified space fail to meet the 
applicable requirements of Secs. 1915.12, 1915.13, and 1915.14 of this 
part, work in the certified space shall be stopped and may not be 
resumed until the space has been retested by a Marine Chemist or Coast 
Guard authorized person and a new certificate issued in accordance with 
Sec. 1915.14(a).
    (e) Tests to maintain a competent person's findings. After a 
competent person has conducted a visual inspection and tests required 
in Secs. 1915.12, 1915.13, and 1915.14 of this part and determined a 
space to be safe for an employee to enter, he or she shall continue to 
test spaces as often as necessary to ensure that the required 
atmospheric conditions within the tested space are maintained.
    (f) Changes in conditions determined by competent person's 
findings. After the competent person has determined initially that a 
space is safe for an employee to enter and he or she finds subsequently 
that the conditions within the tested space fail to meet the 
requirements of Secs. 1915.12, 1915.13, and 1915.14, of this part, as 
applicable, work shall be stopped until the conditions in the tested 
space are corrected to comply with Secs. 1915.12, 1915.13, and 1915.14, 
as applicable.


Sec. 1915.16  Warning signs and labels.

    (a) Employee comprehension of signs and labels. The Employer shall 
ensure that each sign or label posted to comply with the requirements 
of this subpart is presented in a manner that can be perceived and 
understood by all employees.
    (b) Posting of large work areas. A warning sign or label required 
by paragraph (a) of this section need not be posted at an individual 
tank, compartment or work space within a work area if the entire work 
area has been tested and certified: not safe for workers, not safe for 
hot work, and if the sign or label to this effect is posted 
conspicuously at each means of access to the work area.

Appendix A to Subpart B--Compliance Assistance Guidelines for 
Confined and Enclosed Spaces and Other Dangerous Atmospheres

    This Appendix is a non-mandatory set of guidelines provided to 
assist employers in complying with the requirements of this subpart. 
This Appendix neither creates additional obligations nor detracts from 
obligations otherwise contained in the standard. It is intended to 
provide explanatory information and educational material to employers 
and employees to foster understanding of, and compliance with, the 
standard.
    Sections 1915.11 through 1915.16. These standards are minimum 
safety standards for entering and working safely in vessel tanks and 
compartments.
    Section 1915.11(b)  Definition of ``Hot work.'' There are several 
instances in which circumstances do not necessitate that grinding, 
drilling, abrasive blasting be regarded as hot work. Some examples are:
    1. Abrasive blasting of the hull for paint preparation does not 
necessitate pumping and cleaning the tanks of a vessel.
    2. Prior to hot work on any hollow structure, the void space should 
be tested and appropriate precautions taken.
    Section 1915.11(b)  Definition of ``Lower explosive limit.'' The 
terms lower flammable limit (LFL) and lower explosive limit (LEL) are 
used interchangeably in fire science literature.
    Section 1915.11(b)  Definition of ``Upper explosive limit.'' The 
terms upper flammable limit (UFL) and upper explosive limit (UEL) are 
used interchangeably in fire science literature.
    Section 1915.12(a)(4). After a tank has been properly washed and 
ventilated, the tank should contain 20.8 percent oxygen by volume. This 
is the same amount found in our normal atmosphere at sea level. 
However, it is possible that the oxygen content will be lower. When 
this is the case, the reasons for this deficiency should be determined 
and corrective action taken.
    An oxygen content of 19.5 percent can support life and is adequate 
for entry. However, any oxygen level less than 20.8 percent and greater 
than 19.5 percent level should also alert the competent person to look 
for the causes of the oxygen deficiency and to correct them prior to 
entry.
    Section 1915.12(b)(4)  Flammable atmospheres. Atmospheres with a 
concentration of flammable vapors at or above 10 percent of the lower 
explosive limit (LEL) are considered hazardous when located in confined 
spaces. However, atmospheres with flammable vapors below 10 percent of 
the LEL are not necessarily safe.
    Such atmospheres are too lean to burn. Nevertheless, when a space 
contains or produces measurable flammable vapors below the 10 percent 
LEL, it might indicate that flammable vapors are being released or 
introduced into the space and could present a hazard in time. 
Therefore, the cause of the vapors should be investigated and, if 
possible, eliminated prior to entry.
    Some situations that have produced measurable concentrations of 
flammable vapors that could exceed 10 percent of the LEL in time are:
    1. Pipelines that should have been blanked or disconnected have 
opened, allowing product into the space.
    2. The vessel may have shifted, allowing product not previously 
cleaned and removed during washing to move into other areas of the 
vessel.
    3. Residues may be producing the atmosphere by releasing flammable 
vapor.
    Section 1915.12(b)(6)  Flammable atmospheres that are toxic. An 
atmosphere with a measurable concentration of a flammable substance 
below 10 percent of the LEL may be above the OSHA permissible exposure 
limit for that substance. In that case, refer to Sec. 1915.12(c) (2), 
(3), and (4).
    Section 1915.13(b)(4), Sec. 1915.15(c), and Sec. 1915.15(e). The 
frequency with which a tank is monitored to determine if atmospheric 
conditions are being maintained is a function of several factors that 
are discussed below:
    1. Temperature. Higher temperatures will cause a combustible or 
flammable liquid to vaporize at a faster rate than lower temperatures. 
This is important since hotter days may cause tank residues to produce 
more vapors and that may result in the vapors exceeding 10 percent of 
the LEL or an overexposure to toxic contaminants.
    2. Work in the tank. Any activity in the tank could change the 
atmospheric conditions in that tank. Oxygen from a leaking oxyfuel hose 
or torch could result in an oxygen-enriched atmosphere that would more 
easily propagate a flame. Some welding operations use inert gas, and 
leaks can result in an oxygen-deficient atmosphere. Manual tank 
cleaning with high pressure spray devices can stir up residues and 
result in exposures to toxic contaminants. Simple cleaning or mucking 
out, where employees walk through and shovel residues and sludge, can 
create a change in atmospheric conditions.
    3. Period of time elapsed. If a period of time has elapsed since a 
Marine Chemist or Coast Guard authorized person has certified a tank as 
safe, the atmospheric condition should be rechecked by the competent 
person prior to entry and starting work.
    4. Unattended tanks or spaces. When a tank or space has been tested 
and declared safe, then subsequently left unattended for a period of 
time, it should be retested prior to entry and starting work. For 
example, when barges are left unattended at night, unidentified 
products from another barge are sometimes dumped into their empty 
tanks. Since this would result in a changed atmosphere, the tanks 
should be retested prior to entry and starting work.
    5. Work break. When workers take a break or leave at the end of the 
shift, equipment sometimes is inadvertently left in the tanks. At lunch 
or work breaks and at the end of the shift are the times when it is 
most likely someone will leave a burning or cutting torch in the tank, 
perhaps turned on and leaking oxygen or an inert gas. Since the former 
can produce an oxygen-enriched atmosphere, and the latter an oxygen-
deficient atmosphere, tanks should be checked for equipment left 
behind, and atmosphere, monitored if necessary prior to re-entering and 
resuming work. In an oxygen-enriched atmosphere, the flammable range is 
severely broadened. This means that an oxygen-enriched atmosphere can 
promote very rapid burning.
    6. Ballasting or trimming. Changing the position of the ballast, or 
trimming or in any way moving the vessel so as to expose cargo that had 
been previously trapped, can produce a change in the atmosphere of the 
tank. The atmosphere should be retested after any such move and prior 
to entry or work.
    Section 1915.14 (a) and (b)  Hot work. This is a reminder that 
other sections of the OSHA shipyard safety and health standards in part 
1915 should be reviewed prior to starting any hot work. Most notably, 
Subpart D, Welding, Cutting and Heating, places additional restrictions 
on hot work: The requirements of Secs. 1915.51 and 1915.53 must be met 
before hot work is begun on any metal that is toxic or is covered by a 
preservative coating respectively; the requirements of Sec. 1915.54 
must be met before welding, cutting, or heating is begun on any 
structural voids.
    Section 1915.12(a)(2). During hot work, more than 20.8 percent 
oxygen by volume can be unsafe since it extends the normal flammable 
range. The standard permits the oxygen level to reach 22 percent by 
volume in order to account for instrument error. However, the cause of 
excess oxygen should be investigated and the source removed.
    Section 1915.16(b). If the entire vessel has been found to be in 
the same condition, then employers shall be considered to be in 
compliance with this requirement when signs using appropriate warning 
language in accordance with Sec. 1915.16(a) are posted at the gangway 
and at all other means of access to the vessel.

Appendix B to Subpart B--Confined and Enclosed Spaces and Other 
Dangerous Atmospheres in Shipyard Employment

    This Appendix provides a complete reprint of U.S. Coast Guard 
regulations as of October 1, 1993 referenced in Subpart B for purposes 
of determining who is a Coast Guard authorized person.
    1. Title 46 CFR 35.01-1 (a) through (c) covering hot work on tank 
vessels reads as follows:
    (a) The provisions of ``Standard for the Control of Gas Hazards on 
Vessels to be Repaired,'' NFPA No. 306, published by National Fire 
Protection Association, 1 Batterymarch Park, Quincy, MA 02269, shall be 
used as a guide in conducting the inspections and issuance of 
certificates required by this section.
    (b) Until an inspection has been made to determine that such 
operation can be undertaken with safety, no alterations, repairs, or 
other such operations involving riveting, welding, burning, or like 
fire-producing actions shall be made:
    (1) Within or on the boundaries of cargo tanks that have been used 
to carry flammable or combustible liquid or chemicals in bulk, or 
within spaces adjacent to such cargo tanks; or
    (2) Within or on the boundaries of fuel tanks; or
    (3) To pipe lines, heating coils, pumps, fittings, or other 
appurtenances connected to such cargo or fuel tanks.
    (c) Such inspections shall be made and evidenced as follows:
    (1) In ports or places in the United States or its territories and 
possessions, the inspection shall be made by a Marine Chemist 
certificated by the National Fire Protection Association; however, if 
the services of such certified Marine Chemists are not reasonably 
available, the Officer in Charge, Marine Inspection, upon the 
recommendation of the vessel owner and his contractor or their 
representative, shall select a person who, in the case of an individual 
vessel, shall be authorized to make such inspection. If the inspection 
indicates that such operations can be undertaken with safety, a 
certificate setting forth the fact in writing and qualified as may be 
required, shall be issued by the certified Marine Chemist or the 
authorized person before the work is started. Such qualifications shall 
include any requirements as may be deemed necessary to maintain, 
insofar as can reasonably be done, the safe conditions in the spaces 
certified, throughout the operation and shall include such additional 
tests and certifications as considered required. Such qualifications 
and requirements shall include precautions necessary to eliminate or 
minimize hazards that may be present from protective coatings or 
residues from cargoes.
    2. Title 46 CFR 71.60(c)(1) covering hot work on passenger vessels 
reads as follows:
    (a) The provisions of ``Standard for the Control of Gas Hazards on 
Vessels to be Repaired,'' NFPA No. 306, published by National Fire 
Protection Association, 1 Batterymarch Park, Quincy, MA 02269, shall be 
used as a guide in conducting the inspections and issuance of 
certificates required by this section.
    (b) Until an inspection has been made to determine that such 
operation can be undertaken with safety, no alterations, repairs, or 
other such operations involving riveting, welding, burning, or like 
fire-producing actions shall be made:
    (1) Within or on the boundaries of cargo tanks which have been used 
to carry flammable or combustible liquid or chemicals in bulk, or 
within spaces adjacent to such cargo tanks; or
    (2) Within or on the boundaries of fuel tanks; or
    (3) To pipe lines, heating coils, pumps, fittings, or other 
appurtenances connected to such cargo or fuel tanks.
    (c) Such inspections shall be made and evidenced as follows:
    (1) In ports or places in the United States or its territories and 
possessions the inspection shall be made by a Marine Chemist 
certificated by the National Fire Protection Association; however, if 
the services of such certified Marine Chemist are not reasonably 
available, the Officer in Charge, Marine Inspection, upon the 
recommendation of the vessel owner and his contractor or their 
representative, shall select a person who, in the case of an individual 
vessel, shall be authorized to make such inspection. If the inspection 
indicated that such operations can be undertaken with safety, a 
certificate setting forth the fact in writing and qualified as may be 
required, shall be issued by the certified Marine Chemist or the 
authorized person before the work is started. Such qualifications shall 
include any requirements as may be deemed necessary to maintain, 
insofar as can reasonably be done, the safe conditions in the spaces 
certified throughout the operation and shall include such additional 
tests and certifications as considered required. Such qualifications 
and requirements shall include precautions necessary to eliminate or 
minimize hazards that may be present from protective coatings or 
residues from cargoes.
    3. Title 46 CFR 91.50-1(c)(1) covering hot work on cargo and 
miscellaneous vessels as follows:
    (a) The provisions of ``Standard for the Control of Gas Hazards on 
Vessels to be Repaired,'' NFPA No. 306, published by National Fire 
Protection Association, 1 Batterymarch Park, Quincy, MA 02269, shall be 
used as a guide in conducting the inspections and issuance of 
certificates required by this section.
    (b) Until an inspection has been made to determine that such 
operation can be undertaken with safety, no alterations, repairs, or 
other such operations involving riveting, welding, burning, or like 
fire-producing actions shall be made:
    (1) Within or on the boundaries of cargo tanks which have been used 
to carry flammable or combustible liquid or chemicals in bulk, or 
within spaces adjacent to such cargo tanks; or,
    (2) Within or on the boundaries of fuel tanks; or,
    (3) To pipe lines, heating coils, pumps, fittings, or other 
appurtenances connected to such cargo or fuel tanks.
    (c) Such inspections shall be made and evidenced as follows:
    (1) In ports or places in the United States or its territories and 
possessions the inspection shall be made by a Marine Chemist 
certificated by the National Fire Protection Association; however, if 
the services of such certified Marine Chemist are not reasonably 
available, the Officer in Charge, Marine Inspection, upon the 
recommendation of the vessel owner and his contractor or their 
representative, shall select a person who, in the case of an individual 
vessel, shall be authorized to make such inspection. If the inspection 
indicated that such operations can be undertaken with safety, a 
certificate setting forth the fact in writing and qualified as may be 
required, shall be issued by the certified Marine Chemist or the 
authorized person before the work is started. Such qualifications shall 
include any requirements as may be deemed necessary to maintain, 
insofar as can reasonably be done, the safe conditions in the spaces 
certified throughout the operation and shall include such additional 
tests and certifications as considered required. Such qualifications 
and requirements shall include precautions necessary to eliminate or 
minimize hazards that may be present from protective coatings or 
residues from cargoes.
[FR Doc. 94-16976 Filed 7-22-94; 8:45 am]
BILLING CODE 4510-26-P