[Federal Register Volume 63, Number 230 (Tuesday, December 1, 1998)]
[Rules and Regulations]
[Pages 66018-66040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31946]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. S-019A]
RIN 1218-AA51


Permit-Required Confined Spaces

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends the Occupational Safety and Health 
Administration (OSHA) standard on Permit-Required Confined Spaces 
(permit spaces) (29 CFR 1910.146) to provide for enhanced employee 
participation in the employer's permit space program, to provide 
authorized permit space entrants or their authorized representatives 
with the opportunity to observe any testing or monitoring of permit 
spaces, and to strengthen and clarify the criteria employers must 
satisfy when preparing for the timely rescue of incapacitated permit 
space entrants. The revisions being made to the final rule will 
substantially enhance the protections being provided to permit space 
entrants and will additionally clarify a number of issues that have 
arisen since promulgation of the final Permit-Required Confined Spaces 
rule in 1993.
    Specifically, OSHA is clarifying and strengthening the requirements 
in revised paragraphs (d), Permit-required confined space program, and 
(e), Permit system, to allow for greater employee participation in the 
permit-space program and for employee access to program information 
developed under the standard. The Agency is also revising paragraphs 
(c) and (d) to specify that employers must provide those employees who 
are authorized permit space entrants, or their authorized 
representatives, an opportunity to observe any testing of the space 
that is conducted prior to entry or subsequent to such entry. The 
Agency believes that these revisions are necessary to ensure that 
permit space entrants, whose work often requires entry into potentially 
life-threatening atmospheres, have the information necessary to protect 
themselves and their co-workers from confined space hazards. Allowing 
authorized entrants or their authorized representatives to observe the 
testing of the spaces they are required to enter will help to ensure 
that the testing has been done properly, that the respirators and other 
personal protective equipment being worn are appropriate, and that the 
entrants understand the nature of the hazards present in the space. In 
addition, paragraph (k) of the final rule, Rescue and emergency 
services, is being revised to clarify the criteria employers must 
satisfy when selecting a rescue team or service to rescue incapacitated 
permit space entrants, and a new paragraph (l), Employee participation, 
is being added to the final rule to ensure employee involvement in 
permit space program development and implementation. A non-mandatory 
appendix is also being added to the standard to assist employers in 
selecting appropriately trained and equipped rescuers.

EFFECTIVE DATE: This final rule will become effective February 1, 1999.

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 for Occupational Safety and Health, Office of the Solicitor, 
Room S-4004, U.S. Department of Labor, 200 Constitution Avenue NW, 
Washington, D.C. 20210.

FOR FURTHER INFORMATION CONTACT: Ms. Bonnie Friedman, U.S. Department 
of Labor, Occupational Safety and Health Administration, Office of 
Information and Consumer Affairs, Room N3647,

[[Page 66019]]

Washington, D.C. 20210, telephone (202) 693-1999.

SUPPLEMENTARY INFORMATION:

I. Background

    On January 14, 1993, the Occupational Safety and Health 
Administration (OSHA) issued a general industry standard (29 CFR 
1910.146) to require protection for employees who enter permit-required 
confined spaces (permit spaces). The permit space standard, which 
provides a comprehensive regulatory framework for the safe performance 
of entry operations in general industry workplaces, became effective on 
April 15, 1993.
    The United Steelworkers of America (USWA), the American Gas 
Association, and the Edison Electric Institute sought judicial review 
of the standard. In particular, the USWA argued that paragraph (k)(2) 
of the standard, which addresses the use of off-site rescue services, 
was vague and ineffective. The USWA also stated that OSHA had 
inappropriately omitted from the final rule a provision allowing 
affected employees or their designated representatives to observe any 
required testing or monitoring of permit spaces and a provision 
granting affected employees access to permit space testing or 
monitoring results. All three petitions were subsequently withdrawn 
pursuant to settlement agreements.
    Based on settlement discussions with the USWA, OSHA agreed to 
initiate further rulemaking, and a notice of proposed rulemaking (NPRM) 
was accordingly issued on November 28, 1994. In the notice, the Agency 
specifically asked for public input on the USWA's suggestion that OSHA 
add provisions to the rule providing employees the opportunity to 
observe permit space monitoring or testing as well as granting them 
access to the results of such testing or monitoring. The notice also 
proposed changes to paragraph (k)(2) to clarify that host employers 
must ensure that rescue teams or services selected to perform permit 
space rescues at the host employer's facility have the capability to 
provide rescue in a timely manner, depending on the hazard(s) present 
in the permit spaces at the host employer's facility. In addition, on 
the basis of information received after the 1993 final rule was 
published, OSHA proposed to make the requirement for the point of 
attachment of a retrieval line more performance oriented by permitting 
any point of attachment to be used that enables the entrant's body to 
present the smallest possible profile during removal.
    The NPRM set a 90-day comment period, ending on February 27, 1995, 
to receive written comments on the proposed revisions and the issues 
raised. OSHA received 51 written comments (Exs. 161-1 through 161-51). 
Several commenters (Exs. 161-21, 161-22, 161-38, 161-40, 161-44) 
requested that OSHA convene an informal public hearing to address their 
concerns.
    OSHA published a notice of informal public hearing on August 2, 
1995, scheduling a hearing for September 27, 1995, in Washington, D.C. 
In the hearing notice, OSHA also announced the extension, until 
September 13, 1995, of the public comment period to receive comments 
relating to the issues raised in the hearing notice. Twenty-seven 
additional comments (Exs. 161-52 through 161-78) were received as a 
result of the reopening of the record.
    Twelve participants introduced testimony and evidence at the 
September 27 and 28 public hearing, which was presided over by 
Administrative Law Judge Joel Williams. At the conclusion of the 
hearing, Judge Williams set a post-hearing period for the submission of 
additional briefs, arguments and summations (ending on December 20, 
1995). A total of 12 submissions (Exs. 178 through 189) were received 
during the post-hearing period. On February 14, 1996, the record for 
the rulemaking was closed and certified to OSHA. The record for this 
phase of the rulemaking contains a total of 90 submissions and more 
than 470 pages of hearing transcript. OSHA has carefully considered all 
of the materials submitted as part of this rulemaking in the drafting 
of this final rule. The materials submitted are available for review 
and copying in the OSHA Docket Office, Docket S-019A.
    A few commenters appeared to believe that this revision constitutes 
an entirely new rulemaking proceeding (Exs. 161-33, 167). OSHA 
emphasizes, however, that this proceeding is properly viewed as a 
continuation of the rulemaking leading to the 1993 standard. Therefore, 
the Agency is not required to demonstrate that the relatively minor 
changes it is making to the PRCS standard are independently justified 
or that they, by themselves, effect a substantial reduction in 
significant risk. OSHA made that finding for the PRCS standard as a 
whole in 1993. In this case, the changes OSHA is making to paragraphs 
(c), (d), (e), and (k) essentially clarify what was always the Agency's 
intent with regard to employee representatives' access to information 
and employers' evaluation and selection of rescue services and teams. 
Although it is OSHA's view that the employee participation revisions it 
is making to paragraphs (c) and (d), and the addition of paragraph (l), 
will in fact substantially reduce the risks faced by permit space 
entrants, the revisions are proper so long as they are rationally 
related to the purposes of the OSH Act and the standard as a whole, and 
are supported by the rulemaking record.

II. Summary and Explanation of the Final Rule

    The revisions to the final rule make changes to several provisions 
of paragraphs (c), (d), (e), and (k) of OSHA's permit-space standard 
(29 CFR 1910.146), and add a new paragraph (l). These changes, and the 
Agency's rationale for making them, are described below. References to 
exhibits in the docket (Docket S-019A) are designated ``Ex.,'' followed 
by the exhibit number. References to the continuously paginated 
transcript of the public hearing held on September 27 and 28, 1995 
(Exs. 192X, 193X), are designated Tr., followed by the page number.

Paragraphs (c), General Requirements, (d), Permit-required confined 
space program, and (e), Permit system

A. Clarification of the Need To Provide Authorized Representatives With 
Information Required by the Standard
    Paragraphs (c)(5)(i)(E), (c)(5)(ii)(H), and (c)(7)(iii) have been 
revised to specify that OSHA intends authorized representative(s) of 
employees to have access to any information provided to employees under 
the standard. These wording changes are meant to clarify what has been 
longstanding OSHA policy and practice, i.e., to recognize the right of 
authorized representatives of employees to receive the same information 
as employees receive under the Agency's standards. In recognition of 
that policy, the Permit Space standard promulgated in 1993 specifically 
provides, in paragraph (c)(4), that the written program, which contains 
the employer's procedures and policies for implementing that program, 
be available for inspection and copying ``by employees and their 
authorized representatives.'' Thus, the changes being made to 
paragraphs (c)(5)(i)(E), (c)(5)(ii)(H), and (c)(7)(iii) in this revised 
rule merely provide additional clarification of the Agency's intent.
    The need to clarify these provisions was discussed by the USWA, 
which noted (Ex. 161-38) that ``The right of employees and their 
representatives to relevant information has been a regular feature of 
OSHA standards since the beginning.'' In the same exhibit, the

[[Page 66020]]

USWA points to several OSHA standards, including the Hazard 
Communication standard (29 CFR 1910.1200), the Employee Access to 
Exposure and Medical Records standard (29 CFR 1910.1020), and the 
Process Safety Management standard (29 CFR 1910.119) that ``give 
employees and their representatives very broad rights to information.'' 
The USWA reiterated this view in post-hearing comments (Ex. 188). OSHA 
agrees that it was the intent of the Permit Space standard to provide 
both employees and their authorized representatives with access to the 
information addressed by these provisions of paragraph (c), and the 
changes made to the final rule reflect this position and bring the 
Permit Space standard into conformance with the language traditionally 
used in OSHA standards.
B. Employee Observation of Atmospheric Testing
    Paragraphs (c)(5)(ii)(C) and (c)(5)(ii)(F) have been revised by 
adding a sentence to each of them that specifically requires employers 
whose employees enter permit spaces to give these employees, or their 
authorized representatives, an opportunity to observe the testing of 
the space during pre-entry (paragraph (c)(5)(ii)(C)) and during entry 
(paragraph (c)(5)(ii)(F)). In the NPRM, OSHA solicited comment (59 FR 
60737) about revising 29 CFR 1910.146 to allow affected employees or 
their authorized representatives to observe the testing and evaluation 
of confined space conditions, prior to and during entry. Specifically, 
the proposal stated, ``* * * the Agency is considering whether such a 
provision [one requiring affected employees or their designated 
representatives to be permitted to observe any testing conducted under 
the confined space standard] should be added to the permit space 
standard based on the concerns expressed and on the record developed as 
a result of this notice.''
    The USWA (Ex. 161-38), which requested a hearing on this and other 
matters, urged OSHA to incorporate such a provision into the standard 
both on the grounds that employee protections would be enhanced and 
that Section 8(c)(3) of the Act mandated the inclusion of such a 
provision:

    The benefits of employee observation of monitoring are well 
established. Congress certainly thought employees should have the 
right to observe the monitoring for air contaminants to which they 
could be exposed * * *. We believe employee observation should be 
viewed as a matter of right. Employees now have the right to observe 
the monitoring of air contaminants outside confined spaces, even 
when the potential health effects may not occur for many years. A 
worker entering a confined space risks sudden death if the 
monitoring was not done properly. Surely that worker should have the 
right to observe the monitoring. (Ex. 161-38).

    Many commenters argued that it was not necessary or appropriate to 
add an observation of monitoring provision to the Permit Space standard 
(see, for example, Exs. 161-9, 161-14, 161-20, 161-49, 161-55, 161-78, 
184, 187, Tr. 40, 127, 170, 207). The issues raised by these commenters 
centered on the following points:
    (1) That the existing standard is adequately protective and thus 
that no further changes are necessary;
    (2) That the Act does not, at Section 8(c)(3), mandate such a 
requirement for safety, as opposed to health, standards;
    (3) That allowing employees and their representatives to observe 
the testing of spaces would slow operations without adding to the 
safety of the entry and might actually increase risks; and
    (4) That such a provision has the potential for abuse and could 
become a labor-management issue.
    These issues, and OSHA's responses to them, are addressed in turn 
below.
    Several commenters were of the opinion that adding an observation 
of monitoring provision is unnecessary because the existing Permit 
Space standard already adequately provides for the sharing of relevant 
testing information with entrants. For example, the Pennzoil Company 
(Ex. 161-49) stated, ``Existing requirements at Section 1910.146(d)(5) 
and (e)(3) already provide for adequate employee access to the results 
of testing and monitoring in permit spaces.'' Arguing along similar 
lines, Union Electric (Ex. 161-35) noted that the existing standard 
``already requires that the results of initial and periodic tests 
performed under 1910.146(d)(5) be entered on the entry permit, and 
1910.146(e)(3) now requires that the permit be made available to all 
authorized entrants at the time of entry. As a practical matter, 
affected employees are usually briefed on the results of the exposure 
monitoring during the pre-job briefing and before entry into the 
space.''
    OSHA is pleased to learn that some employers have taken the 
additional safety precaution of providing entrants with a pre-entry 
briefing that includes a report on the results of the monitoring of the 
space, and the Agency is also aware that the existing standard contains 
a number of provisions requiring employers to provide information on 
the results of testing to those employees who are entering a permit 
space. However, OSHA concludes that these provisions, although 
essential to the safety and health of entrants, are not a substitute 
for the observation of monitoring provisions being added to the 
standard, for the following reasons.
    Having access to the entry permit will not prevent the kinds of 
errors that could be detected by having employees or their 
representatives observe the actual testing of the space. For example, 
evidence in the rulemaking record shows that monitoring errors, such as 
using the wrong monitor, monitoring for the wrong substance, or failing 
to test the space thoroughly, contribute to a number of confined space 
accidents (Tr. 286, 317). And if the evaluation or testing of the space 
is improperly performed, inaccurate information will unknowingly be 
recorded on the entry permit, and entrants relying on this inaccurate 
information could be placed at risk of sudden death or serious injury. 
In situations such as these, the presence of authorized employees or 
their representatives could well have detected the error and remedied 
the problem.
    The record contains reports of several incidents where employees 
who observed improperly performed atmospheric tests were able to bring 
the errors to the attention of the testers before an accident occurred. 
For example, in one case, the person doing the atmospheric testing 
calibrated the testing instrument inside the confined space. The 
entrant pointed out this error and it was corrected (Ex. 161-38, Tr. 
332-333). In other cases in the record, employee observation of testing 
and monitoring might have prevented an accident. The International 
Chemical Workers Union described an incident involving a vessel that 
had been tested by a poorly trained evaluator who had apparently failed 
to detect a flammable atmosphere. The vessel later exploded, killing 
several workers. There are a number of other dangerous situations that 
could arise that employee observation of monitoring could avert. For 
example, authorized employees and their representatives are often aware 
that significant changes may have occurred in conditions within the 
space, e.g., that the employer is considering reclassifying the space 
based on new monitoring data and can be expected to take extra 
precautions as a result. Observing the testing process would also 
permit employees or their representatives to detect human errors, such 
as the inadvertent recording of inaccurate data. In addition, OSHA 
believes that employees who directly observe the monitoring are likely 
to gain

[[Page 66021]]

an enhanced appreciation for the hazards they face.
    Thus, OSHA believes that providing employees or their 
representatives with the opportunity to observe the testing and 
monitoring of permit spaces will have the same kinds of benefits that 
such observation has had in the context of OSHA's health standards: 
knowledgeable employees who are given the opportunity to participate 
actively in protecting their own safety and health and that of their 
co-workers often identify potentially serious problems and help to 
solve them as well. Accordingly, paragraph (c)(5)(ii)(C) has been 
revised by adding the sentence ``Any employee who enters the space, or 
that employee's authorized representative, shall be provided an 
opportunity to observe the pre-entry testing required by this 
paragraph.'' Similarly, the language of paragraph (c)(5)(ii)(F) has 
been revised to add the following sentence: ``Any employee who enters 
the space, or that employee's authorized representative, shall be 
provided with an opportunity to observe the periodic testing required 
by this paragraph.''
    A number of commenters (see, e.g., Exs. 161-26, 161-35, 161-37, 
161-48, 161-56, 161-72, 161-60, 187, Tr. 127, 170) expressed 
disagreement with the USWA's view that Section 8(c)(3) of the Act 
mandated such observation in the case of safety standards such as the 
permit space standard. Section 8(c)(3) of the Act directs OSHA to issue 
regulations requiring employers to maintain records of employee 
exposure to potentially toxic materials or harmful physical agents and 
providing employees or their representatives with ``an opportunity to 
observe such monitoring or measuring, and to have access to the records 
thereof.'' This section of the Act provides the basis for the 
observation of monitoring provisions in virtually all of OSHA's health 
standards (see, for example, the asbestos, benzene, cadmium, lead, 
methylenedianiline, methylene chloride, and butadiene standards). 
Typical of these comments was one submitted by the Dow Chemical Company 
(Ex. 161-20):

    Section 8(c)(3) requires OSHA to promulgate regulations which 
provide employees, and their designated representatives, with the 
opportunity to observe the monitoring and measuring of, and have 
access to, employee exposure records (emphasis in the original). The 
atmospheric tests and space evaluations required under the Confined 
Space Standard are not the type of employee exposure monitoring that 
is envisioned by the Act.

    In fact, OSHA stated in the NPRM its position that section 8(c)(3) 
does not require inclusion of a requirement for employee observation of 
monitoring in safety standards (59 FR 60737). Instead, the proposal 
explained that any decision to add an employee observation provision to 
the standard would be based on the record developed in this proceeding, 
including the concerns expressed about the original standard. OSHA does 
note, however, that the fact that Congress included a requirement that 
observation of monitoring be allowed for toxic substance standards 
indicates a Congressional preference for well-informed and involved 
employees. And as explained elsewhere in this section, OSHA has 
determined that the record in this rulemaking shows that employee 
observation can have substantial benefits for employee safety and 
health.
    OSHA believes that this safety benefit adequately justifies any 
minimal slowing of operations caused by the employee observation 
requirement. In any event, as shown by other evidence in the record, 
the employees assigned to enter the permit space are often already in 
the area, waiting to enter it, while the space is being tested and 
monitored (Ex. 161-25). Indeed, in a great many cases, it is the permit 
space entrants themselves who perform the testing and monitoring (Ex. 
161-09, Tr. 186-187, 190). Moreover, as with all of the employee 
participation provisions being added in this revision, the record shows 
that this practice is already fairly common and indicates that it has 
not caused any production problems (Exs. 161-57, 172, Tr. 202).
    A few commenters suggested that employee observation could actually 
decrease employee safety, for example when monitoring must take place 
in a hazardous environment, such as an elevated location or one 
containing a toxic atmosphere (Exs. 161-56, 161-74, 167, 181). But the 
standard does not require employees to observe all monitoring or 
testing, it merely offers them the opportunity to do so. The employees 
and their representatives are less likely to take advantage of that 
opportunity in particularly hazardous situations. Moreover, even having 
an entrant or representative close by observing the actions of the 
person testing the atmosphere, and checking the instruments after the 
tests are complete could provide safety benefits. Employees already 
have extensive rights to observe monitoring under OSHA's health 
standards. OSHA has seen no evidence, and none was presented in this 
rulemaking, that this observation creates safety hazards (Tr. 92-93).
    OSHA does not believe that the final rule's requirements that 
employers provide affected employees with an opportunity for employee 
observation, or those requiring employee participation in paragraph 
(l), are particularly subject to abuse or constitute an unwarranted 
infringement on labor-management relations. OSHA standards frequently 
require that work be performed in a particular way or by specific 
employees. For example, the Lockout/Tagout (LO/TO) standard, 29 CFR 
1910.147(c)(8), requires that locks and tags be affixed by the workers 
who will be performing the service or maintenance covered by the 
standard and, as discussed above, numerous toxic substance standards 
provide affected employees and their representatives with the right to 
observe hazardous substance monitoring. The requirement that employees 
who are to enter hazardous confined spaces be allowed to observe the 
required monitoring of those spaces is analogous to these provisions. 
Like the LO/TO requirement, it recognizes that the employees whose 
lives could be endangered by inadequate completion of these preliminary 
safeguards have the strongest incentive to see that they are performed 
properly (see Tr. 333).
    OSHA also is not persuaded that the monitoring observation 
requirement is especially subject to employee abuse. Some commenters 
suggested that during periods of labor management discord, employees 
could abuse the observation right to slow down or disrupt production 
(see, e.g., Exs. 161-12, 161-25). Others expressed concern that the 
provision could cause what one called a ``logistical nightmare'' if all 
of the employees and representatives insisted on observing each 
instance of testing and monitoring (see, e.g., Exs. 161-12, 161-26, 
161-35, 161-78). But again, there was no evidence that this type of 
disruption is caused by the employee observation provisions in OSHA's 
health standards. The standard allows the opportunity for observation 
by an entrant or his authorized representative, not by every employee 
and representative at the workplace. Moreover, some employers, either 
contractually or otherwise, already provide employees with the right to 
observe monitoring and testing of confined space atmospheres (Exs. 161-
57, 173-B, Tr. 184-185, 202). One witness pointed out that, even in 
those plants, confined space entrants did not always choose to observe 
the monitoring (Tr. 202). And of course nothing in this standard 
interferes with an employer's existing power to direct and control its

[[Page 66022]]

workforce, so long as it does not attempt to do so in a manner 
inconsistent with the standard.
    Nor does the provision interfere improperly in labor-management 
relations, as suggested by some commenters (e.g., Ex. 161-35). In a 
general sense, many safety and health issues could, in the absence of 
OSHA requirements, be dealt with through traditional labor management 
mechanisms. That does not mean, however, that OSHA does not have the 
authority to require that work be performed in the manner it determines 
can best reduce safety or health hazards. And OSHA's exercise of this 
authority may, in some cases, force employers to alter some aspects of 
their employee relations. For example, OSHA standards sometimes require 
employers to provide medical removal benefits to workers whose health 
may already have been affected by exposure to a toxic substance. These 
benefits may include job assignments in areas with less exposure to the 
toxic substance, continuation of pay, or training for new job 
assignments (29 CFR 1910.1025(k) (lead), 1910.143(f)(2)(iv) (cotton 
dust)). Although these issues would have been considered labor 
relations matters in the absence of the OSHA standards, it is clear 
that OSHA can impose such regulatory requirements to protect employee 
safety and health. United Steelworkers of America v. Marshall, 647 F.2d 
1189, 1236 (D.C. Cir. 1980).

Paragraph (k)--Rescue and Emergency Services

    OSHA is amending and reorganizing paragraph (k), the rescue and 
emergency services provision of the standard.
A. Evaluation and Selection of Rescue and Emergency Services
    The revisions to paragraphs (k)(1) and (k)(2) clarify an employer's 
obligations to select a rescue service that is trained, equipped and 
available to respond to emergencies that occur during confined space 
entries. The emphasis of the revised language is on the employer's 
evaluation of potential rescue providers, and on the factors that the 
employer must consider in determining whether a particular provider is 
capable of providing effective rescue services for the particular 
situations that its confined space entrants may face. OSHA is also 
adding a new non-mandatory Appendix F to the standard to provide 
employers with additional assistance in evaluating potential rescue 
services.
    In the 1993 Permit Required Confined Spaces standard, OSHA 
promulgated separate requirements for employers of rescue and emergency 
teams and employers who used teams they did not employ. The 
requirements were more specific for what the rule considered in-house 
teams employed by the employer (29 CFR 1910.146(k)(1), (k)(2)). The 
rule was criticized for its failure to contain equally explicit 
requirements for ``outside'' rescue teams, or to contain an explicit 
requirement that those teams be able to arrive at the worksite in a 
timely fashion (Ex. 162-1). In the NPRM, OSHA proposed to require 
employers to ensure that outside rescue teams be equipped, trained, 
capable of responding in a timely manner, and aware of the hazards they 
may encounter during rescue operations, and be provided with access to 
the employer's confined spaces for rescue plan development and rescue 
drill purposes (59 FR 60739).
    OSHA received a wide array of comment on this proposal. Some 
commenters believed that the language of the 1993 rule, particularly as 
explained in the preamble to that rule, was adequate to assure 
effective and timely rescue (Exs. 161-48, 161-49, 161-56, 167, 184). 
Others argued that the proposed revisions did not go far enough, and 
that OSHA should either prohibit outside rescue teams altogether or, at 
a minimum, require that any rescuer be able to respond to an emergency 
within some specified time frame, generally four to six minutes (Exs. 
161-38; 161-39; 161-40; 161-62; 170). A number of commenters criticized 
the distinction between in-house and outside rescue services, pointing 
out that some of the assumptions on which OSHA based this distinction 
were inaccurate (see, e.g., Ex. 161-20). Many of the comments 
emphasized the need for knowledgeable and well-trained rescuers, not 
only to provide more effective rescue to the endangered confined space 
entrants but also to assure that the rescuers do not unnecessarily 
endanger themselves (Exs. 161-7, 161-20, 170).
    The commenters who believed that OSHA should not amend the existing 
rule generally made four points:
    1. Properly interpreted, the 1993 rule already imposes a 
requirement for timely and effective rescue.
    2. Making employers responsible for the performance of outside 
rescue teams is unrealistic for those employers who rely on outside 
teams because they lack the expertise to develop their own in-house 
teams.
    3. Imposing a short time within which a rescue team must arrive at 
the location of the emergency amounts to an effective prohibition of 
outside rescue teams.
    4. Requiring an employer to ``ensure'' the competence, timeliness, 
and effectiveness of outside rescuers is a requirement that employers 
guarantee successful rescue.
    Typical of these comments is one by the Chemical Manufacturers 
Association:

    OSHA's proposed revisions to paragraph (k)(2) place an undue 
burden on host employers. The likely outcome is that host employers 
will not be able to use outside rescue services. Such an outcome is 
totally inappropriate. Under the proposed revision, if the host 
employer decides to use an outside rescue service, then it must also 
ensure that this outside rescue service is ``capable of functioning 
appropriately.'' If a host employer is using the outside rescue 
service, presumably the host employer does not have the expertise to 
maintain a team in-house. In such a situation, how can the host 
employer ensure that the service is capable of functioning 
appropriately?
* * * * *
    Paragraph (k)(2), as originally promulgated, required the correct 
amount of accountability for host employers (Ex. 161-29).
    Dow Chemical stated its belief that ``In essence, by requiring host 
employers to ``ensure'' that the outside rescuer can ``effectively 
respond in a timely manner'' and that the outside rescuer is equipped, 
trained and ``capable of functioning appropriately,'' OSHA is requiring 
that host employers guarantee their performance'' (Ex. 181).
    Those commenters who supported more stringent requirements made two 
general points:
    1. Without a clear requirement for rescuers to respond within a 
very short time after an emergency arises, entrants will often die 
while awaiting rescue.
    2. Outside rescuers, particularly emergency responders, often do 
not have the information or equipment necessary for effective and 
timely rescue, and in some cases may not even know that employers are 
relying on them for confined space rescue.
    These comments, and OSHA's responses to them, will be discussed in 
greater detail below.
A. Timely Response
    OSHA has retained the language in the NPRM calling for timely 
rescue capability. Although virtually all rulemaking participants 
agreed on the need for ``timely'' rescue, a great deal of debate 
concerned whether OSHA should include a particular response time in the 
standard. Proponents of such a provision argued that in many confined 
space emergencies, an entrant is not receiving adequate breathing air 
and will suffer irreversible and frequently fatal effects within four 
to six

[[Page 66023]]

minutes (Exs. 161-38, 161-39, 161-64, 161-71). Moreover, some of them 
claimed that if rescuers are not on the scene quickly enough, co-
workers of the victim who are not equipped to perform rescue operations 
are more likely to endanger themselves by attempting rescue operations 
on their own (Ex. 161-38). They noted that a majority of deaths in 
confined spaces occur among would-be rescuers (Exs. 161-38, 161-64).
    Opponents of the inclusion of a specific time frame in the standard 
pointed out that, realistically, a four to six minute response time 
would require having fully equipped rescuers standing by during the 
entire length of every permit space entry (Ex. 161-56). While others 
noted that this would be appropriate on some occasions, but would not 
be on many others (Tr. 51-52, 93, 210, 254). These commenters agreed 
that inadequately prepared rescuers are likely endanger themselves more 
than they assist the victim, but expressed concern that even designated 
rescuers could endanger themselves if they are under too much pressure 
to respond too quickly (Ex. 161-56). For example, Michael Roop of ROCO 
Corp. testified that, in training rescuers ROCO instructs them ``that 
if you arrive at a scene and you're inside that confined space in two 
or three minutes to made a rescue, then you're doing something wrong. 
You're not being safe'' (Tr. 248).
    In the same context, ROCO and other rescue provider commenters 
pointed out that ``response time'' is not the same as rescue time, and 
that there are a number of discrete stages to a successful rescue 
operation (Tr. 246-249; Ex. 161-52).
    OSHA does not believe these concerns are irreconcilable. OSHA's 
recently revised Respiratory Protection standard, 29 CFR 1910.134 
(1998), promulgated at 63 FR 1152-1300 (Jan. 8, 1998), as well as the 
predecessor to that standard, 29 CFR 1910.134 (1997), require standby 
rescue personnel when employees are working in atmospheres that are 
immediately dangerous to life or health (IDLH). It is clear that the 
atmosphere in a permit space where an entrant could suffer irreversible 
impairment within four to six minutes would meet the definition of an 
IDLH atmosphere: ``an atmosphere that poses an immediate threat to 
life, would cause irreversible adverse health effects, or would impair 
an individual's ability to escape from a dangerous atmosphere'' (29 CFR 
1910.134(b)); see also the preamble discussion at 63 FR 1184-1185.
    According to the Respiratory Protection standard, when employees 
enter such a space, the employer must ensure that:

    (i) One employee, or when needed, more than one employee is 
located outside the IDLH atmosphere;
    (ii) Visual, voice, or signal line communication is maintained 
between the employee(s) in the IDLH atmosphere and the employee(s) 
located outside the IDLH atmosphere;
    (iii) The employee(s) located outside the IDLH atmosphere are 
trained and equipped to provide effective emergency rescue;
    (iv) The employer or designee is notified before the employee(s) 
located outside the IDLH atmosphere enter the IDLH atmosphere to 
provide emergency rescue;
    (v) The employer or designee authorized to do so by the 
employer, once notified, provides the appropriate assistance 
necessary to the situation;
    (vi) Employee(s) located outside the IDLH atmospheres are 
equipped with:
    (A) Pressure demand or other positive pressure SCBAs, or a 
pressure demand or other positive pressure supplied-air respirator 
with auxiliary SCBA; and either
    (B) Appropriate retrieval equipment for removing the employee(s) 
who enter(s) these hazardous atmospheres where retrieval equipment 
would contribute to the rescue of the employee(s) and would not 
increase the overall risk resulting from entry; or
    (C) Equivalent means for rescue where retrieval equipment is not 
required under paragraph (g)(3)(vi)(B) (29 CFR 1910.134(g)(3)); see 
also preamble discussion at 63 FR 1242-1245.

    OSHA believes that compliance with these requirements will meet the 
concerns of those commenters who urged OSHA to require a rescue 
response time of only a few minutes. Because the standby personnel 
required by the Respiratory Protection standard will have been 
monitoring the confined space entrant's condition throughout the 
operation and will be fully equipped to begin rescue operations, they 
will be able to respond more quickly than rescue team members arriving 
from another location, whether inside or outside the plant, who would 
need to gather appropriate equipment, prepare to use that equipment, 
and be briefed on the emergency situation before beginning rescue 
operations. And because the standby personnel must be appropriately 
trained and equipped to perform rescue operations, other inadequately 
prepared employees will be less likely to endanger themselves by 
attempting hasty and dangerous rescues. (Note that at least one 
employee, serving as attendant, must still remain outside the permit 
space, as required by Section 1910.146(i)(4).) On the other hand, 
because the Respiratory Protection standard requirement only applies to 
IDLH atmospheres, a less resource-intensive and more measured response 
capability may be used for those situations where there is not the same 
need for virtually instant response.
    OSHA has therefore decided to promulgate the requirement it 
proposed for ``timely'' rescue, a requirement that was not opposed by 
any rulemaking participant, rather than to define precisely what is 
timely. That determination will be based on the particular 
circumstances and hazards of each confined space, circumstances and 
hazards which the employer must take into account in developing a 
rescue plan. OSHA has added a note to paragraph (k)(1)(i) to clarify 
this point.
B. Evaluation, Selection, and Use of Rescue Services
    OSHA has generally reorganized paragraph (k) to de-emphasize the 
distinction between in-house and outside rescuers and to focus instead 
on the employer's obligation to evaluate rescue services so that it can 
select one that is competent to provide the rescue services appropriate 
for that employer's operations. Several commenters explained that 
OSHA's assumption that in virtually all cases the ``host'' employer 
would be the employer of both the confined space entrants and any in-
situ rescue team but would not be the employer of an off-premises team 
was erroneous (Ex. 181). These commenters described a number of 
situations where this assumption would be inaccurate. For example, in 
some cases, confined space entrants may be contractor employees, 
although the rescue team may be composed of on-site employees of either 
the host employer or another contractor (Ex. 179). In other cases, the 
host employer may arrange for the standby presence of an ``outside,'' 
non-employee rescue team during particularly hazardous permit space 
entries. In still other situations, an employer may use a rescue team 
comprised of employees of a different facility that it operates.
    As a result OSHA has revised paragraph (k)(1) to emphasize the 
evaluation that an employer must perform of available rescue and 
emergency resources before designating a rescue provider for purposes 
of this standard. This also responds to the concerns of a number of 
commenters that the language OSHA used in the NPRM, requiring the 
employer to ``ensure'' that the rescue service it selected was able to 
function adequately, appeared too result oriented. These commenters 
believed that compliance could only be determined by a post hoc 
consideration of the success or failure of an actual rescue effort. 
They said the focus should

[[Page 66024]]

instead be on the employer's assessment of the rescuer's capabilities 
(Ex. 161-20). OSHA agrees that assessment of capabilities is the 
appropriate focus for employer efforts, and intended this result in 
both the 1993 standard and the NPRM. The language of this final rule, 
by explicitly framing the employer's obligations in terms of the 
evaluations it performs, will clarify this intent.
    Paragraph (k)(1)(i) explains that the rescue service evaluation 
must take into account the rescuer's ability to respond in a timely 
manner to the types of emergencies that may arise in the employer's 
confined spaces. As noted above, the note to paragraph (k)(1)(i) 
explains that what will be considered timely rescue will vary according 
to the specific hazards involved in each confined space entry.
    Paragraph (k)(1)(ii) requires that the evaluation also include an 
assessment of the skill and competence of the prospective rescuers. 
Several commenters pointed out that in some cases employers have 
designated local fire and rescue services as their rescuers without 
first confirming that those services even have a confined space rescue 
capability (Ex. 161-41). Although many emergency responders may be able 
to provide proper permit space rescue functions for all spaces that do 
not require immediate, stand-by rescue capability, not all responders 
have this ability (Ex. 161-41). Each employer relying on these services 
should verify that the emergency responder is indeed trained, equipped, 
able, and willing to perform rescue for confined spaces in its 
facility.
    In evaluating a prospective rescue provider's abilities under this 
subparagraph, the employer must also consider the willingness of the 
service to become familiar with the particular hazards and 
circumstances faced during its permit space entries. Subparagraphs 
(k)(1)(iv) and (k)(1)(v) require the employer to provide its designated 
rescuers with information about its confined spaces and access to those 
spaces, both to allow the development of appropriate rescue plans and 
to perform rescue drills. A rescue service's receptiveness to this 
information is directly relevant to its ability to function 
appropriately during actual rescue operations.
    A few commenters provided information on particular products, 
including communication equipment (Ex. 161-52) and in-situ 
resuscitation devices (Tr. 459-468) for use in permit space rescue 
operations. OSHA does not, of course, endorse specific products. 
However, the Agency notes that the equipment used by a rescue service, 
and that equipment's utility in enhancing rescue efforts, is a relevant 
factor for employers to consider during the rescuer evaluations 
required by this paragraph.
    Paragraph (k)(1)(iii) requires the employer, after performing the 
evaluations required by paragraphs (k)(1)(i) and (k)(1)(ii), to select 
a rescue provider that has the ability to respond in a timely manner to 
the particular hazards at issue, and to provide proficient rescue 
services. In other words, it is not enough for an employer simply to 
perform the evaluations required. The employer must also utilize the 
results of those evaluations to select a rescue service that will meet 
the goals of this standard.
    Paragraph (k)(1)(iv) requires the employer to notify the rescue 
service it selects of the hazards that may exist at the permit spaces 
in its facility. This requirement was included in the NPRM and was also 
present in the 1993 standard. In the context of this revised standard, 
this notification provision obviously includes notifying the rescue 
service that it has been selected and that the employer will be relying 
on it. In some cases compliance with this section, as well as with 
paragraphs (k)(1)(i) and (k)(1)(ii), may require the employer to notify 
the rescue service immediately prior to each permit space entry.
    Paragraph (k)(1)(v) requires employers to provide the rescue 
service selected with access to all confined spaces from which rescue 
may be necessary so that the rescue service can develop appropriate 
rescue plans and practice rescue operations. This provision, which is 
essentially unchanged from both the NPRM and the 1993 standard, was the 
subject of a significant amount of comment from employer 
representatives who urged OSHA to require only that they provide access 
to ``representative'' or ``typical'' spaces (Exs. 161-29, 161-20, 161-
25, 161-26, 161-2-9, 161-60, 184). These commenters pointed out that a 
number of an employer's confined spaces were likely to share identical 
configurations, and that it would therefore not be necessary for the 
rescue service to have access to each of them (Exs.161-25, 181, 184). 
Some also expressed concern that providing access to some permit 
spaces, which are only entered at rare intervals for cleaning or other 
servicing, could be costly and disruptive of the employer's ongoing 
operations.
    OSHA recognizes the validity of these concerns but believes that 
the employer's needs can be accommodated within the context of the 
existing requirement. Accordingly, OSHA has not made the suggested 
change. Although OSHA agrees that a rescue service is unlikely to need 
access to every one of a group of similar spaces, OSHA believes that it 
should be the rescue service that decides which space, or spaces, will 
be used for planning and practice purposes. This is particularly true 
for off-site rescue services, who are less likely to be familiar with 
the layout of the host employer's workplace. The Agency also took this 
position in the January 14, 1993 final rule (58 FR 4529-4530), and at 
the September 27, 1995, public hearing (Tr. 22). Similarly, although 
providing access to some permit spaces may be disruptive of normal 
production operations, OSHA believes that employers should be able to 
work out with their designated rescue services mutually convenient 
times to provide access to those spaces, if the rescue service believes 
that access to those particular spaces is necessary for planning or 
practice drill purposes. Indeed, none of the commenters argued that 
such accommodations could not be made.
    As proposed, OSHA has redesignated paragraph (k)(1) of the 1993 
standard, dealing with the requirements for rescue service employers, 
as (k)(2) of this revision, but has not made substantive changes in 
this requirement. Most of the comment OSHA received on this provision 
dealt with the fact that employers have different obligations toward 
rescue teams comprised of their own employees than toward teams they do 
not employ directly. However, as a number of commenters recognized, to 
the extent that the ``non-employee'' rescue services are comprised of 
employees of another employer subject to the OSH Act, they also will 
receive the benefits of these provisions (Ex. 161-20). And to the 
extent that a service's failure to comply with these provisions affects 
its rescue skills and competence, employers should take this into 
account in deciding whether to select that service to provide its 
rescue operations.
    OSHA has made some editorial changes in this paragraph. For 
example, revised paragraph (k)(2)(i) states that rescue PPE and related 
training are to be provided at no cost to affected employees. This 
language has been added so it is clear that this provision is 
consistent with existing Sec. 1910.146(d)(4).
C. Retrieval Systems
    OSHA proposed to revise paragraph (k)(3)(i) to allow attachment of 
retrieval lines at any point ``which the employer can establish will 
ensure that the entrant will present the smallest

[[Page 66025]]

possible profile during removal'' rather than only at the entrant's 
back near shoulder level or above the entrant's head. The final rule 
changes this language somewhat, but retains the performance orientation 
of the proposal. OSHA explained in the NPRM that, subsequent to the 
1993 promulgation, the Agency received information which indicated that 
other equally effective and safe points of attachment exist. 
Accordingly, OSHA proposed to add the new language to paragraph 
(k)(3)(i). The proposed paragraph, however, inadvertently omitted 
language providing for the use of wristlets in certain circumstances.
    Commenters (Exs. 161-1, 161-9, 161-13, 161-14, 161-15, 161-20, 161-
26, 161-29, 161-34, 161-37, 161-43, 161-45) uniformly supported the 
increase in flexibility allowed by the proposed revision. Some, 
however, suggested changes to OSHA's proposed language. The National 
Grain and Feed Association (Ex. 161-14) suggested that the standard 
allow attachment ``in the manner determined by the employer most 
effective to ensuring that the entrant'' will present the smallest 
possible profile during removal. OSHA has not adopted this suggestion 
because it believes the two points of attachment listed (the center of 
the entrant's back near shoulder level and above the entrant's head) 
should be emphasized because those points are preferred for most 
situations.
    Another commenter (Ex. 161-45) suggested replacing the proposed 
``smallest possible profile'' with ``best possible profile.'' OSHA 
agrees that it may not always be desirable for the entrant to present 
the smallest possible profile during rescue. For instance, in 
situations where the size of the space or portal is not limiting, a 
point of attachment which results in the smallest possible profile may 
be less desirable than some other point of attachment which better 
facilitates the work to be done. Accordingly, OSHA has decided to 
replace the proposed language with the phrase ``profile small enough 
for the successful removal of the entrant.'' OSHA also has not adopted 
a suggestion of the Tennessee Valley Authority (Ex. 161-34) that OSHA 
change the term ``profile'' to ``cross sectional profile'' because OSHA 
believes that the term ``profile'' is clear in this context. Finally, 
two commenters called to OSHA's attention the inadvertent omission in 
the NPRM of the option to use wristlets where the use of a body harness 
is infeasible or would create a greater hazard (Exs. 161-20, 161-26). 
The revised rule retains the language on wristlets.
    OSHA did not propose, and has not made, any change to subparagraphs 
(k)(3)(ii) or (k)(4). Subparagraph (k)(3)(ii) requires a mechanical 
device to be available to retrieve entrants from a vertical confined 
space more than five feet deep. OSHA notes that it has always intended 
that the word ``available'' in this provision mean ``at the access 
point of the vertical entry and ready for use.''

Paragraph (l)--Employee Participation

    A new paragraph (l) has been added to the standard, dealing with 
employee participation in confined space programs. Paragraph (l)(1) 
requires employers to consult with affected employees and their 
representatives in the development and implementation of their confined 
space programs; paragraph (l)(2) requires that those employees and 
representatives have access to all information developed under this 
standard.
    OSHA's original Permit Required Confined Spaces standard hearing 
notice (54 FR 41462) requested comments on the subject of worker 
participation in the design and implementation of a PRCS program. OSHA 
received several comments on the subject (Exs. 14-318, 14-210, 14-215, 
14-220, 14-222) and some testimony at the public hearings also 
addressed it (Tr. 225-226, 251, 386, 589-590; Tr. 1063-1064; Tr. 317-
318, 348-352, 356, 376, 379-380, 411, 427-428, 532-533, 612-613, 622-
623). The Agency addressed these comments in the preamble to the 
January 1993 standard (58 FR 4484-4485).
    The standard encouraged the involvement by employees and clearly 
recognized it as vital to the creation of an effective permit space 
program. However, it did not require employee involvement in the 
development of the permit program, although it did provide for such 
involvement in permit space program inspection and review (paragraphs 
(c)(4) and (d)(13)), and in review of employee training upon evidence 
of deficiencies ((g)(2)(iv)). OSHA explained its decision not to 
require employee involvement in the development of confined space 
programs by referring to the difficulties of mandating labor-management 
collaboration in the development of the permit space program and of 
resolving conflicts between workers and employers (FR 4484-4485). As is 
discussed more fully below, OSHA believes this revision avoids both of 
these problems.
    Although the NPRM on which this revision is based did not 
explicitly mention employee involvement in the development of confined 
space programs, some commenters submitted statements urging OSHA to 
include a provision explicitly allowing such participation (see, e.g., 
Ex. 161-38; 161-40). Further discussion of this issue occurred at the 
public hearing.
    Commenters supporting the addition of an employee participation 
provision to the standard pointed out that employee participation in 
plan design is already done at many workplaces pursuant to collective 
bargaining agreements, and that such participation would be consistent 
with that occurring under other OSHA standards, particularly the 
Process Safety Management standard (29 CFR 1910.119) (Ex. 161-140). It 
was also pointed out that employees who actually work in confined 
spaces and their representatives are particularly well qualified to 
contribute to the task analysis that is a necessary step in developing 
a confined space program (Exs. 161-38; 161-140).
    In contrast, even the American Petroleum Institute (API), the 
commenter who most explicitly opposed inclusion of such a requirement, 
acknowledged that involvement by employees in the program development 
process could be useful. API said that OSHA should continue to 
``encourage'' such involvement but should not require it because such a 
requirement could expose the standard to ``additional controversy or 
litigation'' (Ex. 167). The American Gas Association made a similar 
statement (Ex. 161-770). Other more general comments on employee 
participation repeated the point made in the original rulemaking that 
such participation raises labor relations issues that should not be 
addressed by an OSHA standard (see, e.g., Exs. 184, 187).
    OSHA has determined that the consultation requirement in new 
paragraph (l) will provide the benefits discussed by the participants 
who favored an employee involvement requirement. By leaving the final 
contents of the confined space program up to the employer, however, 
this provision should minimize controversy and avoid the need to 
develop a cumbersome procedure to resolve conflicts. OSHA expects that 
there will be few conflicts in any event, because it believes that the 
vast majority of employers and employees will cooperate to make 
confined space entry procedures as safe and efficient as possible. This 
requirement should only have a minimal effect on labor-management 
relations although, as noted in the discussion of paragraph (c) above, 
the importance of employee

[[Page 66026]]

safety and health would justify such an effect even if it were 
substantial.
    As the UAW pointed out, the employees who perform the actual entry 
can contribute immeasurably to the analysis of the tasks performed 
during a permit space entry to ensure that the hazards within the space 
remain under control and that additional hazards are not introduced 
(Ex. 161-40). These employees are the people most familiar with the 
actual practices during confined space entries. If those practices 
differ significantly from the practices intended by the employer, the 
employer needs to be made aware of the differences and to take 
appropriate steps to remedy any deficiencies in the permit entry 
procedures. Likewise, employees may be aware of hazards within the 
space that are not being taken into consideration by non-entrants.
    In addition, OSHA's own experience in enforcing the Congressionally 
mandated employee participation requirement under the Process Safety 
Management standard has convinced the Agency of both the value and the 
workability of the new provisions being added in paragraph (l). OSHA 
believes that, as well as improving the quality of the permit space 
programs developed under the standard, this new provision will also 
enhance compliance with those programs. Clearly, employees who have 
participated in the development of programs will have a better 
understanding of the reasons for the various provisions of the program 
and will therefore be more likely to comply with those provisions. 
Similarly, any manager who might be tempted to bypass any of the 
program safeguards will be less able to convince an employee that such 
an action would not affect safety and health.
    Finally, paragraph (l) is consistent with both the Congressional 
intent and OSHA's long practice of promoting employer-employee 
cooperation in safety and health matters. The Congressional intent is 
shown in part by Section 2(13) of the OSH Act, 29 U.S.C. 652(13), which 
states that one of the purposes of the Act is to ``encourage joint 
labor-management efforts to reduce injuries and disease arising out of 
employment.'' More recently, Congress' intent can be seen in its 
directive to OSHA to promulgate a PSM standard that explicitly provides 
for employee involvement in the development of the process safety 
management programs mandated by that standard.
    An example of OSHA's longstanding practice of encouraging and 
promoting employee involvement is the Agency's 1989 Safety and Health 
Program Management Guidelines (54 FR 3904), which recognize the 
importance of involving employees in safety and health programs at the 
workplace. Paragraph (c)(1)(iv) of those guidelines urges employers to 
provide for and encourage employee involvement in ``the structure and 
operation of the [safety and health] program and in decisions that 
affect their safety and health, so that they will commit their insight 
and energy to achieving the safety and health program's goal and 
objectives.'' Although the guidelines are voluntary, this provision 
demonstrates OSHA's belief that employee involvement is necessary to 
the day-to-day safety and health of workers. Additionally, the 
guidelines are being applied in many workplaces through several OSHA 
programs, such as the Voluntary Protection Program, the Safety and 
Health Achievement and Recognition Program, and in several State and 
Regional experimental programs. OSHA's 1998 Strategic Plan also 
emphasizes the importance of employee involvement in safety and health 
and establishes as an Agency objective the enhancement of such 
involvement in all OSHA initiatives, as appropriate.
    New paragraph (l)(2) requires employers to share with employees and 
their authorized representatives all of the information generated under 
this standard. Comments objecting to this provision were generally 
limited to pointing out that it would be redundant with other 
provisions in the standard that already require the great majority, if 
not all, of this information to be made available to employees and 
representatives. OSHA recognizes this redundancy; it is adding this 
provision for purposes of emphasis and clarification.
    For all of the reasons described above, OSHA has determined that 
the consultation requirement in paragraph (l)(1) is supported by the 
record of this rulemaking; it will contribute to confined space safety; 
and it is consistent with longstanding agency policy. The information 
provision requirement in paragraph (l)(2) is also consistent with 
agency policy, and will emphasize that employees and their 
representatives have a right to all information affecting their health 
and safety.

Section 1910.146  Appendix F--Example of Rescue Service Evaluation 
Criteria

    As discussed above, OSHA has added a new, non-mandatory Appendix F. 
This appendix provides guidance to employers in choosing appropriate 
rescue services. The Agency received several comments (Exs. 161-4, 161-
7, 161-44, 161-55) which addressed the need for criteria to assist 
employers in evaluating potential rescuers. As expressed by one 
commenter (Ex. 161-44): ``If an employer does not have rescue knowledge 
and experience, how can he possibly evaluate a prospective rescue 
service? What evaluation and verification process is reasonable and 
acceptable to OSHA?''
    The Agency recognizes that some employers will need information on 
how to evaluate prospective rescue services. However, presenting 
criteria that match every situation would be difficult. For this 
reason, OSHA has determined that the suggested criteria for rescue 
service evaluations should be presented in a non-mandatory appendix. 
Additionally, this appendix provides criteria for ongoing performance 
critiques for rescue services so that employers will have a means to 
judge whether a rescue service has maintained its ability to perform 
safe and effective permit space rescues. Although the Appendix is 
divided into a section addressing initial assessments and one 
addressing performance critiques for rescue services already operating 
at an employer's facility, the considerations in the two sections 
should not be seen as mutually exclusive. To the extent the employer 
can obtain enough information to make a determination, the same factors 
would be applicable to both determinations.

III. Final Economic Analysis

Introduction

    In accordance with Executive Order 12866 and the Regulatory 
Flexibility Act (as amended), OSHA has prepared this Final Economic 
Analysis to accompany the final rule amending the Agency's Permit-
Required Confined Spaces (PRCS) standard (29 CFR 1910.146). The final 
rule is being amended to require employers to provide authorized 
entrants (i.e., those employees who are authorized to enter PRCSs) or 
their designated representatives with the opportunity to observe the 
monitoring or testing of permit spaces and to request the reevaluation 
of any permit space that they believe may have been inadequately 
tested. The final rule also clarifies the criteria employers must 
satisfy when preparing for the timely rescue of incapacitated permit 
space entrants. Employee participation in the permit space program is 
enhanced in the final rule, which provides authorized employees and 
their designated representatives with access to program information 
developed under the standard and requires employers to consult with 
such

[[Page 66027]]

employees about the implementation of the permit space program.
    When the Permit-Required Confined Spaces standard was promulgated 
in 1993, the Regulatory Impact Assessment (RIA) that accompanied the 
rule was placed into the rulemaking docket [Docket S-019, Ex. 149]. The 
RIA evaluated the costs, benefits, impacts, and technological and 
economic feasibility of the 1993 final rule. The Final Economic 
Analysis presented here estimates the costs of those requirements of 
the amended rule that will impose new regulatory burdens on affected 
employers, analyzes the benefits that will accrue to employers, 
employees, and others as a result of these new provisions, examines the 
technological and economic feasibility of the amended provisions, and 
assesses the impacts of the costs of compliance on affected employers 
and on small businesses in particular. The Final Economic Analysis does 
not re-analyze the estimates presented in the RIA for the 1993 rule or 
assess the costs and benefits of provisions in the amended final rule 
that merely interpret or explain the intent of provisions in the 1993 
rule because the costs and benefits of such provisions were fully taken 
into account in the earlier RIA.
    This Final Economic Analysis assesses the costs, benefits, 
technological and economic feasibility, and impacts of two provisions 
of the amended final rule. These provisions include revised paragraph 
(d), which now requires employers to permit authorized employees or 
their designated representatives to observe the testing or monitoring 
of permit spaces, and paragraph (l), which requires employee 
participation in the development and implementation of the permit space 
program and requires employers to provide employees and their 
designated representatives with access to information developed under 
the standard. The Agency has determined that the revised provisions 
will enhance the safety and health protections provided to confined 
space entrants by the standard and will also benefit employers by 
saving some of the direct costs associated with deaths and serious 
injuries that now occur but will in future be prevented.
    The following sections of this analysis briefly summarize the 
industry profile and the findings of the Agency's technological 
feasibility analysis for the amended rule.

Industry Profile

    Tanks, vats and pits are examples of common confined spaces. 
Although confined spaces of these types are concentrated in the 
manufacturing and utilities sectors, they are also found in some trade 
and service sectors. The 1993 RIA estimated that 1.6 million workers in 
nearly 240,000 establishments enter confined spaces annually. A profile 
of these spaces is presented in Table I. A more detailed description of 
confined spaces in industry is available in the earlier RIA [Docket S-
019, Ex. 149].

BILLING CODE 4510-26-P

[[Page 66028]]

[GRAPHIC] [TIFF OMITTED] TR01DE98.009



BILLING CODE 4510-26-C

[[Page 66029]]

Technological Feasibility

    Paragraphs (d) and (l) of the amended final rule will impose new 
costs on some affected employers because they will be required to spend 
additional time consulting with employees, to allow employees or their 
representatives to spend time observing the testing or monitoring of 
permit spaces, and so forth. However, the amended rule will not require 
employers to employ additional or new technologies to achieve 
compliance. As explained in the RIA [Docket S-019, Ex. 149], compliance 
with all aspects of the standard can be achieved and is being achieved 
with readily available off-the-shelf equipment.

Costs of Compliance

Observation of Testing
    The Agency is modifying paragraph (d)(5), by adding paragraphs 
(iv), (v), and (vi), which require employers to offer authorized 
entrants or their designated representatives the opportunity to observe 
the pre-entry testing or monitoring and any subsequent testing or 
monitoring of permit spaces (paragraph (d)(5)(iv)); to reevaluate any 
space that the entrant or representative believes was inadequately 
tested (paragraph (d)(5)(v)); and to provide entrants and their 
representatives with the results of such testing immediately (paragraph 
(d)(5)(vi)).
    OSHA concludes, based on evidence in the record, that paragraphs 
(d)(5)(v) and (d)(5)(vi) will not impose new costs on affected 
employers because they simply restate or explain requirements that were 
implicit in paragraph (e)(3) of the existing permit space rule. 
Paragraph (e)(3) requires the posting of entry permits, which contain 
the results of initial or periodic testing or monitoring (including the 
results of any remonitoring or testing), to enable authorized entrants 
to verify that preentry preparations have been completed. As stated in 
the preamble to the original rule [58 FR 4505], this provision ensures 
that ``Entrants will then be able to make their own judgments as to the 
completeness of pre-entry preparations and to point out any 
deficiencies that they believe exist.'' Commenters affirmed that 
permits are posted and used in this way and thus that this provision 
reflects current industry practice [Ex. 161-45; Ex. 161-72]. Paragraph 
(d)(5)(vi) of the amended rule, which requires employers to provide 
entrants and their representatives with the results of such testing or 
monitoring, is also implicit in paragraph (e)(3), which requires that 
``The completed permit shall be made available at the time of entry to 
all authorized entrants, by posting it at the entry portal or by any 
other equally effective means, so that the entrants can confirm that 
pre-entry preparations have been completed.'' As stated above, it is 
current industry practice to provide immediate access to the 
information on entry permits.
    Paragraph (d)(5)(iv) may impose new costs on some employers, 
although there is evidence in the record that many employers already 
allow permit space entrants to observe the testing or monitoring of 
spaces. For example, different firms indicated that they routinely 
provide employees with assurances of safety, showing them the various 
pre-entry safety procedures, if necessary [Tr., p. 57] or allowing 
employees to do the monitoring themselves [Tr., p. 186]. Mike Roop of 
the Roco Corporation indicated that, in the companies with which he had 
worked, employee requests to observe testing were not denied [Tr., p. 
267]. Other firms actually encourage employees to observe monitoring 
[Tr., p. 202]. Duane Barnes, speaking for Dow, indicated that his 
company's safety record was so good that, although it was company 
policy to provide employees with any reassurance that was required in 
the area of safety, Dow had simply not had such requests [Tr., p. 57].
    OSHA notes that its economic analyses for health standards, which 
routinely allow employees and their representatives to observe any 
employee exposure monitoring required by such standards, do not 
estimate any costs for the observation of monitoring provision (see, 
for example, the RIAs for ethylene oxide [Ex. 163, Docket H-200], 
cadmium [Ex. L173, Docket H-057A] ). The Agency also has not received 
comments suggesting that employers actually incur costs by permitting 
employees to observe monitoring for health standards. In the present 
rulemaking, an industry representative stated that allowing employees 
to observe the monitoring required by OSHA health standards did not 
present a problem [Tr. p. 93]. Based on this history and evidence, OSHA 
assumes that such costs are essentially negligible.
    OSHA also believes, based on the record, that many employers will 
meet the requirement for employee observation of monitoring by allowing 
employees requesting such information to perform the monitoring 
themselves. The task of testing has been greatly simplified by the 
introduction and improvement of electronic ``instant'' monitoring 
devices; for many spaces, employers currently place the monitoring 
devices directly on the employees [Tr. pp. 186, 188]. To the extent 
entrants test the atmosphere themselves before entering spaces, there 
would be no cost to this requirement.
    Nonetheless, although the Agency believes that the costs of 
compliance with paragraph (d)(5)(iv) will be negligible, it has 
assessed the costs this provision might impose under worst case 
conditions, i.e., assuming that no employer currently permits any 
employee to observe such monitoring or testing of permit spaces and 
that every authorized entrant or designated representative will do so 
in the future. At the time of the original rulemaking, OSHA estimated 
that a total of 1.2 million hours would need to be spent on pre-entry 
testing (this estimate includes those facilities that were considered 
already to be in compliance with the monitoring provisions of the 
original confined spaces standard).\1\ After adjusting the compensation 
rates in the original RIA to 1994,\2\ the annual costs of compliance 
with paragraph (d)(5)(iv) under this extreme scenario would amount to 
$22.6 million.
---------------------------------------------------------------------------

    \1\ Based upon an assumption of an average of five minutes of 
labor time required for pre-entry testing. This assumption was 
presented in the Preliminary Regulatory Impact Analysis (PRIA) for 
the original rule [Docket S-019, Ex. 15], was not questioned in the 
record, and was therefore carried over into the final RIA [Docket S-
019, Ex. 149]. The final RIA was not subsequently challenged.
    \2\ Thus comparing 1994 costs to 1994 financial data (discussed 
further in the Economic Impact Section). The compensation rate was 
also updated to reflect recent BLS data, which indicates a 39 fringe 
benefit rate [BLS, 1995], as opposed to the 30 percent rate used in 
original analysis [Docket S-019, Exhibit 149].
---------------------------------------------------------------------------

    OSHA believes, based on the record and the Agency's experience in 
health standards rulemakings, that costs for this provision will be 
incurred in no more than 10 percent of permit space entries, i.e., that 
the actual costs of this provision will be one-tenth of those outlined 
in the ``worst case'' scenario, or $2.3 million. Estimated costs for 
this provision, by industry, are shown in Table II.
Employee Consultation
    As indicated previously, the Agency is adding a new paragraph (l) 
to the amended final rule. This provision requires employers to consult 
with affected employees and their authorized representatives. The 
existing rule, at paragraph (c)(4), already requires that the written 
plan be available for review by employees and their authorized 
representative(s). However, the Agency believes that the requirements 
in new paragraph (l) will lead to a modest increase in the amount of 
time employees and employers spend in

[[Page 66030]]

developing and implementing their confined spaces programs.
    Although the Agency lacks specific data on current industry 
practice with regard to employee consultation in the development and 
implementation of permit space programs, the Agency believes it 
reasonable to assume that the requirements in paragraph (l) will 
require an average of 10 minutes for authorized entrants and attendants 
to meet with a member of management or an entry supervisor to discuss 
ways to improve the program and its implementation. The Regulatory 
Impact Analysis in support of the original rule assumed that programs 
would need to be updated fully on an average of once every five years. 
Therefore, the annual cost of this provision is estimated to be:
    (We+Wm) X (# of entrants + # attendants) X 10/60 hour X .24 where 
We is the hourly compensation of affected employees and Wm is the 
hourly compensation of management. Hourly compensation is based on 1994 
industry hourly wage rates for production workers [BLS, 1994], plus the 
average nonagricultural benefit rate of 39 percent [BLS, 1995]. 
Consistent with the PRIA [Docket S-019, Ex. 15] and RIA [Docket S-019, 
Ex. 149], management compensation is assumed to be 20 percent greater 
than that of the entrants and attendants. The annualization factor for 
a five-year period at a 7 percent rate of interest is .24. Given these 
assumptions, the Agency estimates that this provision will cost $3.6 
million to implement. Estimated costs for this provision, by industry, 
are shown in Table II. Combined with the amended final rule's provision 
requiring employers to provide employees with the opportunity to 
observe testing, the Agency estimates the total costs of compliance for 
the amended final rule to be $5.8 million annually.

BILLING CODE 4510-26-P

[[Page 66031]]

[GRAPHIC] [TIFF OMITTED] TR01DE98.010



BILLING CODE 4510-26-C

[[Page 66032]]

Benefits

    The benefits of providing employees with an opportunity to observe 
the testing of spaces are predictably difficult to quantify, although 
the Agency believes that the benefits of doing so are real. Allowing 
employees to observe the testing and monitoring of permit spaces will 
provide for safer confined space entry: the record shows that, had 
employees in the past been able to observe the testing of spaces before 
entry or to obtain a reevaluation of questionable testing results, it 
is likely that a number of fatalities could have been averted. For 
example, the Steelworkers [Ex. 188, p. 4] report a number of cases 
where employers have apparently tested spaces improperly, leading to 
fatal results both for the workers entering the space and the rescuers 
attempting to rescue their incapacitated co-workers.
    However, defining the number of fatalities or injuries preventable 
annually by this provision is difficult because permit space accidents, 
like most safety accidents, are multi-causal in nature. Most confined 
space accidents reflect a number of failures in the permit program, 
which makes it difficult to isolate the effectiveness of any given 
provision of the program (or rule). At the time of the original rule, 
OSHA specifically asked in the Federal Register [54 FR 24080] for 
comment on the effectiveness of the permit space rule; there was 
general agreement that the standard would prevent 80-90 percent of 
accidents. There was little attempt, however, to try to break out the 
benefits of particular provisions, due to the substantial overlap of 
causes in accidents and the deliberate redundancy built into some 
provisions of the standard.
    In addition, it is difficult to estimate how often authorized 
entrants or their designated representatives will avail themselves of 
the opportunity to observe the testing or monitoring of permit spaces. 
To gain an understanding of the magnitude of the potential benefits 
associated with new paragraph (d)(5)(iv), OSHA turned to the RIA, which 
estimated that 85% of permit space accidents would be eliminated by the 
standard but that 15% of such accidents would continue to occur [58 CFR 
4543]. These 15% of fatal cases, or 9 cases annually, were attributed 
to ``human error'' but were also believed to be theoretically 
preventable.
    The amended rule's provision for the observation of testing will 
function to provide a ``check'' on human error in those cases where 
monitoring was improperly performed. When these fatal accidents occur, 
more than one element of the safety system has typically failed; 
however, in almost all such cases, one critical element--the accurate 
monitoring of the atmosphere--has failed. Thus it is reasonable to 
assume that allowing authorized entrants or their designated 
representatives to observe the testing of spaces will prevent a 
substantial portion of the accidents attributed in the RIA to human 
error. Because approximately two-thirds of these fatalities were 
related to atmospheric hazards (toxic, explosive, or oxygen deficient 
atmospheres),3 OSHA assumes in this benefits analysis that 
the same proportion of cases, or a total of approximately 6 fatalities 
annually, could be prevented if proper monitoring was assured in all 
cases of permit space entry.
---------------------------------------------------------------------------

    \3\ Based on an examination of death certificates for 670 
fatalities in confined spaces in NIOSH's National Traumatic 
Occupational Fatality (NTOF) data base [NIOSH, Worker Deaths in 
Confined Spaces, January 1994]. This is after excluding cases 
related to grain engulfment, which are dealt with under OSHA's grain 
handling standard (Sec. 1910.272). This figure is likely 
conservative, as NIOSH's figures include some trench cave-ins, which 
are dealt with under OSHA's excavation standard (Sec. 1926, Subpart 
P).
---------------------------------------------------------------------------

    How effective this provision will be in practice will depend on the 
number of employees who actually avail themselves of the opportunity to 
observe the testing of spaces. In the absence of data to quantify this 
effect specifically, the Agency is adopting the conservative assumption 
of direct proportionality--i.e., the Agency is assuming that if only a 
small number of employees observe such monitoring, only a small number 
of the potentially preventable fatal incidents will be prevented. In 
this case, since the cost analysis assumes that only 10 percent of 
employees will actually observe monitoring, the Agency assumes that 
only 10 percent of the 6 fatalities (or 0.6 fatalities) will be 
prevented annually. Borrowing similarly from the injury analysis of the 
RIA for the final rule, the Agency estimates that paragraph (d)(5)(iv) 
will prevent 50 lost workday injuries annually.4 Finally, to 
the extent more employees than assumed here avail themselves of the 
opportunity provided by the final rule, both the benefits and costs 
will be higher.
---------------------------------------------------------------------------

    \4\ The baseline number of lost-workday injuries in confined 
spaces was estimated to be 5,041 before the rule was published. 
(While the original projection of baseline injuries was based on a 
theoretical projection, it has subsequently been verified as being 
approximately correct, based on now-available 1993 BLS data [BLS, 
1996, Table R64].) This leaves a residual of 756 (.15  x  5,041) 
such injuries annually that would not be prevented by the original 
rule. If this provision could theoretically prevent \2/3\ of these 
cases, or 507 (.67  x  756), but will only be used 10 percent of the 
time, this suggests that 50 lost-workday injuries will be prevented 
annually as a result of this provision.
---------------------------------------------------------------------------

    Indirect benefits from this provision, as well as from paragraph 
(l), will come in the form of enhanced employee participation. A recent 
analysis of Oregon's mandatory safety and health program rule, which 
requires active employee participation, indicates that employers 
receive measurable safety benefits from enhanced employee participation 
in safety programs [Weil, 1994]. Consulting employees in the 
development of a confined spaces safety program, as required by 
paragraph (l), may also generate new ideas for more efficient confined 
spaces entry. As was noted by several commenters from industry in the 
original rulemaking [Docket S-019, Ex. 149, pp. V-68-71], confined 
spaces are frequently production vessels that cannot be used while they 
are being entered, and the employer therefore has an incentive to 
minimize the amount of time spent in the confined space. Therefore, 
extra time spent planning safe and efficient entry beforehand may pay 
dividends not only in increased labor productivity but in capital 
productivity as well. For example, an employee might have a suggestion 
for modifying the job so as to avoid the need to enter the space 
entirely.

Economic Impact

    To assess the economic impact of these amendments to the permit 
required confined spaces standard, the Agency compared the estimated 
annual costs of these provisions against the revenues and profits of 
affected businesses. Revenue data were taken from the Bureau of the 
Census' Standard Statistical Establishment List data base; profit data 
were taken from Dun and Bradstreet's Norms and Key Business Ratios [Dun 
& Bradstreet]. Sales, profit and relevant cost data are all from 1994, 
the most recent year for which highly detailed small business data is 
currently available to the Agency.
    The comparison of costs with revenue and profits for all affected 
establishments is shown in Table III. It indicates that costs to 
affected establishments in all industries are no more than .006% of 
revenues and are less than .07% of profits. Costs of this magnitude 
cannot be considered large enough to impose regulatory burdens on 
employers or to raise issues of economic feasibility.

BILLING CODE 4510-26-P

[[Page 66033]]

[GRAPHIC] [TIFF OMITTED] TR01DE98.011



BILLING CODE 4510-26-C

[[Page 66034]]

    The Agency has also, as required by the Regulatory Flexibility Act 
(as amended) analyzed the impact of the standard specifically on small 
entities potentially affected by the revisions being made to the final 
rule. The Agency examined the impact of the revisions both on 
establishments with fewer than 20 employees and on firms with fewer 
than 500 employees. An industry profile for establishments with fewer 
than 20 employees is available in the RIA accompanying the original 
rule (Ex. 149, Docket S-019). For firms with fewer than 500 employees, 
industry profile data were not readily available; the Agency therefore 
analyzed impacts using a ``worst case'' impact scenario. Under this 
scenario, OSHA assumed that all of the costs of the revised final rule 
would be borne by firms in this size class, i.e., that no impacts would 
be borne by larger firms, a highly unlikely scenario. The impacts 
projected in Table III for firms in the 500-employee size class thus 
substantially overstate costs for these firms. Nonetheless, as shown in 
Tables IV and V, even under this worst case scenario, costs were very 
small relative to sales and profits. Costs did not exceed .006 percent 
of sales or more than .08 percent of profits for establishments with 
fewer than 20 or fewer than 500 employees in any affected industry.

Certification of No Significant Impact

    Based on the results of the analysis presented above, OSHA 
certifies, in accordance with the Regulatory Flexibility Act (as 
amended) that the revised rule for permit required confined spaces will 
not have a significant economic impact on a substantial number of small 
entities.

BILLING CODE 4510-26-P

[[Page 66035]]

[GRAPHIC] [TIFF OMITTED] TR01DE98.012



[[Page 66036]]

[GRAPHIC] [TIFF OMITTED] TR01DE98.013



BILLING CODE 4510-26-C

[[Page 66037]]

Unfunded Mandates Reform Act

    This amendment to the confined spaces standard has been reviewed by 
OSHA in accordance with the Unfunded Mandates Reform Act of 1995 (UMRA) 
(2 USC 1501 et seq.) and Executive Order 12875. OSHA has determined, as 
explained below, that this regulatory action will not impose a 
significant cost on employers in the public sector and will impose 
costs of substantially less than $100 million on establishments in the 
private sector. This rule is therefore not a significant regulatory 
action within the meaning of Section 202 of UMRA (2 U.S.C. 1532). OSHA 
standards do not apply to state and local governments except in states 
that have voluntarily elected to adopt an OSHA State Plan. 
Consequently, the confined spaces standard does not meet the definition 
of a ``federal intergovernmental mandate'' (Section 421(5) of UMRA (2 
USC 658(5)). Further, OSHA has found that any impact on such entities 
would be insignificant. In sum, this amendment to the confined spaces 
standard does not impose unfunded mandates on state, local, or tribal 
governments.
    However, this action may have some benefits to state and local 
governments. The record indicates that fire departments around the 
country have been bearing the burden of rescuing employees from 
confined spaces [Ex. 161-41], typically the result of inadequate or 
nonexistent entry procedures. To the extent that the opportunity to 
observe monitoring results in better adherence to preventive measures 
required by the existing standard, or that employee participation in 
program development and implementation improves the effectiveness of 
the underlying permit spaces plan, these entities will garner benefits 
from the rule. Additionally, to the extent that employers better 
understand their obligations for rescue preparedness under the existing 
standard and coordinate with fire departments more effectively, local 
fire departments will also benefit.

Environmental Assessment

    The final permit required 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 of Environmental Quality (CEQ) (40 CFR part 
1500), and DOL NEPA procedures (29 CFR part 11). As a result of this 
review, OSHA has concluded that the rule will not have a significant 
environmental impact.

References

    Dun and Bradstreet, Norms and Key Business Ratios, Desk-Top 
Edition, 1994-1995.
    U.S. Department of Labor, Bureau of Labor Statistics, Employment 
and Earnings, October 1994.
    U.S. Department of Labor, Bureau of Labor Statistics, ``Employer 
Costs for Employer Compensation'', News Release, June 22, 1995.
    U.S. Department of Labor, Bureau of Labor Statistics, ``Number 
of nonfatal occupational injuries and illnesses involving days away 
from work by event or exposure leading to injury or illness and 
industry division, 1993''. Available at BLS Web site at: ftp://
146.142.4.23/pub/special.requests/ocwc/osh/
    Weil, Working Paper 112, Economic Policy Institute, 1994.

IV. Federalism

    This standard has been reviewed in accordance with Executive Order 
12612 (52 FR 31685, October 30, 1987) regarding Federalism. This order 
requires that agencies, to the extent possible, refrain from limiting 
State policy options and consult with States prior to taking any 
action. Agencies may act only when 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 of 1970 
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 State Plan States must, among 
other things, be at least as effective in providing safe and healthful 
employment and places of employment as Federal standards. Where state 
standards are applicable to products distributed or used in interstate 
commerce, those standards may not unduly burden commerce and must be 
justified by compelling local conditions (see Section 18(c)(2) of the 
OSH Act).
    This final rule has been drafted so that employees in every State 
will be protected by general, performance-oriented standards. To the 
extent that there are State or regional peculiarities caused by the 
terrain, the climate or other factors, States would be able, under the 
OSH Act, to develop their own State standards to deal with any special 
problems. And, under the Act, if a State develops an approved State 
program, it could set additional requirements in its standards. 
Moreover, the performance-oriented nature of this standard, of and by 
itself, allows flexibility to provide as much safety as possible using 
varying methods consonant with conditions in each State.
    In short, there is a clear national problem related to occupational 
safety and health concerning entry into permit-required confined 
spaces. Those States that elect to participate in State plans under the 
statute would not be preempted by this standard and would be able to 
address special, local conditions within the framework provided by this 
performance-oriented standard, while ensuring that the state standards 
are at least as effective as that standard.

V. OMB Review Under the Paperwork Reduction Act

    The collection of information requirements in this final rule are 
essentially the same as those in the current rule. OSHA does not 
believe the clarified language of the final rule increases or decreases 
the burden associated with the preparation, maintainence or disclosure 
of information beyond the current rule. OMB has approved the collection 
of information requirements in Sec. 1910.146 under control number 1218-
0203. The approval expires on June 30, 1999. OSHA anticipates that it 
will seek public comment on the burden associated with the information 
collection requirements in the entire standard in the early part of 
1999, allowing the public the opportunity to comment on the need for, 
and the burden associated with, all collection of information 
requirements in the standard on permit required confined spaces.

VI. State Plans

    The 25 states and territories with their own OSHA-approved 
occupational safety and health plans must adopt a comparable amended 
standard within six months of the publication date of a final Federal 
OSHA standard. These 25 States and territories are: Alaska, Arizona, 
California, Connecticut (for state and local government employees 
only), Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, 
Nevada, New Mexico, New York (for state and local government employees 
only), North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, 
Utah, Vermont, Virginia, Virgin Islands, Washington and Wyoming. Until 
such

[[Page 66038]]

time as a comparable standard is promulgated, Federal OSHA will provide 
interim enforcement assistance, as appropriate, in these states and 
territories.

VII. List of Subjects in 29 CFR Part 1910

    Confined spaces, Monitoring, Occupational safety and health, 
Personal protective equipment, Rescue equipment, Retrieval lines, 
Safety, Testing.

VIII. Authority

    This document was prepared under the direction of Charles N. 
Jeffress, Assistant Secretary of Labor for Occupational Safety and 
Health, U.S. Department of Labor, 200 Constitution Avenue, N.W., 
Washington, D.C. 20210.
    Accordingly, pursuant to sections 4, 6(b) and 8 of the Occupational 
Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), Secretary of 
Labor's Order No. 6-96 (62 FR 111), and 29 CFR part 1911, 29 CFR 
1910.146 is amended as set forth below.

    Signed at Washington, D.C. this 25th day of November, 1998.
Charles N. Jeffress
Assistant Secretary of Labor

PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS

    1. The authority citation for subpart J of part 1910 is revised to 
read as follows:

    Authority: Secs. 4, 6, and 8, Occupational Safety and Health Act 
of 1970, 29 U.S.C. 653, 655, 657; Secretary of Labor's Order No. 12-
71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 
9033), or 6-96 (62 FR 111), as applicable.


Sec. 1950.141  [Amended]

    Sections 1910.141, 1910.142, 1910.145, 1910.146, and 1910.147 also 
issued under 29 CFR part 1911.
    2. Section 1910.146 is amended:
    a. By revising paragraphs (c)(5)(i)(E), (c)(5)(ii)(C), 
(c)(5)(ii)(F), (c)(5)(ii)(H), (c)(7)(iii), (e)(3), (k)(1), (k)(2), and 
(k)(3)(i);
    b. By redesignating paragraphs (d)(3)(ii), (d)(3)(iii), (d)(3)(iv), 
and (d)(3)(v) as paragraphs (d)(3)(iii), (d)(3)(iv), (d)(3)(v), and 
(d)(3)(vi), respectively; and
    c. By adding new paragraphs (d)(3)(ii); (d)(5)(iv), and (d)(5)(v), 
and (d)(5)(vi) (immediately following paragraph (d)(5)(iii) and before 
the Note); and (l), to read as follows:


Sec. 1910.146  Permit-required confined spaces.

* * * * *
    (c) * * *
    (5) * * *
    (i) * * *
    (E) The determinations and supporting data required by paragraphs 
(c)(5)(i)(A), (c)(5)(i)(B), and (c)(5)(i)(C) of this section are 
documented by the employer and are made available to each employee who 
enters the permit space under the terms of paragraph (c)(5) of this 
section or to that employee's authorized representative; and
* * * * *
    (ii) * * *
    (C) Before an employee enters the space, the internal atmosphere 
shall be tested, with a calibrated direct-reading instrument, for 
oxygen content, for flammable gases and vapors, and for potential toxic 
air contaminants, in that order. Any employee who enters the space, or 
that employee's authorized representative, shall be provided an 
opportunity to observe the pre-entry testing required by this 
paragraph.
* * * * *
    (F) The atmosphere within the space shall be periodically tested as 
necessary to ensure that the continuous forced air ventilation is 
preventing the accumulation of a hazardous atmosphere. Any employee who 
enters the space, or that employee's authorized representative, shall 
be provided with an opportunity to observe the periodic testing 
required by this paragraph.
* * * * *
    (H) The employer shall verify that the space is safe for entry and 
that the pre-entry measures required by paragraph (c)(5)(ii) of this 
section have been taken, through a written certification that contains 
the date, the location of the space, and the signature of the person 
providing the certification. The certification shall be made before 
entry and shall be made available to each employee entering the space 
or to that employee's authorized representative .
* * * * *
    (7) * * *
    (iii) The employer shall document the basis for determining that 
all hazards in a permit space have been eliminated, through a 
certification that contains the date, the location of the space, and 
the signature of the person making the determination. The certification 
shall be made available to each employee entering the space or to that 
employee's authorized representative.
* * * * *
    (d) * * *
    (3) * * *
    (ii) Providing each authorized entrant or that employee's 
authorized representative with the opportunity to observe any 
monitoring or testing of permit spaces;
* * * * *
    (5) * * *
    (iv) Provide each authorized entrant or that employee's authorized 
representative an opportunity to observe the pre-entry and any 
subsequent testing or monitoring of permit spaces;
    (v) Reevaluate the permit space in the presence of any authorized 
entrant or that employee's authorized representative who requests that 
the employer conduct such reevaluation because the entrant or 
representative has reason to believe that the evaluation of that space 
may not have been adequate;
    (vi) Immediately provide each authorized entrant or that employee's 
authorized representative with the results of any testing conducted in 
accord with paragraph (d) of this section.
* * * * *
    (e) * * *
    (3) The completed permit shall be made available at the time of 
entry to all authorized entrants or their authorized representatives, 
by posting it at the entry portal or by any other equally effective 
means, so that the entrants can confirm that pre-entry preparations 
have been completed.
* * * * *
    (k) Rescue and emergency services.
    (1) An employer who designates rescue and emergency services, 
pursuant to paragraph (d)(9) of this section, shall:
    (i) Evaluate a prospective rescuer's ability to respond to a rescue 
summons in a timely manner, considering the hazard(s) identified;

    Note to paragraph (k)(l)(i): What will be considered timely will 
vary according to the specific hazards involved in each entry. For 
example, Sec. 1910.134, Respiratory Protection, requires that 
employers provide a standby person or persons capable of immediate 
action to rescue employee(s) wearing respiratory protection while in 
work areas defined as IDLH atmospheres.

    (ii) Evaluate a prospective rescue service's ability, in terms of 
proficiency with rescue-related tasks and equipment, to function 
appropriately while rescuing entrants from the particular permit space 
or types of permit spaces identified;
    (iii) Select a rescue team or service from those evaluated that:
    (A) Has the capability to reach the victim(s) within a time frame 
that is appropriate for the permit space hazard(s) identified;
    (B) Is equipped for and proficient in performing the needed rescue 
services;

[[Page 66039]]

    (iv) Inform each rescue team or service of the hazards they may 
confront when called on to perform rescue at the site; and
    (v) Provide the rescue team or service selected with access to all 
permit spaces from which rescue may be necessary so that the rescue 
service can develop appropriate rescue plans and practice rescue 
operations.

    Note to paragraph (k)(1): Non-mandatory Appendix F contains 
examples of criteria which employers can use in evaluating 
prospective rescuers as required by paragraph (k)(l) of this 
section.

    (2) An employer whose employees have been designated to provide 
permit space rescue and emergency services shall take the following 
measures:
    (i) Provide affected employees with the personal protective 
equipment (PPE) needed to conduct permit space rescues safely and train 
affected employees so they are proficient in the use of that PPE, at no 
cost to those employees;
    (ii) Train affected employees to perform assigned rescue duties. 
The employer must ensure that such employees successfully complete the 
training required to establish proficiency as an authorized entrant, as 
provided by paragraphs (g) and (h) of this section;
    (iii) Train affected employees in basic first-aid and 
cardiopulmonary resuscitation (CPR). The employer shall ensure that at 
least one member of the rescue team or service holding a current 
certification in first aid and CPR is available; and
    (iv) Ensure that affected employees practice making permit space 
rescues at least once every 12 months, by means of simulated rescue 
operations in which they remove dummies, manikins, or actual persons 
from the actual permit spaces or from representative permit spaces. 
Representative permit spaces shall, with respect to opening size, 
configuration, and accessibility, simulate the types of permit spaces 
from which rescue is to be performed.
* * * * *
    (3) * * *
    (i) Each authorized entrant shall use a chest or full body harness, 
with a retrieval line attached at the center of the entrant's back near 
shoulder level, above the entrant's head, or at another point which the 
employer can establish presents a profile small enough for the 
successful removal of the entrant. Wristlets may be used in lieu of the 
chest or full body harness if the employer can demonstrate that the use 
of a chest or full body harness is infeasible or creates a greater 
hazard and that the use of wristlets is the safest and most effective 
alternative.
* * * * *
    (l) Employee participation. (1) Employers shall consult with 
affected employees and their authorized representatives on the 
development and implementation of all aspects of the permit space 
program required by paragraph (c) of this section.
    (2) Employers shall make available to affected employees and their 
authorized representatives all information required to be developed by 
this section.

Appendices to Sec. 1910.146 [Amended]

    3. In the Note preceding Appendix A to Sec. 1910.146, the phrase 
``Appendices A through E'' is revised to read ``Appendices A through 
F''.
    4. A new Appendix F to Sec. 1910.146 is added to read as follows:

Non-Mandatory Appendix F--Rescue Team or Rescue Service Evaluation 
Criteria

    (1) This appendix provides guidance to employers in choosing an 
appropriate rescue service. It contains criteria that may be used to 
evaluate the capabilities both of prospective and current rescue 
teams. Before a rescue team can be trained or chosen, however, a 
satisfactory permit program, including an analysis of all permit-
required confined spaces to identify all potential hazards in those 
spaces, must be completed. OSHA believes that compliance with all 
the provisions of Sec. 1910.146 will enable employers to conduct 
permit space operations without recourse to rescue services in 
nearly all cases. However, experience indicates that circumstances 
will arise where entrants will need to be rescued from permit 
spaces. It is therefore important for employers to select rescue 
services or teams, either on-site or off-site, that are equipped and 
capable of minimizing harm to both entrants and rescuers if the need 
arises.
    (2) For all rescue teams or services, the employer's evaluation 
should consist of two components: an initial evaluation, in which 
employers decide whether a potential rescue service or team is 
adequately trained and equipped to perform permit space rescues of 
the kind needed at the facility and whether such rescuers can 
respond in a timely manner, and a performance evaluation, in which 
employers measure the performance of the team or service during an 
actual or practice rescue. For example, based on the initial 
evaluation, an employer may determine that maintaining an on-site 
rescue team will be more expensive than obtaining the services of an 
off-site team, without being significantly more effective, and 
decide to hire a rescue service. During a performance evaluation, 
the employer could decide, after observing the rescue service 
perform a practice rescue, that the service's training or 
preparedness was not adequate to effect a timely or effective rescue 
at his or her facility and decide to select another rescue service, 
or to form an internal rescue team.

A. Initial Evaluation

    I. The employer should meet with the prospective rescue service 
to facilitate the evaluations required by Sec. 1910.146(k)(1)(i) and 
Sec. 1910.146(k)(1)(ii). At a minimum, if an off-site rescue service 
is being considered, the employer must contact the service to plan 
and coordinate the evaluations required by the standard. Merely 
posting the service's number or planning to rely on the 911 
emergency phone number to obtain these services at the time of a 
permit space emergency would not comply with paragraph (k)(1) of the 
standard.
    II. The capabilities required of a rescue service vary with the 
type of permit spaces from which rescue may be necessary and the 
hazards likely to be encountered in those spaces. Answering the 
questions below will assist employers in determining whether the 
rescue service is capable of performing rescues in the permit spaces 
present at the employer's workplace.
    1. What are the needs of the employer with regard to response 
time (time for the rescue service to receive notification, arrive at 
the scene, and set up and be ready for entry)? For example, if entry 
is to be made into an IDLH atmosphere, or into a space that can 
quickly develop an IDLH atmosphere (if ventilation fails or for 
other reasons), the rescue team or service would need to be standing 
by at the permit space. On the other hand, if the danger to entrants 
is restricted to mechanical hazards that would cause injuries (e.g., 
broken bones, abrasions) a response time of 10 or 15 minutes might 
be adequate.
    2. How quickly can the rescue team or service get from its 
location to the permit spaces from which rescue may be necessary? 
Relevant factors to consider would include: the location of the 
rescue team or service relative to the employer's workplace, the 
quality of roads and highways to be traveled, potential bottlenecks 
or traffic congestion that might be encountered in transit, the 
reliability of the rescuer's vehicles, and the training and skill of 
its drivers.
    3. What is the availability of the rescue service? Is it 
unavailable at certain times of the day or in certain situations? 
What is the likelihood that key personnel of the rescue service 
might be unavailable at times? If the rescue service becomes 
unavailable while an entry is underway, does it have the capability 
of notifying the employer so that the employer can instruct the 
attendant to abort the entry immediately?
    4. Does the rescue service meet all the requirements of 
paragraph (k)(2) of the standard? If not, has it developed a plan 
that will enable it to meet those requirements in the future? If so, 
how soon can the plan be implemented?
    5. For off-site services, is the service willing to perform 
rescues at the employer's workplace? (An employer may not rely on a 
rescuer who declines, for whatever reason, to provide rescue 
services.)
    6. Is an adequate method for communications between the 
attendant, employer and prospective rescuer available so that a 
rescue request can be transmitted to the rescuer without delay? How 
soon after notification can a prospective rescuer dispatch a rescue 
team to the entry site?

[[Page 66040]]

    7. For rescues into spaces that may pose significant atmospheric 
hazards and from which rescue entry, patient packaging and retrieval 
cannot be safely accomplished in a relatively short time (15-20 
minutes), employers should consider using airline respirators (with 
escape bottles) for the rescuers and to supply rescue air to the 
patient. If the employer decides to use SCBA, does the prospective 
rescue service have an ample supply of replacement cylinders and 
procedures for rescuers to enter and exit (or be retrieved) well 
within the SCBA's air supply limits?
    8. If the space has a vertical entry over 5 feet in depth, can 
the prospective rescue service properly perform entry rescues? Does 
the service have the technical knowledge and equipment to perform 
rope work or elevated rescue, if needed?
    9. Does the rescue service have the necessary skills in medical 
evaluation, patient packaging and emergency response?
    10. Does the rescue service have the necessary equipment to 
perform rescues, or must the equipment be provided by the employer 
or another source?

B. Performance Evaluation

    Rescue services are required by paragraph (k)(2)(iv) of the 
standard to practice rescues at least once every 12 months, provided 
that the team or service has not successfully performed a permit 
space rescue within that time. As part of each practice session, the 
service should perform a critique of the practice rescue, or have 
another qualified party perform the critique, so that deficiencies 
in procedures, equipment, training, or number of personnel can be 
identified and corrected. The results of the critique, and the 
corrections made to respond to the deficiencies identified, should 
be given to the employer to enable it to determine whether the 
rescue service can quickly be upgraded to meet the employer's rescue 
needs or whether another service must be selected. The following 
questions will assist employers and rescue teams and services 
evaluate their performance.
    1. Have all members of the service been trained as permit space 
entrants, at a minimum, including training in the potential hazards 
of all permit spaces, or of representative permit spaces, from which 
rescue may be needed? Can team members recognize the signs, 
symptoms, and consequences of exposure to any hazardous atmospheres 
that may be present in those permit spaces?
    2. Is every team member provided with, and properly trained in, 
the use and need for PPE, such as SCBA or fall arrest equipment, 
which may be required to perform permit space rescues in the 
facility? Is every team member properly trained to perform his or 
her functions and make rescues, and to use any rescue equipment, 
such as ropes and backboards, that may be needed in a rescue 
attempt?
    3. Are team members trained in the first aid and medical skills 
needed to treat victims overcome or injured by the types of hazards 
that may be encountered in the permit spaces at the facility?
    4. Do all team members perform their functions safely and 
efficiently? Do rescue service personnel focus on their own safety 
before considering the safety of the victim?
    5. If necessary, can the rescue service properly test the 
atmosphere to determine if it is IDLH?
    6. Can the rescue personnel identify information pertinent to 
the rescue from entry permits, hot work permits, and MSDSs?
    7. Has the rescue service been informed of any hazards to 
personnel that may arise from outside the space, such as those that 
may be caused by future work near the space?
    8. If necessary, can the rescue service properly package and 
retrieve victims from a permit space that has a limited size opening 
(less than 24 inches (60.9 cm) in diameter), limited internal space, 
or internal obstacles or hazards?
    9. If necessary, can the rescue service safely perform an 
elevated (high angle) rescue?
    10. Does the rescue service have a plan for each of the kinds of 
permit space rescue operations at the facility? Is the plan adequate 
for all types of rescue operations that may be needed at the 
facility? Teams may practice in representative spaces, or in spaces 
that are ``worst-case'' or most restrictive with respect to internal 
configuration, elevation, and portal size. The following 
characteristics of a practice space should be considered when 
deciding whether a space is truly representative of an actual permit 
space:
    (1) Internal configuration.
    (a) Open--there are no obstacles, barriers, or obstructions 
within the space. One example is a water tank.
    (b) Obstructed--the permit space contains some type of 
obstruction that a rescuer would need to maneuver around. An example 
would be a baffle or mixing blade. Large equipment, such as a ladder 
or scaffold, brought into a space for work purposes would be 
considered an obstruction if the positioning or size of the 
equipment would make rescue more difficult.
    (2) Elevation.
    (a) Elevated--a permit space where the entrance portal or 
opening is above grade by 4 feet or more. This type of space usually 
requires knowledge of high angle rescue procedures because of the 
difficulty in packaging and transporting a patient to the ground 
from the portal.
    (b) Non-elevated--a permit space with the entrance portal 
located less than 4 feet above grade. This type of space will allow 
the rescue team to transport an injured employee normally.
    (3) Portal size.
    (a) Restricted--A portal of 24 inches or less in the least 
dimension. Portals of this size are too small to allow a rescuer to 
simply enter the space while using SCBA. The portal size is also too 
small to allow normal spinal immobilization of an injured employee.
    (b) Unrestricted--A portal of greater than 24 inches in the 
least dimension. These portals allow relatively free movement into 
and out of the permit space.
    (4) Space access.
    (a) Horizontal--The portal is located on the side of the permit 
space. Use of retrieval lines could be difficult.
    (b) Vertical--The portal is located on the top of the permit 
space, so that rescuers must climb down, or the bottom of the permit 
space, so that rescuers must climb up to enter the space. Vertical 
portals may require knowledge of rope techniques, or special patient 
packaging to safely retrieve a downed entrant.

[FR Doc. 98-31946 Filed 11-30-98; 8:45 am]
BILLING CODE 4510-26-P