[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]
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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.
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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.
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[[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.
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[[Page 66033]]
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[[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.
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[[Page 66035]]
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[[Page 66036]]
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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