2024.12.02_Addendum 2 Campus Tunnel Repair 2 - RU.pdf

Vol. 80 Monday, No. 85 May 4, 2015

Part II

Department of Labor Occupational Safety and Health Administration 29 CFR Part 1926 Confined Spaces in Construction; Final Rule

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25366 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket ID–OSHA–2007–0026]

RIN 1218–AB47

Confined Spaces in Construction

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

ACTION: Final rule.

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

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

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

FOR FURTHER INFORMATION CONTACT:

General information and press inquiries: Mr. Frank Meilinger, Office of Communications, Room N3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693–1999;

email meilinger.francis2@dol.gov.

Technical information: Ms. Jessica L.

Douma, Directorate of Construction, Room N–3468, OSHA, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693–2020 or fax (202) 693–1689; email douma.jessica@dol.gov.

For additional copies of this Federal Register document, contact: OSHA, Office of Publications, U.S. Department of Labor, Room N3101, 200 Constitution Avenue NW, Washington, DC, 20210;

telephone (202) 693–1888. Electronic copies of this Federal Register document are available at http:// www.regulations.gov. Electronic copies of this Federal Register document, as well as news releases and other relevant documents, are available at OSHA’s Web page at http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary A. Introduction B. Need for Regulation C. Affected Establishments D. Benefits, Net Benefits, and Cost

Effectiveness E. Compliance Costs F. Economic Impacts G. Final Regulatory Flexibility Analysis

II. Background A. Record Citations B. History C. Need for a Rule Regulating Confined

Spaces in Construction III. Summary and Explanation of the Final

Standard 1926.1201—Scope 1926.1202—Definitions 1926.1203—General Requirements 1926.1204—Permit Required Confined

Space Program 1926.1205—Permitting process 1926.1206—Entry permit 1926.1207—Training 1926.1208—Duties of Authorized Entrants 1926.1209—Duties of Attendants 1926.1210—Duties of Entry Supervisors 1926.1211—Rescue 1926.1212—Employee Participation 1926.1213—Provision of Documents to the

Secretary IV. Agency Determinations

A. Legal Authority B. Final Economic Analysis and Regulatory

Flexibility Analysis

1. Introduction

2. Need for Regulation

3. Profile of Affected Industries

4. Benefits and Net Benefits

5. Technological Feasibility

6. Costs of Compliance

7. Economic Feasibility and Regulatory

Flexibility Determination

8. Final Regulatory Flexibility Analysis

9. Sensitivity Analysis

10. References C. Office of Management and Budget

Review Under the Paperwork Reduction Act of 1995

D. Federalism E. State-Plan States F. Unfunded Mandates Reform Act G. Consultation and Coordination With

Indian Tribal Governments H. Applicability of Existing Consensus

Standards V. Authority and Signature VI. Amendments to Standards

I. Executive Summary

A. Introduction OSHA last issued rules addressing work in confined spaces in 1993;

however, those provisions applied only to general industry work. A single training provision, issued in 1979, applies to confined space work in construction. Following the promulgation of the general industry rule, OSHA agreed to propose a standard for confined spaces in construction as part of a settlement of a legal challenge filed by the United Steelworkers of America. After consulting with the Advisory Committee for Construction Safety and Health (ACCSH) on a draft, and holding several stakeholder meetings in locations across the country, OSHA developed a draft and conducted a Small Business Advocacy Review Panel (SBAR Panel) in 2003. The Agency published its proposed rule for confined spaces in construction on November 28, 2007 (72 FR 67351). The proposal incorporated feedback from ACCSH, the stakeholder meetings, and the SBAR Panel, and addressed issues unique to the construction industry, such as higher employee turnover rates, worksites that change frequently, and the multi-employer business model that is common on construction worksites.

During the SBAR Panel, some small entity representatives expressed a preference for the general industry rule and requested that OSHA consider adopting that rule for the construction industry. When the proposed rule was published, OSHA requested comment on how the Agency could adapt a standard similar to the general industry rule for the construction sector.

Commenters indicated that they had been following the general industry rule for quite some time and suggested adopting that standard with some modifications for the construction industry. OSHA considered the unique challenges faced by the construction industry as well as the requests by commenters for more consistency between the general industry and construction standards. The final rule reflects the organization, language, and most of the substantive requirements of the general industry rule. Some of the aspects of the construction industry that are not present in general industry work are addressed by modifications such as information exchange requirements to ensure that multiple employers have shared vital safety information. OSHA also adjusted the construction rule to account for advances in technology and equipment that allow for continuous monitoring of hazards. Other differences between the regulatory text of the general industry rule and this standard reflect improvements in clarity of language and enforcement considerations that have been addressed

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25367 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations

1 References are available at the end of this section of the preamble.

in interpretations of the general industry rule.

B. Need for Regulation

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

C. Affected Establishments

The final rule affects establishments in several sectors of the construction industry, including work involving buildings, highways, bridges, tunnels, utility lines, and other types of projects.

Also potentially affected are general contractors, as well as specialty-trade construction contractors and employers engaged in some types of residential construction work.

D. Benefits, Net Benefits, and Cost Effectiveness

OSHA expects the final rule to improve the safety of workers who encounter confined spaces in construction. The programmatic approach of the final rule includes provisions for: Identifying confined spaces and the hazards they may contain; allowing employers to organize the work to avoid entry into a potentially hazardous space; removing hazards prior to entry to avoid employee exposure; restricting entry through a permit system where employers cannot remove the hazard; providing appropriate testing and equipment when entry is required; and arranging for rescue services to remove entrants from a confined space when necessary.

An estimated 6 fatalities and 812 injuries occur annually among employees involved in construction work in confined spaces addressed by the provisions of this rulemaking. Based on a review and analysis of the incident reports associated with the reported injuries and fatalities, OSHA expects full compliance with the final rule to prevent 96 percent of the relevant injuries and fatalities. Thus, OSHA estimates that the final rule will prevent approximately 5.2 fatalities and 780 additional injuries annually. Applying an average monetary value of $62,000 per prevented injury and a value of $8.7 million per prevented fatality (value of statistical life) results in estimated monetized benefits of $93.6 million annually.

OSHA estimated the net monetized benefits of the final rule to be about $33 million annually when costs are annualized at 7 percent ($93.6 million in benefits minus $60.3 million in costs). Table IV–1 summarizes the costs, benefits, net benefits, and cost effectiveness of the final rule.

TABLE IV–1—NET BENEFITS

[Millions of 2009 dollars]

7% discount rate

3% discount rate

Annualized Costs

Evaluation, Classification, Information Exchange and Notification ......................................................................... $12.4 $12.2 Written Program, Issue Permits, Verify Safety, Review Procedures ...................................................................... 4.2 4.2 Provide Ventilation and Isolate Hazards ................................................................................................................. 2.8 2.7 Atmospheric Monitoring ........................................................................................................................................... 11.4 11.3 Attendant .................................................................................................................................................................. 3.6 3.6 Rescue Capability .................................................................................................................................................... 8.2 7.6 Training .................................................................................................................................................................... 11.3 11.3 Other Requirements ................................................................................................................................................ 6.4 6.3

Total Annual Costs ........................................................................................................................................... 60.3 59.2

Annual Benefits

Number of Injuries Prevented Number of Fatalities Prevented ........................................................................................................................................................... 5.2 Monetized Benefits .............................................................................................................................................................................. 93.6

Net Annual Monetized Benefits (Benefits Less Costs)

33.3 34.4

Totals may not equal the sum of the components due to rounding.

Source: Office of Regulatory Analysis, OSHA. Details provided in text.

E. Compliance Costs

The estimated costs of compliance with this rule represent the additional costs necessary for employers to achieve full compliance. They do not include costs for employers that are already in compliance with the new requirements imposed by the final rule; nor do they include costs employers must incur to achieve full compliance with existing applicable requirements.

OSHA based the Preliminary Economic Analysis and Initial Regulatory Flexibility Analysis for the proposed rule, in part, on a report prepared by CONSAD Corp. [2] 1 under contract to OSHA. For the final economic analysis (FEA), OSHA updated data on establishments, employment, wages, and revenues, and updated the analyses in the final rule with these new cost inputs. OSHA estimated the total annualized cost of compliance with the present rulemaking to be between about $59.2 million (when costs are annualized at 3 percent)

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25368 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations and $60.3 million (when costs are annualized at 7 percent). The final rule’s requirements for employers to evaluate, classify, and exchange information account for the largest component of the total compliance costs, at approximately $12.2 million to $12.4 million (when costs are annualized at 3 and 7 percent, respectively). Other compliance costs associated with the final rule include costs related to atmospheric monitoring—($11.3 million to $11.4 million), training ($11.3 million), rescue capability ($7.6 million to $8.2 million), written programs, permits, and review procedures ($4.2 million), attendants ($3.6 million),—and ventilation and hazard isolation ($2.7 million to $2.8 million).

F. Economic Impacts To assess the economic impacts associated with compliance with the final rule, OSHA developed quantitative estimates of the potential economic impact of the requirements in this rule on entities in each affected industry.

OSHA compared the estimated costs of compliance with industry revenues and profits to provide an assessment of potential economic impacts.

The costs of compliance for the final rule are not large in relation to the corresponding annual financial flows associated with the regulated activities.

The estimated costs of compliance (when annualized at 7 percent) represent about 0.08 percent (less than 1 percent) of revenues and 1.6 percent of profits, on average, across all entities.

One industry, NACIS 23621 Industrial Building Construction, showed the potential for compliance costs to exceed 10 percent of annual profits (10.5 percent), but the Agency concludes that the final standard is still feasible for this industry because it affects less than 2 percent of all firms in that industry sector each year, and OSHA believes that firms engaged in confined spaces work are larger and more profitable than average. Moreover, OSHA does not believe that industries will absorb all or most of the final standard costs in lost profits, as the price elasticity of demand in construction is sufficiently inelastic for minor price increases to offset costs—here, a price increase of less than

0.5 percent (or one-half of 1 percent).

OSHA concludes that compliance with the requirements of the final rule is economically feasible in every affected industry sector.

In addition, based on an analysis of the costs and economic impacts associated with this rulemaking, OSHA concludes that the effects of the final rule on international trade, employment, wages, and economic growth for the United States are negligible.

G. Final Regulatory Flexibility Analysis

The Regulatory Flexibility Act, as amended in 1996 by the Small Business Regulatory Enforcement Fairness Act, requires the preparation of a Final Regulatory Flexibility Analysis for certain rules promulgated by agencies (5 U.S.C. 601–612). Under the provisions of the law, each such analysis must contain: (1) A statement of the need for, and objectives of, the rule; (2) a statement of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a statement of the assessment of the agency of such issues, and a statement of any changes made in the final rule as a result of such comments; (3) a response to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration, and a detailed statement of any change made to the proposed rule in the final rule as a result of those comments; (4) a description and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available; (5) a description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities that will be subject to the requirement, and the type of professional skills necessary for preparation of the report or record; and (6) a description of the steps the agency took to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule, and why the agency rejected each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities.

OSHA analyzed the potential impact of the final rule on small and very small entities, as described further under the heading ‘‘Final Regulatory Flexibility Analysis,’’ later in this preamble (see Section IV). OSHA concludes that the compliance costs are equivalent to approximately 1.64 percent of profits for affected small entities generally, and less than approximately 0.10 percent (less than 1 percent) of annual revenues for very small industries, though the inelasticity of demand in construction would allow the costs to be offset by price increases in most industries.

II. Background

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

B. History On March 25, 1980, OSHA published an Advanced Notice of Proposed Rulemaking (ANPR) on confined spaces for the construction industry (45 FR 19266). The ANPR posed 31 questions concerning confined-space hazards in the construction industry, and the Agency received 75 comments in response to these questions. However, OSHA took no further action on this regulatory initiative at the time.

The Agency subsequently published a Notice of Proposed Rulemaking (NPRM) for a general industry confined spaces rule on June 5, 1989 (54 FR 24080).

OSHA issued the general industry confined spaces rule (29 CFR 1910.146) on January 14, 1993 (58 FR 4462).

The general industry standard requires employers to classify hazardous confined spaces as ‘‘permit-required confined spaces’’ and to implement specific procedures to ensure the safety of employees who enter them. It contains detailed procedures for developing a written confined-space program, monitoring atmospheric hazards, isolating physical hazards through lock out tag out procedures, training employees, preventing unauthorized employees from entering these spaces, providing rescue (both non entry and entry rescue), and maintaining records. The general industry standard specifies a limited

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25369 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations exception from some of the permit-required confined-space requirements when the only hazard in a confined space is an atmospheric hazard and ventilation equipment will control the atmospheric hazard at safe levels. It also provides protection to employees from non-atmospheric hazards (for example, physical hazards) in confined spaces.

However, the general industry standard does not apply to construction employers, and, as such, does not specify the appropriate level of employee protection based on the hazards created by construction activities performed in confined spaces.

In 1993, as part of the litigation activity associated with the newly promulgated general industry standard, OSHA agreed in a settlement with the United Steel Workers of America to issue a proposed rule to extend confined-space protection to construction employees. On February 18, 1994, OSHA submitted a draft proposed standard for confined spaces in construction to the Advisory Committee for Construction Safety and Health (ACCSH) for comment. ACCSH established a work group on March 22, 1994, to address the OSHA draft proposed standard and report its findings to the full committee. ACCSH adopted the work group report on May 17, 1994 and recommended that OSHA incorporate it into a rulemaking docket.

In this report, ACCSH noted that the general industry standard did not meet the needs of the construction industry.

ACCSH found that employers often do not identify or classify confined spaces encountered or generated at construction worksites prior to the beginning of a construction project, and noted the difficulties faced by employers generally on construction worksites, where conditions often change rapidly and many different subcontractors may perform work simultaneously.

Consequently, ACCSH established a work group to draft a proposed standard that would meet the unique needs of the construction industry. The draft proposed standard emphasized identifying different types of confined spaces encountered in construction (for example, spaces in which the employer isolates all hazards or controls atmospheric hazards at safe levels, and spaces that are permit-required spaces), as well as inter-contractor information exchange and the detailed protections necessary to eliminate or control specific hazards.

As the result of the ACCSH work group review, ACCSH submitted a draft proposed standard for confined spaces in construction to OSHA in 1996.

ACCSH recommended that OSHA use the draft as a proposed confined spaces standard. OSHA determined that the ACCSH draft proposed standard needed revision to make it easier to understand, especially for small employers that do not employ a separate safety staff. The Agency also determined that the draft proposed standard did not address adequately certain hazards, such as hazards encountered in sewer-construction work. Consequently, OSHA determined that it was necessary to develop a new draft proposed standard.

In 1998, OSHA completed a new draft proposed standard, but discovered that there were several issues that the Agency needed to resolve before it could finalize the draft proposed standard. To get feedback from the construction community, OSHA held three stakeholders meetings in October of 2000 across the country. The topics discussed at the stakeholder meetings were: (1) Typical confined spaces encountered in construction; (2) whether the proposed standard should require an early-warning system for spaces in which the employer could not isolate an engulfment hazard (such as in some sewer situations); (3) the need for, and cost of, continuous monitoring for atmospheric hazards; (4) how a confined spaces standard for construction could accommodate the needs of small businesses; and (5) whether the proposed standard should permit an attendant to perform his or her duties for more than one confined space at a time.

In late 2003, OSHA completed drafting the proposed standard and convened a panel under the Small Business Regulatory Enforcement Fairness Act (SBREFA) to solicit comments on the proposal from small business entities. The SBREFA panel conducted two conference-call discussions, which were open to the public, in which small entity representatives expressed their concerns about the draft proposed standard; these representatives also submitted written comments to the record that covered the issues. The SBREFA panel then submitted its recommendations to the Agency in November 2003.

The Agency published a proposed rule for confined spaces in construction on November 28, 2007 (72 FR 67351).

The proposed confined spaces standard for construction reflected input from stakeholder meetings, ACCSH, and the SBREFA review process. For example, OSHA removed a provision that addressed working in hazardous enclosed spaces (i.e., spaces designed for human occupancy but subject to a hazardous atmosphere), which small business entities participating in the SBREFA review process considered burdensome and unnecessary; OSHA removed this provision because it believes that existing construction standards (for example, 29 CFR 1926.55) adequately address these hazards. The proposed standard used a confined-space classification approach consistent with the ACCSH recommendations.

OSHA organized the proposed standard chronologically to guide the employer from its initial encounter with a potential confined space through the steps necessary to ensure adequate protection for employees. In addition, it addressed the need for coordination and information exchange at construction sites, which typically have multiple employers.

The Agency recognized that a number of requirements in the proposed standard for confined spaces in construction duplicated, or were similar to, the provisions of the general industry standard for permit-required confined spaces. Nevertheless, OSHA had concerns about whether the general industry standard adequately addressed the unique characteristics of confined spaces in construction. The feedback that OSHA received from ACCSH, stakeholders, and the SBREFA process indicated that, compared to general industry, the construction industry experiences higher employee turnover rates because construction employees often work at multiple worksites performing short-term tasks. Unlike most general industry worksites, construction worksites are continually evolving, with the number and characteristics of confined spaces changing as work progresses. Also, multiple contractors and controlling contractors are more common on construction worksites than general industry worksites. Therefore, a construction standard for confined spaces, even more so than the general industry standard for confined spaces, must emphasize training, continuous worksite evaluation, and communication requirements

Decision to abandon the proposed new classification system and adapt an alternative that is more similar to the general industry standard.

During the SBREFA review process, some small entity representatives urged OSHA to consider adopting the general industry standard for construction, and to solicit comment on how the Agency could adapt an alternative standard similar to the general industry standard to the construction sector. When the Agency published the proposed construction standard, it requested

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25370 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations public comments on how to adapt an alternative standard similar to the general industry standard for the construction industry (72 FR 67352, 67401 (Nov. 28, 2007)). During the comment period and the public hearings OSHA held on July 22–23, 2008, OSHA received many comments and much testimony regarding the issue of using an adapted version of the general industry standard as the basis for the final rule rather than the new classification systems proposed in the NPRM. A clear majority of comments were in favor of finalizing a confined spaces in construction standard that more closely resembles the general industry standard for confined spaces.

(See, e.g., ID–032; –047; –075; –088;

–092; –095; –105; –106; –115; –117;

–118; –119; –120; –121; –125; 150; –152;

–153; 185; –189; –210, Tr. pp. 54–60, 74–76, 174–175, 282–284; –211, Tr. pp.

73, 172, and 238–239.) Several commenters proposed adopting the general industry standard with some adaptations for the construction context, though not all of these commenters specified, or agreed on, what specific adaptations were appropriate (see, e.g., ID–092; –117; –125). The Agency received a number of comments suggesting that many construction employers were currently following the general industry confined spaces standard (see, e.g., ID–075; –085; –088;

–092; –095; –112; –117; –118; –120;

–121; –125; –147).

For the reasons discussed in the preamble to the proposed rule, and in light of the comments and testimony the Agency received, OSHA remains convinced that the general industry standard does not adequately address confined-space hazards as these hazards arise in the construction industry.

Moreover, the 19 years of experience that employers have working with the general industry rule, and that OSHA has enforcing the general industry rule, highlight several areas in which additional clarification in the language of the general industry standard could improve the effectiveness of a new construction standard. Therefore, OSHA is not simply incorporating the general standard by reference into the construction standards.

OSHA believes that the particular duties and obligations in the general industry standard and the proposed construction standard are similar, and that the public’s confusion over the re-organized structure in the proposed rule is the result of the degree of detail in the proposed rule, as well as its organization. Most notably, compared to the general industry rule, the proposed rule added specificity to the general industry standard’s broad, performance-based requirements, and defined a larger number of confined-space classifications.

Nevertheless, in recognition of the commenter requests for more consistency between the two standards, OSHA is using the organization, language, and most of the substantive requirements in the general industry confined spaces standard as the basis for the final confined spaces in construction rule. However, differences in employee and worksite characteristics between the construction industry and general industry, as well as the comments and testimony of the regulated community indicating the need for consistency and continuity in OSHA requirements, prompted OSHA to develop a final rule for confined spaces in the construction industry that contains important requirements from the proposed rule and some additional changes. Many of these changes, such as the information exchange requirements, are designed to address the heightened need, on constantly evolving construction worksites for communication, worksite evaluation, and training for confined spaces in construction. In addition, several regulatory provisions in the general industry rule differ from the regulatory provisions of this final rule because the provisions of this final rule: (1) Address construction-specific issues; (2) account for advancements in technology; (3) address concerns raised by the regulated community through comment and at the hearing; or (4) reflect improvements in language for modern regulatory drafting (‘‘must’’ in place of ‘‘shall’’), clarity and enforcement considerations. In most cases, the preamble that follows this introductory section explains the differences between the provisions of the final rule and the general industry rule.

The Agency believes that it provided adequate notice of the substantive terms of the final rule, as well as an extensive description of the subjects and issues involved. Accordingly, the Agency fairly apprised interested persons of the content of the rulemaking, and the comments and hearing testimony provide ample evidence that interested parties to the rulemaking understood the issues and potential outcomes of the rulemaking. See, e.g., Nat’l Mining Ass’n

v. Mine Safety & Health Admin., 512 F.3d 696, 699 (D.C. Cir. 2008); Miami- Dade County v. U.S. E.P.A., 529 F.3d 1049, 1059 (11th Cir. 2008); United Steelworkers of America, AFL–CIO–CLC

v. Marshall, 647 F.2d 1189, 1221 (D.C.

Cir. 1980) (‘‘a final rule may properly differ from a proposed rule and indeed must so differ when the record evidence warrants the change. . . . Where the change between proposed and final rule is important, the question for the court is whether the final rule is a ‘logical outgrowth’ of the rulemaking proceeding’’). The resulting final standard is a logical outgrowth of the proposal, and the number of comments urging an adapted version of the general industry standard provides a clear indication that the affected members of the public are not only familiar with the general industry standard, but also viewed the inclusion of part or all of the general industry standard’s structure and language as a potential outcome of this rulemaking. The confined-space issues the Agency addresses in the final rule are the same as in the proposed rule, and the Agency addressed the criticisms and suggestions made by interested parties in response to the proposed rule. In short, the combination of OSHA’s request for comment on the approach that it ultimately adopted in the final rule, the explanation of the hazards it sought to address in proposal, and the comments and testimony received in response to the proposal provided the regulated community with adequate notice regarding the outcome of the rulemaking. Therefore, the Agency concludes that there is no basis for further delaying promulgation of the standard to obtain comment on the approach adopted in this final rule.

Many of the comments OSHA received on the proposal related to specific requirements included in the detailed procedures of the proposed standard. As a result of finalizing a confined spaces in construction standard that closely resembles the general industry standard, much of this detailed language does not appear in this final rule. In some cases, OSHA addressed the substance of the comment in the discussion of the most relevant preamble section in this final rule. In other instances, the issue raised in the comment became moot as a result of OSHA’s decision not to include the proposed text in the final rule.

Therefore, OSHA is not directly responding to each of these particular comments in the summary and explanation of the final rule.

OSHA considered, but ultimately rejected, several other regulatory alternatives based on the comments submitted to the Agency. For example, some commenters suggested that employers should have the option of following either 29 CFR 1910.146 or this final rule (ID–089, p. 2; –147, p. 4). This suggestion relates to some commenters’ concern that having separate rules for confined spaces in construction and

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25371 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations general industry makes it confusing for employers that perform both construction and maintenance inside a confined space to comply with the different requirements of each rule based on the type of the work they are performing (see, e.g., ID–119, p. 3).

OSHA developed this standard because of the unique hazards of confined-space work in construction and, although this final rule is similar to § 1910.146, there are differences when certain procedures are necessary to protect employees from the unique hazards of construction confined-space work. Therefore, an employer does not have the option of bypassing the procedures that are unique to this final rule by complying instead with § 1910.146. Such a policy would severely undermine OSHA’s effort to protect employees from the unique hazards present during confined-space operations in construction.

OSHA recognizes that the differences between § 1910.146 and this final rule can make it more complicated for employers to comply with two different sets of procedures if they perform maintenance and construction work at the same time in the same confined space. In order to ease the compliance burden on these employers, OSHA will consider compliance with this final rule as compliance with § 1910.146. This enforcement policy was suggested by at least one commenter (ID–211, Tr. p.

303).

Another commenter suggested that OSHA issue a directive on confined-space work in construction instead of a final rule (ID–100, p. 5). OSHA generally issues a directive on a particular work practice after the Agency issues a rule, not in lieu of a rule; accordingly, the directive provides guidance as to how the Agency will enforce a standard. The rulemaking process, on the other hand, provides the public with notice and an opportunity to comment on the Agency’s proposed action, and the Agency may use the information gathered during this process to impose substantive duties on employers, such as employers engaged in confined-space construction work.

The information gathered by the Agency during the rulemaking process for this final rule supports issuing a final rule for confined-space work in construction.

Therefore, OSHA rejects the alternative approach suggested by the commenter.

A different set of commenters focused on individual states’ confined spaces standards. One commenter asserted that several State-Plan States have effective confined space standards and that this rule will unnecessarily force those states to change these standards (ID–135, p. 3).

A similar comment discussed Virginia’s confined spaces rule, but did not suggest OSHA adopt that rule (ID–047,

p. 1). Another commenter suggested OSHA adopt the majority of California’s confined spaces rule (ID–077, p. 1).

OSHA notes that the Occupational Safety and Health Act of 1970 (OSH Act) allows for different regulatory schemes to address the hazards of confined-space work provided those standards are at least as effective as the Federal OSHA standard. The record indicates that, by issuing a final rule that is similar to § 1910.146, OSHA is not drastically changing industry practice for addressing confined-space hazards. (See, e.g., ID–047; –075; –085;

–088; –092; –095; –112; –117; –118;

–120; –121; –125; –147; –189.)

Therefore, OSHA believes that State- Plan States that have standards applicable to construction work in confined spaces that are similar to § 1910.146 will not have to make major changes to their existing rules to ensure that these rules are at least as effective as this final rule. When a State-Plan State’s confined spaces rule is not as effective as this final rule, OSHA believes that the record warrants a change in the State-Plan State’s rule so that it will provide construction employees with the same level of protection afforded to them by this final rule. For a full discussion of State-Plan States, see Section IV.E (‘‘State-Plan States’’) later in this preamble.

C. Need for a Rule Regulating Confined Spaces in Construction

Before promulgating this final rule, OSHA had one existing provision in its construction standards that included a general training requirement for employers working in confined spaces.

A broad ‘‘safety and training’’ requirement in 29 CFR 1926.21(b)(6), adopted by the Agency in 1979, provided limited guidance: Under this provision, employers were only required to instruct employees required to enter into confined or enclosed spaces as to the nature of the hazards involved, the necessary precautions to be taken, and in the use of protective and emergency equipment required.

Fatality and injury data, OSHA enforcement experience, and advice from ACCSH indicate that § 1926.21(b)(6) did not adequately protect construction employees in confined spaces from atmospheric, physical, and other hazards. Even when § 1926.21(b)(6) applied, it required employers only to train employees who work in confined spaces—it did not address how to protect trained employees while they are working in such spaces, nor did it address the actions of employers outside the spaces engaged in activities that might harm employees inside the spaces. For situations in which none of the construction standards apply, the employer was still required to comply with the general-duty requirement of the OSH Act to ‘‘furnish to each of [its] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees’’ (29 U.S.C. 654), but this ‘‘general duty’’ is often more difficult for OSHA to enforce and does not provide the same level of guidance and safety information provided in a standard.

As noted in the economic analysis section of the preamble to this final rule, OSHA determined that employees in the construction industry who perform work in confined spaces face a significant risk of death or serious injury, and that this final rule would substantially reduce that risk. At present, OSHA estimates that 20,479 establishments annually have employees entering at least one confined space as defined by this final rule. OSHA estimates that, each year, 6 fatalities and 900 injuries occur among employees working in confined spaces covered by this final rule. OSHA determined that the final rule, when implemented properly by employers, will reduce the average number of fatalities and injuries in confined spaces covered by this standard by 96 percent (5.2 fatalities prevented annually, and 780 injuries prevented annually). (For further explanation of the significant-risk calculations, see section V.B.

(‘‘Final Economic Analysis and Regulatory Flexibility Analysis’’) of this document.)

III. Summary and Explanation of the Final Standard

Explanation of Changes to Subpart V— Power Transmission and Distribution

Subpart V of part 1926 governs construction work involving power transmission, generation, and distribution. OSHA recently updated subpart V (79 FR 20316 (April 11, 2014).

When it did so, OSHA required compliance with the general industry confined-spaces standard at § 1910.146 in several provisions of subpart V.

OSHA did so because at that time there was no comprehensive confined-spaces standard for construction, but the Agency explained in the subpart V preamble that ‘‘the references to the general industry standard in final § 1926.953 are included as a placeholder

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25372 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Rules and Regulations pending the promulgation of the confined spaces in construction standard. OSHA intends to change these references to refer to the construction standard when it promulgates that standard.’’ (79 FR 20376) OSHA is, therefore, amending subpart V in this rulemaking to replace references to the general industry confined spaces standard with references to this final construction rule, because OSHA specifically tailored this final rule to construction work, making the confined spaces in construction rule more appropriate than the general industry standard for construction work addressed by subpart V.

Amendments to Definition of ‘‘Enclosed Space’’ in § 1926.968

An ‘‘enclosed space’’ is a term of art under subpart V and the corresponding general industry standard for electric power generation, transmission, and distribution (§ 1910.269) describing a workspace such as a manhole or vault that is designed for periodic employee entry under normal operating conditions, and that, under normal conditions, does not contain a hazardous atmosphere, but may contain a hazardous atmosphere under abnormal conditions (§ 1910.269(x) and § 1926.968). There is overlap between an enclosed space and a ‘‘permit-required confined space’’ (permit space) as defined in the confined spaces standards for general industry (§ 1910.146) and construction (new subpart AA): An enclosed space meets the definition of a permit space—while it is not expected to contain a hazardous atmosphere, it has the potential to contain one—but the definition of permit-space is broader than the definition of enclosed space. For instance, if a space contains a hazardous atmosphere under normal conditions, that space is a permit space under § 1910.146 or new subpart AA, but it is not an enclosed space under final § 1910.269 or subpart V.

The note to the definition of ‘‘enclosed space’’ in § 1910.269(x) states that enclosed spaces expected to contain a hazardous atmosphere meet the definition of permit spaces in § 1910.146, and entry into them must conform to that standard. Subpart V, however, did not have any definition of ‘‘enclosed space’’ until OSHA amended it in 2014 by adding a definition that matched the general industry definition in § 1910.269(x) except that it did not include the note. OSHA explained in the preamble to the subpart V amendments that it did not include the note at that time because there was no comprehensive corresponding confined spaces construction standard to reference in place of § 1910.146, but OSHA intended to add a corresponding note to § 1926.268 when it promulgated the new construction confined spaces standard (see 79 FR 20376–20377). As part of this rulemaking, OSHA is therefore adding a note to the definition of ‘‘enclosed space’’ in § 1926.968 that corresponds to the note in § 1910.269(x), replacing the reference to § 1910.146 with a reference to subpart AA.

Amendments to § 1926.953 Prior to this rulemaking, § 1926.953(a) in subpart V, as amended in 2014, required that entry into an enclosed space to perform construction work meet the permit-space entry requirements of paragraphs (d) through

(k) of § 1910.146 when the precautions taken under §§ 1926.953 and 1926.965 were insufficient to eliminate hazards in the enclosed space that could endanger the life of an entrant or interfere with escape from the space. Similarly, § 1926.953(g) stated that employees may not enter any enclosed space while it contains a hazardous atmosphere, unless the entry conforms to the permit-required confined spaces standard in § 1910.146. OSHA is amending §§ 1926.953(a) and 1926.953(g) by replacing each reference to § 1910.146 with a reference to subpart AA so that the appropriate construction standard, rather than a general industry standard, will apply.

OSHA is also adding a sentence to § 1926.953(a) to clarify that employers may comply with the requirements of § 1926.953 ‘‘in lieu of’’ most of the requirements in new subpart AA when the entry into the enclosed space is a routine entry for subpart V work and there is no hazardous atmosphere in the space. Without this clarifying sentence, employers could have been confused about which standard applied. OSHA determined that § 1926.953 provides adequate protection to employees in that situation and announced in the subpart V preamble that it intended to add the sentence when it issued this final rule (see 79 FR 20376).

The new ‘‘in lieu of’’ sentence in § 1926.953(a) corresponds to a similar sentence in § 1910.269(e) specifying that employers are not required to comply with § 1910.146(d) through (k) for the same type of routine entries into enclosed spaces. OSHA has used slightly different wording from the language in § 1910.269 to emphasize that ‘‘in lieu of’’ language is only applicable where the entry is routine and the space does not contain hazards that could cause death or impede exit.

As with the general industry standard, the new sentence in § 1926.1953(a) only exempts employers from compliance with some, but not all, of subpart AA’s requirements. In the ‘‘in lieu of’’ sentence in § 1910.269, OSHA only excuses employers from compliance with § 1910.146(d) through (k) for these routine entries, but employers must still comply with the requirements in § 1910.146(c) and (l), including the requirements to assess the space, prevent unauthorized entry, communicate with and coordinate with the host employer when applicable, and to involve entrants and their representatives in the process. Likewise, in § 1926.953(a), the enclosed spaces requirements apply in lieu of the permit requirements in § 1926.1204 through § 1211, but employers still need to comply with subpart AA’s corresponding requirements in § 1926.1203 to assess the space, prevent unauthorized entry, and coordinate with and communicate with the controlling contractor, in addition to the requirements in § 1211 to involve entrants and their representatives in the process.

Finally, in addition to some minor, non-substantive grammatical changes to improve the paragraph, OSHA is also revising the note to paragraph § 1926.953,…