[Federal Register Volume 59, Number 141 (Monday, July 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16976]
[[Page Unknown]]
[Federal Register: July 25, 1994]
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Part II
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Part 1915
Confined and Enclosed Spaces and Other Dangerous Atmospheres in
Shipyard Employment; Final Rule
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1915
[Docket No. S-050]
Confined and Enclosed Spaces and Other Dangerous Atmospheres in
Shipyard Employment
AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION: Final rule.
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SUMMARY: The previous Subpart B of part 1915 sets out requirements for
work in explosive and other dangerous atmospheres in vessels and vessel
sections and applies to shipbuilding, ship repairing, and shipbreaking
operations and to related employment. The final rule being promulgated
today extends the protection afforded by these previous rules to
employees entering any confined or enclosed space or working in any
other dangerous atmosphere in or out of a shipyard. The final rule also
simplifies and clarifies some of the requirements in the previous
standards.
The final rule includes requirements for a shipyard competent
person, a Marine Chemist, a Certified Industrial hygienist, or a Coast
Guard authorized person to evaluate conditions within a confined or
enclosed space and to institute measures to ensure that entrants are
protected. It also contains requirements for posting unsafe spaces, for
safe performance of cleaning, cold work, and hot work, and for
classifying a person as a shipyard competent person.
EFFECTIVE DATE: The Final Rule becomes effective on October 24, 1994.
ADDRESSES: In compliance with 28 U.S.C. 2112(a), the Agency designates
for receipt of petitions for review of the standard the Associate
Solicitor of Labor for Occupational Safety and Health, Office of the
Solicitor, room S4004, U.S. Department of Labor, 200 Constitution Ave.
NW., Washington, DC 20210.
FOR FURTHER INFORMATION CONTACT: Mr. James F. Foster, U.S. Department
of Labor, Occupational Safety and Health Administration, room N3647,
200 Constitution Ave., NW., Washington, DC 20210 (202-219-8148).
SUPPLEMENTARY INFORMATION: The principal authors of this final rule are
Joseph V. Daddura, Project Officer and Odet Shaw, Office of Maritime
Standards; Michael B. Moore, Office of Fire Protection Engineering and
Safety Systems; Paul Bolon, Office of Regulatory Analysis: and Claudia
Thurber, Project Attorney, Office of the Solicitor, U.S. Department of
Labor.
Table of Contents
I. Background
II. Summary and Explanation of Final Rule
III. Statutory Considerations
IV. Summary of Final Regulatory Impact Analysis, Regulatory
Flexibility Certification, and Environmental Impact Assessment
V. Effective Date
VI. Information Collection Requirements
VII. Federalism
VIII. State Plans
IX. Authority
I. Background
A. History of the Regulation
In May 1971, the Occupational Safety and Health Administration
(OSHA), under authority granted by section 6(a) of the Occupational
Safety and Health Act of 1970 (OSH Act, 84 Stat. 1590; 29 U.S.C.
655(a)), adopted established Federal standards issued under section 41
of the Longshore and Harbor Workers' Compensation Act (44 Stat. 1444,
as amended; 33 U.S.C. 941), as standards applicable to ship repairing
(29 CFR part 1915), shipbuilding (29 CFR part 1916), and shipbreaking
(29 CFR part 1917) operations. Additionally, other Federal standards
and national consensus standards were similarly adopted as general
industry standards (29 CFR part 1910) and were made applicable to all
aspects of shipyard operations not specifically covered by parts 1915,
1916, and 1917. On April 20, 1982 (47 FR 16984), parts 1915, 1916, and
1917 were consolidated into a single part 1915, for shipyard
employment. The consolidated set of standards, entitled ``Occupational
Safety and Health Standards for Shipyard Employment,'' eliminated
duplicate and overlapping provisions within the former three parts, but
did not alter any substantive requirements. The consolidation had no
effect on the applicability of the general industry standards, in part
1910, to hazards or conditions in shipyard employment not specifically
addressed in the shipyard standards.
On November 29, 1988, OSHA published a proposed rule in the Federal
Register (53 FR 48092) that would revise its previous standards on
explosive and other dangerous atmospheres in vessels and vessel
sections, contained in Subpart B of part 1915. The proposed standards
covered safe entry into and work on board vessels and vessel sections
in shipyards. The NPRM proposed the following revisions to the previous
Subpart B:
* Expanding the scope so that the entire subpart applied to all
phases of shipyard work on board vessels and vessel sections;
* Adding several definitions; changing the sequence of testing so
that requirements for oxygen, flammability, and toxicity testing are
presented in that order (the proposal would not, however, have required
testing in that order);
* Increasing the oxygen content required for unprotected confined
or enclosed space entry from 16.5 percent by volume to 19.5 percent by
volume; adding a requirement that spaces containing concentrations of
toxic contaminants above the permissible exposure limit be labeled
``Not Safe for Workers'';
* Adding a requirement for hot work that the concentration of
oxygen not exceed 22 percent by volume; adding a requirement to label
spaces if those spaces contain, or are adjacent to a space containing,
concentrations of flammable gases or vapors at or above 10 percent of
their lower explosive limit; and
* Adding two new appendices to aid employers and employees.
The NPRM also proposed a revision of Sec. 1915.7, Competent Person.
The previous Sec. 1915.7, which is contained in Subpart A of the
Shipyard Standards, defines a competent person for the purposes of
Subparts B, C (Surface Preparation and Preservation), D (Welding,
Cutting, and Heating), and H (Tools and Related Equipment). The
proposed revision was intended to eliminate the paperwork burden
involved in designating competent persons, to clarify the skills
required of them, and to simplify requirements relating to logging of
inspections and tests.
The notice of proposed rulemaking (NPRM) gave interested persons
until February 27, 1989, to submit comments with respect to the
proposal, to file objections, and to request a hearing. OSHA received
over 40 comments in response to the proposed rulemaking. There were no
hearing requests, and no hearing was held.
A short time after the shipyard proposed rule (Subpart B) was
published, in November 1988, the Shipyard Employment Standards Advisory
Committee (SESAC) was established to provide OSHA with guidance in
revising its shipyard standards and in developing a vertical standard
for the shipyard industry. At several SESAC meetings, the proposed
rules in Subpart B were on the agenda.
Subsequently, on June 5, 1989 (several months after the comment
period closed for the proposed revision of Subpart B), OSHA published a
proposed rule for permit-required confined spaces in general industry
(54 FR 24080). This general industry permit space proposal was intended
to apply to land-side (that is, other than on vessels or vessel
sections) operations within shipyards, including all operations and
work areas, such as fabricating shops, machine shops, and staging
areas. As a result, shipyard employers would have been required to
comply with one set of standards for shipboard operations (part 1915,
Subpart B) and another for land-side operations (part 1910,
Sec. 1910.146).
The general industry permit space proposal was discussed at several
SESAC meetings with a view toward incorporating applicable requirements
into a vertical confined space standard for the entire shipyard. This
would make it unnecessary for the general industry standard to apply to
hazardous atmospheres in confined spaces in shipyards, as had been
proposed in the 1910 rulemaking.
At SESAC's meeting of April 25-26, 1990, the Committee recommended
that the scope of the proposed shipyard standard on vessels and vessel
sections be expanded to include all confined and enclosed space
operations within the shipyard (Tr. 102, 4/25/90). The committee also
recommended that the title of the subpart, originally called
``Explosive and Dangerous Atmospheres in Vessels and Vessel Sections,''
be changed to clarify that this standard addresses all confined and
enclosed spaces and dangerous atmospheres encountered in shipyard
employment. Additionally, SESAC recommended that several provisions
similar to those proposed for general industry be added to subpart B to
make it a comprehensive standard for shipyard employment. The
provisions they recommended included a paragraph covering training
requirements and duties of confined space entrants; a new paragraph on
self-rescue and rescue teams; and a new paragraph addressing the duties
of employers with respect to on-site contractors. As recommended by
SESAC, the additional provisions would make subpart B a comprehensive
set of requirements applicable to the hazards posed by confined and
enclosed spaces and dangerous atmospheres encountered throughout
shipyard employment.
In response to issues raised in various comments submitted to the
docket concerning the general industry permit-required confined spaces
proposal and to enable OSHA to place the SESAC recommendations into the
subpart B rulemaking record, the Agency reopened the subpart B record
for additional comment (57 FR 28152). In the notice reopening the
record, which was published on June 24, 1992, OSHA invited public
comment on seven issues. These issues were:
(1) Whether or not land-side confined and enclosed spaces and other
dangerous atmospheres should be treated separately from spaces in
vessels and vessel sections.
(2) What kind of training should shipyard confined space workers
receive.
(3) Whether or not subpart B should require attendants for shipyard
confined spaces.
(4) What should be a shipyard employer's duty with respect to
rescue services.
(5) What should be a shipyard employer's duty with respect to
contractors and other employers.
(6) Whether or not hot work permits should be required.
(7) What are the costs associated with applying requirements from
the generic confined spaces standard to shipyards.
Interested persons were given until September 22, 1992, to submit
comments. OSHA received 53 comments in response to the notice reopening
the record on the revision of subpart B.
The final rule on general industry permit-required confined spaces
was published in the Federal Register on January 14, 1993 (58 FR 4462).
Shipyards were omitted from the scope of the final general industry
standard because the Agency felt that it would be more appropriate to
address them in the revision of subpart B of part 1915. The
relationship between subpart B and Sec. 1910.146 and OSHA's reasons for
adopting a separate rule in subpart B are presented in the summary and
explanation discussion of the scope and application section for subpart
B (Sec. 1915.11).
The information OSHA relied upon to prepare the Notice of Proposed
Rulemaking (NPRM), comments received in response to the (NPRM), to the
notice of the reopening of the record, and the exhibits (including the
written transcripts of relevant SESAC meetings) submitted during the
period allowed for such submissions, constitute the rulemaking record
for this proceeding. The entire record was carefully considered in the
preparation of this final rule.
B. Significant Risk
The Occupational Safety and Health Administration (OSHA) has
determined that there is a significant risk to the health and safety of
workers who enter confined spaces in shipyards. According to the most
recent data from the Bureau of Labor Statistics (BLS), SIC 3731 (Ship
building and Repairing) has the highest lost workday case incidence
rate for injuries of any industry (``Occupational Injuries and
Illnesses in the United States by Industry, 1991,'' Bureau of Labor
Statistics, May, 1993).
The industry as a whole therefore poses the highest risk of injury
from all hazards for its employees in the U.S. Within shipyards,
confined space operations are one of the riskiest activities, which is
why the industry developed its own effective confined space procedures
that were adopted by OSHA as subpart B in 29 CFR part 1915 in the early
1970s.
At the present time, work in confined spaces on vessels is covered
by the current shipyard confined space regulations in subpart B of part
1915, but work in ``land-side'' confined spaces is not. This work on
land-side operations is therefore not currently addressed by a specific
OSHA regulation. These operations were originally included in the scope
of the proposed general industry confined space rule (Sec. 1910.146)
but were omitted in the final rule. In the preamble to that final rule,
the Agency noted its intention to cover confined spaces, both on
vessels and on land, in its revision of subpart B of part 1915. (58 FR
4471)
Confined space work on ships is extremely hazardous, and accidents
and fatalities still occur when the procedures of subpart B are not
adhered to. OSHA has recorded 20 deaths in the shipyard and boat-
building industries from 1983 to 1992 from confined space accidents.
The Agency has concluded that the new elements in final subpart B will
address non-compliance and lack of discipline in applying subpart B and
will reduce significant risk in confined and enclosed spaces and other
dangerous atmosphere work. These new elements include training, duty to
employers (contractors), and rescue. In addition, the Agency concludes
that other additions in the final will reduce risk in confined and
enclosed spaces and other dangerous atmospheres work, including:
specifying the order of testing of atmospheres, increasing the required
oxygen content from 16.5 percent to 19.5 percent by volume, restricting
oxygen content of spaces for hot work to 22 percent by volume, and
posting notification if spaces contain or are adjacent to spaces that
contain, concentration of flammable gases or vapors at or above 10
percent of there LEL.
II. Summary and Explanation of the Final Rule
A. Introduction
The final rule consists of two parts--a revision of the previous
shipyard competent person requirements found in subpart A and a
revision of the requirements for explosive and other dangerous
atmospheres found in subpart B. In this section of the preamble, OSHA
is providing a brief explanation of these two revisions to help explain
the final rule, together with a brief overview and explanation of the
revised standards. A later section will provide a full summary and
explanation of individual provisions, with complete details and
discussion of the rulemaking record.
OSHA is revising Sec. 1915.7, which sets out requirements for the
designation and qualification of competent persons. Under this section,
employers must designate one or more competent persons. The employer
must provide a roster of competent persons, which must contain the
names of these persons and the dates of their training. Competent
persons are required to know and understand the requirements of subpart
B (confined and enclosed spaces and other dangerous atmospheres), C
(surface preparation and preservation), D (welding, cutting, and
heating), and H (tools and related equipment); to know the locations
and designations of spaces where work is to be performed; to have the
ability to calibrate and use test equipment and perform the tests
required by subparts B, C, D, and H; to be able to evaluate whether
spaces need to be tested further by a Marine Chemist, Certified
Industrial Hygienist, or Coast Guard authorized person; to have the
ability to understand and carry out instructions and other information
provided by Marine Chemists, Certified Industrial Hygienists, or U.S.
Coast Guard authorized persons; and to have the ability to maintain the
records required by Sec. 1915.7. The final rule eliminates the
requirement for the employer to complete OSHA Forms 73 (Designation of
Competent Persons) and 74 (Log of Inspection and Tests by Competent
Person); however, the employer must continue to keep records of all
testing performed under subparts B, C, D, and H.
OSHA is also revising subpart B of part 1915. This subpart sets out
requirements for safe entry into and work in shipyard confined spaces,
enclosed spaces, and other dangerous atmospheres. The provisions of
this subpart apply to spaces that might contain oxygen-deficient,
oxygen-enriched, flammable, or toxic atmospheres. Examples of such
spaces include spaces that have been sealed, spaces that contain or
have contained materials that are flammable, toxic, corrosive, or
irritant, and spaces that are adjacent to these spaces. These spaces
must be tested by a competent person to determine whether or not it is
safe for an employee to enter into and work within or on the space.
The revised subpart B uses a two-tiered approach for evaluating the
hazards posed by confined and enclosed spaces and dangerous
atmospheres. The initial evaluation of all spaces is performed by a
shipyard competent person. When this evaluation discovers hazards
greater than those that a competent person is capable of handling, the
services of a Marine Chemist or certified industrial hygienist are
necessary. The shipyard competent person and these other qualified
individuals work in tandem to ensure the safe entry into and work in
confined and enclosed spaces and other dangerous atmospheres.
If the tests demonstrate that it is safe, then employees may enter
the space. If the tests show that it is not safe, then the space must
undergo further evaluation by a Marine Chemist or certified industrial
hygienist, and corrective action must be taken before employees may
enter. After further evaluation, the space must be designated as ``Not
Safe for Workers--Enter with Restrictions'' (for example, when
ventilation is necessary to maintain flammable concentrations below 10
percent of the lower explosive limit of a gas or vapor) or ``Not Safe
for Workers'' (for example, spaces with atmospheres that are
immediately dangerous to life or health). Spaces designated as ``Not
Safe for Workers--Enter with Restrictions'' or ``Not Safe for Workers''
must be posted with their designation so that employees do not enter
the spaces accidentally.
Employees who enter confined or enclosed spaces or dangerous
atmospheres must be trained to perform their work safely. The standard
requires training in hazard recognition, in the use of protective
equipment, and in self-rescue techniques. The employer must certify
that entrants have been trained before they are allowed to enter
confined and enclosed spaces or dangerous atmospheres. In addition,
employers must provide for rescue, either by having an on-site rescue
team or by arranging for the use of outside rescue services.
A space that has contained a flammable or toxic substance must be
cleaned before it can be made ``Safe for entry'' without restrictions.
The final rule sets requirements for performing the necessary cold work
(such as cleaning, scraping, inspecting the structure, and surveying
the space) usually to prepare the spaces for hot work. First, residues
of hazardous materials must be removed (for example, flammable liquids
are pumped out, then the space is cleaned). The atmosphere within the
space must be tested for flammability, and these tests must be repeated
as often as necessary throughout the course of work to ensure that the
concentration of flammable gases and vapors is in a safe range. (These
tests are in addition to the tests required before entry.) The standard
also requires ignition sources to be controlled or eliminated during
cold work to limit further the possibility of explosion or fire.
If hot work is to be performed, confined and enclosed spaces and
dangerous atmospheres are classified in two groups. If the spaces
contain or have contained flammable liquids or gases or if the spaces
are adjacent to such spaces, then a Marine Chemist or Coast Guard
authorized person must test and certify the space as safe for hot work.
Other types of confined and enclosed spaces and hazardous atmospheres
must be tested for safety by a competent person before hot work is
allowed.
The standard also contains provisions for maintaining safe working
conditions. Pipelines that carry hazardous materials must be blocked or
flushed and cleaned to prevent hazardous materials from discharging
into a space. The space must be tested periodically to ensure that safe
working conditions are maintained. Additionally, work operations must
be halted and the space exited when conditions change and the space no
longer meets the criteria specified by the Marine Chemist or Coast
Guard authorized person for safe work in or on the space.
The standard sets requirements for the posting of confined and
enclosed spaces and dangerous atmospheres. The signs must be understood
by all employees working in the area and must be posted at the means of
access to the work area.
The following summary and explanation of the individual provisions
within the standard discusses the important elements of the final
standard, explains the purpose of the individual requirements, and
explains any differences between the final rule and previous standards.
This section also discusses and resolves issues that were raised during
the rulemaking period, significant comments received as part of the
rulemaking record, and substantive changes from the language of the
proposed rule. References in parentheses are to exhibits (Ex.) and
transcripts (Tr.)1 in the rulemaking record.
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\1\ Transcript of the SESAC meeting of September 2-3, 1992,
Baltimore, MD.
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B. Subpart A, Sec. 1915.7--Competent Person
In this final rule, OSHA is revising various requirements related
to the designation and use of competent persons. Among the revised
provisions are the following: allowing an employer to avoid designating
competent persons if their tasks are always performed by a Marine
Chemist; allowing employers to select the form in which they may keep
records on competent persons; clarifying the criteria competent persons
must meet; and simplifying the way the competent person's records of
tests and inspections may be kept. In this regard, and as proposed,
OSHA is only revising Sec. 1915.7, which establishes both the duty for
employers to designate competent persons and the criteria for
designating such persons. The definition for competent person in
Sec. 1915.4 remains the same. The duties of competent persons, other
than the duties contained in Subpart B and addressed below in this
rulemaking, also remain the same.
In addition to substantive and editorial revisions to the
regulatory text of Sec. 1915.7 contained in the final rule, OSHA has
reorganized the paragraphs for clarity and coherence. OSHA prefers to
place paragraphs addressing the scope or application of a regulation at
the beginning of the applicable paragraphs, sections, or subparts of
that regulation. The previous paragraph addressing the application of
Sec. 1915.7 is contained in paragraph (d) located at the end of
Sec. 1915.7. To be consistent with other OSHA rulemaking, OSHA has
redesignated the paragraphs of Sec. 1915.7 so that the previous
paragraph (d) entitled, ``Application,'' becomes new paragraph (a) in
the final rule. Previous paragraphs (a), (b), and (c) have been
redesignated (b), (c), and (d), respectively.
Application. Paragraph (a) of the final standard sets forth the
application of Sec. 1915.7 that was previously contained in paragraph
(d) as discussed above. In addition, editorial changes have been made
to improve the language. For example, the old paragraph specified that
application would be to ``employers engaged in general ship repair,
shipbuilding and shipbreaking'' while in the new paragraph the general
inclusive term ``shipyard employment'' is used. The coverage provided
to employees by the new language is identical.
Designation of a competent person. In paragraph (b)(1), OSHA
continues the requirement in old paragraph (a)(1) of Sec. 1915.7 that
the employer designate at least one competent person for the purpose of
testing the atmospheres of work spaces in shipyard employment unless
all of the employer's testing under Subpart B is performed by an NFPA
Certified Marine Chemist.
OSHA also proposed to delete ``National Fire Protection Association
Certified Marine Chemist'' in previous paragraph (a)(1) and to replace
it with ``Marine Chemist.'' The phrase ``National Fire Protection
Association Certified'' which modifies ``Marine Chemist'' is redundant
since the term ``Marine Chemist'' will be defined in the final rule as
``an individual who possesses a current Marine Chemist Certificate
issued by the National Fire Protection Association.''
OSHA proposed to allow an employer to avoid designating competent
persons when the employer states that atmospheric testing is done by
other qualified individuals, who include NFPA Certified Marine
Chemists. Some commenters (e.g., Exs. 6-3, 6-12, 6-15) asserted that
competent persons were as capable as the Marine Chemist in performing
the atmospheric tests required in Subparts B, C, D, and H. For example,
Bay Shipbuilding Corp.
(Ex. 6-15) commented:
If an employer is just dealing with a common element like high
flash point fuels, oxygen content, carbon monoxide, or hydrogen
sulfide, which are easily detectable with electronic measuring
devices, you do not need a skilled chemist, provided you have a well
trained and equipped competent person.
OSHA agrees that a competent person is capable of testing
atmospheric conditions and certifying spaces for entry, and that Marine
Chemists are certainly capable of performing that testing. However, the
proposal would also have allowed the employer not to designate a
competent person if the testing were done by a Coast Guard authorized
person. OSHA has determined that this would not promote adequate safety
because the Coast Guard authorized person may not have been trained to
have all the skills and knowledge of a competent person. In fact, Coast
Guard authorized persons are only allowed to authorize someone to test
and certify a space ``Safe for Hot Work.'' (See the text of 46 CFR
35.01-1(a) through (c), 71.60(c)(1), and 91.50-1(c)(1) in Appendix B to
subpart B). A shipyard that relied only upon Coast Guard approved
persons would not have an individual who had all the skills and
knowledge necessary to protect employees from atmospheric hazards in
confined and enclosed spaces and other dangerous atmospheres.
Therefore, consistent with the previous standard, an employer can only
avoid designating a competent person(s) if the employer states that all
testing will be done by a Marine Chemist.
In paragraph (b)(2), OSHA has carried forth most of the
requirements of previous paragraph (a)(2), which addressed the
recording of information on employees who have been designated
competent persons. An employer is still required to keep a list of his
or her competent persons, but the employer will have more flexibility
in determining the form of the record, and instead of being required to
send the list to the OSHA area office, employers will be required to
maintain the list and make it available upon request.
Paragraph (a)(2) of the previous rule required the employer to
indicate on a ``Designation of Competent Person'' (OSHA 73 form) either
the names of employees designated as competent persons or that the
prescribed functions of a competent person would always be carried out
by a NFPA Certified Marine Chemist. In addition, a new OSHA 73 form had
to be completed when additions or changes were made to the information
concerning persons designated as competent persons and that it be filed
with the local OSHA area office.
The exception in paragraph (b)(1) which allows an employer to
designate ``any person who meets the applicable portion of the criteria
[for competent persons] set forth in paragraph (c)'' in certain
situations was in the previous standard at Sec. 1915.7(d) Application.
OSHA proposed that the employer prepare a ``certification record,''
that would include the employer's name, the identification of the
designated competent person or a statement that a Marine Chemist or a
Coast Guard authorized person would be used, the date of training, and
that the employer maintain the most recent record on file. Coast Guard
authorized persons were also to be added to the exception from
designating a competent person. The proposal also eliminated the need
to use an OSHA 73 form for recording the information required by the
standard.
In this final rule, OSHA addresses the proposed requirements under
three separate paragraphs. In paragraph (b)(2)(i) of the final rule,
OSHA continues to require employers to keep a record of employees who
have been designated as competent persons or a statement that the
employer plans to use a Marine Chemist for the testing of atmospheres.
Paragraph (b)(2)(ii) continues the requirement that the record of
designated persons be maintained but adds a requirement that the
employer make the record available for inspection by OSHA, NIOSH,
employees, or their designated representatives. This is consistent with
other OSHA standards including Secs. 1915.1025(l)(2) and 1915.1027(o),
and with industry practice. OSHA believes it is imperative that
competent persons be easily identified because their skills are
critical for the provision and maintenance of a safe workplace. In
addition, the new requirement will facilitate enforcement of the
maintenance of records requirement.
OSHA has eliminated the requirement to use an OSHA 73 because OSHA
believes that the OSHA 73 form requires more information than is
necessary. The primary purpose of the ``Designation of Competent
Person'' form was to provide the identification of employees designated
as competent persons or to indicate that a Marine Chemist would be used
to perform tests. OSHA believes that such information can be recorded
and provided in other ways.
Since the OSHA 73 form is no longer required, it no longer needs to
be provided to the OSHA area office each time a change is made. Now
employers can maintain the record of designated employees at the place
of employment or other location, such as the main office of the
employer, so long as the record can be provided for inspection upon
request.
The U.S. Coast Guard MIONY (Ex. 6-4) and Mr. Alan Spackman (Ex. 6-
5) supported the elimination of OSHA Form 73, but only if the employer
is required to maintain the alternative method of certification. Mr.
Spackman (Ex. 6-5) stated,
This action is acceptable only if the employer is required to
either post or make the competent person's certification record
available upon request and without retaliation to employee and other
persons who may be in the workplaces. The proposal fails to give
this assurance.
OSHA believes that by allowing alternative reporting media for
identifying designated employees and by requiring that records be
maintained and made available for inspection rather than submitted to
the local OSHA area office, the final rule addresses Mr. Spackman's
concerns. Bay Shipbuilding Corp. (Ex. 6-15) commented,
Form 73 is non-productive and obsolete. The form could be
revised to indicate information such as name, date, employment/
experience in shipbuilding/repairs/ship breaking, and schooling or
training * * *
Therefore, in the final rule, the employer is permitted to use any
form or format of reporting that identifies the employees who are
designated as competent persons and the date they were trained or that
a Marine Chemist will be used to perform atmospheric testing. Under the
final rule, OSHA will continue to recognize the OSHA 73 form as an
acceptable recordkeeping medium, but will not require its use.
Employers are free to use whatever recordkeeping medium they choose as
long as the record contains the minimum information required in the
final rule and can be presented for inspection upon request. By
requiring that the record be made available for inspection upon
request, OSHA is eliminating the need for employers to file new OSHA 73
forms or certifications of designated persons with the nearest OSHA
area office as required in the previous language of Sec. 1915.7(a)(2).
In paragraph (b)(2)(iii), OSHA has reorganized the requirements of
the certificate designating employees as competent persons, keeping
most that were proposed, but eliminating the requirement to include the
date the record was made and adding a requirement to include the date
the competent person was trained. As long as the list of competent
persons represents the current situation, there is no need to know when
it was created. However, knowing when a competent person was trained
will enable OSHA to determine easily that the employee was trained,
thus facilitating enforcement and ensuring that the employer is aware
of the date the employee was trained.
Criteria for a competent person. In the proposal, the Agency
requested public comment on whether there should be OSHA-approved or
OSHA-required training for competent persons, whether competent persons
should be certified, when such requirements could be implemented, and
how many persons would need training and certification.
Several commenters believed that OSHA should not require training
or certification of shipyard competent persons. For example, the
Shipbuilders Council of America (SCA) (Ex. 6-3) and Newport News
Shipbuilding (Ex. 6-6), commented:
The vast majority of confined space entry incidents are the
result of poor application of confined space entry procedures. There
are few, if any, confined space incidents involving errors by a
competent person. The criteria for designating competent persons in
the present standard in Sec. 1915.7 are sufficiently specific and
rigorous to ensure qualified individuals, and should be retained.
SCA (Ex. 6-3) additionally suggested that,
OSHA should continue to offer and support Shipyard Competent
Person training courses. However, the fact that an individual has
taken the course alone does not ensure competency.
Other commenters urged OSHA to institute mandatory training and
certification (e.g., Ex. 6-14, 6-24, 6-31). For instance, NIOSH
recommended that OSHA require and take responsibility for the
certification and training of shipyard competent persons (Ex. 6-14).
The U.S. Navy's Environmental Health Center (Ex. 6-31) related the
issue of shipyard competent persons to their Gas Free Engineers by
stating that:
OSHA should adopt a formal policy on this issue. Naval shipyards
currently have a 3 week Gas Free Engineer (GFE) course which is
given to Navy personnel so that they may perform as Gas Free
Engineering Technicians.
Another commenter, Independent Testing and Consulting, Inc. (Ex. 6-
24) expressed this viewpoint:
The NFPA in conjunction with OSHA has re-introduced a voluntary
training program for Competent Persons * * *. The provision of
training by outside agencies lifts a burden from the employer and
the benefits outweigh the costs.
The requirements of 1915.7 are adequate but every effort should
be made to provide employers with the opportunity to send personnel
to training courses which should be OSHA approved. Such approval
should require that persons be recertified periodically, say every
3-5 years. This would assure that competent persons keep abreast of
changes in technology, law etc.
OSHA received support for periodic re-training and many suggestions
with a variety of time limits (Ex. 6-4, 6-12, 6-14, 6-21, 6-22, 6-27,
6-28, 6-33, 6-36). For example, the U.S. Coast Guard MIONY (Ex. 6-4)
and the Navy's Sea Systems Command (Ex. 6-12) believe that competent
persons should attend initial training and then attend refresher
training each year thereafter. NIOSH (Ex. 6-14) recommended that annual
training of the competent person be required for recertification.
Several commenters, however, believed that the criteria for
designating a competent person should remain the same as the previous
standard. The NFPA (Ex. 6-10), for example, stated :
* * * Emphasis should be placed upon enforcement of existing
requirements (the performance requirements to be designated for a
competent person) and that formal training be directed toward the
existing duties and responsibilities of a competent person.
And as expressed by Delta Laboratory and Gas Testing, Inc. (Ex. 6-
35):
* * * the present system provides a tried and tested system of
confined space entry and work * * *. To change the basic format of
the system would be sheer folly and would benefit the few at the
expense of many.
While OSHA supports the need for training requirements, OSHA agrees
with the position of the majority of commenters that the competent
person criteria contained in Sec. 1915.7 achieve the same result, that
is, a highly trained individual who has knowledge of the unique aspects
of shipyard operations and the ability to carry out and perform the
required atmospheric tests. The criterion in paragraph (c) of
Sec. 1915.7 requires the shipyard competent person to have the skill
and knowledge necessary to perform atmospheric testing. Because each
shipyard is unique, how much training a shipyard competent person must
have and how often it must be repeated is left to the employer who is
in the best position to determine what skills and knowledge must be
reinforced and what resource information needs to be presented. As
such, OSHA is of the opinion that by continuing the previous competent
person criteria, employers will ensure that the necessary training will
continue to be provided to shipyard employers who are so designated as
competent persons. Furthermore, OSHA believes that this performance-
oriented approach will allow the most flexibility in ensuring the
availability of competent person services and in ensuring that the
unique conditions in each shipyard can be addressed.
Paragraph (c)(1) is the same as previous paragraph (b)(1) except
that the competent person is now required to be able to understand and
carry out the written or oral instructions left by the Certified
Industrial Hygienist as well as the Marine Chemist and the Coast Guard
Authorized Person. Certificates issued by the Marine Chemist, Certified
Industrial Hygienist, or Coast Guard authorized person are written
instructions. OSHA had proposed to separate the requirements to
understand certificates and to carry out verbal instructions left by
the Marine Chemist or Certified Industrial Hygienist or Coast Guard
authorized person but the Agency has concluded that the requirements
are sufficiently interrelated that they can continue to be listed
together in paragraph (c)(1).
Paragraph (c)(2) continues the requirement of previous paragraph
(b)(3) that competent persons have a knowledge of Subparts B, C, D, and
H of part 1915. OSHA did not propose to change this requirement, and
has made only an editorial change in order to improve clarity.
Paragraph (c)(3) is the same as old paragraph (b)(4), requiring
that competent persons have a familiarity with the structure and
knowledge of the location and designation of spaces on the types of
vessels on which repair work is done. OSHA did not propose to change
this requirement but in the final rule reflects OSHA's decision to
expand the scope of Subpart B to cover all phases of shipyard
employment.
In paragraph (c)(4), OSHA continues to require competent persons to
have the ability to use and interpret the readings of oxygen
indicators, combustible gas indicators, and carbon dioxide indicators,
but consistent with the proposal, the Agency has added a requirement
that the competent person be able to calibrate the testing equipment
and that the equipment not be limited to these monitors.
The proposed language in paragraph (b)(3) was performance-oriented
in that it did not limit the testing equipment to the types recognized
specifically in paragraph (b)(2) of the previous rule. As new
technologies develop and new chemical hazards are encountered in the
shipyard working environment, it becomes necessary for competent
persons to use new types of environmental monitors and detectors. Skill
in the use of this new equipment is necessary for competent persons to
be able to identify sources of hazardous exposures in shipyard
employment. In addition, OSHA believes that in order for the competent
person to have the ability to read and interpret the readings of any
type of chemical indicator that may be needed to test atmospheres in
the shipyard, a competent person must be familiar enough with the
instrumentation to capably calibrate it.
In paragraph (c)(5), OSHA continues the requirement contained in
the first portion of paragraph (b)(5) in the previous rule. Paragraph
(b)(5) of the previous rule contains two requirements and OSHA has
decided to divide the previous rule into two separate requirements in
the final rule: Paragraphs (c)(5) and (c)(7). Paragraph (c)(5) requires
that competent persons must have the capability to perform the tests
and inspections required by Subparts B, C, D, and H of part 1915. The
requirement in the final rule is consistent with the language proposed
in paragraph (b)(6) of the proposal. There were no comments objecting
to this change and OSHA considers it to be editorial.
In paragraph (c)(6) OSHA is adding a new requirement to the final
rule that coincides with shipyard industry practice. Paragraph (c)(6)
requires competent persons to have the ability to evaluate spaces after
a test to determine the need for further testing by Marine Chemists,
Certified Industrial Hygienists, or by the U.S. Coast Guard authorized
persons. OSHA has added this new language to make it clear that there
may be atmospheric conditions present in the shipyard that can not be
evaluated effectively by a person trained only to the competent person
level and that more highly trained individuals may be needed to
accurately evaluate an atmosphere. In such cases, OSHA believes this
new language would make it clear that an individual such as a Marine
Chemist, a Certified Industrial Hygienist, or a Coast Guard authorized
person must be called for assistance.
The State of Washington, Department of Transportation (WADOT) (Ex.
6-26) noted the ``tremendous responsibility'' placed upon the competent
person and even recommended further training.
WADOT commented,
Regarding changes to 1915.7 Competent person: Throughout the
existing and proposed regulation, the competent person is given
tremendous responsibility to ensure worker safety through inspection
and testing. * * *
* * * a requirement should be added at 1915.7(b)(8): Knowledge
of the physical hazards and the air contaminants which may be
produced in the course of the work to be done, the means of
preventing employee exposure to them.'' The regulation could even go
so far as to require the competent person to attend a 2-day training
class certified by the National Fire Protection Association. NFPA
maintains a list of certified classes.
OSHA agrees that it may appear from the proposal that competent
persons are expected to perform some duties equivalent to those of the
Marine Chemist, Certified Industrial Hygienist, or Coast Guard
authorized person. This was not the intent. OSHA does not believe,
based upon the duties that are expected from a competent person, that
it is necessary to specify the competent persons be trained by the NFPA
as suggested by Washington State. Rather, OSHA believes the knowledge
and training requirements in paragraph (c) are appropriate for the
testing that a competent person is allowed to do. However, the
competent person needs to be trained to recognize the need for more
sophisticated assistance and must know how to call for that assistance.
This new requirement makes it clear that competent persons, rather than
perform all tests and evaluations alone, must have the ability to
determine when the expert assistance of the Marine Chemist, Certified
Industrial Hygienist, or Coast Guard authorized person is needed.
In paragraph (c)(7) OSHA is continuing the requirement found in the
second part of paragraph (b)(5) in the previous rule. Paragraph (c)(7)
requires that a competent person must have the capability to maintain
the records required by the standard. As noted earlier, OSHA has
divided the previous requirements of paragraph (b)(5) into two separate
paragraphs, (c)(5) and (c)(7). There were no objections to this change
as it was proposed in paragraph (b)(6) and (b)(7). Therefore, OSHA
considers paragraph (c)(7) to be an editorial change to previous
paragraph (b)(5).
Recordkeeping. OSHA has redesignated the logging of inspections and
test requirements as paragraph (d) Recordkeeping. The changes proposed
to the requirements of previous paragraph (c) addressing logging of
inspections and tests were contained in paragraph (c) of the proposal.
In paragraph (d)(1) OSHA has made substantive changes to the
language of previous paragraph (c)(1). OSHA is requiring that the
employer ensure that the competent person, Marine Chemist or Certified
Industrial Hygienist performing any tests required by Subparts B, C, D,
or H of this part, records the test locations, time, date, location of
inspected spaces, and the operations performed, as well as the test
results and any instructions. OSHA has combined paragraphs (c)(1) and
(c)(2) of the proposal and eliminated the need for the OSHA 74 form.
The new language continues the previous requirement that persons
conducting tests and inspections record the results of those tests and
inspections. However, it eliminates the mandated use of the OSHA 74
form. OSHA believes that the format or instrument of the test report is
not important, so long as the information required by OSHA is contained
in the record.
OSHA received a number of comments urging the Agency to allow other
forms of reporting the atmospheric testing results in addition to the
OSHA 74 form.
The Navy's Sea Systems Command (Ex. 6-12) commented that,
[Section] 1915.7(c) requires that all tests be logged on the
OSHA Form 74. Recommend insertion of the words ``or equivalent'' to
allow for use of locally developed (e.g. computer-generated) forms
which include at least all of the information required by the OSHA
Form 74.
Marine Hydraulics International (Ex. 6-21), Colonna's Shipyard (Ex.
6-22), S.T.A.S. (Ex. 6-37) and Moon Engineering (Ex. 6-38) agreed and
submitted identical comments that stated:
We suggest that the following words be added to the end of this
paragraph: ``or equivalent.'' The OSHA 74 does not possess room for
additional instructions to workers, and by allowing the use of an
equivalent form, workers could be informed of other requirements
that the Shipyard Competent Person may invoke.
In previous paragraph (c)(1), competent persons were required to
make a record of the locations, operations performed and the date,
time, and results of any test they performed on a ``Log of Inspections
and Tests by Competent Person'' (OSHA 74 form). Competent persons were
also required under previous paragraph (c)(1) to use a separate form
for each vessel on which tests and inspections were made. By allowing
the use of alternative forms to record atmospheric test results, the
employer will have more flexibility in complying. However, employees
will be protected and OSHA will be aided in its enforcement by the fact
that employers will still be required to maintain records of tests and
inspections.
In paragraph (d)(2) of the final rule, OSHA continues the
maintenance of records requirement of previous paragraph (c)(2). OSHA
is requiring the employer to ensure that records created to comply with
the recordkeeping requirements of this section are posted in the
immediate vicinity of the affected operations while work is progress
and for a period of at least three months from the completion date of
the specific job for which they were generated. OSHA considers the new
language to be a non-substantive change.
In paragraph (d)(3) of the final rule, OSHA continues the
availability of records requirement of previous paragraph (c)(2).
Paragraph (d)(2) requires the employer to ensure that the records
required in this section are available for inspection by the Assistant
Secretary, Director, employees, or their representatives while work in
the affected spaces is in progress. The new language contains editorial
corrections for clarity and consistency with other OSHA record
inspection requirements. OSHA considers the changes to this paragraph
to be non-substantive.
C. Subpart B, Sections 1915.11 through 1915.16
1. Sec. 1915.11 Scope and Application
The scope contained in previous Sec. 1915.11 applies the
requirements in Subpart B to vessels and vessel sections found in
shipyards during ship repair and ship breaking; Sec. 1915.16 applies to
ship repair only. On November 29, 1988, OSHA proposed to amend its
shipyard standards addressing safe entry into and work within spaces
containing explosive and other dangerous atmospheres on board vessels
and vessel sections in shipyards (53 FR 48092). Under this proposal,
OSHA would have applied Subpart B to all types of shipyard work on
vessels and vessel sections, including ship building, ship repair, and
shipbreaking. The Agency proposed extending the scope of Subpart B in
this manner to protect employees entering and working in explosive and
other dangerous atmospheres, regardless of the type of work they were
performing.
Subsequently, after the closing date for comments on this proposed
shipyard rule, OSHA also proposed new rules for confined spaces in
general industry (54 FR 24080, June 5, 1989). The general industry
proposal would have had the effect of covering land-side (that is,
other than shipboard) confined spaces in shipyards, such as piping
systems in shops or confined spaces in staging areas.
As noted earlier, SESAC reviewed the general industry proposal and
made recommendations regarding its possible application to shipyard
work. In June 1992, OSHA reopened the record for Subpart B (57 FR
28172, June 24, 1992), to place the SESAC recommendations in the
rulemaking record and to gather additional information on whether or
not the proposed general industry confined spaces standard was
appropriate for land-side confined spaces entered during shipyard work.
The scope of revised Subpart B has been expanded so that the final
rule covers all shipyard work, and the title of the Subpart, originally
called ``Explosive and Other Dangerous Atmospheres in Vessel and Vessel
Sections,'' has been changed to ``Confined and Enclosed Spaces and
Other Dangerous Atmospheres in Shipyard Employment.'' OSHA believes
this change more accurately reflects the scope of this Subpart, which
now addresses all shipyard employment operations and which is not
limited to confined spaces. The entire subpart applies regardless of
whether shipbuilding, ship repair, or shipbreaking is being done.
The scope of the 1988 proposal differed from the previous standard
in two major respects:
(1) The proposed standard would have extended coverage to employees
in shipbuilding, who were not protected by previous Secs. 1915.12
through 1915.16, and
(2) the proposed standard would have extended coverage to employees
in shipbreaking who were not protected by the previous Sec. 1915.16.
The notice of proposed rulemaking listed two reasons for extending
the scope of Subpart B in this manner:
(1) That the national consensus standard corresponding to Subpart B
(NFPA 306, Control of Gas Hazards on Vessels) imposes the same basic
requirements to all shipyard work, regardless of whether ship building,
ship breaking, or ship repair is being performed; and
(2) that the protective measures required under the previous
Secs. 1915.12 through 1915.16 are current industry practice in all
aspects of shipyard work.
NFPA 306 (1988) is the national consensus standard that applies to
work covered by revised Subpart B. Like Subpart B, it contains
requirements for atmospheric testing, for cold work and hot work, and
for maintaining safe atmospheres for employees while shipbuilding,
shipbreaking, or ship repairing is being performed. Under section
6(b)(8) of the OSH Act, any standard that OSHA adopts in regard to
atmospheric hazards on vessels must be at least as protective as the
NFPA document unless another standard would be more consistent with the
purpose of the act.2 Expanding the scope of the current standard
to all of shipyard employment is consistent with the scope of NFPA 306
and therefore providing at least equivalent protection.
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\2\ Section 6(b)(8) of the OSH Act reads as follows:
Whenever a rule promulgated by the Secretary differs
substantially from an existing national consensus standard, the
Secretary shall, at the same time, publish in the Federal Register a
statement of the reasons why the rule as adopted will better
effectuate the purposes of this Act than the national consensus
standard.
---------------------------------------------------------------------------
Before the publication of the 1988 proposal, 30 groups,
representing government agencies, employers, unions, and associations,
commented on the first draft rewrite of Subpart B. All of these groups
supported the concept of expanding Subpart B coverage to both
shipbuilding and shipbreaking (53 FR 48094). As noted in the preamble
to the proposal, OSHA believes that this is because the shipyard
industry was already applying the requirements of previous Subpart B to
the entire shipyard. In fact, the preliminary regulatory impact
analysis identified no cost impact from the application of the proposal
to shipbuilding, shipbreaking, and ship repair (53 FR 48104).
In response to the 1988 notice of proposed rulemaking, OSHA
received no comments in opposition to the extension of this coverage
and several expressions of support for applying the standard uniformly
throughout the shipyard (Ex. 6-3, 6-6, 6-23). The position of the 39
commenters is best expressed by the following statements. The
Shipbuilders Council of America (SCA) (Ex. 6-3), which represents 25
major U.S. shipyards that employ 95 percent of shipyard production
workers, stated:
* * * having a single standard addressing this issue would
achieve the objective of providing employees and employers with one
set of rules for given situations.
Newport News Shipbuilding (Ex. 6-6), the largest shipyard in the
western hemisphere:
* * * the industry treats confined spaces ashore and afloat in a
similar manner.
The American Waterways Shipyard Conference (AWSC) (Ex. 6-23),
representing the interests of small- to medium-sized commercial
shipbuilding and repair industry stated:
AWSC is very supportive of OSHA's efforts to develop this
vertical standard. The end product will eliminate the confusion
which currently exists concerning the applicability of the General
Industry Standards to the shipbuilding and repair industry, and will
up-date all standards to the existing technology level.
* * * * *
The alternative to the expansion of the scope of this subpart
appears to be the institution of a different program for [shore-
side] confined spaces. To introduce a new type of confined space
entry program into a shipyard facility which already has a workable
program seems ludicrous. Two programs would only confuse the
employee. By extending the current program, employees will be
protected and will immediately recognize the program.
OSHA has concluded that the requirements contained in revised
Subpart B are necessary for the protection of employees exposed to
hazardous atmospheres in shipyards, regardless of the type of work
being performed. Hazardous atmospheres can be found in shipbuilding, as
well as in shipbreaking and ship repair. The work practices implemented
by employees working in vessels and vessel sections should be the same
from one job to the next. The atmospheric hazards will basically be the
same and the employees move from job to job within the entire shipyard,
so the work practices should be consistent. Using one set of work
procedures for atmospheric hazards in a shipbuilding job and another
for the same hazards for a ship repair job would serve to confuse the
employee and could easily lead to accidents. Therefore, revised Subpart
B applies to shipbuilding, shipbreaking, and ship repair.
A short time after the November 1988 publication of the proposed
rule on Explosive and Other Dangerous Atmospheres in Vessel and Vessel
Sections, the Shipyard Employment Standards Advisory Committee (SESAC)
was established. SESAC was chartered to provide OSHA with guidance in
revising, consolidating, and modernizing the varying sets of
regulations that were being applied in the shipyard industry into what
is ultimately intended to be a truly vertical standard for all shipyard
employment. Shipyard employers would be required to comply with a
single set of occupational safety and health standards as opposed to a
mixture of shipyard and general industry standards. Consequently, the
newly developed shipyard employment standards would apply to all
shipyard employment regardless of the type of work being performed (for
example, vessel repair or fabrication of railroad cars) or location
(for example, in the traditional shipyard or ``up river'' or on sea
trials). As a step towards this goal, SESAC recommended that the scope
of the proposed Subpart B be expanded beyond vessels and vessel
sections, to cover all land-side confined space and hazardous
atmosphere situations (Tr. 101, 4/25/90).
In order for OSHA to include SESAC's recommendations into the
rulemaking record and to consider fully comments submitted to the
docket concerning the general industry confined spaces proposal, OSHA
reopened the record on Subpart B (57 FR 28152, June 24, 1992). The
Agency raised a number of questions in the notice reopening the record.
The most significant issue that underlines a number of the specific
questions is rooted in the unique concept of confined space entry that
has been the accepted practice in the shipyard industry for over 25
years (36 FR 10466, May 29, 1971). The fundamental basis of OSHA's
shipyard standard has been a reliance on preventing employees from ever
being exposed to confined space atmospheric hazards. This has been
accomplished by the built-in system of testing and ventilating that has
become industry practice and has been very successful at preventing
confine and enclosed spaces and other dangerous atmospheres accidents.
The concept of a single standard, Subpart B, for all shipyard
employment was unanimously endorsed by SESAC as well as supported by
all of the commenters who addressed this issue in the June 1992, notice
(Ex. 11-3, 11-4, 11-5, 11-6, 11-8, 11-10, 11-13, 11-14, 11-15, 11-16,
11-18, 11-19, 11-20, 11-21, 11-24, 11-26, 11-29, 11-31, 11-33, 11-34,
11-35, 11-39, 11-41, 11-48, 11-50). For example, the National Fire
Protection Association (Ex. 11-19), a voluntary membership organization
dedicated to the protection of people and property from fire and
related hazards, set out this position as follows:
NFPA favors the development of a single standard which provides
for safety during entry and work in confined spaces within the
shipyard.
* * * * *
In general, application of two distinctly different standards
for vessels and [land-side] operations would be a burden on the
industry and would be confusing to employees. Specific points are as
follows:
First, * * * employees in the shipyard are familiar with the
dangers of all confined spaces, not just those confined spaces
associated with tanks aboard ships. This has occurred due to the
absence of prior safety requirements for general industry.
The shipyards have already adapted the practices and procedures
derived from the vessel requirements and applied them to the [land-
side], as appropriate.
Second, the shipyard industry has demonstrated the effectiveness
of the current and proposed 29 CFR 1915, Subpart B requirements over
the past 10 years.
Third, requiring the 1910 general industry requirements for
[land-side] activities instead of the current and proposed 1915
shipyard requirements complicates the training element, by
necessitating dual procedures. The training for both sets of
requirements will be incompatible, since the standards each take a
different approach--1915 Subpart B utilizes a ``performance
oriented'' approach, while 1910.146 relies on specifications to
achieve its objectives.
Ingalls Shipbuilding (Ex. 11-20) agreed, stating:
The SESAC recommendation stresses preventions, training and
self-rescue. This approach, which relies on testing before entry and
use of engineering controls to eliminate the hazards is, in our
opinion, much safer than the general industry standard which
requires the use of attendants at each confined space to summon
rescue personnel when an emergency occurs. (SESAC'S recommendations
put the emphasis on prevention). In addition to being safer it is
also more economical than the general industry standard.
The industry has adopted a single approach to working in and around
explosive and dangerous atmospheres throughout the shipyard for several
reasons:
(1) The number and type of atmospheric hazards associated with
products contained in the spaces is unpredictable. Some vessel
repairers encounter over 100 different chemical cargoes (Ex. 11-27);
(2) The complexity of confined spaces is increased due to the
extensive internal structures, adjacent spaces, pipelines, vent
systems, heating coils, and the like (Ex. 11-7, 11-27); and
(3) The cross-contamination of previous and successive products
complicates the atmospheric evaluation process (Ex. 11-7).
(4) The nature of the work associated with the confined space entry
in shipyards tends to be more complex. This work frequently involves
hot work which can greatly affect atmospheric conditions within the
space (Ex. 11-7, 11-27).
Based on the record, OSHA has made a determination that a single
standard should be applied for entry into confined and enclosed spaces
and other dangerous atmospheres throughout the shipyard industry,
following the Subpart B approach. OSHA has arrived at this conclusion
for two basic reasons:
(1) A single procedure, applicable throughout the shipyard and
addressing hazards related to confined and enclosed spaces and other
dangerous atmospheres will best protect employees, and
(2) That the provisions adopted in revised Subpart B will provide
shipyard employees with a comprehensive set of protective safety
measures.
A single standard applying to all shipyard confined and enclosed
spaces and other dangerous atmospheres will provide employees with one
procedure for working in any shipyard location, whether on a vessel or
on land. The commenters overwhelmingly agreed that this approach would
best protect employees (Ex. 11-3, 11-6, 11-9, 11-13, 11-14, 11-15, 11-
18, 11-19, 11-20, 11-24, 11-25, 11-26, 11-29, 11-35, 11-39, 11-41, 11-
50). OSHA agrees with these commenters that two procedures for dealing
with confined and enclosed space and dangerous atmosphere hazards would
confuse employees who have to implement those procedures. The Agency is
concerned that the confusion resulting from different standards for
shipboard and land-side spaces would actually lead to accidents rather
than prevent them.
As in the past, the primary focus of Subpart B will continue to be
atmospheric hazards. Non-atmospheric hazards such as those relating to
slips, trips, or falls are covered by other provisions of the shipyard
standards. A more specific detailed discussion of non-atmospheric
hazards is contained in the following paragraph.
OSHA believes that land-side confined spaces in shipyards pose
hazards similar in nature to those found in vessels and vessel sections
covered by revised Subpart B. The evidence in the record demonstrates
that the atmospheric and non-atmospheric hazards in vessels and vessel
sections are also present in land-side confined spaces (Ex. 11-19, 11-
26, 11-27, 11-32, 11-39, 11-41, 11-47). The Agency agrees with the vast
majority of commenters who stated that the procedures used to protect
workers from these hazards in vessels and vessel sections could readily
be adopted for use in land-side confined space operations (Ex. 11-1,
11-3, 11-6, 11-9, 11-10, 11-11, 11-13, 11-14, 11-15, 11-18, 11-19, 11-
20, 11-24, 11-25, 11-26, 11-29, 11-30, 11-31, 11-32, 11-33, 11-34, 11-
37, 11-39, 11-41, 11-42, 11-44, 11-45, 11-46, 11-47, 11-49, 11-50, 11-
51).
A few commenters stated that vessels and vessel sections pose
greater hazards (Ex. 11-7, 11-8, 11-11, 11-13, 11-22, 11-27, 11-30, 11-
35, 11-46). They noted such differences as greater complexity with
respect to the hazards involved in vessels and vessel sections,
movement of the vessel (which causes movement of atmospheric hazards),
the total number of spaces involved, the multitude of systems (for
example, fuel, refrigeration, and compressed air) present on-board
ships, and the interrelationships between adjacent vessel sections
(that is, hazards in one section can affect procedures to be used in
adjacent sections). Nonetheless, most of these commenters contended
that the Subpart B requirements were still appropriate for land-side
confined spaces (Ex. 11-11, 11-13, 11-30, 11-31, 11-35, 11-44, 11-46).
They argued that the Subpart B provisions would afford employees with
greater protection than would be provided by Sec. 1910.146, and that
procedures necessary to comply with Subpart B were already in place in
most shipyards.
OSHA has concluded that it is appropriate to apply revised Subpart
B to all phases of shipyard work. The Agency has determined, based on
the record, that shipyard employers can readily adapt their ship-side
procedures which already conform to these requirements, for use in
land-side confined space entry, as well.
OSHA has included the phrase ``regardless of geographic location''
in the scope only as a clarification since it has been the Agency's
position that this section, and indeed the entire Part 1915, apply to
inland shipyard employment.
SESAC examined requirements proposed in the general industry
confined space standard Sec. 1910.146, to determine to what extent that
proposal should address shipyard work and to determine whether or not
specific provisions within that proposal were appropriate for
application to work in shipyard confined and enclosed spaces and other
dangerous atmospheres. The committee agreed that a single standard
should apply to this work and recommended the addition to Subpart B of
several provisions based on proposed Sec. 1910.146 so that the shipyard
standard would be as comprehensive as its part 1910 counterpart (Tr.
102, 4/25/90). As noted earlier, OSHA reopened the record on the
proposed revision of Subpart B to request comments on SESAC's
recommendations in this regard, as well as to explore the possible
expansion of the scope of Subpart B to all aspects of shipyard work.
The issues raised in the notice reopening the record addressed how
Subpart B could be revised to make it as protective as the general
industry permit space standard.
Paragraph (c)(1) of Sec. 1910.146 requires employers to evaluate
the workplace to determine if any spaces are permit-required confined
spaces. Paragraph (c)(6) of that standard requires employers to
reevaluate non-permit confined spaces whenever there are changes that
might increase the hazards to entrants. The notice reopening the record
on Subpart B requested comments on whether or not shipyard employers
should similarly evaluate their workplaces.
Most commenters agreed that the shipyard standard should not adopt
requirements comparable to paragraphs (c)(1) and (c)(6) of
Sec. 1910.146 (Ex. 11-1, 11-3, 11-6, 11-7, 11-9, 11-10, 11-11, 11-13,
11-14, 11-15, 11-18, 11-19, 11-20, 11-22, 11-24, 11-25, 11-26, 11-29,
11-30, 11-31, 11-34, 11-39, 11-41, 11-42, 11-45, 11-47, 11-49, 11-50,
11-51). They argued that proposed Subpart B was adequate since it
already required testing before initial entry of all confined spaces
that could contain atmospheric hazards and additional frequent testing
to ensure that atmospheric conditions are maintained. A few contended
that the shipyard industry treated all confined spaces alike,
evaluating them for hazardous conditions before entry (Ex. 11-13, 11-
19, 11-31, 11-49). For example, Mr. Joseph J. Ocken (Ex. 11-31) stated:
The present practice is to consider ANY confined space NOT SAFE
until currently tested and posted otherwise. This is a simple fail-
safe work practice for workers. To expect every space to have been
evaluated and posted properly invites simple error to lead to
catastrophe. There are too many confined spaces in shipyards to
count on 100% perfection at all times. Enclosed spaces can also
contain confined space hazards and must be approached with suspicion
by workers as well.
On the other hand, a few commenters stated that OSHA should adopt
requirements similar to those in Sec. 1910.146 for evaluating confined
spaces (Ex. 11-2, 11-28, 11-33, 11-37, 11-38). They believed that
evaluating confined spaces for the types and extent of hazards is a
useful tool in any confined space program. Con-Space Communications,
Ltd. (Ex. 11-28), argued as follows:
Evaluation of a workplace to determine if it contains Confined
Spaces is the very first step that an employer must take in a
serious company wide entry program. An inventory of Confined Spaces
would be a permanent reference which, if updated on each entry,
could be a useful planning tool. In the event of a rescue, this
information would be invaluable especially if the Confined Space is
assigned a number along with a list of potential hazards associated
with it and special equipment needed for safe entry. Physical
attributes of the space could also be listed.
Section 1910.146 places confined spaces into two categories:
permit-required confined spaces and non-permit-required confined
spaces. The purpose of paragraphs (c)(1) and (c)(6) of Sec. 1910.146 is
to ensure that employers have properly identified confined spaces
posing hazards to entrants. The large class of confined spaces are
determined not to be permit entry spaces, are evaluated only as
required in these two paragraphs. Entry into such spaces is essentially
performed without reference to the permit entry procedures of
Sec. 1910.146 (unless the entrants bring a hazard into the space or
create one during entry operations).
By contrast, Subpart B treats all confined spaces and other spaces
that might contain a hazardous atmosphere equally. Initial testing and
inspection, followed by continuous ventilation and further testing, is
required of all these spaces to ensure the safety of employees working
within them. Because of these additional protection which Subpart B
requires on a routine bases, OSHA has determined that no separate,
formal evaluation requirements need be adopted in Subpart B.
Paragraph (e) of Sec. 1910.146 requires general industry employers
to institute a permit system for permit space entry operations. This
paragraph requires the employer to document, by means of a permit, the
completion of measures required for the safety of entrants. A permit
must be completed before entry is allowed into any permit space. The
notice, reopening the record on Subpart B, requested comments on
whether or not such permits should be required for entry into spaces
addressed by the shipyard standard.
The vast majority of commenters stated that a permit system as set
out in proposed Sec. 1910.146 was unnecessary for incorporation into
Subpart B (Ex. 11-1, 11-3, 11-6, 11-7, 11-9, 11-10, 11-11, 11-13, 11-
14, 11-15, 11-18, 11-19, 11-20, 11-22, 11-24, 11-25, 11-26, 11-29, 11-
31, 11-32, 11-35, 11-36, 11-39, 11-40, 11-41, 11-42, 11-44, 11-45, 11-
46, 11-47, 11-49, 11-50, 11-51). They argued that shipyard employee
safety would not be increased through the imposition of such a
requirement. Many also argued that the system in use in shipyards and
required by proposed Subpart B was the equivalent of a permit system
(Ex. 11-3, 11-6, 11-10, 11-11, 11-13, 11-14, 11-18, 11-20, 11-24, 11-
25, 11-26, 11-29, 11-32, 11-35, 11-36, 11-39, 11-41, 11-44, 11-49, 11-
50, 11-51). These commenters noted that the only spaces employees were
permitted to enter were those designated as ``Safe for Workers'' after
initial inspection and testing. For example, Moon Engineering Co., Inc.
(Ex. 11-14), stated:
Moon Engineering feels a permit system is necessary for any
confined space entry aboard vessels or any land-side operations. We
do not believe the proposed system described in 1910.146 is feasible
for shipboard applications.
The system, used successfully by Moon Engineering since the
early 1970's, is simple and applicable to our operation. The
individual shipyard shops communicate with the Safety Department on
a daily basis and advises what spaces they will be working the
following day. The Safety Department uses OSHA Competent Persons
and/or NFPA certified Marine Chemist to test all spaces due to be
worked for that particular day. The results of inspection are posted
at the entrance of the space and highlight inspection date, time,
tester and whether the space is SAFE FOR WORKERS/SAFE FOR HOT WORK
or whatever the status. This designation is consistent with the
language of the existing 1915 standard. This Log of Inspections is
available and it is the responsibility of all employees to view this
documentation prior to beginning their work. This system works and
has an excellent track record.
Other commenters believed that a permit system similar to that
required under Sec. 1910.146(e) should be imposed (Ex. 11-2, 11-28, 11-
30, 11-33, 11-34, 11-37). NIOSH (Ex. 11-33) explained this position as
follows:
NIOSH recommends that entry into a confined space be by permit
only. * * * The permit is an authorization and approval in writing
that specifies the location and type of work to be done, certifies
that all existing hazards have been evaluated by the qualified
person, and that necessary protective measures have been taken to
ensure the safety of each worker. The permit requirements will vary
by the nature of the space, the nature of the hazard, and the work
to be performed. All confined spaces should be evaluated by
appropriately trained and qualified persons to determine that the
space involved and the work to be performed will not present a
hazard to the worker; the permit system ensures that this evaluation
has been performed.
OSHA has not incorporated a requirement for a formal permit system
in the final revised subpart B. The Agency agrees with the commenters
who stated that subpart B provides an informal permit system that
contains evaluation mechanisms, tracking criteria, and control measures
that are as protective as the formal one required under
Sec. 1910.146(e). Confined and enclosed spaces on vessels and vessel
sections that might contain a dangerous atmosphere are certified ``Safe
for Workers'' when they are safe for employees to enter, and entry is
not permitted until that certification. Shipyard employees are also
trained to remain outside of any space not so certified. Additionally,
under Sec. 1915.14(a)(1), a Marine Chemist (or, with certain
restrictions, a Coast Guard authorized person) must inspect and test
the space and certify its safety before work in the most hazardous
conditions can begin. Furthermore, OSHA believes that imposing a
Sec. 1910.146-type permit system for shipyard work because of the
content and placement of the permits could undermine the effectiveness
of the Marine Chemist's certificate, which is the primary vehicle for
certifying certain spaces ``Safe for Hot Work.''
Paragraph (d)(6) of Sec. 1910.146 requires at least one attendant
outside a permit space while entry operations are underway. This
attendant monitors entrants and conditions inside and outside the
space, prevents the entry of unauthorized persons, and summons rescue
services in an emergency. The notice reopening the record requested
comments on whether attendants should be required for ``permit-
required'' confined spaces covered by Subpart B.
Nearly every commenter stated that attendants were unnecessary for
the safety of employees performing work in dangerous atmospheres or in
confined or enclosed spaces in shipyards (Ex. 11-1, 11-2, 11-3, 11-6,
11-7, 11-9, 11-10, 11-11, 11-13, 11-14, 11-15, 11-18, 11-19, 11-20, 11-
22, 11-24, 11-25, 11-26, 11-29, 11-30, 11-31, 11-33, 11-34, 11-36, 11-
37, 11-38, 11-39, 11-40, 11-41, 11-42, 11-43, 11-44, 11-45, 11-46, 11-
49, 11-50, 11-51). They argued that the procedures required by Subpart
B would make spaces safe for workers and that, as a result, there would
be no need for an attendant. Many of these commenters also contended
that the cost of providing attendants for every entry, if such would be
necessary, would be prohibitive (Ex. 11-1, 11-3, 11-11, 11-13, 11-25,
11-29, 11-43, 11-44, 11-49, 11-50).
One commenter supported a requirement for an attendant to monitor
any confined space that was designated as a permit space (Ex. 11-28).
Other commenters, who opposed a general requirement for attendants,
acknowledged that there is a need for an attendant to monitor spaces
posing unusual hazards, such as entry into IDLH atmospheres, entry by
an employee working alone, and non-routine entry (Ex. 11-2, 11-3, 11-7,
11-10, 11-13, 11-14, 11-15, 11-18, 11-19, 11-20, 11-24, 11-25, 11-29,
11-30, 11-31, 11-33, 11-34, 11-41, 11-51). The statement of the NFPA
(Ex. 11-19) typified these comments, as follows:
NFPA believes that the permit described in proposed
1910.146(b)(9) contains information that is not needed by entrants
into confined spaces and could be confusing. NFPA believes that such
a permit would not be feasible for confined spaces in the vessel
construction and repair industry, for either vessel or shore-side
activities. The proposed 1910.146 permit systems, described in
1910.146(d) establishes specifications for a permit system designed
to satisfy several problems with one form.
Accident statistics indicate that workers do not recognize the
dangers of confined spaces. Statistics also point out that workers
involved in accidents have commonly been authorized to enter the
space (source (NIOSH FACE study). Additionally, a high percentage of
fatalities in confined space incidents are personnel attempting to
effect worker rescue. OSHA, with this permit system, has attempted
to alert the worker (entrant), establish a control point (person
authorizing entry), and ensure safe rescue attempts are performed by
specifying relevant information on one form.
Throughout the industry, shipyards have adapted entry permit
systems to make the system simple. Frequently, shipyards have
incorporated a color-coded tag and sign system. The foundation for
the various shipyard systems is linked to the Marine Chemist
Certificate and Shipyard Competent Person Inspection Form (OSHA 74
Log of Inspections and Tests). This allows individual shipyards to
tailor their system to the type of confined spaces and work
performed at their yard. In the larger shipyards, the permit and
sign system has been incorporated throughout the yard, including
both vessel and shore-side work sites.
NFPA believes that a specification requiring a permit system as
described in 1910.146 would be excessive for many shipyards since
the nature of the spaces and hazards is so variable. NFPA also
believes that such a requirement would not provide any increase in
the level of safety. The key to the effectiveness of any permit
system will be its simplicity and the training of workers on its
implementation. The 1910.146 proposed system introduces increased
confusion for many of the shipyard applications and will not
necessarily result in increased safety. OSHA needs to recognize that
the shipyard industry currently uses a dual permit system for
documenting initial and follow-up conditions for its vessel confined
space activities. The advantage of this system has been the lack of
specification, thus enabling individual shipyards to adapt their
systems with the performance requirements of current proposed
Subpart B. This approach would work in land-side confined spaces
within the shipyard, as well. Use of one system throughout the
shipyard facilitates the training of all workers.
The final revised Subpart B does not require the presence of an
attendant for confined and enclosed spaces or for work in dangerous
atmospheres. OSHA notes that the purpose of Subpart B is to ensure that
a space is completely safe to enter and work in. In this regard,
Sec. 1910.146(c)(5) of the general industry generic confined space
standard sets detailed requirements for atmospheric testing and
ventilation for some spaces, and also, recognizes that there are some
permit spaces which can be made safe for entry without the need for
written permits or attendants. Final revised Subpart B provides
equivalent requirements for confined and enclosed spaces and for work
in dangerous atmospheres in shipyards. If the testing requirements
contained in Subpart B do not indicate a safe atmosphere, then entry is
restricted to emergencies and periods of short duration to accomplish
ventilation and additional precautions are required (such as posting
the space as Not Safe for Workers, continuous monitoring, and the
absence of ignition sources), by Sec. 1915.152 (such as air line
respirators, attendants and life lines) and by Sec. 1915.94 (frequent
checks of employees working in a confined or enclosed space or alone in
an isolated location). Once the hazard is removed and the space is safe
for entry, the employer is required to test frequently to monitor and
maintain the space as safe for workers. As a result, OSHA does not
believe it is necessary to require attendants in Subpart B as well.
Paragraph (c)(2) of Sec. 1910.146 requires general industry
employers to post signs or use other effective means of informing
employees about the existence and location of and the danger posed by
permit spaces; paragraphs (c)(3) and (d)(1) require general industry
employers to take measures to prevent unauthorized entry into permit
spaces; and paragraph (i)(8) requires attendants to take measures to
keep unauthorized persons out of permit spaces. The notice reopening
the record requested comments on whether or not shipyard employers
should be required to take measures, such as those proposed in
Sec. 1910.146, to prevent unauthorized entry into work areas covered by
Subpart B.
The commenters agreed that the systems being employed by the
shipyard industry have been effective at preventing unauthorized access
under the previous Subpart B (Ex. 11-3, 11-6, 11-7, 11-10, 11-11, 11-
13, 11-14, 11-15, 11-18, 11-19, 11-20, 11-24, 11-25, 11-26, 11-31, 11-
32, 11-39, 11-41, 11-42, 11-43, 11-44, 11-45, 11-49, 11-50). They
contended that all spaces are made safe before entry and that the
posting and training requirements proposed in Subpart B and outlined in
the notice reopening the record would keep employees from entering
unsafe areas. The Jonathan Corporation (Ex. 11-18) presented these
arguments as follows:
As a result of routine training, our employees are cognizant of
the fact that only spaces which have been tested and posted as being
SAFE FOR WORKERS are cleared for entry. This system has served our
company very well. This proposal does not recognize our daily
involvement with confined spaces.
Mr. Joseph J. Ocken (Ex. 11-31) agreed, stating:
Any expectation that every confined space (or enclosed space
presenting confined space hazards) will somehow be properly
barricaded courts disaster. My Coast Guard training emphasizes a
straight forward safe work practice: ANY SPACE presenting confined
space hazards must be RECENTLY tested by THOROUGHLY trained and
equipped individuals and have appropriate ENGINEERING CONTROLS
applied BEFORE ENTRY. Any other space, REGARDLESS OF BARRIERS, is
treated as UNSAFE.
OSHA concurs with these comments. The revised Subpart B protects
employees from ``unauthorized'' entry through the use of several
protective techniques. First, Sec. 1915.12(d) requires employees to be
trained to recognize the characteristics of confined spaces and the
hazards involved. They are also required to be trained to perform their
duties safely (Sec. 1915.12(d)) and to understand all warning signs and
labels (Sec. 1915.16(a)). Second, confined spaces and spaces containing
dangerous atmospheres must be tested and found safe before entry under
paragraphs (a), (b), and (c) of Sec. 1915.12. Third, under these same
paragraphs, spaces found not to be safe for entry are labeled ``Not
Safe for Workers''. Under the unique conditions of shipyard employment,
these measures are effective at preventing unauthorized employees from
entering spaces containing dangerous atmospheres. To illustrate, when a
space is marked ``Not Safe for Workers,'' the only authorized entrants
are those who are entering for emergencies or for short durations to
accomplish ventilation to make the space safe. It is not until the
space is retested and certified as ``Safe for Workers'' that employees
are allowed to do work in the space.
Under the general industry standard, only a confined space
containing a hazard that may expose an employee to the risk of death,
incapacitation, or impairment of ability to self-rescue is deemed to be
a permit space, requiring the adoption of the protective measures set
out in Sec. 1910.146. The general industry standard addresses hazards
that are exacerbated by the lack of adequate means of access and egress
and by the enclosing nature of the space. By contrast, Subpart B treats
all confined and enclosed spaces and other dangerous atmospheres that
could present an atmospheric hazard as having this potential, and
requires protective measures before entry takes place. In the shipyard
context, this approach provides an effective means of protecting
employees who must enter confined and enclosed spaces and other
dangerous atmospheres.
Section 1910.146 also requires employers to consider non-
atmospheric hazards, such as engulfment and internal configuration of
the space, in determining whether or not a confined space is a permit
space. The proposed revision of Subpart B did not address non-
atmospheric issues. Because OSHA was considering the expansion of
Subpart B to land-side confined spaces in lieu of applying
Sec. 1910.146, the notice reopening the record requested comments on
whether or not Subpart B, as expanded, would adequately address non-
atmospheric hazards that may be encountered in confined space work
(Specific Issue B-1, Question J).
The vast majority of commenters agreed that Subpart B, in
combination with other requirements in part 1915, adequately protected
employees (Ex. 11-2, 11-3, 11-6, 11-9, 11-13, 11-14, 11-15, 11-18, 11-
19, 11-20, 11-24, 11-25, 11-26, 11-28, 11-29, 11-30, 11-31, 11-35, 11-
37, 11-39, 11-40, 11-41, 11-45, 11-47, 11-49, 11-50). These commenters
contended that non-atmospheric hazards are readily identified, are
covered by other part 1915 standards, and are the responsibility of
line supervisors and employees. The statement of Ingalls Shipbuilding
(Ex. 11-30) was typical of these comments:
Ingalls believes that such non-atmospheric hazards are
adequately addressed by their current respective standards.
Ingalls further believes the foreman or supervisor of the
workers is responsible for the above listed non-atmospheric hazards.
Subsequent to an 'inspection by the competent person, non-
atmospheric hazards may develop as a result of ongoing work (for
example, a welder installing his welding leads which create a
tripping hazard). The foreman or supervisor is responsible for the
health and safety of his employees and for the actions of his
employees on a continual basis throughout the workday. Non-
atmospheric hazards are obvious without the need for special
instrumentation, whereas, the tests performed by the competent
person are used to detect unseen atmospheric hazards using
specialized instrumentation.
The Department of the Navy (Ex. 11-30) noted that while Subpart B
does not address non-atmospheric hazards, it should not be amended to
address such hazards:
As proposed, Subpart B does not address other dangers in
confined spaces. However, the dangers from slips, falls,
electricity, machine guarding etc. are not unique to or necessarily
intensified in confined spaces. Precautions to guard against general
non-atmospheric shipyard hazards should be specified for the entire
shipyard (all workplaces). Therefore, it is recommended that Subpart
B not be expanded to include general safety hazards; rather, these
should be covered elsewhere in 29 CFR 1915 (e.g., Subpart E/Access
and Egress, Subpart F/General Working Conditions, and/or Subpart M/
Fall Protection).
OSHA does believe that a confined or enclosed space can exacerbate
the risk faced by an employee working in a confined space containing
serious non-atmospheric hazards. If an employee is injured in a
confined space the limited means of access and egress makes emergency
medical assistance problematic. For this reason, OSHA adopted language
in Sec. 1910.146 for general industry so as to define permit-required
confined space ``in the broadest possible terms'' so that employers are
required to protect affected employees from any serious hazards which
may be confronted in a permit space [58 FR 4478-4479].''
The Agency believes that shipyard employees will be adequately
protected under revised Subpart B without incorporating additional
requirements directed towards non-atmospheric hazards. As part of the
pre-entry test, the competent person is required to make a visual
inspection of the confined or enclosed space. At this time, they can
alert the employer to non-atmospheric hazards that are addressed by
other standards. For further information, see the discussion of visual
inspection in the preamble to Sec. 1915.12 below.
The notice reopening the record on Subpart B also requested
comments on whether or not OSHA should adopt various provisions from
proposed Sec. 1910.146 that SESAC had recommended for inclusion in
revised Subpart B. These provisions included those on training, rescue,
and exchanging information between employers. The summary and
explanation of Sec. 1915.12 discusses comments received on these
provisions. Additionally, OSHA requested comments on whether any other
requirements from proposed Sec. 1910.146 would be appropriate for
inclusion in revised Subpart B. No one suggested the adoption of any
proposed Sec. 1910.146 provisions other than those relating to
attendants, permits, and unauthorized entry discussed earlier.
Paragraph (b) of Sec. 1915.11 sets definitions for revised Subpart
B. These definitions, derived in large part from NFPA 306, are intended
to facilitate compliance with the revised standard.
Previous Subpart B contains no definitions. The few definitions
relating to the previous subpart are contained in Sec. 1915.4, which
defines the following Subpart B related terms: hazardous substance,
competent person, confined space, enclosed space, hot work, and cold
work.
In Sec. 1915.11(b), the NPRM proposed to add definitions
specifically applicable to revised Subpart B. This paragraph in the
proposed rule included the terms ``competent person'' and ``hot work,''
which as noted previously, are also defined in existing Sec. 1915.4.
The NPRM also raised issues regarding the definitions of ``inert or
inerted atmospheres,'' ``Marine Chemist,'' and ``Not Safe for
Workers.''
The definitions contained in revised Subpart B are discussed in the
following summary and explanation of Sec. 1915.11(b). This discussion
provides a brief explanation of each defined term, justifies any
differences between the existing or proposed definitions and those
contained in the final rule, and discusses comments received regarding
the three terms that were raised as issues in the NPRM (no substantive
comments were received on any other terms proposed in Sec. 1915.11(b)).
``Adjacent spaces'' means spaces bordering another space in all
directions. The wording of the definition of this term has been revised
editorially from the definition in the proposal for consistency with
NFPA 306. Additionally, the final rule defines the term ``adjacent
spaces,'' whereas the proposal defined the term ``adjacent compartments
or spaces,'' because the final rule does use the term ``adjacent
compartments''.
The final rule includes a definition of the term ``Assistant
Secretary'', which means the Assistant Secretary of Labor for
Occupational Safety and Health or his or her designated representative.
This term is used in revised Subpart B, so OSHA has adopted a
definition based on Sec. 1910.2.
OSHA has not carried forward into the final rule the proposed
definition of ``bulk''. The Agency believes that a definition of this
term is not necessary to the meaning of the standard.
``Certified Industrial Hygienist'' (CIH) means an industrial
hygienist certified by the American Board of Industrial Hygiene. This
definition is unchanged from the proposal.
A ``Coast Guard authorized person'' is one who meets the U.S. Coast
Guard regulations concerning persons designated to perform the
functions of a Marine Chemist when a Marine Chemist is not reasonably
available. The definition in the final rule is essentially the same as
that contained in proposed Sec. 1915.11(b); however, substantive
requirements proposed in that definition have not been carried forward,
as they are inappropriate for use in a definition.
OSHA has not carried forward into the final rule the proposed
definition of ``competent person''. As noted earlier, this term is
defined in Sec. 1915.4, and this definition is appropriate for
application to revised Subpart B.
``Dangerous atmosphere'' means an atmosphere that may expose
employees to the risk of death, incapacitation, impairment of ability
to self-rescue (i.e., escape unaided from a confined or enclosed
space), injury, or acute illness. Although no definition of this term
was proposed, the Agency believes that it is essential for employers
and employees to know what a dangerous atmosphere is in the application
of revised Subpart B.
The final rule includes a definition of the term ``Director'',
which means the Director of the National Institute for Occupational
Safety and Health or his or her designated representative. This term is
used in revised Subpart B, so OSHA has adopted a definition based on
Section 3 of the OSH Act.
The term ``entry'' refers to the act by which a person passes
through an opening into a space and to the work performed in that
space. Entry is considered to have occurred as soon as any part of the
entrant's body breaks the plane of an opening into the space. This term
was not included in the proposed revision of Subpart B, but OSHA
believes that its inclusion is necessary for clarity. The definition
has been taken from Sec. 1910.146(b).
The term ``Enter with Restrictions'' denotes a space where entry is
only permitted under specified conditions of engineering controls,
personal protective equipment, clothing, and time. Although this term
was not defined in the proposal, the definition of this term has been
included in the final rule to help clarify when entry is permitted and
when it is prohibited.
In the NPRM, the term ``Not Safe for Workers'' was used to describe
compartments or spaces that do not meet the minimum safety criteria
necessary to permit unrestricted entry. The term was used to describe
either of two situations that occur. In the first, the space was not
safe for workers to enter unless personal protective equipment was worn
or unless the length of time of employee exposure was limited. In the
second, the space was not safe for entry under any circumstances,
regardless of whether personal protective equipment was worn. To
address this seeming contradiction, OSHA requested comments on the
issue of whether or not a separate category of ``Safe with
Restrictions'' should be included in proposed Subpart B.
Three commenters opposed the adoption of an additional category of
spaces (Ex. 6-4, 6-5, 6-8). They argued that the term ``Safe with
Restrictions'' might not be understood by all workers and that the term
``Not Safe for Workers'' was not only more appropriate, but safer as
well. For example, Sound Testing, Inc. (Ex. 6-8), stated:
If everyone, or even if most people, in the shipyards wore
respirators, I would see ``safe with restrictions'' as a primary
designation. But, that's not the case. Moreover, some one third of
shipyard workers are reputed to be functionally illiterate. Thus,
``Safe with Restrictions'' needlessly complicates certificate
language. In the most simple terms, a tank is either safe or not
safe, and the workman deserves to be told straightforwardly which is
the case.
Other commenters supported the additional designation (Ex. 6-10, 6-
13, 6-15, 6-18, 6-21, 6-22, 6-23, 6-24, 6-27, 6-28, 6-33, 6-34, 6-37,
6-38). They believed that the extra designation would recognize
existing safe work practices under the OSHA standard. For example, the
U.S. Department of Transportation (Ex. 6-13) stated:
Engineering controls are not always capable of reducing confined
space hazards to ``safe'' levels. By recognizing and addressing the
existing use of certificates with restrictions, additional
protection may be realized. Particular restrictions will be placed
on a space after consideration by the Marine Chemist and an
employer's representative.
Such certificates should not be issued for convenience or for
the purpose of avoiding the use of preferred control measures. In
addressing this practice under Part 1915, OSHA should specify that
entering such spaces is only allowed when preferred engineering
controls are used to the greatest extent feasible and found to be
inadequate.
Some of these rulemaking participants believed that the term
``Enter with Restrictions'' was a more appropriate description of the
type of location involved (Ex. 6-10, 6-21, 6-22, 6-23, 6-24, 6-27, 6-
28, 6-33, 6-34, 6-37, 6-38). NFPA (Ex. 6-10) stated their reasoning
behind this suggested term, as follows:
NFPA supports the addition of some provision for ``restricted
entry''. NFPA does not support the use of the word ``safe'' in this
case since it may be misconstrued and it would be inconsistent with
the ``Enter With Restrictions'' designation in NFPA 306.
OSHA agrees with the commenters who supported the use of the term
``Enter with Restrictions''. The Agency believes that this term better
describes the intent of requirements that are intended to limit rather
than strictly prohibit employee entry under all conditions. For
example, Sec. 1915.12(c)(3) recognizes that a Marine Chemist or a
Certified industrial hygienist may designate a space as ``Enter with
Restrictions'' and may provide a list of protective measures to be
taken before entry is allowed. Additionally, this term is consistent
with the terminology used in NFPA 306, with which most shipyard
employers are familiar and with which they are complying. For these
reasons, OSHA is incorporating this term in revised Subpart B wherever
entry is permitted under certain conditions and is using the term ``Not
Safe for Workers'' wherever entry is strictly forbidden.
``Hot work'' means any activity involving fire- or heat-producing
operations, such as riveting, welding, and burning. The definition of
this term also indicates that grinding, drilling, abrasive blasting,
and similar spark-producing operations are also considered to be hot
work unless they are isolated from atmospheres containing a
concentration of any flammable or combustible substance greater than 10
percent of the lower explosive limit of that substance. While the
definition in the final rule is substantially the same as that
contained in the proposed standard, it has been editorially revised for
clarity. It should be noted that the definition of ``hot work'' in
revised Subpart B will be applied to Subpart B whereas the definition
of the same term in Sec. 1915.4 applies to the rest of part 1915.
``Immediately dangerous to life or health''3 (IDLH) means an
atmosphere that poses an immediate threat to life or that is likely to
result in acute or immediate severe health effects. This definition has
been adopted without substantive change from the proposal.
---------------------------------------------------------------------------
\3\The definition of ``immediately dangerous to life or health''
in Sec. 1910.146 reads as follows:
Immediately dangerous to life or health (IDLH) means any
condition that poses an immediate or delayed threat to life or that
would cause irreversible adverse health effects or that would
interfere with an individual's ability to escape unaided from a
permit space.
---------------------------------------------------------------------------
``Inert or inerted atmosphere'' means an atmospheric condition in
which:
(1) The oxygen content of the atmosphere is maintained at a level
less than or equal to 8 percent by volume or at a level of 50 percent
of the amount required to support combustion, whichever is lower, or
(2) The space is flooded with water and the vapor concentration of
flammable or combustible materials in the free space above the water
line is less than 10 percent of the lower explosive limit for the
material. This definition has been adopted without substantive change
from the proposal.
In the NPRM, OSHA raised the issue of whether or not the proposed
definition of ``inert or inerted atmosphere'' was appropriate,
especially with respect to the maximum permissible level of oxygen. The
Agency asked for guidance on whether or not specific oxygen levels for
various substances should be published along with the rule.
The persons who commented on this issue felt that OSHA should not
publish specific levels in the final rule (Ex. 6-10, 6-18, 6-23, 6-24,
6-27, 6-28, 6-33, 6-34). They argued that since a Marine Chemist would
be the person authorizing and monitoring the inerting of atmospheres
and since Marine Chemists are thoroughly familiar with the selection of
appropriate procedures involved, specifying oxygen levels in the OSHA
standard was unnecessary. Endorsing this view, NFPA (Ex. 6-10) stated:
Inerting in the marine industry is overseen by Marine Chemists
in accordance with the requirements of the ``Control of Gas Hazards
on Vessels--NFPA 306 (1988).'' The provisions for inerting as
contained in NFPA 306, 2-3.7(a), are based upon the industry
accepted practice for inerting. It takes into account the
theoretical lower limit for the amount of oxygen to support
combustion, which is approximately 11% by volume for most petroleum
products. The procedure specifies either reducing the oxygen content
to 8% by volume or 50% of the amount to support combustion,
whichever is less. In practice, because the value of 50% of the
amount to support combustion is usually less than 8% by volume, an
even greater margin of safety is achieved. The minimum oxygen for
combustion values are contained in Appendix B, ``Explosion
Prevention Systems--NFPA 69 (1986)''. NFPA 306 requires in 2-3.7(a),
(c) that the selection and disposal of the inert gas medium be
acceptable to the Marine Chemist who provides specific instructions
on his/her Marine Chemist Certificate.
NFPA supports the addition of the definition for inerting and
the levels as specified in the definition since these levels are
industry accepted and provide for an adequate level of safety when
administered by a Marine Chemist in accordance with NFPA 306.
The Marine Chemist Association, Inc. (Ex. 6-34), agreed stating:
The Marine Chemist Association feels that inerting is not a
procedure free of potential hazards and that inerting for hot work
should only be attempted with the proper skill to determine each of
the above mentioned factors. If OSHA provides only partial details
of these factors, it may lead to unauthorized personnel attempting
the procedure outside current regulatory requirement, and could
possibly result in the generation of hazardous situations.
For the reasons stated by NFPA and the Marine Chemist Association,
OSHA is not specifying the precise levels of oxygen acceptable under
the definition of ``inert or inerted atmosphere'', either directly in
the definition or in an appendix. Under Sec. 1915.14(a), an atmosphere
to be inerted must be tested and certified by a Marine Chemist or a
U.S. Coast Guard authorized person, who would be thoroughly familiar
with the proper techniques involved. The Agency fully concurs with the
Marine Chemist Association that setting out these levels within the
standard itself might encourage unqualified persons to undertake the
inerting of a hazardous atmosphere, possibly leading to a severe
accident.
``Labeled'' means identified with a sign, placard, or other form of
written communication that informs all employees of the status or
condition of the work space to which it is attached. This term was not
included in the proposed revision of Subpart B, but OSHA believes that
its inclusion is necessary for clarity.
``Lower explosive limit'' (LEL) means the minimum concentration of
vapor below which propagation of a flame does not occur in the presence
of an ignition source. This definition is unchanged from the proposal.
``Marine Chemist'' means an individual who possesses a current
Marine Chemist Certificate issued by the National Fire Protection
Association. This definition is substantially the same as the one in
the proposal.
In the NPRM, OSHA requested comments related to the definition of
``Marine Chemist''. Although some comments were received on this
subject, they all related to the issue of whether or not anyone else
could perform the duties required of a Marine Chemist. These comments
are discussed under the summary and explanation of Secs. 1915.12(c)(3)
and 1915.14(a)(1), later in this preamble.
``Nationally Recognized Testing laboratory'' (NRTL) means a
laboratory recognized by OSHA as meeting the provisions of Appendix A
of Sec. 1910.7. In the previous standard, OSHA referred to
``Underwriters Laboratories'' as one of the organizations that could
approve lamps for use in Class I, Group D atmospheres. Since OSHA has
promulgated the NRTL standard, laboratories meeting that standard are
the appropriate organizations to approve such lamps.
``Not Safe for Hot Work'' denotes a space where hot work may not be
performed. This definition is substantially the same as the one in the
proposal.
``Not Safe for Workers'' denotes a space that employees may not
enter. The proposed definition of ``Not Safe for Workers'' contained
criteria to be used to determine whether or not a space was safe for
entry. OSHA has not carried these criteria forward into the definition
of this term in the final rule. The same criteria also appeared under
the proposed definition of ``Safe for Workers''. OSHA believes that
removing the redundancy will help clarify revised Subpart B. (See the
summary and explanation of the definition of ``Enter with
Restrictions'', earlier in this preamble, for additional discussion of
issues regarding the use of the term ``Not Safe for Workers''.)
``Oxygen-deficient atmosphere'' means an atmosphere having an
oxygen concentration of less than 19.5 percent by volume. ``Oxygen-
enriched atmosphere'' means an atmosphere that contains 22.0 percent or
more oxygen by volume. These two definitions have been carried forward
from the proposal without substantive change.
``Safe for Hot Work'' denotes a space that meets the following
criteria:
(1) The atmosphere is not oxygen-enriched;
(2) The concentration of flammable vapors in the atmosphere is less
than 10 percent of the LEL;
(3) Residues or materials within the space, under existing
atmospheric conditions in the presence of hot work and while maintained
as directed by the Marine Chemist or competent person, are not capable
of producing a higher concentration of oxygen or flammable vapors than
permitted under the first two criteria; and
(4) All adjacent spaces have been cleaned or inerted or otherwise
treated sufficiently to prevent the spread of fire.
The definition in the final rule is substantively the same as the
corresponding definition in the proposal; however, the language has
been improved for clarity.
``Safe for Workers'' denotes a space that meets the following
criteria:
(1) The atmosphere is neither oxygen-deficient nor oxygen-
enriched;
(2) The concentration of flammable vapors is below 10 percent of
the LEL;
(3) Any toxic materials associated with cargo, fuel, tank coatings,
inerting mediums, or fumigants are within permissible concentrations at
the time of inspection; and
(4) Residues or materials associated with the work authorized by
the Marine Chemist, Certified Industrial Hygienist, or competent person
will not produce uncontrolled toxic materials under existing
atmospheric conditions while maintained as directed.
The definition in the final rule is substantively the same as the
corresponding definition in the proposal, except that the language has
been improved for clarity and the ``exception'' in the proposal
regarding the concentration of flammable vapors has not been carried
forward. OSHA believes that this exception, which is recognized in
Sec. 1915.13(b)(6) in the final rule, more properly falls under the new
term ``Enter with Restrictions''.
``Space'' means an area on a vessel, vessel section or within a
shipyard such as, but not limited to, a cargo tank or hold, pump or
engine room, storage locker, tank containing flammable or combustible
liquids, gases, or solids; a room within a building, crawl space,
tunnel, and accessway. Although no definition of this word was
proposed, its meaning is essential to the content of revised Subpart B.
The final rule uses the word ``space'' broadly to encompass all the
different types of areas in a shipyard where dangerous atmospheres
might be found. The definition of this word in the final rule is
intended to convey this meaning to employers and employees who must
comply with the standard.
``Upper explosive limit'' (UEL) means the maximum concentration of
flammable vapor above which propagation of flame does not occur on
contact with a source of ignition. This definition is unchanged from
the proposal.
``Vessel section'' means a subassembly, module, or other component
of a vessel being built, repaired, or broken. This definition is
unchanged from the proposal.
``Visual inspection'' means the physical survey of the space,
surroundings and contents by the competent person, Marine Chemist, or
Certified Industrial Hygienist to identify hazards such as, but not
limited to, restricted accessibility, residues, unguarded machinery,
and piping or electrical systems that could create or enhance hazards.
This term is defined in the final rule to clarify what is required of
the person preforming the inspection.
OSHA has not carried forward into the final rule the proposed
definition of ``weather deck''. The Agency believes that a definition
of this term is not necessary to the meaning of the standard.
2. Sec. 1915.12 Precaution Before Entering Spaces.
OSHA has made several significant changes to Sec. 1915.12. First,
OSHA has reformatted this section to address more appropriately the
order of atmospheric testing to be conducted by competent persons when
determining hazards within confined and enclosed spaces and other
dangerous atmospheres prior to employee entry. Second, OSHA has raised
the minimum level of oxygen for entry and addressed oxygen-enriched
atmospheres in this section. Third, the Agency has specified when and
under what conditions an employee may enter a space that has been found
``not safe for workers.'' Finally, OSHA has added new paragraphs to
this section to address: (1) The training of individuals who enter
dangerous and confined spaces (paragraph (d)), (2) rescue teams
(paragraph (e)), and (3) the exchange of hazard information between
employers (paragraph (f)).
OSHA is also making the requirement to visually inspect each space
explicit in this final standard. In the NPRM, comments were solicited
on whether the shipyard competent person should be required to conduct
a physical examination of the tank and pipelines when making an
inspection. Many commenters supported OSHA's decision (Ex. 6-4, 6-10,
6-12, 6-13, 6-15, 6-18, 6-24, 6-28, 6-31, 6-33, 6-34). For example,
NFPA (Ex. 6-10) stated:
NFPA strongly supports the inclusion of a requirement that in
addition to atmospheric testing the shipyard competent person should
also be required to conduct a physical examination of the space and
associated pipelines. NFPA 306, 2-1 requires the Marine Chemist to
conduct a physical inspection and to conduct test within the space.
For high flash point, low vapor pressure products such as diesel, a
test for flammable or combustible vapors is not sufficient, since at
atmospheric temperatures there are not enough vapors being evolved
for the combustible gas indicator to detect. It is essential that
physical inspections be conducted.
OSHA has decided that a visual inspection is a crucial element in
ascertaining that confined and enclosed spaces and other dangerous
atmospheres are safe for entrants. Based on the visual inspection and
other information available to the employer about non-atmospheric
hazards, the employer is required to take specific actions as required
by other subparts. For example, precautions to be taken for electrical
hazards are covered by Sec. 1915.181 (shipboard) and Sec. 1910.147
(shipboard) and machinery is addressed by Sec. 1915.164 (for vessels)
and Sec. 1910.212 (land-side).
In paragraphs (a), (b), and (c) of final Sec. 1915.12, OSHA is
requiring atmospheres to be tested for oxygen content first,
flammability second, and toxicity third. The format of the previous
standard implied that atmospheres be tested for flammability first,
toxicity second, and oxygen deficiency third.
Even before the revision of Subpart B was proposed, Newport News
Shipbuilding and Harbor Testing Laboratory commented that the proper
sequence is testing for oxygen, then flammability, then toxicity (53 FR
48096). To address this problem, OSHA proposed to present the testing
requirements in the proper sequence. However, as noted in the NPRM, the
proposed rule would not have required testing in any particular order.
OSHA believes that it is important for atmospheric testing to be
conducted in the proper sequence. The Agency reached the same
conclusion in the rulemaking on Sec. 1910.146, which adopted a rule
requiring atmospheric testing in the correct order in that final rule,
for the following reasons:
A test for oxygen must be performed first because most
combustible gas meters are oxygen dependent and will not provide
reliable readings in an oxygen deficient atmosphere. In fact, the
Johnson Wax Company (Ex. 14-222) stated that ``there is [a] specific
(sensor dependent) oxygen level below which the combustible gas
sensor will not respond at all [emphasis was supplied in
original].'' Combustible gases are tested for next because the
threat of fire or explosion is both more immediate and more life
threatening, in most cases, than exposure to toxic gases. [53 FR
48096]
This reasoning applies to the revision of Subpart B as well.
Atmospheric testing in confined and enclosed spaces and other dangerous
atmospheres in shipyards is basically the same as atmospheric testing
in general industry permit spaces. Therefore, the revision of
Sec. 1915.12 requires shipyard employers to perform atmospheric testing
in the following sequence: oxygen content, flammability, toxicity.
In paragraph (a)(1), OSHA continues the requirement (in
Sec. 1915.12(c)(1)) for competent persons to test atmospheres of
specific spaces that may contain oxygen-deficient atmospheres. These
spaces are listed specifically as follows:
(1) Spaces that have been sealed,
(2) Spaces and adjacent spaces that contain or have contained
combustible or flammable liquids or gases,
(3) Spaces and adjacent spaces that contain or have contained
liquids, gases, or solids that are toxic, corrosive, or irritant,
(4) Spaces that have been fumigated, and
(5) Spaces containing materials or residues that could create an
oxygen-deficient atmosphere. This final rule adopts the language from
the NPRM to require competent persons to test atmospheres of these
spaces for ``oxygen content'' rather than just ``oxygen deficiency.''
Paragraph (a)(2) of final Sec. 1915.12 addresses the maximum
permissible oxygen concentration within confined and enclosed spaces
and other dangerous atmospheres. Therefore, the testing to be performed
must be for content rather than for oxygen deficiency alone. (The
rationale for adopting a requirement for maximum permissible oxygen
exposure is discussed under the summary and explanation of final
Sec. 1915.12(a)(2).)
In the previous rule Sec. 1915.12(c)(1) required tests to be
conducted ``[b]efore employees are initially permitted to enter'' any
of the regulated spaces. Paragraphs (b)(1) and (c)(1) contain this
identical language for pre-entry testing for flammable gases and vapors
and for toxic substances. The NPRM used the language ``prior to initial
entry'' in proposed Sec. 1915.12(a)(1) and the language ``prior to
entry'' in proposed Sec. 1915.12 (b)(1) and (c)(1). The preamble to the
proposal noted that questions had arisen regarding what was intended by
``initial entry'' in the previous standard and that the Coast Guard had
interpreted the OSHA standard to require retesting if more than 24
hours had elapsed since the previous testing. The NPRM raised the
issues of whether ``initial entry'' should be defined in Subpart B and,
if so, what that definition should be.
Several commenters believed that OSHA should not specify the
maximum time permitted to elapse before additional testing is required
(Ex. 6-3, 6-6, 6-8, 6-12, 6-18). They argued that the length of time
between testing and entry could vary depending on the space and the
possible hazards involved. For example, Mr. Charles K. Klein,
representing Newport News Shipbuilding, stated:
OSHA should not specify a time limit regarding re-certification
of spaces after ``initial entry'' certification has been given. The
Coast Guard's interpretation for re-certification is based on a 24-
hour lapse period since a tank has been previously determined safe
for entry. However, we feel that as long as conditions have not
changed since the space was certified for ``initial entry'',
additional certification is not required. Periods longer than 24
hours may be appropriate in cases where a confined space does not
contain a hazardous substance, is not connected to a system which
contains a hazardous substance and has not been closed except for an
air or hydrostatic test. However, certain evolutions involving
hazardous substances in or near confined spaces may require testing
on a shift basis or more often. A time limit imposed on ``initial
entry'' is unnecessarily restrictive and reduces the employer's
flexibility in providing a safe and healthful work environment in an
effective, cost-efficient manner. [Ex. 6-6]
Two commenters maintained that the certificate issued by a Marine
Chemist would control whether or not a space had to be retested beyond
a certain period (Ex. 6-8, 6-18). They believed that retesting was
unnecessary unless conditions changed or unless the Marine Chemist's
certificate required it. Sound Testing, Inc., expressed this position
as follows:
It should be made clear that a Marine Chemist's certificate is
voided not by the passage of time, but by the change of conditions.
Therefore, if a competent person can ascertain that conditions have
not drastically changed, the chemist's certificate remains in force,
regardless of how long between competent person inspections. The
corollary of this is that there should be no explicit time limit on
the chemist's certificate unless the chemist himself sees a reason
for such a limit. [Ex. 6-8]
Other rulemaking participants argued that the regulation should
clarify what constitutes initial entry or when additional testing is
required before the first entry into the space (Ex. 6-4, 6-5, 6-10, 6-
13, 6-21, 6-22, 6-24, 6-27, 6-28, 6-33, 6-34, 6-37, 6-38). Several of
these commenters stated that the standard should specify the maximum
interval permitted before additional testing would have to be performed
(Ex. 6-4, 6-5, 6-10, 6-24, 6-27). The intervals suggested ranged from
immediately before the entry (Ex. 6-24) to 24 hours (Ex. 6-27). For
example, the U.S. Coast Guard stated:
It has been our experience that if a minimum is not set the
retesting is not done or is done infrequently because of the
competent person's other work obligations. Our policy does not
prohibit the inspector from requiring additional testing if he feels
the conditions warrant. We have required additional retesting
because of rises in temperature, excess quantity of cargo residues,
and lack of confidence in the competent person. [Ex. 6-4]
Other commenters thought that a definition of ``initial entry''
would clarify the standard (Ex. 6-21, 6-22, 6-23, 6-28, 6-33, 6-34, 6-
37, 6-38). Four of them recommended that ``initial entry'' refer to the
first entry after testing and that additional testing be required for
entry on subsequent days to ensure that safe conditions are still
present (Ex. 6-21, 6-22, 6-37, 6-38). Two of them suggested that it
refer to the time immediately after the initial opening of a space,
when the tests and inspections performed to determine whether or not
the space is safe for entry are conducted (Ex. 6-28, 6-34). The
American Waterways Shipyard Conference (AWSC) maintained that ``initial
entry'' should be defined as the first entry by shipyard personnel
after the space has been certified by the Marine Chemist (Ex. 6-23).
They explained the reasons for their position as follows:
The United States Coast Guard has interpreted the term to mean
``more than 24 hours have elapsed since a tank has been determined
safe for entry and/or hot work.'' If that time period has elapsed
then the tank must be recertified. However, this interpretation does
not take into account the shipyard facility's requirements to
maintain conditions. The shipyard facility must commence work on the
vessel within 24 hours, after the certificate has been issued or the
Marine Chemist certificate becomes invalid. As long as the
conditions listed on the certificate are maintained, then the
certificate is valid. However, if the conditions, as specified on
the certificate change, then the Marine Chemist is recalled to
recheck the space.
Including the definition for initial entry recommended by AWSC
will eliminate confusion within the industry and impose a standard
practice around the country. [Ex. 6-23]
OSHA believes that it is important to clarify the term ``initial
entry'' so that employers and employees understand clearly what OSHA
means by the term. With respect to spaces that require certification by
a Marine Chemist, it is OSHA's intent that ``initial entry'' means the
first entry into a certificated space after the Marine Chemist's
certificate has been posted. The period of time during which the Marine
Chemist's certificate is valid is established by the Marine Chemist and
is logged on the certificate as posted. OSHA believes that the Marine
Chemist performing the tests and inspection of a space to be entered is
in the best position to determine the duration of the permit's
validity. With respect to spaces that must be tested but need not be
certificated by a Marine Chemist, the Agency will interpret the
``initial entry'' to be the very first entry into the space after
testing is performed. (No entry is allowed before those tests have been
performed.) In addition, the tests must be performed close enough to
the time of entry to ensure that they accurately reflect conditions in
the spaces. To meet this standard, testing will nearly always be done
just prior to entry by employees; seldom will tests be performed prior
to an hour before employees are to enter a space.
There are also requirements in Sec. 1915.15 for periodic monitoring
and maintaining atmospheric conditions within a space as found by the
Marine Chemist, Coast Guard authorized person, or competent person.
Tests must be repeated as often as necessary to ensure that the
required atmospheric conditions within the space are maintained
(paragraphs (c) and (e)). Additionally, when a change occurs that could
alter conditions within a tested space, work in the space must stop and
employees must exit, and the area must be retested (paragraphs (b),
(d), and (f)).
OSHA believes it is unnecessary to establish within the regulatory
text of Sec. 1915.12 a specific time limit beyond which the initial
entry is not permitted after pre-entry testing. As noted in several
comments, periods longer than 24 hours may be appropriate if a confined
or enclosed space or other dangerous atmosphere does not contain a
hazardous substance, is not connected to a piping or exhaust
ventilation system that contains a hazardous substance, and has not
been closed except for an air or hydrostatic test (Ex. 6-3, 6-6). OSHA
has determined that the need for testing is directly related to the
potential for change to occur within spaces. The duty to test as
conditions warrant is imposed by Sec. 1915.12 and Sec. 1915.15, in
combination. These two sections require that, in all cases, testing of
the space must be conducted before employees enter the space and as
often as necessary to monitor conditions within the space as work
progresses. Obviously, any change in conditions that could affect the
designation of a space as ``Safe for Workers'' require reinspection,
retesting, and recertification of the space by the competent person or
Marine Chemist.
Therefore, for the purposes of this rule, the term ``initial
entry'' is interpreted by OSHA to mean the first entry into a space.
The time period between pre-entry testing and initial entry may vary.
However, the space must be reinspected, retested, and recertified any
time conditions in the space might have become unsafe for employees.
As noted earlier, in paragraph (a)(1), OSHA is continuing the
previous requirement (in Sec. 1915.12(c)(1)) for competent persons to
test atmospheres of specific spaces that may contain oxygen-deficient
atmospheres. The following paragraphs describe each of the spaces
itemized in paragraph (a)(1).
Paragraph (a)(1)(i) of final Sec. 1915.12 lists spaces that have
been sealed, e.g., those that have been coated and closed up and those
that have been painted and that lack ventilation. OSHA has combined the
spaces listed in paragraphs (c)(1) (ii), (iii), and (iv) of the
previous Sec. 1915.12 into one paragraph because OSHA considers the
hazards within these spaces to be similar. The primary hazard of these
spaces is the lack of proper ventilation and the resultant possible
lack of oxygen. OSHA considers the consolidation of the previous
paragraphs into one paragraph to be an editorial change for clarity
because none of the spaces currently listed have been deleted nor have
any been added.
Paragraph (a)(1)(ii) lists spaces and adjacent spaces that contain
or have contained combustible or flammable liquids or gases. Paragraphs
(a)(1)(iii) and (a)(1)(iv) list spaces and adjacent spaces that contain
or have contained liquids, gases, or solids that are toxic, corrosive,
or irritant or that have been fumigated. These three paragraphs refer
to spaces that were included under the previous Sec. 1915.12(c)(1)(i),
which reads as follows:
(i) Spaces in which the test[s] required by paragraphs (a) and
(b) of this section indicate that no flammable or toxic contaminants
are present in the atmosphere.
Under this previous provision, spaces that require flammability and
toxicity testing must also be tested for oxygen deficiency. In revised
subpart B, OSHA has simply named the spaces that are covered under the
previous Sec. 1915.12 (a) and (b) in lieu of specifying them by
reference. Additionally, the final rule requires these spaces to be
tested for oxygen regardless of whether they are found to be safe with
respect to the hazards of flammable and toxic substances. Under the
previous standard, which implied that the flammability and toxicity
tests were performed before the oxygen test, once a space was found to
be unsafe due to the presence of flammable gases or vapors or toxic air
contaminants, further testing for oxygen deficiency was unnecessary.
Under the final rule, tests for oxygen content are conducted first and
must always be performed.
Paragraph (a)(1)(v) lists spaces containing materials or residues
that could create an oxygen-deficient atmosphere. The previous
Sec. 1915.12(c)(1)(v) covers only cargo spaces containing cargoes or
residues that can create an oxygen-deficient atmosphere. The
corresponding paragraph in the proposal (proposed
Sec. 1915.12(a)(viii)) also addressed only cargo spaces. The proposed
and previous language also provide examples of cargos that can absorb
oxygen and create an oxygen-deficient atmosphere (scrap iron, fresh
fruit and molasses, and various vegetable drying oils).
As noted in the summary and explanation of final Sec. 1915.11(a),
earlier in this preamble, the scope of subpart B is being expanded to
address all confined and enclosed spaces and other dangerous
atmospheres throughout shipyard employment. While the previous standard
recognizes that the hazard of oxygen deficiency may be found in cargo
spaces, many other confined and enclosed spaces in shipyard employment
also pose this hazard. OSHA believes that it is essential that all such
spaces be tested for oxygen content before entry to assure their
safety. Therefore, the Agency is eliminating the reference to cargo
spaces and is requiring all spaces containing materials or residues
that could create an oxygen deficiency to be tested.
Paragraph (a)(2) requires spaces that have been tested and found to
contain oxygen-deficient atmospheres to be labeled ``Not Safe for
Workers.'' Spaces found to be oxygen-enriched are required to be
labeled ``Not Safe for Workers--Not Safe for Hot Work.'' If employees
are to enter a space that has an oxygen-enriched or oxygen-deficient
atmosphere, then ventilation must be provided to maintain the oxygen
content of the atmosphere at or above 19.5 percent and below 22.0
percent by volume. After the ventilation produces an acceptable level
of oxygen, the warning signs may be removed.
The previous Sec. 1915.12(c)(2) only requires ventilation for
spaces containing less than 16.5 percent oxygen by volume. It does not
require spaces with oxygen-deficient or oxygen-enriched atmospheres to
be labeled, nor does it address oxygen-enriched atmospheres.
Additionally, it requires ventilation to be provided only when the
oxygen content in the space is below 16.5 percent by volume, rather
than below 19.5 percent.
Unlike either the proposal or the previous rule, the final rule
addresses hazards associated with oxygen-enriched atmospheres. Oxygen-
enriched atmospheres create significant risks to employees entering
confined and enclosed spaces and other dangerous atmospheres, and
precautions must be taken before entry into such atmospheres. The
proposal would have required atmospheres to be tested for oxygen
content rather than for oxygen deficiency alone. No rulemaking
participant objected to this requirement. NFPA 306, in Section 2-3.1,
sets the criteria for compartments and spaces to be found ``Safe for
Workers.'' The first criterion listed in this section is that the
oxygen content of the space be ``at least 19.5 percent and not greater
than 22 percent by volume.'' Thus, OSHA is consistent with the existing
national consensus standard which has adopted provisions restricting
entry into oxygen-enriched atmospheres.
The hazards of working in an oxygen-enriched atmosphere are widely
recognized. The presence of greater than normal amounts of oxygen
increases the flammability of materials and lowers the flash point of
flammable materials. An ignition source, such as a spark, that would
ordinarily be of insufficient energy to ignite a flammable mixture may
ignite such mixture in oxygen-enriched atmospheres. The presence of
greater than normal amounts of oxygen can also increase the chances of
spontaneous combustion of flammable materials. Thus, an oxygen-enriched
atmosphere in a confined or enclosed space or other dangerous
atmosphere can place employees at an unacceptable risk of injury due to
fire or explosion. Employers must take measures to find the source of
oxygen and then eliminate that source and ventilate the space in order
to control the hazards involved.
For the foregoing reasons, OSHA has adopted requirements in final
Sec. 1915.12(a) that are intended to eliminate the hazards posed by
oxygen-enriched atmospheres. The Agency has adopted NFPA's criterion
for oxygen enrichment (that is, an oxygen concentration of 22 percent
or more by volume). Thus, the final rule sets a standard that protects
employees to a level equal to that provided by the relevant national
consensus standard for the work involved.
The proposed rule, under Sec. 1915.12(a)(4) and (a)(5), would have
required labeling spaces with oxygen-deficient (that is less than 19.5
percent oxygen) atmospheres, but would have permitted employees to
enter such spaces provided they were wearing respirators.
The final rule raises the minimum acceptable concentration of
oxygen from 16.5 percent to 19.5 percent by volume. As noted earlier,
the NPRM proposed raising the minimum acceptable level of oxygen, and
several rulemaking participants commented on this issue (Ex. 6-3, 6-6,
6-10, 6-11, 6-15, 6-18, 6-24, 6-28, 6-33). All of them agreed with the
proposed minimum oxygen level. For example, the Shipbuilders Council of
America (Ex. 6-3) stated:
Routine entry should be allowed only if the oxygen level is at
least 19.5 percent.
Northwest Marine Chemist (Ex. 6-18) maintained that the existing
minimum acceptable concentration of oxygen in Sec. 1915.12(c)(1) was
outdated, as follows:
The use of 16.5% oxygen by OSHA is archaic, and not used in the
industry in my area.
Additionally, OSHA's generic confined space standard, in
Sec. 1910.146(b), defines ``oxygen-deficient atmosphere'' as ``an
atmosphere containing less than 19.5 percent oxygen by volume.''
OSHA has previously concluded that permitting employees to work in
atmospheres in which the concentration of oxygen is below 19.5 percent
by volume presents an unacceptable risk of acute adverse health
effects. In the preamble to final Sec. 1910.146, OSHA described the
possible results of exposure to oxygen-deficient atmospheres as:
dizziness, tiredness, difficulty in breathing, confusion,
unconsciousness, and death (58 FR 4476). Considering these possible
consequences, the Agency continues to believe that the minimum
acceptable concentration of oxygen, in the absence of control measures,
is 19.5 percent by volume.
As noted earlier, Sec. 1915.12(a)(2) requires spaces containing
oxygen-deficient and oxygen-enriched atmospheres to be labeled ``Not
Safe for Workers'' or ``Not Safe for Workers--Not Safe for Hot Work,''
respectively. The previous standard does not require such labeling. The
proposed rule would have required labeling only for oxygen deficiency,
under Sec. 1915.12(a)(5). No one objected to the labeling requirement
proposed in Sec. 1915.12(a)(5), and OSHA believes that this labeling is
necessary to warn employees to keep out of spaces containing
insufficient oxygen to work safely. Therefore, the Agency is carrying
forward the proposed provision that spaces with oxygen-deficient
atmospheres be labeled ``Not Safe for Workers.'' Because OSHA has found
it necessary and appropriate to prohibit entry into oxygen-enriched
atmospheres, the Agency also believes that it is necessary to label
spaces containing such atmospheres. Because of the increased risk of
fire and explosion associated with these atmospheres, the final rule
requires them to be labeled as ``Not Safe for Hot Work'' as well as
``Not Safe for Workers.''
Final Sec. 1915.12(a)(2) requires ventilation to be provided to
maintain the oxygen content of the atmosphere in a safe range.
Paragraph (c)(2) of the previous Sec. 1915.12 contains the same
requirement, except that it applies only when an oxygen deficiency is
found. The proposed revision of Subpart B would not have required
ventilation but would have permitted employees to enter oxygen-
deficient atmospheres if they were wearing respirators (proposed
Sec. 1915.12(a)(4)).
OSHA has decided not to allow employees to enter confined or
enclosed spaces or other dangerous atmospheres that are designated
``Not Safe for Workers,'' except under tight restriction. (See the
summary and explanation of final Sec. 1915.12(c)(3), later in this
preamble, for a discussion of issues related to employee entry into
such spaces.) Therefore, the final rule adopts a requirement, similar
to the one in the previous Sec. 1915.12(c)(2), for ventilation to be
provided any time a space is hazardous because of oxygen deficiency or
oxygen enrichment. Once the ventilation brings the oxygen content to a
safe level, signs labeling the space as ``Not Safe for Workers'' or
``Not Safe for Workers--Not Safe for Hot Work'' may be removed.
Paragraph (a)(3) of final Sec. 1915.12 prohibits employees from
entering any confined or enclosed space or other dangerous atmosphere
that is oxygen-deficient or is oxygen-enriched. Exceptions are granted
for emergency rescue and for entries of short duration to install
ventilation equipment, provided that the atmosphere is continuously
monitored for oxygen content and that respiratory protection and other
personal protective equipment and clothing are provided in accordance
with Subpart I of part 1915.
The previous Sec. 1915.12 prohibits entry into IDLH atmospheres.
Paragraph (d) of that section presents exceptions to the general
prohibition which recognize emergency entries and short duration
entries performed for the purpose of installing ventilation equipment
or starting operations, provided the work is performed in accordance
with paragraphs (a) and (b) of the previous Sec. 1915.152 (contained in
Subpart I) relating to respiratory protection.
Proposed Sec. 1915.12(d) presented the same exceptions as the
previous rule, but with three additional provisos:
(1) That no ignition sources are present, and
(2) That the atmosphere in the space is maintained above the upper
explosive limit, and
(3) That the atmosphere is monitored continuously.
The reference to the Subpart I requirements was placed in a note
following the proposed paragraph. As noted earlier, proposed
Sec. 1915.12(a)(4) would also have allowed entry into oxygen-deficient
atmospheres by employees wearing respirators in accordance with Subpart
I of part 1915. No restrictions on the purpose or length of entry were
proposed.
The NPRM requested comments on the issues of whether or not work in
IDLH atmospheres should ever be permitted and on what control measures
are necessary for the protection of employees working in IDLH
atmospheres. In the preamble to the NPRM, OSHA recognized that
atmospheres containing flammable vapor concentrations greater than the
UEL for a particular vapor do not present a fire or explosion hazard to
employees because the atmosphere is too rich in flammable vapors or
gases to burn. However, OSHA expressed concern about employees who work
in such atmospheres because such atmospheres may contain chemical
exposures from the flammable vapor that are above the permissible
exposure limit (PEL) for the particular chemical creating the vapors.
Only one commenter supported OSHA's proposal to allow work in IDLH
atmospheres. The American Waterways Shipyard Conference (Ex. 6-23)
stated that OSHA should not put a time limit on ``short duration'' and
that the proposal was appropriate, as follows:
Due to the vast differences in vessel design, it would be
extremely difficult to define an ``emergency work'' situation.
Similarly, a time limit for ``brief duration'' would be difficult to
ascertain since the work to be performed differs in every situation.
By instituting a time factor for work of brief duration, shipyard
employees may be required to skip safety steps in order to finish
the work in the required time frame.
Work in atmospheres in the Upper Explosive Limit (UEL) should
not be prohibited. The work done in an UEL atmosphere is done on a
very infrequent basis, but it is work that could not be done
otherwise such as entry of a cargo tank during tank cleaning
operations to set a cargo suction hose.
By contrast, many other rulemaking participants believed that work
in IDLH atmospheres is unnecessary and should be prohibited, either
under all conditions (Ex. 6-4, 6-15, 6-18, 6-24, 6-31) or under all but
emergency conditions (Ex. 6-7, 6-8, 6-10, 6-12, 6-21, 6-22, 6-28, 6-33,
6-34, 6-37, 6-38). Independent Testing and Consultation, Inc. (Ex. 6-
24), presented the following arguments against work in atmospheres
above the upper explosive limit for a flammable gas or vapor:
The paragraph 1915.12(d) should be deleted for the following
reasons.
(a) There is no way to keep the atmosphere above the upper
explosive limit (UEL). If entry to the tank is required, it follows
that there must be a region where the tank atmosphere mixes with the
outside atmosphere. In this region the concentration of gas will be
in the explosive range.
(b) The equipment used to measure gas concentrations above the
UEL is not usually available.
(c) All ignition sources cannot easily be eliminated. There
remains possible ignition due to static electricity. It has been my
experience that owners and operators would rather clean or otherwise
make safe a tank or compartment even if the work required in the
compartment is of the briefest duration.
NFPA (Ex. 6-10) addressed work in IDLH atmospheres as follows:
NFPA does not believe that work in IDLH atmospheres should be
encouraged, except for the purposes of emergency rescue. NFPA does
not support the proposal of working in UEL atmospheres. The
potential hazards associated with ignition sources, such as static
electricity, and the introduction of air to bring an atmosphere
above the UEL within the flammable range, are significant and
difficult to control. The additional testing requirements would also
be significant. NFPA 306 only permits such a practice in the case of
inerting for flammable compressed gas as described in 2-3.8. In this
case now work is permitted on the tank or pipelines.
OSHA agrees with the commenters who stated that working in IDLH
atmospheres or in atmospheres containing concentrations of flammable
gases or vapors above their UEL is very hazardous. The limitations on
maintaining an atmosphere above a gas's or vapor's UEL, as noted by
Independent Testing and Consultation, Inc., are severe indeed. If a
mistake is made in such an atmosphere, an explosion will almost
certainly result. Atmospheres that are IDLH because of toxicity also
present a very serious danger to employees. A failure of the
respiratory protective equipment protecting an employee in this type of
atmosphere could quickly lead to his or her death.
OSHA further believes that conditions somewhat less hazardous than
those posed by IDLH atmospheres pose unnecessary dangers for shipyard
employees. The generic permit-required confined space standard, in
Sec. 1910.146(b), defines a hazardous atmosphere, in part, as follows:
Hazardous atmosphere means an atmosphere that may expose
employees to the risk of death, incapacitation, impairment of
ability to self-rescue (that is, escape unaided from a permit
space), injury, or acute illness from one or more of the following
causes:
(1) Flammable gas, vapor, or mist in excess of 10 percent of its
lower flammable limit (LFL);
* * * * *
(3) Atmospheric oxygen concentration below 19.5 percent or above
23.5 percent;
OSHA has already determined that these conditions constitute
serious hazards, ones that are tightly regulated in the generic permit-
space standard in Sec. 1910.146. These conditions can also be found in
confined and enclosed spaces and in other dangerous atmosphere in
shipyard work. In order for Subpart B to be as protective as the
general industry permit-space standard, which permits employees to work
in hazardous atmospheres using a system of permits and attendants not
required by Subpart B, OSHA believes that Subpart B must require
measures that ensure that employees are not exposed to such hazardous
conditions. For this reason, the Agency is adopting requirements in
final Subpart B that prohibit employee entry into confined and enclosed
spaces and other dangerous atmospheres presenting an oxygen-deficient
or oxygen-enriched atmosphere or containing concentrations of flammable
gases or vapors greater than or equal to 10 percent of the gas's or
vapor's lower explosive limit.
OSHA concludes, however, that entry into such spaces can safely be
permitted under certain conditions. First, in emergencies, where
persons are endangered, entry might be necessary to save the life of an
entrant or the lives of every person on that transport. Second, because
these spaces will have to be ventilated to make the atmosphere safe for
employees, entry might be necessary to set up the proper ventilation
equipment. For these reasons, final Subpart B permits entry into IDLH
and other hazardous atmospheres for emergency rescue and for periods of
short duration to install ventilation equipment necessary for normal
entry.
During such emergency or short duration entries, however,
additional precautions must be taken to protect the entrants. The
additional precautions to be taken must be appropriate for the hazards
presented by the particular space involved. Thus, the final rule treats
oxygen enrichment and deficiency, the presence of flammable gases and
vapors, and atmospheres containing toxic contaminants at IDLH levels
separately. For oxygen-enriched and oxygen-deficient atmospheres, the
space must be continuously monitored for oxygen content (so that
appropriate control measures can be taken if it changes), and
respiratory protection and other personal protective equipment and
clothing must be provided in accordance with Subpart I (so that
appropriate personal protective equipment is provided and so that an
attendant will be present if the oxygen content makes the space IDLH).
The hazards of flammable atmospheres and toxicity are treated
separately in their respective paragraphs (final Sec. 1915.12 (b)(3)
and (c)(4)).
Paragraph (b) of final Sec. 1915.12 sets precautions to be taken
before employees enter areas that present hazards related to flammable
atmospheres. Paragraph (b)(1) applies to spaces that contain or have
contained combustible or flammable liquids or gases and to spaces
(called, appropriately, ``adjacent spaces'') that are adjacent to those
spaces. These spaces must be: (1) inspected by a competent person to
determine whether or not combustible or flammable liquids are present,
and (2) tested by a competent person before entry by any employee to
determine the concentration of flammable gases and vapors within the
space. These precautions also apply to adjacent spaces.
Previous Sec. 1915.12(a)(1) requires the same spaces to be tested
by a competent person to determine the concentration of flammable gases
and vapors.
The proposed rule contained requirements equivalent to the previous
standard in paragraphs (b)(1), (b)(2), and (b)(3) of proposed
Sec. 1915.12.
The final rule differs from the previous and proposed rules only in
that Sec. 1915.12(b)(1) includes a requirement for the competent person
to inspect the space, as well as test it, for the presence of
combustible or flammable liquids. The inspection is necessary so that
the competent person will be more likely to be made aware of any
malfunction in the testing instrument. Obviously, if the inspection
reveals the presence of a flammable liquid, a flammability test can be
expected to result in some detectable concentration of flammable gases
or vapors. The lack of any such reading from the test instrument would
be an indication that the device might be defective and should lead to
further investigation of the problem. The inspections will also be
necessary if a hazardous concentration of flammable gases or vapors is
found so that the proper precautions can be taken to eliminate the
hazard. Although in the previous Sec. 1915.12(a) does not specify that
an inspection is to take place, in the previous Sec. 1915.7(c), which
requires tests and inspections to be entered into the ``Log of
Inspections and Tests,'' implies that the competent person is to
perform inspections in addition to any tests that are required.
Paragraph (b)(2) requires spaces that have been tested and found to
contain concentrations of a flammable gas or vapor greater than or
equal to 10 percent of the gas's or vapor's lower explosive limit (LEL)
are required to be labeled ``Not Safe for Workers--Not Safe for Hot
Work.'' If employees are to enter a space that has flammable gases or
vapors in such concentrations, then ventilation must be provided to
ensure that the concentration of these gases or vapors is maintained
below 10 percent of their LELs. After the ventilation produces an
acceptable atmosphere, the warning signs may be removed.
Paragraph (a)(2) of the previous Sec. 1915.12 requires spaces
containing hazardous concentrations of flammable gases or vapors to be
ventilated until the concentration drops below 10 percent of the gas's
or vapor's LEL before workers are permitted to enter the space. No
labeling of these spaces is required under the previous standard.
Paragraph (b)(5) of proposed Sec. 1915.12 would have required
labeling of spaces in a manner equivalent to that required under the
final rule. Paragraph (b)(4) of proposed Sec. 1915.12 would have
prohibited entry when the concentration of flammable gases or vapors
was at or above 10 percent of the LEL, but the proposal did not
specifically require ventilation in Sec. 1915.12. Ventilation
requirements related to flammable atmospheres were proposed in
Sec. 1915.13(b)(8).
No rulemaking participant objected to the proposed labeling
requirement. Therefore, OSHA has carried it forward into the final
rule. The final rule, unlike the proposal, continues to require spaces
that are hazardous because of the presence of flammable gases or vapors
to be labeled even when employees are permitted to enter for emergency
purposes or for short durations to install ventilation. The proposal
did not require the spaces to be labeled during these entries (in
effect permitting employers to remove the signs at these times).
However, such entries require the adoption of special precautions (see
the summary and explanation of final Sec. 1915.12(b)(3), later in this
preamble). OSHA believes that the labeling must be maintained during
these entries so that unauthorized, unprotected entry is prevented.
Paragraph (b)(3) of final Sec. 1915.12 prohibits employees from
entering spaces containing concentrations of flammable gases or vapors
at or above their LELs. However, employees may enter these spaces for
emergency rescue or for a short duration for the installation of
ventilation equipment provided that:
(1) No ignition sources are present,
(2) The atmosphere in the space is monitored continuously;
(3) The concentrations of flammable gases and vapors in the
atmosphere in the space are maintained above their upper explosive
limits (UEL), and
(4) Respiratory protection and other personal protective equipment
and clothing must be provided in accordance with Subpart I of part
1915.
Previous Sec. 1915.12(a)(2) prohibits workers from entering areas
containing concentrations of flammable gases or vapors at or above 10
percent of their LELs. The only exception to this rule is contained in
the previous Sec. 1915.13(a)(2) for highly volatile residues. (This
provision has not been carried forward into the final rule. See the
summary and explanation of final Sec. 1915.13, later in this preamble,
for a discussion of the reasons why this exception has been dropped.)
The proposal also contained a general prohibition against employees
entering spaces containing hazardous concentrations of flammable gases
or vapors. However, as noted earlier, proposed Sec. 1915.12(d) also
provided exceptions for emergencies and for brief duration entries. The
proposal would have required the same precautionary measures required
by the final rule, except that respiratory equipment and other personal
protective equipment was identified as being required, under Subpart I,
through means of a note following proposed Sec. 1915.12(d)(3).
As explained earlier, OSHA has decided to permit entries for
emergency rescue and for short duration entries to install ventilation
equipment even if the space contains a hazardous atmosphere. No one
objected to the precautionary measures proposed in Sec. 1915.12(d), and
they have been carried forward into the final rule. The proposed note
regarding the use of respiratory protection and other personal
protective equipment has been converted into a requirement
(Sec. 1915.12(b)(3)(iv)). Even though employers are already obligated
to comply with these requirements under Subpart I, OSHA believes that
providing a mandatory reference in the text of the regulation will
serve to emphasize the importance of the required personal protective
equipment.
The Agency has concluded that entry made following the requirements
contained in the exception to Sec. 1915.12(b)(3) will protect employees
by controlling and minimizing the hazards involved. No ignition sources
may be present in the space so that, if the atmosphere becomes
flammable, there will be no energy source to ignite it. The atmosphere
in the space must be maintained above the UEL, and the atmosphere must
be continuously monitored to minimize the possibility that a flammable
atmosphere could develop. Lastly, personal protective equipment must be
worn to protect the employee from exposure to the hazardous materials
involved.
Paragraph (c) of final Sec. 1915.12 sets precautions to be taken
before employees enter areas that present hazards related to toxic
atmospheres. Paragraph (c)(1) of final Sec. 1915.12 requires spaces and
adjacent spaces that contain or have contained gases, liquids, or
solids that are toxic, corrosive, or irritant to be:
(1) Inspected visually by a competent person to determine whether
or not toxic, corrosive, or irritant residue contaminants are present,
and
(2) Tested by a competent person before initial entry by any
employee, to determine the concentration of toxics, corrosives, and
irritants in the air within the space.
The previous Sec. 1915.12(b)(1) requires the following spaces to be
inspected and tested by a Marine Chemist, industrial hygienist, or
other qualified person:
(1) Cargo spaces and other spaces containing or having last
contained bulk gases, liquids, or solids of a toxic, corrosive, or
irritant nature,
(2) Spaces that have been fumigated, and
(3) Spaces immediately adjacent to these two types of spaces.
Paragraphs (c)(1), (c)(2), and (c)(3) of proposed Sec. 1915.12
would have continued the previous language without change, except that
the proposal specified that the tests had to be performed by a Marine
Chemist, a certified industrial hygienist, or a U.S. Coast Guard
authorized person. Although this may have appeared to be a departure
from the previous standard, the NPRM explained that the proposal simply
codified OSHA interpretation of the previous standard. The NPRM also
requested comments on the proposed definition of ``certified industrial
hygienist.''
Most commenters agreed that a Marine Chemist or a Certified
Industrial Hygienist was qualified to perform the toxicity tests
required under Sec. 1915.12(c) (Ex. 6-10, 6-12, 6-13, 6-20, 6-23, 6-24,
6-28, 6-33). They noted that the intensive training in toxicology and
in appropriate control measures these persons receive makes them
uniquely qualified to test and inspect confined and enclosed spaces and
other dangerous atmospheres.
OSHA agrees with these comments, and the final rule recognizes that
tests and inspections for the presence of toxic, corrosive, or irritant
substances may be performed by Marine Chemists and Certified Industrial
Hygienists.
The rulemaking participants expressed some disagreement, however,
over whether or not a Coast Guard authorized person had the proper
qualifications to test and inspect areas for hazards related to the
toxicity of various chemicals. Some believed that a Coast Guard
authorized person would be qualified to perform the required tests and
inspections (Ex. 6-24, 6-28, 6-33). These commenters stated that the
use of a Coast Guard authorized person would be limited to situations
in which a Marine Chemist or certified industrial hygienist was not
available. Several other commenters argued that a Coast Guard
authorized person is not required to receive training in hazards
related to the toxicity of various chemicals (Ex. 6-13, 6-15). In fact,
the U.S. Department of Transportation (Ex. 6-13), which administers
requirements in Title 46 of the Code of Federal Regulations related to
Coast Guard authorized persons, stated:
Testing required by 46 CFR 35.01, 71.60, and 91.50 is primarily
concerned with oxygen deficiency and combustibility prior to
conducting hot work. ``Coast Guard authorized persons'' who would be
expected to conduct such testing under Coast Guard regulations
should not be considered equivalent to a Marine Chemist or
Industrial Hygienist for the purpose of evaluating toxic hazards in
shipyards.
These persons would be acting under authority of a Coast Guard
license or document for compliance with regulations contained in 46
CFR, but it is not clear that they could be effectively held
accountable for their performance related to OSHA regulations.
Coast Guard authorized persons do not typically have training in
hazards related to the toxicity of various chemicals. Since such
training is necessary so that the required tests and inspections are
performed safely and appropriately, OSHA concludes that the final rule
should not automatically permit these persons to perform tests and
inspections under Sec. 1915.12(c).
Three commenters urged OSHA to include language permitting any
qualified person to perform the tests and inspections required under
Sec. 1915.12(c) (Ex. 6-3, 6-6, 6-12). They argued that requiring these
tests to be performed by a Marine Chemist or a certified industrial
hygienist would unnecessarily restrict an employer's means of complying
with the standard. The Shipbuilders Council of America (Ex. 6-3) stated
this position as follows:
SCA recommends that OSHA utilize performance-oriented language
and require a ``qualified person'' perform the testing.
The required testing has been performed in the Shipbuilding,
Ship Repairing and Shipbreaking Industry for years without incident.
With proper training, competent or other qualified persons can test
and inspect for toxic substances and provide for safe entry into
confined spaces. The proposed wording will require shipyards to
utilize either a Marine Chemist or Certified Industrial Hygienist
(CIH) for all confined spaces entries or a competent person and a
Marine Chemist or CIH for confined space entry. This requirement is
overly restrictive and unnecessarily expensive on the declining
Shipbuilding, Ship Repairing and Shipbreaking Industry without
adding any additional degree of safety. SCA recommends that OSHA
delete all references to Marine Chemists and Certified Industrial
Hygienists and specify that a ``qualified person'' perform all
required tests (see Issue #2).
OSHA has concluded that a two-pronged approach is necessary for the
protection of employees working in confined and enclosed spaces and
other dangerous atmospheres from hazards related to the toxicity of
various chemicals. First, the initial tests and inspections must be
performed by a competent person (paragraph (c)(1)). Using the results
provided by the competent person, the employer can then install
ventilation, if necessary, to render the space safe for entry
(paragraph (c)(2)). Second, if ventilation fails to bring
concentrations of air contaminants to acceptable levels, a Marine
Chemist or Certified Industrial Hygienist must be brought in to develop
and implement control measures to protect employees entering the space
(paragraph (c)(4)).
Under final Sec. 1915.7, competent persons have the following
skills and knowledge (among others):
(1) The ability to understand and carry out instructions of Marine
Chemists and certified industrial hygienists,
(2) Knowledge of the requirements of Subpart B,
(3) Knowledge of the structures, locations, and designations of
spaces where work is to be performed,
(4) Ability to calibrate and use test instruments, including carbon
monoxide and carbon dioxide indicators,
(5) Ability to perform all required tests and inspections required
of competent persons by Subpart B, and
(6) Ability to inspect, test, and evaluate spaces to determine the
need for further testing by a Marine Chemist or a Certified Industrial
Hygienist.
These skills and this knowledge provide the competent person the
ability to perform the initial tests and inspections necessary to
determine whether or not a space contains hazardous quantities of toxic
substances, as required by final Sec. 1915.12(c)(1). Once the space has
been determined to contain hazardous quantities of toxic substances, it
is then the employer's responsibility to make the space safe for entry
through ventilation under final Sec. 1915.12(c)(2). If the space cannot
be made safe for entry through the use of ventilation, OSHA believes
that it is necessary to require a Marine Chemist or certified
industrial hygienist to develop and implement appropriate control
measures to protect employees from the hazards involved. On the basis
of the record, OSHA has concluded that these two groups of persons are
the only ones capable of establishing appropriate control measures to
protect shipyard employees under these circumstances. Considering the
complexity of the hazards involved and the protective techniques that
need to be applied, the Agency believes that other, less qualified,
individuals cannot be relied on to take all the steps necessary to
protect employees fully.
Paragraph (c)(2) of final Sec. 1915.12 requires spaces containing a
concentration of any substance exceeding its permissible exposure limit
(PEL) or, if the substance has no PEL, its IDLH value, to be labeled
``Not Safe for Workers''. Ventilation must then be provided to ensure
that air concentrations of these substances are maintained within their
PELs or below their IDLH values. After the ventilation renders the
atmosphere safe for entry, paragraph (c)(2) permits the signs to be
removed.
The previous Sec. 1915.12(b)(2) requires spaces to be ventilated if
they contain a substance in concentrations above a level that is IDLH.
The ventilation is required to bring the concentration below that
level.
The NPRM proposed to continue these previous requirements in
Sec. 1915.12(c)(4). Requirements for labeling spaces containing
concentrations of toxic substances above their PELs were proposed in
Sec. 1915.12(c)(6). The previous standard contains no labeling
requirement.
OSHA received no objection to the proposed labeling requirement,
and it has been incorporated into the final rule.
The final rule, unlike the previous standard, permits competent
persons to test and inspect confined and enclosed spaces and other
dangerous atmospheres for the presence of toxic substances. The
previous standard requires these tests and inspections to be performed
by a Marine Chemist or by an industrial hygienist.
Entry into a confined or enclosed space or other dangerous
atmosphere for the performance of work is permissible only as long as
concentrations of toxic materials are maintained below their PELs. As
noted earlier, OSHA has concluded that a competent person is capable of
testing and inspecting spaces for hazards related to the toxicity of
various chemicals. Thus, the competent person can make a determination
based on these observations and tests that a space is or is not safe
for entry. If ventilation is necessary, the competent person can make
this threshold determination, as well. However, the competent person is
not normally capable of developing the specific control measures
necessary to protect employees from exposure to any substance above its
PEL. If a confined or enclosed space or other dangerous atmosphere
exposes an employee to a substance at concentrations above the
permissible exposure limit, a Marine Chemist or a Certified Industrial
Hygienist is required to establish the procedures to be used to protect
employees. The final rule makes this concept mandatory.
For spaces in which ventilation cannot maintain an acceptable
atmosphere, paragraph (c)(3) of final Sec. 1915.12 requires a Marine
Chemist or certified industrial hygienist to retest the space until it
can be certified as ``Enter with Restrictions'' or ``Safe for
Workers.''
The previous standard, under Sec. 1915.12(b)(3), requires employers
to comply with the respiratory protection requirements of Subpart I
whenever concentrations of toxic substances are above their PELs but
below IDLH levels. The NPRM proposed to continue this requirement in
Sec. 1915.12(c)(5). However, OSHA believes, as noted in the summary and
explanation of final Sec. 1915.11(a), that employees should not enter,
on a routine basis, any confined or enclosed space or other dangerous
atmosphere containing a serious hazard. Atmospheres containing
concentrations of toxic substances above their permissible exposure
limits can pose serious hazards, especially to employees working in the
exposure area for extended periods of time. As noted earlier, many of
the rulemaking participants asserted that shipyard employees are better
protected by industry practice, under which routine entry is permitted
only if the space involved is certified safe for workers, than by the
general industry permit space standard. OSHA agrees that the shipyard
approach provides safety for employees, and is codifying that practice
in final Sec. 1915.12(c)(3) and (c)(4) (discussed next).
Paragraph (c)(4) of final Sec. 1915.12 prohibits entry into spaces
that are ``Not Safe for Workers'' (under paragraph (c)(1)), except for
emergency rescue or for a short duration for the installation of
ventilation equipment provided that:
(1) The atmosphere in the space is monitored continuously, and
(2) Respiratory protection and other necessary and appropriate
personal protective equipment and clothing are provided in accordance
with Subpart I of part 1915.
As explained earlier, OSHA has decided to permit entries for
emergency rescue and for short duration entries to install ventilation
equipment even if the space contains a hazardous atmosphere, which in
this case refers to toxic substances. The procedures required will
protect employees from hazards associated with exposure to these toxic
substances. The atmosphere must be monitored continuously during this
limited entry to ensure that the control measures are working as
intended and that the entrant is aware of any changes in conditions in
the space. Final Sec. 1915.12(c)(4) requires personal protective
equipment to protect employees from the adverse effects of exposure to
toxic substances. This control measure is already required by existing
Subpart I. However, OSHA believes that providing a mandatory reference
in the text of the regulation will serve to emphasize the importance of
the required personal protective equipment.
The Shipyard Employment Standards Advisory Committee (SESAC)
reviewed OSHA's proposal and made several recommendations concerning
new areas of shipyard employment that should be regulated in
Sec. 1915.12 (Tr. 79-80, 90, 99; 4/25/90). These recommendations
included adding requirements to address the training and duties of
employees entering confined and enclosed spaces and other dangerous
atmospheres, rescue teams, and exchanging hazard information between
employers. SESAC voted unanimously to include training, and
overwhelmingly supported provisions for rescue teams and exchanging
hazard information between employers. As noted earlier in this
preamble, the notice reopening the record on Subpart B published the
text of the recommended provisions and requested public comment on
them.
Paragraph (d) of final Sec. 1915.12 contains requirements for the
training and duties of employees entering confined and enclosed spaces
and other dangerous atmospheres.
The rulemaking participants overwhelmingly approved the adoption of
the training requirements listed in the notice reopening the record
(Ex. 11-2, 11-3, 11-4, 11-5, 11-6, 11-9, 11-13, 11-14, 11-15, 11-18,
11-19, 11-20, 11-24, 11-25, 11-26, 11-29, 11-30, 11-35, 11-37, 11-39,
11-41, 11-45, 11-47, 11-49, 11-50, 11-51). These rulemaking
participants advocated that the SESAC recommendations be incorporated
in their entirety. They stated that training was essential in
preventing accidents and in promoting self-rescue. The Norfolk
Shipbuilding and Drydock Corporation (Ex. 11-6) expressed this view as
follows:
We feel that training is essential to employees understanding
the potential dangers in entering confined spaces which have not
been checked and verified as being safe. We support the SESAC
recommendations.
No commenter objected to any of SESAC's recommended requirements.
Therefore, these provisions have been incorporated into the final rule.
A few rulemaking participants suggested that the final standard
also include some requirements in addition to those proposed by SESAC.
Three commenters recommended the inclusion of provisions requiring the
training of shipyard competent persons (Ex. 11-10, 11-11, 11-44).
Marine and Environmental Testing, Inc. (Ex. 11-10), best represented
the arguments of these commenters as follows:
Lack of training was evident in all of the confined space
accidents which I have investigated. The current 1915 standard is
not adequate when addressing training requirements. While the 1915
standards state that the SCP [shipyard competent person] must have
certain abilities it does not require formal training. There are
also no formal training requirements for personnel working in
confined spaces. These deficiencies should be addressed.
The SCP should receive formal training on testing, ventilation,
fire and explosive and toxic hazards as is being currently covered
by NFPA SCP courses. General workers do not require the same level
of training but should be instructed as to the hazards associated
with confined spaces and the employer's testing, entry, hot work and
space labeling or identification program. [Ex. 11-10]
OSHA's requirements for shipyard competent persons are contained in
final Sec. 1915.7, which is discussed earlier in this preamble. The
employer is responsible for ensuring that these designated individuals
have knowledge and skills appropriate for determining whether or not a
confined or enclosed space or other dangerous atmosphere is safe to
enter. The employer cannot have the necessary information to designate
a person as a competent person unless that employer either provides the
necessary training or ensures that the person has already received it.
In addition, if the competent person is not an employee, the employer
will not usually be the source of that person's training. Therefore,
rather than specifying shipyard competent person training this final
rule focuses on the abilities and skills of the competent person and
holds the employer responsible for determining that the competent
person meets those requirements.
Other commenters suggested that OSHA require all exposed shipyard
employees to receive training as outlined in the SESAC recommendation
(Ex. 11-19, 11-30, 11-50). They argued that all workers that work in
areas containing confined or enclosed spaces or other dangerous
atmospheres should be aware of the hazards of unrestricted entry into
those spaces. For example, the U.S. Department of the Navy (Ex. 11-30)
stated:
All workers except those who will never be involved with
confined space entry/work should be trained. Minimum knowledge
should be a well understood concept of what a confined or enclosed
space is, what the potential hazards are, and the need for space
evaluation by a knowledgeable individual and, in some cases,
certification by a ``qualified person'' prior to entry and work.
One commenter, the International Brotherhood of Electrical Workers
(IBEW) (Ex. 11-51), suggested that the standard specify that employees
receive classroom-type training. They were concerned that employees
would receive a simple briefing rather than actual training. They
stated their concerns as follows:
The ability to have specific directions to train and provide
annual review with classroom type instruction, and where the
instructor has direct inter-play with the employee, is the most
desirable, as well as preferred. One of the big problems that we
have always felt has been the issue in training is the addressing of
specific training. In the training of employees at our facility,
stand-up safety briefings are used for training in Haz Com. The
employee is asked to sign the back of this briefing to show they
have attended and received the training. In the briefings given, the
person giving the briefing has had little or no formal training on
the subject material, making it a perfect ``paper program''. The
only way we know it does not work is through interviews with the
employees. It is therefore imperative that the recommendations of
SESAC be followed, as they are most inclusive and specific, and that
the instructors be knowledgeable of the subject material.
OSHA has not adopted the IBEW's suggestion. Employers may use
classroom or ``on-the-job'' instruction or a combination of the two in
complying with final Sec. 1915.12(d). The primary objective of final
Sec. 1915.12(d) is to ensure that employees will be familiar with the
subjects listed under paragraphs (d)(1) through (d)(3). There may be
wide variations in the combinations of classroom and on-the-job
training that may be necessary for different work sites,
configurations, and control measures. On the other hand, OSHA shares
IBEW's concern that some employers might try to comply with the
standard through simple briefings that impart little knowledge to
employees. In enforcing final revised Subpart B, the Agency will
determine whether employees have learned the subject matter addressed
by the standard by interviewing employees and reviewing the employer's
procedures for dealing with communicating hazard information and
ensuring employees have the skills necessary to do their jobs. In
addition the Agency will examine the employer's certification that the
training has been provided as required by final Sec. 1915.12(d)(5). It
should be noted that, whatever the method of training that is provided,
it must be provided before an employee enters a confined or enclosed
space or other dangerous atmosphere, as required by final
Sec. 1915.12(d)(4).
The requirements adopted in final Sec. 1915.12(d) are based on the
recommendations of SESAC as presented in the notice reopening the
record on Subpart B. The purpose of these requirements, along with an
explanation of any differences between the final rule and SESAC's
proposed language, is presented in the following discussion.
In paragraph (d)(1), OSHA is requiring employers to ensure that
employees who must enter confined or enclosed spaces or other dangerous
atmospheres are trained to perform their duties safely. This provision
is intended to ensure that employees are familiar with the duties
imposed by final revised Subpart B so that the work practices they use
will conform to the standard and will protect them from hazards posed
by these spaces.
In paragraph (d)(2), OSHA is requiring employers to ensure that
each employee who must enter confined or enclosed spaces or other
dangerous atmospheres is trained to recognize and understand the
hazards or hazardous conditions he or she may encounter during entry.
The specific hazards or hazardous conditions that OSHA addresses are
found in paragraphs (d)(2)(i) through (d)(2)(vii) and they include the
following:
(1) Recognition of the characteristics of the space,
(2) Anticipation and awareness of the hazards that may be
encountered during entry,
(3) Recognition of the signs, symptoms, or other adverse health
effects that may be caused by exposure to hazards,
(4) Understanding of the physical signs and reactions of exposure
to hazards,
(5) Knowledge of the types of personal protective equipment that
may be needed for safe entry into and exit from the space,
(6) Knowledge of how to use personal protective equipment, and
(7) When necessary, awareness of the presence and proper use of
barriers or other devices that may be needed to protect an entrant from
hazards.
The final rule combines SESAC's proposed paragraphs (e)(1) and
(e)(2) to present all the general topics in which employees should be
instructed in one place. Additionally, the SESAC proposal addressed
confined spaces only. Because final revised Subpart B covers enclosed
spaces and other dangerous atmospheres, as well as confined spaces,
OSHA has applied the training requirements to all employees that enter
confined and or enclosed spaces or other dangerous atmospheres.
In paragraph (d)(3), OSHA is requiring the employer to ensure that
an employee who must enter confined or enclosed spaces or other
dangerous atmospheres is trained to exit the space under certain
conditions. The specific conditions for which an entrant must be
trained to exit include:
(1) Upon order of the employer,
(2) Upon the sounding of an evacuation signal, or
(3) Whenever the entrant perceives that there is a danger or threat
to his or her safety.
In paragraph (d)(4), OSHA is requiring employers to ensure that
employees who must enter confined or enclosed spaces or other dangerous
atmospheres receive their training:
(1) Before they begin work addressed by this section and
(2) Whenever there is a change in operations or in an employee's
duties that present a hazard about which the employee has not been
trained previously. This provision was not included in SESAC's
recommendations on training. Their recommendation specified that
``appropriate training'' be provided to confined space entrants. OSHA
believes that it is essential to spell out when the training required
under paragraph (d)(1) through (d)(3) must be provided and that
employees must receive this instruction before they are exposed to the
working conditions and operations covered by the training. To address
this issue, the Agency has incorporated language based on
Sec. 1910.146(g)(2) (i) through (iii) of the generic permit-space
standard, so that the final rule ensures that employees will be trained
before exposure to the hazards posed by confined or enclosed spaces or
other dangerous atmospheres.
In paragraph (d)(5), OSHA is requiring that the employer certify
that the training required by paragraphs (d)(1) through (d)(4) has been
accomplished. The rule also lists the information that must be provided
on the certification: the employee's name, the name of the trainer, and
the date or dates of the training. Paragraph (d)(5) requires the
certification of training to be available for inspection by the
Assistant Secretary, the Director of NIOSH, the employees, and their
representatives.
A certification requirement was not included in SESAC's
recommendations. However, OSHA believes that its inclusion in the final
rule is necessary for several reasons. Certification of employee
training provides a valuable record to employers who need to be able to
keep track of who has been trained. Also, the certification enables
employees to determine whether or not the employer has accurately
recorded their training. Lastly, the certification facilitates OSHA's
enforcement of the standard. Standards on employee training routinely
incorporate requirements for the certification of training, and OSHA
has found that such requirements ensure that employees are indeed
trained in accordance with these standards.
Paragraph (e) of final Sec. 1915.12 contains requirements for
rescue teams.
The rulemaking participants overwhelmingly approved the adoption of
the rescue team requirements listed in the notice reopening the record
(Ex. 11-1, 11-2, 11-3, 11-4, 11-5, 11-6, 11-9, 11-13, 11-14, 11-15, 11-
18, 11-19, 11-20, 11-24, 11-25, 11-26, 11-29, 11-35, 11-37, 11-39, 11-
41, 11-45, 11-47, 11-49, 11-50, 11-51). These rulemaking participants
advocated that the SESAC recommendations be incorporated in their
entirety. They stated that training was essential in preventing
accidents and in promoting self-rescue.
Paragraph (e) requires that employers either make provisions for a
shipyard rescue team or make an arrangement under which an outside
rescue team will respond promptly to a request for rescue service.
Some commenters urged OSHA to consider addressing the response time
of rescue teams (Ex. 11-10, 11-28, 11-30, 11-51). These commenters
realized the difficulty involved in specifying an exact response time;
however, they felt that it was important for rescue efforts to begin
promptly. For example, Con-Space Communications Ltd. (Ex. 11-28) stated
their recommendations as follows:
This could be a difficult thing to regulate but, minimum
requirements should be set to ensure that trained personnel and
equipment are available in the event of an incident. Response time
is the hard item to determine. Obviously the faster the better for
the person in difficulty, but if OSHA allows outside rescue services
to be used, response time would be longer than if the rescue team
was in-house.
Response time of an outside rescue service would be totally
dependant on its distance from the problem site.
* * * * *
Proposed paragraph 1915.12(f) is a practical solution to a
difficult problem. Plant rescue teams should be able to respond more
quickly than outside teams but the cost of maintaining an in-plant
[shipyard] team could be excessive. We are left with a simple
question, ``is the risk of slow response higher than the possible
risk to the life of the person waiting for help?''
If the outside rescue team receives more calls for help than it
can handle, who waits and who gets penalized, the employer or the
contracted rescue team or more important--who dies?
Consideration should be given to a two tier rescue system where
the employer is required to have a small rescue unit (two man team)
trained by the outside rescue team for immediate response to a
problem. Their level of involvement could be dictated by the rescue
contractor who could also determine what rescue equipment should be
maintained on-site.
Most commenters argued that response times should not be addressed
in the standard (Ex. 11-6, 11-9, 11-11, 11-14, 11-15, 11-18, 11-19, 11-
22, 11-24, 11-26, 11-29, 11-31, 11-36, 11-38, 11-39, 11-40, 11-41, 11-
43, 11-44, 11-50). These commenters argued that there were too many
variables involved in shipyards for OSHA to be able to specify an
appropriate response time. Mr. Joseph J. Ocken (Ex. 11-31) went
further, suggesting that stressing the importance of rescue would lead
to even more deaths, as follows:
This entire issue focuses on rescue teams: inside and outside
teams, team procedures, response times, and protocols/planning. I
have strong reservations about regulating or mandating rescue
operations in this manner. There are numerous confined space entries
made on a daily basis while there are very few rescue attempts made.
Even so, most confined space deaths are associated with rescue
attempts. Intentionally or unintentionally the tone of the proposed
language seems to communicate very dangerous messages:
RESCUE ATTEMPTS ARE MANDATORY. This may not be intended by OSHA
but the language could be misconstrued to suggest it. Many concerned
safety professionals have devoted a lot of energy to communicate the
opposite message! These teams should not even be referred to as
``rescue teams'' but rather ``recovery or retrieval teams'' in order
to avoid any confusion on this point.
HURRY! OSHA's intent is important in that employers need to be
reasonable in designating outside rescue resources. The response
time message however, is that rescuers must hurry. Given the poor
effectiveness statistics for rescue attempts the emphasis should be
placed on QUALITY OF RECOVERY rather than SPEED OF RESCUE. Employers
should be most concerned with selecting a qualified team and
supporting their familiarization with the shipyard, training and
drills to avoid further tragedies.
RELIANCE ON RESCUE. It might be argued that the proposed rescue
provisions require such attempts to be quite different from the
haphazard rescue attempts that are notorious for additional
fatalities (rather than the desired ``rescue''). This argument needs
to be considered in the context of the environment where it will be
applied. The very need for a confined space rescue implies that a
FAILURE HAS ALREADY OCCURRED IN THE PROGRAM. Objectively we should
be concerned that such a demonstrated failure to ensure safe entry
in the first place also calls into question the ability to safely
conduct a much more dangerous rescue attempt. A confined space entry
standard is being proposed specifically to address a grim body of
statistics which also tells us that rescue in confined spaces is
even more dangerous. Rescue teams will be made up of workers needing
protection too. We should be looking to improve other backups rather
than emphasizing rescue.
OSHA has concluded that it is important for rescue attempts to be
initiated as soon after an accident occurs as possible. If rescue
attempts are delayed too long, the rescue team could become a body
retrieval team instead. OSHA also believes that rescue teams must be
properly equipped and trained so that the dangers noted by Mr. Ocken
are minimized. Fatalities involving rescuers typically have involved
untrained or poorly trained individuals who are not properly equipped
for entry into confined or enclosed spaces or other dangerous
atmospheres. Final revised Subpart B, generic general industry permit-
space standard, Sec. 1910.146, ensures that rescue personnel are
properly equipped and fully trained to perform rescue. To address the
issue of timeliness in responding to requests for emergency services,
the introductory text to final Sec. 1915.12(e) requires employers to
provide a shipyard rescue team or to arrange for an outside rescue
service that can respond promptly. OSHA believes that this requirement
places a responsibility on employers to take whatever actions are
necessary to rescue entrants (rather than retrieve bodies) from spaces
covered by Subpart B. Employers must consider such factors as the
response time, equipment, and state of training for rescue services not
composed of the host employer's own employees when he or she chooses to
arrange for such services. The rescue service selected by the employer
must be able to arrive at the worksite quickly enough to perform rescue
and must be equipped to perform rescue for the employer to be in
compliance with the standard.
In paragraph (e)(1), OSHA is requiring that shipyard rescue teams
meet certain criteria. These criteria are intended to ensure that
shipyard rescue teams are properly trained and equipped to perform
rescue. Outside rescue services are already covered under the generic
permit-space standard in Sec. 1910.146(k)(1). Employers providing these
services are general industry employers (not shipyard employers) who
will be covered under the general industry standards for the vast
majority of their work. Therefore, the Agency believes that it is
reasonable and appropriate to apply existing Sec. 1910.146(k)(1) to
these employers rather than to adopt separate requirements for outside
rescue services in the shipyard standards.
Paragraph (e)(1)(i) requires each employee assigned to the shipyard
team to be provided with and trained to use the personal protective
equipment they will need to perform their function safely, including
respirators and any rescue equipment necessary for making rescues from
confined or enclosed spaces or other dangerous atmospheres.
Paragraph (e)(1)(ii) requires that employees assigned to the
shipyard rescue team be trained to perform their rescue functions
safely including entry into confined and enclosed spaces and other
dangerous atmospheres.
Paragraph (e)(1)(iii) requires that shipyard rescue teams practice
their skills at least once every 12 months. This provision also
requires practice drills that include the use of mannequins and rescue
equipment during simulated rescue operations involving physical
facilities that approximate closely those facilities from which rescue
may be needed. OSHA has included a note following this paragraph to
explain that the standard recognizes the performance of an actual
rescue as an acceptable substitute for practice drills.
Paragraph (e)(1)(iv) requires that at least one employee on each
rescue team maintain current certification in basic first aid skills
that include maintenance of an airway, control of bleeding, maintenance
of circulation and cardiopulmonary resuscitation (CPR) skills.
Paragraph (e)(2) requires the employer to inform outside rescue
services of the hazards that their teams may encounter when called to
perform rescues from confined or enclosed spaces or other dangerous
atmospheres at the employer's facility. The outside rescue service can
then use this information to train and equip their rescue teams
appropriately. This will help to ensure the protection of the rescue
service's employees and to minimize the time needed to rescue an
injured employee. OSHA has included a note following final
Sec. 1915.12(e)(2) to encourage employers to use the criteria listed in
paragraph (e)(1) to evaluate the skills of the outside rescue service
and to determine what in-house hazard information would be most helpful
to that service.
In the notice reopening the record on Subpart B, OSHA requested
comments on whether or not the standard should require the use of any
protocols (such as preplanning with local rescue services) to accompany
the use of an outside rescue service.
The rulemaking participants agreed that, while preplanning with
outside rescue services was necessary, the standard should not specify
any particular protocol (Ex. 11-3, 11-6, 11-13, 11-14, 11-15, 11-18,
11-20, 11-22, 11-24, 11-25, 11-29, 11-35, 11-37, 11-47). For example,
the Shipbuilders Council of America (Ex. 11-29) stated:
We believe that the inclusion of this subject matter will not
contribute significantly to an increase in the quality or response
time of a rescue team. Furthermore, such protocols, may be
inconsistent with ensuring that shipyards have the flexibility to
independently work out joint efforts that are compatible with local
conditions.
Several commenters, however, believed that the standard should
require cooperation and planning between the shipyard employer and the
rescue service (Ex. 11-30, 11-39, 11-49, 11-50). These commenters
argued that this cooperation and planning was necessary, if an employer
chooses an outside rescue service, in order to ensure effective rescue.
The U.S. Department of the Navy (Ex. 11-30) presented this view as
follows:
In those cases where the employer does not have an in-house
rescue team, OSHA should require the employer to preplan with the
outside authority who is expected to provide the rescue services.
The outside authority must be familiar with the employer's facility
so that delays in performing a rescue will be avoided or minimized.
It is recommended that OSHA require periodic drills to document that
a rescue by an outside authority can be performed in a meaningful
time frame.
OSHA agrees with these commenters that planning and cooperation is
necessary between employers and outside rescue services. Without
planning, the rescue service will be hindered in getting to the rescue
site and in equipping their rescue teams. Without cooperation, the
outside service's rescue team will be on their own when an emergency
arises. Several commenters stated their belief that the language in
SESAC's recommendation already required employers to plan for rescue by
outside services and to cooperate with these services to ensure that
the rescue teams are properly trained and equipped (Ex. 11-9, 11-26,
11-39). OSHA agrees with these commenters, and final Sec. 1915.12(e)(2)
adopts the SESAC recommended language with only minor editorial
changes.
Paragraph (f) of final Sec. 1915.12 contains requirements for
exchanging hazard information between employers. This paragraph
requires that each employer whose employees work in confined or
enclosed spaces or other dangerous atmospheres ensure that all
available information on the hazards, safety rules, and emergency
procedures concerning those spaces is exchanged with other employers
whose employees may occupy the same spaces. The purpose of this new
rule is to assure that knowledge of the hazards in the place of
employment, particularly those hazards that may change daily or with
each new contractor or subcontractor, has been communicated to all
employees.
The rulemaking participants overwhelmingly approved the adoption of
the requirements related to exchanging hazard information between
employers as listed in the notice reopening the record (Ex. 11-1, 11-2,
11-3, 11-4, 11-5, 11-9, 11-13, 11-15, 11-19, 11-20, 11-24, 11-26, 11-
29, 11-35, 11-37, 11-39, 11-47, 11-49, 11-50, 11-52, 11-53). These
rulemaking participants advocated that the SESAC recommendations be
incorporated in their entirety. They maintained that cooperation and
the exchange of information between contractor and employer was
essential for the protection of all workers involved. Dreadnought
Marine, Inc. (Ex. 11-52), expressed this view as follows:
It is essential that contractors who perform work in confined
spaces be provided this information by the employer. Contractor
personnel who work near [confined] spaces need to understand and
adhere to the signs, placards, or other warnings posted by the
employer. DMI agrees with SESAC's proposed additions entitled ``(g)
Duty to other employers.''
A few commenters believed that OSHA should also require contractors
to inform the shipyard employer of any hazard the contractor introduces
into the space (Ex. 11-30, 11-51). They argued that, because the
contractor can bring hazards into confined or enclosed spaces or other
dangerous atmospheres that endanger all employees in the space, the
standard should impose duties on the contractor which correspond to
those imposed on the employer. The IBEW (Ex. 11-51) expressed their
recommendations as follows:
We concur with the statements made in paragraph (C) noting the
last statement, ``Contractors working on a job site can endanger not
only their employees, but other employers' employees as well.'' With
this in mind, we feel that a contractor is also obligated to inform
the host employer of the hazards they will introduce into the work
area or confined space.
OSHA agrees with the IBEW. Contractors create hazards or bring
hazards into the space which affect the safety of all employees working
in the space. Therefore, the final rule incorporates the SESAC
recommendation modified as necessary to obligate all employers to
exchange necessary hazard information.
3. Sec. 1915.13 Cleaning and Other Cold Work
This section sets forth locations and further testing and
precautions that must be observed before and during cleaning and cold
work.
In paragraph (a) of the final rule, OSHA describes the spaces to
which this section applies. The old standard referred to those spaces
in Sec. 1915.12(a)(1) (i) and (ii) and (b)(1) (i) through (iii). The
Agency proposed minor editorial changes, the most important of which
involved listing the spaces that must be tested, and ventilated if
necessary, before cleaning and cold work is begun. OSHA believes that
specifying the spaces that will be affected by Sec. 1915.13 in the
first paragraph will enable the employer to easily determine the scope
of the section. This listing, which replaces the reference to
locations, is an editorial revision of the previous requirements.
Paragraph (b)(1) provides that liquid residues in the tanks shall
be removed as thoroughly as practicable before manual cleaning starts.
As in the previous standard, special care is required to be taken to
prevent the spilling or the draining of these materials into the water
surrounding the vessel. For consistency with the expanded scope, OSHA
has added the requirement to take special care to prevent spills onto
the surrounding work area. If liquid residues were allowed to
contaminate the surrounding water or worksite, employees would be
endangered.
Paragraph (b)(2) requires that tests to determine the concentration
of flammable, combustible, toxic, corrosive, or irritant vapors must be
done by a competent person prior to starting cold work. This provision
has been brought forward from previous Sec. 1915.13(a)(3), which
required tests to maintain flammable vapors below 10 percent of the
LEL. OSHA believes that simply requiring tests does not give the
employer enough guidance about what tests are necessary to protect
workers during cleaning and other cold work. Therefore, OSHA is
specifying that tests be done for flammable, combustible, toxic,
corrosive, or irritant vapors.
Paragraph (b)(3)(i) of the final rule requires that when the
concentration of flammable or combustible vapors is equal to or greater
than 10 percent of the LEL, ventilation must be provided at flow rates
sufficient to keep the concentration of flammable vapors at a level
less than 10 percent of the LEL. Toxic, corrosive, or irritant vapors
are required to be maintained within the permissible exposure limits
and below IDLH levels by paragraph (b)(3)(ii).
The previous rule at Sec. 1915.13(a)(2) and the proposed rule at
Sec. 1915.13(a)(8) (53 FR 48108) allowed employers to ventilate only
major portions of a compartment when, due to the high volatility of
residues, concentration of flammable or combustible vapors of less than
10 percent LEL could not be achieved. In these circumstances, employers
had to continually monitor the major portion of the space as pockets of
hazardous vapor could shift into the work area thereby putting workers
at risk. OSHA does not believe such an approach to the monitoring
provides adequate protection for employees. The Agency believes that a
compartment in which any portion is above 10 percent of the LEL is
unsafe. In addition, conditions at or above 10 percent of the LEL could
result in air concentrations which exceed the OSHA PEL or IDLH. This
was clearly illustrated by Marine Chemists, Inc. (Ex. 7-24FF):
Many flammable products are also toxic or contain toxic
ingredients and in many cases 10 percent of LEL is well above the
recommended PEL and in some cases may exceed the IDLH, for example:
STYRENE The LEL is 1% Styrene=10,000 ppm, 10% LEL=0.1% Styrene=1,000
ppm, PEL for Styrene=100 ppm
In other words 10 percent for Styrene is 10 times the
recommended PEL.
Ventilating only portions of a compartment can mean that pockets of
hazardous atmospheres containing a variety of unknown levels of
flammable vapors can remain within a compartment providing a
significant potential for fire or explosion. Ignition could occur
through scraping or blasting. For example, the National Fire Protection
Association (Ex. 6-10) noted that ignition may occur from static
electricity.
NFPA does not believe that work in IDLH atmospheres should be
encouraged, except for the purposes of emergency rescue. NFPA does
not support the proposal of working in UEL atmospheres. The
potential hazards associated with ignition sources, such as static
electricity, and the introduction of air to bring an atmosphere
above the UEL within the flammable range, are significant and
difficult to control. The additional testing requirements would also
be significant.
This concern was also expressed by Independent Testing and
Consultation, Inc. (Ex. 6-24).
All ignition sources cannot easily be eliminated. There remains
possible ignition due to static electricity. It has been my
experience that owners and operators would rather clean or otherwise
make safe a tank or compartment even if the work required in the
compartment is of the briefest duration.
The Department of the Navy (Ex. 6-31) stated that the possibility
of an explosion could still be present when only the major portions of
a compartment are required to be ventilated. They noted that
ventilation should be used to alleviate a hazardous atmosphere and that
continuous monitoring alone will not prevent the possibility of an
explosion.
One commenter, Sound Testing, Inc. (Ex. 6-8), questioned OSHA's
acceptance of the 10 percent LEL level.
It distresses me that even today we are still using the 10% LEL
in helping to determine whether a space is ``Safe for Workers''. I
have written about 10,000 Marine Chemist certificates, involving
tens of thousands of compartments and I cannot recall a single
instance where I wrote ``Safe for Workers'' about a tank reading
even 2% LEL. Why, then, is OSHA giving a ``reference point''
significance to 10% LEL as ``Safe for Workers'' criterion?
OSHA agrees with NFPA, Independent Testing and Consultation, Inc.
and the Navy and is therefore, persuaded that an entire compartment
must be ventilated sufficiently to bring the level of flammable and
combustible materials below 10 percent of the LEL. Because the
ventilation to maintain conditions in the major portion of a
compartment would already be in place, increasing or redirecting the
ventilation so that it now adequately ventilates the entire compartment
would put little or no additional burden on employers.
As to the use of the ``less than 10 percent LEL'' as the level to
be achieved before employees may work in a space, that level is adopted
from the applicable national consensus standard (NFPA 306, Appendix A),
which reflects current practices and sampling technology. The shipyard
industry has followed this standard for the past 23 years, and OSHA
believes that it provides a sufficient margin of safety. Of course,
employers are free to use a lower level in their workplaces for
additional margins of safety.
Paragraph (b)(4) of the final rule requires that the flammability
tests be conducted by a competent person ``as often as necessary''
during cleaning or cold work to determine the concentration of
flammable or combustible vapors present in the work space. This
provision in the final rule is based on the proposal (53 FR 48098,
48102; Specific Issue 7). The previous standard required a competent
person to test prior to commencement of cold work and with sufficient
frequency thereafter, in accordance with temperature, volatility of the
residues, and other existing conditions in and about the spaces to
ensure that the concentrations of flammable vapors were below ten (10)
percent of the LEL. As explained in the preamble to the proposal, some
interested parties requested clarification of the term ``frequently''
contained in the previous Sec. 1915.13(a)(3). (53 CFR 48098) They asked
OSHA to specify in the regulation how often tanks should be checked.
However, many more commenters (Ex. 6-3, 6-5, 6-10, 6-12, 6-13, 6-15, 6-
24, 6-28, 6-33, 6-34) urged the Agency to keep the standard flexible
enough to enable employers and employees to take into consideration all
the factors which may influence the need to recheck space conditions,
including temperature, work being performed in the space, time elapsed,
unattended tanks, work breaks, and ballasting or trimming. For example,
Bay Shipbuilding Corp. (Ex. 6-15) stated:
Frequency of testing must be based on the area conditions and
complexity of the hazard. Ventilation capability is also a major
factor in hazard control. Once an area has been made safe, and air
quality can be maintained with natural or mechanical ventilation,
there are no further steps needed unless the condition is modified
by some events such as a spill, leak, or injection of an
environmentally altering element. Otherwise, the only thing to do is
to continue monitoring (which is cost prohibitive); or base the
checks on the HMIS scale for health, flammability, and reactivity of
the product. The higher the HMIS rating, the more frequent the
checks.
The Department of the Navy (Ex. 6-31) commented:
The term frequently is too vague and should be redefined to
specify that, re-testing should be dependent on alteration of
specific atmospheric conditions, manipulation of valves, or opening
of manholes at the worksite.
Another commenter, Bath Iron Works Corporation (Ex. 6-28), also in
support of flexibility, stated:
No easy definition exists for all circumstances requiring
additional ``frequent'' testing. This is a situation which requires
the judgment of the Marine Chemist, based on his knowledge of the
last three cargoes, their properties and the effectiveness of the
cleaning procedures used. Some cargoes, such as alcohols, light fuel
oils, etc., leave no harmful residues after adequate tank cleaning
and ventilation. Under such situation, testing every 24 hours is
adequate. Other cargoes leave residues, or, particular tank coatings
partially absorb cargo residues, only to release vapors slowly over
time, regardless of how the cleaning operations were conducted.
These conditions require atmospheric testing more frequently.
OSHA agrees with the commenters' views that the frequency of
testing an atmosphere is best determined by the specific situation
encountered and that a requirement to recheck a tank at specified
intervals would not necessarily raise the level of safety. However, it
is imperative that the atmosphere be checked often enough to ensure
that it is safe for workers. To that end, Appendix A to Subpart B in
the final rule provides supplementary information to assist employers
and employees in determining the frequency with which a tank must be
tested in order to ensure atmospheric conditions are being maintained.
The six most common factors (temperature, work in the tank, period of
time elapsed, unattended tanks, work breaks, and ballasting or
trimming) are discussed, and examples are provided as guidance.
Appendix A is unchanged from the proposal (53 FR 48110).
Paragraph (b)(5) requires releases of flammable, combustible,
toxic, corrosive, irritant, and fumigant materials to be cleaned up as
work progresses. The requirement that liquid residues of flammable and
toxic materials, which includes all of the contaminants described
above, were to be cleaned up as work progresses was brought forward
from the previous provision Sec. 1915.13(a)(1). In this final rule,
OSHA has listed additional materials, corrosive, and irritant, that
must be cleaned up as work progresses because they can be dangerous to
employees working in these hazardous atmospheres.
Paragraph (b)(6) prohibits entry into spaces where the
concentration of flammable or combustible vapors equals or exceeds 10
percent of the lower explosive limit and specifies the limited
exceptions under which an employee may enter or work in such spaces.
The exception is unchanged from the previous rule, Sec. 1915.12(d), but
has been placed in the cleaning and other cold work section for
clarification. An employee may enter the space for emergency rescue or
for a short duration to install the ventilation required to start
operations. In those instances there must be no ignition sources
present, the space must be monitored continuously, the atmosphere in
the space must be maintained above the UEL, and appropriate personal
protective equipment must be provided. A note has been added as a
reminder that other provisions for work in IDLH and other dangerous
atmospheres are located in Subpart I, Personal Protective Equipment, of
this part.
Paragraph (b)(7) of the final rule requires that a competent person
test ventilation discharge for possible accumulation in concentrations
that may be hazardous to employees.
Paragraph (b)(8) requires that when the test required in paragraph
(b)(7) above indicates that concentrations of exhaust vapors that are
hazardous to employees are accumulating, all work in the contaminated
area shall be stopped and the employees evacuated until the vapors have
dissipated or been removed. These two requirements are the same as the
existing requirements in Sec. 1915.13(a)(5). OSHA has separated these
two requirements for clarity, redesignating them as proposed paragraphs
(b)(9) and (b)(10) and as paragraphs (b)(7) and (b)(8) of the final
rule.
Paragraph (b)(9) of the final rule requires that only approved
explosion-proof, self-contained portable lamps shall be used in spaces
described in paragraph (a) of this section before the spaces have been
certified as ``Safe for Workers.'' The previous rule, Sec. 1915.13(b),
had the same requirement. Paragraphs (b)(7), (b)(8) and (b)(9) of the
final rule are being promulgated with several editorial changes for
clarity.
Paragraph (b)(10) of the final rule requires that signs that can be
understood by all employees and that prohibit sources of ignition be
posted. Sources of ignition include smoking and open flames that were
specified in the previous Sec. 1915.13(c). This requirement merely
states what was implicit before; that is, that signs must be clearly
understood by all employees. Numerous comments were received on the
subject of signs (Ex. 6-3, 6-4, 6-6, 6-8, 6-10, 6-12, 6-15). A common
concern was expressed by the U.S. Coast Guard who said that in their
area, most shipyard workers possessed a limited command of the English
language. They noted that these workers tended to avoid reading long or
confusing documents and that for them, a simple statement at each space
would be most effective (Ex. 6-4). OSHA is addressing this problem by
requiring that the sign be understood by all employees.
The previous standards required signs prohibiting smoking and the
use of open flames to be posted on the open deck adjacent to the access
to spaces described in Sec. 1915.14(a). With the expansion of the scope
to include land-side operations, the final rule deletes the reference
to decks and substitutes directions for posting that apply to the
entire shipyard. Signs must now be prominently posted at the entrance
to those spaces, in adjacent spaces, and in the open area adjacent to
those spaces. Signs must be ``prominently posted,'' i.e., clearly
visible to affected employees. For example, signs posted behind a door
do not effectively advise or warn employees of the working conditions.
The purpose and intent of the language in paragraph (b)(10) of the
final rule is to ensure that all employees are made aware of the danger
of ignition sources in the workplace.
Paragraph (b)(11) of the final rule requires that all air moving
equipment and component parts that are capable of generating a static
electrical charge of sufficient energy to create a source of ignition
be bonded electrically to the structure of a vessel or vessel section
or, in the case of land-side spaces, grounded to prevent unintentional
discharge of a static charge. This requirement is the same as the
previous rule, Sec. 1915.13(d), except that land-side operations are
now covered.
Paragraph (b)(12) of the final rule requires that fans have non-
sparking blades and that portable air ducts be of non-sparking
materials. This requirement is unchanged from the previous rule,
Sec. 1915.13(e). In its effort to make regulatory text more concise,
OSHA has combined proposed paragraphs Sec. 1915.13(b)(14) and (15) as
paragraph (b)(12) of the final rule.
The Note OSHA proposed to include at the end of this section has
been rewritten in note format and is carried forward into this final
rule as follows:
Note: See Sec. 1915.12(c) of this part and applicable
requirements of 29 CFR part 1915, subpart Z for other provisions
affecting cleaning or cold work.
By including this final note in Sec. 1915.13, OSHA is reminding
employers of other Subparts of part 1915 as well as paragraphs of this
Subpart that may apply.
4. Sec. 1915.14 Hot Work
This section addresses the safety precautions that must be taken
prior to starting hot work in or on spaces and adjacent spaces that
contain or have contained combustible or flammable liquids or gases,
related piping and accessories. The requirement that certain spaces
must be certified ``Safe for Hot Work'' by a Marine Chemist or a Coast
Guard authorized person before hot work is permitted is retained from
the previous standard. This section also clearly identifies those
locations within shipyard employment where a shipyard competent person
is allowed to approve hot work.
The scope has been expanded to cover land-side confined and
enclosed spaces and other dangerous atmospheres in the shipyard as well
as vessels and vessel sections, in other words, all of shipyard
employment. The original section covered employees engaged in
shiprepairing, with certain sections covering only shipbreaking. OSHA
proposed to expand coverage to all shipbuilding, shipbreaking, and ship
repair (53 FR 48094) and with the reopening of the record OSHA sought
comment on expanding the scope to all shipyard employment.
OSHA requested public comment on whether permits should be required
for hot-work in all of shipyard employment, and, if so, whether the
permits need to be posted (57 FR 28155, June 24, 1992). Over 30
commenters responded (Ex. 11-2, 11-3, 11-6, 11-14, 11-15, 11-18, 11-19,
11-20, 11-21, 11-24, 11-25, 11-26, 11-27, 11-28, 11-30, 11-36, 11-37,
11-38, 11-39, 11-40, 11-41, 11-43, 11-44, 11-29, 11-30, 11-31, 11-34,
11-35, 11-45, 11-47, 11-49, 11-50, 11-51, 11-53). Most of the comments
set forth the steps that must be taken before hot work may be done,
regardless of whether a formal permit is issued. They noted that the
spaces must be evaluated and tested to determine their conditions
before entry or hot work can begin. For confined spaces determined to
be ``safe for hot work,'' they said a certificate is issued by a Marine
Chemist and posted at the work site. They asserted that this practice
is followed throughout the maritime industry. Most indicated that
requiring hot work permits in addition to the certificate would not
increase the safety of hot work.
The need for hot work permits in shipyards was considered and
unanimously rejected by SESAC at their September 3, 1992, meeting (Tr.
470). Chairman Linwood Temple, CMC, argued that a permit system would
be useless and less protective (SESAC, Tr. September 3, 1992, 468-469).
Lt. Commander Joe Ocken from the 5th Coast Guard District testified
that OSHA ``should not * * * take the general industry standard
language [on permits] and carry that over into 1915.12'' (SESAC Tr.
September 3, 1992, 461). Captain Lawrence Reed, representing NIOSH,
stated that he shared:
* * * The concern of Lt. Commander Joe Ocken * * * that some [of
the provisions of the permit required confined space standard] * * *
are less protective than the existing language of 1915.14 and [that
he] would propose we go with the existing 1915.14. (SESAC Tr.
September 3, 1992, 467-468)
Mr. Charles Klein, representing Newport News Shipbuilding, stated:
* * * What the shipbuilding industry and shiprepairing industry
is doing right now with respect to confined spaces is working fine.
The number of explosions that you see, the number of fatalities that
you see, are virtually nil, and that would suggest that the existing
language that's found in 1915 is more than adequate, and, in fact,
probably would be better taken over to the general industry than
what is proposed for general industry. (SESAC Tr. September 3, 1992,
465-466)
Mr. Lou D'Ambrosio, representing the Washington and Northern Idaho
District Council of Laborers' International Union of North America,
agreed that the permit system would be less protective (SESAC Tr.
September 3, 1992, 469).
OSHA has considered the evidence and agrees with the SESAC
consensus that workers in shipyard employment are adequately protected
by the current hot work standards, without the need for a permit
system. Shipyards are unique in that they rely on Marine Chemist and
competent persons to oversee confined and enclosed spaces and other
dangerous atmospheres. In many locations, a Marine Chemist is required
to issue a certificate before any hot work can be done. The Marine
Chemist Certificate can only be issued when conditions within and
adjacent to spaces which have contained a flammable or combustible gas
or material have been cleaned and inspected and found to be safe (gas
free). Moreover, the certificate specifies other requirements for entry
and work such as ventilation, fire watch placement, and personal
protective equipment, and requires a competent person to reinspect and
test the space as directed in order to maintain the conditions of the
Marine Chemist certificate. Similarly, the competent person cannot
grant permission for hot work in those locations that he or she is
allowed to test and certify until the conditions are safe for hot work.
In addition, both the Marine Chemist and the competent person are
required to produce written certifications that must be posted, as
required in Secs. 1915.14(a)(2) and 1915.7(d) (1) and (2) respectively.
As added protection, the Marine Chemist requires a competent person to
recheck the space to ensure that conditions do not change. If there is
a change in the space, the competent person must stop work and recall
the Marine Chemist to recertify that the space is safe for hot work
before work can restart. These certifications and recordings are
comparable to permits, in that an employee may not perform hot work in
a confined or enclosed space or other dangerous atmosphere until a
certificate is issued. OSHA is persuaded that the current requirements,
modified for clarity, provide protection comparable to Sec. 1910.146 to
employees in the shipyard. Therefore, OSHA is not requiring hot work
permits in subpart B.
OSHA also requested comment on whether hot work should be
prohibited on insulated bulkheads and if so, whether all the insulation
needed to be removed. The Agency asked whether there have been
situations where toxic vapors have evolved from heated insulation, and
whether fires have broken out during and after hot work operations. (53
FR 48102) A number of parties filed comments on this issue (e.g., 6-8,
6-12, 6-15, 6-18, 6-21, 6-22, 6-23, 6-24, 6-26, 6-31, 6-33, 6-34, 6-36,
6-37). These comments provided a wide range of views and some anecdotal
information, but contained insufficient evidence to indicate that hot
work on insulated bulkheads should be prohibited. Therefore, OSHA is
not addressing this issue in subpart B.
Paragraph (a)(1) requires a Marine Chemist or a U.S. Coast Guard
authorized person to certify certain spaces as ``Safe for Hot Work''
before hot-work may be done on or in them. Other than the expansion of
coverage to land-side, the requirements for hot work are the same as in
the previous standard. However, Sec. 1915.14 has been reorganized and
editorial changes have been made to add clarity.
Paragraph (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) list the confined
and enclosed spaces and other dangerous atmospheres along with their
adjacent spaces within shipyard employment that must be inspected and
tested by a Marine Chemist or Coast Guard authorized person prior to
hot work. OSHA has deleted all references to tank vessels and dry
cargo, miscellaneous and passenger vessels because the scope now
includes all vessels and vessel sections and land-side hot work
activities. The requirements are unchanged from the previous
requirements of 1915.14 (a)(1)(i), (a)(1)(ii), and (a)(1)(iii), but
editorial changes have been made to add clarity.
Paragraph (a)(1)(iv) has been changed and relocated for clarity and
consistency. In the previous rule, a Marine Chemist certificate was not
necessary for hot work on dry cargo, miscellaneous, and passenger
vessels when the work was performed on spaces adjacent to cargo tanks,
as long as the gas or liquid in the tanks had a flash point below
150 deg. Fahrenheit and the work was performed at least 25 feet (7.5 m)
away from the tank. This exception has been expanded to any work in
shipyards where the criteria are met, because the criteria are equally
applicable to land-side operations.
Paragraph (a)(2) carries forth the requirement that the certificate
issued by the Marine Chemist or the Coast Guard authorized person be
posted in the immediate vicinity of the affected area and kept on file
for a period of at least 3 months from the date of completion of the
operation for which the certificate was generated.
Paragraph (b) covers those areas of the vessel and land-side spaces
within the shipyard where a competent person can give permission for
hot work to proceed after he or she has inspected and tested the space
or area for flammability. The substantive requirements of this
paragraph remain unchanged from the previous requirements except that
land-side confined and enclosed spaces and other dangerous atmospheres
are now included.
Paragraph (b)(1) states that hot work is not permitted in or on any
of the listed spaces or adjacent spaces in Sec. 1915.14(b)(1) (i)
through (v) until the spaces have been tested for flammability and
found to contain no concentrations of flammable vapors equal to or
greater than 10 percent of the lower explosive limit. These spaces are:
Dry cargo holds; the bilges; the engine or boiler room where a Marine
Chemist's or a Coast Guard's authorized person's certificate is not
required; vessels and vessel sections where a Marine Chemist or Coast
Guard authorized person's certificate is not required under paragraph
(a)(1)(i) of this section; and land-side enclosed or confined spaces or
other dangerous atmospheres not covered in Sec. 1915.14(a). The
previous rule, in Sec. 1915.14 (b) and (c), contains the same
requirements found in Sec. 1915.14(b)(1) (i) through (iv). Section
1915.15(b)(1)(v) extends the coverage to land-side operations within
shipyard employment.
In paragraph (b)(2), requires a space or adjacent space that has
been tested and found to contain a concentration of flammable vapors
equal to or greater than 10 percent of the lower explosion limit to be
labeled Not Safe for Hot Work. The space or adjacent space must than be
ventilated at volumes and flow rates sufficient to ensure that the
vapor concentration is below 10 percent of the lower explosive limit.
This requirement is unchanged from the previous Sec. 1915.14 (b) and
(c).
Section 1915.14 (c) and (d) of the previous rule have been deleted
because their contents have been moved to other places in subpart B.
For example, hot work performed in engine and boiler rooms is now
covered by paragraph (b)(1)(iii), and the hot work from open decks and
tanks without overheads previously addressed by Sec. 1915.14(d) is now
covered in Sec. 1915.14 (a) and (b).
The previous rule allowed the employer to inert spaces with non-
flammable gas or water in shipbreaking operations. This provision was
not included in the 1988 proposal and no commenters addressed this
issue. OSHA is not carrying forth inerting as a specific provision
because hot work on an inerted space must be approved by a Marine
Chemist or Coast Guard authorized person. Work requiring a Marine
Chemist's certificate is thoroughly covered in paragraph 1915.14(a)
above. Finally Sec. 1915.14 ends with a note referring users to
Appendix A. Appendix A refers users to various other sections of part
1915 regulations that are directly relevant to hot work. Those
sections, especially Subpart D, Welding, need to be reviewed carefully
prior to starting hot work.
5. Sec. 1915.15 Maintenance of Safe Conditions
The principal substantive change to this section continues to
reflect OSHA's general decision to expand the scope of Subpart B to
cover all phases of shipyard employment as defined in the final rule.
Operations covered by the previous requirements in Sec. 1915.15 were
limited to ship repairing and shipbreaking. Under the previous rule,
only employers engaged in ship repairing operations needed to comply
with paragraph (a) of Sec. 1915.15 and only employers engaged in
shipbreaking operations needed to comply with paragraph (b) of
Sec. 1915.15. Because of the expansion of the scope of Subpart B to
include all phases of shipyard employment, the final rule consolidates
the requirements of Sec. 1915.15 paragraphs (a) and (b) into one
section of requirements that apply to all phases of shipyard
employment.
OSHA raised two issues in the proposal that are related to the
maintenance of safe conditions as regulated in this section. These
issues concern the frequency of retesting and the need for testing to
be accompanied by visual inspections.
Proposed Secs. 1915.13(b)(4) and 1915.15 addressed the requirement
to conduct atmospheric tests frequently. Proposed Sec. 1915.13(b)(4)
would have required that factors which influence the frequency of
rechecking, such as air temperature and residue volatility, be
considered when determining how often to retest, while proposed
paragraphs (d) and (f) addressed the need for frequent atmospheric
tests in order to maintain the initial working conditions in a tank.
Neither OSHA's previous standard nor the proposal specified how
frequently a tank should be rechecked. Public comment was solicited as
to whether OSHA should specify the frequency of testing in the
standard, and if so, what that frequency should be and why. OSHA also
asked if the factors which influence the need to check tanks frequently
should be addressed directly in the standard. Finally, the Agency
sought comment on whether OSHA should change the term ``frequently'' to
``as often as necessary'' and if so, why.
Many commenters addressed this issue and most favored requiring
testing ``as often as necessary'' and setting forth the conditions that
determine the actual frequency. For example, the U.S. Navy's
Environmental Health Center (Ex. 6-31) commented,
The term frequently is too vague and should be redefined to
specify that re-testing should be dependent on alteration of
specific atmospheric conditions, manipulation of valves, or opening
of manholes at the work site.
Shipbuilders Council of America, (Ex. 6-3) indicated that OSHA
should not attempt to define ``frequently.'' SCA stated that,
If an attempt is made to define the term ``frequently,'' it may
create more problems than it would solve. Illustrative is defining
``frequently'' as every two hours. There may be some tanks that only
need monitoring three times a shift instead of four. There are also
some tanks that may require continuous monitoring. Using the
terminology ``as often as necessary'' solves these problems, and
allows the individuals monitoring the areas a little more discretion
at utilizing their precious time wisely.
NFPA (Ex. 6-10) agreed that requiring testing ``as often as
necessary'' would be appropriate,
The standard is intended to provide minimum requirements.
Establishing a predetermined specified frequency for testing spaces
through regulations may not allow for the various factors which may
alter conditions * * * Once the initial entry has been authorized,
retesting is necessary at some frequency to ensure that conditions
are not changing thus endangering the safety of the workers in the
space. The frequency of retesting must be determined by the
individual conditions and circumstances of the work activity.
Various factors as described in Appendix A to Subpart B may affect
the initial conditions. Confined spaces need to be prepared on the
basis of initial entry, subsequent work, and safe exit. Most often
where accidents have resulted, there was either no testing for
initial entry or no consideration of the change in conditions which
might occur due to the work process or other factors. NFPA supports
the concept * * * that frequency of follow-up testing be expressed
in terms of ``as often as necessary''.
On the other hand the Commandant of the U.S. Coast Guard
recommended OSHA specify a 4 hour retesting minimum, although he also
acknowledged that Marine Chemists and competent persons must exercise
their judgment on frequency of testing.
* * * A minimum frequency should be specified * * * In general
spaces should be tested ``as often as necessary''. This phrasing
implies that relevant factors have been considered and a judgment
made about the need for retesting. Testing ``frequently'' does not
imply any judgment. * * *
This period should not exceed 4 hours for an occupied space or
24 hours for an unoccupied space. No person should be allowed to
enter an unoccupied space unless it has been tested/retested within
4 hours. The 24 hour requirement is an extension of NFPA 306-1988 2-
6.1 which states that ``Work authorized by the Certificate must
commence within 24 hours unless otherwise noted on the
Certificate.'' This should be extended to competent person testing
as well as Marine Chemist testing, especially since the role of the
competent person is one of monitoring conditions of spaces. Even if
a space is unoccupied it represents a hazard from explosion or
unauthorized entry.
The 4 hour requirement for occupied spaces is needed to ensure
that spaces are not entered unless the on-duty competent person has
first hand knowledge that the conditions of a tank have remained
unchanged from those of initial testing and entry authorization.
NIOSH recommended OSHA set the frequency of testing, but rather
than specifying as a minimum time interval, they listed the factors
that should be considered in determining how often an atmosphere must
be tested (Ex. 6-14),
NIOSH suggests that OSHA specify the frequency of atmospheric
testing. The frequency of atmospheric testing depends upon a number
of factors. These factors should be listed in the standard (such as
nature of hazard, temperature within tank, type of work in tank,
elapsed time, unattended tanks, work breaks, residue volatility,
etc.). Testing intervals should be established according to these
factors as determined by the following NIOSH-recommended hierarchy:
(1) Marine Chemist, (2) Certified Industrial Hygienist (CIH) or
Certified Safety Professional (CSP), or (3) Coast Guard Authorized
Person [Sec. 1915.11]. Furthermore, NIOSH suggests that `competent
person' [Sec. 1915.7], as defined by OSHA, is not trained
sufficiently to determine testing frequency. At a minimum, NIOSH
suggests that testing be done at `time of entry' and continuously or
periodically during occupancy, particularly if conditions are
changing.
Bay Shipbuilding (Ex. 6-15) commented,
Frequency of testing must be based on the area conditions and
complexity of the hazard. Ventilation capability is also a major
factor in hazard control. Once an area has been made safe, and air
quality can be maintained with natural or mechanical ventilation,
there are no further steps needed unless the condition is modified
by some events such as a spill, leak, or injection of an
environmentally altering element. Otherwise, the only thing to do is
to continue monitoring (which is cost prohibitive); or base the
checks on the HMIS scale for health, flammability, and reactivity of
the product. The higher the HMIS rating, the more frequent the
checks.
The American Waterways Shipyard Conference (AWSC) (Ex. 6-23)
commented,
The requirement to frequently test the confined spaces is
already defined by the nature of the work, i.e., the changing of
work shifts, etc. There is no need to further define the term in the
regulation.
Independent Testing and Consultation (Ex. 6-24) commented,
There is no way to define all of the parameters which will
decide how often a tank or compartment should be tested. The Marine
Chemist or Coast Guard authorized person can indicate on the
certificate, how often the space is to be tested. The wording in
1915.15 (d) and (f) should therefore be changed to `as frequently as
necessary to ensure. * * *
Bath Iron Works Corporation (Ex. 6-28) commented,
No easy definition exists for all circumstances requiring
additional `frequent' testing. This is a situation which requires
the judgment of the Marine Chemist, based on his knowledge of the
last three cargoes, their properties and the effectiveness of the
cleaning procedures used. Some cargoes, such as alcohols, light fuel
oils, etc., leave no harmful residues after adequate tank cleaning
and ventilation. Under such situations, testing every 24 hours is
adequate. Other cargoes leave residues, or, particular tank coatings
partially absorb cargo residues, only to release vapors slowly over
time, regardless of how the cleaning operations were conducted.
These conditions require atmospheric testing more frequently. Long
term experience at Bath Iron Works dealing with Diesel Fuel Marine
(DFM), JP-5, and several preservative coatings have shown no changes
in atmospheric conditions from one 24 hour period to another. In
these cases, the Coast Guard guidelines of testing once each 24
hours is adequate.
OSHA has taken reasonable measures of increasing the awareness
of the dangers of sealed or confined spaces by providing guidelines
and situations which could create hazardous atmospheres in the
discussion presented in Appendix A of the Proposed Rule. This
information, together with the knowledge that the Marine Chemist has
of the previous cargoes and his judgment, when passed on to the
Competent Person via instructions on his Marine Chemist Certificate,
should be adequate to define testing frequency under specific
conditions.
Pacific Marine Testing (Ex. 6-33) stated,
Frequency of testing atmosphere is determined by the specific
situation encountered. There are many variables which must be taken
into account before frequency of testing may be prescribed.
Finally, the Marine Chemist Association, whose members set the
frequency of retesting, (Ex. 6-34) commented,
The frequency of testing cannot be specified. There are too many
variables that may govern the frequency of testing. Please note
Appendix A Subpart B to the standard. The term `frequency' should
not be used and `as often as necessary' should be substituted.
OSHA agrees with those commenters who suggested that OSHA use the
performance language ``as often as necessary'' rather than cite a
specific frequency for retesting. As the majority of commenters
suggest, spaces vary and conditions within a space are subject to
change at different time intervals. Therefore, a specific schedule for
retesting all spaces could lead to unnecessary testing in some
instances and inadequate testing that may not identify hazardous
conditions as they arise in others. OSHA has concluded that those
individuals who test an atmosphere must have the flexibility to
determine the precise frequency of testing. However, OSHA is specifying
that the testing be done ``as often as necessary,'' in order to ensure
that changes in conditions are detected for each atmosphere. It is
imperative that the atmosphere be checked often enough to ensure that
it is safe for workers. To that end, Appendix A provides supplementary
information to assist employers and employees in determining the
frequency with which a tank must be monitored in order to ensure
atmospheric conditions are being maintained. OSHA's decision to use
performance language such as ``as often as necessary'' is also
consistent with the Agency's continuing position to use performance-
based standards where practicable.
Therefore, OSHA has amended the language of those requirements in
this section that previously required ``frequent'' testing to require
the testing of atmospheres ``as often as necessary'' in order to
provide flexibility to Marine Chemists and competent persons who test
spaces to determine the time and need for testing of atmospheres based
on the conditions in each dangerous atmospheres.
OSHA sought public comment on whether the shipyard competent person
should be required to conduct a physical examination of the tank and
pipelines when making a follow-up inspection.
The majority of comments on this issue discussed it in terms of
retesting to maintain safe conditions within all types of work spaces.
However, because OSHA believes that a visual inspection is an integral
part of any testing the reasoning in this discussion also pertains to
initial testing required in Sec. 1915.12, Precautions before entering.
Most commenters (e.g., Exs. 6-3, 6-4, 6-10, 6-14, 6-18, 6-31)
indicated it would be appropriate for competent persons to conduct
physical inspections of spaces they are checking during periodic
retesting of atmospheres. Some of them and others (Exs. 6-10, 6-18, 6-
31, 6-33, and 6-34) also indicated that it is currently industry
practice for well trained individuals who conduct follow-up testing to
physically inspect spaces during these follow-up inspections.
NIOSH (Ex. 6-14) commented,
The shipyard `competent person' should be required to conduct a
physical examination of the tank and pipelines during follow-up
inspections. Original conditions and intended purposes of tanks and
pipelines change continually in ship construction and repair. These
new uses can only be detected by physically examining them during
follow-up inspections.
The U.S. Coast Guard MIONY (Ex. 6-4) states,
Shipyard competent persons should be required to make physical
examination of each space retested. During ship repair, vessels are
often listed or trimmed for various reasons. This can cause
flammable, toxic, and corrosive residues to leak out of pipelines.
In practice these are rarely blanked and the isolation valves may
have been opened or leak. These residues may ignite during hot work,
harm workers on contact, or produce a hazardous atmosphere if there
is a temperature increase.
NFPA (Ex. 6-10) agreed, and noted that,
NFPA strongly supports the inclusion of a requirement that in
addition to atmospheric tests the shipyard competent person should
also be required to conduct a physical examination of the spaces and
associated pipelines. NFPA 306, 2-1 requires the Marine Chemist to
conduct a physical inspection and to conduct tests within the
spaces. For high flash point, low vapor pressure products such as
diesel, a test for flammable or combustible vapors is not
sufficient, since at atmospheric temperatures there are not enough
vapors being evolved for the combustible gas indicator to detect. It
is essential that physical inspections be conducted.
The Navy's Sea Systems Command (Ex. 6-12) commented,
The purpose of the follow-up check is to ensure conditions have
not deteriorated. The requirement [for a physical inspection] is
endorsed for hot work rechecks.
Similarly, the Commandant of the U.S. Coast Guard commented,
Because it is important for a Marine Chemist to make such
examinations, it is even more important that the competent person
also conducts such examinations.
By making a physical examination of the confined space the
competent person understands the tank conditions better, and it
helps to stress the importance of looking for other potential
problems in a confined space. For example, paraffinic residues on
bulkheads are sometimes partially cleaned in areas where minor
welding jobs will be done on the opposite side of the bulkhead (in
the adjacent space). Welders are unable to determine if they are
welding outside the cleaned area, but the competent person would
have the opportunity to detect a problem.
The Marine Chemist Association (Ex. 6-34) commented,
The shipyard competent person should definitely conduct physical
examinations of the interior of tanks and pipelines. Instrumentation
used to test the atmosphere of these structures do not always reveal
the presence of flammable or combustible materials. If these persons
are required to maintain safe conditions in enclosed and confined
spaced they must evaluate conditions other than atmosphere.
Northwest Marine Chemist (Ex. 6-18) asserted that,
There is no way to properly determine the condition of a space
without physically entering.
Independent Testing and Consulting, Inc. (Ex. 6-24) commented,
The shipyard competent person should be required to conduct a
physical examination of the tank (provided it is safe to enter) and
make any necessary tests of piping provided that the piping has been
approved for hot work on the Marine Chemists certificate.
Chemical Engineering Service, Inc. (Ex. 6-25A) commented,
The original intent for the position of shipyard competent
person was to detect conditions where, for some reason, there was a
decrease in oxygen or an accumulation of combustible gas. Left
undetected, these situations could develop into acute hazards for
shipyard personnel. While these conditions are relatively rare,
their occurrence could easily lead to catastrophic loss of life and
property.
A much more chronic problem is fire hazards in the shipyard
resulting from the introduction of flammable or combustible material
subsequent to the initial internal inspection for hot work. This
could be the result of leaking piping, accidental or intentional
contamination, or gradual buildup of trash and other combustible
materials. With the exception of liquids with a reasonably high
vapor pressure, these fairly common conditions can only be detected
with an internal inspection.
If it is the intent of OSHA to utilize the shipyard competent
person to control fire hazards in addition to atmospheric hazards,
internal inspection of all spaces must be required.
Atlantic Environmental & Marine Services (Ex. 6-27) commented,
* * * Shipyard Competent Persons should be required to conduct
an on-site survey of tanks and pipelines when making follow up
inspections.
The U.S. Navy's Environmental Health Center (Ex. 6-31) commented,
Yes, the shipyard competent person should be required to conduct
a physical examination of the tank and pipelines when making a
follow-up inspection. The current foundation of the NAVSEA Technical
Manual lists a requirement in Section 23.4 of reference (c) for
conducting a physical examination of the tank and pipelines upon
reinspection. The condition for entry must be defined, such as, use
of ventilation, PPE, non-sparking tools, and whether there is to be
continuous or periodic testing.
Pacific Marine Testing (Ex. 6-33) commented,
The shipyard competent person, when trained properly by a
sanctioned training such as the one developed and presented by NFPA
and its supporters, is taught to conduct a physical examination of
the tank and pipelines when making a follow-up inspection. A
determination of a safe condition can be made only when the shipyard
competent person has conducted a physical examination.
Only the Shipbuilders Council of America (Ex. 6-3, pg. 3) and the
Newport News Shipbuilding (Ex. 6-6, pg. 4) urged OSHA to allow a
qualified person to decide whether a physical examination is necessary.
The qualified person should not be required to conduct a full
physical examination of the tank and pipelines when making a follow-
up inspection. . . . the qualified person should be given
appropriate flexibility when making this determination based on all
available data, including a physical inspection, where necessary.
OSHA agrees with the majority of commenters on this issue and has
concluded that, because of changing conditions, appropriate retesting
must include a physical inspection of a tank or pipelines for leaks or
other build-ups of hazardous substance within a certified space.
Physical inspection of a space is an integral part of an effective
follow-up inspection or monitoring program. For example, an actual
physical examination is crucial in eliminating housekeeping debris that
could be fire hazards such as rags, insulation, or heavy oil residues
in the tank deep spot. Therefore, OSHA is requiring physical
inspections be conducted during follow-up inspections of tested spaces.
In paragraph (a) of the final rule OSHA continues the requirement
that was found in the first sentence of paragraph (a)(1) in the
previous text. The employer is required to disconnect, blank off, or
otherwise block by a positive method all pipelines that could carry
hazardous materials into spaces that have been tested and found safe
for work. There were no substantive comments addressing this provision.
Although OSHA has clarified the language with this rule, the substance
remains the same.
The second sentence of paragraph (a)(1) in the previous text
required that manholes and other closures of a space that were secured
during the testing of the space remain secured afterwards to prevent
alteration of the tested space atmosphere. OSHA has eliminated this
requirement from the final rule. OSHA has decided that it would be more
appropriate to recognize that closures of tested spaces may be opened
safely for various reasons during work operations and that a
requirement for them to remain secured was unnecessary. What is
critical for safety is that the atmospheric conditions within the space
remain within permissible levels. Therefore, OSHA will continue to
recognize the need to test and monitor spaces as necessary. This will
assure that safe work atmospheres are maintained and if they are not,
work must be stopped regardless of how the atmosphere becomes
contaminated.
Paragraph (b) of the final rule (as was the third sentence of
paragraph (a)(1) of the previous rule) is intended to ensure that a
safe working environment is maintained within a previously tested
space, even if outside contaminants may have been introduced into the
space after initial testing. The final rule says that when any changes
occur that could alter conditions within the space or other dangerous
atmospheres, work shall be stopped until the space is visually
inspected, retested and found to comply with Secs. 1915.12, 1915.13 and
1915.14 of this part, as applicable. To provide guidance to employers
on what changes would require work be stopped, OSHA has included a note
with examples.
Paragraph (c) of the final rule requires a competent person to test
atmospheric conditions within a previously tested space as often as
necessary to maintain conditions as specified on certificates issued by
a Marine Chemist or Coast Guard authorized person. The Agency has
changed the format of the final rule and this new paragraph (c)
addresses only the language that was found in paragraph (a)(4) of the
previous rule. The requirements that were found in paragraphs (a)(2)
and (a)(3) of the previous text are not addressed in this section
because they are covered elsewhere in OSHA's requirements or they have
been moved to a more appropriate section of the final rule. For
example, previous paragraph (a)(3) required employers to ensure that
employees understand and obey all warning signs, tags, and the language
of Marine Chemists' certificates. The requirement addressing employee
understanding of the warning labels is found in Sec. 1915.16 of this
Subpart. OSHA considers paragraph (c) of the final rule to be an
editorial change to the language that was found in the first sentence
of paragraph (a)(4) in the previous rule and therefore, non-
substantive.
In paragraph (d) of the final rule, OSHA requires that if a
competent person finds that atmospheric conditions within a space fail
to meet the applicable requirements of Secs. 1915.12, 1915.13 and
1915.14 of Subpart B, work in the space must be stopped, the space
retested by a Marine Chemist or Coast Guard authorized person and a new
certificate issued in accordance with Sec. 1915.14(a) before work may
resume. The language found in paragraph (d) is similar to that found in
the second sentence of paragraph (a)(4) of the previous standard and
the basic requirement remains the same. Modifications to the previous
language have changed references to the maintenance of gas-free
conditions to the maintenance of conditions meeting Secs. 1915.12,
1915.13, and 1915.14. These sections address not only gas-free
conditions but also other hazardous atmospheric conditions to which an
employee may be exposed, which are also within the scope of the
certificate. OSHA believes that separating the two requirements found
in paragraph (a)(4) of the previous rule into separate paragraphs (c)
and (d) of the final rule will improve compliance by making the rule
easier to understand.
Paragraph (e) of the final rule requires a competent person to
continue to test as necessary those spaces he or she has tested
previously to ensure that the atmospheric conditions within the tested
space are maintained. This is consistent with both NFPA 306 and
industry practice. The substance of the final rule is similar to the
language proposed in 1988 and the first sentence of paragraph (b)(2) of
the previous rule except that, like paragraph (c) above, tests are to
be conducted for all relevant atmospheric conditions.
In paragraph (f) of the final rule, OSHA requires that all work be
stopped in those spaces tested previously by a competent person when a
competent person finds that the conditions within the space no longer
meet the requirements set forth elsewhere in this subpart. The language
in paragraph (f) of the final rule is similar to the language proposed
in paragraph (g) of the 1988 proposal and is parallel to the language
contained in paragraph (d) above.
Like paragraph (d) above, paragraph (f) of the final rule drops the
list of specific atmospheric conditions and instead references
Secs. 1915.12, 1915.13 and 1915.14. The substantive requirement for
stopping work until a space found to be hazardous has been retested and
found safe for workers has not changed from the previous language.
6. Sec. 1915.16 Warning Signs and Labels
The substantive change OSHA has made to this section involves the
expansion of the scope of the previous requirements to all phases of
shipyard employment. The previous language limited the scope of
Sec. 1915.16 to ship repairing operations only. The reasons for the
expansion in scope of this section are discussed above in Sec. 1915.11,
Scope and Application.
The provisions in final Sec. 1915.16 require that signs and labels
that are posted to meet the specific requirements contained in other
sections of Subpart B be presented in a manner that can be understood
by all employees. Like the previous standard, an individual tank or
other space need not be labeled separately if the whole area has been
tested and all means of access to the area are labeled with a warning
sign.
OSHA solicited public comment on whether Sec. 1915.16 should
require that all conditions be labeled on tanks. The majority of
responders who considered this issue (Ex. 6-8, 6-15, 6-21, 6-22, 6-23,
6-24, 6-36, 6-37, 6-38) supported the continuation of the previous
requirement that only tanks containing unsafe work conditions need to
be labeled. Other commenters (Ex. 6-4, 6-12, 6-28, 6-31) supported
labeling all locations that had been tested, whether safe or unsafe.
Still other commenters (Ex. 6-3, 6-6) suggested that only tanks
containing safe work environments be labeled.
Those commenters who supported continued use of the previous
requirement of posting only unsafe tanks are best represented by the
following comments. The American Waterways Shipyard Conference, (Ex. 6-
23) commented,
Current shipyard operations only provide warning signs for
unsafe tanks. If both conditions are marked with warning signs, then
it ceases to be an instant hazard recognition.
This was further emphasized by a comment from Sound Testing, Inc.,
(Ex. 6-8):
I have always found the present standard's section on warning
signs to be very workable. Not much is gained by labeling safe
places as such, for three reasons: 1. This practice would be very
costly; 2. The very idea of using a warning sign on a safe place is
illogical; and 3. Signs would proliferate. The more signs there are,
the less is the effect of any single sign. Signs should be used as
sparingly as possible, so that when we really need them they will be
effective.
On the other hand, the National Fire Protection Association (NFPA)
(Ex. 6-10) supported the placing of warning signs on only those tanks
that have been tested and found to be safe. NFPA states:
NFPA would support a requirement for placing warning signs on
tanks if the signs were specifically restricted to indicating spaces
which have been tested and suitably designated as ``SAFE.'' If signs
are required for all tanks which are ``SAFE'' then any tank which
does not have a sign is then interpreted by all employees to be
``NOT SAFE.''
OSHA has concluded that requiring only unsafe spaces to be labeled
as specified in Secs. 1915.12, 1915.13, or 1915.14 will provide the
most effective notice of atmospheric conditions that could endanger
employees. The Agency believes that the identification of hazardous
conditions is the most efficient means of utilizing signs or labels.
OSHA agrees with commenters who noted that warning signs should be used
only when necessary so that when they are posted, employees will take
notice of them. Shipyard employees are familiar with the labeling of
tanks that have been tested and found to be unsafe. On the other hand,
OSHA is not prohibiting the posting of other signs and labels an
employer may find appropriate for that employer's workplace, but the
Agency cautions employers about the overuse of signs and labels, which
could lead to decreased effectiveness. Moreover, in response to the
NFPA and other commenters who supported labeling ``safe'' spaces, OSHA
notes that spaces that have been tested and found to be safe are
required to be identified by the Marine Chemist's certificate or the
competent person's record of testing and recommendations. These
certificates and records provide the appropriate notice of safe working
conditions. There is insufficient evidence in the record to show that
changes to the labeling requirements would increase safety. For all
these reasons, OSHA is requiring that all tanks and other spaces that
fail to meet the requirements of Secs. 1915.12, 1915.13, or 1915.14, as
applicable, be posted with hazard warning signs or labeled with hazard
warning messages as required in those sections.
OSHA deleted paragraph (a) of the old and proposed rules which
required employers to notify employees of dangerous work areas. The
reason for this is that the posting requirements for various
atmospheric conditions are specifically addressed in their respective
sections.
The final rule text and the proposed rule text differ in that OSHA
proposed that employers be responsible for ensuring that all employees
``obey'' all warning signs. One commenter, Bay Shipbuilding Corp., (Ex.
6-15) addressed the issue of employee compliance with safety
regulations.
The employee must share the responsibility to obey and observe
proper practices along with the employer. Every employee must be
held accountable for their actions.
In this regard, OSHA notes that under the OSH Act, employers are
responsible for compliance with standards issued under Section 6, and
enforcement is directed at the employer and not the employee.
In this final rule, OSHA has revised the previous rule by providing
two basic requirements addressing hazard warning messages to employees.
In paragraph (a), OSHA is requiring that all hazard warning
messages that are posted to comply with respective paragraphs of
Secs. 1915.12, 1915.13, and 1915.14 be presented in a manner or format
that can be perceived and understood by all employees.
OSHA proposed in paragraph (a) that the employer ensure that
employees understand all warning signs and limitations provided by
Marine Chemists and the OSHA Form 74. OSHA has dropped the reference to
the OSHA Form 74 since it is no longer required, and has added new
language to clarify that the employer must present warning materials in
a manner that can be understood by all of his or her employees. There
are many methods such as dual language signs or pictorial graphics that
an employer may use to ensure that employees can and do understand all
warning signs and instruction addressing dangerous working conditions.
This is consistent with the position OSHA has taken on other
rulemakings that address signs, tags, and labels. For example, in 29
CFR Sec. 1910.145, OSHA permits the use of accident prevention tags
using graphic or second language text where necessary. Moreover, the
obligation to present signs and labels in a manner that can be
perceived by all employees also means that the label or sign must be
posted in a place where employees will see it in the course of their
work. Other factors the employer must consider are size, material, and
methods of attachment. In short, this new performance-oriented language
requires that employers provide adequate notice to all employees of
dangerous working conditions, but leaves the method of presentation up
to the employer.
In paragraph (b) of the final rule, OSHA continues to allow
employers to post the warning signs or labels at all means of access
rather than requiring each tank or space to be labeled, as long as the
entire space has been tested and certified. This is the same as
paragraph (c) of the previous standard.
III. Statutory Considerations
A. Introduction
OSHA has described the hazards found in confined and enclosed
spaces and other dangerous atmospheres in shipyard employment and the
measures required to protect affected employees from those hazards in
Section I, Background, and in Section II, Summary and Explanation of
the Final Rule, earlier in this preamble. The Agency is providing the
following discussion of the statutory mandate for OSHA rulemaking
activity to explain the legal basis for its determination that the
Confined and Enclosed Spaces and Other Dangerous Atmospheres standard,
as promulgated, is reasonably necessary to protect affected employees
from significant risks of injury and death.
Section 2(b)(3) of the Occupational Safety and Health Act
authorizes ``the Secretary of Labor to set mandatory occupational
safety and health standards applicable to businesses affecting
interstate commerce'', and section 5(a)(2) provides that ``[e]ach
employer shall comply with occupational safety and health standards
promulgated under this Act'' (emphasis added). Section 3(8) of the OSH
Act (29 U.S.C. 652(8)) provides that ``the term `occupational safety
and health standard' means a standard which requires conditions, or the
adoption or use of one or more practices, means, methods, operations,
or processes, reasonably necessary or appropriate to provide safe or
healthful employment and places of employment.''
In two recent cases, reviewing courts have expressed concern that
OSHA's interpretation of these provisions of the OSH Act, particularly
of section 3(8) as it pertains to safety rulemaking, could lead to
overly costly or under-protective safety standards. In International
Union, UAW v. OSHA, 938 F.2d 1310 (D.C. Cir. 1991), the District of
Columbia Circuit rejected substantive challenges to OSHA's lockout/
tagout standard and denied a request that enforcement of that standard
be stayed, but it also expressed concern that OSHA's interpretation of
the OSH Act could lead to safety standards that are very costly and
only minimally protective. In National Grain & Feed Ass'n v. OSHA, 866
F.2d 717 (5th Cir. 1989), the Fifth Circuit concluded that Congress
gave OSHA considerable discretion in structuring the costs and benefits
of safety standards but, concerned that the grain dust standard might
be under-protective, directed OSHA to consider adding a provision that
might further reduce significant risk of fire and explosion.
OSHA rulemakings involve a significant degree of Agency expertise
and policy-making discretion to which reviewing courts must defer. (See
for example, Building & Constr. Trades Dep't, AFL-CIO v. Brock, 838
F.2d 1258, 1266 (D.C. Cir. 1988); Industrial Union Dep't, AFL-CIO v.
American Petroleum Inst., 448 U.S. 607, 655 n. 62 (1980).) At the same
time, the Agency's technical expertise and policy-making authority must
be exercised within discernable parameters. The lockout/tagout and
grain handling standard decisions sought clarification of the Agency's
view of the scope of its expertise and authority. In light of those
decisions, the preamble to this safety standard states OSHA's views
regarding the limits of its safety rulemaking authority and explains
why the Agency is confident that its interpretive views have in the
past avoided regulatory extremes and continue to do so in this rule.
Stated briefly, the OSH Act requires that before promulgating any
occupational safety standard, OSHA demonstrate based on substantial
evidence in the record as a whole that: (1) The proposed standard will
substantially reduce a significant risk of material harm; (2)
compliance is technologically feasible in the sense that the protective
measures being required already exist, can be brought into existence
with available technology, or can be created with technology that can
reasonably be developed; (3) compliance is economically feasible in the
sense that industry can absorb or pass on the costs without major
dislocation or threat of instability; and (4) the standard is cost-
effective in that it employs the least expensive protective measures
capable of reducing or eliminating significant risk. Additionally,
proposed safety standards must be compatible with prior Agency action,
must be responsive to significant comment in the record, and, to the
extent allowed by statute, must be consistent with applicable Executive
Orders. These elements limit OSHA's regulatory discretion for safety
rulemaking and provide a decision-making framework for developing a
rule.
B. Congress Concluded That OSHA Regulations Are Necessary To Protect
Workers From Occupational Hazards And That Employers Should Be Required
To Reduce or Eliminate Significant Workplace Health and Safety Threats
At section 2(a) of the OSH Act (29 U.S.C. 651(a)), Congress
announced its determination that occupational injury and illness should
be eliminated as much as possible: ``The Congress finds that
occupational injury and illness arising out of work situations impose a
substantial burden upon, and are a hindrance to, interstate commerce in
terms of lost production, wage loss, medical expenses, and disability
compensation payments.'' Congress therefore declared ``it to be its
purpose and policy * * * to assure so far as possible every working man
and woman in the Nation safe * * * working conditions [29 U.S.C.
651(b)].''
To that end, Congress instructed the Secretary of Labor to adopt
existing Federal and consensus standards during the first 2 years after
the OSH Act became effective and, in the event of conflict among any
such standards, to ``promulgate the standard which assures the greatest
protection of the safety or health of the affected employees [29 U.S.C.
655(a)].'' Congress also directed the Secretary to set mandatory
occupational safety standards (29 U.S.C. 651(b)(3)), based on a
rulemaking record and substantial evidence (29 U.S.C. 655(b)(2)), that
are ``reasonably necessary or appropriate to provide safe * * *
employment and places of employment.'' When promulgating permanent
safety or health standards that differ from existing national consensus
standards, the Secretary must explain ``why the rule as adopted will
better effectuate the purposes of this Act than the national consensus
standard [29 U.S.C. 655(b)(8)].'' Correspondingly, every employer must
comply with OSHA standards and in addition, ``furnish to each of his
employees employment and a place of employment which are free from
recognized hazards that are causing or are likely to cause death or
serious physical harm to his employees [29 U.S.C. 654(a)].''
``Congress understood that the Act would create substantial costs
for employers, yet intended to impose such costs when necessary to
create a safe and healthful working environment. Congress viewed the
costs of health and safety as a cost of doing business. * * * Indeed,
Congress thought that the financial costs of health and safety problems
in the workplace were as large as or larger than the financial costs of
eliminating these problems [American Textile Mfrs. Inst. Inc. v.
Donovan, 452 U.S. 490, 519-522 (1981) (ATMI); emphasis was supplied in
original].'' ``[T]he fundamental objective of the Act [is] to prevent
occupational deaths and serious injuries [Whirlpool Corp. v. Marshall,
445 U.S. 1, 11 (1980)].'' ``We know the costs would be put into
consumer goods but that is the price we should pay for the 80 million
workers in America [S. Rep. No. 91-1282, 91st Cong., 2d Sess. (1970);
H.R. Rep. No. 91-1291, 91st Cong., 2d Sess. (1970), reprinted in Senate
Committee on Labor and Public Welfare, Legislative History of the
Occupational Safety and Health Act of 1970, (Committee Print 1971)
(``Leg. Hist.'') at 444 (Senator Yarborough)].'' ``Of course, it will
cost a little more per item to produce a washing machine. Those of us
who use washing machines will pay for the increased cost, but it is
worth it, to stop the terrible death and injury rate in this country
[Id. at 324; see also 510-511, 517].''
[T]he vitality of the Nation's economy will be enhanced by the
greater productivity realized through saved lives and useful years
of labor.
When one man is injured or disabled by an industrial accident or
disease, it is he and his family who suffer the most immediate and
personal loss. However, that tragic loss also affects each of us. As
a result of occupational accidents and disease, over $1.5 billion in
wages is lost each year [1970 dollars], and the annual loss to the
gross national product is estimated to be over $8 billion. Vast
resources that could be available for productive use are siphoned
off to pay workmen's compensation and medical expenses. * * *
Only through a comprehensive approach can we hope to effect a
significant reduction in these job death and casualty figures. [Id.
at 518-19 (Senator Cranston)]
Congress considered uniform enforcement crucial because it would
reduce or eliminate the disadvantage that a conscientious employer
might experience where inter-industry or intra-industry competition is
present. Moreover, ``many employers--particularly smaller ones--simply
cannot make the necessary investment in health and safety, and survive
competitively, unless all are compelled to do so [Leg. Hist. at 144,
854, 1188, 1201].''
Thus, the statutory text and legislative history make clear that
Congress conclusively determined that OSHA regulation is necessary to
protect workers from occupational hazards and that employers should be
required to reduce or eliminate significant workplace health and safety
threats.
C. As Construed by the Courts and by OSHA, the OSH Act Sets Clear and
Reasonable Limits for Agency Rulemaking Action
OSHA has long followed the teaching that section 3(8) of the OSH
Act requires that, before it promulgates ``any permanent health or
safety standard, [it must] make a threshold finding that a place of
employment is unsafe--in the sense that significant risks are present
and can be eliminated or lessened by a change in practices [Industrial
Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 642
(1980) (plurality) (Benzene); emphasis was supplied in original].''
Thus, the national consensus and existing federal standards that
Congress instructed OSHA to adopt summarily within two years of the OSH
Act's inception provide reference points concerning the least an OSHA
standard should achieve (29 U.S.C. 655(a)). As a result, OSHA is
precluded from regulating insignificant safety risks or from issuing
safety standards that do not at least lessen risk in a significant way.
The OSH Act also limits OSHA's discretion to issue overly
burdensome rules, as the agency also has long recognized that ``any
standard that was not economically or technologically feasible would a
fortiori not be reasonably necessary or appropriate' under the Act. See
Industrial Union Dep't v. Hodgson, [499 F.2d 467, 478 (D.C. Cir. 1974)]
(Congress does not appear to have intended to protect employees by
putting their employers out of business.') [American Textile Mfrs.
Inst. Inc., 452 U.S. at 513 n. 31 (a standard is economically feasible
even if it portends disaster for some marginal firms,' but it is
economically infeasible if it threaten[s] massive dislocation to, or
imperil[s] the existence of,' the industry)].''
By stating the test in terms of ``threat'' and ``peril,'' the
Supreme Court made clear in ATMI that economic infeasibility begins
short of industry-wide bankruptcy. OSHA itself has placed the line
considerably below this level. (See for example, ATMI, 452 U.S. at 527
n. 50; 43 FR 27360 (June 23, 1978). Proposed 200 g/m\3\ PEL
for cotton dust did not raise serious possibility of industry-wide
bankruptcy, but impact on weaving sector would be severe, possibly
requiring reconstruction of 90 percent of all weave rooms. OSHA
concluded that the 200 g/m\3\ level was not feasible for
weaving and that 750 g/m\3\ was all that could reasonably be
required. See also 54 FR 29245-29246 (July 11, 1989); American Iron &
Steel Institute, 939 F.2d at 1003. OSHA raised engineering control
level for lead in small nonferrous foundries to avoid the possibility
of bankruptcy for about half of small foundries even though the
industry as a whole could have survived the loss of small firms.)
All OSHA standards must also be cost-effective in the sense that
the protective measures being required must be the least expensive
measures capable of achieving the desired end (ATMI, at 514 n. 32;
Building and Constr. Trades Dep't AFL-CIO v. Brock, 838 F.2d 1258, 1269
(D.C. Cir. 1988)). OSHA gives additional consideration to financial
impact in setting the period of time that should be allowed for
compliance, allowing as much as 10 years for compliance phase-in. (See
United Steelworkers of Am. v. Marshall, 647 F.2d 1189, 1278 (D.C. Cir.
1980), cert. denied, 453 U.S. 913 (1981).) Additionally, OSHA's
enforcement policy takes account of financial hardship on an
individualized basis. OSHA's Field Operations Manual provides that,
based on an employer's economic situation, OSHA may extend the period
within which a violation must be corrected after issuance of a citation
(CPL 2.45B, Chapter III, paragraph E6d(3)(a), Dec. 31, 1990).
To reach the necessary findings and conclusions, OSHA conducts
rulemaking in accordance with the requirements of section 6 of the OSH
Act. The rulemaking process enables the Agency to determine the
qualitative and, if possible, the quantitative nature of the risk with
(and without) regulation, the technological feasibility of compliance,
the availability of capital to the industry and the extent to which
that capital is required for other purposes, the industry's profit
history, the industry's ability to absorb costs or pass them on to the
consumer, the impact of higher costs on demand, and the impact on
competition with substitutes and imports. (See ATMI at 2501-2503;
American Iron & Steel Institute generally.) Section 6(f) of the OSH Act
further provides that, if the validity of a standard is challenged,
OSHA must support its conclusions with ``substantial evidence in the
record considered as a whole,'' a standard that courts have determined
requires fairly close scrutiny of agency action and the explanation of
that action. (See Steelworkers, 647 F.2d at 1206-1207.)
OSHA's powers are further circumscribed by the independent
Occupational Safety and Health Review Commission, which provides a
neutral forum for employer contests of citations issued by OSHA for
noncompliance with health and safety standards (29 U.S.C. 659-661;
noted as an additional constraint in Benzene at 652 n. 59). OSHA must
also respond rationally to similarities and differences among
industries or industry sectors. (See Building and Constr. Trades Dep't,
AFL-CIO v. Brock, 838 F.2d 1258, 1272-73 (D.C. Cir. 1988).)
OSHA rulemaking is thus constrained first by the need to
demonstrate that the standard will substantially reduce a significant
risk of material harm, and then by the requirement that compliance is
technologically capable of being done and not so expensive as to
threaten economic instability or dislocation for the industry. Within
these bounds, further constraints such as the need to find cost-
effective measures and to respond rationally to all meaningful comment
militate against regulatory extremes.
D. The Confined and Enclosed Spaces and Other Dangerous Atmospheres in
Shipyard Employment Standard Complies With the Statutory Criteria
Described Above and Is Not Subject to the Additional Constraints
Applicable to Section 6(b)(5) Standards
Standards which regulate hazards that are frequently undetectable
because they are subtle or develop slowly or after long latency
periods, are frequently referred to as ``health'' standards. Standards
that regulate hazards, like explosions or electrocution, that cause
immediately noticeable physical harm, are called ``safety'' standards.
(See National Grain & Feed Ass'n v. OSHA (NGFA II), 866 F.2d 717, 731,
733 (5th Cir. 1989). As noted above, section 3(8) provides that all
OSHA standards must be ``reasonably necessary or appropriate.'' In
addition, section 6(b)(5) requires that OSHA set health standards which
limit significant risk ``to the extent feasible.'' OSHA has determined
that the Confined and Enclosed Spaces and Other Dangerous Atmospheres
in Shipyard Employment standard is a safety standard, because the
standard addresses hazards, such as asphyxiation, explosions, and
fires, that are immediately dangerous to life or health, not the longer
term, less obvious hazards subject to section 6(b)(5).
The OSH Act and its legislative history clearly indicate that
Congress intended for OSHA to distinguish between safety standards and
health standards. For example in section 2(b)(6) of the OSH Act,
Congress declared that the goal of assuring safe and healthful working
conditions and preserving human resources would be achieved, in part:
* * *by exploring ways to discover latent diseases, establishing
causal connections between diseases and work in environmental
conditions, and conducting other research relating to health
problems, in recognition of the fact that occupational health
standards present problems often different from those involved in
occupational safety.
The legislative history makes this distinction even clearer:
[The Secretary] should take into account that anyone working in
toxic agents and physical agents which might be harmful may be
subjected to such conditions for the rest of his working life, so
that we can get at something which might not be toxic now, if he
works in it a short time, but if he works in it the rest of his life
might be very dangerous; and we want to make sure that such things
are taken into consideration in establishing standards. [Leg. Hist.
at 502-503 (Sen. Dominick), quoted in Benzene at 648-49]
Additionally, Representative Daniels distinguished between
``insidious silent killers' such as toxic fumes, bases, acids, and
chemicals'' and ``violent physical injury causing immediate visible
physical harm'' (Leg. Hist. at 1003), and Representative Udall
contrasted insidious hazards like carcinogens with ``the more visible
and well-known question of industrial accidents and on-the-job injury''
(Leg. Hist. at 1004). (See also, for example, S. Rep. No. 1282, 91st
Cong., 2d Sess. 2-3 (1970), U.S. Code Cong. & Admin. News 1970, pp.
5177, 5179, reprinted in Leg. Hist. at 142-143, discussing 1967 Surgeon
General study that found that 65 percent of employees in industrial
plants ``were potentially exposed to harmful physical agents, such as
severe noise or vibration, or to toxic materials''; Leg. Hist. at 412;
id. at 446; id. at 516; id. at 845; International Union, UAW at 1315.)
In reviewing OSHA rulemaking activity, the Supreme Court has held
that section 6(b)(5) requires OSHA to set ``the most protective
standard consistent with feasibility'' (Benzene at 643 n. 48). As
Justice Stevens observed:
The reason that Congress drafted a special section for these
substances * * * was because Congress recognized that there were
special problems in regulating health risks as opposed to safety
risks. In the latter case, the risks are generally immediate and
obvious, while in the former, the risks may not be evident until a
worker has been exposed for long periods of time to particular
substances. [Benzene, at 649 n. 54.]
Challenges to the grain dust and lockout/tagout standards included
assertions that grain dust in explosive quantities and uncontrolled
energy releases that could expose employees to crushing, cutting,
burning or explosion hazards were harmful physical agents so that OSHA
was required to apply the criteria of section 6(b)(5) when determining
how to protect employees from those hazards. Reviewing courts have
uniformly rejected such assertions. For example, the Court in
International Union, UAW v. OSHA, 938 F.2d 1310 (D.C. Cir. 1991)
rejected the view that section 6(b)(5) provided the statutory criteria
for regulation of uncontrolled energy, holding that such a ``reading
would obliterate a distinction that Congress drew between health and
safety risks.'' The Court also noted that the language of the OSH Act
and the legislative history supported the OSHA position (International
Union, UAW at 1314). Additionally, the Court stated: ``We accord
considerable weight to an agency's construction of a statutory scheme
it is entrusted to administer, rejecting it only if unreasonable''
(International Union, UAW at 1313, citing Chevron U.S.A., Inc. v. NRDC,
467 U.S. 837, 843 (1984)).
The Court reviewing the grain dust standard also deferred to OSHA's
reasonable view that the Agency was not subject to the feasibility
mandate of section 6(b)(5) in regulating explosive quantities of grain
dust (National Grain & Feed Association v. OSHA (NGFA II), 866 F.2d
717, 733 (5th Cir. 1989)). It therefore applied the criteria of section
3(8), requiring the Agency to establish that the standard is
``reasonably necessary or appropriate'' to protect employees.
As explained in Section I, Background, and Section II, Summary and
Explanation of the Final Rule, earlier in this preamble, and Section
IV, Summary of Final Regulatory Analysis, below, OSHA has determined
that confined and enclosed spaces and other dangerous atmospheres in
shipyard employment pose significant risks to employees and that the
provisions of the final rule are reasonably necessary to protect
affected employees from those risks. OSHA believes that compliance is
economically feasible, because, as documented in the Regulatory Impact
Analysis, all regulated sectors can readily absorb or pass on
compliance costs.
As presented in Section IV, Summary of Final Regulatory Analysis,
later in this preamble, and in Table 1, the standard's costs, benefits,
and compliance requirements are consistent with those of other OSHA
safety standards, such as the Hazardous Waste Operations and Emergency
Response (HAZWOPER) standard.
OSHA assessed employee risk by evaluating exposure to the hazards
associated with confined and enclosed spaces and other dangerous
atmospheres in shipyard employment. Section IV, Summary of Final
Regulatory Analysis, later in this preamble, presents OSHA's estimate
of the costs and benefits of the Confined and Enclosed Spaces and Other
Dangerous Atmospheres in Shipyard Employment standard. OSHA has set the
scope of the Confined and Enclosed Spaces and Other Dangerous
Atmospheres standard to address situations in which employees are
exposed to these hazards, regardless of the location, shipboard vs.
land-side. The Agency believes, based on analysis of the elements of
the hazards identified, that there is sufficient information for OSHA
to determine that employees in the covered sectors face significant
risks related to confined and enclosed spaces and other dangerous
atmospheres in shipyard employment. Therefore, the Agency has
determined that all employees within the scope of the Confined and
Enclosed Spaces and Other Dangerous Atmospheres in Shipyard Employment
standard face a significant risk of material harm and that compliance
with these standards is reasonably necessary to protect affected
employees from that risk.
OSHA has considered and responded to all substantive comments
regarding the proposed Confined and Enclosed Spaces and Other Dangerous
Atmospheres in Shipyard Employment on their merits in Section II,
Summary and Explanation of the Final Rule, earlier in this preamble. In
particular, OSHA evaluated all suggested changes to the proposed rule
in terms of their impact on worker safety, their feasibility, their
cost effectiveness, and their consonance with the OSH Act.
IV. Final Regulatory Impact Analysis, Regulatory Flexibility
Certification, and Environmental Impact Assessment
A. Summary
The Agency has concluded that the final Subpart B standard for
confined spaces in shipyards is technologically and economically
feasible. Subpart B incorporates the approach of the previous standard
and subpart A (as it applies to subpart B) while mandating new,
comprehensive program elements such as training, duty to other
employers, and rescue.
The Agency estimates that the final rule will result in no new
significant costs for the industry. In addition, the Agency finds that
the final Subpart B is the most cost-effective approach. The Agency
agrees with its Shipyard Employment Standards Advisory Committee
(SESAC) that the current approach of making confined and enclosed
spaces and other dangerous atmospheres safe before entry and using
Marine Chemists and competent persons to test and certify spaces has
succeeded well and will continue to provide a safe working environment
for employees.
Table I.--Summary of Benefits and Costs of Recent OSHA Safety Standards
----------------------------------------------------------------------------------------------------------------
Number of Number of Annual
deaths injuries costs first Annual cost
Standard (CFR cite) Final rule date (FR cite) prevented prevented 5 yrs next 5 yrs
annually annually (mill) (mill)
----------------------------------------------------------------------------------------------------------------
Grain handling (Sec. 12-31-87 (52 FR 49622)....... 18 394 5.9-33.4 5.9-33.4
1910.272).
HAZWOPER (Sec. 1910.120)..... 3-6-89 (54 FR 9311).......... 32 18,700 153 153
Excavations (Subpart P)...... 10-31-89 (54 FR 45,954)...... 74 800 306 306
Process safety Mgmt (Sec. 2-24-92 (57 FR 6356)......... 330 1,917 880.7 470.8
1910.119).
Permit-required confined 1-14-93 (58 FR 4462)......... 54 5,041 202.4 202.4
spaces (Sec. 1910.146).
----------------------------------------------------------------------------------------------------------------
In addition, extending the scope of Subpart B to land-side
activities will benefit the industry and its workers by ensuring that
land-side work activities are covered by a protective standard. Most of
the industry has been following Subpart B for confined space work on
land-side for some time. Because workers and the tasks and hazards are
essentially the same whether on vessels or land-side, employing
separate standards for each would have the potential to create
confusion and actually increase the risk of an incident occurring. The
full regulatory impact analysis is in docket S-050.
B. Introduction
Executive Order 12866 requires the Agency to perform an analysis of
the costs, benefits, and regulatory alternatives of its ``significant
regulatory actions.'' A significant regulatory action is one that is
likely to result in a rule that may: (1) Have an annual effect on the
economy of $100 million or more or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or state, local, or tribal
governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order. This final rule directly affects one well-defined
industry, the shipbuilding and ship repair industry, but there are no
new costs of compliance. Accordingly, the promulgation of the confined
and enclosed spaces and other dangerous atmospheres standard for
shipyard employment is not a ``significant regulatory action'' for the
purposes' of E.O. 12866.
As required by the OSH Act and its judicial interpretations, the
Agency must demonstrate that this regulation is both technologically
and economically feasible for the shipyard industry. The Agency has
concluded that this standard meets both tests of feasibility.
In addition, the Regulatory Flexibility Act of 1980 (5 U.S.C. 601
et seq.) requires Federal agencies to determine whether a regulation
will have a significant economic impact on a substantial number of
small entities. The Assistant Secretary certifies that this rule will
not have such an impact, as the rule imposes no new cost on firms.
The Agency must also review this standard in accordance with the
requirements of the National Environmental Policy Act (NEPA) of 1969
(42 U.S.C. 4321 et seq.), the Guidelines of the Council of
Environmental Quality (CEQ)(40 CFR part 1500), and OSHA's DOL NEPA
Procedures (29 CFR part 11).
This summary of the Agency's analysis includes an overview of
affected industries and employees, estimated benefits, the
technological feasibility of the standard, estimated compliance costs,
regulatory flexibility analysis, economic and environmental impacts, a
discussion of the regulatory and non-regulatory alternatives to this
final standard, and the existence of significant risk. The full text of
the regulatory analysis has been placed in the shipyard confined
space's Docket S-050.
OSHA created the Shipyard Employment Standards Advisory Committee
(SESAC) in 1988 to advise the Agency in consolidating the shipyard
standards. The committee was made up of representatives from industry,
labor, government, and professional organizations. Besides making
recommendations to the Agency about its regulations, the committee also
provided information about current industry practices and the costs and
benefits of various rules and alternatives. This information has been
reviewed carefully by the Agency in developing the Regulatory Analysis
of the final rule.
C. Industry Profile
The American shipyard industry has been in a long-term decline
since 1981 when the Federal government ended subsidy programs for
commercial ship construction. In the period 1976-1980, the industry
built an average of 64 merchant vessels per year. Only five commercial
ships have been built since 1988. The decline in merchant vessel
construction in the 1980s was partially offset by a large increase in
military ship construction. However, the end of the military
competition with the former U.S.S.R. has resulted in a sharp drop in
military ships on order. The recently completed ``bottom-up'' review of
the armed forces has called for a major reduction in the number of
active combat ships, and consequently a drop in the number of future
orders. U.S. Navy orders, which averaged 19 per year in the 1980s, is
estimated to fall to 8 per year during the period 1994-1999. Ship
repair and construction of inland vessels and barges has remained
constant during the past 5 years.
Employment in the shipbuilding industry had fallen from 177,000 in
1984 to about 125,000 by 1987 and remained near that level until 1992.
The Bureau of Labor Statistics estimates that employment in the
industry had fallen to 106,000 by late 1993. It is likely that
employment will continue to fall to below 100,000 in the next few
years. In 1992 the value of output from American shipyards was
approximately $9.9 billion. Based on Dun & Bradstreet's estimated mean
return for the shipyard industry of 2.9 percent, the industry earned
approximately $287 million.
The Agency estimates that there are approximately 500 firms in SIC
3731, and a majority of these have fewer than 50 employees. Employment
in the shipyard industry is highly concentrated. The ten largest
shipyards employ approximately 70 percent of all shipyard workers, and
only the 100 largest firms have as many as 100 employees. The Agency
estimates that approximately 200 firms engaged in ship repair employ
fewer than 11 employees.
D. Population at Risk
Based on data in the 1987 Census of Manufacturers, 75 percent of
shipyard employees are production employees. Data from CONSAD Research
Corporation's 1986 report to OSHA estimated that 76.6 percent of
shipyard workers were production workers. Relying on the 1987 Census of
Manufacturers, the Agency concludes that there are approximately 79,500
production workers (75 percent of 106,000 total employees) who are
potentially involved in confined space entry in shipyard employment and
are therefore exposed to confined space hazards.
E. Technological Feasibility
The shipyard industry has been applying the previous Subpart B on
vessels for approximately 30 years--and to some extent on land-side
activities. While the revised final standard mandates new elements such
as training, rescue, and duty to other employers, it makes no
fundamental change in the way shipyards perform confined spaces' work.
Technologies such as atmospheric testing instruments, ventilation
equipment, and respirators have been in use for many years throughout
the industry. As the new standard does not require any new technology
or engineering or other controls, the Agency concludes that this new
confined space standard is technologically feasible. The performance-
oriented criteria of the standard should also allow technological
innovation to achieve compliance.
F. Costs and Benefits
Several elements in the final rule could impose costs on the
shipyard industry: requirements for training of production workers;
duty to other employers (contractors and subcontractors); extending the
scope to land-side operations; and specifications for self-rescue and
rescue teams. The Shipyard Employment Safety Advisory Committee (SESAC)
recommended that all of these provisions be included in the final
confined spaces standard to make the rule comprehensive. Submissions to
the docket by the shipyard industry, unions, and professionals in the
maritime industry indicate that these elements would not impose new
costs on shipyards but would in essence codify current industry
practice. Testimony at SESAC's meetings also consistently indicated
that the elements of the new standard would impose no new costs on the
industry (SESAC transcript Sept. 3, 1992, pp. 471-503). The Agency
therefore concludes that the new Subpart B is economically feasible,
and will have no effect on profits or the cost of output of the
shipyard industry.
A benefit of the final rule is to eliminate a paperwork requirement
of reporting the identity of shipyard competent persons to the Agency
on two forms and to clarify the duties of the competent person,
Certified Industrial Hygienist, and Marine Chemist. The Agency believes
that full compliance with existing Subpart B would eliminate the
average of one to two annual fatalities. However, the Agency also
concludes that mandating the new comprehensive elements of the final
standard (for training, duty to other employers, and rescue) will
contribute to compliance and discipline in applying Subpart B and will
reduce the number of fatalities. The Agency also concludes that
increasing the oxygen content to 19.5 percent by volume, specifying the
order of atmospheric testing, and limiting oxygen to no more than 22
percent by volume reduces significant risk relative to the requirements
of existing Subpart B. The shipyard industry largely conforms to these
practices at the present time.
G. Regulatory Alternatives
The Agency also believes that the proposed rule is the most cost-
effective regulatory alternative for this industry. If the general
industry ``permit-entry confined spaces'' standard (29 CFR 1910.146)
were applied to land-side activities--or all shipyard work--costs would
be incurred to re-train shipyard production workers in a second
procedure for entering and working in confined spaces, for attendants,
and for establishing a written program. The Agency estimates that this
would cost the industry approximately $104 million annually. These
costs are not as high as estimates found in the comments to the docket
because the final general industry permit spaces rule differed
significantly from the proposed rule, especially on the number of
attendants that would be required. Adopting the general industry
confined spaces for only land-side shipyard operations could also
result in increased risk of accidents if shipyard workers had to apply
two distinct standards to their work. Confined space work is routine in
shipyards and employees frequently shift back and forth between land-
side and vessels.
A second regulatory alternative would be to apply the general
industry standard to all shipyard work. Here the program costs would be
as great as the first alternative but the Agency has concluded that
there would not be additional benefits. The shipyard confined space
standard is in many ways a more restrictive subset of the general
industry standard. The additional program-based elements of
Sec. 1910.146 would not improve the safety of confined space entry in
shipyards because the shipyard standard is even more comprehensive in
its coverage of hazardous atmospheres. Further, its approach to
inspection, testing, and ventilating spaces has become an integral part
of the routine work activity in shipyard employment.
Confined and enclosed space and other dangerous atmosphere work in
shipyards is unique: it is routine; hazardous atmospheres are common;
and the work activity itself frequently introduces or creates hazards.
The confined spaces of each ship are different. A ship's interior
structure may consist of a series of nested confined spaces, one within
the other, each of which may be irregular and accessible through small
hatches. Safety procedures based on attendants or quick rescue are not
a safe or a practical solution.
Evidence in the record from the industry attests to the success of
the shipyard industry in protecting employees during work in confined
spaces (Docket S-050: 11-3, 11-6, 11-12, 11-13, 11-17, 11-30). However,
fatalities and injuries do occur: OSHA recorded 20 deaths between 1983-
1992 in its Fatality Investigation Reports for the shipyard and boat-
building industries combined. In every case, OSHA's evaluation
indicated that the fatality was caused by a failure to follow the
requirements of the previous Subpart B. Although accidents are
relatively few given the large number of confined space entries and the
hazards involved, the continuing number of fatalities and injuries
indicates that a regulation is necessary to maintain safe work
practices.
H. International Trade
In accordance with Executive Order 12866, OSHA assessed the effects
of the final standard on international trade. The shipyard industry
actively competes with foreign shipyards for ship repair and
shipbuilding orders. If this OSHA regulation significantly increased
the price of products and services of domestic shipyards, foreign
shipyards could benefit. OSHA believes, however, that there will be no
significant effect on products or services as a result of this
regulation.
I. Environmental Impact
The confined spaces standard has been reviewed in accordance with
the requirements of the National Environmental Policy Act (NEPA) of
1969 (42 U.S.C. 4321 et seq.), the regulations of the Council on
Environmental Quality (40 CFR Part 1500), and DOL NEPA Procedures (29
CFR Part 11). This rule will not result in a significant incremental
increase release of hazardous substances into the ambient air. Releases
of substances regulated under EPA's SARA Title III or EPA NESHAP
standards are subject to reporting and control requirements in those
rules.
J. References
1. U.S. Department of Commerce. International Trade
Administration. 1993 U.S. Industrial Outlook. 30th Annual Edition.
2. U.S. Department of Transportation. Maritime Administration.
Report on Survey of U.S. Shipbuilding and Repair Facilities, 1990.
3. U.S. Department of Commerce. Bureau of the Census.
Preliminary Report Industry Service 1987 Census of Manufacturers:
Shipbuilding and Repairing (Industry 3731). Washington, D.C.:
Government Printing Office, 1990.
4. U.S. Department of Commerce. Bureau of the Census.
Preliminary Report Industry Service 1987 Census of Manufacturers:
Shipbuilding and Repairing (Industry 3731). Washington, D.C.:
Government Printing Office, 1989.
5. CONSAD Research Corp. Data to Support a Regulatory Analysis
of the Proposed Standard for Shipbuilding and Repairing. Final
Report. Prepared for the U.S. Department of Labor, Occupational
Safety and Health Administration, under Contract No. J-9-F-4-0024.
Pittsburgh: CONSAD, November 1985.
6. CONSAD Research Corp. Data to Support a Regulatory Analysis
of the Proposed Standard for Shipbuilding and Repairing: Subpart B.
Prepared for the U.S. Department of Labor, Occupational Safety and
Health Administration, under Contract No. J-9-F-4-0024. Pittsburgh:
CONSAD, June 1986.
7. Commission on Merchant Marine and Defense. First Report of
the Commission of Merchant Marine and Defense, Appendices.
Washington, D.C., September 30, 1987.
8. Dun and Bradstreet Financial Data. 1989, 1991.
9. Bureau of Labor Statistics, Employment and Earnings, Nov.,
1993.
10. Executive Office of the President. OMB. Standard Industrial
Classification Manual. 1987.
11. Main Hurdman/KGM. Profile of the Shipbuilding and Repairing
Industry. Prepared for the U.S. Department of Labor, Occupational
Safety and Health Administration. Washington, D.C., October 1984. 62
Pp.
12. Shipyard Council of America. ``Merchant Shipbuilding''
September, 1987; ``Naval Shipbuilding'' January, 1992; ``Ship
Construction Report'' July, 1991.
13. American Waterways Shipyard Conference. 1989 and 1992 Annual
Shipyard Survey. Arlington, Va.
14. Bureau of Labor Statistics, Occupational Injuries and
Illnesses in the U.S. by Industry 1992.
15. Selected Occupational Fatalities Related to Ship Building
and Repairing as Found in Reports of OSHA Fatality/ Catastrophe
Investigations, U.S. Dept. of Labor, OSHA, 1990.
V. Effective Date
In developing the final rule, OSHA has considered whether a delayed
effective date is necessary for any of the provisions of the standard.
Employers will need time to integrate their procedures for complying
with the provisions in this standard as applied to land-side confined
and enclosed spaces and other dangerous atmospheres. Although the
record indicates that the new provisions (training, rescue, and duties
to other employers) being used on board vessels and vessel sections are
current industry practice, under this standard they also have been
expanded to include land-side operations. OSHA believes that a period
of 90 days will be adequate for this purpose, since most of the
requirements in the final rule do not require extensive training or
major modifications of existing work practices. This amount of time
will be adequate for employers to ensure that their work practices
conform to the requirements of the revised standard.
VI. Information Collection Requirements
5 CFR part 1320 sets forth procedures for agencies to follow in
obtaining OMB clearance for information collection requirements under
the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. The final
Confined and Enclosed Spaces and Other Dangerous Atmospheres standard
requires the employer to allow OSHA access to the competent person
roster, testing and inspection results, and training records. In
accordance with the provisions of the Paperwork Reduction Act and the
regulations issued pursuant thereto, OSHA certifies that it has
submitted the information collection to OMB for review under section
3504(b) of that Act.
Public reporting burden for this collection of information is
estimated to average five minutes per response to allow OSHA compliance
officers access to the employer's records. Send comments regarding this
burden estimate, or any other aspect of this collection of information,
including suggestions for reducing this burden, to the Office of
Information Management, Department of Labor, room N-1301, 200
Constitution Avenue, NW., Washington, DC 20210; and to the Office of
Management and Budget, Paperwork Reduction Project (Confined and
Enclosed Spaces and Other Dangerous Atmospheres). Washington, DC 20503.
VII. Federalism
This final rule has been reviewed in accordance with Executive
Order 12612 (52 FR 41685, October 30, 1987), regarding Federalism. This
Order requires that agencies, to the extent possible, refrain from
limiting state policy options, consult with states before taking any
actions which would restrict state policy options, and take such
actions only if there is clear constitutional authority and the
presence of a problem of national scope. The Order provides for
preemption of state law only if there is a clear Congressional intent
for the Agency to do so. Any such preemption is to be limited to the
extent possible.
Section 18 of the Occupational Safety and Health Act (OSH Act)
expresses Congress' clear intent to preempt state laws relating to
issues on which Federal OSHA has promulgated occupational safety and
health standards. Under the OSH Act, a state can avoid preemption only
if it submits, and obtains Federal approval of, a plan for the
development of such standards and their enforcement. Occupational
safety and health standards developed by such Plan-States must, among
other things, be at least as effective in providing safe and healthful
employment and places of employment as the Federal standards. Where
such standards are applicable to products distributed or used in
interstate commerce, they may not unduly burden commerce and must be
justified by compelling local conditions. (See section 18(c)(2) of the
OSH Act.)
The Federal standards on confined and enclosed spaces and other
dangerous atmospheres address hazards which are not unique to any one
state or region of the country. Nonetheless, states with occupational
safety and health plans approved under section 18 of the OSH Act will
be able to develop their own state standards to deal with any special
problems which might be encountered in a particular state. Moreover,
because these standards are written in general, performance-oriented
terms, there is considerable flexibility for state plans to require,
and for affected employers to use, methods of compliance which are
appropriate to the working conditions covered by the standard.
In brief, this final rule addresses a clear national problem
related to occupational safety and health in shipyard employment.
States which have elected to participate under section 18 of the OSH
Act are not preempted by this standard and will be able to address any
special conditions within the framework of the Federal Act, while
ensuring that the state standards are at least as effective as this
standard.
VIII. State Plan Standards
The 23 states and 2 territories with their own OSHA-approved
occupational safety and health plans must adopt a comparable standard
within 6 months of the publication date of the final standard. These
states and territories are: Alaska, Arizona, California,
Connecticut,4 Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan,
Minnesota, Nevada, New Mexico, New York,5 North Carolina, Oregon,
Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin
Islands, Washington, and Wyoming. Until such time as a state standard
is promulgated, Federal OSHA will provide interim enforcement
assistance, as appropriate, in these states.
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\4\Plan covers only State and local government employees.
\5\Plan covers only State and local government employees.
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IX. Authority
This document was prepared under the direction of Joseph A. Dear,
Assistant Secretary of Labor for Occupational Safety and Health, U.S.
Department of Labor, 200 Constitution Avenue, N.W., Washington, DC
20210.
List of Subjects in 29 CFR Part 1915
Confined spaces, Emergency medical services, Hazardous substances,
Marine safety, Occupational Safety and Health, Signs and Symbols,
Vessels, Welding.
Accordingly, pursuant to section 41 of LHWCA (33 U.S.C. 941),
sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970
(29 U.S.C. 653, 655, 657), Secretary of Labor's Order No. 1-90 (55 FR
9033), and 29 CFR part 1911, 29 CFR part 1915 is amended as set forth
below.
Signed at Washington, DC, this 8th day of July 8, 1994.
Joseph A. Dear,
Assistant Secretary of Labor.
Part 1915 of Title 29 of the Code of Federal Regulations is amended
as follows:
PART 1915--[AMENDED]
1. The authority citation for part 1915 continues to read as
follows:
Authority: Sec. 41, Longshore and Harbor Workers' Compensation
Act (33 U.S.C. 941); secs. 4, 6, 8, Occupational Safety and Health
Act of 1970 (29 U.S.C. 653, 655, 657); Sec. 4 of the Administrative
Procedure Act (5 U.S.C. 553); Secretary of Labor's Order No. 12-71
(36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), or 1-90 (55 FR
9033) as applicable; 29 CFR Part 1911.
Subpart A--General Provisions
2. Section 1915.7 is revised to read as follows:
Sec. 1915.7 Competent person.
(a) Application. This section applies to shipyard employment.
(b) Designation. (1) One or more competent persons shall be
designated by the employer in accordance with the applicable
requirements of this section, unless the requirements of Subparts B, C,
D and H of this part are always carried out by a Marine Chemist.
Exception: The employer may designate any person who meets the
applicable portions of the criteria set forth in paragraph (c) of this
section as a competent person who is limited to performing testing to
the following situations:
(i) Repair work on small craft in boat yards where only combustible
gas indicator tests are required for fuel tank leaks or when using
flammable paints below decks;
(ii) Building of wooden vessels where only knowledge of the
precautions to be taken when using flammable paints is required;
(iii) The breaking of vessels where there is no fuel oil or other
flammable hazard; and
(iv) Tests and inspections performed to comply with
Secs. 1915.35(b)(8) and 1915.36(a)(5).
(2)(i) The employer shall maintain either a roster of designated
competent persons or a statement that a Marine Chemist will perform the
tests or inspections which require a competent person.
(ii) The employer shall make the roster of designated persons or
the statement available to employees, the employee's representative,
the Director or the Assistant Secretary upon request.
(iii) The roster shall contain, as a minimum, the following:
(A) The employers' name,
(B) The designated competent person's name(s), and
(C) The date the employee was trained as a competent person.
(c) Criteria. The employer shall ensure that each designated
competent person has the following skills and knowledge:
(1) Ability to understand and carry out written or oral information
or instructions left by Marine Chemist, Coast Guard authorized persons
and Certified Industrial Hygienists;
(2) Knowledge of Subparts B, C, D and H of this part;
(3) Knowledge of the structure, location, and designation of spaces
where work is done;
(4) Ability to calibrate and use testing equipment including but
not limited to, oxygen indicators, combustible gas indicators, carbon
monoxide indicators, and carbon dioxide indicators, and to interpret
accurately the test results of that equipment;
(5) Ability to perform all required tests and inspections which are
or may be performed by a competent person as set forth in Subparts B,
C, D and H of this part.
(6) Ability to inspect, test, and evaluate spaces to determine the
need for further testing by a Marine Chemist or a Certified Industrial
Hygienist; and
(7) Ability to maintain records required by this section.
(d) Recordkeeping. (1) When tests and inspections are performed by
a competent person, Marine Chemist, or Certified Industrial Hygienist
as required by any provisions of subparts B, C, D, or H of this part,
the employer shall ensure that the person performing the test and
inspection records the location, time, date, location of inspected
spaces, and the operations performed, as well as the test results and
any instructions.
(2) The employer shall ensure that the records are posted in the
immediate vicinity of the affected operations while work in the spaces
is in progress. The records shall be kept on file for a period of at
least three months from the completion date of the specific job for
which they were generated.
(3) The employer shall ensure that the records are available for
inspection by the Assistant Secretary, Director, and employees and
their representatives.
3. Subpart B of part 1915 is revised to read as follows:
Subpart B--Confined and Enclosed Spaces and Other Dangerous Atmospheres
in Shipyard Employment
Sec.
1915.11 Scope, application, and definitions applicable to this
subpart.
1915.12 Precautions before entering confined and enclosed spaces
and other dangerous atmospheres.
1915.13 Cleaning and other cold work.
1915.14 Hot work.
1915.15 Maintenance of safe conditions.
1915.16 Warning signs and labels.
Appendix A to Subpart B--Compliance Assistance Guidelines for Confined
and Enclosed Spaces and Other Dangerous Atmospheres
Appendix B to Subpart B--Reprint of U.S. Coast Guard Regulations
Referenced in Subpart B, for Determination of Coast Guard Authorized
Persons
Sec. 1915.11 Scope, application and definitions applicable to this
Subpart.
(a) Scope and application. This Subpart applies to work in confined
and enclosed spaces and other dangerous atmospheres in shipyard
employment, including vessels, vessel sections, and on land-side
operations regardless of geographic location.
(b) Definitions applicable to this Subpart.
Adjacent spaces means those spaces bordering a subject space in all
directions, including all points of contact, corners, diagonals, decks,
tank tops, and bulkheads.
Assistant Secretary means the Assistant Secretary of Labor for
Occupational Safety and Health, or designated representative.
Certified Industrial Hygienist (CIH) means an industrial hygienist
who is certified by the American Board of Industrial Hygiene.
Coast Guard authorized person means an individual who meets the
requirement of Appendix B to subpart B of this part 1915 for tank
vessels, for passenger vessels, and for cargo and miscellaneous
vessels.
Dangerous atmosphere means an atmosphere that may expose employees
to the risk of death, incapacitation, impairment of ability to self-
rescue (i.e., escape unaided from a confined or enclosed space),
injury, or acute illness.
Director means the Director of the National Institute for
Occupational Safety and Health, U.S. Department of Health and Human
Services, or designated representative.
Enter with Restrictions denotes a space where entry for work is
permitted only if engineering controls, personal protective equipment,
clothing, and time limitations are as specified by the Marine Chemist,
Certified Industrial Hygienist, or the shipyard competent person.
Entry means the action by which a person passes through an opening
into a space. Entry includes ensuing work activities in that space and
is considered to have occurred as soon as any part of the entrant's
body breaks the plane of an opening into the space.
Hot work means any activity involving riveting, welding, burning,
the use of powder-actuated tools or similar fire-producing operations.
Grinding, drilling, abrasive blasting, or similar spark-producing
operations are also considered hot work except when such operations are
isolated physically from any atmosphere containing more than 10 percent
of the lower explosive limit of a flammable or combustible substance.
Immediately dangerous to life or health (IDLH) means an atmosphere
that poses an immediate threat to life or that is likely to result in
acute or immediate severe health effects.
Inert or inerted atmosphere means an atmospheric condition where:
(1) The oxygen content of the atmosphere in the space is maintained
at a level equal to or less than 8.0 percent by volume or at a level at
or below 50 percent of the amount required to support combustion,
whichever is less; or
(2) The space is flooded with water and the vapor concentration of
flammable or combustible materials in the free space atmosphere above
the water line is less than 10 percent of the lower explosive limit for
the flammable or combustible material.
Labeled means identified with a sign, placard, or other form of
written communication, including pictograms, that provides information
on the status or condition of the work space to which it is attached.
Lower explosive limit (LEL) means the minimum concentration of
vapor in air below which propagation of a flame does not occur in the
presence of an ignition source.
Marine Chemist means an individual who possesses a current Marine
Chemist Certificate issued by the National Fire Protection Association.
Not Safe for Hot Work denotes a space where hot work may not be
performed because the conditions do not meet the criteria for Safe for
Hot Work.
Nationally Recognized Testing Laboratory (NRTL) means an
organization recognized by OSHA, in accordance with Appendix A of 29
CFR 1910.7, which tests for safety and lists or labels or accepts
equipment and materials that meet all the criteria found in
Sec. 1910.7(b)(1) through (b)(4)(ii).
Not Safe for Workers denotes a space where an employee may not
enter because the conditions do not meet the criteria for Safe for
Workers.
Oxygen-deficient atmosphere means an atmosphere having an oxygen
concentration of less than 19.5 percent by volume.
Oxygen-enriched atmosphere means an atmosphere that contains 22.0
percent or more oxygen by volume.
Safe for Hot Work denotes a space that meets all of the following
criteria:
(1) The oxygen content of the atmosphere does not exceed 22.0
percent by volume;
(2) The concentration of flammable vapors in the atmosphere is less
than 10 percent of the lower explosive limit;
(3) The residues or materials in the space are not capable of
producing a higher concentration than permitted in paragraph (1) or (2)
of the above, under existing atmospheric conditions in the presence of
hot work and while maintained as directed by the Marine Chemist or
competent person, and
(4) All adjacent spaces have been cleaned, or inerted, or treated
sufficiently to prevent the spread of fire.
Safe for Workers denotes a space that meets the following criteria:
(1) The oxygen content of the atmosphere is at least 19.5 percent
and below 22 percent by volume;
(2) The concentration of flammable vapors is below 10 percent of
the lower explosive limit (LEL);
(3) Any toxic materials in the atmosphere associated with cargo,
fuel, tank coatings, or inerting media are within permissible
concentrations at the time of the inspection; and
(4) Any residues or materials associated with the work authorized
by the Marine Chemist, Certified Industrial Hygienist, or competent
person will not produce uncontrolled release of toxic materials under
existing atmospheric conditions while maintained as directed.
Space means an area on a vessel or vessel section or within a
shipyard such as, but not limited to: cargo tanks or holds; pump or
engine rooms; storage lockers; tanks containing flammable or
combustible liquids, gases, or solids; rooms within buildings; crawl
spaces; tunnels; or accessways. The atmosphere within a space is the
entire area within its bounds.
Upper explosive limit (UEL) means the maximum concentration of
flammable vapor in air above which propagation of flame does not occur
on contact with a source of ignition.
Vessel section means a sub-assembly, module, or other component of
a vessel being built, repaired, or broken.
Visual inspection means the physical survey of the space, its
surroundings and contents to identify hazards such as, but not limited
to, restricted accessibility, residues, unguarded machinery, and piping
or electrical systems.
Sec. 1915.12 Precautions before entering confined and enclosed spaces
and other dangerous atmospheres.
(a) Oxygen content. (1) The employer shall ensure that the
following spaces are visually inspected and tested by a competent
person to determine the atmosphere's oxygen content prior to initial
entry into the space by an employee:
(i) Spaces that have been sealed, such as, but not limited to,
spaces that have been coated and closed up, and non-ventilated spaces
that have been freshly painted;
(ii) Spaces and adjacent spaces that contain or have contained
combustible or flammable liquids or gases;
(iii) Spaces and adjacent spaces that contain or have contained
liquids, gases, or solids that are toxic, corrosive, or irritant;
(iv) Spaces and adjacent spaces that have been fumigated; and
(v) Spaces containing materials or residues of materials that
create an oxygen-deficient atmosphere.
(2) If the space to be entered contains an oxygen deficient
atmosphere, the space shall be labeled ``Not Safe for Workers'' or, if
oxygen-enriched, ``Not Safe for Workers--Not Safe for Hot Work.'' If an
oxygen-deficient or oxygen-enriched atmosphere is found, ventilation
shall be provided at volumes and flow rates sufficient to ensure that
the oxygen content is maintained at or above 19.5 percent and below
22.0 percent by volume. The warning label may be removed when the
oxygen content is equal to or greater than 19.5 and less than 22.0
percent by volume.
(3) An employee may not enter a space where the oxygen content, by
volume, is below 19.5 percent or above 22.0 percent. Exception: An
employee may enter for emergency rescue or for a short duration for
installation of ventilation equipment necessary to start work in the
space provided:
(i) The atmosphere in the space is monitored for oxygen content, by
volume, continuously; and
(ii) Respiratory protection and other appropriate personal
protective equipment and clothing are provided in accordance with
Subpart I of this part.
Note to paragraph (a): Other provisions for work in IDLH
atmospheres are located in Subpart I of this part.
(b) Flammable atmospheres. (1) The employer shall ensure that
spaces and adjacent spaces that contain or have contained combustible
or flammable liquids or gases are:
(i) Inspected visually by the competent person to determine the
presence of combustible or flammable liquids; and
(ii) Tested by a competent person prior to entry by an employee to
determine the concentration of flammable vapors and gases within the
space.
(2) If the concentration of flammable vapors or gases in the space
to be entered is equal to or greater than 10 percent of the lower
explosive limit, the space shall be labeled ``Not Safe for Workers''
and ``Not Safe for Hot Work.'' Ventilation shall be provided at volumes
and flow rates sufficient to ensure that the concentration of flammable
vapors is maintained below 10 percent of the lower explosive limit. The
warning labels may be removed when the concentration of flammable
vapors is below 10 percent of the lower explosive limit.
(3) An employee may not enter a space where the concentration of
flammable vapors or gases is equal to or greater than 10 percent of the
lower explosive limit. Exception: An employee may enter for emergency
rescue or for a short duration for installation of ventilation
equipment necessary to start work in the space, provided:
(i) No ignition sources are present;
(ii) The atmosphere in the space is monitored continuously;
(iii) The atmosphere in the space is maintained above the upper
explosive limit; and
(iv) Respiratory protection and other appropriate personal
protective equipment and clothing are provided in accordance with
Subpart I of this part.
Note 1 to paragraph (b): Additional provisions for work in IDLH
atmospheres are located in Subpart I of this part.
Note 2 to paragraph (b): Additional provisions for work in
spaces containing a flammable substance which also has a permissible
exposure limit, are located in Subpart Z of 29 CFR part 1915, and
Sec. 1915.12(c).
(c) Toxic, corrosive, irritant or fumigated atmospheres and
residues. (1) The employer shall ensure that spaces or adjacent spaces
that contain or have contained liquids, gases, or solids that are
toxic, corrosive or irritant are:
(i) Inspected visually by the competent person to determine the
presence of toxic, corrosive, or irritant residue contaminants; and
(ii) Tested by a competent person prior to initial entry by an
employee to determine the air concentration of toxics, corrosives, or
irritants within the space.
(2) If a space contains an air concentration of a material which
exceeds a part 1915 subpart Z permissible exposure limit (PEL) or is
IDLH, the space shall be labeled ``Not Safe for Workers.'' Ventilation
shall be provided at volumes and flow rates which will ensure that air
concentrations are maintained within the PEL or, in the case of
contaminants for which there is no established PEL, below the IDLH. The
warning label may be removed when the concentration of contaminants is
maintained within the PEL or below IDLH level.
(3) If a space cannot be ventilated to within the PELs or is IDLH,
a Marine Chemist or CIH must re-test until the space can be certified
``Enter with Restrictions'' or ``Safe for Workers.''
(4) An employee may not enter a space whose atmosphere exceeds a
PEL or is IDLH. Exception: An employee may enter for emergency rescue,
or for a short duration for installation of ventilation equipment
provided:
(i) The atmosphere in the space is monitored continuously;
(ii) Respiratory protection and other necessary and appropriate
personal protective equipment and clothing are provided in accordance
with Subpart I of this part.
Note to paragraph (c): Other provisions for work in IDLH
atmospheres are located in Subpart I of this part.
(d) Training of employees entering confined and enclosed spaces or
other dangerous atmospheres. (1) The employer shall ensure that each
employee that enters a confined or enclosed space and other areas with
dangerous atmospheres is trained to perform all required duties safely.
(2) The employer shall ensure that each employee who enters a
confined space, enclosed space, or other areas with dangerous
atmospheres is trained to:
(i) Recognize the characteristics of the confined space;
(ii) Anticipate and be aware of the hazards that may be faced
during entry;
(iii) Recognize the adverse health effects that may be caused by
the exposure to a hazard;
(iv) Understand the physical signs and reactions related to
exposures to such hazards;
(v) Know what personal protective equipment is needed for safe
entry into and exit from the space;
(vi) Use personal protective equipment; and
(vii) Where necessary, be aware of the presence and proper use of
barriers that may be needed to protect an entrant from hazards.
(3) The employer shall ensure that each entrant into confined or
enclosed spaces or other dangerous atmospheres is trained to exit the
space or dangerous atmosphere whenever:
(i) The employer or his or her representative orders evacuation;
(ii) An evacuation signal such as a alarm is activated ; or
(iii) The entrant perceives that he or she is in danger.
(4) The employer shall provide each employee with training:
(i) Before the entrant begins work addressed by this section; and
(ii) Whenever there is a change in operations or in an employee's
duties that presents a hazard about which the employee has not
previously been trained.
(5) The employer shall certify that the training required by
paragraphs (d)(1) through (d)(4) of this section has been accomplished.
(i) The certification shall contain the employee's name, the name
of the certifier, and the date(s) of the certification.
(ii) The certification shall be available for inspection by the
Assistant Secretary, the Director, employees, and their
representatives.
(e) Rescue teams. The employer shall either establish a shipyard
rescue team or arrange for an outside rescue team which will respond
promptly to a request for rescue service.
(1) Shipyard rescue teams shall meet the following criteria:
(i) Each employee assigned to the shipyard team shall be provided
with and trained to use the personal protective equipment he or she
will need, including respirators and any rescue equipment necessary for
making rescues from confined and enclosed spaces and other dangerous
atmospheres.
(ii) Each employee assigned to the shipyard rescue team shall be
trained to perform his or her rescue functions including confined and
enclosed and other dangerous atmosphere entry.
(iii) Shipyard rescue teams shall practice their skills at least
once every 12 months. Practice drills shall include the use of
mannequins and rescue equipment during simulated rescue operations
involving physical facilities that approximate closely those facilities
from which rescue may be needed.
Note to paragraph (e)(1)(iii): If the team preforms an actual
rescue during the 12 month period, an additional practice drill for
that type of rescue is not required.
(iv) At least one person on each rescue team shall maintain current
certification in basic first aid which includes maintenance of an
airway, control of bleeding, maintenance of circulation and
cardiopulmonary resuscitation (CPR) skills.
(2) The employer shall inform outside rescue teams of the hazards
that the team may encounter when called to perform confined and
enclosed space or other dangerous atmosphere rescue at the employer's
facility so that the rescue team can be trained and equipped.
Note to paragraph (e): The criteria for in-house rescue, listed
in paragraph (e)(1) can be used by the employer in evaluating
outside rescue services.
(f) Exchanging hazard information between employers. Each employer
whose employees work in confined and enclosed spaces or other dangerous
atmospheres shall ensure that all available information on the hazards,
safety rules, and emergency procedures concerning those spaces and
atmospheres is exchanged with any other employer whose employees may
enter the same spaces.
Sec. 1915.13 Cleaning and other cold work.
(a) Locations covered by this section. The employer shall ensure
that manual cleaning and other cold work are not performed in the
following spaces unless the conditions of paragraph (b) of this section
have been met:
(1) Spaces containing or having last contained bulk quantities of
combustible or flammable liquids or gases; and
(2) Spaces containing or having last contained bulk quantities of
liquids, gases or solids that are toxic, corrosive or irritating.
(b) Requirements for performing cleaning or cold work. (1) Liquid
residues of hazardous materials shall be removed from work spaces as
thoroughly as practicable before employees start cleaning operations or
cold work in a space. Special care shall be taken to prevent the
spilling or the draining of these materials into the water surrounding
the vessel, or for shore-side operations, onto the surrounding work
area.
(2) Testing shall be conducted by a competent person to determine
the concentration of flammable, combustible, toxic, corrosive, or
irritant vapors within the space prior to the beginning of cleaning or
cold work.
(3) Continuous ventilation shall be provided at volumes and flow
rates sufficient to ensure that the concentration(s) of:
(i) Flammable vapor is maintained below 10 percent of the lower
explosive limit; and
Note to paragraph (b)(3)(i): Spaces containing highly volatile
residues may require additional ventilation to keep the
concentration of flammable vapors below 10 percent of the lower
explosive limit and within the permissible exposure limit.
(ii) Toxic, corrosive, or irritant vapors are maintained within the
permissible exposure limits and below IDLH levels.
(4) Testing shall be conducted by the competent person as often as
necessary during cleaning or cold work to assure that air
concentrations are below 10 percent of the lower explosive limit and
within the PELs and below IDLH levels. Factors such as, but not limited
to, temperature, volatility of the residues and other existing
conditions in and about the spaces are to be considered in determining
the frequency of testing necessary to assure a safe atmosphere.
Note to paragraph (b)(4): See Appendix A for additional
information on frequency of testing.
(5) Spills or other releases of flammable, combustible, toxic,
corrosive, and irritant materials shall be cleaned up as work
progresses.
(6) An employee may not enter a confined or enclosed space or other
dangerous atmosphere if the concentration of flammable or combustible
vapors in work spaces exceeds 10 percent of the lower explosive limit.
Exception: An employee may enter for emergency rescue or for a short
duration for installation of ventilation equipment provided:
(i) No ignition sources are present;
(ii) The atmosphere in the space is monitored continuously;
(iii) The atmosphere in the space is maintained above the upper
explosive limit; and
(iv) Respiratory protection, personal protective equipment, and
clothing are provided in accordance with subpart I of this part.
Note to paragraph (b)(6): Other provisions for work in IDLH and
other dangerous atmospheres are located in Subpart I of this part.
(7) A competent person shall test ventilation discharge areas and
other areas where discharged vapors may collect to determine if vapors
discharged from the spaces being ventilated are accumulating in
concentrations hazardous to employees.
(8) If the tests required in paragraph (b)(7) of this section
indicate that concentrations of exhaust vapors that are hazardous to
employees are accumulating, all work in the contaminated area shall be
stopped until the vapors have dissipated or been removed.
(9) Only explosion-proof, self-contained portable lamps, or other
electric equipment approved by a National Recognized Testing Laboratory
(NRTL) for the hazardous location shall be used in spaces described in
paragraph (a) of this section until such spaces have been certified as
``Safe for Workers.''
Note to paragraph (b)(9): Battery-fed, portable lamps or other
electric equipment bearing the approval of a NRTL for the class, and
division of the location in which they are used are deemed to meet
the requirements of this paragraph.
(10) The employer shall prominently post signs that prohibit
sources of ignition within or near a space that has contained flammable
or combustible liquids or gases in bulk quantities:
(i) At the entrance to those spaces;
(ii) In adjacent spaces; and
(iii) In the open area adjacent to those spaces.
(11) All air moving equipment and its component parts, including
duct work, capable of generating a static electric discharge of
sufficient energy to create a source of ignition, shall be bonded
electrically to the structure of a vessel or vessel section or, in the
case of land-side spaces, grounded to prevent an electric discharge in
the space.
(12) Fans shall have non-sparking blades, and portable air ducts
shall be of non-sparking materials.
Note to paragraph (b): See Sec. 1915.12(c) of this part and
applicable requirements of 29 CFR part 1915, subpart Z for other
provisions affecting cleaning and cold work.
Sec. 1915.14 Hot work.
(a) Hot work requiring testing by a Marine Chemist or Coast Guard
authorized person. (1) The employer shall ensure that hot work is not
performed in or on any of the following confined and enclosed spaces
and other dangerous atmospheres, boundaries of spaces or pipelines
until the work area has been tested and certified by a Marine Chemist
or a U.S. Coast Guard authorized person as ``Safe for Hot Work'':
(i) Within, on, or immediately adjacent to spaces that contain or
have contained combustible or flammable liquids or gases.
(ii) Within, on, or immediately adjacent to fuel tanks that contain
or have last contained fuel; and
(iii) On pipelines, heating coils, pump fittings or other
accessories connected to spaces that contain or have last contained
fuel.
(iv) Exception: Within spaces adjacent to spaces in which the
flammable gases or liquids have a flash point below 150 deg. F
(65.6 deg. C) and the distance between such spaces and the work is
greater than 25 feet (7.5 m).
Note to paragraph (a)(1): The criteria for safe for hot work is
located in the definition section of subpart B.
(2) The certificate issued by the Marine Chemist or Coast Guard
authorized person shall be posted in the immediate vicinity of the
affected operations while they are in progress and kept on file for a
period of at least three months from the date of the completion of the
operation for which the certificate was generated.
(b) Hot work requiring testing by a competent person. (1) Hot work
is not permitted in or on the following spaces or adjacent spaces or
other dangerous atmospheres until they have been tested by a competent
person and determined to contain no concentrations of flammable vapors
equal to or greater than 10 percent of the lower explosive limit:
(i) Dry cargo holds,
(ii) The bilges,
(iii) The engine room and boiler spaces for which a Marine Chemist
or a Coast Guard authorized person certificate is not required under
paragraph (a)(1)(i) of this section, and
(iv) Vessels and vessel sections for which a Marine Chemist or
Coast Guard authorized person certificate is not required under
paragraph (a)(1)(i) of this section, and
(v) Land-side confined and enclosed spaces or other dangerous
atmospheres not covered by paragraph (a)(1) of this section.
(2) If the concentration of flammable vapors or gases is equal to
or greater than 10 percent of the lower explosive limit in the space or
an adjacent space where the hot work is to be done, then the space
shall be labeled ``Not Safe for Hot Work'' and ventilation shall be
provided at volumes and flow rates sufficient to ensure that the
concentration of flammable vapors or gases is below 10 percent by
volume of the lower explosive limit. The warning label may be removed
when the concentration of flammable vapors and gases are below 10
percent lower explosive limit.
Note to Sec. 1915.14: See appendix A for additional information
relevant to performing hot work safely.
Sec. 1915.15 Maintenance of safe conditions.
(a) Preventing hazardous materials from entering. Pipelines that
could carry hazardous materials into spaces that have been certified
``Safe for Workers'' or ``Safe for Hot Work'' shall be disconnected,
blanked off, or otherwise blocked by a positive method to prevent
hazardous materials from being discharged into the space.
(b) Alteration of existing conditions. When a change that could
alter conditions within a tested confined or enclosed space or other
dangerous atmosphere occurs, work in the affected space or area shall
be stopped. Work may not be resumed until the affected space or area is
visually inspected and retested and found to comply with Secs. 1915.12,
1915.13, and 1915.14 of this part, as applicable.
Note to paragraph (b): Examples of changes that would warrant
the stoppage of work include: The opening of manholes or other
closures or the adjusting of a valve regulating the flow of
hazardous materials.
(c) Tests to maintain the conditions of a Marine Chemist's or Coast
Guard authorized person's certificates. A competent person shall
visually inspect and test each space certified as ``Safe for Workers''
or ``Safe for Hot Work,'' as often as necessary to ensure that
atmospheric conditions within that space is maintained within the
conditions established by the certificate after the certificate has
been issued.
(d) Change in the conditions of a Marine Chemist's or Coast Guard
authorized person's certificate. If a competent person finds that the
atmospheric conditions within a certified space fail to meet the
applicable requirements of Secs. 1915.12, 1915.13, and 1915.14 of this
part, work in the certified space shall be stopped and may not be
resumed until the space has been retested by a Marine Chemist or Coast
Guard authorized person and a new certificate issued in accordance with
Sec. 1915.14(a).
(e) Tests to maintain a competent person's findings. After a
competent person has conducted a visual inspection and tests required
in Secs. 1915.12, 1915.13, and 1915.14 of this part and determined a
space to be safe for an employee to enter, he or she shall continue to
test spaces as often as necessary to ensure that the required
atmospheric conditions within the tested space are maintained.
(f) Changes in conditions determined by competent person's
findings. After the competent person has determined initially that a
space is safe for an employee to enter and he or she finds subsequently
that the conditions within the tested space fail to meet the
requirements of Secs. 1915.12, 1915.13, and 1915.14, of this part, as
applicable, work shall be stopped until the conditions in the tested
space are corrected to comply with Secs. 1915.12, 1915.13, and 1915.14,
as applicable.
Sec. 1915.16 Warning signs and labels.
(a) Employee comprehension of signs and labels. The Employer shall
ensure that each sign or label posted to comply with the requirements
of this subpart is presented in a manner that can be perceived and
understood by all employees.
(b) Posting of large work areas. A warning sign or label required
by paragraph (a) of this section need not be posted at an individual
tank, compartment or work space within a work area if the entire work
area has been tested and certified: not safe for workers, not safe for
hot work, and if the sign or label to this effect is posted
conspicuously at each means of access to the work area.
Appendix A to Subpart B--Compliance Assistance Guidelines for
Confined and Enclosed Spaces and Other Dangerous Atmospheres
This Appendix is a non-mandatory set of guidelines provided to
assist employers in complying with the requirements of this subpart.
This Appendix neither creates additional obligations nor detracts from
obligations otherwise contained in the standard. It is intended to
provide explanatory information and educational material to employers
and employees to foster understanding of, and compliance with, the
standard.
Sections 1915.11 through 1915.16. These standards are minimum
safety standards for entering and working safely in vessel tanks and
compartments.
Section 1915.11(b) Definition of ``Hot work.'' There are several
instances in which circumstances do not necessitate that grinding,
drilling, abrasive blasting be regarded as hot work. Some examples are:
1. Abrasive blasting of the hull for paint preparation does not
necessitate pumping and cleaning the tanks of a vessel.
2. Prior to hot work on any hollow structure, the void space should
be tested and appropriate precautions taken.
Section 1915.11(b) Definition of ``Lower explosive limit.'' The
terms lower flammable limit (LFL) and lower explosive limit (LEL) are
used interchangeably in fire science literature.
Section 1915.11(b) Definition of ``Upper explosive limit.'' The
terms upper flammable limit (UFL) and upper explosive limit (UEL) are
used interchangeably in fire science literature.
Section 1915.12(a)(4). After a tank has been properly washed and
ventilated, the tank should contain 20.8 percent oxygen by volume. This
is the same amount found in our normal atmosphere at sea level.
However, it is possible that the oxygen content will be lower. When
this is the case, the reasons for this deficiency should be determined
and corrective action taken.
An oxygen content of 19.5 percent can support life and is adequate
for entry. However, any oxygen level less than 20.8 percent and greater
than 19.5 percent level should also alert the competent person to look
for the causes of the oxygen deficiency and to correct them prior to
entry.
Section 1915.12(b)(4) Flammable atmospheres. Atmospheres with a
concentration of flammable vapors at or above 10 percent of the lower
explosive limit (LEL) are considered hazardous when located in confined
spaces. However, atmospheres with flammable vapors below 10 percent of
the LEL are not necessarily safe.
Such atmospheres are too lean to burn. Nevertheless, when a space
contains or produces measurable flammable vapors below the 10 percent
LEL, it might indicate that flammable vapors are being released or
introduced into the space and could present a hazard in time.
Therefore, the cause of the vapors should be investigated and, if
possible, eliminated prior to entry.
Some situations that have produced measurable concentrations of
flammable vapors that could exceed 10 percent of the LEL in time are:
1. Pipelines that should have been blanked or disconnected have
opened, allowing product into the space.
2. The vessel may have shifted, allowing product not previously
cleaned and removed during washing to move into other areas of the
vessel.
3. Residues may be producing the atmosphere by releasing flammable
vapor.
Section 1915.12(b)(6) Flammable atmospheres that are toxic. An
atmosphere with a measurable concentration of a flammable substance
below 10 percent of the LEL may be above the OSHA permissible exposure
limit for that substance. In that case, refer to Sec. 1915.12(c) (2),
(3), and (4).
Section 1915.13(b)(4), Sec. 1915.15(c), and Sec. 1915.15(e). The
frequency with which a tank is monitored to determine if atmospheric
conditions are being maintained is a function of several factors that
are discussed below:
1. Temperature. Higher temperatures will cause a combustible or
flammable liquid to vaporize at a faster rate than lower temperatures.
This is important since hotter days may cause tank residues to produce
more vapors and that may result in the vapors exceeding 10 percent of
the LEL or an overexposure to toxic contaminants.
2. Work in the tank. Any activity in the tank could change the
atmospheric conditions in that tank. Oxygen from a leaking oxyfuel hose
or torch could result in an oxygen-enriched atmosphere that would more
easily propagate a flame. Some welding operations use inert gas, and
leaks can result in an oxygen-deficient atmosphere. Manual tank
cleaning with high pressure spray devices can stir up residues and
result in exposures to toxic contaminants. Simple cleaning or mucking
out, where employees walk through and shovel residues and sludge, can
create a change in atmospheric conditions.
3. Period of time elapsed. If a period of time has elapsed since a
Marine Chemist or Coast Guard authorized person has certified a tank as
safe, the atmospheric condition should be rechecked by the competent
person prior to entry and starting work.
4. Unattended tanks or spaces. When a tank or space has been tested
and declared safe, then subsequently left unattended for a period of
time, it should be retested prior to entry and starting work. For
example, when barges are left unattended at night, unidentified
products from another barge are sometimes dumped into their empty
tanks. Since this would result in a changed atmosphere, the tanks
should be retested prior to entry and starting work.
5. Work break. When workers take a break or leave at the end of the
shift, equipment sometimes is inadvertently left in the tanks. At lunch
or work breaks and at the end of the shift are the times when it is
most likely someone will leave a burning or cutting torch in the tank,
perhaps turned on and leaking oxygen or an inert gas. Since the former
can produce an oxygen-enriched atmosphere, and the latter an oxygen-
deficient atmosphere, tanks should be checked for equipment left
behind, and atmosphere, monitored if necessary prior to re-entering and
resuming work. In an oxygen-enriched atmosphere, the flammable range is
severely broadened. This means that an oxygen-enriched atmosphere can
promote very rapid burning.
6. Ballasting or trimming. Changing the position of the ballast, or
trimming or in any way moving the vessel so as to expose cargo that had
been previously trapped, can produce a change in the atmosphere of the
tank. The atmosphere should be retested after any such move and prior
to entry or work.
Section 1915.14 (a) and (b) Hot work. This is a reminder that
other sections of the OSHA shipyard safety and health standards in part
1915 should be reviewed prior to starting any hot work. Most notably,
Subpart D, Welding, Cutting and Heating, places additional restrictions
on hot work: The requirements of Secs. 1915.51 and 1915.53 must be met
before hot work is begun on any metal that is toxic or is covered by a
preservative coating respectively; the requirements of Sec. 1915.54
must be met before welding, cutting, or heating is begun on any
structural voids.
Section 1915.12(a)(2). During hot work, more than 20.8 percent
oxygen by volume can be unsafe since it extends the normal flammable
range. The standard permits the oxygen level to reach 22 percent by
volume in order to account for instrument error. However, the cause of
excess oxygen should be investigated and the source removed.
Section 1915.16(b). If the entire vessel has been found to be in
the same condition, then employers shall be considered to be in
compliance with this requirement when signs using appropriate warning
language in accordance with Sec. 1915.16(a) are posted at the gangway
and at all other means of access to the vessel.
Appendix B to Subpart B--Confined and Enclosed Spaces and Other
Dangerous Atmospheres in Shipyard Employment
This Appendix provides a complete reprint of U.S. Coast Guard
regulations as of October 1, 1993 referenced in Subpart B for purposes
of determining who is a Coast Guard authorized person.
1. Title 46 CFR 35.01-1 (a) through (c) covering hot work on tank
vessels reads as follows:
(a) The provisions of ``Standard for the Control of Gas Hazards on
Vessels to be Repaired,'' NFPA No. 306, published by National Fire
Protection Association, 1 Batterymarch Park, Quincy, MA 02269, shall be
used as a guide in conducting the inspections and issuance of
certificates required by this section.
(b) Until an inspection has been made to determine that such
operation can be undertaken with safety, no alterations, repairs, or
other such operations involving riveting, welding, burning, or like
fire-producing actions shall be made:
(1) Within or on the boundaries of cargo tanks that have been used
to carry flammable or combustible liquid or chemicals in bulk, or
within spaces adjacent to such cargo tanks; or
(2) Within or on the boundaries of fuel tanks; or
(3) To pipe lines, heating coils, pumps, fittings, or other
appurtenances connected to such cargo or fuel tanks.
(c) Such inspections shall be made and evidenced as follows:
(1) In ports or places in the United States or its territories and
possessions, the inspection shall be made by a Marine Chemist
certificated by the National Fire Protection Association; however, if
the services of such certified Marine Chemists are not reasonably
available, the Officer in Charge, Marine Inspection, upon the
recommendation of the vessel owner and his contractor or their
representative, shall select a person who, in the case of an individual
vessel, shall be authorized to make such inspection. If the inspection
indicates that such operations can be undertaken with safety, a
certificate setting forth the fact in writing and qualified as may be
required, shall be issued by the certified Marine Chemist or the
authorized person before the work is started. Such qualifications shall
include any requirements as may be deemed necessary to maintain,
insofar as can reasonably be done, the safe conditions in the spaces
certified, throughout the operation and shall include such additional
tests and certifications as considered required. Such qualifications
and requirements shall include precautions necessary to eliminate or
minimize hazards that may be present from protective coatings or
residues from cargoes.
2. Title 46 CFR 71.60(c)(1) covering hot work on passenger vessels
reads as follows:
(a) The provisions of ``Standard for the Control of Gas Hazards on
Vessels to be Repaired,'' NFPA No. 306, published by National Fire
Protection Association, 1 Batterymarch Park, Quincy, MA 02269, shall be
used as a guide in conducting the inspections and issuance of
certificates required by this section.
(b) Until an inspection has been made to determine that such
operation can be undertaken with safety, no alterations, repairs, or
other such operations involving riveting, welding, burning, or like
fire-producing actions shall be made:
(1) Within or on the boundaries of cargo tanks which have been used
to carry flammable or combustible liquid or chemicals in bulk, or
within spaces adjacent to such cargo tanks; or
(2) Within or on the boundaries of fuel tanks; or
(3) To pipe lines, heating coils, pumps, fittings, or other
appurtenances connected to such cargo or fuel tanks.
(c) Such inspections shall be made and evidenced as follows:
(1) In ports or places in the United States or its territories and
possessions the inspection shall be made by a Marine Chemist
certificated by the National Fire Protection Association; however, if
the services of such certified Marine Chemist are not reasonably
available, the Officer in Charge, Marine Inspection, upon the
recommendation of the vessel owner and his contractor or their
representative, shall select a person who, in the case of an individual
vessel, shall be authorized to make such inspection. If the inspection
indicated that such operations can be undertaken with safety, a
certificate setting forth the fact in writing and qualified as may be
required, shall be issued by the certified Marine Chemist or the
authorized person before the work is started. Such qualifications shall
include any requirements as may be deemed necessary to maintain,
insofar as can reasonably be done, the safe conditions in the spaces
certified throughout the operation and shall include such additional
tests and certifications as considered required. Such qualifications
and requirements shall include precautions necessary to eliminate or
minimize hazards that may be present from protective coatings or
residues from cargoes.
3. Title 46 CFR 91.50-1(c)(1) covering hot work on cargo and
miscellaneous vessels as follows:
(a) The provisions of ``Standard for the Control of Gas Hazards on
Vessels to be Repaired,'' NFPA No. 306, published by National Fire
Protection Association, 1 Batterymarch Park, Quincy, MA 02269, shall be
used as a guide in conducting the inspections and issuance of
certificates required by this section.
(b) Until an inspection has been made to determine that such
operation can be undertaken with safety, no alterations, repairs, or
other such operations involving riveting, welding, burning, or like
fire-producing actions shall be made:
(1) Within or on the boundaries of cargo tanks which have been used
to carry flammable or combustible liquid or chemicals in bulk, or
within spaces adjacent to such cargo tanks; or,
(2) Within or on the boundaries of fuel tanks; or,
(3) To pipe lines, heating coils, pumps, fittings, or other
appurtenances connected to such cargo or fuel tanks.
(c) Such inspections shall be made and evidenced as follows:
(1) In ports or places in the United States or its territories and
possessions the inspection shall be made by a Marine Chemist
certificated by the National Fire Protection Association; however, if
the services of such certified Marine Chemist are not reasonably
available, the Officer in Charge, Marine Inspection, upon the
recommendation of the vessel owner and his contractor or their
representative, shall select a person who, in the case of an individual
vessel, shall be authorized to make such inspection. If the inspection
indicated that such operations can be undertaken with safety, a
certificate setting forth the fact in writing and qualified as may be
required, shall be issued by the certified Marine Chemist or the
authorized person before the work is started. Such qualifications shall
include any requirements as may be deemed necessary to maintain,
insofar as can reasonably be done, the safe conditions in the spaces
certified throughout the operation and shall include such additional
tests and certifications as considered required. Such qualifications
and requirements shall include precautions necessary to eliminate or
minimize hazards that may be present from protective coatings or
residues from cargoes.
[FR Doc. 94-16976 Filed 7-22-94; 8:45 am]
BILLING CODE 4510-26-P
