Confined Spaces in Construction, 67352-67425 [E7-21893]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 72, Number 228 (Wednesday, November 28, 2007)]
[Proposed Rules]
[Pages 67352-67425]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-21893]



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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 1926



Confined Spaces in Construction; Proposed Rule

Federal Register / Vol. 72, No. 228 / Wednesday, November 28, 2007 / 
Proposed Rules

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket ID-OSHA-2007-0026]
RIN 1218-AB47


Confined Spaces in Construction

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

ACTION: Proposed rule.

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SUMMARY: OSHA is proposing a rule to protect employees from the hazards 
resulting from exposure to confined spaces in the construction 
industry. Under the proposed rule, employers would first determine 
whether there is a confined space at a job site. If there is a confined 
space, the employer would determine if there are existing or potential 
hazards in the space. If there are such hazards, the employer then 
would classify the space according to the physical and atmospheric 
hazards found in it. The four classifications are: Isolated-Hazard 
Confined Space, Controlled-Atmosphere Confined Space, Permit-Required 
Confined Space, and Continuous System-Permit-Required Confined Space. 
The proposed requirements for each type of confined space are tailored 
to control the different types of hazards.

DATES: Submit comments (including comments to the information-
collection (paperwork) determination described under the section titled 
SUPPLEMENTARY INFORMATION of this notice), hearing requests, and other 
information by January 28, 2008. All submissions must bear a postmark 
or provide other evidence of the submission date. (See the following 
section titled ADDRESSES for methods you can use in making 
submissions.)

ADDRESSES: Comments and hearing requests may be submitted as follows:
     Electronic: Comments may be submitted electronically to 
https://www.regulations.gov, which is the Federal eRulemaking Portal. 
Follow the instructions online for submitting comments.
     Facsimile: OSHA allows facsimile transmission of comments 
and hearing requests that are 10 pages or fewer in length (including 
attachments). Send these documents to the OSHA Docket Office at (202) 
693-1648; hard copies of these documents are not required. Instead of 
transmitting facsimile copies of attachments that supplement these 
documents (e.g., studies, journal articles), commenters may submit 
these attachments, in triplicate hard copy, to the OSHA Docket Office, 
Technical Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200 
Constitution Ave., NW., Washington, DC 20210. These attachments must 
clearly identify the sender's name, date, subject, and Docket ID (i.e., 
OSHA-2007-0026) so that the Agency can attach them to the appropriate 
document.
     Regular mail, express delivery, hand (courier) delivery, 
and messenger service: Submit three copies of comments and any 
additional material (e.g., studies, journal articles) to the OSHA 
Docket Office, Docket ID OSHA-2007-0026 or RIN No. 1218-AB47, Technical 
Data Center, Room N-2625, OSHA, Department of Labor, 200 Constitution 
Ave., NW., Washington, DC 20210; telephone: (202) 693-2350. (OSHA's TTY 
number is (877) 889-5627.) Please contact the OSHA Docket Office for 
information about security procedures concerning delivery of materials 
by express delivery, hand delivery, and messenger service. The hours of 
operation for the OSHA Docket Office are 8:15 a.m. to 4:45 p.m., e.t.
    Instructions: All submissions must include the Agency name and the 
OSHA Docket ID (i.e., OSHA-2007-0026). Comments and other material, 
including any personal information, are placed in the public docket 
without revision, and will be available online at https://
www.regulations.gov. Therefore, the Agency cautions commenters about 
submitting statements they do not want made available to the public, or 
submitting comments that contain personal information (either about 
themselves or others) such as social security numbers, birth dates, and 
medical data.
    Docket: To read or download comments or other material in the 
docket, go to https://www.regulations.gov or to the OSHA Docket Office 
at the address above. Documents in the docket are listed in the https://
www.regulations.gov index; however, some information (e.g., copyrighted 
material) is not publicly available to read or download through this 
Web site. All submissions, including copyrighted material, are 
available for inspection and copying at the OSHA Docket Office. Contact 
the OSHA Docket Office for assistance in locating docket submissions.

FOR FURTHER INFORMATION CONTACT:  General information and press 
inquiries: Contact Mr. Kevin Ropp, Director, Office of Communications, 
OSHA, U.S. Department of Labor, Room N-3647, 200 Constitution Avenue, 
NW., Washington, DC 20210; telephone (202) 693-1999 or fax (202) 693-
1634.
     Technical inquiries: Contact Mr. Garvin Branch, 
Directorate of Construction, Room N-3468, OSHA, U.S. Department of 
Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone 
(202) 693-2020 or fax (202) 693-1689.
     Copies of this Federal Register notice: Available from the 
OSHA Office of Publications, Room N-3101, U.S. Department of Labor, 200 
Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-
1888.
     Electronic copies of this notice: Go to OSHA's Web site 
(https://www.osha.gov), and select ``Federal Register,'' ``Date of 
Publication,'' and then ``2007.''
     Additional information for submitting documents: See 
section V.I. (``Public Participation'') of this notice.

SUPPLEMENTARY INFORMATION:

I. General

A. Table of Contents

    The following Table of Contents identifies the major preamble 
sections in this notice and the order in which they are presented:

I. General
    A. Table of Contents
    B. Hearing
II. Background
    A. History
    B. Need for a Rule Regulating Confined Spaces in Construction
III. Summary and Explanation of the Proposed Standard
IV. Issues for Comment
V. Procedural Determinations
    A. Legal Authority
    B. Summary of the Preliminary Economic Analysis and Initial 
Regulatory Flexibility Analysis
    C. OMB Review Under the Paperwork Reduction Act of 1995
    D. Federalism
    E. State-Plan States
    F. Unfunded Mandates Reform Act
    G. Applicability of Existing Consensus Standards
    H. Review of the Proposed Standard by the Advisory Committee for 
Construction Safety and Health (ACCSH)
    I. Public Participation--Comments and Hearings

B. Hearing

    Requests for a hearing should be submitted to the Agency as set 
forth above under DATES and ADDRESSES.

II. Background

A. History

    On March 25, 1980, OSHA published an Advanced Notice of Proposed 
Rulemaking (ANPR) on confined spaces for the construction industry (45 
FR

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19266 \1\). The ANPR posed 31 questions concerning confined-space 
hazards in the construction industry, and the Agency received 75 
comments in response to these questions. However, OSHA took no further 
action on this regulatory initiative at the time.
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    \1\ ``FR'' refers to ``Federal Register,'' with the volume 
number (for example, 45) before, and the page number (for example, 
19266) after, ``FR.''
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    OSHA issued the general industry confined-spaces rule (29 CFR 
1910.146) on January 14, 1993 (58 FR 4462), as well as a similar rule 
for the shipyard industry 29 CFR 1915.7, 11-16) on July 25, 1994 (59 FR 
37816). The general industry standard requires employers to classify 
hazardous confined spaces as ``permit-required confined spaces,'' and 
to implement specific procedures to ensure the safety of employees who 
enter them.
    It contains detailed procedures for developing a written confined-
space program, monitoring atmospheric hazards, training employees, 
preventing unauthorized employees from entering these spaces, providing 
for both non-entry and entry rescue, and maintaining records.
    The general industry standard specifies a limited exception from 
some of the permit-required confined-space requirements when the only 
hazard in a confined space is an atmospheric hazard and ventilation 
equipment will control the atmospheric hazard at safe levels. It also 
provides protection to employees from non-atmospheric (for example, 
physical) hazards within non-permit-required, as well as permit-
required, confined spaces. However, the general industry standard does 
not apply to construction employers, and, as such, does not specify the 
appropriate level of employee protection based on the hazards created 
by construction activities performed in confined spaces. Table 1 
provides a description of the key differences between the general 
industry standard and the proposed standard for confined spaces in 
construction.

 Table 1.--Key Differences in Regulatory Provisions between the General
              Industry and Proposed Construction Standards
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       General industry standard          Proposed construction standard
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                      Organization of the Standard
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The standard begins with requirements    The proposed standard takes a
 for entering PRCSs.                      step-by-step approach,
                                          explaining how to assess
                                          hazards, determine the
                                          classification for the space,
                                          and how to safely enter it.
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                          Information Exchange
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The standard requires a host employer    The proposed standard requires
 to coordinate entry operations with a    the controlling contractor to
 contractor when the host employer and    coordinate entry operations
 the contractor both have employees       among contractors who have
 working in or near a permit space.       employees in a confined space
                                          regardless of whether or not
                                          the controlling contractor has
                                          employees in the confined
                                          space.
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                  Confined Space with Hazards Isolated
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Does not address working in confined     Allows employers to establish
 spaces in which the hazard has been      an Isolated-Hazard Confined
 isolated.                                Space by isolating or
                                          eliminating all physical and
                                          atmospheric hazards in a
                                          confined space.
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          Controlled-Atmosphere Permit-Required Confined Space
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Monitoring required as necessary.......  Continuous monitoring required
                                          unless the employer
                                          demonstrates that periodic
                                          monitoring is sufficient.
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                 Permit-Required Confined Spaces (PRCS)
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No explicit requirement for entry        Explicit requirement for entry
 supervisor to monitor PRCS conditions    supervisor to monitor PRCS
 during entry.                            conditions during entry.
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Requires a written PRCS plan...........  No written plan required when
                                          employer maintains a copy of
                                          the standard at the worksite.
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No specific early-warning requirements   Early-warning requirement for
 for up-stream hazards.                   up-stream hazards in sewer-
                                          type spaces.
------------------------------------------------------------------------

    The Agency recognizes that a number of requirements of the proposed 
standard for confined spaces in construction duplicate, or are similar 
to, the provisions of the general industry standard for permit-required 
confined spaces. Nevertheless, OSHA does not believe that the general 
industry standard addresses adequately the unique characteristics of 
confined spaces in construction. Compared to general industry, the 
construction industry experiences higher employee turnover rates, with 
construction employees more often working at multiple worksites 
performing short-term tasks. Unlike most general industry worksites, 
construction worksites are continually evolving, with the number and 
characteristics of confined spaces changing as work progresses. 
Multiple contractors and controlling contractors are found more often 
at construction worksites than at general industry worksites. Also, in 
contrast to general industry, OSHA believes that many contractors who 
perform construction work in sewer systems are unfamiliar with the 
hazards associated with these worksites. Therefore, OSHA placed

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more emphasis in this proposed standard on assessing hazards at sewer 
worksites than it did in the general industry confined-spaces standard.
    The differences in employee and worksite characteristics between 
the construction industry and general industry prompted OSHA to develop 
a proposed standard for regulating confined spaces in the construction 
industry that varied substantially from the general industry confined-
spaces standard as described above in Table 1 of this preamble. Because 
of the regulatory differences between this proposed standard and the 
general industry standard, the general industry standard would not be 
considered a substitute for this proposed construction standard except 
where the provisions are essentially the same.
    In 1993, as part of the litigation activity surrounding the newly 
promulgated general industry standard, OSHA agreed in a settlement with 
the United Steel Workers of America to issue a proposed rule to extend 
confined-space protection to construction employees. On February 18, 
1994, OSHA submitted a draft proposed standard for confined spaces in 
construction to the Advisory Committee for Construction Safety and 
Health (ACCSH) for comment. ACCSH established a work group on March 22, 
1994 to address the OSHA draft proposed standard and report its 
findings to the full committee.
    ACCSH adopted the work group report on May 17, 1994, and 
recommended that OSHA incorporate it into a rulemaking docket. In this 
report, ACCSH noted that the general industry standard did not meet the 
needs of the construction industry because it did not provide adequate 
information to contractors for distinguishing among the different types 
of confined spaces, or to determine the appropriate level of employee 
protection based on the hazards resulting from construction activities 
performed in confined spaces. In addition, ACCSH found that confined 
spaces encountered or created in construction often are not identified 
or classified prior to the beginning of a construction project.
    Consequently, ACCSH established a work group to draft a proposed 
standard that would meet the unique needs of the construction industry. 
The draft proposed standard emphasized identifying different types of 
confined spaces encountered in construction (for example, where the 
hazard has been isolated, where atmospheric hazards are controlled at 
safe levels, and permit-required spaces), inter-contractor information 
exchange, and the detailed protections necessary to eliminate or 
control specific hazards.
    As the result of the ACCSH work group review, a draft proposed 
standard for confined spaces in construction was submitted to OSHA in 
the winter of 1996 and ACCSH recommended that it be used as a proposed 
confined-spaces standard. OSHA determined that the ACCSH draft proposed 
standard needed to be reworked to make it easier to understand, 
especially for small employers who do not employ a separate safety 
staff. The Agency also determined that certain hazards, such as those 
encountered in sewer-construction work, were not adequately addressed. 
Consequently, OSHA determined that it was necessary to develop a new 
draft proposed standard.
    In 1998, OSHA completed a new draft proposed standard but 
discovered that there were several issues that needed to be resolved 
before the draft proposed standard could be finalized. To get feedback 
from the construction community, OSHA held three stakeholders meetings 
in October of 2000 across the country. The topics discussed were: (1) 
Typical confined spaces encountered in construction; (2) whether an 
early-warning system should be required for spaces in which an 
engulfment hazard cannot be isolated (such as in some sewer 
situations); (3) the need for, and cost of, continuous monitoring for 
atmospheric hazards; (4) how a confined-spaces standard for 
construction could accommodate the needs of small businesses; and (5) 
whether an attendant should be permitted to monitor more than one 
confined space at a time.
    In late 2003, OSHA completed the new draft proposed standard and 
convened a panel under the Small Business Regulatory Enforcement 
Fairness Act (SBREFA) to solicit comments on it from small business 
entities. The SBREFA panel conducted two conference-call discussions, 
which were open to the public, in which the small business entities 
were invited to express their concerns about the draft proposed 
standard and submit written comments to the record that covered the 
issues. The SBREFA panel then submitted its recommendations to the 
Assistant Secretary in November 2003.
    This proposed confined-spaces standard for construction reflects 
input from stakeholder meetings, ACCSH, and the SBREFA review process. 
For example, a provision that would have addressed working in 
hazardous-enclosed spaces (spaces designed for human occupancy but 
subject to a hazardous atmosphere), which small business entities 
participating in the SBREFA review process considered burdensome and 
unnecessary, was eliminated because OSHA believes that existing 
construction standards (for example, 29 CFR 1926.55) adequately address 
these hazards. This proposed standard uses a confined-space 
classification approach that is influenced by ACCSH recommendations. 
The proposed standard is organized as chronologically as possible to 
help guide the employer, from its initial encounter with a potential 
confined space, through the steps necessary to ensure that employees 
are adequately protected. In addition, it addresses the need for 
coordination and information exchange at construction sites, which 
typically have multiple employers.

B. Need for a Rule Regulating Confined Spaces in Construction

    Fatality and injury data, OSHA enforcement experience, and advice 
from the Advisory Committee on Construction Safety and Health (ACCSH) 
indicate that the existing construction standard for confined and 
enclosed spaces at 29 CFR 1926.21(b)(6) does not adequately protect 
construction employees in confined spaces from atmospheric, mechanical, 
and other hazards. In this regard, the existing construction standard 
only requires employers to: (1) Instruct their employees about 
confined-space hazards, and (2) comply with other OSHA construction 
standards that address confined-space hazards. For situations in which 
none of these construction standards apply, the employer would have to 
comply with the general-duty requirement of the Occupational Safety and 
Health Act of 1970 to ``furnish to each of [its] employees employment 
and a place of employment which are free from recognized hazards that 
are causing or are likely to cause death or serious physical harm to 
[its] employees.'' (29 U.S.C. 654.) Therefore, where the existing 
construction confined-spaces standard applies, it requires only 
training of employees who work in confined spaces--it does not address 
how trained employees are to be protected while working in such spaces.
    OSHA has preliminarily determined that employees in the 
construction industry who perform work in confined spaces face a 
significant risk of death or serious injury, and that this proposed 
rule would substantially reduce that risk. At present, approximately 
20,000 establishments have employees entering at least one confined 
space as defined by the proposed rule. There are an estimated annual 
total of 641,000

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confined spaces; about half of these confined spaces would be 
considered permit-required confined spaces under this proposal (Ex. 
OSHA-2007-0026-0003). OSHA estimates that each year there are 6.44 
fatalities and 967 injuries experienced by employees working in 
confined spaces addressed by this proposed rule. OSHA has preliminary 
determined that the proposed rule, when implemented properly by 
employers, would reduce the average number of fatalities and injuries 
in confined spaces covered by the proposed standard by about 90% (6 
fatalities prevented annually and 880 injuries prevented annually). 
(For further explanation of the significant-risk calculations, see 
section V.B. (``Summary of the Preliminary Economic Analysis and 
Initial Regulatory Flexibility Analysis'') of this notice and Ex, OSHA-
2007-0026-0003).

III. Summary and Explanation of the Proposed Standard

Section 1926.1201--Introduction

    Paragraph (a). This paragraph states the general purpose of the 
proposed rule. This standard would cover employers who have employees 
that work in or near a confined space that is subject to a hazard. 
Appropriate precautions are needed to ensure the safety of these 
employees. This proposed paragraph also defines a confined space as: a 
space that is large enough and arranged in such a manner that employees 
can enter the space, has limited or restricted means of entry/exit and 
is not designed for continuous employee occupancy.
    Spaces with these characteristics are prone to containing hazards 
that tend to be unseen and unrecognized until it is too late to escape. 
Consequently, it is necessary to assess these spaces to see if there 
are actual or potential hazards beforehand, and to implement procedures 
designed both to protect construction employees from such hazards and 
to rescue them in the event the protective measures do not work as 
anticipated.
    Paragraph (b). Employers would be required to determine the 
classification of each confined space that is subject to a hazard. 
Employers must classify such spaces as one of four types specified by 
this proposed standard. The classification is based on factors such as 
the type and level of hazards present in the confined space. If the 
employer determines that a confined space in its natural state is not 
subject to a hazard, it would not be classified. (Note that in this 
proposed rule, the term ``hazard'' includes both existing hazards and 
hazards that have a reasonable probability of occurring.) The employer 
would not have to take any further action unless one of the indications 
specified in proposed Sec.  1926.1207 (Reassessment) occurred, in which 
case the employer would be required to take certain actions, including 
a reassessment of the space. The monitoring of conditions within a 
confined space is an ongoing process and is necessary for the employer 
to ensure the safety of its employees while working within that space.
    Paragraph (b)(1). This proposed paragraph lists the four 
classifications of confined spaces ((b)(1)(i) through (b)(1)(iv)).
    Paragraph (b)(1)(i). A Continuous System-Permit-Required Confined 
Space (CS-PRCS) is a confined space that is a part of, and contiguous 
with, a larger confined space (for example, sewers) that the employer 
cannot isolate from the larger confined space. It is also subject to a 
potential hazard release from the larger confined space that would 
overwhelm personal protective equipment and/or hazard controls, 
resulting in a hazard that is immediately dangerous to life and health. 
The proposed rule includes the CS-PRCS classification to ensure that 
the employer recognizes that, as the construction industry has 
recognized, there are difficulties associated with isolating the 
hazards of other larger spaces connected to the CS-PRCS. Special 
precautions are necessary, in addition to the other PRCS requirements, 
to ensure adequate protection of the employees.
    Paragraph (b)(1)(ii). A Permit-Required Confined Space (PRCS) is a 
confined space that has any one of the following: A hazardous 
atmosphere that ventilation will not reduce to and maintain at a safe 
level; inwardly-converging, sloping, or tapering surfaces that could 
trap or asphyxiate an employee; or an engulfment hazard or other 
physical hazard.
    Paragraph (b)(1)(iii). A Controlled-Atmosphere Confined Space 
(CACS) is a confined space where ventilation alone will control its 
atmospheric hazards at safe levels. Note also that a confined space 
cannot be classified as a CACS if it has a physical hazard (unless that 
hazard has been isolated). The proposed rule includes the CACS as a 
separate classification from the PRCS because fewer precautions are 
needed to ensure the safety of its employees than for PRCSs, but more 
precautions are needed than for an Isolated-Hazard Confined Space 
(discussed below under paragraph (b)(1)(iv)) because the atmospheric 
hazard is controlled but not eliminated. This option is provided to the 
employer to allow it to provide a level of employee protection 
specifically tailored to, and commensurate with, the hazards within the 
confined space. In a space properly classified as a CACS, OSHA believes 
that the use of the CACS measures, as compared with the PRCS measures, 
would be as protective and typically more cost effective.
    Paragraph (b)(1)(iv). An Isolated-Hazard Confined Space (IHCS) is a 
confined space in which the employer has isolated all physical and 
atmospheric hazards. ``Isolated'' means the elimination or removal of a 
physical or atmospheric hazard by preventing its release into a 
confined space. Isolation includes, but is not limited to, the 
following methods: Blanking and blinding; misaligning or removing 
sections of lines, pipes, or ducts; a double-block-and-bleed system; 
locking out or tagging out energy sources; machine guarding; and 
blocking or disconnecting all mechanical linkages. Methods must be 
implemented to ensure that the hazards remain isolated. Isolation 
methods provide the highest degree of assurance that the hazard will be 
kept away from the employees in the space, since it consists of methods 
that do not depend on the continued, proper operation of machinery 
(such as ventilation equipment) or personal protective equipment (such 
as respirators). Consequently, this classification of space presents 
the lowest hazard level to the employees, and is similar to a ``non-
permit space'' described in 29 CFR 1910.146(c)(7) of the general 
industry standard.
    Paragraph (b)(2). This proposed provision gives the employer the 
option to classify a confined space in any classification, so long as 
all of the characteristics and requirements for that classification are 
met. The Agency considered proposing that the employer be required to 
try to make the space qualify for the lowest possible classification. 
However, after considering comments from small business entities 
received through the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) review, OSHA decided to give employers more flexibility; 
employers may use any of the classifications, as long as the 
requirements for the selected classification are met. OSHA believes it 
is important to allow employers the flexibility to classify confined 
spaces based on the conditions or circumstances of individual work 
environments.
    The one exception is that a space with the characteristics of a 
Continuous

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System-Permit-Required Confined Space cannot be given a different 
classification. Where a confined space meets the definition of a CS-
PRCS, the employer must classify the space as such and meet all of its 
requirements. To meet the definition of a CS-PRCS, the employer must 
have determined that the confined space could not be isolated from its 
connection to a larger space and its associated hazards. OSHA believes 
that since the potential hazards of the larger space will always exist, 
the additional CS-PRCS requirements must be met to address the hazards. 
Classifying the space to any lower classification would leave the 
employees exposed to an engulfment or atmospheric hazard that could 
originate in the connected, larger space (that is, the configuration of 
CS-PRCSs is such that an employer cannot safely eliminate or isolate 
the potential hazards so as to meet the criteria for a lower 
classification).
    Paragraph (c). The proposed standard specifies precautions that 
must be followed if the employees have to enter the space to determine 
its classification (see paragraph (b) of proposed Sec.  1926.1204). 
These precautions are necessary because the characteristics and extent 
of the hazards that may be present would not yet be known at that 
point.
    Paragraph (d). If the contractor makes a determination under 
proposed Sec.  1926.1204 (Worksite evaluation, information, exchange, 
and coordination) that the confined space is not subject to any 
hazards, the confined space would not need to be classified. However, 
if subsequent to that determination any of the indications specified in 
proposed Sec.  1926.1207 (Reassessment) were to occur, the contractor 
would be required to conduct a reassessment as specified in proposed 
Sec.  1926.1207. This is necessary to ensure that there continue to be 
no hazards present when employees are in an unclassified confined 
space.

Section 1926.1202--Scope

    The proposed standard provides minimum safety and health 
requirements and procedures to protect employees who work in or near 
confined spaces. It addresses how to protect employees from confined-
space hazards. The proposed standard includes requirements for 
training, hazard analysis, classification, entering, working, exiting, 
and rescue for confined spaces of various hazard levels.
    This proposed standard does not replace the more hazard-specific 
construction standards that are already in place. Rather, this proposed 
standard is designed to provide additional protections needed to deal 
with hazards that may arise when employees are working in or near a 
confined space.
    Paragraph (a). This paragraph identifies which employers are 
covered by the proposed standard. Employers who are engaged in 
construction work and have confined spaces at their job sites are 
subject to the provisions of the proposed standard. Further, employers 
who have confined spaces on their job site and hire subcontractors to 
operate within those spaces also would have to meet specific 
requirements in the proposed standard. The note to this paragraph 
includes a non-exclusive list of potential confined spaces that 
commonly occur on a construction worksite. This list provides examples 
for employers who may be unfamiliar with confined spaces in 
construction.
    Paragraph (b). This paragraph explicitly excludes construction work 
regulated by 29 CFR part 1926 subpart Y (Diving), non-sewer 
construction work regulated by 29 CFR part 1926 subpart P (Excavation), 
and non-sewer construction work regulated by 29 CFR part 1926 subpart S 
(Underground Construction, Caissons, Cofferdams and Compressed Air) 
from the scope of this proposed standard. Employers operating under one 
of the three listed exemptions are not required to follow this proposed 
standard for work within a confined space. Employers who hire 
contractors to perform work covered by these three standards also are 
excluded from coverage under this proposed standard. The reason for 
these exclusions is that the Agency believes that the existing OSHA 
requirements applicable to these activities are sufficient to address 
and protect employees from the confined-space hazards in those 
situations.
    Paragraph (c). This provision would require employers, when an 
activity is covered under both the scope of this proposed standard and 
the provisions in another OSHA construction standard related to 
confined-space hazards, to comply with those provisions as well as the 
applicable provisions in this proposed standard. For example, while 
subpart D in 29 CFR part 1926 contains requirements for ventilation 
when working in potentially hazardous atmospheric conditions, it does 
not address other equipment or workplace conditions that are covered by 
this proposed standard. Also, some construction standards require the 
use of specified systems during operations in a confined space, but do 
not set criteria that those systems must meet; in these cases, the 
requirements of both the existing construction standard and this 
proposed standard would apply. For example, 29 CFR part 1926 subpart J 
(Welding) requires that the employer provide a lifeline when an 
employee is welding in a confined space entered through a manhole or 
other small opening. When working in a PRCS, 29 CFR part 1926 subpart J 
also sets criteria for the use of a lifeline system in the confined 
space, but does not set criteria for the use of rescue services or 
provide any other permit-required space procedures to protect the 
employees. Under those circumstances, the rescue service and entry 
procedures must meet the requirements of this proposed standard, while 
the lifeline system would be required to meet the criteria in 29 CFR 
part 1926 subpart J.
    Appendix A of the proposed standard contains a list of existing 
provisions found in other OSHA construction standards under 29 CFR part 
1926 that address work done in confined spaces. This list contains only 
current construction provisions, and does not preclude the inclusion of 
future confined-space provisions. The purpose of the information in 
this appendix is to help employers easily identify other requirements 
relevant to confined-space hazards that may also have to be met.
    Paragraph (d). This proposed provision clarifies that the duties of 
a controlling contractor specified in paragraph (a) of proposed Sec.  
1926.1204 are not exclusive. Proposed Sec.  1926.1204(a) delineates a 
controlling contractor's duties with respect to the exchange of 
information concerning confined spaces with subcontractors on multi-
employer worksites and does not limit or otherwise affect a controlling 
contractor's responsibilities under the OSH Act. See OSHA Directive No. 
CPL 2-00.124 (Dec. 10, 1999).

Section 1926.1203--Definitions

    This proposed section lists definitions for key words used in 
describing the requirements of this proposed standard. Most of the 
definitions were adopted from the OSHA general industry confined-spaces 
standard (29 CFR 1910.146) and from the ANSI Z117.1-2003 confined-
spaces standard. Many other terms in this proposed standard are defined 
in other OSHA construction standards, and were included in this 
proposed section to minimize the need to reference those other 
standards. While most of the proposed terms are self-explanatory or are 
consistent with those established in 29 CFR 1910.146 and ANSI 117.1-
2003, OSHA believes that it is necessary to provide an expanded 
discussion for several terms used in this proposed standard. The 
expanded discussion provides a brief

[[Page 67357]]

explanation of the defined terms, justifies any differences between the 
proposed definitions and those contained in 29 CFR 1910.146 and ANSI 
117.1-2003, and addresses comments received during the SBREFA process.
    ``Continuous System-Permit-Required Confined Space (CS-PRCS)'' is a 
Permit-Required Confine Space that has all of the following 
characteristics: Is part of, and contiguous with, a larger confined 
space (for example, sewers); the employer cannot isolate it from the 
larger confined space; and is subject to a potential hazard release 
from the larger confined space that would overwhelm personal protective 
equipment and/or hazard controls, resulting in a hazard that is 
immediately dangerous to life and health. This classification of space 
was mentioned in 29 CFR 1910.146(c)(5)(i), and a sample Permit-Required 
Space program for sewers was provided in Appendix C of that standard. 
OSHA believes it is important to define this classification of confined 
space in a way that emphasizes that it is subject to a potential hazard 
release, such as an engulfment hazard, that the employer will not be 
able to control.
    ``Controlled-Atmosphere Confined Space (CACS)'' is a confined space 
that has all of the following characteristics: Contains no physical 
hazards or only isolated physical hazards; and uses ventilation alone 
to control atmospheric hazards at safe levels. This term was added to 
designate a distinct type of confined space in which only one type of 
hazard (atmospheric) is present that requires a specific type of 
employee protection--active control of the atmospheric hazard at safe 
levels by ventilation equipment. OSHA believes that the space described 
by this definition is similar to the space defined by the alternate 
procedures specified by paragraph (c)(5) of the general industry 
standard for confined spaces. Both of these spaces involve conditions 
in which atmospheric hazards are merely controlled by ventilation 
instead of eliminated completely. Therefore, if the ventilation system 
stops or malfunctions, the atmospheric hazards could reemerge in the 
space. Unlike the general industry standard, the proposed standard for 
construction assigns a name to the space. OSHA believes that naming the 
space a Controlled-Atmosphere Confined Space will effectively alert 
employees, especially employees who have little or no experience with 
these spaces, to the possibility that atmospheric hazards could 
reemerge in the space if the ventilation system stops or malfunctions.
    ``Controlling contractor'' is the employer that has overall 
responsibility for construction at the worksite. In addition, the note 
to this definition explains that if a host employer has overall 
responsibility for construction at the worksite, then it is both a host 
employer and controlling contractor. It is a common practice in the 
construction industry for there to be a number of contractors working 
at a construction site at the same time. Also, there often is one 
contractor that has overall authority of the construction site, 
including the authority to change worksite conditions and alter work 
practices with regard to safety. Under this proposed standard, there 
are specific duties that would apply to the controlling contractor, as 
distinguished from the host employer and the contractor. Consequently, 
there is a need to define the term ``controlling contractor.''
    For the purposes of this preamble, the term ``employer'' refers to 
an employer whose employees are exposed to confined-space hazards. 
Employers whose own employees are exposed to a hazard addressed by this 
proposed standard would be required to comply with the provisions that 
identify an obligation on ``the employer.'' In addition, other 
employers may also have responsibilities with respect to such 
provisions through operation of OSHA's multi-employer doctrine.
    When a proposed provision designates the ``host employer'' as the 
entity responsible for the requirement, only an employer that meets the 
proposed definition of a ``host employer'' would be responsible for 
that requirement. Similarly, when a proposed provision designates the 
``controlling contractor'' or the ``contractor'' as the entity 
responsible, only an employer meeting the proposed definitions of 
``controlling contractor'' or ``contractor'' would be responsible for 
compliance with the provision. Note that an employer who fits the 
definition for more than one of these roles would be required to comply 
with the obligations that pertain to each role. The Agency requests 
public comment on whether this explanation is clear.
    ``Early-warning system'' is the method used to alert attendants 
monitoring a CS-PRCS and authorized entrants in a CS-PRCS that an 
engulfment hazard may be developing. Examples of early-warning systems 
include, but are not limited to: alarms activated by remote sensors; 
and lookouts with equipment for immediately communicating with the 
authorized entrants and attendants. The Agency believes these systems 
will protect employees from non-isolated engulfment hazards by 
providing an effective means of warning attendants and authorized 
entrants that an engulfment hazard may be developing ``upstream'' of 
the work area, thereby permitting sufficient time for the authorized 
entrants to safely exit the CS-PRCS. As illustrated by the non-
exclusive list of examples of early-warning systems within this 
definition, employers would have flexibility as to what type of early-
warning system to use for continuously monitoring such engulfment 
hazards. However, as stated in paragraphs (a)(2) and (b)(2) of proposed 
Sec.  1926.1215, whatever warning system is selected must alert 
authorized entrants and attendants in sufficient time for the 
authorized entrants to safely exit the CS-PRCS.
    ``Hazardous atmosphere'' means an existing or potential atmosphere 
consisting of at least one of the following: A flammable gas, vapor, or 
mist in excess of 10 percent of its lower flammable limit; an airborne 
combustible dust at a concentration that meets or exceeds its lower 
explosive limit; an atmospheric oxygen concentration below 19.5 percent 
(``oxygen deficient'') or above 23.5 percent (``oxygen enriched''); an 
airborne concentration of a substance that exceeds the dose or exposure 
limit specified by an OSHA requirement; and an atmosphere that presents 
an immediate danger to life or health. These levels duplicate those in 
the definition of ``hazardous atmosphere'' in the general industry 
confined-spaces standard. The definition clarifies that the concept of 
a hazardous atmosphere includes one that has a potential for becoming 
hazardous, since it is necessary to anticipate the potential occurrence 
of such hazards to effectively protect employees working in a confined 
space.
    ``Host employer'' owns or manages the property on which 
construction is taking place. As explained in the definition of 
``controlling contractor,'' this definition was added to clarify the 
distinction between a ``host employer,'' a ``contractor,'' and a 
``controlling contractor'' as each of these entities would have 
specific obligations under this proposed standard. (See, also, the 
discussion under ``controlling contractor'' above.)
    ``Inspection information'' means information obtained about a space 
from blueprints, schematics, and/or similar documents, documents 
regarding previous confined-space entries, or physical inspection/
testing. This definition was added in response to SBREFA comments to 
clarify the types of documents and information that

[[Page 67358]]

would be considered relevant to making the hazard assessments required 
by this proposed standard without entering the space.
    ``Isolated-Hazard Confined Space (IHCS)'' is a confined space in 
which the employer has isolated all physical and atmospheric hazards. 
This classification differs from a ``non-permit space'' in the general 
industry standard that, by definition, does not include confined spaces 
that have the potential to contain atmospheric hazards capable of 
causing death or serious physical harm. The proposed classification of 
IHCS includes confined spaces where that potential continues to exist. 
In an IHCS, the potential exists because the atmospheric hazard is only 
``isolated,'' which means that its release is only being prevented. The 
use of the term ``isolated'' in this context is consistent with the 
definition of ``isolation'' in the current American National Standard 
Institute (ANSI)/American Society of Safety Engineers (ASSE) standard 
titled ``Safety requirements for Confined Spaces,'' ANSI/ASSE Z117.1-
2003. This ANSI/ASSE standard describes the isolation process in part 
as follows:

    Methods and means shall be selected and used to prevent 
flammable, toxic, irritating, or oxygen displacing gases and vapors 
from entering the space. All hazardous material, high pressure, high 
temperature and other piping that could reasonably be expected to 
introduce a hazard shall be isolated by utilizing blinding, 
disconnection, removal, or double block and bleed as needed to 
prevent entry of material(s) and hazardous contaminant(s).

    ``Limited or restricted means for entry and exit'' refers to a 
condition that has a potential to impede an employee's movement into or 
out of a space. Such conditions include, but are not limited to poor 
illumination, slippery floors, inclining surfaces and ladders. This 
phrase is used to describe one of the physical characteristics of a 
confined space and was defined to give the phrase greater clarity.
    ``Permit-Required Confined Space (PRCS)'' is a confined space that 
has any one of the following characteristics: A hazardous atmosphere; 
an inwardly converging, sloping, or tapering surfaces that could trap 
or asphyxiate an employee (for example, a space between walls that 
narrows towards the base, including, but not limited to, funnels and 
hoppers); or an engulfment hazard or other physical hazard. This 
definition is similar to the definition in the general industry 
standard, but includes more examples of dangerous configurations of 
confined spaces.
    ``Physical hazard'' means an existing hazard that can cause death 
or serious physical harm in or near a confined space, or a hazard that 
has a reasonable probability of occurring in or near a confined space, 
and that includes, but is not limited to: Explosives (as defined by 
paragraph (n) of 29 CFR 1926.914 (definition of ``explosive'')); 
mechanical, electrical, hydraulic, and pneumatic energy; radiation; 
temperature extremes; engulfment; noise; and inwardly converging 
surfaces. ``Physical hazard'' also refers to chemicals that can cause 
death or serious physical harm through skin or eye contact (rather than 
through inhalation). This definition was added to help employers better 
understand the characteristics of this type of hazard.
    ``Planned conditions'' are the conditions under which authorized 
entrants can work safely in a PRCS or CS-PRCS, including both hazard 
levels and methods of employee protection. The Agency considered using 
``acceptable entry conditions,'' the term used in the general industry 
standard, for this concept. However, OSHA is concerned that employers 
and employees, especially those who are not often engaged in 
construction work in confined spaces, may think ``acceptable'' means 
that conditions are safe for entry without the use of personal 
protective equipment or other protective measures. OSHA believes that 
the term ``planned conditions'' more accurately expresses the concept 
that a variety of actions may be needed, including the use of 
protective measures, for employees to be able to work safely in the 
confined space.
    ``Serious physical harm'' means an impairment in which a body part 
is made functionally useless or is substantially reduced in efficiency. 
Such impairment may include loss of consciousness or disorientation, 
and may be permanent or temporary, or chronic or acute. Injuries 
involving such impairment would usually require treatment by a 
physician or other licensed health-care professional while an illness 
resulting in serious physical harm could shorten life or substantially 
reduce physical or mental efficiency by impairing a normal bodily 
function or body part. OSHA adapted this definition of ``serious 
physical harm'' from its Field Inspection Reference Manual, chapter 
III, section C.2.b(2)(c).
    ``Simulated Permit-Required Confined Space'' is a confined space or 
a mock-up of a confined space that has all of the following 
characteristics: Similar entrance openings, and is similar in size, 
configuration, and accessibility, to the PRCS the authorized entrants 
enter but does not need to contain any physical or atmospheric hazards. 
This definition was included to emphasize that the Simulated PRCSs do 
not have to contain actual physical or atmospheric hazards to qualify 
for the training required by this proposed standard. OSHA proposes this 
clarification to prevent injuries and deaths from occurring during 
rescue training.

Section 1926.1204--Worksite Evaluation, Information Exchange, and 
Coordination

    Paragraph (a). This paragraph sets forth requirements for 
exchanging information relevant to construction operations in confined 
spaces. Controlling contractors and host employers would have to share 
four pieces of information (listed below) before any employee enters 
the confined space. This information addresses such issues as: location 
of confined spaces, hazardous conditions affecting confined spaces, 
precautions taken to address those hazards, and classifications of the 
confined spaces. OSHA notes, however, that the proposed standard only 
places a duty on controlling contractors and host employers to provide 
any information they already have about the confined spaces specific to 
their worksite. The Agency makes clear in this proposed paragraph that 
``[n]either the controlling contractor nor the host employer is 
required to obtain the information listed * * *''; their only 
obligation is to provide their contractors with information they 
already have about a confined space. OSHA also states in a note to this 
proposed paragraph that controlling contractors or host employers are 
not required to enter a confined space to collect the relevant 
information.
    On most construction worksites, there are a number of contractors 
and subcontractors performing jobs. In the case of confined spaces, 
sometimes employees of different employers will be performing work 
within the same confined space. In many instances, employees of a 
subcontractor will enter a confined space after another subcontractor's 
employees have completed work within the space. On multi-employer 
worksites, an employer's actions can affect the health and safety of 
another employer's employees. It is critical for the safety of all 
employees on a worksite that contractors and subcontractors communicate 
with each other. Requiring communication between employers is an 
efficient way to ensure that each employer learns important information 
about the confined space hazards present so that all employees are 
adequately protected. OSHA is proposing these information-sharing

[[Page 67359]]

requirements in proposed Sec.  1926.1204 so that construction worksites 
with confined spaces remain safe places of employment for all 
employees.
    The Agency has clear authority to include these multi-employer 
provisions in the standard. First, the plain language of the OSH Act 
and its underlying purpose support OSHA's authority to place 
requirements on employers that are necessary to protect the employees 
of others. Second, congressional action subsequent to passage of the 
OSH Act recognizes this authority. Third, OSHA has consistently 
interpreted its statutory authority as permitting it to impose 
obligations on employers that extend beyond their own employees, as 
evidenced by the numerous standards, including several construction 
standards, that OSHA has promulgated with multi-employer provisions. 
Finally, OSHA's authority to place obligations on employers that reach 
beyond an employer's own employees has been upheld by numerous courts 
of appeals and the Occupational Safety and Health Review Commission 
(OSHRC).
    The purpose of the Act is to assure so far as possible safe and 
healthful working conditions for every working man and women in the 
nation. 29 U.S.C. 651(b). To achieve this goal, Congress authorized the 
Secretary to establish mandatory occupational safety and health 
standards. The Act broadly defines an OSHA standard as a rule that 
``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 employments and places of 
employment.'' 29 U.S.C. 652(8). See Building and Constr. Trades Div., 
AFL-CIO v. Brock, 838 F.2d 1258, 1278 (DC Cir. 1988). OSHA standards 
must prescribe measures that are appropriate to protect ``places of 
employment''; nothing in the statutory language suggests that OSHA may 
do so only by regulating an employer's interaction with its own 
employees. On the contrary, the Act's broad language gives OSHA almost 
``unlimited discretion'' to devise means to reach the statutory goal. 
See United Steelworkers v. Marshall, 647 F.2d 1189, 1230 (DC Cir. 
1980), cert. denied, 453 U.S. 913 (1981).
    Similarly, Section 5(a)(2) provides that each employer ``shall 
comply with occupational safety and health standards promulgated under 
this Act.''\2\ Nothing in this language suggests that compliance is 
required only when necessary to protect the employers' own employees, 
or that the employer is entitled to endanger other employers' employees 
at the worksite. Finally, Section 6(b)(7) of the Act authorizes the 
Secretary to ``prescribe the use of labels or other appropriate forms 
of warning as are necessary to insure that employees are apprised of 
all hazards to which they are exposed.'' 29 U.S.C. 655(b)(7) (emphasis 
added). Again, this authority is not limited to labels that would warn 
the employer's own employees of the hazard. Given the distribution of 
potentially hazardous products in commerce, employees are predictably 
exposed to hazardous conditions created by other employers. Requiring 
employers to include hazard information needed by downstream employees 
is a necessary and appropriate means to ensure that the employees are 
apprised of all hazards to which they are exposed.
---------------------------------------------------------------------------

    \2\ This language is in marked contrast to the language of 
Section 5(a)(1) of the Act (known as the ``general duty clause''), 
which requires each employer to ``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)(1) (emphases 
added). See Brennan v. OSHRC, 513 F.2d 1032, 1037-38 (2nd. Cir. 
1975).
---------------------------------------------------------------------------

    In short, the statute focuses on workplace conditions to effectuate 
the OSH Act's congressional mandate, and not on a particular employment 
relationship. The OSH Act's underlying purpose is broad--to assure safe 
and healthful working conditions for working men and women--and 
Congress made clear that it expected the Act to protect all employees. 
(H. Rep. No. 91-1291, 91st Cong., 2d Sess., p. 14-16 (July 9, 1970)). 
Numerous references in the legislative history of the Act require 
employers to provide a safe and healthful ``place of employment'' (see, 
e.g., S. Rep. No. 91-1282, 91st Cong., 2d Sess., p. 10 (October 6, 
1970)). The OSH Act tasks OSHA with promulgating rules that will create 
safe places of employment, notwithstanding the many varied employment 
relationships that might exist at a worksite.
    Subsequent congressional action has also recognized OSHA's 
authority to impose responsibilities on employers to protect employees 
who are not their own. For example, Congress directed OSHA to develop a 
chemical process safety standard (the PSM standard) requiring employers 
to ``ensure contractors and contract employees are provided appropriate 
information and training'' and to ``train and educate employees and 
contractors in emergency response.'' (29 U.S.C. note) (quoting Pub.L. 
101-549, Title III, Section 304, November 15, 1990, 104 Stat. 2576). 
This is a clear ratification of the Agency's authority to require 
employers to protect the employees of others. Congress also approved of 
the Agency's authority when it relied on the provisions of OSHA's 
Hazard Communication standard in promulgating the Emergency Planning 
and Community Right-to-Know Act (42 U.S.C. 11001-11050) (EPCRA). OSHA's 
Hazard Communication standard, among other things, requires a 
manufacturer of a hazardous chemical to ``inform not only its own 
employees of the dangers posed by the chemicals, but downstream 
employers and employees as well.'' Martin v. American Cyanamid Co., 5 
F.3d 140, 141 (6th Cir. 1993). Congress incorporated provisions of the 
Hazard Communication standard in EPCRA as a basis for triggering 
obligations on owners or operators of facilities producing hazardous 
chemicals to provide local governments with information needed for 
emergency response. Had Congress not approved of the multi-employer 
provisions in the Hazard Communication standard, it would not have 
approved of it as a basis for obligations in the EPCRA.
    Furthermore, OSHA has consistently interpreted the OSH Act as 
authorizing it to impose multi-employer obligations in its standards. 
In addition to the Hazard Communication standard and PSM standard 
discussed above, OSHA included multi-employer provisions in its powered 
platforms standard, which requires that a building owner inform 
employers that the building installation has been inspected and is safe 
to use. 29 CFR 1910.66(c)(3). OSHA has also imposed multi-employer 
obligations in other construction standards. For example, in the 
construction asbestos standard, OSHA requires building owners/employers 
to perform initial monitoring for asbestos and to communicate the 
presence of asbestos or presumed asbestos containing materials to 
prospective employers whose employees reasonably can be expected to 
work in exposed areas. 29 CFR 1101(k)(2). In the recently promulgated 
steel-erection standard, OSHA imposed duties on controlling contractors 
to ensure that site conditions are safe for steel erection. 29 CFR 
1926.752(c). OSHA just recently proposed in updates to its electric-
power transmission and distribution construction standard similar 
multi-employer communication provisions. See 70 FR 34947-48. OSHA's 
inclusion of multi-employer provisions in this proposed rule is fully 
consistent with its past practice of ensuring the safety and

[[Page 67360]]

health of all employees at construction worksites.
    Finally, OSHA's authority to impose these provisions is confirmed 
by the decisions of numerous courts of appeals and the Occupational 
Safety and Health Review Commission holding that an employer's duties 
and OSHA standards may extend beyond an employer's own employees. See 
Universal Constr. Co. v. OSHRC, 182 F.3d 726, 728 (10th Cir. 1999) 
(following decisions from Second, Sixth, Seventh, Eighth and Ninth 
Circuits); Access Equip. Sys., 18 BNA OSHC 1718, 1722-24 (No. 95-1449, 
1999). But see Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th 
Cir. 1981). The DC Circuit suggested in Anthony Crane Rental, Inc. v. 
Reich, 70 F.3d 1298, 1306 (DC Cir. 1995), however, that 29 CFR 
1910.12(a)--a rule promulgated by OSHA to adopt Construction Safety Act 
(CSA) standards as OSHA standards--might limit an employer's 
obligations under the construction standards in part 1926 to its own 
employees. The court did not reach the issue, noting that the parties 
had not briefed it. The proposed confined-spaces in construction 
standard will be included in part 1926 Sec.  1910.12(a) is consistent 
with the promulgation of requirements that place obligations on 
employers necessary to protect the employees of others. The provision 
states:

    The standards prescribed in part 1926 of this chapter are 
adopted as occupational safety and health standards under section 6 
of the Act and shall apply, according to the provisions thereof, to 
every employment and place of employment of every employee engaged 
in construction work. Each employer shall protect the employment and 
places of employment of each of his employees engaged in 
construction work by complying with the appropriate standards 
prescribed in this paragraph.

    The language of the provision supports OSHA's interpretation that 
an employer's responsibilities can extend beyond the employer's 
employees. The first sentence makes the construction standards 
applicable to every employment and to every ``place of employment'' of 
every construction employee. This is broad language that does not limit 
an employer's obligations to its own employees. The second sentence, by 
providing that each employer must protect the employment and the places 
of employment of each of his employees, does not limit an employer's 
obligations to only protecting his or her employees and does not negate 
the broad reach of the first sentence. The two sentences, read 
together, require employers to comply with standards at all sites where 
they are working in order to protect employees who are predictably 
present at those sites.
    The sole purpose of the provision was to ``adopt and extend'' 
existing Construction Safety Act (CSA) standards applicable under the 
OSH Act. 29 CFR 1910.11. Under the CSA, standards applied only to 
employers with Federally funded contracts, and only with respect to 
employees engaged on those Federal projects. See 29 CFR part 1926 
Subpart B; CH2M Hill, Inc. v. Herman, 192 F.3d 711, 718 n.1 (7th Cir. 
1999). The function of 29 CFR 1910.12(a) was to adopt the CSA standards 
as OSHA standards and in so doing to make it clear that neither of 
those limitations would apply. Thus, OSHA stressed that compliance 
would broadly extend to each construction employer (not just those with 
Federal contracts) and to every construction employee (not just those 
working on Federal projects). In no way did OSHA intend for the 
language of 29 CFR 1910.12(a) to restrict its authority to promulgate 
construction standards that establish obligations extending beyond an 
employer's own employees.
    Other factors confirm that OSHA had no intention in Sec.  
1910.12(a) to bar multi-employer responsibilities under the 
construction standards. OSHA issued the regulation without notice and 
comment under Section 6(a) of the Act. That section provided authority 
only to adopt established federal standards, such as the CSA standards, 
without making any substantive changes. Usery v. Kennecott Copper 
Corp., 577 F.2d 1113 (10th Cir. 1977). The CSA regulations did not 
limit multi-employer responsibilities; the regulations expressly 
provided for them. 29 CFR 1926.16. OSHA could not have intended to 
limit statutory obligations in an action under Section 6(a).
    Moreover, concurrently with issuance of Sec.  1910.12(a), OSHA 
issued its initial Field Operations Manual, which expressly directed 
issuance of citations to construction employers who created a hazard 
endangering their own employees or those of another employer. The 
Agency has also consistently promulgated rules in 29 CFR part 1926 that 
expressly extend employers' obligations beyond their own employees. The 
requirements in proposed Sec.  1926.12