1. OSHA Instruction STP 2.22A CH-4, March 3, 1994, Changes to the State Plan Policies and Procedures Manual.

2. Memorandum of Understanding, U.S. Coast Guard and the Occupational Safety and Health Administration, 48 Federal Register, 11366, March 17, 1983, effective date of March 8, 1983.

3. Jones Act, 46 U.S.C. 688.

1. The Regional Administrator (RA) shall ensure that this change is promptly forwarded to each State designee using a format consistent with the Change Two-way Memorandum in Appendix P, State Plan Policies and, Procedures Manual (SPM).

2. The RA shall explain the content of this change to the State designees as required.

3. The State shall respond to this change within 70 days in accordance with paragraph I.1.a.(2)(a) and (b), Chapter III of the SPM.

4. The State's acknowledgement shall include (a) the State's plan to adopt and implement an identical change (b) the State's plan to develop an alternative, which is as effective, or (c) the reasons why no change is necessary to maintain a program which is as effective. The State shall submit the plan supplement within 6 months in accordance with I.1.a.(3)(c), Chapter III of the SPM.

5. The RA shall review policies, instructions and guidelines issued by the State to determine that this change has been communicated to State compliance personnel.

On June 5, 1989, OSHA published a proposed rule for permit-required confined spaces in general industry (54 FR 24080). This proposed general industry standard for confined space entry was intended to apply to land-side operations within shipyards, including all operations and work areas such as fabricating shops, machine shops, and staging areas.

At the SESAC meeting of April 25-26, 1990, the Committee recommended that the scope of the NPRM for 29 CFR Part 1915 Subpart B be expanded to include all confined and enclosed space operations within a shipyard, and that the title of the subpart be modified to include "other dangerous atmospheres". On June 24, 1992, OSHA published a notice reopening the record for Subpart B in order to obtain public comment on the land-side applicability of the standard and on six other issues. The comment period for this notice extended through September 22, 1992, and OSHA received 53 comments in response to the notice.

The final rule on the general industry permit-required confined spaces standard, 29 CFR Part 1910.146, was published in the Federal Register on January 14, 1993 (58 FR 4462). Shipyards were omitted from the scope of this final general industry standard because the Agency determined that it was more appropriate to address this issue under 29 CFR Part 1915 Subpart B.

The final Confined and Enclosed Spaces and Other Dangerous Atmospheres in Shipyard Employment, 29 CFR 1915 Subpart B, was published in the Federal Register on July 25, 1994, and became effective October 24, 1994.

A correction notice to this final rule was published in the Federal Register on March 16, 1995 and became effective this same date. In addition to correcting several typographical errors, this notice made the following corrections to the final rule: clarified the order of testing before employees may enter a confined or enclosed space or other dangerous atmosphere; clarified when flammable atmospheres must be maintained above the upper explosive limit during installation of ventilation or rescue; and clarified the limited locations and conditions where hot work may be performed without first being certified by a Marine Chemist.

A section has been added at 1915.11(b) which sets terms and definitions applicable to the revised Subpart B. These Subpart B definitions, which were derived in large part from National Fire Protection Agency (NFPA) 306, are provided to facilitate compliance with the revised standard.

1. The scope and application of the definitions "employer" and "employee" under 29 CFR 1915.4 have been expanded by subpart B, 1915.11(a). For subpart B, the definitions "employer" and "employee" include all shipyard employment on vessels and land-side operations including inland locations.

2. The scope and application of subpart B includes all shipyard employment including any and all production and manufacturing activities conducted within a shipyard. Further, subpart B covers all work activities performed within a shipyard except for construction activities covered by 29 CFR Part 1926. Examples of Part 1915 subpart B applicability include:

a. vessel construction, repair or refurbishment

b. fabrication, repair or refurbishment of railroad cars

c. construction of tunnel tubes

d. repair or refurbishment of equipment

e. component or equipment manufacturing

f. work performed within the shipyard by employees of a company under contract to the shipyard (e.g., painting contractor)

g. work performed within the shipyard by employees of a public utility (e.g., telephone company)

3. The scope and application of subpart B includes all inland shipyard employment involving vessels or vessel sections including any and all production and manufacturing activities conducted at the facility.

a. Examples of work performed at an inland facility (not a shipyard) which are under the scope of 29 CFR Part 1915:

(1) vessel construction, repair or refurbishment

(2) vessel section construction, repair or refurbishment

(3) manufacturing and fabrication of components and equipment for installation into vessels or vessel sections at the facility.

b. Examples of work performed at an inland facility (not a shipyard) which are not under the scope of 29 CFR Part 1915:

(1) manufacturing or fabrication of components and equipment for transport/shipment to another facility for installation into a vessel or vessel section (29 CFR Part 1910 applies)

(2) repair or refurbishment of components and equipment (e.g., propellers, electronic components, ship service generators) (29 CFR Part 1910 applies)

4. The jurisdiction of OSHA over any vessel is limited to when the vessel is located within a jurisdiction covered by the OSH Act (hereafter State) (See Section 4(a), 29 U.S.C. 653(a)). OSHA only has authority over vessels when they are operating within the limits of State territorial waters. For coastal States, the State territorial waters extend 3 nautical miles seaward from the coast line, except for the Gulf Coast of Florida and Texas where the State territorial waters extend for 3 marine leagues (approximately 9 nautical miles). "Coast line" is defined as the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters. For States bordering the Great Lakes and St. Lawrence River, all waters in the Great Lakes and associated rivers up to the international boundary line with Canada are State territorial waters.

5. OSHA may exercise authority over the working conditions of employees who are exposed to occupational hazards while working on vessels (i.e., "inspected vessels", "uninspected vessels", "uninspected fishing vessels") or who are otherwise engaged in shipyard employment to the extent that the working conditions are not subject to 4(b)(1) preemption by another federal agency. OSHA may exercise authority over seamen on uninspected vessels and uninspected fishing industry vessels. As a matter of policy, OSHA does not issue citations with respect to seamen on inspected vessels. (reference C.2., MOU between Coast Guard and OSHA)

a. The following guidance is provided with respect to making a determination as to whether a worker is a "seaman". A seaman is an employee who:

(1) Has a more or less permanent connection with the vessel (e.g., works on the vessel every day or on most days, routinely gets underway with the vessel for transits), and

(2) Contributes to the function of the vessel or to the accomplishment of its mission. To be a seaman one need not aid in navigation or contribute to the transportation of the vessel, but one must do the ship's work. Land-based maritime workers are not seaman.

NOTE: The master of the vessel, ship's officers, and vessel crew members are "seaman". Individuals who are subject to the Jones Act (reference C.3), would be classified as "seamen". It is noted that the U.S. Coast Guard "licenses" seaman and issues a card identifying them as such. Other individuals may be a "seaman" if they meet the above noted two-part test. Local U.S. Coast Guard Marine safety Offices are willing to assist OSHA in determining whether an individual or group of individuals would be defined as a "seaman."

1. The revised standard deleted the requirement for employers to specifically use and maintain the Form OSHA 73, "Designation of Competent Person." Employers now have the option of maintaining a written roster of designated employees or issuing a written statement that a Marine Chemist will always be used for the required inspections and tests [1915.7(b)(2)(i)]. The employer now has the option of choosing the form or format of the written roster or statement. The roster of designated persons, or the use of a Marine Chemist only statement, must be maintained at the place of employment or other location (e.g., main office of the employer), and such roster or statement must be made available to the Assistant Secretary, Director of NIOSH, and employees and their representatives upon request [1915.7(b)(2)(ii)). When used, the roster must contain the following information as a minimum: employers' name, the designated competent person's name(s), and the date the employee was trained as a competent person [1915.7(b)(2)(iii)).

a. It is emphasized that the employer is now permitted to use any form or format of reporting that identifies the employer, the employees who are designated as competent persons, and the date such persons were trained, or which states in writing that a Marine Chemist will be used to perform all atmospheric testing. OSHA will continue to recognize the Form OSHA 73 as an acceptable recordkeeping method, but will not require its specific use. [Note: Since the Form OSHA 73 is no longer specifically required, if used, it no longer needs to be provided to the OSHA area office each time a change is made.]

b. The previous requirement to include the date that the Form OSHA 73 was prepared has been deleted. As long as the list of competent persons (roster or Form OSHA 73) represents the current situation, there is no need to know when it was created. However, it is important to record when a competent person was trained, in order to confirm that he or she was trained as required at the time the inspection or testing was performed.

2. The revised standard deleted the requirement for employers to specifically use and maintain the Form OSHA 74, "Log of Inspections and Tests by Competent Person." Employers must still maintain a record of inspections and tests. However, the employer now has the option of choosing the form or format. Such records must be posted in the immediate vicinity of the affected operations while work is in progress and be maintained for a period of at least three months from the completion date of the specific job for which they were generated [1915.7(d)(2)]. The employer must make required inspection and testing records available for inspection by the Assistant Secretary, Director of NIOSH, and employees and their representatives [1915.7(d)(3)].

3. The revised standard requires employers to ensure that the competent person, Marine Chemist or Certified Industrial Hygienist performing any tests in Subparts B, C, D, or H of Part 1915, record the following information for each test: location, date, time, inspected space(s) location, specific operations performed, test results, and any instructions [1915.7(d)(1)]. OSHA will continue to recognize the Form OSHA 74 as an acceptable record-keeping method, but will not require its specific use.

4. The revised standard continues the previous requirement that the employer designate at least one competent person for the purpose of testing work space atmospheres in shipyard employment, unless all of the employer's testing under subpart B is performed by a Marine Chemist [1915.7(b)(1)]. The following additional changes are noted with respect to compliance with this paragraph of subpart B:

a. A "Coast Guard Authorized Person" cannot be substituted for the "competent person" required by 1915.7(b)(1), because it has been determined that the training required for a Coast Guard Authorized Person does not provide all the skills and knowledge required of a competent person.

b. Exception. An employer is allowed to designate any person, who meets the applicable portions of the criteria for a competent person per 1915.7(c), as a competent person who is limited to performing testing for the following specific situations:

(1) 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.

(2) Building of wooden vessels where only knowledge of the precautions to be taken when using flammable paints is required.

(3) The breaking of vessels where there is no fuel oil or other flammable hazard.

(4) Tests and inspections performed to comply with 1915.35(b)(8) and 1915.36(a)(5). [Note: Both of these paragraphs involve the inspection of electrical power and lighting cables only)

5. Criteria for a Competent Person. The criterion of 1915.7(c) 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 a responsibility of the employer. The employer is in the best position to determine what skills and knowledge must be reinforced and what resource information needs to be presented. This performance-oriented approach will allow the employer the necessary flexibility to determine what skills and knowledge must be reinforced and what resource information needs to be made available to the competent person for the unique conditions of each shipyard. The following comments and discussion are provided with respect to 1915.7(c):

a. 1915.7(c)(1) requires that the competent person be able to understand and carry out the written or oral instructions left by a Marine Chemist, Coast Guard Authorized Person or Certified Industrial Hygienist. Previously this standard did not include Certified Industrial Hygienists.

b. 1915.7(c)(2) requires competent persons to have a knowledge of Subparts B, C, D and H of Part 1915. There is no change to this requirement.

c. 1915.7(c)(3) requires that competent persons have a familiarity with the structure, location and designation of spaces where work is done. Previously this requirement specifically addressed vessels, and was changed to reflect the expansion of Subpart B scope and application to cover land-side shipyard employment in addition to vessels and vessel sections.

d. 1915.7(c)(4) 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. However, a requirement has been added which requires the competent person to be able to calibrate all testing equipment used and the equipment is no longer limited to those listed above. As technologies develop and new chemical hazards are encountered in shipyard employment, it will be necessary for competent persons to use new types of environmental monitors and detectors. Skill in the use of this new equipment will be necessary for competent persons to be able to identify sources of hazardous exposures. Further, in order for the competent person to have the ability to read and interpret the readings of any type of indicator, he or she must be familiar enough with the instrument to calibrate it.

e. 1915.7(c)(5) continues the requirement for a competent person to have the ability to perform all required tests and inspections as set forth in subparts B, C, D and H of Part 1915.

f. 1915.7(c)(6) adds a new requirement which requires competent persons to have the ability to evaluate spaces after a test to determine the need for further testing by a Marine Chemist, Certified Industrial Hygienist, or Coast Guard Authorized Person. This requirement was added to make it clear that there may be atmospheric conditions present in the shipyard that cannot be evaluated effectively by a person trained only to the competent person level, and that the competent person must be able to determine when more highly trained individuals are needed to properly and accurately evaluate an atmosphere.

g. 1915.7(c)(7) continues the requirement that a competent person must have the capability to maintain the records required by the standard.

1. OSHA has revised the order of atmospheric testing (1st-oxygen content, flammability, 3rd-toxicity) to be conducted when determining hazards within confined and enclosed spaces and other dangerous atmospheres.

2. The minimum level of oxygen for entry has been raised to 19.5%, and testing requirements have been added for oxygen-enriched atmospheres (22% or higher).

3. It has been specified when and under what conditions an employee may enter a space that has been found "Not Safe for Workers" or if oxygen-enriched "Not Safe for Workers - Not Safe for Hot Work."

4. New paragraphs have been added which address: (1) training of all workers who enter spaces subject to Subpart B, (2) requirements for rescue teams, and (3) the exchange of hazard information between employers.

5. A new requirement has been added to visually inspect each space for other physical non-atmospheric hazards. Based on the visual inspection and other information available to the employer about non-atmospheric hazards, the employer is required to take specific action as required by other subparts such as the following: electrical hazards (shipboard 1915.181, land-side 1910.147), piping system hazards (shipboard 1915.163, land-side 1910.169 and Subpart H),and machinery hazards (shipboard 1915.164, land-side 1910.212).

6. A new labeling requirement has been added, "Not Safe for Workers - Not Safe for Hot Work", if concentrations are found to contain 10% or higher of LEL even when employees are permitted to enter for emergency purposes or for short durations to install ventilation.

7. Also, in addition to a Marine Chemist or a Certified Industrial Hygienist, a competent person" is now permitted to initially inspect and test spaces for toxics, corrosives, and irritants: Test results must show that toxics, corrosives and irritants are within the PELs or below IDLH before entry for physical inspection is permitted. Should the space be found not to contain toxic substances or contain quantities of toxic substances which can be made safe through the use of ventilation, then a "competent person" can authorized entry for employees. Otherwise, a Marine Chemist or a Certified Industrial Hygienist is required.

1. The spaces that are covered by this paragraph are now specified to facilitate the determination of applicability [1915.13(a)].

2. The previous requirement to take special care to prevent liquid residue spills into the water surrounding the vessel has been expanded to include spills onto the surrounding work area [1915.13(b)(1)].

3. The previous requirement to test for and maintain flammable vapors below 10 percent of the LEL has been modified to require testing by a competent person to determine the concentration of flammable, combustible, toxic, corrosive, or irritant vapors [1915.13(b)(2)]. Toxic, corrosive and irritant vapors are required to be maintained within the permissible exposure limits and IDLH levels [1915.13(b)(3)(ii)].

4. The previous requirement to test and maintain flammable vapors below 10 percent of the LEL for the major portions of the space has been modified to require ventilation to keep the concentration of flammable vapors below 10 percent of the LEL and within the permissible exposure limit for the entire space [1915.13(b)(3)].

5. The previous standard required a competent person to test prior to commencement of cold work and with sufficient frequency to ensure that concentrations of flammable vapors were below 10 percent of the LEL. The standard now requires testing to 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 LEL and within PELs and below IDLH levels [1915.13(b)(4)].

6. The list of materials that must be cleaned up as work progresses has been modified to include corrosive and irritant materials [1915.13(b)(5)].

7. A requirement has been added for exceptions to the entry prohibition into spaces where the concentration of flammable or combustible vapors is 10 percent or more of the LEL [1915.13(b)(6)].

8. The previous ventilation exhaust vapors testing requirement has been modified to require that all work be stopped if the competent person determines that concentrations of exhaust vapors which are hazardous to employees are accumulating [1915.13(b)(7) and (8)].

9. The standard has been modified to state, rather than imply, that signs prohibiting sources of ignition must be understandable by all employees [1915.13(b)(10)].

NOTE: For emergency spills or releases of hazardous substances employers are required to comply with the requirements of 29 CFR 1910.120(q).

1. The standard has been modified to identify the locations and situations within shipyard employment where a Marine Chemist or Coast Guard Authorized Person is required to test/certify spaces "Safe for Hot Work" [1915.14(a)]. The standard also identifies the locations and situations within shipyard employment where a Competent Person is permitted to test/certify spaces "Safe for Hot Work" [1915.14(b)]. A Competent Person is required to test and certify all spaces in which hot work is performed, except those spaces which specifically require a Marine Chemist or Coast Guard Authorized Person.

NOTE: A Marine Chemist or Coast Guard Authorized Person is required to test/certify all spaces and appurtenances (e.g.; pump lines, heating coils, pumps, fittings) within, on, or immediately adjacent to spaces that contain or have contained combustible or flammable liquids or gases on tank vessels. A Marine Chemist or Coast Guard Authorized Person is also required to test/certify such spaces on dry cargo vessels, miscellaneous vessels, passenger vessels, and shipyard employment inland facilities,; except within spaces which meet the standards for oxygen, flammability and toxicity in 1915.12, but are adjacent to spaces containing flammable gases or liquids, as long as the gases for liquids have a flash point below 150 degrees-Fahrenheit and the distance between such spaces and the work is greater than 25 feet (competent person can test/certify). For flammable liquids with a flash point above 150 degrees-Fahrenheit, see 1915.14(b).

2. The previous provision in 1915.14 on inerting of spaces has been omitted from this paragraph because this requirement is adequately covered by 1915.15 and in other Subparts of Part 1915.

1. The scope and applicability of 1915.15, which was previously limited to ship repair, is now extended to all shipyard employment on vessels and land-side.

2. The previous requirements for "frequent" testing in this section have been modified to require the testing of atmospheres "as often as necessary" [1915.15(c) and (e)]. The use of performance language for these testing requirements was chosen to provide flexibility to Marine Chemists and competent persons in determining the time and need for testing atmospheres based on the conditions in each dangerous atmosphere. Additional guidance on testing requirements is provided in Appendix A to subpart B -- Compliance Assistance Guidelines for Confined and Enclosed spaces and Other Dangerous Atmospheres.

NOTE: The shipyard employer must require the Marine Chemist to record the atmospheric condition of each space. This is the only way that a shipyard competent person can compare his/her readings to those established by the Marine Chemist, and confirm that there has been no change in the conditions of a space.

Ex: PORT Cargo Tank, 20.9% 02-0.0 LEL -< 0.5 ppm benzene STBD Cargo Tank, 20.9% 02-0.0 LEL -< 0.5 ppm benzene FWD Deep Tank, 20.9% 02-0.0 LEL -Toxics not performed

3. A requirement has been added for the visual inspection of the space for conditions such as but not limited to tank leaks, pipeline leaks, build-up of hazardous substances, oily rags, insulation scraps, and combustible trash as part of retesting and initial testing [1915.15(b), (c) and (e) and 1915.11(b) - definition for visual inspection].

4. The previous requirement for manholes and other closures to remain secured if secured during testing of a space has been eliminated since the final rule states that when changes occur (such as local shifting of a vessel) 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 1915.12, 1915.13, and 1915.14 [1915.15(b)].

NOTE: 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 instructions 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 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 it will be effective. Other factors the employer must consider are size, material, and methods of attachment. In short, this new performance-oriented language requires employers to provide adequate notice to all employees of dangerous working conditions, but leaves the method of presentation up to the employer.