October 8, 1993

Ms. Suey Howe
Director, Federal Regulations
Associated Builders and Contractors, Inc.
1300 North 17th, 8th Floor
Rosslyn, VA 22204

Dear Ms. Howe:

This is in response to your April 8 letter requesting an interpretation on the scope of the Occupational Safety and Health Administration's (OSHA) confined space standard for general industry. I apologize for the delay in responding to your inquiry.

OSHA's enforcement policy with regard to confined spaces at construction sites has not changed with the promulgation of the general industry regulation. In those instances where a hazard is addressed by an existing part 1926 standard, OSHA will continue to cite the specific standard. In those cases where a hazard is observed that is not addressed by an existing specific construction standard but is addressed in the American National Standards Institute's Z117.1 consensus standard, OSHA will continue to cite under 5(a)(1) of the Act provided the conditions for citing the general duty clause are present. However, in no circumstance would it be appropraite to cite a construction contractor under 1926.21 and 1926.651 for failure to comply with the requirements of the new general industry rule.

If we can be of any further assistance, please contact me or Mr. Dale Cavanaugh at (202) 219-8136.

Sincerely,



Roy F. Gurnham, P.E., Esq.
Director
Office of Construction and Maritime
Compliance Assistance




April 8, 1993

Mr. Roy Gurnham, Director
Office of Construction and Maritime
Compliance Assistance
Occupational Safety and Health
Administration
200 Constitution Avenue, N.W., Room N-3610
Washington, D.C. 20005

Re: 1910.146: Permit-Required Confined Spaces

Dear Roy:

Since the issuance at the confined space standard, Associated Builders and Contractors (ABC) has received numerous inquiries as to the impact of this general industry standard on the operations of construction contractors.

In the interest of providing its members with appropriate guidance, ABC respectfully requests a written interpretation from OSHA regarding the impact of the 1910 confined space standard on the construction industry. Specifically, could OSHA cite a construction contractor as being in violation of 1926.21 and 1926.651, if their safety and training efforts do not comply with the requirements outlined in the 1910 standard? Contractors are concerned that OSHA compliance officers will expect them to follow the 1910 standard in the absence at detailed requirements, i.e. permitting, in the 1926 standards. ABC has advised its members that "maintenance activities" are deemed general industry activities by OSHA. Therefore, contractors performing maintenance must comply with the 1910 standard; however, uncertainty remains regarding the impact of the 1910 standard on their construction activities.

ABC looks forward to receiving a written interpretation from OSHA regarding a construction contractor's responsibility to adopt components of the 1910 standard in an effort to provIde appropriate protection required by 1926.21 and 1926.651, as well as the general duty clause. Should additional information be required, please do not hesitate to contact me.

Sincerely,



Suey Howe
Director, Federal Regulations