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Rule

Electric Power Generation, Transmission, and Distribution; Electrical Protective Equipment

Action

Final Rule.

Summary

OSHA last issued rules for the construction of transmission and distribution installations in 1972. Those provisions are now out of date and inconsistent with the more recently promulgated general industry standard covering the operation and maintenance of electric power generation, transmission, and distribution lines and equipment. OSHA is revising the construction standard to make it more consistent with the general industry standard and is making some revisions to both the construction and general industry requirements. The final rules for general industry and construction include new or revised provisions on host employers and contractors, training, job briefings, fall protection, insulation and working position of employees working on or near live parts, minimum approach distances, protection from electric arcs, deenergizing transmission and distribution lines and equipment, protective grounding, operating mechanical equipment near overhead power lines, and working in manholes and vaults. The revised standards will ensure that employers, when appropriate, must meet consistent requirements for work performed under the construction and general industry standards.

The final rule also revises the general industry and construction standards for electrical protective equipment. The existing construction standard for the design of electrical protective equipment, which applies only to electric power transmission and distribution work, adopts several national consensus standards by reference. The new standard for electrical protective equipment, which matches the corresponding general industry standard, applies to all construction work and replaces the incorporation of out-of-date consensus standards with a set of performance-oriented requirements that is consistent with the latest revisions of the relevant consensus standards. The final construction rule also includes new requirements for the safe use and care of electrical protective equipment to complement the equipment design provisions. Both the general industry and construction standards for electrical protective equipment will include new requirements for equipment made of materials other than rubber.

OSHA is also revising the general industry standard for foot protection. This standard applies to employers performing work on electric power generation, transmission, and distribution installations, as well as employers in other industries. The final rule removes the requirement for employees to wear protective footwear as protection against electric shock.

Unified Agenda

Electric Power Transmission and Distribution; Electrical Protective Equipment

14 actions from June 30th, 2003 to November 2013

  • June 30th, 2003
    • SBREFA Report
  • June 15th, 2005
  • October 13th, 2005
    • NPRM Comment Period End
  • October 12th, 2005
  • October 12th, 2005
  • July 14th, 2006
    • Posthearing Comment Period End
  • October 22nd, 2008
  • November 21st, 2008
    • Comment Period End
  • November 21st, 2008
    • Close Record
  • September 14th, 2009
  • October 15th, 2009
    • Comment Period End
  • October 28th, 2009
    • Public Hearings
  • February 10th, 2010
    • Posthearing Comment Period End
  • November 2013
    • Final Rule
 

Table of Contents Back to Top

Tables Back to Top

DATES: Back to Top

The final rule becomes effective on July 10, 2014. (Certain provisions have compliance deadlines after this date as explained later in this preamble.)

ADDRESSES: Back to Top

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

FOR FURTHER INFORMATION CONTACT: Back to Top

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

Technical information: Mr. David Wallis, Directorate of Standards and Guidance, Room N3718, OSHA, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-1950 or fax (202) 693-1678.

For additional copies of this Federal Register document, contact OSHA, Office of Publications, U.S. Department of Labor, Room N3101, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-1888. Electronic copies of this Federal Register document are available at http://www.regulations.gov. Electronic copies of this Federal Register document, as well as news releases and other relevant documents, are available at OSHA's Web page at http://www.osha.gov.

SUPPLEMENTARY INFORMATION: Back to Top

Table of Contents Back to Top

I. Executive Summary

A. Introduction

B. Need for Regulation

C. Affected Establishments

D. Benefits, Net Benefits, and Cost Effectiveness

E. Cost Effectiveness

F. Compliance Costs

G. Economic Impacts

H. Final Regulatory Flexibility Analysis

II. Background

A. Acronyms and Abbreviations

B. Need for the Rule

C. Accident Data

D. Significant Risk and Reduction in Risk

III. Development of the Final Rule

A. History of the OSHA Standards

B. Relevant Consensus Standards

C. Advisory Committee on Construction Safety and Health

IV. Legal Authority

V. Summary and Explanation of the Final Rule

A. Section 1926.97, Electrical Protective Equipment

B. Subpart V, Electric Power Transmission and Distribution

C. Part 1910, Revisions

D. Part 1926, Removal of Incorporations by Reference

E. Part 1926, Subpart CC Revisions

VI. Final Economic Analysis and Regulatory Flexibility Analysis

A. Introduction

B. Need for the Rule

C. Examination of Alternative Regulatory Approaches

D. Profile of Affected Industries

E. Benefits, Net Benefits, and Cost Effectiveness

F. Technological Feasibility

G. Costs of Compliance

H. Final Regulatory Flexibility Analysis

I. References

VII. Federalism

VIII. Unfunded Mandates

IX. Consultation and Coordination With Indian Tribal Governments

X. Office of Management and Budget Review Under the Paperwork Reduction Act of 1995

A. Information Collection Request for the Proposed Rule

B. Information Collection Requirements in the Final Rule

XI. State-Plan Requirements

XII. Dates

A. The New Requirements for Transferring Information Between Host Employers and Contract Employers (§§ 1926.950(c) and 1910.269(a)(3))

B. Revised Provisions on the Use of Fall Protection Systems (§§ 1926.954(b)(3)(iii) and (b)(3)(iv) and 1910.269(g)(2)(iv)(C), and (g)(2)(iv)(D))

C. Revised Requirements for Minimum Approach Distances (§§ 1926.960(c)(1) and 1910.269(l)(3))

D. New Requirements for Protecting Employees From the Hazards Associated with Electric Arcs (§§ 1926.960(g) and 1910.269(l)(8))

XIII. Authority and Signature

Executive Summary Back to Top

A. Introduction

OSHA last issued rules for the construction of transmission and distribution installations in 1972. Those provisions are now out of date and inconsistent with the more recently promulgated general industry standard covering the operation and maintenance of electric power generation, transmission, and distribution lines and equipment. OSHA is revising the construction standard to make it more consistent with the general industry standard and is making some revisions to both the construction and general industry requirements. The final rules for general industry and construction include new or revised provisions on host employers and contractors, training, job briefings, fall protection, insulation and working position of employees working on or near live parts, minimum approach distances, protection from electric arcs, deenergizing transmission and distribution lines and equipment, protective grounding, operating mechanical equipment near overhead power lines, and working in manholes and vaults. The revised standards will ensure that employers, when appropriate, must meet consistent requirements for work performed under the construction and general industry standards.

The new provisions on host employers and contractors include requirements for host employers and contract employers to exchange information on hazards and on the conditions, characteristics, design, and operation of the host employer's installation. These new provisions also include a requirement for host employers and contract employers to coordinate their work rules and procedures to protect all employees. The revised provisions on training add requirements for the degree of training to be determined by the risk to the employee for the hazard involved and for training line-clearance tree trimmers and remove the existing requirement for the employer to certify training. The revised requirements for job briefings include a new requirement for the employer to provide information about existing characteristics and conditions to the employee in charge. The revised fall protection provisions include new requirements for the use of fall restraint systems or personal fall arrest systems in aerial lifts and for the use of fall protection equipment by qualified employees climbing or changing location on poles, towers, or similar structures. The revised provisions on insulation and working position of employees working on or near live parts include new requirements relating to where an employee who is not using electrical protective equipment may work. The revised provisions on minimum approach distances include a new requirement for the employer to determine maximum anticipated per-unit transient overvoltages through an engineering analysis or, as an alternative, assume certain maximum anticipated per-unit transient overvoltages. These provisions also replace requirements for specified minimum approach distances with requirements for the employer to establish minimum approach distances using specified formulas. The new provisions for protection from electric arcs include new requirements for the employer to: Assess the workplace to identify employees exposed to hazards from flames or from electric arcs, make reasonable estimates of the incident heat energy to which the employee would be exposed, ensure that the outer layer of clothing worn by employees is flame resistant under certain conditions, and generally ensure that employees exposed to hazards from electric arcs wear protective clothing and other protective equipment with an arc rating greater than or equal to the estimated heat energy. The revised provisions on deenergizing transmission and distribution lines and equipment clarify the application of those provisions to multiple crews and to deenergizing network protectors. The revised requirements for protective grounding now permit employers to install and remove protective grounds on lines and equipment operating at 600 volts or less without using a live-line tool under certain conditions. The revised provisions for operating mechanical equipment near overhead power lines clarify that the exemption from the requirement to maintain minimum approach distances applies only to the insulated portions of aerial lifts. The revised provisions on working in manholes and vaults clarify that all of the provisions for working in manholes also apply to working in vaults and include a new requirement for protecting employees from electrical faults when work could cause a fault in a cable.

The final rule also revises the general industry and construction standards for electrical protective equipment. The existing construction standard for the design of electrical protective equipment, which applies only to electric power transmission and distribution work, adopts several national consensus standards by reference. The new standard for electrical protective equipment applies to all construction work and replaces the incorporation of out-of-date consensus standards with a set of performance-oriented requirements that is consistent with the latest revisions of the relevant consensus standards. The final construction rule also includes new requirements for the safe use and care of electrical protective equipment to complement the equipment design provisions. Both the general industry and construction standards for electrical protective equipment will include new requirements for equipment made of materials other than rubber.

OSHA is also revising the general industry standard for foot protection. This standard applies to employers performing work on electric power generation, transmission, and distribution installations, as well as employers in other industries. The final rule removes the requirement for employees to wear protective footwear as protection against electric shock.

B. Need for Regulation

Employees doing work covered by the final rule are exposed to a variety of significant hazards that can and do cause serious injury and death. As explained fully in Section II.B, Need for the Rule, later in this preamble, after carefully weighing the various potential advantages and disadvantages of using a regulatory approach to reduce risk, OSHA concludes that in this case mandatory standards represent the best choice for reducing the risks to employees. In addition, rulemaking is necessary in this case to replace older existing standards with updated, clear, and consistent safety standards. Inconsistencies between the construction and general industry standards can create difficulties for employers attempting to develop appropriate work practices for their employees. For example, an employer replacing a switch on a transmission and distribution system is performing construction work if it is upgrading the cutout, but general industry work if it is simply replacing the cutout with the same model. Under the existing standards, different requirements apply depending upon whether the work is construction or general industry work. Under the final rule, the requirements are the same.

C. Affected Establishments

The final rule affects establishments in a variety of different industries involving electric power generation, transmission, and distribution. The rule primarily affects firms that construct, operate, maintain, or repair electric power generation, transmission, or distribution installations. These firms include electric utilities, as well as contractors hired by utilities and primarily classified in the construction industry. In addition, potentially affected firms are found in a variety of manufacturing and other industries that own or operate their own electric power generation, transmission, or distribution installations as a secondary part of their business operations. The rule also affects establishments performing line-clearance tree-trimming operations.

D. Benefits, Net Benefits, and Cost Effectiveness

OSHA expects the final rule to result in an increased degree of safety for the affected employees, thereby reducing the numbers of accidents, fatalities, and injuries associated with the relevant tasks and reducing the severity of certain injuries, such as burns or injuries that employees could sustain as a result of an arrested fall, that may still occur during the performance of some of the affected work procedures.

An estimated 74 fatalities and 444 serious injuries occur annually among employees involved in the electric power generation, transmission, and distribution work addressed by the provisions of this rulemaking. Based on a review and analysis of the incident reports associated with the reported injuries and fatalities, OSHA expects full compliance with the final rule to prevent 79.6 percent of the relevant injuries and fatalities, compared with 52.9 percent prevented with full compliance with the existing standards. Thus, OSHA estimates that the final rule will prevent approximately 19.75 additional fatalities and 118.5 additional serious injuries annually. Applying an average monetary value of $62,000 per prevented injury and a value of $8.7 million per prevented fatality results in estimated monetized benefits of $179.2 million annually.

OSHA estimated the net monetized benefits of the final rule to be about $129.7 million annually when costs are annualized at 7 percent ($179.2 million in benefits minus $49.5 million in costs), and $132.0 million when costs are annualized at 3 percent ($179.2 million in benefits minus $47.1 million in costs). Note that these net benefits exclude any unquantified benefits associated with revising existing standards to provide updated, clear, and consistent regulatory requirements for electric power generation, transmission, and distribution work. OSHA believes that the updated standards are easier to understand and to apply. Accordingly, the Agency expects the final rule to improve safety by facilitating compliance.

Table 1 summarizes the costs, benefits, net benefits, and cost effectiveness of the final rule.

Table 1—Net Benefits and Cost Effectiveness * Back to Top
7 percent 3 percent
* Totals may not equal the sum of the components due to rounding.
Source: Office of Regulatory Analysis, OSHA. Details provided in text.
Annualized Costs:    
Calculating Incident Energy and Arc-Hazard Assessment (Arc-Hazard Assessment) $2.2 million $1.8 million.
Provision of Arc-Flash Protective Equipment $17.3 million $15.7 million.
Fall Protection $0.6 million $0.4 million.
Host-Contractor Communications $17.8 million $17.8 million.
Expanded Job Briefings $6.7 million $6.7 million.
Additional Training $3.0 million $2.7 million.
Other costs for employees not already covered by § 1910.269 $0.2 million $0.2 million.
MAD Costs $1.8 million $1.8 million.
Total Annual Costs $49.5 million $47.1 million.
Annual Benefits:    
Number of Injuries Prevented 118.5 118.5.
Number of Fatalities Prevented 19.75 19.75.
Monetized Benefits (Assuming $62,000 per injury and $8.7 million per fatality prevented $179.2 million $179.2 million.
OSHA standards that are updated and consistent Unquantified Unquantified.
Total Annual Benefits 118.5 injuries and 19.75 fatalities prevented 118.5 injuries and 19.75 fatalities prevented.
Net Benefits (Benefits minus Costs): $129.7 million $132.0 million.

E. Cost Effectiveness

OSHA estimates that compliance with the final rule will result in the prevention of an one fatality and six injuries per $2.4 million in costs (using a 7-percent annualization rate) and one fatality and six injuries per $2.2 million in costs (using a 3-percent annualization rate).

F. Compliance Costs

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

OSHA based the Preliminary Regulatory Impact Analysis and Initial Regulatory Flexibility Analysis (PRIA) for the proposed rule, in part, on a report prepared by CONSAD Corp. (Exhibit 0080) under contract to OSHA. Eastern Research Group, Inc., (ERG) under contract to OSHA, assisted in preparing the analysis of the final rule presented here. With ERG's assistance, OSHA updated data on establishments, employment, wages, and revenues, and updated the analyses in the final rule with these new cost inputs. OSHA also calculated costs for provisions of the final rule not accounted for in the PRIA. These costs are for the use of upgraded fall protection equipment resulting from revised fall protection requirements, the provision of arc-rated head and face protection for some employees, the training of employees in the use of new fall protection equipment, the calculation of minimum approach distances, and, in some cases, the use of portable protective gaps (PPGs) to comply with the new minimum approach-distance requirements. The FEA also modifies the PRIA's approach to estimating costs for arc-hazard assessments.

OSHA estimated the total annualized cost of compliance with the present rulemaking to be between about $47.1 million (when costs are annualized at 3 percent) and $49.5 million (when costs are annualized at 7 percent). The final rule's requirements for employers to provide arc-flash protective equipment account for the largest component of the total compliance costs, at approximately $15.7 million to $17.2 million (when costs are annualized at 3 and 7 percent, respectively). Other nonnegligible compliance costs associated with the final rule include costs related to host-contractor communications ($17.8 million), job briefings ($6.7 million), training ($2.7 million to $3.0 million), minimum approach distances ($1.8 million to $1.8 million), fall protection ($0.4 million to $0.6 million), compliance with existing § 1910.269 for employees not already covered by that standard ($0.2 million), and arc-hazard assessments ($1.8 million to $2.2 million).

G. Economic Impacts

To assess the economic impacts associated with compliance with the final rule, OSHA developed quantitative estimates of the potential economic impact of the requirements in this rule on entities in each affected industry. OSHA compared the estimated costs of compliance with industry revenues and profits to provide an assessment of potential economic impacts.

The costs of compliance for the final rule are not large in relation to the corresponding annual financial flows associated with the regulated activities. The estimated costs of compliance (when annualized at 7 percent) represent about 0.007 percent of revenues and 0.06 percent of profits, on average, across all entities; compliance costs do not represent more than 0.1 percent of revenues or more than about 2 percent of profits in any affected industry.

The economic impact of the present rulemaking is most likely to consist of a small increase in prices for electricity, of about 0.007 percent on average. It is unlikely that a price increase on the magnitude of 0.007 percent will significantly alter the services demanded by the public or any other affected customers or intermediaries. If employers can substantially recoup the compliance costs of the present rulemaking with such a minimal increase in prices, there may be little effect on profits.

In general, for most establishments, it is likely that employers can pass some or all of the compliance costs along in the form of increased prices. In the event that unusual circumstances may inhibit even a price increase of 0.1 percent (the highest estimated cost as a percent of revenue in any of the affected industries), profits in any of the affected industries would be reduced by a maximum of about 2 percent.

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

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

H. Final Regulatory Flexibility Analysis

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

OSHA analyzed the potential impact of the final rule on small and very small entities, as described further under the heading “Final Regulatory Flexibility Analysis,” in Section VI, Final Economic Analysis and Regulatory Flexibility Analysis, later in this preamble. OSHA concludes that the compliance costs are equivalent to approximately 0.086 percent of profits for affected small entities generally, and less than approximately 2.9 percent of profits for small entities in any particular industry, and approximately 0.39 percent of profits for affected very small entities generally, and less than approximately 5.61 percent of profits for very small entities in any particular industry.

II. Background Back to Top

A. Acronyms and Abbreviations

The following acronyms have been used throughout this document:

ACCSHAdvisory Committee on Construction Safety and Health

AEDautomated external defibrillator

AGCAssociated General Contractors of America

ALJadministrative law judge

ANSIAmerican National Standards Institute

APPAAmerican Public Power Association

ASTMAmerican Society for Testing and Materials

BLSBureau of Labor Statistics

BPABonneville Power Administration

CFOICensus of Fatal Occupational Injuries

CPL 02-01-038the compliance directive for existing § 1910.269, CPL 02-01-038, “Enforcement of the Electric Power Generation, Transmission, and Distribution Standard” (June 18, 2003, originally CPL 2-1.38D)

CPRcardiopulmonary resuscitation

CRIEPICentral Research Institute of Electric Power Industry

EEIEdison Electric Institute

EIAEnergy Information Administration

E.O.Executive Order

EPRIElectric Power Research Institute

ERGEastern Research Group, Inc.

ESCIElectrical Safety Consultants International

Ex.Exhibit1

FCCFederal Communications Commission

FEAFinal Economic Analysis and Regulatory Flexibility Analysis

FRflame-resistant2

FRAflame-resistant apparel

FRECCFarmers Rural Electric Cooperative Corporation

FRFAFinal Regulatory Flexibility Analysis

FTEfull-time equivalent [employee]

IBEWInternational Brotherhood of Electrical Workers

IECInternational Electrotechnical Commission

IEEEInstitute of Electrical and Electronic Engineers

IMISOSHA's Integrated Management Information System

IRFAInitial Regulatory Flexibility Analysis

IRSInternal Revenue Service

ISEAInternational Safety Equipment Association

MADminimum approach distance

MAIDminimum air-insulation distance

MCCmotor control center

MTIDminimum tool-insulation distance

NAnot applicable

NAHBNational Association of Home Builders

NAICSNorth American Industry Classification System

NAMNational Association of Manufacturers

NECANational Electrical Contractors Association

NEPANational Environmental Policy Act of 1969

NESCNational Electrical Safety Code

NFPANational Fire Protection Association

NIOSHNational Institute for Occupational Safety and Health

NRECANational Rural Electric Cooperative Association

OIRAOffice of Information and Regulatory Affairs

OMBOffice of Management and Budget

OSH Act (or the Act)Occupational Safety and Health Act of 1970

OSHAOccupational Safety and Health Administration

OSHRCOccupational Safety and Health Review Commission

PPEpersonal protective equipment

PPGportable protective gap

PRIAPreliminary Regulatory Impact Analysis and Initial Regulatory Flexibility Analysis

PSMprocess safety management

p.u.per unit

RINregulatory information number

SBASmall Business Administration

SBAR Panel (or Panel)Small Business Advocacy Review Panel

SBREFASmall Business Regulatory Enforcement Fairness Act

SERsmall entity representative

SICStandard Industrial Classification

T maximum transient overvoltage, which is defined as the ratio of the 2-percent statistical switching overvoltage expected at the worksite to the nominal peak line-to-ground voltage of the system

TCIATree Care Industry Association

the 1994 § 1910.269 rulemakingthe rulemaking in which existing §§ 1910.137 and § 1910.269 were developed and published on January 31, 1994

Tr.Transcript page number or numbers from the March 6-14, 2006, public hearing on the proposed rule3

Tr2.Transcript page number or numbers from the October 28, 2009, public hearing on the limited reopening of the proposed rule4

TVATennessee Valley Authority

ULCCUtility Line Clearance Coalition

USDAUnited States Department of Agriculture

UWUAUtility Workers Union of America

WCRIWorker Compensation Research Institute

Record citations. References in parentheses are to exhibits or transcripts in the rulemaking record. Documents from the Subpart V rulemaking record are accessible at the Docket Office under Docket OSHA-S215-2006-0063 (originally Docket S-215). (The 2006 transcripts, abbreviated as “Tr.,” are listed in this docket as “exhibits” 0509 through 0515. The 2009 transcript, abbreviated as “Tr2.,” is listed as “exhibit” 0571.) Because the subpart V proposal was based in large part on existing § 1910.269, OSHA has also relied on the record developed during the earlier rulemaking for that general industry standard (the 1994 § 1910.269 rulemaking). EEI “incorporate[d] into [the subpart V] record the entire record in . . . the record underlying existing Section 1910.269” (Ex. 0227). References in this preamble that are prefixed by “269” are to exhibits and transcripts in the rulemaking record from OSHA's 1994 rulemaking on § 1910.137 and § 1910.269 (59 FR 4320-4476, Jan. 31, 1994). These documents are accessible at the Docket Office under Docket OSHA-S015-2006-0645 (originally Docket S-015).5

Some exhibits (see, for example, Exs. 0002, 0003, 0004, and 0400) contain records of accidents that are relevant to work covered by the final rule. In several instances in this preamble, OSHA has included hyperlinks to accident descriptions from those exhibits. Those hyperlinks link to one or more accident records in OSHA's IMIS system. The hyperlinked pages contain the most recent version of those records, which might have been edited since being placed in the record for this rulemaking. Consequently, the accident descriptions could differ slightly from the description included in the rulemaking record. However, the accident record numbers in the hyperlinked page match the accident record numbers in the relevant exhibit.

B. Need for the Rule

Employees performing work involving electric power generation, transmission, and distribution are exposed to a variety of hazards, including fall, electric shock, and burn hazards, that can and do cause serious injury and death. These workers are often exposed to energized parts of the power system, and the voltages involved are generally much higher than voltages encountered in other types of work. OSHA estimates that, on average, 74 fatalities and 444 serious injuries occur annually among these workers. (See Section VI, Final Economic Analysis and Regulatory Flexibility Analysis, later in the preamble, for a detailed discussion of the methodology used to develop these estimates.)

Although some of these incidents may have been prevented with better compliance with existing safety standards, OSHA concludes that many, in fact almost half of, fatal and nonfatal injuries among employees covered by the final rule would continue to occur even if employers were in full compliance with existing standards. Discounting incidents that would potentially have been prevented with compliance with existing standards, an estimated additional 19.75 fatalities and 118.5 serious injuries will be prevented each year through full compliance with the final rule. (See Section VI, Final Economic Analysis and Regulatory Flexibility Analysis, later in the preamble, for a detailed discussion of the methodology used to develop these estimates.)

This rulemaking will have the additional benefit of providing updated, clear, and consistent safety standards for electric power generation, transmission, and distribution work. OSHA currently has different standards covering construction and general industry work on electric power transmission and distribution systems. In most instances, the work practices used by employees are the same whether they are performing construction or general industry work. Which standard applies to a particular job depends upon whether the employer is altering the system (construction work) or maintaining the system (general industry work). For example, an employer replacing a cutout (disconnect switch) on a transmission and distribution system is performing construction work if it is upgrading the cutout, but general industry work if it is simply replacing the cutout with the same model. Since the work practices used by the employees would most likely be identical, the applicable OSHA standards should be as similar as possible. Inconsistencies between the construction and general industry standards can create difficulties for employers attempting to develop appropriate work practices for their employees. Currently, it is conceivable that, for work involving two or more cutouts, different and conflicting OSHA standards (that is, one for construction work, the other for general industry work) might apply. For this reason, employers and employees have told OSHA that it should make the two standards more consistent with each other. This final rule does so. (This issue is addressed in greater detail in the summary and explanation for § 1926.950, in Section V, Summary and Explanation of the Final Rule, later in this preamble.)

Moreover, the final rule adds important updates to, and clarifies, existing standards. The existing standards for the construction of electric power transmission and distribution lines and equipment and for electrical protective equipment are contained in subpart V of OSHA's construction standards (29 CFR 1926.950 through 1926.960). Subpart V was promulgated on November 23, 1972, around 40 years ago (37 FR 24880, Nov. 23, 1972). Some of the technology involved in electric power transmission and distribution work has changed since then, and the current standards do not reflect those changes. For example, methods for determining minimum approach distances have become more exact since 1972, and the minimum approach distances in existing § 1926.950(c)(1) are not based on the latest methodology. The minimum approach distances in the final rule are more protective and more technologically sound than the distances specified in the existing standard. Even the newer general industry standards on the operation and maintenance of electric power generation, transmission, and distribution installations (29 CFR 1910.269) and electrical protective equipment (29 CFR 1910.137) are not entirely consistent with the latest advances in technology.

Finally, the final rule clarifies certain confusing parts of the regulations. See, for example, Wisconsin Elec. Power Co. v. OSHRC, 567 F.2d 735, 738 (7th Cir. 1977) (“[r]evision of the regulations by any competent draftsman would greatly improve their clarity”).

C. Accident Data

OSHA has looked to several sources for information on accidents in the electric utility industry in preparing this final rule. Besides OSHA's own accident investigation files (recorded in the Agency's Integrated Management Information System (IMIS)), statistics on injuries are compiled by the Edison Electric Institute (EEI) and by the International Brotherhood of Electrical Workers (IBEW). Additionally, the Bureau of Labor Statistics (BLS) publishes accident data, including incidence rates for total cases, lost-workday cases, and lost workdays, and the National Institute for Occupational Safety and Health (NIOSH) publishes accident data as part of its Fatality Assessment and Control Evaluation Program.

To develop estimates of the potential benefits associated with the standards during the proposal stage, CONSAD Corp., under contract to OSHA, researched and reviewed potential sources of useful data. CONSAD, in consultation with the Agency, determined that the most reliable data sources for this purpose were OSHA's IMIS data and the Census of Fatal Occupational Injuries developed by BLS. A majority of the accidents reviewed by CONSAD involved electrocutions or shocks. In addition, a significant percentage of victims (5.5 percent) suffered from burns to their arms, abdomen, or legs from electric arc blasts and flashes, and another sizeable group of victims (3.2 percent) died or sustained injuries after falling out of vehicle-mounted aerial lifts.6

D. Significant Risk and Reduction in Risk

Section 3(8) of the Occupational Safety and Health Act of 1970 (OSH Act or the Act) defines an “occupational safety and health standard” as “a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” 29 U.S.C. 652(8). This definition has been interpreted to require OSHA to make a threshold showing of “significant risk” before it can promulgate a safety or health standard. See, for example, Industrial Union Dept., AFL-CIO v. American Petroleum Institute (Benzene), 448 U.S. 607 (1980) (plurality opinion); see also, for example, UAW v. OSHA (Lockout/Tagout II), 37 F.3d 665 (D.C. Cir. 1994). The Agency's obligation to show significant risk is not, however, a “mathematical straitjacket.”Benzene, 448 U.S. at 655. In fact, the Agency has discretion to “determine, in the first instance, what it considers to be a ‘significant’ risk[,]” and it “is not required to support its finding that a significant risk exists with anything approaching scientific certainty.”Id. at 655-56; see also, for example, Public Citizen Health Research Group v. Tyson (Ethylene Oxide), 796 F.2d 1479, 1486 (D.C. Cir. 1986).

Although OSHA makes significant risk findings for both health and safety standards, see Lockout/Tagout II, 37 F.3d 665, the methodology used to evaluate risk in safety rulemakings is more straightforward. Unlike the risks related to health hazards, which “may not be evident until a worker has been exposed for long periods of time to particular substances,” the risks associated with safety hazards such as burns and falls, “are generally immediate and obvious.”Benzene, 448 U.S. at 649, n.54. See also 59 FR 28594, 28599 (June 2, 1994) (proposed rule for longshoring and marine terminals, explaining that health hazards “are frequently undetectable because they are subtle or develop slowly or after long latency periods,” whereas safety hazards “cause immediately noticeable physical harm”). As OSHA explained in its lockout-tagout rulemaking:

For health standards, such as benzene, risk estimates are commonly based upon mathematical models (e.g., dose response curves) and the benefits are quantified by estimating the number of future fatalities that would be prevented under various exposure reductions. [In contrast, f]or safety standards risk is based upon the assumption that past accident patterns are representative of future ones. OSHA estimates benefits [for safety standards] by determining the percentage of accidents that will be prevented by compliance with the standard. . . . [58 FR 16612, 16623, Mar. 30, 1993]

OSHA's Final Economic and Regulatory Flexibility Analysis presents the Agency's assessment of the risks and benefits of this final rule. (See Section VI, Final Economic Analysis and Regulatory Flexibility Analysis, later in the preamble.) In these analyses, as previously mentioned, OSHA estimates that there are 74 fatalities and 444 serious injuries among employees covered by this final rule each year. The Agency has determined that almost half of those injuries and fatalities would have occurred even if employers were in full compliance with existing standards. (See Section VI, Final Economic Analysis and Regulatory Flexibility Analysis, later in the preamble, in which OSHA estimates that 53 percent of injuries and fatalities could have been prevented through full compliance with existing standards.) The accident data reviewed during this rulemaking, as explained in detail in the economic and regulatory analyses, reveals that the injuries and fatalities suffered by workers in power generation, transmission, and distribution result from electric shocks, burns from electric arcs, and falls, as well as other types of harmful incidents, including ones in which employees are struck by, struck against, or caught between, objects. Based on the large number of injuries and fatalities occurring in this industry each year, and the fact that existing standards are inadequate to prevent almost half of those incidents, OSHA has determined that employees working on electric power generation, transmission, and distribution installations are currently exposed to a significant risk of injury or death.7

The Agency estimates that the changes implemented in this final rule will prevent 19.75 fatalities and 118.5 serious injuries each year. (See Section VI, Final Economic Analysis and Regulatory Flexibility Analysis, later in the preamble.) OSHA, therefore, concludes that this final standard substantially reduces the significant risk that currently exists at power generation, transmission, and distribution worksites. As noted in Section VI, Final Economic Analysis and Regulatory Flexibility Analysis, later in the preamble, the various new provisions and amendments being adopted target the hazards the Agency has identified as contributors to the significant risk associated with electric power generation, transmission, and distribution work. Therefore, each element of this final rule is reasonably necessary and appropriate to achieve the anticipated reduction in overall risk.

No rulemaking participants meaningfully disputed OSHA's conclusion that the aforementioned estimates establish a significant risk for power generation, transmission, and distribution work. EEI, however, argued that OSHA has an obligation to make an independent significant risk showing for each of the hazards addressed by this rulemaking (See, for example, Exs. 0227, 0501; see also Ex. 0237 (comments of the American Forest & Paper Association).) OSHA does not agree that it is required to make multiple, hazard-specific significant risk findings.

As OSHA has explained in prior rulemakings, “[v]ertical standards [such as § 1910.269 and subpart V of part 1926] apply specifically to a given industry” or type of work (59 FR 28596 (proposed rule for longshoring and marine terminals)). They generally address multiple hazards faced by employees performing the covered work. See, for example, 66 FR 5196 (Jan. 18, 2001) (steel erection standards address, among other hazards, risks from working under loads, dangers associated with landing and placing decking, and falls to lower levels); 62 FR 40142 (July 25, 1997) (standards covering longshoring and marine terminals address multiple hazards, including hazards associated with manual cargo handling and exposure to hazardous atmospheres); 52 FR 49592 (Dec. 31, 1987) (standard covering grain-handling facilities includes provisions related to fire and explosion hazards, as well as other safety hazards, such as the danger associated with entering bins, silos, and tanks). OSHA believes that vertical “standards can encourage voluntary compliance because they are directed to the particular problems of [an] industry” (59 FR 28596). The adoption of vertical standards is recognized as a legitimate exercise of OSHA's standard-setting authority under the OSH Act. See Forging Indus. Ass'n v. Secretary of Labor (Noise), 773 F.2d 1436, 1455 (4th Cir. 1985) (“[T]he Agency has determined that a particular industry should be made the subject of a vertical standard. . . . That decision was not arbitrary or capricious . . . . Nor does the use of a comprehensive vertical standard amount to a prohibited special treatment”).

Although the Agency can identify the general types of hazards addressed by its vertical standards, and has done so in this rulemaking, there is no legal requirement for hazard-by-hazard significant risk findings in vertical standards. First, the DC Circuit Court of Appeals has already rejected the argument “that Benzene requires that the agency find that each and every aspect of its standard eliminates a significant risk faced by employees.”Ethylene Oxide, 796 F.2d at 1502, n. 16. Once OSHA makes a general finding of significant risk, the question becomes whether the requirements of the standard are reasonably related to the standard's purpose. See, for example, Noise, 773 F.2d at 1447. Second, when the Supreme Court first construed the OSH Act as imposing a significant risk requirement, it spoke in terms of the Agency making findings about unsafe workplaces, not individual hazards. Benzene, 448 U.S. at 642 (“before promulgating any standard, the Secretary must make a finding that the workplaces in question are not safe [and] a workplace can hardly be considered `unsafe' unless it threatens the workers with a significant risk of harm”). See also, for example, id. (framing the “significant risk” requirement as obligating OSHA “to make a threshold finding that a place of employment is unsafe—in the sense that significant risks are present and can be eliminated or lessened by a change in practices”); Texas Indep. Ginners Ass'n v. Marshall, 630 F.2d 398, 400 (5th Cir. 1980) (“[t]he Supreme Court recently ruled that the Act requires OSHA to provide substantial evidence that a significant risk of harm arises from a workplace or employment”). Third, courts have held that the OSH Act does not require the disaggregation of significant risk analyses along other lines. See, for example, Lockout/Tagout II, 37 F.3d at 670 (upholding OSHA's decision not to conduct individual significant risk analyses for various affected industries); American Dental Ass'n v. Martin, 984 F.2d 823, 827 (7th Cir. 1993) (OSHA is not required to evaluate risk “workplace by workplace”); Associated Builders and Contractors, 862 F.2d at 68 (“the significant risk requirement must of necessity be satisfied by a general finding concerning all potentially covered industries”).

Requiring OSHA to make multiple, hazard-specific significant risk findings would place an unwarranted burden on OSHA rulemaking because of difficulties in specifically defining each of the hazards addressed by a vertical standard.8 Hazards can be defined broadly, for example, falling from an elevation, or more narrowly, for example, falling from an elevated aerial lift while performing tree-trimming work. The outcome of the significant risk analysis called for by EEI would be largely (and somewhat arbitrarily) dependent on where along this vast spectrum OSHA defined the relevant dangers.

OSHA reviewed the authority EEI relied on in support of the purported requirement for hazard-specific risk findings, but does not find it persuasive. First, EEI argued that the Supreme Court, in its Benzene decision, held that the Agency had to make separate significant risk findings for the air-contaminant and dermal-contact provisions of that standard (Ex. 0227). A close reading of the decision in that case reveals no such holding. Instead, the dermal-contact provisions in that case were remanded on the same basis that the air-contaminant provisions were rejected—namely that the provisions were not supported by any significant risk findings. See Benzene, 448 U.S. at 661-62. While the Court did suggest that OSHA needed to find that a prohibition on dermal contact was reasonably necessary and appropriate to address a significant risk, that is, that preventing dermal contact would reduce the overall risk associated with workplace exposure to benzene, it did not address whether a single significant risk finding could ultimately support both the dermal-contact and air-contaminant provisions in the standard. Id.

Second, EEI relied on the Eleventh Circuit's decision in AFL-CIO v. OSHA (PELs), 965 F.2d 962 (11th Cir. 1992), which vacated and remanded OSHA's Air Contaminants Standard (Ex. 0227). That rule set permissible exposure limits for more than 400 toxic substances. Although in that case the court said that OSHA needed to explain its assessment of risk for each regulated substance, that rulemaking is readily distinguished from this final rule. In PELs, the various regulated substances were “unrelated” and had “little [in] common.” 965 F.2d at 972. Here, in contrast, the various hazards addressed by this final rule are closely related. They all arise at power generation, transmission, and distribution worksites and jointly contribute to the large number of injuries and fatalities suffered by covered workers. OSHA does not believe that the PELs decision limits its discretion to adopt provisions it deems reasonably necessary and appropriate to abate the existing electrocution, burn, fall, and other hazards that, together, result in covered employees being exposed to an overall workplace risk that is significant.

Finally, EEI's reliance on the Agency's ergonomics rulemaking is misplaced. EEI pointed out that OSHA's risk assessment in its ergonomics rulemaking considered only accidents that resulted from hazards covered by that standard (Ex. 0227). But this interpretation offers no support for EEI's position, as the risk assessment in this rulemaking similarly considered only injuries and fatalities that occurred during the performance of work covered by this final rule (Ex. 0080). (See also Section VI, Final Economic Analysis and Regulatory Flexibility Analysis, later in the preamble.)

Although OSHA does not agree that hazard-specific significant risk findings are necessary, the Agency believes that the record supports such findings for the critical hazards addressed in this rulemaking—namely electrocutions and electric shocks, burns from arc flashes, and falls. The Agency has found that a significant number of injuries and fatalities occur every year as a result of employee exposure to each of these hazards. (See Section VI, Final Economic Analysis and Regulatory Flexibility Analysis, later in the preamble.) Moreover, as EEI points out, “most of the hazards” addressed in this rulemaking “are already covered by the existing standards that OSHA [is] now . . . modify[ing] and supplement[ing]” (Ex. 0227). Furthermore, some of the hazards addressed by this rulemaking are already the subject of generally applicable hazard-specific horizontal standards. See, for example, 29 CFR part 1926, subpart K (electrical hazards) and subpart M (fall hazards). All of these existing standards were supported by findings of significant risk, and OSHA simply concludes that the additional provisions of this final rule are reasonably necessary and appropriate to reduce a substantial portion of the remaining significant risk at power generation, transmission, and distribution worksites.

III. Development of the Final Rule Back to Top

A. History of the OSHA Standards

OSHA first adopted standards for the construction of power transmission and distribution lines and equipment in 1972 (subpart V of 29 CFR part 1926). OSHA defines the term “construction work” in 29 CFR 1910.12(b) as “work for construction, alteration, and/or repair, including painting and decorating.” The term “construction” is broadly defined in § 1910.12(d) and existing § 1926.950(a)(1) to include the original installation of, as well as the alteration, conversion, and improvement of electric power transmission and distribution lines and equipment.

The general industry standard at 29 CFR 1910.269 applies to the operation and maintenance of electric power generation, transmission, and distribution installations. OSHA adopted § 1910.269 on January 31, 1994. That standard is a companion standard to subpart V of the construction standards and addresses work to which subpart V did not apply. When promulgated, § 1910.269 was also based on the latest technology and national consensus standards.

OSHA revised its Electrical Protective Equipment Standard in § 1910.137 at the same time § 1910.269 was promulgated. The revision of § 1910.137 eliminated the incorporation by reference of national consensus standards for rubber insulating equipment and replaced it with performance-oriented rules for the design, manufacture, and safe care and use of electrical protective equipment.

OSHA published a proposed rule (the subpart V proposal) on June 15, 2005 (70 FR 34822). That document proposed revising the construction standard for electric power transmission and distribution work (29 CFR part 1926, subpart V) and the general industry standards for electric power generation, transmission, and distribution work (29 CFR 1910.269). That document also proposed a new construction standard for electrical protective equipment (29 CFR 1926.97) and revisions to the general industry standards for foot protection (29 CFR 1910.136) and electrical protective equipment (29 CFR 1910.137). Public comments were originally due by October 13, 2005, but in response to requests from interested parties, including EEI, OSHA extended the comment period 90 days to January 11, 2006 (70 FR 59290, Oct. 12, 2005). OSHA held an informal public hearing beginning on March 6, 2006, and ending on March 14, 2006. After the hearing, interested parties had until May 15, 2006, to submit additional information and until July 14, 2006, to file posthearing briefs (Tr. 1415).

On October 22, 2008, OSHA reopened the record for 30 days to gather information from the public on specific questions related to minimum approach distances (73 FR 62942). EEI requested a public hearing and an additional 60 days to submit comments on the issues raised in the reopening notice (Ex. 0530). On September 14, 2009, OSHA opened the record for an additional 30 days to receive more comments on minimum approach distances and announced a public hearing to be held on October 28, 2009, addressing the limited issues raised in the two reopening notices (74 FR 46958). After the hearing, interested parties had until December 14, 2009, to submit additional information and until February 10, 2010, to file posthearing briefs (Tr2. 199).

The record for this rulemaking consists of all prehearing comments, the transcripts of the two public hearings, all exhibits submitted prior to and during the two hearings, and posthearing submissions and briefs. Administrative Law Judge Stephen Purcell issued an order closing the record and certified the record to the Assistant Secretary of Labor for Occupational Safety and Health. The Agency carefully considered the entire record in preparing this final standard.

B. Relevant Consensus Standards

The National Electrical Safety Code (American National Standards Institute (ANSI) Standard ANSI/IEEE C2, also known as the NESC) contains provisions specifically addressing electric power generation, transmission, and distribution work. ANSI/IEEE C2 does not, however, address the full range of hazards covered by this final rule. It is primarily directed to the prevention of electric shock, although it does contain a few requirements for the prevention of falls and burns from electric arcs.

The American Society for Testing and Materials (ASTM) has adopted standards related to electric power generation, transmission, and distribution work. ASTM Committee F18 on Electrical Protective Equipment for Workers has developed standards on rubber insulating equipment, climbing equipment, protective grounding equipment, fiberglass rod and tube used in live-line tools, and clothing for workers exposed to electric arcs.

The National Fire Protection Association (NFPA) has adopted a standard on electrical safety for employees, NFPA 70E, Standard for Electrical Safety in the Workplace. Although it does not apply to electric power generation, transmission, or distribution installations, the NFPA standard contains provisions addressing work near such installations performed by unqualified employees, that is, employees who have not been trained to work on or with electric power generation, transmission, or distribution installations. It also contains methods for estimating heat energy levels from electric arcs and describes ways to protect employees from arc-flash hazards.

The Institute of Electrical and Electronic Engineers (IEEE) writes standards for electric power generation, transmission, and distribution installations and for work on those installations. Many of these standards have been adopted by ANSI. Among these IEEE standards are: IEEE Std 516, IEEE Guide for Maintenance Methods on Energized Power-Lines, and IEEE Std 1048, IEEE Guide for Protective Grounding of Power Lines.

OSHA recognizes the important role consensus standards can play in ensuring worker safety. A comprehensive list of consensus standards relating to electric power generation, transmission, and distribution work can be found in existing Appendix E to § 1910.269. OSHA proposed to add the same list as Appendix E to subpart V. OSHA considered the latest editions of all the standards listed in Appendix E in the development of this final rule. Any substantial deviations from these consensus standards are explained in Section V, Summary and Explanation of the Final Rule, later in this preamble.

C. Advisory Committee on Construction Safety and Health

Under 29 CFR parts 1911 and 1912, OSHA must consult with the Advisory Committee on Construction Safety and Health (ACCSH or the Committee), established pursuant to Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3701 et seq.), in setting standards for construction work. Specifically, § 1911.10(a) requires the Assistant Secretary to provide ACCSH with a draft proposed rule (along with pertinent factual information) and give the Committee an opportunity to submit recommendations. See also § 1912.3(a) (“[W]henever occupational safety or health standards for construction activities are proposed, the Assistant Secretary [for Occupational Safety and Health] shall consult the Advisory Committee.”).

OSHA has a long history of consulting with ACCSH on this rulemaking. On May 25, 1995, OSHA took a draft of the proposed construction standards to ACCSH, providing the Committee with a draft of the proposal and with a statement on the need to update the standards. The Committee formed a workgroup to review the materials, and the workgroup provided comments to OSHA. The Agency gave a status report on the proposal to the Committee on August 8, 1995, and an updated draft of the proposal to ACCSH on December 10, 1999. On February 13, 2003, OSHA gave ACCSH another status report and summarized the major revisions it had made to the proposal. On May 22, 2003, OSHA provided the Committee with the same copy of the draft proposal that had been provided to the small entity representatives who were participating in the Small Business Regulatory Enforcement and Fairness Act (SBREFA) proceedings, which were being conducted at that time. OSHA also explained the major issues being raised by the small entity representatives on the draft proposal.

On May 18, 2004, ACCSH gave the Agency formal recommendations on the proposal. OSHA sought ACCSH's recommendations on the proposal generally, as well as on issues specifically related to host employer-contractor communications and flame-resistant clothing. ACCSH voted unanimously that: (1) The construction standards for electric power transmission and distribution work should be the same as the general industry standards for the same type of work; (2) it was necessary to require some safety-related communications between host employers and contractors; and (3) employees need to be protected from hazards posed by electric arcs through the use of flame-retardant clothing. ACCSH recommended, by unanimous vote, that OSHA issue its proposal, consistent with these specific recommendations.9

EEI suggested that OSHA had to seek additional input from ACCSH if it decided to rely on the recent work of the IEEE technical committee responsible for revising IEEE Std 516, which has not been presented to ACCSH, in developing the final rule's minimum approach-distance provisions (Tr2. 18-19). EEI is not correct. In making its assertion, EEI relies on Nat'l Constructors Ass'n. v. Marshall (Nat'l Constructors), 581 F.2d 960 (D.C. Cir. 1978). EEI's reliance on this case is misplaced. Although the court stated that the OSH Act and OSHA's procedural regulations (29 U.S.C. 655(b)(1); 29 CFR 1911.10(a)) place “a ‘stricter’ requirement on when, and how often, the agency must utilize the advisory committee procedure than does the [Administrative Procedure Act (APA)] with respect to public comment during informal rulemaking,”id. at 970, that statement in the decision is nonprecedential dicta. The court did not “decide how much stricter the requirement is” because, the court concluded, the rule at issue did not meet “even the APA's . . . standard.”Id. at 971 n.27. As such, the case stands, at most, for the proposition that OSHA must return to ACCSH where the final rule at issue does not meet the APA's “logical outgrowth” test.

OSHA's consultation with ACCSH in this rulemaking was consistent with the Nat'l Constructors decision. The Nat'l Constructors court stated that OSHA had to engage in further consultation with ACCSH regarding its ground-fault circuit protection standard where the final rule recognized “assured equipment grounding conductor programs” as a method of compliance, but ACCSH had never had the opportunity to comment on that particular form of employee protection. The DC Circuit concluded that the compliance program in question was neither presented to ACCSH, nor “gr[e]w logically out of anything that was presented to, or heard from, the Committee.”Id. at 970—971. In this Subpart V rulemaking, in contrast, the basic requirement to adhere to minimum approach distances was presented to ACCSH. (See, for example, ACCSH Docket ACCSH 1995-2.) The Agency is simply refining the method used to establish the minimum approach distances10 in light of technical progress that has been made since the proposal was reviewed by ACCSH. (For a complete discussion of the minimum approach-distance requirements and OSHA's rationale for adopting them, see the summary and explanation for final § 1926.960(c)(1), in Section V, Summary and Explanation of the Final Rule, later in this preamble.)

In any event, ACCSH had an opportunity to comment on whether OSHA should rely on the work of the IEEE committee generally. ACCSH knew that OSHA might base the minimum approach distances for subpart V on existing § 1910.269. (See, for example, Exhibit 12 in Docket ACCSH 1995-2 and Exhibit 101-X in Docket ACCSH 1995-3.) In fact, ACCSH ultimately concluded in its recommendation that the construction standards for electric power transmission and distribution work should be the same as the general industry standards for the same type of work. As existing § 1910.269's minimum approach-distance requirements were derived from IEEE Std 516 (59 FR 4320, 4382-4384 (Jan. 31, 1994)), ACCSH was on notice that the work of the IEEE 516 committee might be used by the Agency in formulating the minimum approach-distance requirements for this final rule.

That ACCSH did not specifically pass on the question of whether OSHA should derive its minimum approach-distance requirements from work done in the formulation of an IEEE standard that was not yet issued at the time of the ACCSH consultation is of no consequence. The OSH Act and OSHA's procedural regulation (29 U.S.C. 655(b)(1); 29 CFR 1911.10(a)) “make clear that the Assistant Secretary need only supply whatever information he has available to him at the time he submits his proposal to the Committee.”Nat'l Constructors, 581 F.2d at 968. As the Nat'l Constructors Court recognized, “by designing the Advisory Committee option as a procedural step that must precede public notice, comment, and the informal hearing, [Congress] assumed that the Committee would not be provided with all information that the Labor Department eventually developed on the subject.”Id. at 968 n.16. Thus, OSHA's action in the final rule is consistent with Nat'l Constructors.

IV. Legal Authority Back to Top

The purpose of the OSH Act, 29 U.S.C. 651 et seq., is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” 29 U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary of Labor to promulgate and enforce occupational safety and health standards. 29 U.S.C. 654, 655(b), 658.

A safety or health standard “requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” 29 U.S.C. 652(8). A safety standard is reasonably necessary or appropriate within the meaning of 29 U.S.C. 652(8) if:

  • It substantially reduces a significant risk of material harm in the workplace;
  • It is technologically and economically feasible;
  • It uses the most cost-effective protective measures;
  • It is consistent with, or is a justified departure from, prior Agency action;
  • It is supported by substantial evidence; and
  • It is better able to effectuate the purposes of the OSH Act than any relevant national consensus standard.

Lockout/Tagout II, 37 F.3d at 668. In addition, safety standards must be highly protective. See, for example, id. at 669.

A standard is technologically feasible if the protective measures it requires already exist, can be brought into existence with available technology, or can be created with technology that can reasonably be expected to be developed. See, for example, American Iron and Steel Inst. v. OSHA (Lead II), 939 F.2d 975, 980 (D.C. Cir. 1991) (per curiam). A standard is economically feasible when industry can absorb or pass on the costs of compliance without threatening industry's long-term profitability or competitive structure. See, for example, American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 530 n. 55 (1981); Lead II, 939 F.2d at 980. A standard is cost effective if the protective measures it requires are the least costly of the available alternatives that achieve the same level of protection. See, for example, Lockout/Tagout II, 37 F.3d at 668.

Section 6(b)(7) of the OSH Act authorizes OSHA to include among a standard's requirements labeling, monitoring, medical testing, and other information-gathering and information-transmittal provisions. 29 U.S.C. 655(b)(7). Finally, the OSH Act requires that when promulgating a rule that differs substantially from a national consensus standard, OSHA must explain why the promulgated rule is a better method for effectuating the purposes of the Act. 29 U.S.C. 655(b)(8). Deviations from relevant consensus standards are explained elsewhere in this preamble.

V. Summary and Explanation of the Final Rule Back to Top

OSHA is adopting a new construction standard on electrical protective equipment, 29 CFR 1926.97, and is revising the standard on the construction of electric power transmission and distribution lines and equipment, 29 CFR part 1926, subpart V. The Agency is also revising the general industry counterparts to these two construction standards, 29 CFR 1910.137 and 1910.269, respectively. Finally, OSHA is revising its general industry standard on foot protection, 29 CFR 1910.136, to require employers to ensure that each affected employee uses protective footwear when the use of protective footwear will protect the affected employee from an electrical hazard, such as a static-discharge or electric-shock hazard, that remains after the employer takes other necessary protective measures.

This section discusses the important elements of the final rule, explains the individual requirements, and explains any differences between the final rule and existing standards. This section also discusses issues that were raised at the two public hearings, significant comments received as part of the rulemaking record, and substantive changes from the language of the proposed rule. Unless otherwise noted, paragraph references in the summary and explanation of the final rule fall under the section given in the heading for the discussion. For example, except as otherwise noted, paragraph references in V.A, Section 1926.97, Electrical Protective Equipment, are to paragraphs in final § 1926.97. Except as noted, the Agency has carried proposed provisions into the final rule without substantive change.

The final rule contains several differences from the proposal and existing §§ 1910.137 and 1910.269 that are purely editorial and nonsubstantive. For example, the Agency amended the language of some provisions to shift from passive to active voice, thereby making the standard easier to read. OSHA does not discuss explicitly in the preamble all of these differences. The purpose of these differences, unless otherwise noted, is to clarify the final standard.

A. Section 1926.97, Electrical Protective Equipment

Workers exposed to electrical hazards face a risk of death or serious injury from electric shock. According to BLS, there were 192 and 170 fatalities involving contact with electric current in 2008 and 2009, respectively (http://www.bls.gov/iif/oshwc/cfoi/cftb0240.pdf and http://www.bls.gov/iif/oshwc/cfoi/cftb0249.pdf). About half of these fatalities (89 in both years) occurred in construction (id.).11

The use of properly designed, manufactured, and cared-for electrical protective equipment helps protect employees from this risk. Therefore, OSHA is issuing final § 1926.97, Electrical protective equipment, which addresses the design, manufacture, and proper care of electrical protective equipment. In addition, OSHA is revising existing § 1910.137, which also contains provisions addressing the design, manufacture, and proper care of electrical protective equipment. For reasons described at length in this section of the preamble, OSHA concludes that the final rule will be a more effective means of protecting employees from the risk of electric shock than existing OSHA standards.

The existing requirements for electrical protective equipment in construction work are in § 1926.951(a)(1), which only applies to the construction of electric power transmission and distribution lines and equipment. However, employers throughout the construction industry use electrical protective equipment, and OSHA believes that provisions for electrical protective equipment, as specified by final § 1926.97, should apply, not only to electric power transmission and distribution work, but to all construction work. Therefore, OSHA is issuing new § 1926.97, Electrical protective equipment, which applies to all construction work.

Existing § 1926.951(a)(1) incorporates by reference the following six American National Standards Institute (ANSI) standards:

Item ANSI Standard
Rubber insulating gloves J6.6-1971
Rubber matting for use around electric apparatus J6.7-1935 (R1971)
Rubber insulating blankets J6.4-1971
Rubber insulating hoods J6.2-1950 (R1971)
Rubber insulating line hose J6.1-1950 (R1971)
Rubber insulating sleeves J6.5-1971

These standards contain detailed specifications for manufacturing, testing, and designing electrical protective equipment. However, these standards have undergone several revisions since the 1971 publication date of existing subpart V and are now seriously out of date. Following is a complete list of the corresponding current national consensus standards:

ASTM D120-09, Standard Specification for Rubber Insulating Gloves.

ASTM D178-01 (Reapproved 2010), Standard Specification for Rubber Insulating Matting.

ASTM D1048-12, Standard Specification for Rubber Insulating Blankets.

ASTM D1049-98 (Reapproved 2010), Standard Specification for Rubber Insulating Covers.

ASTM D1050-05 (Reapproved 2011), Standard Specification for Rubber Insulating Line Hose.

ASTM D1051-08, Standard Specification for Rubber Insulating Sleeves.

Additionally, there are now standards on the in-service care of insulating line hose and covers (ASTM F478-09), insulating blankets (ASTM F479-06 (2011)), and insulating gloves and sleeves (ASTM F496-08), which OSHA did not incorporate or reference in existing § 1926.951(a)(1).12

OSHA derived proposed new § 1926.97 from these national consensus standards, but drafted it in performance terms. OSHA is carrying this approach forward into the final rule. The final rule relies on provisions from the consensus standards that are performance based and necessary for employee safety, but the final rule does not contain many of the detailed specifications from those standards. Thus, the final rule will provide greater flexibility for compliance.

BGE commented that OSHA's performance-based approach leaves the standards “vague” and creates “opportunities for unsafe practices” (Ex. 0126).

OSHA disagrees with this comment for the following reasons.

The Agency recognizes the importance of the consensus standards in defining basic requirements for the safe design and manufacture of electrical protective equipment for employees. To this end, OSHA will allow employers to comply with the final rule by following specific provisions in the consensus standards. OSHA believes that the option of following these specific provisions addresses the commenter's concern about vagueness.

However, OSHA determined that it would be inappropriate to adopt the consensus standards in toto in this rulemaking. First, each of the currently referenced standards has undergone several revisions since OSHA adopted the standards in existing § 1926.951(a)(1). Because of the continual process by which the consensus standards development organizations periodically revise their consensus standards, any specific editions that OSHA might adopt likely would be outdated within a few years. Additionally, since OSHA's rulemaking process is lengthy, it would not be practical for OSHA to revise its standards as often as necessary to keep pace with the changes in the consensus standards. Final § 1926.97 is flexible enough to accommodate changes in technology, obviating the need for constant revision. Wherever possible, OSHA wrote the final rule in performance terms to allow alternative methods of compliance that provide comparable safety to employees.

Another difficulty with incorporating the consensus standards by reference is that they contain details that go beyond the scope of the OSHA standard and are not directly related to employee safety. In final § 1926.97, OSHA relied only on consensus standard provisions that are relevant to employee safety in the workplace. Furthermore, to make the requirements easier for employers and employees to use and understand, OSHA adopted language in the final rule that is simpler than that in the consensus standards. Because all relevant requirements are in the text of the regulations, employers will not need to refer to the consensus standards to determine their obligations under final § 1926.97. Although OSHA is no longer incorporating the consensus standards by reference, notes throughout the rule clarify that OSHA will deem compliance with the consensus standards listed in the notes to be compliance with the performance requirements of final § 1926.97.

OSHA notes that it recently decided not to adopt a proposed performance-based approach when it revised the design requirements contained in several personal protective equipment standards (74 FR 46350, Sept. 9, 2009). In issuing that final rule, OSHA reasoned that “widespread opposition” to, and misunderstanding of, the proposal indicated “possible misapplication . . . if adopted” (74 FR 46352).

This rationale does not apply to this rulemaking. First, there was no widespread opposition to the proposed performance-based approach in this rulemaking. A number of commenters did request that OSHA deem employers that are in compliance with all future revisions of the listed consensus standards as being in compliance with the final rule (see, for example, Exs. 0156, 0180, 0183, 0202, 0206, 0229, 0231, 0239). The Agency believes that the performance-based approach it adopts in final § 1926.97 will provide these commenters with the flexibility they requested by permitting employers to follow future versions of consensus standards so long as those future versions meet the final rule's performance-based criteria. Second, OSHA adopted a performance-based approach when it previously revised existing § 1910.137 in 1994 (59 FR 4323-4325). Several participants in the 1994 rulemaking supported a performance-based approach (59 FR 4324). Third, OSHA believes that harmonizing § 1926.97 and § 1910.137 will reduce misapplication by the regulated community and, thereby, reduce the risk of electric shock. Promulgating inconsistent standards would increase misapplication by the regulated community and, consequently, increase the risk of electric shock. Finally, OSHA has had no difficulty enforcing § 1910.137 since issuing it in 1994.

Regarding the commenters' requests that OSHA deem employers that are in compliance with all future revisions of the listed consensus standards as being in compliance with the final rule, OSHA has no basis on which to find that future revisions of the consensus standards will provide suitable guidance for compliance with the performance criteria of the final rule. Revised consensus standards may or may not meet the final rule's performance criteria. If a revised consensus standard does not satisfy this final rule's performance criteria, however, the Agency may consider compliance with that consensus standard to be a de minimis condition if the consensus standard clearly provides protection equal to, or greater than, the protection provided by § 1926.97.13

An employer seeking to rely on an updated consensus standard may evaluate for itself whether the consensus standard meets the performance criteria contained in final § 1926.97. An employer that is unsure about whether a revised consensus standard meets the OSHA standard's performance criteria may seek guidance from OSHA. If a revised consensus standard does not appear to meet the OSHA standard's performance criteria, but the employer nonetheless wants to follow the revised consensus standard, the employer should seek guidance from OSHA as to whether the Agency would consider an employer's following the revised consensus standard to be a de minimis condition.14

Some rulemaking participants asked OSHA to provide the applicable consensus standards to employers at no cost. (See, for example, Exs. 0156, 0161, 0183, 0202, 0206, 0229, 0231, 0233; Tr. 1287-1288.) For instance, Mr. Terry Williams with the Electric Cooperatives of South Carolina stated: “If OSHA is to rely on procedures that it does not describe in full, . . . the agency should provide a cost-free way for employers to review these procedures to make sure they are following them” (Ex. 0202). Mr. Don Adkins with Davis H. Elliot Construction Co. stated that the “cost of securing and reviewing these voluntary standards place[s] a financial burden on small employers” (Ex. 0156).

OSHA is rejecting these requests. The Agency stated the rule in performance-based terms, which allows employers flexibility in complying with the rules. The Agency understands that employers may want additional guidance in terms of precise procedures or detailed specifications to follow. Final § 1926.97 references relevant consensus standards to provide such additional guidance, but those standards are not mandatory.

In any event, even when OSHA incorporates consensus standards by reference, the Agency does not provide those consensus standards to employers at no cost. Many consensus standards are copyrighted documents; and, in those cases, the copyright holder has certain legal rights regarding the public distribution of those documents. Note that some consensus standards development organizations, for example, NFPA, do provide free, view-only access to their standards (http://www.nfpa.org/itemDetail.asp?categoryID=279&itemID=18123&URL=Codes%20&%20Standards/Code%20development%20process/Online%20access).15 OSHA also will continue to explore other ways of informing the regulated community about applicable compliance obligations specified by the final rule.

Moreover, employers can often rely on the assurances of third parties that equipment or test methods meet the listed consensus standards. First, OSHA expects that employers will typically get the assurance of manufacturers that electrical protective equipment is capable of withstanding the appropriate electrical proof tests required by final paragraphs (a) and (b). In this regard, an employer can simply look for equipment labeled as meeting the listed consensus standards. Manufacturers attest, through such a label, typically required by the relevant consensus standard, that their equipment passed the requisite tests.

Second, it is OSHA's understanding that many employers, particularly small employers, do not test their own equipment to determine whether employees can use the equipment, as required by final paragraph (c). Instead, these employers send the equipment to an electrical laboratory for testing (see, for example, the testimony of Mr. Frank Brockman of Farmers Rural Electric Cooperative Corporation about the use of testing laboratories, Tr. 1301-1302). It is OSHA's understanding that, as a matter of practice, such laboratories follow the test methods in the applicable consensus standards for testing a wide range of products (see, for example, Ex. 0211).16 To determine whether employees can use the equipment in accordance with final paragraph (c), employers can rely on the assurance of these testing laboratories that they followed the listed consensus standards, as well as the requirements of OSHA's standard.

OSHA expects that, when consensus standards development organizations revise their consensus standards, manufacturers' labels will certify that the equipment meets the latest consensus standards, and that testing laboratories will use the test methods in the latest consensus standards, rather than the consensus standards listed in the notes. OSHA is sympathetic to concerns that employers, especially small businesses, do not have the resources to purchase and check whether revised consensus standards meet the final rule's performance criteria. As discussed previously, an employer that does not have the resources to purchase and review an updated consensus standard (indeed, any employer) may request guidance from OSHA on whether compliance with an updated consensus standard would conform to this final rule or bring the employer within OSHA's de minimis policy.

In the final rule, OSHA reworded the headings for paragraphs (a), (b), and (c) to more accurately reflect the content of the respective paragraphs. Paragraph (a). Paragraph (a) of § 1926.97 addresses the design and manufacture of the following types of rubber insulating equipment: Blankets, matting, covers, line hose, gloves, and sleeves.17 (Paragraph (b) of § 1926.97 contains general requirements for other types of insulating equipment (see the discussion of this paragraph later in this section of the preamble).) Paragraphs (a) and (c) of proposed § 1926.97 were based on existing § 1910.137(a) and (b); however, the proposal added Class 00 equipment to the classes addressed by the existing provisions to reflect the coverage of this new class of equipment in the consensus standards (Exs. 0048, 0051). This class of electrical protective equipment is used with voltages of 500 volts or less. OSHA received no comments on the proposed addition of Class 00 electrical protective equipment.

Paragraph (a)(1)(i), which is being adopted without change from the proposal, requires blankets, gloves, and sleeves to be manufactured without seams. This method of making the protective equipment minimizes the chance that the material will split. Because they are used when workers handle energized lines, gloves and sleeves are the only defense an employee has against electric shock. Additionally, the stresses placed on blankets, gloves, and sleeves by the flexing of the rubber during normal use could cause a seam to separate from tensile or shear stress.

The prohibition on seams does not apply to the other three types of electrical protective equipment covered by paragraph (a) (covers, line hose, and matting). These types of equipment generally provide a more indirect form of protection because they insulate the live parts from accidental, rather than intended, contact. Moreover, they are not usually subject to similar amounts or types of flexing and, thus, are not subject to the same stress.18

Paragraph (a)(1)(ii), which is being adopted with one modification from the proposal, requires electrical protective equipment to be marked to indicate its class and type. The class marking indicates the voltage with which the equipment can be used;19 the type marking indicates whether the equipment is ozone resistant. These markings enable employees to know the uses and voltages for which the equipment is suited. This provision also permits equipment to contain other relevant markings, for example, the manufacturer's name, the size of the equipment, or a notation that the equipment is manufactured in accordance with the relevant consensus standards.

Proposed paragraphs (a)(1)(ii)(G) and (a)(1)(ii)(H) would have required rubber insulating equipment “other than matting” to be marked as Type I or Type II to indicate whether or not it was ozone-resistant. Mr. James Thomas, President of ASTM International, submitted comments recommending that the quoted language be deleted from these paragraphs because the “type classification denotes the manufacturing material being either Nonresistant to Ozone (Type I) or Resistant to Ozone (Type II) and applies to all [rubber insulating equipment], including [m]atting” (Ex. 0148).

OSHA agrees that the ASTM standards require matting to be marked with the type to indicate whether or not it is ozone-resistant, and the Agency has adopted the commenter's recommendation in the final rule.

Mr. Leo Muckerheide of Safety Consulting Services recommended that OSHA require marking the maximum use voltage on electrical protective equipment, stating:

Many electrical workers work with multiple voltages and are infrequent users of electrical protective equipment. Therefore, expecting them to remember which class to use with which voltage is a potentially hazardous problem. This problem can be easily eliminated by having the maximum use voltage marked on the electrical protective equipment. [Ex. 0180]

OSHA rejects this recommendation. First, workers using electrical protective equipment receive training that ensures that they know which class of equipment to use on which voltage. The record demonstrates that most of the workers covered by § 1910.269 and subpart V are highly trained (see, for example, Tr. 1228) and use electrical protective equipment to work on energized lines on a regular, often daily, basis (see, for example, Tr. 394, 889, 1218-1219). Furthermore, several OSHA standards require training for employees working on or near exposed energized parts, when electrical protective equipment would also be required. For instance, final §§ 1910.269(a)(2)(ii)(D) and 1926.950(b)(2)(iv) require training in the use of electrical protective equipment for qualified employees performing electric power generation, transmission, and distribution work. Paragraph (c)(2) of § 1910.333 contains a similar requirement for workers performing other types of general industry electrical work. Paragraph (b)(2) of § 1926.21 contains training requirements for workers performing construction work. Although this requirement is more general than the training requirement in this final standard, § 1926.21 requires training in OSHA standards applicable to the employee's work environment.

Second, electrical protective equipment meeting the applicable consensus standards is manufactured with the Class ratings included, but generally without labels for maximum use voltages. (See, for example, Exs. 0048, 0049, 0050, 0066, 0067, 0068.) Requiring electrical protective equipment to be marked with its maximum use voltage would likely force employers to mark the equipment themselves. OSHA believes that the permanent class-rating marking placed on electrical protective equipment by the manufacturer provides adequate information and is less likely to wear off over the useful life of the equipment than any marking put in place by an employer. Thus, the Agency concludes that a requirement for marking the maximum use voltage on electrical protective equipment is unnecessary.

Mr. Frank Owen Brockman, representing Farmers Rural Electric Cooperative Corporation, recommended that OSHA also require that the markings include the company testing the equipment, the test date, and owners of the equipment (Ex. 0173). He did not explain how including this additional information in the markings would better protect employees. Moreover, although requiring the employer to note the date equipment is tested does enhance worker protection, final paragraph (c)(2)(xii) of § 1926.97 addresses this matter by requiring the employer to certify that equipment has successfully passed the periodic testing required by the final rule and by requiring this certification to identify the equipment that passed the test and the date it was tested. OSHA agrees with Mr. Brockman that keeping workers aware of the date of last testing would enhance worker protection. Therefore, OSHA revised the language in final paragraph (c)(2)(xii) to also require that the certification required by the rule be made available to employees or their authorized representatives.

It should be noted that, although not required, the markings suggested by Mr. Muckerheide and Mr. Brockman are permitted under paragraph (a)(1)(ii)(I).

Paragraph (a)(1)(iii) requires all markings to be nonconductive and to be applied so as not to impair the insulating properties of the equipment. OSHA did not receive any comments on this provision in the proposal and has carried it forward without change into the final rule. This requirement ensures that no marking interferes with the protection to be provided by the equipment.

Paragraph (a)(1)(iv), which is being adopted without change from the proposal, requires markings on gloves to be confined to the cuff area.20 As OSHA explained in the preamble to the proposed rule, markings in other areas could possibly wear off (70 FR 34828). Moreover, having the markings in one place will allow the employee to determine the class and type of glove quickly. Finally, as discussed later in this section of the preamble, final paragraph (c)(2)(vii) requires that rubber gloves normally be worn under protector gloves. Because a protector glove is almost always shorter than the corresponding rubber glove with which it is worn, and because the cuff of the protector glove can easily be pulled back without removal, it is easy to see markings on the cuff portion of the rubber glove beneath. Any marking provided on the rubber glove in an area outside of the cuff could not be seen with the protector glove in place.

Paragraph (a)(2) of final § 1926.97 contains electrical requirements for rubber insulating blankets, matting, line hose, gloves, and sleeves. As previously discussed, this provision uses performance language, and does not contain a lengthy discussion of specific test procedures.

Paragraph (a)(2)(i), which is being carried forward from the proposed rule, requires electrical protective equipment to be capable of withstanding the ac proof-test voltages in Table E-1 or the dc proof-test voltages in Table E-2 of the standard.21 The proof-test voltages listed in these tables have been derived from the current ASTM standards, which also contain detailed test procedures that can be used to determine whether electrical protective equipment is capable of withstanding these voltages. As previously discussed, these details were not included in the proposed rule, and this approach is being carried forward in the final rule. Paragraph (a)(2)(i)(A) replaces those details with a performance-oriented requirement that any proof test can be used as long as it reliably indicates that the equipment can withstand the proof-test voltage involved.

Mr. Muckerheide with Safety Consulting Services stated that the standard for rubber insulating gloves, ASTM D120, lists a 280-millimeter glove instead of the 267-millimeter glove listed in Table E-1 in the proposed rule (Ex. 0180). He recommended making OSHA's standard consistent with the ASTM standard or explaining the difference in the standard.

OSHA is revising Table E-1 from the proposal in response to this comment.

OSHA based proposed Table E-1 on Table I-2 in existing § 1910.137, which, in turn, was based on the 1987 edition of ASTM D120. Section 10.3.1 of ASTM D120-1987 lists four standard lengths for Class 0 rubber insulating gloves: 279, 356, 406, and 457 millimeters. Table 2 in that edition, however, listed 267 millimeters as the shortest length glove even though the shortest standard length was 279 millimeters.

Unlike the 1987 edition of the consensus standard, the latest edition, ASTM D120-2009, rounds up the standard metric sizes. Thus, the relevant consensus standards for rubber insulating gloves list four standard sizes of 280, 360, 410, and 460 millimeters for Classes 00, 0, 1, 2, 3, and 4 gloves. The table in the 2009 edition of the consensus standard corresponding to Table 2 in the 1987 edition lists a 280-millimeter glove as the shortest one.

Based on this information, OSHA concludes that the appropriate length for the shortest glove is 280 millimeters. In addition, the Agency does not consider the difference between the 280-millimeter length recommended by Mr. Muckerheide and the 267-millimeter proposed length to be substantial. The 1987 and 2009 editions of the consensus standard each permit a glove to vary from the standard length by as much as 13 millimeters. Thus, a 280-millimeter glove can be as short as 267 millimeters. However, to ensure consistency with the latest consensus standard, OSHA is adopting, in Table E-1, both the 280-millimeter glove length in place of the proposed 267-millimeter length and the rounded-up metric sizes, as listed in the latest edition of the consensus standard.

Paragraph (a)(2)(i)(B), which is being adopted as proposed, requires the proof-test voltage to be applied continuously for 1 minute for insulating matting and 3 minutes for other insulating equipment. These times are derived from on the proof-test times given in the ASTM design standards and are appropriate for testing the design capabilities of electrical protective equipment.

Paragraph (a)(2)(i)(C), which is being adopted as proposed, requires rubber insulating gloves to be capable of withstanding the ac proof-test voltage indicated in Table E-1 of the standard after a 16-hour water soak. If rubber insulating gloves absorb water, a reduction in insulating properties will result. Electrical work is sometimes performed in the rain, and an employee's perspiration is often present while the gloves are in use, so water absorption is a critical property. The soak test is needed to ensure that rubber insulating gloves can withstand the voltage involved under these conditions.

It should be noted that the soak test is a separate test from the initial proof test. Gloves must be capable of passing both tests.

Paragraph (a)(2)(ii), which is being adopted as proposed, prohibits the 60-hertz ac proof-test current from exceeding the values specified in Table E-1 at any time during the test period. The currents listed in the table have been taken from ASTM D120-09. This provision in the final rule is important because, when an ac proof test is used on gloves, the resulting proof-test current gives an indication of the validity of the gloves' make-up, the dielectric constant of the type of material used, its thickness, and the total area under test.

Under paragraph (a)(2)(ii)(A), which is being adopted without change from the proposal, the maximum current for ac voltages at frequencies other than 60 hertz is computed from the direct ratio of the frequencies. This provision ensures that maximum current is equivalent for varying frequencies.

Paragraph (a)(2)(ii)(B), which is being adopted as proposed, specifies that gloves to be tested be filled with and immersed in water to the depth given in Table E-3 and that water be added to or removed from the glove as necessary to ensure that the water level is the same inside and outside the glove. Table E-3 is derived from ASTM D120 and is valid for the proof-test currents listed in Table E-1. During the ac proof test, a gloves is filled with, and immersed in, water, and the water inside and outside the glove forms the electrodes. The ac proof-test current is dependent on the length of the portion of the glove that is out of the water. Because the proof-test current is a function of immersion depth, it is important to specify the depth in the rule.22

Paragraph (a)(2)(ii)(C) requires that, after the 16-hour water soak specified in paragraph (a)(2)(i)(C), the 60-hertz proof-test current not exceed the values given in Table E-1 by more than 2 milliamperes. The allowable proof-test current must be increased for proof tests on gloves after a 16-hour water soak because the gloves absorb a small amount of water, which results in slightly increased current during the test. The final rule was derived from ASTM D120, which allows an increase in the proof-test current of 2 milliamperes. If the proof-test current increases more than 2 milliamperes, it indicates that the gloves absorbed too much water. OSHA has revised this provision in the final rule to indicate more clearly that it is a requirement rather than an exception.

Paragraph (a)(2)(iii), which is being adopted without change from the proposed rule, prohibits electrical protective equipment that has been subjected to a minimum breakdown voltage test from being used to protect employees from electrical hazards. The relatively high voltages used in testing electrical protective equipment for minimum breakdown voltage can damage the insulating material under test (even if the equipment passes). The intent of this rule is to prohibit the use of equipment that has been tested for minimum breakdown voltage under conditions equivalent to those in the ASTM standards, because minimum breakdown tests are destructive. Such tests are performed only on equipment samples that are to be discarded.

Paragraph (a)(2)(iv), which is being adopted as proposed, requires ozone-resistant material (Type II) to be capable of withstanding an ozone test that can reliably indicate that the material will resist ozone exposure in actual use. Standardized ozone tests are given in the ASTM specifications listed in the note following paragraph (a)(3)(ii)(B), and compliance with these specifications will be deemed compliance with this OSHA requirement. Around high-voltage lines and equipment, a luminous discharge, called electric corona, can occur due to ionization of the surrounding air caused by a voltage gradient that exceeds a certain critical value. The blue corona discharge is accompanied by a hissing noise and by ozone, which can cause damage to certain types of rubber insulating materials. Therefore, when there is a chance that ozone may be produced at a work location, electrical protective equipment made of ozone-resistant material is frequently used. The final rule ensures that ozone-resistant material will, in fact, be resistant to the deteriorating effects of the gas. The final rule also provides that visible signs of ozone deterioration, such as checking, cracking, breaks, and pitting, are evidence of failure to meet the requirements for ozone-resistant material.23

Paragraph (a)(3) addresses the workmanship and finish of electrical protective equipment. Because physical irregularities can interfere with the insulating properties of the equipment and thus reduce the protection it affords, paragraph (a)(3)(i) prohibits the presence of physical irregularities that can adversely affect the insulating properties of the equipment and that can be detected by the tests or inspections required under other provisions in § 1926.97. In the final rule, OSHA has revised the language for this provision to clarify that “harmful physical irregularities” (the term used in the proposal) means “physical irregularities that can adversely affect the insulating properties of the equipment.”

OSHA recognizes that some minor irregularities are nearly unavoidable in the manufacture of rubber goods, and these imperfections may be present in the insulating materials without significantly affecting the insulation. Paragraph (a)(3)(ii), which is being adopted without change from the proposal, describes the types of imperfections that are permitted. Even with these imperfections, electrical protective equipment must be capable of passing the electrical tests specified in paragraph (a)(2).

Since paragraph (a) of final § 1926.97 is written in performance-oriented language, OSHA has included a note at the end of the paragraph stating that rubber insulating equipment meeting the requirements of the listed ASTM standards will be deemed in compliance with the performance requirements of final § 1926.97(a). This list of ASTM standards references the latest revisions of those documents. The Agency has reviewed the referenced ASTM standards and has found them to provide suitable guidance for compliance with the performance criteria of § 1926.97(a).24

Paragraph (b). Paragraph (b) of final § 1926.97 addresses electrical protective equipment other than the rubber insulating equipment addressed in paragraph (a). Equipment falling under this paragraph includes plastic guard equipment, insulating barriers, and other protective equipment intended to provide electrical protection to employees.

Mr. Steven Theis, representing MYR Group, requested that OSHA clarify that equipment complying with the ASTM and IEEE consensus standards mentioned in the proposal would constitute compliance with the final rule (Ex. 0162). In the proposal, OSHA pointed to ASTM F712. OSHA has reviewed ASTM F712-06 (2011) and has found that it provides suitable guidance for plastic guard equipment that employers can use to comply with final § 1926.97(b). To clarify the standard, OSHA has added a new note to paragraph (b) to indicate that OSHA will consider plastic guard equipment to conform to the performance requirements of paragraph (b) if it meets, and is used in accordance with, ASTM F712-06 (2011).

In the proposal, the Agency also pointed to IEEE Std 516, Guide for Maintenance Methods on Energized Power Lines, as support for the electrical criteria in proposed paragraph (b). The Agency has not referenced this consensus standard in the final rule. The IEEE standard does not contain specifications or test methods for electrical protective equipment. Instead, that consensus standard contains work methods for live-line work, including criteria for evaluating insulating tools and equipment. The Agency notes that the criteria for evaluating insulating tools and equipment specified in the IEEE standard are equivalent to the design criteria for electrical protective equipment contained in paragraph (b) in the final rule.

Paragraph (b)(1), which is being adopted without substantive change from the proposed rule, requires electrical protective equipment to be capable of withstanding any voltage that might be imposed on it. The voltage that the equipment must withstand includes transient overvoltages, as well as the nominal voltage that is present on an energized part of an electric circuit. Equipment withstands a voltage if it maintains its integrity without flashover or arc through.

Equipment conforming to a national consensus standard for that type of equipment will generally be considered as complying with this rule if that standard contains proof testing requirements for the voltage involved. In the proposal, OSHA considered accepting electrical protective equipment that was capable of passing a test equivalent to that described in ASTM F712 or IEEE Std 516 for types of equipment not addressed by any consensus standard. OSHA invited comments on whether these standards contain suitable test methods and whether equipment passing those tests should be acceptable under the OSHA standard.

Rulemaking participants generally agreed that the consensus standards provide suitable guidance for the equipment they addressed. (See, for example, Exs. 0162, 0230.) For instance, IBEW stated:

The test methods referenced in these standards are suitable for the types of equipment they are designed for . . . [This] equipment [has] proven to be acceptable for use in this industry. [Ex. 0230]

Mr. Steven Theis of MYR Group agreed that the “specified standards contain suitable test methods” (Ex. 0162).

As noted previously, OSHA has reviewed ASTM F712-06 (2011) and found that it provides suitable guidance for compliance with final paragraph (b). The Agency has included a note in the final rule to indicate that plastic guard equipment is deemed to conform to the performance requirements of paragraph (b) if the equipment conforms to that consensus standard.

ASTM maintained that none of the ASTM standards listed in the proposed standard contain an impulse test method for transient overvoltages (Ex. 0148). The organization recommended that the final rule reflect the current referenced consensus standards.

ASTM misconstrues paragraph (b)(1) of the final rule. Paragraph (b)(1) of the final rule does not require impulse testing as ASTM alleges. Rather, it is a performance requirement that equipment be capable of withstanding both the steady-state voltages and transient (or impulse) overvoltages, to which it will be subjected. Both types of voltages can appear across the equipment during use. (See the summary and explanation for final § 1926.960(c)(1), later in this section of the preamble, for a discussion of maximum transient overvoltages that can appear on electric power lines and equipment.)

The typical test method contained in the ASTM standards for determining minimum breakdown voltage (or withstand voltage) requires testing at substantially higher voltages than those on which the equipment will be used. (See, for example, Exs. 0048, 0053, 0071.) In addition, minimum breakdown voltage testing is performed using a steadily rising ac voltage, in contrast to impulse testing, in which the overvoltage is applied for a very short period (id.). As noted in IEEE Std 516-2009, the existing standards for insulating tools and equipment do not address whether equipment passing the ac withstand voltage tests in those standards will also withstand transient voltage stresses (Ex. 0532). However, the IEEE standard suggests the use of a 1.3 ratio to convert ac withstand voltages to impulse, or transient, voltages (id.). While the IEEE standard notes that research in this area is ongoing, OSHA concludes that, in the absence of better information, employers may rely on this ratio and multiply the ac minimum breakdown voltage for protective equipment by this value to determine if that equipment can withstand the expected transient overvoltages on energized circuits. For example, insulating equipment with a minimum breakdown, or withstand, voltage of 20,000 volts is capable of withstanding a maximum transient overvoltage of 26,000 volts. This equipment would be acceptable for use to protect employees from phase-to-ground exposures on a circuit operating at 15-kilovolt, phase- to-phase, with a 3.0 per unit maximum transient overvoltage.25

The Alabama Rural Electric Association of Cooperatives, requested that OSHA provide a definition of “transient overvoltage” and a suggested method of calculation (Ex. 0224).

IEEE Std 516-2009 contains the following suitable guidance (although, as stated earlier, the standard does not contain specifications or test methods for electrical protective equipment). First, the IEEE standard contains the industry-recognized definition of “transient overvoltage,” which reads as follows:

Voltage that exceeds the maximum operating line-to-ground voltage. This voltage may be the result of a transient or switching surge. [Ex. 053226 ]

Second, the IEEE consensus standard contains methods of determining the maximum transient overvoltage on an electric power generation, transmission, or distribution system and, as noted earlier, discusses comparing the ability of insulation equipment to withstand a transient overvoltage based on its ability to withstand voltages under more typical testing conditions (Ex. 0532). OSHA has not duplicated this information in § 1926.97. It is copyrighted information that is publicly available. However, OSHA concludes that the IEEE standard provides suitable guidance that can assist employers in complying with paragraph (b)(1) and has added a reference to that consensus standard in the note following that paragraph in the final rule.

The proposed rule invited comments on the need to set specific electrical performance values in the standard and on whether the electrical test criteria in ASTM F96827 (which were summarized in Table IV-1 and Table IV-2 of the preamble to the proposal (70 FR 34830)) could be applied to all types of electrical protective equipment covered by proposed paragraph (b). IBEW commented that the test values and use values in ASTM F968 are appropriate for electrically insulating plastic guard equipment, but suggested that the values are not suitable for other types of equipment because plastic guard equipment is designed to perform differently than other types of electrical protective equipment (Ex. 0230). Based on the IBEW comment, OSHA has not included in the final rule the values from Table IV-1 and Table IV-2. Moreover, since the final rule is written in performance terms, inclusion of values like those included in these tables is unnecessary.

Final paragraph (b)(2) addresses the properties of insulating equipment that limit the amount of current to which an employee is exposed. Paragraph (b)(2)(i), which is being adopted without change from the proposal, requires electrical protective equipment used as the primary insulation of employees from energized parts to be capable of passing a test for current (that is, a proof test) when subjected to the highest nominal voltage on which the equipment is to be used. Paragraph (b)(2)(ii), which is also being adopted as proposed, provides that during the test, the equipment current may not exceed 1 microampere per kilovolt of phase-to-phase applied voltage. This requirement will prevent dangerous electric shock to employees by prohibiting use of both poor insulating materials and good insulating materials that are contaminated with conductive substances (for example, fiberglass-reinforced plastic coated with a conductive finish). The limit for current has been derived from IEEE Std 516, and OSHA believes such a limit is reasonable and appropriate.

In the preamble to the proposed rule, the Agency invited comments on whether another value would better protect employees. IBEW commented on this issue as follows:

The IEEE Standard 516 limit of 1 microampere per kilovolt of phase-to-phase applied voltage is appropriate for testing equipment used for primary insulation of employees from energized parts. This limit has apparently worked to keep inferior protective equipment of[f] the market. [Ex. 0230]

One commenter was concerned that the proposed current limit might not protect employees in the event that a fault occurred (Ex. 0126). OSHA believes that this concern is unfounded. During a fault, the voltage on a circuit typically falls, and the equipment current would fall with it. Although it is possible that transient overvoltages may occur, either during a fault on an adjacent phase or during switching operations, such overvoltages are extremely short in duration, and the possible resulting increase in equipment current should not prove life-threatening to employees.

ASTM stated that the only one of its standards that includes a 1-microampere per kilovolt requirement is ASTM F712 on plastic guard equipment (Ex. 0148). The organization recommended that OSHA limit this provision to this type of equipment.

OSHA is not adopting ASTM's recommendation. The Agency notes that ASTM F712 is not the only ASTM standard that limits equipment current to values less than 1 microampere per kilovolt of test voltage. ASTM F711, Standard Specification for Fiberglass-Reinforced Plastic (FRP) Rod and Tube Used in Live Line Tools, limits maximum current during the dielectric testing prescribed in that standard to values substantially less than 1 microampere per kilovolt of test voltage (Ex. 0053).28 Further, as noted previously, this limit has been derived from IEEE Std 516. Thus, OSHA concludes that the 1-microampere limit is reasonable and appropriate.29

Note 1 to paragraph (b)(2), which is being adopted without substantive change from the proposal, emphasizes that this paragraph applies to equipment that provides primary insulation from energized parts, which is consistent with the plain language of paragraph (b)(2)(i). The note also clarifies that paragraph (b)(2) does not apply to equipment used for secondary insulation or equipment used for brush contact only. OSHA considers primary insulation to be the insulation that is placed directly between an employee and an energized part or, for live-line barehand work, between an employee and ground. Insulation that supplements the primary insulation, for example, a second form of insulation placed between the employee and ground (in addition to the primary insulation), is secondary insulation.

Note 2 to paragraph (b)(2), which is being adopted without change from the proposal, provides that when equipment is tested with ac voltage, the current measured during the test consists of three components: (1) Capacitive current caused by the dielectric properties of the equipment being tested, (2) conduction current through the equipment, and (3) leakage current passing along the surface of the equipment. The conduction current is negligible for materials typically used in insulating equipment, and the leakage current should be small for clean, dry insulating equipment. The capacitive component usually predominates when insulating equipment is tested in good condition.

OSHA expects that the tests required under final paragraphs (b)(1) and (b)(2) will normally be performed by the manufacturer during the design process and periodically during the manufacturing process. The Agency recognizes, however, that some employers might want to use equipment that is made of insulating materials but that was not intended by the manufacturer to be used as insulation. For example, a barrier made of rigid plastic may be intended for use as a general purpose barrier. An employer could test the barrier under paragraphs (b)(1) and (b)(2), and, if the equipment passes the tests, it would be acceptable for use as insulating electrical protective equipment.

Paragraph (c). Although existing construction standards do not contain provisions for the care and use of insulating equipment, OSHA believes provisions of this type can contribute greatly to employee safety. Electrical protective equipment is, in large part, manufactured in accordance with the latest ASTM standards. This would probably be the case even in the absence of OSHA regulation. However, improper use and care of this equipment can easily reduce, or even eliminate, the protection afforded by this equipment. Therefore, OSHA proposed to add new requirements for the in-service care and use of electrical protective equipment to the design standards already contained in existing § 1926.951(a)(1). These new provisions are being adopted in the final rule and will help ensure that these safety products retain their insulating properties.

Paragraph (c)(1), which is being adopted without change from the proposal, requires electrical protective equipment to be maintained in a safe and reliable condition. This general, performance-oriented requirement, which applies to all equipment addressed by final § 1926.97, helps ensure that employees are fully protected from electric shock.

Detailed criteria for the use and care of specific types of electrical protective equipment are contained in the following ASTM standards:

ASTM F478-09, Standard Specification for In-Service Care of Insulating Line Hose and Covers.

ASTM F479-06 (2011), Standard Specification for In-Service Care of Insulating Blankets.

ASTM F496-08, Standard Specification for In-Service Care of Insulating Gloves and Sleeves.

The requirements in final paragraph (c)(2) are derived from these standards.

Paragraph (c)(2) applies only to rubber insulating blankets, covers, line hose, gloves, and sleeves. No consensus standards address the care and use of other types of electrical protective equipment. Whereas the material design specifications for rubber insulating matting is addressed in § 1926.97(a), the in-service care of this matting is not covered by any ASTM standard or by existing § 1910.137(b)(2). This type of equipment is generally permanently installed to provide supplementary protection against electric shock. Employees stand on the matting, and they are insulated from the floor, which is one of the grounds present in the work area. This provides a degree of protection from phase-to-ground electric shock. Because this type of equipment is normally left in place after it is installed, and because it is not relied on for primary protection from electric shock (the primary protection is provided by other insulating equipment or by insulating tools), it does not need to be tested on a periodic basis and need not be subject to the same careful inspection before use that other insulating equipment must receive. It should be noted, however, that rubber insulating matting is still required to be maintained in a safe, reliable condition under paragraph (c)(1).

In final paragraph (c)(2)(i) and Table E-4, which are being adopted without substantive change from the proposal, OSHA is incorporating the margins of safety recognized in the ASTM standards by restricting the use of insulating equipment to voltages lower than the proof-test voltages given in Table E-1 and Table E-2. The rubber insulating equipment addressed in § 1926.97(a) is to be used at lower voltages than the voltages the equipment is designed to withstand. For instance, although Class 4 equipment is currently designed to be capable of withstanding voltages of up to 40 kilovolts, the maximum use voltage for such equipment is 36 kilovolts (see also, for example, ASTM F496 on the care and use of rubber insulating gloves and sleeves). The use of insulating equipment at voltages less than the actual breakdown voltage provides a margin of safety for the employee.

The maximum use voltage for class 3 equipment in Table E-4 in the final rule is being corrected to 26,500. OSHA proposed that the maximum use voltage for this class of equipment be 26,000. OSHA intended this cell in the proposed table to read 26,500, as it is in Table I-5 in existing § 1910.137 and in the applicable consensus standards, but an inadvertent error in printing resulted in the wrong number being entered in the table.

In the proposed rule, Note 1 to Table E-4 explained how the maximum use voltage of electrical protective equipment varies depending on whether multiphase exposure exists. In the general case, electrical protective equipment must be rated for the full phase-to-phase voltage of the lines or equipment on which work is being performed. This requirement ensures that employees are protected against the most severe possible exposure, that is, contact between one phase conductor and another. However, if the employee is only exposed to phase-to-ground voltage, then the electrical protective equipment selected can be based on this lower voltage level (nominally, the phase-to-phase voltage divided by √3). For example, a three-phase, solidly grounded, Y-connected overhead distribution system could be run as three phase conductors with a neutral or as three single-phase circuits with one phase conductor and a neutral each. If only one phase conductor is present on a pole, there is no multiphase exposure. If all three phase conductors are present, the multiphase exposure can be removed by insulating two of the phases or by isolating two of the phases. [30] After the insulation is in place or while the employee is isolated from the other two phase conductors, there is no multiphase exposure, and electrical protective equipment rated for the phase-to-ground voltage could be used. [31]

In the proposal, the Agency requested information about whether employees can be insulated or isolated from multiphase exposure to ensure safe use of electrical protective equipment. The comments generally supported the note to proposed Table E-4 and previously codified in Table I-5 in existing § 1910.137. (See, for example, Exs. 0155, 0175, 0177, 0227.) Mr. Charles Kelly of EEI explained:

[T]he typical practice in the industry is for employees to cover the first phase from a position where the other phases cannot be reached. This practice isolates employees from multiphase exposure. Thus, the use of phase-to-ground voltage-rated equipment is safe.

Many utilities use a class of equipment which is rated for the phase to ground voltage and rely on isolation and, to a lesser extent, cover-up equipment, to remove the potential for a multiphase exposure. Multiphase exposure is always avoided regardless of whether protective equipment (gloves or gloves and sleeves) is rated for the phase to phase voltage. Outside of rubber blankets, cover-up equipment is considered secondary protection against brush contact. Isolation from phases different than the one being worked on has always and will continue to be the primary form of defense against a phase to phase contact. The administrative control of cover on the way in and uncover on the way out ensures the cover-up equipment is placed from a position which isolates the worker. A worker will always cover the first phase from a position where he cannot reach the other phases. . . .

The terminology for maximum use voltage in ASTM F-819 has always recognized this work practice: Thus, the ability to use phase to ground voltage rated equipment is considered by the industry to be both prudent and safe. [Ex. 0227; emphasis included in original]

Mr. Thomas Taylor of Consumers Energy agreed that these practices isolate employees from multiphase exposure so that using equipment based on the phase-to-ground voltage is safe (Ex. 0177). Ms. Salud Layton of the Virginia, Maryland & Delaware Association of Electric Cooperatives similarly believed that using isolating work practices can minimize employee exposure. She stated that, while “isolation or insulation of the employee from differing potentials in the work zone is limited to the ability of the insulating equipment to cover exposed parts,” work practices can greatly minimize employee exposure (Ex. 0175).

IBEW did not specifically object to the language in the note to proposed Table E-4, but cautioned:

To ensure a worker is isolated from contact to an energized circuit, the isolating device has to physically prohibit the worker from making contact, and the device has to maintain the electrical integrity of the energized circuit. Although the isolating device does not need to be permanent, the device should have the physical strength to ensure isolation in the case of a slip or fall, and other types of unintentional movements. [Ex. 0230]

The union also maintained that “the insulating value of the equipment would have to be . . . rated at the phase-to-phase voltage of the circuit being worked” (id.).

Another commenter, however, objected to the preamble statements that permitted using phase-to-ground rated insulation, stating: “Industry practice has always been to use protective equipment rated for the phase-to-phase rms voltage” (Ex. 0184).

After considering the rulemaking record on this issue, OSHA concludes that the note to proposed Table E-4 is necessary and appropriate and has carried it forward into the final rule without substantive change. The comments broadly supported the proposed note. In addition, the note is identical to Note 1 to Table I-5 of existing § 1910.137. As observed by the commenters, when multiphase exposure has been removed, by either isolating or insulating the employee, the worker is adequately protected against electric shock from the remaining phase-to-ground exposure by using phase-to-ground rated electrical protective equipment. The extent to which the note was supported contradicts the comment that industry practice is to use phase-to-phase rated electrical protective equipment. To address IBEW's concerns, OSHA emphasizes that any insulation used to remove multiphase exposure must adequately protect workers carrying out their tasks from factors that could negate the insulation's purpose. These factors include, among other things, worker movements such as reaching for tools, adjusting clothing or personal protective equipment, and slips and falls. Finally, OSHA agrees with IBEW that insulation used to protect employees from phase-to-phase exposure must be rated for the phase-to-phase exposure. After all, until this protective equipment is installed, there is phase-to-phase exposure.

Paragraph (c)(2)(ii), which is being adopted substantially as proposed, requires insulating equipment to be visually inspected before use each day and immediately after any incident that can reasonably be suspected of causing damage. In this way, obvious defects can be detected before an accident occurs. Possible damage-causing incidents include exposure to corona and direct physical damage. Additionally, rubber gloves must be subjected to an air test, along with the visual inspection. In the field, this test usually consists of rolling the cuff towards the palm so that air is entrapped within the glove. In a testing facility, a mechanical inflater is typically used. In either case, punctures and cuts can easily be detected. The note following paragraph (c)(2)(ii) indicates that ASTM F1236-96 (2012), Standard Guide for Visual Inspection of Electrical Protective Rubber Products, contains information on how to inspect rubber insulating equipment and descriptions and photographs of potential irregularities in the equipment.

Electrical protective equipment could become damaged during use and lose some of its insulating value. Final paragraph (c)(2)(iii), which is being adopted without substantive change from the proposal, lists types of damage that cause the insulating value of rubber insulating equipment to drop, for example, a hole, tear, puncture, or cut, or an embedded foreign object. The equipment may not be used if any of the defects listed here or in paragraph (c)(2)(iii), or any other defect that damages its insulating properties, is present.

Defects other than those listed in paragraph (c)(2)(iii) might develop during use of the equipment and could also affect the insulating or mechanical properties of the equipment. If such defects are found, paragraph (c)(2)(iv), which is being adopted without change from the proposal, requires the equipment to be removed from service and tested in accordance with other requirements in paragraph (c)(2). The results of the tests will determine if it is safe to return the items to service.

Foreign substances on the surface of rubber insulating equipment can degrade the material and lead to damage to the insulation. Paragraph (c)(2)(v), which is being adopted as proposed, requires the equipment to be cleaned as needed to remove any foreign substances.

Over time, certain environmental conditions can also cause deterioration of rubber insulating equipment. Final paragraph (c)(2)(vi), which is being adopted without substantive change from the proposal, requires insulating equipment to be stored so that it is protected from damaging conditions and substances, such as light, temperature extremes, excessive humidity, and ozone. This requirement helps the equipment retain its insulating properties as it ages. OSHA has replaced the proposed term “injurious substances and conditions” with “damaging substances and conditions” to make it clear that the equipment must be protected from substances and conditions that might damage it rather than substances and conditions that could injure workers.

In connection with this requirement, the Agency does not believe that it is safe to store equipment on trucks for extended periods between use if such storage would expose the equipment to extremes of temperature or humidity. It may be necessary, under some circumstances, to store equipment indoors during prolonged periods when employees are not using the equipment. Workers are dependent upon electrical protective equipment for their safety, and all reasonable means of protecting it from unnecessary damage must be employed.

Rubber insulating gloves are particularly sensitive to physical damage during use. Through handling conductors and other electrical equipment, an employee can damage the gloves and lose the protection they provide. For example, a sharp point on the end of a conductor could puncture the rubber. To protect against damage, protector gloves (made of leather) are worn over the rubber gloves. Paragraph (c)(2)(vii) recognizes the extra protection afforded by leather gloves and requires their use over rubber gloves, except under limited conditions.

Proposed paragraph (c)(2)(vii)(A) provided that protector gloves are not required with Class 0 or Class 00 gloves under limited-use conditions, that is, when unusually high finger dexterity is needed for small equipment and parts manipulation. This exception is necessary to allow work to be performed on small energized parts. The Agency is adopting the proposed provision with one revision. Under paragraph (c)(2)(i) and Table E-4, which are being adopted without substantive change from the proposal, the maximum voltage on which Class 0 and Class 00 gloves can be used is 1,000 volts and 500 volts, respectively. Mr. James A Thomas, President of ASTM International, pointed out that Section 8.7.4 of ASTM F496 restricts the use of Class 00 rubber insulating gloves to voltages of 250 volts, ac, or less when they are used without protectors (Ex. 0148). Moreover, the consensus standard also includes a maximum dc voltage for Class 00 gloves used without protectors. Section 8.7.4 of ASTM F496-02a, Standard Specification for In-Service Care of Insulating Gloves and Sleeves, states:

Protector gloves may be omitted for Class 0 gloves, under limited use conditions, where small equipment and parts manipulation require unusually good finger dexterity. Under the same conditions, Class 00 gloves may be used without protectors, but only at voltages up to and including 250 V a-c or 375 V d-c. Other classes of gloves may be used without protector gloves for similar conditions only where the possibility of physical damage to the gloves is unlikely and provided the voltage class of the glove used is one class above the voltage exposure. Rubber insulating gloves that have been used without protectors shall not be used with protectors until given an inspection and electrical retest. [Ex. 0051]

Based on Section 8.7.4 of ASTM F496-02a, the Agency concludes that using Class 00 gloves without protectors on voltages above 250 volts, ac, or 375 volts, dc, is considered to be unsafe by the experts on the consensus standards committee. [32] In the final rule, OSHA has therefore included a new paragraph (c)(2)(vii)(B) addressing the use of Class 00 gloves and incorporating these two voltage restrictions on the use of Class 00 gloves without protectors. Consequently, OSHA renumbered proposed paragraphs (c)(2)(vii)(B) and (c)(2)(vii)(C) as paragraphs (c)(2)(vii)(C) and (c)(2)(vii)(D), respectively, and is adopting them without substantive change.

As noted earlier, if protector gloves are not worn, there is a danger a sharp object could puncture the rubber. The resulting hole could endanger employees handling live parts because of the possibility that current could arc through the hole to the employee's hand or that leakage could develop and expose the employee to electric shock. At 250 volts, ac, or less, or 375 volts, dc, or less, for Class 00 gloves, and at 1,000 volts or less for Class 0 gloves, the danger of current passing through a hole is low, and an employee is protected against electric shock as long as the live part itself does not puncture the rubber and contact the employee's hand (59 FR 4328). Although the type of small parts, such as small nuts and washers, encountered in work covered by the exception are not likely to do this, the danger still exists (id.). OSHA, therefore, is adopting, without substantive change from the proposal, a note to final paragraph (c)(2)(vii)(A) that provides that persons inspecting rubber insulating gloves used under these conditions need to take extra care in visually examining them and that employees using the gloves under these conditions need to take extra care to avoid handling sharp objects.

Under paragraph (c)(2)(vii)(C), classes of rubber insulating gloves other than Class 0 and Class 00 may be used without protector gloves only if: (1) The employer can demonstrate that the possibility for physical damage to the glove is small, and (2) gloves at least one class higher than required for the voltage are used. For example, if a Class 2 glove is used at 7,500 volts or less (the maximum use voltage for Class 1 equipment pursuant to Table E-4) and the employer can demonstrate that the possibility of damage is low, then protector gloves need not be used. The final rule ensures that, under the conditions imposed by the exception, damage is unlikely, and the rule further reduces the risk to the employee by requiring thicker insulation as a measure of extra physical protection that will better resist puncture during use. [33] In addition, the consensus standard permits these classes of rubber insulating gloves to be used without protectors under the same conditions (Ex. 0051). This exception does not apply when the possibility of damage is significant, such as when an employee is using a knife to trim insulation from a conductor or when an employee has to handle moving parts, such as conductors being pulled into place.

Mr. Brockman with Farmers Rural Electric Cooperative Corporation recommended, without explanation, that there should be no exception permitting the use of rubber insulating gloves above Class 0 without protectors (Ex. 0173).

The Agency rejects this recommendation. OSHA has explained that it is safe to use Class 1 and higher rubber insulating gloves without protectors under the conditions imposed by final paragraph (c)(2)(vii)(C). OSHA notes, however, that electric power generation, transmission, and distribution work covered by § 1910.269 and subpart V will nearly always pose a substantial probability of physical damage to rubber insulating gloves worn without protectors. Thus, the exception contained in paragraph (c)(2)(vii)(C) will rarely apply when rubber insulating gloves are used for that type of work. However, electrical protective equipment covered by § 1926.97 is used outside of electric power generation, transmission, and distribution work, and there may be rare cases in these other types of work, for example, in product manufacturing or testing laboratories, in which the possibility of damage is slight.

To ensure that no loss of insulation has occurred, paragraph (c)(2)(vii)(D) prohibits any rubber insulating gloves used without protector gloves from being reused until the rubber gloves have been tested in accordance with paragraphs (c)(2)(viii) and (c)(2)(ix), which address required test voltages and the adequacy of the test method, respectively. It should be noted that this testing is required regardless of whether the glove is Class 0 or 00, as permitted in paragraphs (c)(2)(vii)(A) and (c)(2)(vii)(B), or is Class 1 or higher, as permitted in paragraph (c)(2)(vii)(C).

The National Electrical Contractors Association (NECA) and several NECA chapters objected to the requirement to test rubber insulating gloves after use without protectors. (See, for example, Exs. 0127, 0171, 0172, 0188.) They argued that there was no safety benefit and that the increased frequency of testing would be a burden on employers. For example, NECA stated:

The preamble doesn't include any information on electrical injuries resulting from the failure of insulated gloves used without leather protectors. Thus, requiring insulating gloves to be retested after each use without a protector is a burden upon the employer without offering any additional safety to employees. When using gloves in Classes 1-4, protectors often must be removed for reasons of manual dexterity, but the parts being worked on are fairly large which minimizes the likelihood for damage. Current techniques of inspecting and air-testing insulating gloves are sufficient to identify damaged gloves. [Ex. 0171]

Another commenter, Mr. Tom Chappell of the Southern Company, argued that an accelerated testing schedule (every 90 days instead of every 6 months) should be an acceptable alternative to testing each time a rubber insulating glove is used without a protector (Ex. 0212).

OSHA disagrees with these objections. First, the consensus standard also contains this requirement, which indicates that the consensus of expert opinion considers that the requirement provides necessary additional safety to employees (Ex. 0051). Second, a visual inspection and air test may not detect minor damage that a voltage test will. Even Mr. Chappell believes that additional testing is required to supplement the visual inspection. Third, testing on an accelerated schedule would allow such damage to go undetected until the next test, which could be as long as 89 days under Mr. Chappell's recommended testing regimen. Fourth, OSHA believes that the requirement to test rubber insulating gloves used without protectors will strongly discourage any unnecessary use of the gloves without protectors because of the expense of the test and because testing gloves shortens their useful life. Finally, any additional burden on employers is insubstantial, as employers are already required to do much of the testing specified by the final rule. In addition, existing § 1910.137(b)(2)(vii)(B) already requires gloves used without protectors to be tested before being used at a higher voltage. [34] Therefore, OSHA has carried forward proposed paragraph (c)(2)(vii)(C) into the final rule without change.

Paragraph (c)(2)(viii), which is being adopted as proposed, requires insulating equipment to be tested periodically at the test voltages and testing intervals specified in Table E-4 and Table E-5, respectively. These tests will verify that electrical protective equipment retains its insulating properties over time. Table E-4 lists the retest voltages that are required for the various classes of protective equipment, and Table E-5 presents the testing intervals for the different types of equipment. These test voltages and intervals were derived from the relevant ASTM standards.

Mr. Thomas Frank of Ameren Company objected to the inclusion of rubber insulating line hose in proposed Table E-4 and Table E-5 (Ex. 0209). He argued that the applicable consensus standard does not designate a test method for this equipment.

OSHA disagrees with this objection. Contrary to Mr. Frank's assertion, ASTM D1050, Standard Specification for Rubber Insulating Line Hose, does contain test methods for rubber insulating line hose (Ex. 0068). [35] Table E-5, which specifies test intervals for rubber insulating equipment, only requires testing of line hose either when the insulating value is suspect [36] or after repair. In these cases, testing is the only way of ensuring that the insulating properties of the equipment are at an acceptable level (id.). After all, paragraph (a)(2)(i) requires rubber insulating equipment to be capable of passing electrical tests. When the insulating value of the equipment is suspect, or when the equipment has been altered, as it will have been during any repair, there is simply no way other than testing to determine whether the equipment retains the required insulating value. Therefore, OSHA has carried proposed Table E-4 and Table E-5 into the final rule without substantive change.

Paragraph (c)(2)(ix), which is being adopted without change from the proposal, establishes a performance-oriented requirement that the method used for the tests required by paragraphs (c)(2)(viii) and (c)(2)(xi) (the periodic and postrepair tests, respectively) give a reliable indication of whether the electrical protective equipment can withstand the voltages involved. As this is a performance-oriented standard, OSHA does not spell out detailed procedures for the required tests, which will obviously vary depending on the type of equipment being tested.

Following paragraph (c)(2)(ix) is a note stating that the electrical test methods in various listed ASTM standards on rubber insulating equipment will be deemed to meet the performance requirement. As mentioned earlier, this note does not mean that OSHA is adopting the listed ASTM standards by reference. In enforcing § 1926.97(c)(2)(ix), the Agency will accept any test method that meets the performance criteria of the OSHA standard.

Once equipment has undergone in-service inspections and tests, it is important to ensure that any failed equipment is not returned to service. Final paragraph (c)(2)(x), which is being adopted without change from the proposal, prohibits the use of electrical protective equipment that failed the required inspections and tests. Paragraph (c)(2)(x) does, however, list the following acceptable means of eliminating defects and rendering the equipment fit for use again.

The final standard permits defective portions of rubber line hose and blankets to be removed in some cases. The result would be a smaller blanket or a shorter length of line hose. Under the standard, Class 1, 2, 3, and 4 rubber insulating blankets may only be salvaged by severing the defective portions of the blanket if the resulting undamaged area is at least 560 millimeters by 560 millimeters (22 inches by 22 inches). For these classes, smaller sizes cannot be reliably tested using standard test methods. Although the standard does not restrict the size of Class 0 blankets, OSHA believes that practical considerations in testing and using Class 0 blankets will force employers to similarly limit the size of these blankets when they have been repaired by cutting out a damaged portion.

Obviously, gloves and sleeves cannot be repaired by removing a defective portion; however, the final standard permits patching rubber insulating gloves and sleeves if the defects are minor. Blankets may also be patched under certain circumstances. Moreover, rubber insulating gloves and sleeves with minor surface blemishes may be repaired with a compatible liquid compound. In all cases (that is, whether a patch is applied or a liquid compound is employed), the repaired area must have electrical and physical properties equal to those of the material being repaired.

Repairs performed in accordance with the standard are unlikely to fail because the rule requires the use of compatible patches or compatible liquid compounds and requires the repaired area to have electrical and physical properties equal to those of the surrounding material. However, to minimize the possibility that glove repairs will fail, repairs to rubber insulating gloves outside the gauntlet area (that is, the area between the wrist and the reinforced edge of the opening) are not allowed. OSHA stresses that the final rule does not permit repairs in the working area of the glove, where the constant flexing of the rubber during the course of work could loosen an ill-formed patch. A failure of a patch or liquid compound in this area of the glove would likely lead to injury very quickly. On the other hand, the gauntlet area of rubber insulating gloves is not usually in direct contact with energized parts. If a patch fails in this area, a worker is much less likely to be injured.

Farmers Rural Electric Cooperative Corporation recommended, without explanation, that OSHA not permit patching of rubber insulating gloves and sleeves (Ex. 0173). OSHA rejects this recommendation. OSHA has explained that it is safe only to patch insulating gloves and sleeves under the conditions imposed by final paragraph (c)(2)(x)(D).

Once the insulating equipment has been repaired, it must be retested to ensure that any patches are effective and that there are no other defects present. Such retests are required under paragraph (c)(2)(xi), which is being adopted without change from the proposal.

Employers, employees, and OSHA compliance staff must have a method of determining whether the tests required under this section have been performed. Paragraph (c)(2)(xii) requires this determination to be accomplished by means of certification by the employer that equipment has been tested in accordance with the standard. The certification is required to identify the equipment that passed the test and the date it was tested. Typical means of meeting this requirement include logs and stamping test dates on the equipment. A note following paragraph (c)(2)(xii) explains that these means of certification are acceptable. As explained under the summary and explanation for paragraph (a)(1)(ii) earlier in this section of the preamble, the final rule, unlike the proposal, includes an explicit requirement that employers make this certification available upon request to employees and their authorized representatives. OSHA has also clarified the requirement to indicate that the certification records must be made available upon request to the Assistant Secretary for Occupational Safety and Health.

B. Subpart V, Electric Power Transmission and Distribution

OSHA is revising subpart V of its construction standards. This subpart contains requirements designed to prevent deaths and other injuries to employees performing construction work on electric power transmission and distribution installations. OSHA based the revision of subpart V primarily on the general industry standard at § 1910.269, Electric power generation, transmission, and distribution, which the Agency promulgated in January 1994. The final standard revises the title of subpart V from “Power Transmission and Distribution” to “Electric Power Transmission and Distribution” to make it clear that the subpart addresses “electric” power transmission and distribution (and not mechanical power transmission) and to match the title of § 1910.269 more closely.

1. Section 1926.950, General

Section 1926.950 defines the scope of final subpart V and includes, among other provisions, general requirements for training and the determination of existing workplace conditions. Paragraph (a)(1)(i) of final § 1926.950 is adopted without change from proposed § 1926.950(a)(1) and sets the scope of revised subpart V. This paragraph has been taken largely from existing § 1926.950(a) and (a)(1). Subpart V applies to the construction of electric power transmission and distribution installations. In accordance with existing § 1926.950(a)(1) and § 1910.12(d), paragraph (a)(1)(i) of final § 1926.950 provides that “construction” includes the erection of new electric transmission and distribution lines and equipment, and the alteration, conversion, and improvement of existing electric transmission and distribution lines and equipment.

As noted in Section II, Background, earlier in this preamble, rulemaking participants generally supported OSHA's goal of providing consistency between § 1910.269 and subpart V. However, many commenters urged the Agency to combine § 1910.269 and subpart V into a single standard applicable to all electric power generation, transmission, and distribution work. (See, for example, Exs. 0099, 0125, 0127, 0146, 0149, 0151, 0152, 0153, 0156, 0159, 0161, 0164, 0172, 0175, 0179, 0180, 0183, 0186, 0188, 0202, 0206, 0225, 0226, 0229, 0231, 0233, 0239, 0241, 0401; Tr. 291-294, 542-543, 1235-1236, 1282-1283, 1322, 1332.) These rulemaking participants argued that several benefits would result from combining § 1910.269 and subpart V into a single standard, including:

  • Lessening confusion—a single standard would eliminate questions about whether work is construction or maintenance and ensure uniform interpretations for all generation, transmission, and distribution work (see, for example, Exs. 0146, 0151, 0152, 0156, 0175, 0183, 0202, 0233);
  • Facilitating compliance and reducing costs—under a single standard, employers would be able to train workers in a single set of rules rather than one set for construction and another set for maintenance (Tr. 293-294); and
  • Eliminating the need to maintain and update two standards over time (see, for example, Exs. 0127, 0149, 0152, 0179).

OSHA is rejecting these recommendations to combine § 1910.269 and subpart V into a single standard. First, OSHA does not believe that employers will have to maintain separate sets of rules for construction and maintenance. Because the final rule largely adopts identical requirements for construction and maintenance, OSHA expects that employers will be able to fashion a single set of rules, consistent with both § 1910.269 and subpart V, that apply regardless of the type of work being performed. In the final standard, OSHA is adopting different rules in a few cases, based on fundamental differences between the other construction standards in part 1926 and the general industry standards in part 1910. For example, § 1910.269 and subpart V reference the general industry and construction standards on medical services and first aid in §§ 1910.151 and 1926.50, respectively. These general industry and construction standards set slightly different requirements for medical services and first aid. Similarly, § 1910.269 and subpart V separately reference the general industry and construction standards on ladders. The differences between the construction and general industry standards that may apply to electric power generation, transmission, and distribution work go well beyond the few examples described here. It is beyond the reach of this rulemaking to unify all of the different general industry and construction standards that apply to electric power generation, transmission, and distribution work. Consequently, any employer that performs both general industry and construction work will need to ensure compliance with applicable provisions in both part 1910 and part 1926. Even if OSHA were to adopt one electric power generation, transmission, and distribution standard, employers would still be faced with differences between other requirements in the general industry and construction standards.

Second, commenters' concerns over differences in language and interpretation are largely unfounded. As noted in the preamble to the proposal, one of the primary goals of this rulemaking is to make the requirements for construction and maintenance consistent with one another. The Agency will take steps to ensure that interpretations of identical requirements in the two standards are the same. Toward this end, the Agency is including a note to final § 1926.950(a)(1)(i) to indicate that an employer that complies with § 1910.269 generally will be considered in compliance with the requirements in subpart V. There is a minor exception for provisions in subpart V that incorporate by reference requirements from other subparts of part 1926. For those provisions of subpart V, the employer must comply with the referenced construction standards; compliance with general industry standards referenced in comparable provisions of § 1910.269 will not be sufficient. The new note to § 1926.950(a)(1) should allay the concerns of commenters about potentially inconsistent interpretations of identical requirements in § 1910.269 and subpart V. The note should also assure employers that they can adopt uniform work practices for the construction, operation, and maintenance of electric power generation, transmission, and distribution installations with regard to these requirements.

Ameren Corporation was concerned that OSHA would “make significant and costly changes to the current 1910.269 standard without adequately providing the opportunity for utilities to study and comment on the impact to these changes” (Ex. 0209). The company requested that the Agency provide the utility industry with an opportunity to comment on any changes to existing § 1910.269 that were not identified in the proposal.

OSHA does not believe additional notice and opportunity for comment is necessary for any of the revisions to § 1910.269 being made in this final rule. In the preamble to the proposed rule, the Agency stated:

OSHA expects that final Subpart V will differ from proposed Subpart V because of changes adopted based on the rulemaking record. When the final rule is published, the Agency intends to make corresponding changes to § 1910.269 to keep the two rules the same, except to the extent that substantial differences between construction work and general industry work warrant different standards. [70 FR 34892]

The Agency met this objective in this final rule. OSHA concludes that any revisions to existing § 1910.269 adopted in the final rule are based on the record considered as a whole and are a logical outgrowth of the rulemaking record.

Mr. Anthony Ahern with Ohio Rural Electric Cooperatives recommended that OSHA combine §§ 1910.137 and 1926.97, or simply reference § 1910.137, instead of creating a new section on electrical protective equipment in the construction standards (Ex. 0186).

OSHA rejects this request. New § 1926.97 applies to all of construction, not just electric power generation, transmission, and distribution work. Final § 1926.97 imposes no additional burden on employers beyond what would apply under § 1910.137. Duplicating the § 1910.137 requirements in part 1926 meets the needs of construction employers and employees for ready access to the protective equipment standards that are applicable to their work.

Ms. Salud Layton of the Virginia, Maryland & Delaware Association of Electric Cooperatives objected to the word “improvement” in proposed § 1926.950(a)(1) (Ex. 0175). Ms. Layton also expressed concern about a part of the preamble to the proposed rule in which OSHA used the term “repair” to describe construction activities (id.). She commented:

As defined in the regulation, “construction” includes “erection of new transmission and distribution lines and equipment, and the alteration, conversion, and improvement of existing electric transmission and distribution lines and equipment.[”] While “alteration” and “conversion” can be construed as construction activities, the term “improvement” is too broad. Many maintenance activities are considered improvements. Additionally, the preamble uses the term “repair” in describing construction activities. Repairs are typically considered maintenance activities in our industry, further complicating this issue. [id.]

OSHA considered Ms. Layton's comments, but decided to adhere to its longstanding practice of treating “improvements” and “repairs” as construction. The term “improvement” has been a part of the definition of construction work under Subpart V for decades. Furthermore, as noted earlier, this definition is codified in 29 CFR 1910.12(d). In addition, removing the term would have no practical effect on the definition, as all improvements are “alterations,” a term to which she did not object. OSHA has consistently treated “repairs” as construction work as well. See § 1910.12(b) (“Construction work means work for construction, alteration, and/or repair. . . .”). OSHA recognizes that there may not always be a clear distinction between construction repair and general industry maintenance and has provided clarification in numerous letters of interpretation, including the Agency's Memorandum for Regional Administrators dated August 11, 1994. [37] That memorandum explains construction work as follows:

[C]onstruction work is not limited to new construction. It includes the repair of existing facilities. The replacement of structures and their components is also considered construction work.

* * * * *

There is no specified definition for “maintenance”, nor a clear distinction between terms such as “maintenance”, “repair”, or “refurbishment.” “Maintenance activities” can be defined as making or keeping a structure, fixture or foundation (substrates) in proper condition in a routine, scheduled, or anticipated fashion. This definition implies “keeping equipment working in its existing state, i.e., preventing its failure or decline.” However, this definition, (taken from the directive on confined spaces) is not dispositive; and, consequently, determinations of whether a contractor is engaged in maintenance operations rather than construction activities must be made on a case-by-case basis, taking into account all information available at a particular site. [Emphasis included in original.]

(See also, for example, letter to Raymond Knobbs (Nov. 18, 2003) and letter to Randall Tindell (Feb. 1, 1999). [38] ) In addition, the Occupational Safety and Health Review Commission (OSHRC) has addressed this issue. (See, for example, Gulf States Utilities Co., 12 BNA OSHC 1544 (No. 82-867, Nov. 20, 1985).) In any event, one of OSHA's primary objectives in this rulemaking is to make § 1910.269 and subpart V more consistent with each other. Therefore, going forward, the distinction between construction and maintenance will be of much less significance to employers covered by these standards. Even Ms. Layton recognized that her concern about the definition of construction was only relevant “[i]f the regulations are not the same” (Ex. 0175). The proposed definition of “construction” in § 1926.950(a)(1) is, therefore, being carried forward into the final rule without change.

Mr. Kenneth Stoller of the American Insurance Association inquired about the applicability of the revised standards to insurance industry employees, stating:

AIA is concerned that the new contractor obligations contemplated by the proposal with respect to training, reporting, record-keeping and personal protective equipment may unintentionally apply to insurance industry employees, whose only obligation is to inspect—but not work on—some of the electrical equipment in question. While our members are neither electrical utilities nor electrical construction companies, some of their commissioned inspectors are required to visit and inspect equipment that is both energized and open. In addition, some state laws identify certain equipment (such as pressure vessels) located within close proximity to energized and open electrical apparatus that must be inspected periodically.

Subjecting insurers to these new requirements would require individual companies to spend tens of thousands of dollars per year for additional training and equipment, notwithstanding the fact that the proposal's preamble indicates that these obligations should only apply to entities performing maintenance and repairs, not simply inspections. Accordingly, we recommend that the proposal be amended to explicitly exempt insurance industry employees from any obligations it places on contractors. [Ex. 0198]

OSHA considered this comment, but will not be exempting insurance industry employees from the final rule. Existing § 1910.269 already covers inspections of electric power generation, transmission, and distribution installations performed by insurance company workers as work “directly associated with” these installations. In this regard, existing § 1910.269(a)(1)(i)(D) states that “[§ 1910.269 applies to:] (D) Work on or directly associated with [electric power generation, transmission, and distribution and other covered] installations. . . .” OSHA, therefore, interprets existing § 1910.269(a)(1)(i)(D) as applying to inspections conducted by insurance company employees because the purpose of these inspections is to assure the safety of these installations and employees working on or near them. Insurance inspections are similar to inspections conducted by electric utilities and their contractors. The preamble to the 1994 final rule adopting § 1910.269 specifically listed “inspection” as an activity covered by that standard (59 FR 4333). Section 1910.269 applies to this type of work without regard to the industry of the employer that has employees performing the inspections. [39] Thus, existing § 1910.269 covers this work as it pertains to general industry and will continue to cover this work after the final rule becomes effective. However, insurance inspections may fall under subpart V, instead of § 1910.269, to the extent the inspections are construction work. Whether an insurance inspection constitutes construction depends on the characteristics of the work performed. (See, for example, CH2M Hill, Inc. v. Herman, 192 F.3d 711 (7th Cir. 1999).)

OSHA does not believe that the final rule will impose substantial additional costs on the insurance industry. Existing § 1910.269 currently covers the vast majority of insurance inspections on electric power installations. Of the new provisions this final rule is adding to § 1910.269, the ones that impose the greatest costs on all employers are unlikely to impose significant economic burdens on inspections conducted by insurance industry workers. First, the minimum approach distance and arc-flash-protection requirements usually will not apply to the insurance industry because insurance industry inspectors will almost never be qualified employees (see final §§ 1910.269(l) and 1926.960). [40]

Second, the host-contractor provisions in §§ 1910.269(a)(3) and 1926.950(c) should not impose significant costs on the insurance industry. As explained in Section VI, Final Economic Analysis and Regulatory Flexibility Analysis, later in this preamble, OSHA estimated the costs of the host-contractor provisions on a per-project basis; that is, employers will incur costs once for each project. OSHA believes that its estimate of the number of projects fully accounts for projects that involve inspections, including insurance inspections, of electric power generation, transmission, and distribution installations, though OSHA allocated the costs to contract employers generally. OSHA anticipates that the number of insurance inspections will be a small fraction of the number of overall projects. If 1 in every 1,000 projects involves an insurance inspection, then the total costs related to employers' complying with the host-contractor provisions for insurance inspections would be less than $20,000 per year, half of which host employers would bear. The Agency deems such costs an inconsequential portion of the overall costs of the final rule and not significant for the insurance industry.

Third, OSHA does not believe that insurance inspections will typically involve employees working from aerial lifts or on poles, towers, or similar structures covered by the personal protective equipment requirements in final §§ 1910.269(g)(2)(iv)(C) and 1926.954(b)(3)(iii). Mr. Stoller's lone example of work potentially affected by the final rule, the inspection of pressure vessels, is not generally covered by those provisions, which primarily affect work involving overhead transmission and distribution lines. OSHA is unaware of any other insurance inspection work that would involve employees working from aerial lifts or on poles, towers, or similar structures. Even if such inspections are taking place, they should be rare, and the Agency deems costs associated with such inspections an inconsequential portion of the overall costs of the final rule, and inconsequential as well for the insurance industry.

Paragraph (a)(1)(ii) of final § 1926.950 provides that subpart V does not apply to electrical safety-related work practices for unqualified employees. Electrical safety-related work-practice requirements for these employees are contained in other subparts of part 1926, including subparts K, N, and CC. For example, § 1926.416(a)(1) in subpart K prohibits employers from permitting an employee to work in such proximity to any part of an electric power circuit that the employee could contact the electric power circuit in the course of work, unless the employee is protected against electric shock by deenergizing the circuit and grounding it or by guarding it effectively by insulation or other means. Deenergizing circuits and insulating them from employees protects unqualified employees from electric shock. By contrast, subpart V, in final § 1926.960(b)(1)(i), permits only qualified employees to work on or with exposed energized lines or parts of equipment. Final § 1926.960(c)(1)(iii) requires the employer to ensure that no employee approaches or takes any conductive object closer to exposed energized parts than the minimum approach distances, established by the employer under final § 1926.960(c)(1)(i), unless the employee is insulated from the energized part (for example, with rubber insulating gloves and sleeves), or the energized part is insulated from the employee and from any other conductive object at a different potential, or the employee is performing live-line barehand work in accordance with § 1926.964(c).

Subpart CC generally requires employers to ensure that employees maintain minimum clearances when operating cranes or derricks near overhead power lines. Paragraph (a)(6) of § 1926.600 also generally requires minimum clearances when mechanical equipment is operated near overhead power lines. In part because subpart V establishes requirements for qualified employees operating mechanical equipment, § 1926.959(d)(1) of this final rule generally requires mechanical equipment, including cranes and derricks, to maintain minimum approach distances that are significantly less than the minimum clearance distances in either § 1926.600(a)(6) or subpart CC.

OSHA did not expressly propose to exempt electrical safety-related work practices used by unqualified employees from subpart V; however, the preamble to the proposal made it clear that subpart V's requirements did not apply to electrical safety-related work practices used by unqualified employees. (See, for example, 70 FR 34857.) Specifically, the Agency stated: “The general approach taken in the proposed revision of Subpart V is to provide safety-related work practices for qualified employees to follow when they are performing electric power transmission and distribution work. Safe work practices for unqualified employees are not addressed in proposed Subpart V . . .” (70 FR 34857). Information in the record shows that the requirements in subpart V are not sufficiently protective for unqualified employees. (See, for example, Exs. 0077, 0134.) For example, NFPA 70E contains electrical safety-related work practice requirements to protect unqualified employees from electrical hazards posed by electric power transmission and distribution installations (Ex. 0134). [41] The consensus standard requires unqualified employees to maintain minimum approach distances that are substantially greater than the minimum approach distances in Subpart V.

OSHA designed subpart V to mirror the requirements in § 1910.269. Existing § 1910.269(a)(1)(i)(A), which is being adopted in the final rule without substantive change, provides that § 1910.269 applies to “[p]ower generation, transmission, and distribution installations, including related equipment for the purpose of communication or metering, which are accessible only to qualified employees.” Existing (and final) § 1910.269(a)(1)(ii)(B) explicitly excludes “electrical safety-related work practices . . . covered by subpart S of this part” from coverage. According to § 1910.331(b), subpart S covers electrical safety-related work practices for unqualified employees working on, near, or with installations for the generation, transmission, or distribution of electric energy. Thus, § 1910.269 does not apply to electrical safety-related work practices for unqualified employees.

In conclusion, OSHA notes that the electrical safety-related work practices required by Subpart V do not provide sufficient protection for unqualified employees. Therefore, Subpart V does not and should not cover such work practices. The final rule, in § 1926.950(a)(1)(ii), expressly clarifies that Subpart V does not cover electrical safety-related work practices for unqualified employees.

Paragraph (a)(2) of final § 1926.950, which is being adopted without change from the proposal, explains that subpart V applies in addition to all other applicable standards contained in part 1926. This paragraph also provides that employers doing work covered by subpart V are not exempt from complying with other applicable provisions in part 1926 by the operation of § 1910.5(c). Paragraph (a)(2) also clarifies that specific references in subpart V to other sections of part 1926 are provided for emphasis only. In accordance with this provision, all construction industry standards continue to apply to work covered by subpart V unless there is an applicable exception in subpart V or elsewhere in part 1926. For example, § 1926.959(a)(2) requires the critical safety components of mechanical elevating and rotating equipment to be visually inspected before each shift. This provision does not supersede § 1926.1412(d), which details specific requirements for the visual inspection of cranes each shift by a competent person. In a change that OSHA considers nonsubstantive, § 1910.269(a)(1)(iii) is being amended to include language equivalent to that in § 1926.950(a)(2).

Subpart V has never applied to work on electric power generation installations. Proposed § 1926.950(a)(3) provided that § 1910.269 would cover all work, including construction, involving electric power generation installations. In the preamble to the proposal, the Agency explained that the construction of an electric power generation station normally poses only general construction hazards, that is, hazards not addressed by subpart V (70 FR 34833). OSHA recognized, however, the following two exceptions to this conclusion: (1) during the final phase of construction of a generating station, when electrical and other acceptance testing of the installation is being performed, and (2) during “reconstruction,” when portions of the generating station not undergoing construction are still in operation (id.). In both of these scenarios, construction work at a generation station exposes workers to hazards akin to those posed by the operation and maintenance of a generation plant. Because the Agency believed that these two operations were more like general industry work than construction, it deemed it appropriate for employers to follow § 1910.269 in those situations (id.). Rather than repeat the relevant portions of § 1910.269 in subpart V, OSHA proposed that § 1910.269 apply to all work involving electric power generation installations.

The Agency requested comments on whether § 1910.269 should apply to all work involving electric power generation installations, as proposed, or whether instead the relevant requirements from § 1910.269 should be contained in final subpart V for purposes of construction work involving electric power generation installations. OSHA received numerous responses to this request. (See, for example, Exs. 0125, 0127, 0130, 0149, 0151, 0155, 0159, 0162, 0163, 0172, 0177, 0179, 0186, 0188, 0201, 0208, 0209, 0212, 0213, 0227, 0230.) Commenters largely supported OSHA's proposed approach and the language making § 1910.269 applicable to all work involving electric power generation installations. For example, Mason County Public Utility District 3 commented: “We believe the proposed language referencing 1910.269 for all work involving electric power generation installations should be adopted” (Ex. 0125). Siemens Power Generation responded similarly, explaining, “Subpart V should not apply to the electric power generation installations [because m]aintenance in these installations is covered adequately by 1910.269 and construction is covered adequately by general construction requirements” (Ex. 0163). In addition, Mr. Tom Chappell of Southern Company agreed with OSHA that “[a]pplying 1910.269 during the ‘final phase of construction’ or ‘reconstruction work’ would be preferable to recreating the same requirements in Subpart V” (Ex. 0212).

On the other hand, NIOSH suggested that it “would be less burdensome” for employers if the relevant requirements for construction at generation installations were incorporated in subpart V (Ex. 0130). In addition, MYR Group was concerned that OSHA's proposed approach could lead to confusion, explaining:

[A]pplying part 1910 electrical standards [to construction work involving generation installations] would cause confusion as to whether other applicable general industry or construction standards would govern the remaining aspects of such work. Thus, OSHA's proposal—based on an alleged simplification—does itself create confusion. [Ex. 0162]

OSHA considered these comments, but does not believe that applying § 1910.269 to construction involving generation installations is likely to result in any heavy burdens or confusion. OSHA's construction standards (29 CFR part 1926) apply to general construction activities performed at generation installation sites. As previously explained, § 1910.269 generally will not apply to the original construction of a generating station until the final phase of construction, when many of the provisions in § 1910.269 become applicable. For example, in the early construction phases, the generation installation would contain no energized circuits, so the provisions for working near energized parts in § 1910.269(l) would not apply. Similarly, in the construction of a coal-fired generating station, the requirements in § 1910.269(v)(11) on coal handing would have no application until coal is present. To the extent an employer is performing late-stage construction or reconstruction of a generation installation and § 1910.269 applies, the provisions of § 1910.269 supplement, but do not replace, any relevant general construction requirements. (See §§ 1910.269(a)(1)(iii) and 1926.950(a)(2).) For example, the training requirements in § 1910.269(a)(2) apply in addition to any applicable training requirements in part 1926. [42]

With this additional clarification and the support of most of the commenters who provided feedback on this issue, the Agency is adopting proposed § 1926.950(a)(3) as it relates to the construction of electric power generation installations. [43]

Another coverage issue raised in the proposal relates to line-clearance tree trimming, which is currently addressed in § 1910.269. [44] (See existing § 1910.269(a)(1)(i)(E).) As OSHA explained in the preamble to the proposal, line-clearance tree trimming is not normally performed as part of the construction of electric power transmission or distribution installations (70 FR 34833). One exception occurs when trees are trimmed along an existing overhead power line to provide clearance for a new transmission or distribution line that is under construction (id.). While this type of work by line-clearance tree trimmers is properly classified as construction work, it shares many similarities with the work done by line-clearance tree trimmers that is properly classified as general industry work. [45] For this reason, as well as for ease of compliance and enforcement, proposed § 1926.950(a)(3) provided that § 1910.269 would apply to all line-clearance tree-trimming operations, even those that might be considered construction. OSHA requested comments on whether § 1910.269 should apply to all work involving line-clearance tree trimming, as proposed, or whether the relevant requirements from § 1910.269 should be contained in subpart V.

The Agency received a handful of comments on this issue. (See, for example, Exs. 0175, 0186, 0201, 0213, 0230.) These comments generally supported OSHA's proposed approach. For example, Mr. Anthony Ahern of Ohio Rural Electric Cooperatives agreed that OSHA need not duplicate the line-clearance tree-trimming requirements from § 1910.269 in subpart V (Ex. 0186). Also, Mr. James Gartland of Duke Energy commented that the requirements for line-clearance tree-trimming operations should be covered exclusively under § 1910.269, explaining that line-clearance tree-trimming operations are the same whether one considers the work to be general industry or construction (Ex. 0201).

IBEW asked OSHA to clarify whether § 1910.269 would apply even to tree-trimming operations that could be considered “construction,” for example clearing around existing energized facilities for a new right of way (Ex. 0230). OSHA is applying § 1910.269 in those circumstances. Given that clarification, IBEW agreed that the § 1910.269 requirements for line-clearance tree-trimming operations do not need to be repeated in subpart V (Ex. 0230). In light of the commenters' support, OSHA is adopting § 1926.950(a)(3) as proposed with respect to line-clearance tree trimming. [46]

Although the tree trimming industry did not object to covering all line-clearance tree trimming in § 1910.269, representatives of the industry urged the Agency to expand the scope of covered line-clearance tree-trimming activities by broadening the definition of that term. (See, for example, Exs. 0174, 0200, 0502, 0503; Tr. 620-628, 765-769.) The proposed definition of “line-clearance tree trimming” in § 1926.968, which was based on existing § 1910.269(x), read as follows:

The pruning, trimming, repairing, maintaining, removing, or clearing of trees or the cutting of brush that is within 3.05 m (10 feet) of electric supply lines and equipment.

The Utility Line Clearance Coalition (ULCC) commented that the definition of line-clearance tree trimming should not be limited to trees within 3.05 meters (10 feet) of an electric supply line. ULCC requested that OSHA expand the definition of “line-clearance tree trimming” to include all vegetation management work done by line-clearance tree trimmers and trainees for the construction or maintenance of electric supply lines or for electric utilities (Ex. 0502). The Tree Care Industry Association (TCIA) proposed the same change to the definition of “line-clearance tree trimming” (Ex. 0503). Both tree trimming trade associations recommended that the definition of “line-clearance tree trimming” be revised to read as follows:

The pruning, trimming, repairing, maintaining, removing, treating or clearing of trees or the cutting of brush (vegetation management) that is within 10 feet (305 cm) of electric supply lines and equipment, or vegetation management work performed by line clearance tree trimmer/trainees for the construction or maintenance of electric supply lines and/or for electric utilities. [Exs. 0502, 0503]

The industry provided three main arguments in support of its recommendation to expand the scope of tree-trimming work covered by § 1910.269. For the reasons described later, OSHA is not persuaded by the industry's arguments and will not be expanding the definition of “line-clearance tree trimming” to include all vegetation management work for the construction or maintenance of electric supply lines or for electric utilities. However, OSHA is making some changes to the definition of “line-clearance tree trimming” that will broaden, in a limited manner, the scope of tree-trimming operations covered by § 1910.269. These changes are discussed later in this section of the preamble.

The tree trimming industry's first argument in support of its recommended definition is that the “10-foot rule” (as they described it) contradicts other portions of § 1910.269. Joe Tommasi of the Davey Tree Expert Company, testifying on behalf of ULCC, noted:

[T]he minimum separation distances tables in the standard requires [sic] a line clearance arborist to maintain more than ten feet from some lines depending on the voltage exposures, but at the same time, the definition says that such work is not subject to [the] line clearance tree trimming standard because the standard [applies] only to trees that are within the ten feet of overhead conductors. [Tr. 622]

Mr. Tommasi also suggested that some requirements, such as those for spraying herbicides and stump cutting, may apply to work that takes place more than 3.05 meters away from power lines (Tr. 622-623).

OSHA does not find this argument persuasive. This first of the tree trimmers' arguments reflects a basic misunderstanding of the way the proposed standard worked. Under the proposed rule, tree-trimming work was covered by § 1910.269 only to the extent it was done on trees or brush within 3.05 meters of electric supply lines and equipment. If it was done on trees or brush more than 3.05 meters away from lines and equipment, none of the provisions in proposed § 1910.269 applied. The proposed “10-foot rule” did not create any internal conflicts in § 1910.269. For work done outside of the 3.05-meter boundary, the proposed provisions the industry was concerned about, that is, minimum approach distances and requirements for spraying herbicides and stump cutting, did not apply.

The tree trimmers' second justification for expanding the definition of line-clearance tree trimming in § 1910.269 is that the “10-foot rule” undermines safety by causing different safety requirements to apply to line-clearance tree trimmers depending on their distance from the line. Mr. Tommasi testified that “experience teaches that a single set of safety rules applicable to the line tree arborist achieves the highest rate of compliance and thus the highest safety” (Tr. 625). Mr. Tommasi maintained that Federal and State OSHA compliance officials have enforced other standards, such as OSHA's logging standard (29 CFR 1910.266), during arborist operations more than 3.05 meters from power lines (id.). Further, ULCC commented that “the foundation of worker safety in line clearance tree trimming is adherence to a single predictable set of safety standards in which employees can be trained and repeatedly drilled” (Ex. 0174).

OSHA appreciates the industry's desire for a single set of safety-related work practices, but changing the definition of “line-clearance tree trimming” in § 1910.269 would not necessarily achieve the industry's goal. As stated previously, even work covered by § 1910.269 and subpart V must comply with all other applicable general industry and construction standards. In any event, the Agency does not believe that it is necessary to employee safety to address in § 1910.269 every hazard faced by line-clearance tree trimmers. Employers in every industry, including line-clearance tree trimming firms, must identify all OSHA standards applicable to their work, along with their general duty clause obligations, and then set, communicate, and enforce a set of work rules that meets all of the applicable requirements. For example, if a line-clearance tree trimming contractor performs work that falls under the logging or site-clearing standards (§§ 1910.266 and 1926.604, respectively), the contractor will have to ensure that its work rules meet those standards, in addition to § 1910.269. [47]

The provisions on brush chippers, sprayers and related equipment, stump cutters, gasoline-engine power saws, backpack units for use in pruning and clearing, rope, and fall protection (§ 1910.269(r)(2), (r)(3), (r)(4), (r)(5), (r)(6), (r)(7), and (r)(8), respectively) in existing § 1910.269 were taken, in part, from the EEI-IBEW draft on which § 1910.269 was based. Those provisions were “checked against the equivalent ANSI standard, ANSI Z133.1-1982[, American National Standard for Tree Care Operations—Pruning, Trimming, Repairing, Maintaining, and Removing Trees, and Cutting Brush—Safety Requirements] ([269-]Ex. 2-29), to be sure that OSHA's regulations would better effectuate safety than the national consensus standard” (59 FR 4322). However, OSHA did not incorporate a comprehensive tree-trimming standard in § 1910.269. Thus, many important safety provisions included in applicable consensus standards and in other OSHA standards were not included in § 1910.269, and that section does not address some important safety hazards faced by workers performing tree care operations. For example, § 1910.269 does not contain any specific requirements to protect workers felling trees. Those requirements are in OSHA's logging standard. Furthermore, even with respect to the nonelectrical hazards that are regulated in the § 1910.269 tree-trimming provisions, the OSHA standards do not cover those hazards as comprehensively as the current version, or even the 1982 version, of ANSI Z133.1. [48] For example, the new and old consensus standards include additional requirements for brush chippers and provisions on hand tools such as axes, pruners, and saws that are not contained in § 1910.269. For these reasons, adopting the industry's recommendation to have § 1910.269 be the exclusive source of requirements for tree-trimming work would not improve employee safety. Instead, it would jeopardize the workers performing those operations. For example, an employer may perform a logging operation near an overhead power line under contract with an electric utility to remove trees along the right of way for the power line. Applying the tree care industry's recommendation and logic to this work would place that work exclusively under § 1910.269, eliminating the protection provided by the logging standard's tree-felling provisions.

The Agency has published an advance notice of proposed rulemaking to gather information to use in developing a comprehensive standard on tree care operations (73 FR 54118-54123, Sept. 18, 2008). In that rulemaking, OSHA will consider whether, and to what extent, any new standard on tree care operations should cover line-clearance tree trimming.

The tree trimmers' third justification for expanding the definition of line-clearance tree trimming in § 1910.269 is that the electrical hazards regulated by § 1910.269 exist at distances greater than 3.05 meters from the line. ULCC argued that there are many circumstances that expose line-clearance tree trimmers to electrical hazards at distances beyond 3.05 meters from the line, such as when a tree or section of a tree can fall into the line even though the tree itself is farther than 3.05 meters away (Ex. 0174). To illustrate this point, Mr. Tommasi provided an example of a 15.2-meter tall oak tree located 4.6 meters from an overhead power line (Tr. 623).

OSHA has considered this argument, but has concluded that the 3.05-meter rule is generally reasonable and consistent with provisions in 29 CFR part 1910, subpart S, OSHA's general industry electrical standards. An examination of the different requirements that apply to the electrical hazards posed by tree-trimming operations will illuminate the need to set a locus within which § 1910.269 should apply.

The line-clearance tree-trimming provisions in existing § 1910.269 contain several requirements to protect line-clearance tree trimmers from electrical hazards. First, to be considered line-clearance tree trimmers under § 1910.269, employees must, through training or experience, be familiar with the special techniques and hazards involved in line-clearance tree trimming. [49] (See existing § 1910.269(a)(1)(i)(E)(2) and the definition of “line-clearance tree trimmer” in existing § 1910.269(x).) Second, there must be at least two line-clearance tree trimmers present under any of the following conditions: (1) If a line-clearance tree trimmer is to approach any conductor or electric apparatus energized at more than 750 volts more closely than 3.05 meters, (2) if branches or limbs being removed are closer than the applicable minimum approach distances to lines energized at more than 750 volts, or (3) if roping is necessary to remove branches or limbs from such conductors or apparatus. (See existing § 1910.269(r)(1)(ii).) Third, when the voltage on the lines is 50 volts or more and two or more employees are present, generally at least two employees must be trained in first aid, including cardiopulmonary resuscitation. [50] (See existing § 1910.269(b)(1).) Fourth, employees must maintain minimum approach distances appropriate for qualified employees. (See existing § 1910.269(r)(1)(iii) and (r)(1)(v).) Fifth, employees must use insulating equipment to remove branches that are contacting exposed, energized conductors or equipment or that are within the applicable minimum approach distances of energized conductors or equipment. (See existing § 1910.269(r)(1)(iv).) Sixth, line-clearance tree-trimming work may not be performed when adverse weather conditions make the work hazardous in spite of the work practices required by § 1910.269. (See existing § 1910.269(r)(1)(vi).) Seventh, mechanical equipment must maintain appropriate minimum approach distances, and certain measures must be taken to protect employees on the ground from hazards that might arise from equipment contact with energized lines. (See existing § 1910.269(p)(4).)

Requirements for tree trimmers who are not performing line-clearance tree trimming (as defined in final § 1910.269(x)), that is, “regular tree trimmers,” are contained in Subpart S of the general industry standards in part 1910. It is important to note that, for the purposes of Subpart S, tree trimmers fall into two categories: (1) Regular tree trimmers, whom OSHA treats as unqualified persons, and (2) line-clearance tree trimmers (as defined in § 1910.269), whom OSHA considers qualified persons under subpart S. Line-clearance tree trimmers under § 1910.269 are exempt from the electrical safety-related work practice requirements in subpart S and must comply with the § 1910.269 requirements described previously. [51] (See § 1910.331(c)(1).) In contrast, regular tree trimmers are subject to the subpart S requirements, but are not covered by § 1910.269. [52]

Subpart S sets some basic requirements for regular tree trimmers. (Other requirements also apply, but are not germane to this discussion.) First, regular tree trimmers must be appropriately trained (see § 1910.332(b)(1) and (b)(2)), although the training required for regular tree trimmers is not as extensive as that required for line-clearance tree trimmers. Second, regular tree trimmers must generally maintain a minimum separation of 3.05 meters from overhead power lines (see § 1910.333(c)(3)(i) and (c)(3)(iii)). Finally, regular tree trimmers working on the ground may not contact vehicles or mechanical equipment capable of having parts of its structure elevated near energized overhead lines, except under certain conditions (see § 1910.333(c)(3)(iii)(B)).

As a general matter, OSHA believes that workers performing line-clearance tree-trimming operations under existing § 1910.269 are afforded more protection than workers performing regular tree-trimming operations under Subpart S. Under existing § 1910.269, line-clearance tree-trimming operations generally require the presence of at least two line-clearance tree trimmers trained in first aid, including cardiopulmonary resuscitation. Subpart S does not have a comparable requirement. Existing § 1910.269 forbids line-clearance tree-trimming operations from being performed when adverse weather conditions make work unsafe. Subpart S does not address weather conditions. Furthermore, in comparison with subpart S, existing § 1910.269 contains additional requirements to protect workers in case mechanical equipment contacts a power line. OSHA believes that these important protections in existing § 1910.269 must be required only when tree-trimming operations expose employees to the most serious electrical hazards, not any time electrical hazards are present, as posited by ULCC.

OSHA believes that the seriousness of electrical hazards posed by tree trimming depends on how close the tree is to the power line. The closer the tree is to the power line, the more difficulty the worker has in maintaining minimum approach distances. For example, roping may be necessary to maintain the required minimum approach distances. (This practice is addressed in existing § 1910.269(r)(1)(ii)(C).) Furthermore, when the tree is close to the power line, a worker trimming trees from an aerial lift has to be more concerned with the distances between the power line and the tree, the aerial lift, and himself or herself. The farther the tree is from the power line, the more room an employee has in which to maneuver the aerial lift.

Therefore, the Agency has only to decide how close the tree needs to be to a power line before the protections required by § 1910.269 are necessary. The Agency concludes that those protections should start when the tree is 3.05 meters from a power line. Under Subpart S, unqualified employees are not permitted within that distance, but they are permitted to work in compliance with subpart S outside of that distance (plus 100 millimeters (4 inches) of additional distance for every 10 kilovolts over 50 kilovolts). (See § 1910.333(c)(3)(i).) OSHA believes that it would be inconsistent to expand the definition of “line-clearance tree trimming” to the point that line-clearance tree trimmers working on trees or brush more than 3.05 meters from the lines would be entitled to the enhanced protections of § 1910.269, while employees doing other types of work closer to the lines (between 3.05 meters from the line and where the line-clearance tree trimmers are working) would be governed by the more limited protections afforded by subpart S. The Agency generally believes that any electrical hazards that are present when a tree is more than 3.05 meters from power lines are addressed adequately by subpart S.

Nevertheless, changes to the existing definition of “line-clearance tree trimming” in § 1910.269 (which is identical to the definition proposed for subpart V) are necessary to ensure consistency with the 3.05-meter rule that applies to unqualified employees under § 1910.331(c)(3)(i). As noted previously, under § 1910.333(c)(3)(i)(A)(1), 3.05 meters is the minimum distance an unqualified employee must maintain from overhead power lines. If the voltage is higher than 50 kilovolts, the required distance under § 1910.333(c)(3)(i)(A)(2) increases by 100 millimeters for every 10 kilovolts of voltage above 50 kilovolts. OSHA believes that this increase in distance reasonably captures the relationship between the severity of the electrical hazard and voltage. Therefore, OSHA decided that, although it is not expanding the definition of “line-clearance tree trimming” to the extent recommended by the tree trimming industry, it will add this extra distance to the definition of “line-clearance tree trimming” to accord with § 1910.333(c)(3)(i)(A). The revised definition appears in §§ 1910.269(x) and 1926.968.

Paragraph (b) of final § 1926.950 addresses training for employees. Subpart V currently contains no general provisions related to training employees in the safety practices necessary to perform electric power transmission and distribution work. It is widely recognized that the types of work covered by this standard require special knowledge and skills. Additionally, final subpart V contains many safety-related work practice requirements that are necessary for the protection of employees. To gain the requisite knowledge and skills to use these work practices, employees must be adequately trained. Therefore, in the proposed revision of subpart V, OSHA included training requirements mirroring those already in § 1910.269, with a few changes and additions (discussed later). OSHA notes that editorial changes are being made throughout paragraph (b) to clarify that employers must ensure that “each” employee covered by a specific training provision receives the training required by that provision. [53]

Paragraph (b)(1) contains training requirements applying to all employees performing work covered by subpart V. Siemens Power Generation and ORC Worldwide suggested deleting the heading “All employees” from proposed paragraph (b)(1). They expressed concern that the provision could be construed to require training for clerical employees or other workers doing tasks not covered by subpart V (Exs. 0163, 0208, 0235). Siemens commented:

By adding the word “ALL” the Agency is implying that training must be conducted for any and all employees regardless of their scope of task. It implies for example, that even for clerical employees that have no risk, there must be some documented training conducted to comply with this requirement. [Ex. 0163]

OSHA appreciates these concerns, but has elected to retain the title in paragraph (b)(1) as proposed. The Agency thinks that it is important to distinguish the training requirements in paragraph (b)(1), which is broadly applicable to workers doing work covered by subpart V, from the requirements in paragraph (b)(2), which is applicable only to “qualified employees.” OSHA clarified in the proposal, and is reiterating here, that paragraph (b)(1) does not impose training requirements on employees who are not performing work covered by subpart V. The text of paragraph (b)(1) is self-limiting—employers need only ensure that each employee receives safety training that “pertain[s] to his or her job assignments” and that is “related to his or her work.”

As clerical workers do not perform the types of hazardous work covered by subpart V, this provision does not require employers to train such employees in live-line barehand or other work techniques addressed by this final rule. Employees performing clerical work or other work not covered by subpart V would not need to receive the same electrical safety training required for workers involved in the construction of transmission and distribution lines and equipment. However, employers must train clerical workers performing work covered by subpart V in the hazards to which they might be exposed.

Proposed paragraphs (b)(1)(i) and (b)(1)(ii) were borrowed in large part from provisions in existing § 1910.269. Paragraph (b)(1)(i) requires each employee to be trained in, and be familiar with, the safety-related work practices, safety procedures, and other safety requirements in subpart V that pertain to his or her job assignments. OSHA considers this training necessary to ensure that employees use the safety-related work practices outlined in subpart V. It should be noted that this provision requires employers to train employees not only in the content of the applicable requirements of the final rule but in how to comply with those requirements. OSHA received no comments on proposed paragraph (b)(1)(i) and is carrying it forward into the final rule without substantive change.

Proposed paragraph (b)(1)(ii) additionally provided that employees had to be trained in, and be familiar with, any other safety practices related to their work and necessary for their safety, including applicable emergency procedures, such as pole-top and manhole rescue. Proposed paragraph (b)(1)(ii) required that safety training be provided in areas that are not directly addressed by subpart V, but that are related to the employee's job. This training fills in the gaps left when the final rule does not specify requirements for every hazard the employee may encounter in performing electric power generation, transmission, or distribution work. OSHA explained in the preamble to the proposal that if more than one set of work practices could be used to accomplish a task safely, the employee would only need to be trained in the work methods to be used (70 FR 34833). For example, an insulator on a power line could be replaced by an employee using live-line tools or rubber insulating equipment or by an employee working without electrical protective equipment after deenergizing and grounding the line. The employee would only need to be trained in the method actually used to replace that insulator.

The Agency received numerous comments suggesting that the training requirement proposed in paragraph (b)(1)(ii) was too broad (Exs. 0156, 0160, 0168, 0170, 0202, 0206, 0207, 0229, 0233, 0237). Mr. Don Adkins of Davis H. Elliot Company, an electrical contractor, commented, for example, that this proposed provision was “impermissibly broad” and offered “no guidance as to what safety practices are `related' to the work of those covered by the standard” (Ex. 0156). Mr. Robert Matuga of the National Association of Home Builders (NAHB) believed that paragraph (b)(1)(ii) was “overly broad,” potentially “creating an obligation for employers to provide training to workers . . . on almost every hazard that could conceivably be encountered on a construction jobsite” (Ex. 0168). He also argued that proposed paragraph (b)(1)(ii) is duplicative of § 1926.21(b)(2), which requires “[t]he employer [to] instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury” (id.). Also, the U.S. Small Business Administration's (SBA) Office of Advocacy commented:

The scope of this mandatory employee training is not limited to work practices required by the proposed electrical standards, but extends to any other safety practices that are related to their work and necessary for their safety. The SBREFA panel was concerned that this language was overly broad and could be viewed as covering other, non-specified hazards on the worksite, such as ergonomic injuries from overhead work.

* * * * *

The proposed training language remains vague and OSHA should clarify what training is necessary to comply with the standard (as well as what alternative training is acceptable for compliance) [Ex. 0207]

Despite these comments, OSHA continues to believe that the requirement in proposed paragraph (b)(1)(ii) is essential to the safety and welfare of employees and is adopting it without significant change in this final rule. Mr. Brian Erga of Electrical Safety Consultants International (ESCI) supported the proposed training requirements and attributed an increase in employee proficiency, and safer work environments, to the adoption of these provisions in existing § 1910.269. He explained:

It has been shown time and time again that high quality training and retraining not only provides a safer work site, but returns dividends in financial contributions and long term productivity to the employer. The proposed [1926.]950(b) and associated verbiage in the preamble, if followed, will, in our opinion, move the industry to a safer work site. The current training requirements in 1910.269 and [the] proposed training requirements are not unduly burdensome, and will provide a more educated and experienced work force. [Ex. 0155]

Further, Mr. Donald Hartley with IBEW testified at the 2006 public hearing that “ensur[ing] that . . . employees are trained in the safety-related work practices, procedures, and requirements that pertain to their . . . assignments . . . is necessary to ensure that employees are equipped to deal with potential hazards associated with this dangerous work” (Tr. 876). He did not suggest that this training be limited only to the safety practices and other safety requirements in subpart V. Several rulemaking participants recognized that subpart V does not specifically address all hazards faced by employees performing covered work and suggested that training is an important factor in employee safety. For example, Mr. Lee Marchessault testified about the importance of training in substation rescue procedures, stating, “You should do rescue training from substation structures” (Tr. 572). Also, Energy United EMC commented that “proper training is necessary” to prevent employees in insulated aerial lifts from touching conductors (Ex. 0219). The record also indicates that employers train employees to protect them from heat-stress hazards (see, for example, Tr. 1129-1130), to ensure proper maintenance of protective clothing (see, for example, Tr. 471), and to supplement the line-clearance tree-trimming requirements in existing § 1910.269 (see, for example, Tr. 683).

Existing § 1910.269(a)(2)(i) already contains a requirement identical to the one proposed in § 1926.950(b)(1)(ii), and OSHA has successful enforcement experience with this provision. First, except for two questions addressing who needs to be trained in emergency and rescue procedures, the Agency has not received any letters requesting interpretation or clarification of this provision, leading the Agency to believe that the requirement is not as ambiguous as the commenters claim. Second, OSHA has issued only a few citations under existing § 1910.269(a)(2)(i) (for example, in 2008, OSHA issued only 2 citations of § 1910.269(a)(2)(i) in 362 inspections of electric utilities), which supports OSHA's conclusion that employees performing work under existing § 1910.269 are generally being trained as required. Third, even EEI admits that “EEI members have generally found the training requirements of paragraph 1910.269(a)(2) to be workable for their employees” (Ex. 0227). Thus, it appears that electric utilities have not had difficulty complying with the identical requirement in existing § 1910.269(a)(2)(i).

On the other hand, the Agency agrees with these commenters that § 1926.950(b)(1)(ii) of the final rule sets a broad, general requirement to train employees. This is not an uncommon approach for an OSHA standard to take. OSHA's personal protective equipment (PPE) standards in §§ 1910.132(a) and 1926.95(a) require the employer to provide and ensure the use of protective equipment wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact. An employer is deemed to be in violation of the PPE standards when it fails to provide PPE despite having actual or constructive knowledge of a hazard in its facility for which protective equipment is necessary. (See, for example, Cape & Vineyard Div. of the New Bedford Gas & Edison Light Co. v. OSHRC, 512 F.2d 1148, 1152 (1st Cir.1975).) The general construction training requirement contained in § 1926.21(b)(2) is similarly broad, requiring employers to instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his or her work environment to control or eliminate any hazards or other exposure to illness or injury. That standard has been interpreted to require employers to provide employees with “the instructions that a reasonably prudent employer would have given in the same circumstances.” (El Paso Crane & Rigging Co., Inc., 16 BNA OSHC 1419 (No. 90-1106, Sept. 30, 1993); see also Pressure Concrete Constr. Co., 15 BNA OSHC 2011 (No. 90-2668, Dec. 7, 1992) (“Because section 1926.21(b)(2) does not specify exactly what instruction the employees must be given, the Commission and the courts have held that an employer must instruct its employees in the recognition and avoidance of those hazards of which a reasonably prudent employer would have been aware.”).) The applicability of § 1926.21(b)(2) turns on an employer's actual or constructive knowledge of hazards, just as under the general PPE requirements. (See, for example, W.G. Fairfield Co. v. OSHRC, 285 F. 3d 499 (6th Cir. 2002).)

OSHA is applying final paragraph (b)(1)(ii) in the same manner. Therefore, if an employer has actual knowledge of a hazard (for example, through safety warnings from equipment manufacturers or through injury experience), or if the employer has constructive knowledge of a hazard (for example, when industry practice recognizes particular hazards), then each employee exposed to the hazard must be trained. For the training to comply with this provision, it must be sufficient to enable the employee to recognize the hazard and take reasonable measures to avoid or adequately control it.

In addition, OSHA agrees with Mr. Matuga that, except to the extent that it only covers Subpart V work, paragraph (b)(1)(ii) requires the same training as § 1926.21(b)(2). Consequently, employers who meet § 1926.21(b)(2) also meet final § 1926.950(b)(1)(ii). Even though the final rule duplicates the general construction training provision, the Agency is adopting paragraph (b)(1)(ii) to maintain consistency with existing § 1910.269.

Mr. Lee Marchessault with Workplace Safety Solutions recommended that paragraph (b)(1)(ii) refer to rescues at heights generally, rather than just pole-top rescue, in the parenthetical listing examples of potentially applicable emergency procedures (Tr. 572). He noted that rescue procedures are performed from wind turbines, towers, and substation structures, as well as utility poles (id.).

OSHA has decided not to adopt this recommendation because no change is necessary. The types of emergency procedures listed in paragraph (b)(1)(ii) in the final rule are examples only. Pole-top rescue is listed because it is a widely recognized and used emergency procedure. The Agency notes, however, that training in these other types of emergency procedures is required if it is necessary for employee safety during the work in question.

OSHA proposed to add a new provision to both subpart V and § 1910.269 clarifying that the degree of training required is based on the risk to the employee for the task involved. OSHA explained that, under this proposed paragraph, the training provided to an employee would need to be commensurate with the risk he or she faces (70 FR 34834). The two provisions, proposed §§ 1910.269(a)(2)(i)(C) and 1926.950(b)(1)(iii), were based on § 1910.332(c), although § 1910.332(c) does not contain the “for the task involved” language. The purpose of these new training paragraphs was to ensure that an appropriate level of training is provided to employees. Employees who face little risk in their job tasks need less training than those whose jobs expose them to more danger. OSHA believed that this provision would ensure that employers direct their training resources where they will provide the greatest benefit, while still making sure that all employees receive adequate training to protect them against the hazards they face in their jobs (id.). OSHA noted in the preamble to the proposal that training already provided in compliance with existing § 1910.269 would be considered sufficient for compliance with these paragraphs (id.). The provisions would not require employers to make changes to existing training programs that comply with § 1910.269; rather, they would provide employers with options to tailor their training programs and resources to employees with particularly high-risk jobs (id.).

OSHA received several comments regarding paragraph (b)(1)(iii) of proposed § 1926.950. (See, for example, Exs. 0128, 0162, 0163, 0169, 0177, 0201, 0209, 0210, 0212, 0221, 0225, 0227, 0235; Tr. 873-874, 1316-1319, 1332-1333.) [54] Some commenters maintained that this provision was unnecessary or too vague. For example, Mr. Pat McAlister of Henry County REMC requested additional guidance to “clarify generally when and how risks link with training and [how to assign] the appropriate level of training to offset those risks” (Ex. 0210). EEI commented that this proposed training provision was unnecessary, explaining:

We question the soundness of changing the [current] requirements [in § 1910.269] because if compliance with existing Section 1910.269 training requirements is sufficient, there is no reason to add another regulatory requirement, and the proposed provisions demonstrably have no purpose. The stated explanation is that the standard is intended to “provide employers with options,” but employers have those options without the added regulation. No additional provisions are necessary to preserve existing options. [Ex. 0227]

EEI went on to suggest that the added requirement would create confusion, commenting:

EEI's concern is that the new language will likely create confusion among many employers who do not have access to or regularly consult the preambles to OSHA standards. All but the most sophisticated readers likely will assume that the revised standard imposes a requirement to modify existing training programs. Moreover, the proposal is unclear: The meaning of the term “degree of training” is difficult to discern in that it is not evident how OSHA would classify and evaluate a “degree” of training. [Id.]

Many of the comments received on proposed paragraph (b)(1)(iii) expressed concern only about the language tying training to “the task involved.” For example, Mr. Mark Spence with Dow Industries generally supported the proposed provision, but stated that the similar requirement in § 1910.332(c), which does not contain the “for the task involved” language, “has been in effect since 1990 without causing significant problems for employers” (Ex. 0128). Mr. Spence had concerns about the additional language in proposed paragraph (b)(1)(iii), explaining:

[T]he proposal refers to training “for the task involved”. Training programs typically are broad, rather than task-specific. [T]he present wording could be interpreted to indicate an unmanageable requirement to train affected employees on the details of each individual task. OSHA should consider re-wording this provision or clarifying that it means that, where necessary, additional training may be required for a particular task . . . [Id.]

Mr. Tom Chappell of Southern Company similarly noted that “[d]ue to the large number of different tasks that an employee may need to perform, it would be difficult to evaluate each task and identify the level of training that would be required” (Ex. 0212). Consumers Energy commented that, in its experience, “employees can safely complete hundreds of specific tasks” without the need for training in each task individually (Ex. 0177). Mr. Donald Hartley of IBEW testified that the requirement “to tie the degree of training to the risk to the employee for the task involved . . . is both an unworkable and inappropriate standard” (Tr. 873-874). Mr. William Mattiford with Henkels & McCoy testified:

[I]t's not very clear as to what by definition, the degree of training shall be determined by the risk to the employee for the task involved. And that's where we see it's very confusing.

And if it's literally taken that way, then it's each individual task. So it's not just setting a pole, but it's digging a hole, to set the pole, to prefab the pole. Each one of those things could be, I guess, understood as being training for each one of those tasks.

And I feel as though, many of us feel as though that by the design of the training programs today that have redundancy and overlapping in them, you do cover all of those.

But to actually spell out perhaps a lesson plan for each one of those tasks I think would be just too difficult to do, if not impossible. [Tr. 1339]

Mr. Wilson Yancey with Quanta Services agreed with these comments:

I agree with Bill's comments, too. I think most of that is being covered today. If we have to go down and copy it and put lesson plans for everything, we will never get it accomplished and it will be too costly to the contractor. [Tr. 1340]

OSHA continues to believe that it is important that the level of training provided to employees be commensurate with the risk they encounter. Focusing training where the risk is greatest maximizes the benefits to be achieved. In addition, providing no more training than is necessary for hazards that pose less risk can conserve valuable, and often limited, safety and health resources. OSHA successfully used this general approach in § 1910.332(c), allowing employers flexibility in providing training to employees, yet ensuring that employees most at risk receive the most training. This approach is recognized by the Agency's publication “Training Requirements in OSHA Standards and Training Guidelines.” [55]

On the other hand, the Agency understands the rulemaking participants' concerns. Most commenters objected to providing a level of training determined by “the task involved.” Although employees are trained to perform the various tasks involved in their jobs, as noted by Mr. Mattiford (Tr. 1339), examining each task to determine the relative risk may seem daunting and unworkable as claimed by Mr. Hartley (Tr. 873-874). Employers should, however, be capable of determining the relative risk of the various hazards encountered by their employees. To clarify this requirement, OSHA replaced the phrase “for the task involved” from the proposal with the phrase “for the hazard involved” in paragraph (b)(1)(iii) of the final rule.

To determine the relative risk encountered by employees, employers are encouraged to follow the guidelines in OSHA's publication “Training Requirements in OSHA Standards and Training Guidelines,” Voluntary Training Guidelines, Section III. In any event, employers may allocate training resources in accordance with their own determination of relative risk, provided that each affected employee receives the minimum training required under subpart V.

Paragraph (b)(2) contains additional requirements for training qualified employees. Because qualified employees may work extremely close to electric power lines and equipment and, therefore, encounter a high risk of electrocution, it is important that they be specially trained. Towards this end, the standard requires that these employees be trained in: distinguishing exposed live parts from other parts of electric equipment; determining nominal voltages of exposed live parts; applicable minimum approach distances and how to maintain them; the techniques, protective equipment, insulating and shielding materials, and tools for working on or near exposed live parts; and the knowledge necessary to recognize electrical hazards and the techniques to control or avoid these hazards. The language in paragraph (b)(2) generally mirrors language in existing § 1910.269(a)(2)(ii). However, paragraph (b)(2)(v), which requires training in how to recognize and control or avoid electrical hazards, has no counterpart in existing § 1910.269. In addition, OSHA has added language to paragraph (b)(2)(iii) of the final rule explicitly requiring employers to train qualified employees in the skills and techniques necessary to maintain minimum approach distances. See the summary and explanation of final § 1926.960(c)(1), later in this section of the preamble, for an explanation of this change.

NIOSH commented that qualified and unqualified employees are exposed to the same electrical hazards and should receive the same training (Ex. 0130). NIOSH suggested that “[a]ll workers potentially exposed to electrocution hazards should be trained in hazard awareness and the identification and control of these hazards, as qualified employees are trained” (id.). NIOSH specifically noted that line-clearance tree trimmers and ground workers face electrical hazards comparable to those of qualified employees (id.).

OSHA does not believe that is appropriate to adopt requirements in this final rule for the training of ground workers on tree crews or other tree workers who are neither qualified employees under § 1910.269 nor line-clearance tree trimmers. Subpart S, not § 1910.269 or subpart V, applies to electrical safety-related work practices of ground workers on tree crews and other tree workers who are not line-clearance tree trimmers. (See § 1910.331(b).) The preamble to the 1994 § 1910.269 final rule makes this clear as follows:

Other tree workers do not have the training necessary for them to be either “qualified employees” or “line-clearance tree trimmers”, as defined under § 1910.269(x). These employees are not covered under § 1910.269 at all. The work practices these employees must use are contained in Subpart S of Part 1910. Under Subpart S, tree workers must maintain a 10-foot minimum approach distance from overhead lines. (In fact, trimming any branch that is within 10 feet of an overhead power line is prohibited by Subpart S.) [59 FR 4410; footnotes omitted.]

Existing § 1910.269(a)(1)(ii)(B) states that § 1910.269 does not cover “electrical safety-related work practices . . . covered by subpart S.” Consequently, addressing the training of ground workers on tree crews or other tree workers who are neither qualified employees nor line-clearance tree trimmers in § 1910.269 or subpart V would be inappropriate.

On the other hand, OSHA believes that the final rule should address the training of line-clearance tree trimmers. However, not all of the training requirements in final § 1910.269(a)(2)(ii), which are applicable to qualified employees, are appropriate for line-clearance tree trimmers. Qualified employees are trained to work on energized parts. Specifically, the final rule requires qualified employees to be trained in, among other topics, the proper use of the special precautionary techniques, personal protective equipment, insulating and shielding materials, and insulated tools for working on or near exposed energized parts of electric equipment (§ 1926.950(b)(2)(iv)). This training enables qualified employees to work directly on energized parts of electric circuits, which line-clearance tree trimmers do not do.

Line-clearance tree trimmers work close to, but not on, energized, overhead power lines. (See, for example, Ex. 0502; Tr. 611.) Consequently, the Agency believes that these employees have different training needs than qualified employees covered by § 1910.269. Under existing § 1910.269, OSHA has addressed the training for line-clearance tree trimmers in the definition of “line-clearance tree trimmer” and in the notes to that definition. The definition and notes appear in existing § 1910.269(x). Note 2 to that definition explains that while line clearance tree trimmers are not considered qualified employees for purposes of § 1910.269, they are considered to be qualified employees exempt from the electrical safety-related work practice requirements in subpart S (§§ 1910.331 through 1910.335). The note following § 1910.332(b)(3) indicates that, for the purposes of §§ 1910.331 through 1910.335, a person must have the training required by § 1910.332(b)(3) for OSHA to consider that person a qualified person. Therefore, to be considered a line-clearance tree trimmer under § 1910.269 and, thus, a qualified person under subpart S, a tree trimmer needs the training specified by § 1910.332(b)(3). Any tree trimmer who has not had such training is considered an unqualified person under subpart S, and the electrical safety-related work practices in that standard apply instead of those in § 1910.269 as explained previously.

The training required by § 1910.332(b)(3) is virtually identical to the training required by final § 1910.269(a)(2)(ii)(A) through (a)(2)(ii)(C) for qualified employees, except that § 1910.332(b)(3)(iii) requires training in the clearance (that is, minimum approach) distances specified in § 1910.333(c), whereas § 1910.269(a)(2)(ii)(C) requires training in the minimum approach distances in § 1910.269 and in the skills and techniques necessary to maintain those distances. Considering NIOSH's recommendation, OSHA believes that putting appropriate training requirements for line-clearance tree trimmers directly in § 1910.269 rather than applying them indirectly through definitions and scope statements will make the standards more transparent and make the obligation to train these workers clearer. Consequently, the Agency is adopting a new § 1910.269(a)(2)(iii) requiring line-clearance tree trimmers to be trained in: (1) The skills and techniques necessary to distinguish exposed live parts from other parts of electric equipment (final § 1910.269(a)(2)(iii)(A)), (2) the skills and techniques necessary to determine the nominal voltage of exposed live parts (final § 1910.269(a)(2)(iii)(B)), and (3) the minimum approach distances in the final rule corresponding to the voltages to which the line-clearance tree trimmer will be exposed and the skills and techniques necessary to maintain those distances (final § 1910.269(a)(2)(iii)(C)). [56] The first two training requirements, final § 1910.269(a)(2)(iii)(A) and (a)(2)(iii)(B), are identical to § 1910.332(b)(3)(i) and (b)(3)(ii). The remaining requirement, final § 1910.269(a)(2)(iii)(C), is comparable to § 1910.332(b)(3)(iii), except that line-clearance tree trimmers need to be trained in the minimum approach distances required under § 1910.269 rather than those in subpart S and need to be trained in the skills and techniques necessary to maintain those distances. OSHA concludes that the minimum approach distances required under § 1910.269 are the more appropriate reference for final § 1910.269(a)(2)(iii)(C) because line-clearance tree trimmers are required to comply with the minimum approach distances in § 1910.269. [57] The Agency also concludes that line-clearance tree trimmers need to be trained in the skills and techniques necessary to maintain the required minimum approach distances for the same reasons that qualified employees must be trained in these subjects. (See the discussion of minimum approach distances under the summary and explanation for final § 1926.960(c)(1), later in this section of the preamble.) OSHA believes that training in these skills and techniques are even more important for line-clearance tree trimmers, who, unlike qualified employees, generally work without electrical protective equipment (see, for example, Ex. 0503).

Paragraph (b)(2)(v), which is being adopted without change from the proposal, requires qualified employees to be trained in the recognition of electrical hazards to which the employee may be exposed and the skills and techniques necessary to control or avoid those hazards. Commenting on proposed § 1910.269(a)(2)(ii)(E), which is the general industry counterpart to proposed § 1926.950(b)(2)(v), Mr. Kevin Taylor of Lyondell Chemical Company requested clarification of the training required for workers who operate, but do not maintain, 480-volt circuit breakers (Ex. 0218). Workers operating these circuit breakers need not be qualified employees unless the devices are in areas restricted to qualified employees (final §§ 1910.269(u)(4) and (v)(4) and 1926.966(e)) or otherwise expose the employees to contact with live parts (final § 1910.269(l)(1) and 1926.960(b)(1)). Thus, assuming that these workers are not qualified employees, they would need to be trained only as required by final §§ 1910.269(a)(2)(i) and 1926.950(b)(1). The scope of this training is described earlier in this section of the preamble under the discussion of final § 1926.950(b)(1).

OSHA proposed to supplement the training requirements in paragraphs (b)(1) and (b)(2) with requirements for supervision and additional training in paragraphs (b)(3) and (b)(4). These requirements were taken directly from existing § 1910.269(a)(2)(iii) and (a)(2)(iv). The Agency explained in the proposal that initial instruction in safe techniques is not sufficient to ensure that employees will use safe work practices all of the time (70 FR 34834). Continual reinforcement of this initial training must be provided to ensure that the worker uses the procedures he or she has been taught. This reinforcement can take the form of supervision, safety meetings, prejob briefings or conferences, and retraining.

Paragraph (b)(3), which is being adopted without change from the proposal, requires the employer to determine, through regular supervision (that is, supervision that takes place on a periodic basis throughout the year) and inspections conducted at least annually, that each employees is complying with the safety-related work practices required by subpart V. Paragraph (b)(4), also being adopted without change from the proposal, requires additional training (or retraining) whenever:

  • Regular supervision or an annual inspection required by paragraph (b)(3) indicates that the employee is not following the safety-related work practices required by subpart V,
  • New technology, new types of equipment, or changes in procedures necessitate the use of safety-related work practices that are different from practices that the employee would normally use, or
  • The employee must use safety-related work practices that are not normally used during his or her regular job duties.

A note to paragraph (b)(4)(iii) explains that retraining must be provided before an employee performs a task that is done less frequently than once a year. Instruction provided in prejob briefings is acceptable if it is detailed enough to fully inform the employee of the procedures involved in the job and to ensure that he or she can accomplish them in a safe manner.

Mr. Leo Muckerheide of Safety Consulting Services commented that the requirements for retraining in proposed paragraph (b)(4) were reactive rather than proactive (Ex. 0180). He recommended that the standard require 4 to 8 hours of retraining every 2 to 3 years, arguing that workers follow proper safety practices immediately after training, but drift away from those practices as time goes on.

OSHA does not agree that the retraining requirements in paragraph (b) are exclusively reactive. Employees performing work covered by the final rule typically employ the safety-related work practices required by the standard on a daily or other regular basis. The Agency believes that workers generally will continue to follow these practices over time and has no evidence that a lack of regularly scheduled retraining contributes to a failure to follow safe work practices that are used frequently. OSHA does recognize, however, that retraining is important for work practices that are employed infrequently. Thus, paragraphs (b)(4)(ii) and (b)(4)(iii) require employees to receive additional training if they need to use new or different safety-related work practices or safety-related work practices that are not part of their regular job duties. For example, under paragraph (b)(4)(iii), an employee who is expected to administer CPR in the event of an emergency needs retraining if he or she has not used those emergency practices over the course of the previous year. Retraining would also be required for an employee who needs to climb a pole if it has been more than a year since he or she has used pole-climbing practices. [58] OSHA does not believe that any changes to paragraph (b)(4) are necessary and is adopting that paragraph without change from the proposal.

Under paragraph (b)(5), training required by paragraph (b) can be provided in a classroom or on-the-job, or in both places. This paragraph is taken directly from existing § 1910.269(a)(2)(v). The Agency has found these types of instruction, which provide workers an opportunity to ask questions and have the employer respond to them, to be most effective. (See, for example, OSHA's publication “Training Requirements in OSHA Standards and Training Guidelines.”) OSHA received no comments on this provision, and it is being adopted as proposed.

Paragraph (b)(6) provides that training given in accordance with § 1926.950(b) has to result in employee proficiency in required work practices and introduce procedures necessary for subpart V compliance. OSHA did not receive any comments on this paragraph, which is borrowed from existing § 1910.269(a)(2)(vi), and is adopting it without change from the proposal. Unless a training program establishes an employee's proficiency in safe work practices and that employee then demonstrates his or her ability to perform the necessary work practices, there will be no assurance that the employee will work safely. An employee who has attended a single training class on a complex procedure, for example lockout and tagging procedures used in an electric generating plant, will not generally be deemed proficient in that procedure. Paragraph (b)(6), and the demonstration of proficiency requirement contained in paragraph (b)(7) (discussed later), will ensure that employers do not try to comply with § 1926.950(b) by simply distributing training manuals to employees. These provisions require employers to take steps to assure that employees comprehend what they have been taught and that they are capable of performing the work practices mandated by the standard. OSHA believes that this maximizes the benefits of the training required under the final rule.

Existing § 1910.269(a)(2)(vii) requires employers to certify that each employee has received required training. The certification has to be made when the employee demonstrates proficiency in the relevant work practices and maintained for the duration of the employee's employment. OSHA proposed to eliminate this certification requirement and to replace it with paragraphs in both § 1910.269 (paragraph (a)(2)(vii)) and subpart V (§ 1926.950(b)(7)) that simply require the employer to determine that each employee has demonstrated proficiency in the necessary work practices. In proposing this change, the Agency aimed to reduce unnecessary paperwork burdens on employers (70 FR 34835). In the preamble to the proposal, OSHA explained that, in the absence of training certifications, compliance with training requirements could be determined through employee interviews (id.). A note following this proposed paragraph explained that, although not required, employee training records could continue to be used by employers to track when employees demonstrate proficiency. OSHA specifically requested comments on whether the existing certification requirement is necessary and whether the proposed standard, without a certification requirement, was adequately protective.

OSHA received a lot of feedback on this issue. Many rulemaking participants supported OSHA's proposal. (See, for example, Exs. 0125, 0127, 0159, 0169, 0171, 0175, 0177, 0179, 0186, 0212, 0222, 0227.) For instance, Mr. Brian Skeahan of Public Utility District No. 1 of Cowlitz County commented that the change from the certification requirement to the requirement to demonstrate proficiency was an “acceptable modification,” pointing out that recording on-the-job training can be burdensome (Ex. 0159). Mr. Wilson Yancey of Quanta Services provided similar comments, expressing “support [for] OSHA's proposal to require only that the employer ensure that the employee is able to demonstrate proficiency” (Ex. 0169). He commented that the “certification requirement is an unnecessary recordkeeping burden that would be difficult to administer in practice because of the way that crews are spread out and would not advance employee safety and health in any material way” (id.). Mr. Brooke Stauffer of the National Electrical Contractors Association also supported the proposal: “NECA supports the proposed changes from certification of training to demonstration of proficiency. We do not support a requirement to keep records of employee training, due to high turnover in the line construction industry. Such record-keeping also isn't feasible to document on-the-job training . . . .” (Ex. 0171). EEI commented that “in the experience of EEI members, the existing training certification requirement in paragraph 1910.269(a)(2)(vii) has proven to be of no value, and is unnecessary and should be eliminated” (Ex. 0227). Also, Southern Company told OSHA:

Since on-the-job training is recognized as a method for training employees, it would be difficult or impossible to maintain records for this type of training. We agree that records of training that are normally maintained (classroom instruction or hands-on training exercises) should be recognized as a method for determining if an employee has been trained. However, it is the employee's ability to demonstrate their proficiency which should be the measure of the employee's ability to work safely. [Ex. 0212]

Other commenters objected to the proposed move away from the certification requirement, stressing the importance of recordkeeping. (See, for example, Exs. 0200, 0213, 0230, 0505.) For instance, Mr. Tommy Lucas of TVA commented:

To ensure that employees have been trained and demonstrated proficiency, the training should be documented. Documented training is necessary for managers and supervisors to know whether or not the employee is proficient in the skills required for tasks being assigned. Having training records available to managers and supervisors will better protect employees. [Ex. 0213]

IBEW similarly supported a recordkeeping requirement for training, commenting as follows:

The standard should require employers to record employee training. The question that needs [to be] asked is how, if training records are not kept, can an employer comply with requirements for initial and ongoing training? Most training that is offered in this industry is structured using somewhat universal subjects and methods. Those employers that are engaged in this type of training are most likely recording initial training and any other additional training that they may offer. Recording of employee training will not impose any unnecessary or costly requirement on employers that they are not currently doing. [Ex. 0230]

Mr. Donald Hartley with IBEW further explained the union's position in his testimony during the 2006 public hearing:

OSHA should require employers to certify that employees are proficient in the tasks that they are assigned to perform and to maintain records documenting their demonstrated proficiency. There is simply no way to ensure that employers are actually certifying employees if documentation is not required. Moreover, the records can be used over time to determine whether employees have satisfied the training requirements in the past and whether retraining or recertification is necessary. [Tr. 874]

Mr. Steven Semler, counsel for ULCC, asked that OSHA retain the existing training certification requirement because it “works well . . . and has enhanced safety . . . by requiring the checkoff of certification of employees in writing” (Tr. 743). Mr. Scott Packard of Wright Tree Service testified on behalf of TCIA that the certification requirement “has clearly raised the level of safety in the line clearance tree trimming industry overall” (Tr. 751). The TCIA further commented:

The current and existing “shall certify” language has raised the level of safety in the line clearance tree trimming industry as well as in non-line clearance firms with exposure to the electrical hazard and hence the need to train and to certify. This requirement is particularly important among smaller employers with less sophisticated safety programs.

Requiring “certification” of employees having received the required safety training has imposed internally within line clearance contractors' and others' training procedures creation of failsafe mechanisms to unambiguously assure the employee has received the required safety training. The newly-proposed method is a more subjective—hence looser—requirement. [Ex. 0200; footnote omitted; emphasis included in original.]

Mr. Peter Gerstenberger, also testifying on behalf of TCIA, suggested that “it's the connotation of the word `certify' that just accords the whole process more importance” (Tr. 811-812).

OSHA has carefully considered the feedback it received on this issue and has decided to adopt the requirement as proposed, without a certification requirement. OSHA believes this gives employers maximum flexibility, while still ensuring that employees have demonstrated required proficiencies. The Agency concludes that it is particularly important to provide flexibility for employers using less formal (that is, on-the-job) methods to train workers because, as noted by Messrs. Stauffer and Yancey, it could be challenging for these employers to record training that occurs sporadically and in circumstances that are not conducive to the preparation of written certifications. In addition, as noted in the preamble to the proposal, the Agency does not need training certifications for enforcement purposes under final § 1910.269 and subpart V because compliance with the training requirements can be determined through interviews with management and workers (70 FR 34835). Therefore, the Agency believes that the plain language of the final rule will be at least as effective in protecting workers as a requirement to certify these records; in this regard, the plain language of the final rule still requires employers to determine that each employee demonstrates necessary proficiencies.

OSHA also points out that Note 1 to paragraph (b)(7) specifically clarifies that the rule does not prohibit the keeping of training records. In light of the comments received, OSHA expects that some employers will voluntarily elect to prepare and maintain training records for their own purposes in tracking who has received training and demonstrated the requisite level of proficiency.

OSHA proposed a second note to paragraph (b)(7) of § 1926.950 that described how an employer may treat training that an employee has received previously (for example, through previous employment). OSHA explained in the preamble to the proposal that employers relying on training provided by others would need to take steps to verify that the employee had been trained and to ensure that the previous training was adequate for the work practices the employee would be performing (70 FR 34835). The proposed note read:

Employers may rely on an employee's previous training as long as the employer: (1) Confirms that the employee has the job experience appropriate to the work to be performed, (2) through an examination or interview, makes an initial determination that the employee is proficient in the relevant safety-related work practices before he or she performs any work covered by this subpart, and (3) supervises the employee closely until that employee has demonstrated proficiency in all the work practices he or she will employ.

Several rulemaking participants noted that some employees receive training from third parties, such as unions, and supported OSHA's effort to recognize the potential portability of training. (See, for example, Exs. 0162, 0169, 0234.) For example, MYR Group stated: “MYR Group . . . supports allowing reliance on prior training through demonstration of proficiency—in the circumstance of prior training not conducted by the employer a proficiency demonstration is a reasonable means of avoiding duplicative training” (Ex. 0162).

The line-clearance tree trimming industry, however, claimed that the new note would make it too difficult for an employer to rely on training that its employees received elsewhere. The tree trimmers argued that closely supervising all newly hired employees would be unworkable. (See, for example, Exs. 0174, 0200; Tr. 753-754.) For instance, Mr. Steven Semler representing ULCC argued that the note would unnecessarily require the close scrutiny of experienced and already-trained employees and suggested that the high rate of turnover in the line-clearance tree trimming industry made close supervision of all new hires administratively impractical (Ex. 0174). ULCC preferred existing § 1910.269(a)(2)(vii), which contained the training certification requirement, because, in its view, the existing standard permitted an employer to “verify the [previous employer's] certification records and observe the demonstrated proficiency of the newly hired employee staff” (id.). According to ULCC, “the current standard desirably enable[d] continuity of operations with trained personnel whose proficiency is determined by verification of training and observance of work” (id.). TCIA echoed these arguments and stated that the proposed new note “adds a new hardship to the employer without any offset whatsoever in safety” (Ex. 0200).

OSHA did not impose any new burdens on employers through proposed Note 2 to paragraph (b)(7). The proposed note simply explained one way for an employer to comply with the proficiency-demonstration requirement in final paragraph (b)(7). Tree care industry witnesses described the process they use to determine the proficiency of newly hired experienced employees, and OSHA believes that process is similar to the steps for determining proficiency that were described in proposed Note 2 (Tr. 715-717, 805-806). For example, one tree-care industry witness described his company's process for hiring an experienced employee as follows:

[T]here would be face-to-face interviews. There will be verification of prior certifications and/or training. There will be observations done and there will be field evaluations [to verify] that . . . the certification that they claim to possess they do. [Tr. 805-806]

Although the tree care industry appears to use the process that OSHA envisioned in drafting the proposed note, OSHA reworded the note in the final rule to more closely match the process described by the tree care industry. The note in the final rule explains that for an employee with previous training, an employer may determine that that employee has demonstrated the required proficiency using the following process: (1) Confirm that the employee has the training required by final § 1926.950(b), (2) use an examination or interview to make an initial determination that the employee understands the relevant safety-related work practices before he or she performs any work covered by subpart V, and (3) supervise the employee closely until that employee has demonstrated the required proficiency.

The revised note makes it clearer than the proposed note that the process described in the note is not mandatory. Any process that ensures that the employee is not treated as having completed training until the employer confirms that he or she has had the training required by paragraph (b), and has demonstrated proficiency as required by paragraph (b)(7), is acceptable. The revised language also replaces the phrase “in all the work practices he or she will employ” with “as required by this paragraph” at the end of the note to make it clear that the process is designed to ensure that the employee demonstrates proficiency to the employer as required by the final rule.

Since subpart V covers some transient workers, and training is often provided by previous employers or third parties (for example, unions), some commenters suggested that employers could benefit from the development of a system for storing and accessing training information for all covered workers (Exs. 0196, 0227). EEI noted the potential value of such a system, but did not think it should be an OSHA requirement (Ex. 0227). Also, Mr. Lee Marchessault with Workplace Safety Solutions recommended that OSHA consider recognizing a universal training booklet, called a training passport in some countries, that workers would carry to prove to employers that they have been trained and have demonstrated their abilities (Ex. 0196; Tr. 573-574).

OSHA understands the third-party process by which many line workers are trained. The Agency has adopted Note 2 to paragraph (b)(7) in the final rule partly in recognition that this type of training takes place. The final rule is designed to allow employers to rely on previous training conducted by unions, previous employers, or other third parties. In fact, it would be permissible for employer groups, unions, or other third parties to design and implement a system such as the training passport recommended by Mr. Marchessault, provided that employers using the system complied with relevant OSHA training requirements. OSHA stresses that it is the employer's, not the employee's, obligation to determine that the employee demonstrates proficiency before he or she is deemed to have completed the required training.

OSHA proposed to add provisions to both subpart V and § 1910.269 concerning communication between host employers (utilities) and the contractors they hire to work on their systems. [59] As OSHA explained in the preamble to the proposal, the work covered by Subpart V is frequently done by an employer working under contract to an electric utility (70 FR 34835). Traditionally, employers with electric power generation, transmission, and distribution systems have had a workforce sufficient for the day-to-day maintenance of their systems. These employers usually hire contractors when the work to be performed goes beyond routine maintenance. Thus, contractors typically construct new transmission and distribution lines, perform extensive renovations of transmission and distribution lines (such as replacing a large number of utility poles or upgrading a line to a higher voltage), do line-clearance tree trimming, overhaul generation plants, and repair extensive storm damage. Mr. Donald Hartley of IBEW testified at the 2006 public hearing in this rulemaking that “utilities are increasingly contracting out work, both because contractors bring expertise that the utilities do not themselves possess and as a cost-saving measure to reduce their overall payroll and overhead” (Tr. 875).

In proposing the host-contractor provisions, OSHA explained that, in many (if not all) instances, sharing of information between the electric utility employer and the contractor is necessary to adequately protect the contractor's employees from hazards associated with work on the utility's facilities (70 FR 34838-34839). For example, if the host employers and contract employers do not coordinate their procedures for deenergizing lines and equipment, then contractor employees could mistakenly believe that a line is deenergized when it is not. This mistake could have potentially fatal results for contractor employees. In a similar fashion, as OSHA also explained in the preamble to the proposal, the safety of electric utility employees is affected by the contract employer's work (id.). For example, a contractor's work could cause an overhead energized line to fall on a deenergized line on which an electric utility employee is working, creating hazards for the electric utility employee. Although electric utility employees do not typically work with contract employees, sometimes they do work together. For example, it is common practice for contract employees and electric utility employees to work side by side during emergency-restoration operations, such as after a big storm (Ex. 0505; Tr. 392, 1379-1380). Additionally, contractors in electric power generation plants will be working near utility employees who work in the plant (Tr. 985). The record also indicates that utility and contract employees work side by side in other situations, including during outages on transmission lines (Ex. 0505; Tr. 1380) and while working in the same substation (Ex. 0505; Tr. 313-314, 559).

Because in this host-contractor relationship the work of (or information possessed by) one affects the safety of the other's employees, OSHA believed that it was necessary for host employers and contractors to cooperate and communicate with each other to provide adequate protection for all employees maintaining or constructing electric power generation, transmission, or distribution facilities. Thus, OSHA proposed requirements in § 1926.950 (as well as in § 1910.269) to ensure the necessary exchange of information between host employers and contract employers. The requirements in the proposal were loosely based on similar provisions in the Agency's standard for process safety management (PSM), § 1910.119(h).

IBEW agreed that there was a need for host-contractor requirements in these standards, explaining that it “fully supports the basic principles underlying OSHA's proposals regarding the reciprocal obligations of the host employers and contract employers to provide one another with information necessary to safeguard their workforces” (Tr. 878).

Mr. Donald Hartley of IBEW testified about the importance of host employers and contract employers exchanging “critically important” information (Tr. 877-878). He elaborated that for contractor employees to be “equipped to deal with potential hazards associated with this dangerous work, [they require] access to information that may be in the sole possession of the host employer” (Tr. 876). He continued:

[W]hile some contract employers report that utilities routinely provide this information with every job they contract out, as we have heard, others have found that utilities refuse to disclose that information about operating conditions even when the contract employers specifically request it.

Just as the host employer possesses information critically important to the safety of contract employees, the contract employees may in the course of their work discover conditions about which the host is unaware, also recently testified to. This is particularly true when contract employees are working out in the field on equipment that the host employer may not regularly inspect. [Tr. 877-878]

OSHA received a number of comments suggesting that it should not include host-contractor provisions in the final rule. The Agency has considered these comments and concluded that, although some changes to the proposed regulatory text are necessary (as described later in this section of the preamble), the information-sharing requirements in § 1926.950(c) of this final rule are reasonably necessary and appropriate.

Some commenters took the position that the extent to which host employers and contract employers exchange information with each other is an issue best left to private contracts between the parties. (See, for example, Exs. 0149, 0151, 0159, 0172, 0179, 0188.) For example, the Lewis County Public Utility District commented:

We feel that any arrangement between a contractor and host employer is best handled by contractual language between the two parties without OSHA involvement. This includes how the host employer and contractor communicate and exchange information. [Ex. 0149].

Evidence in the record makes clear, however, that relying on private contracts has proven to be an ineffective method of ensuring the adequate exchange of information between hosts and contractors. A number of participants at the 2006 public hearing explained that there are times when contractors are unable to get the information they need from utilities to permit the contractors' employees to work safely. For example, Mr. Donald Hartley of IBEW testified that “complying with [OSHA standards] requires access to information that may be in the sole possession of the host employer” (Tr. 876). As noted earlier, he also stated that some “utilities refuse to disclose . . . information about operating conditions even when the contract employers specifically request it” (Tr. 877). An ESCI representative agreed, testifying: “I work with a number of utility contractors that tell me that [t]here are a number of things that they are not provided that they need” (Tr. 1240). Also, MYR noted that “although . . . the transfer of information between utilities and contractors has improved tremendously over the last several years, issues still exist in the industry today” (Tr. 1333). In light of this evidence, OSHA concludes that relying on the parties' private contracts to serve this function is unlikely to ensure that host employers and contract employers receive all of the information they need to protect their workers.

Some commenters suggested that OSHA does not have statutory authority to adopt host-contractor provisions. (See, for example, Exs. 0168, 0177, 0209, 0227, 0501.) For instance, EEI commented:

The fundamental point is that the OSH Act simply does not confer authority upon OSHA to require one employer to be responsible for the safety or health of another employer's employees. Any final rule that seeks to impose duties on host employers and contractors vis-à-vis each other will be legally vulnerable. [Ex. 0227]

OSHA has clear authority to include the host-contractor provisions in the final rule. 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. [60] 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 multiemployer provisions. Finally, OSHA's authority to place obligations on employers that reach beyond their own employees has been upheld by numerous courts of appeals and the OSHRC.

The purpose of the OSH Act is to assure so far as possible safe and healthful working conditions for every working man and woman in the nation (29 U.S.C. 651(b)). To achieve this goal, Congress authorized the Secretary of Labor 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 employment and places of employment” (29 U.S.C. 652(8)). (See Building & Constr. Trades Dep't., AFL-CIO v. Brock, 838 F.2d 1258, 1278 (D.C. 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 interactions with its own employees. On the contrary, the OSH Act's broad language gives OSHA almost “unlimited discretion” to devise means to reach the statutory goal. (See United Steelworkers v. Marshall (Steelworkers), 647 F.2d 1189, 1230 (D.C. Cir. 1980).)

Similarly, Section 5(a)(2) of the OSH Act provides that each employer “shall comply with occupational safety and health standards promulgated under” the OSH Act (29 U.S.C. 654(a)(2)). [61] Nothing in this language suggests that compliance is required only when necessary to protect the employer's own employees or that the employer is entitled to endanger other employer's employees at the worksite.

Section 6(b)(7) of the OSH Act specifically permits 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 . . . and proper conditions and precautions of safe use or exposure” (29 U.S.C. 655(b)(7)). (Notably, the Agency's authority to require warnings is not limited to information that would warn the employer's own employees of hazards.) Finally, Section 8(g)(2) of the OSH Act generally affords the Secretary authority to “prescribe such rules and regulations as he may deem necessary to carry out . . . responsibilities under” the OSH Act (29 U.S.C. 657(g)(2)).

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. (See H. Rep. No. 91-1291, 91st Cong., 2d Sess., pp.14-16 (July 9, 1970).) Numerous references in the legislative history of the OSH Act discuss requiring employers to provide a safe and healthful “place of employment.” (See for example, S. Rep. No. 91-1282, 91st Cong., 2d Sess., p. 10 (Oct. 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” (101, Title III, Sec. 304, Nov. 15, 1990, 104 Stat. 2576 (reprinted at 29 U.S.C. 655 Note)). 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 (EPCRA), 42 U.S.C. 11001-11050. The Hazard Communication Standard requires, in part, that manufacturers and importers of hazardous chemicals provide information for the benefit of downstream employees. [62] (See 29 CFR 1910.1200; see also Martin v. American Cyanamid Co., 5 F.3d 140, 141 (6th Cir. 1993) (noting that the Hazard Communication Standard requires “that a manufacturer of hazardous chemicals inform not only its own employees of the dangers posed by the chemicals, but downstream employers and employees as well”).) 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 multiemployer provisions in the Hazard Communication Standard, it would not have approved of it as a basis for obligations in EPCRA.

Furthermore, OSHA has consistently interpreted the OSH Act as authorizing it to impose multiemployer obligations in its standards. In addition to the Hazard Communication Standard and the PSM Standard already noted, OSHA included multiemployer provisions in its standard for powered platforms, which requires that a building owner inform employers that the building installation has been inspected and is safe to use. (See 29 CFR 1910.66(c)(3).) OSHA also has imposed multiemployer obligations in construction standards. For example, OSHA exercised its OSH Act authority to promulgate provisions in the Asbestos Standard for the construction industry that require building owners to communicate the presence of asbestos or presumed asbestos-containing materials to certain employers with employees who may be exposed to such materials. (See 29 CFR 1926.1101(k).) In OSHA's Steel-Erection Standard, the Agency imposed duties on controlling contractors to ensure that site conditions are safe for steel erection. (See 29 CFR 1926.752(c).) More recently, OSHA promulgated rules requiring controlling entities and utilities to take steps to protect other employers' employees during crane operations. (See 29 CFR 1926.1402(c), 1926.1402(e), 1926.1407(e), 1926.1408(c), and 1926.1424(b).)

Finally, OSHA's authority to impose these provisions is confirmed by the decisions of numerous courts of appeals and the Review Commission. For example, the Third Circuit upheld the information-sharing requirements in the Asbestos Standard for the construction industry, noting: “We are not convinced that the Secretary is powerless to regulate in this [way], especially given the findings she has made regarding the importance of building owners in the discovery and communication of asbestos hazards.”Secretary of Labor v. Trinity Indus., Inc. (Trinity), 504 F.3d 397, 402 (3d Cir. 2007). (See also Universal Constr. Co. v. OSHRC, 182 F.3d 726, 728 (10th Cir. 1999) (following decisions from Second, Sixth, Seventh, Eighth, and Ninth Circuits holding that an employer's duties and OSHA standards may extend beyond an employer's own employees).)

EEI asserted that § 1910.12(a) precludes host-contractor requirements in subpart V, commenting:

Section 1910.12(a), standing alone, precludes OSHA from requiring an employer covered by the final Part 1926 rule to take any responsibility for the safety of another employer's employees, certainly insofar as the final standard purports to regulate “construction.” [Ex. 0227].

OSHA disagrees with EEI. Paragraph (a) of § 1910.12 provides:

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.

Paragraph (a) of § 1910.12 has no bearing on the host-contractor requirements in the final rule because the Agency clearly intends to assign specific responsibilities to host employers and contract employers, and the final regulatory text plainly reflects that intent. (See Trinity, 504 F.3d at 402 (rejecting argument premised on § 1910.12(a) where “the regulation at issue . . . specifically applie[d] to building owners”).) Moreover, the Eighth Circuit and the Review Commission have squarely rejected EEI's argument. In Solis v. Summit Contractors, Inc. (Summit Contractors), the Eighth Circuit concluded that § 1910.12(a) is “unambiguous” in that it does not preclude OSHA from citing an employer when only employees of other employers are exposed to the hazard in question (558 F.3d 815, 825 (8th Cir. 2009)). The Review Commission similarly held that § 1910.12(a) does not prevent OSHA from citing a controlling employer that does not have exposed employees (Summit Contractors, Inc., 23 BNA OSHC 1196 (No. 05-0839, Aug. 19, 2010)). Both the Eighth Circuit and the Review Commission emphasized the language in § 1910.12(a) establishing a duty on the part of employers to protect “places of employment” as well as employees. (See, for example, Summit Contractors, 558 F.3d at 824.) The first sentence in § 1910.12(a) makes the construction standards applicable to every employment and to every “place of employment” of every construction employee, and the second sentence, by providing that each employer must protect “places of employment,” does not negate the broad reach of the first sentence.

Moreover, the history of § 1910.12(a) reveals that the purpose of this provision is to extend, not limit, the Agency's authority. Indeed, § 1910.12(a) is located in a subpart entitled “Adoption and Extension of Established Federal Standards,” which was established to extend OSHA's authority through adoption of the Construction Safety Act's standards. (See 29 CFR 1910.11(a) (“The provisions of this subpart . . . adopt[,] and extend the applicability of, established Federal standards . . . with respect to every employer, employee, and employment covered by the Act.”).) Thus, neither the language nor the context of § 1910.12(a) suggest a conflict with the information-sharing requirements in this final rule.

Some commenters asserted that the proposed host-contractor provisions inappropriately expanded or conflicted with OSHA's existing Multi-Employer Citation Policy (CPL 02-00-124 (Dec. 10, 1999)). (See, for example, Exs. 0162, 0167, 0170, 0207, 0237.)

These comments reflect a misunderstanding of both the proposal and the multiemployer citation policy. The host-contractor provisions do not rely on, or modify, the Agency's multiemployer enforcement policy. (See Trinity, 504 F.3d at 402 (distinguishing an enforcement action under the multiemployer provisions of the Asbestos Standard for construction from cases in which the Agency invoked the multiemployer citation policy).) Rather, the multiemployer citation policy and the host-contractor provisions represent separate exercises of OSHA's statutory authority to protect places of employment. The host-contractor provisions and the multiemployer enforcement policy operate in different, yet entirely consistent, ways to permit the Agency to fulfill its statutory mission.

OSHA's multiemployer citation policy simply recognizes the existing responsibilities of different employers at multiemployer worksites under the Act and OSHA standards. For example, employers have a duty not to create hazardous conditions that violate OSHA standards, regardless whether it is their own employees or another employer's that they endanger. (Employers who do so are referred to as “creating employers.”) And employers have a duty to protect their own employees from violative conditions, even if created by another employer. Such “exposing employers” must take reasonable steps to correct the hazards or otherwise protect their workers. Similarly, “controlling employers,” that is, employers with general supervisory authority over safety and health at a worksite, by virtue of that authority, have certain responsibilities to prevent and detect violations affecting employees at the workplace.

When OSHA promulgates new safety and health standards, it does so against this background principle that employers share responsibility for working conditions, and thus for OSHA compliance, at multiemployer worksites. Therefore, when the Agency issues a new safety or health standard, it is with the intention that creating, exposing, and controlling employers at multiemployer worksites will exercise their respective responsibilities to ensure that affected employees are protected as required by the standard.

In some situations, however, the general background principles reflected in the multiemployer policy will not be sufficient to ensure the safety of workplaces; in those instances, OSHA may find it necessary to impose additional or more specific obligations on particular employers to protect workers. The host-contractor provisions in this final rule, as well as similar information-sharing provisions in the Hazard Communication Standard, the PSM Standard, and the Asbestos Standard for construction, are examples of the Agency regulating in this manner. In this rulemaking, OSHA determined that the final host-contractor provisions are necessary, in addition to the general background responsibilities employers have, to ensure the safety of affected employees. Not all utilities (or host employers) will have sufficient authority over, or relationships with, contractor worksites to qualify as controlling employers under the multiemployer citation policy. In addition, the final rule prescribes with specificity the information-sharing responsibilities of hosts and contractors. The specific information-sharing requirements in the host-contractor provisions are necessary to ensure that critical information sharing and coordination take place at all workplaces where employees perform work covered by the final rule.

Some commenters argued that the host-contractor provisions could create employer-employee relationships between host employers and contractor employees. (See, for example, Exs. 0173, 0178.) For instance, the Farmers Rural Electric Cooperative Corporation commented:

It is up to the contractor and the employees of that firm to perform this work, under their supervision and direction, using their work practices and safety rules. Should we as hosts begin to direct their work, provide supervision of that work, oversee their safety practices, the IRS would then say they are our employees and are entitled to benefits. [Ex. 0173]

Also, some commenters suggested, more generally, that the host-contractor provisions could expand the potential legal liability of the respective employers. (See, for example, Exs. 0168, 0187, 0220, 0226.) A few commenters argued that in these ways the proposed host-contractor provisions went so far as to violate the OSH Act. For example, the National Association of Home Builders commented:

[W]e also believe that OSHA's multi-employer language in the proposed rule in Subpart V impermissibly expands the common law liability of host/general contractors in violation [of Section 4(b)(4)] of the OSH Act. [Ex. 0168].

OSHA concludes that, under any of the potentially applicable legal tests for an employment relationship, the final host-contractor provisions are unlikely to result in one employer exercising the type or degree of control over the employees of another employer that would create an employer-employee relationship when one otherwise would not have existed. (See, for example, Nationwide Mutual Ins. Co v. Darden, 503 U.S. 318 (1992) (common-law test for determining who is an “employee”); Antenor v. D&S Farms, 88 F.3d 925 (11th Cir. 1996) (factors relevant to determining whether two employers are “joint employers” of an individual employee for purposes of the Fair Labor Standards Act); Weber v. C.I.R., 60 F.3d 1104 (4th Cir. 1995) (test for determining whether there is an employment relationship for income tax purposes).)

OSHA also disagrees with the commenters' claim about Section 4(b)(4) of the OSH Act. That provision states:

Nothing in [the OSH] Act shall be construed to . . . in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment. [29 U.S.C. 653(b)(4)]

This provision serves two purposes: First, it establishes that the OSH Act does not create a private right of action. (See, for example, Crane v. Conoco, Inc., 41 F.3d 547 (9th Cir. 1994).) Second, it makes clear that the duties and liabilities imposed under the OSH Act do not displace the duties and liabilities that exist under State tort and workers' compensation schemes. (See, for example, Frohlick Crane Serv., Inc. v. OSHRC, 521 F.2d 628 (10th Cir. 1975).)

OSHA acknowledges that State courts are free to permit the use of OSHA regulations, including these final host-contractor provisions, as evidence of a standard of care in a negligence action. (See, for example, Knight v. Burns, Kirkley & Williams Constr. Co., 331 So.2d 651 (Ala. 1976).) However, it does not follow that regulations used in that fashion are invalid under Section 4(b)(4) on the ground that they expand employers' common-law liabilities, a result that would limit the Secretary's rulemaking authority to issuing regulations that codify duties already owed by employers at common law. Such a result would be inconsistent with Congressional intent in promulgating the OSH Act, and no court has ever invalidated an OSHA regulation on the ground that it violates Section 4(b)(4). Indeed, courts have squarely rejected the argument that Section 4(b)(4) precludes multiemployer enforcement practices. For example, in Summit, the Eighth Circuit concluded that OSHA's multiemployer citation policy did not violate Section 4(b)(4), explaining that even though it could “increas[e] an employer's liability at common law[,]” the policy “neither creates a private cause of action nor preempts state law” (558 F.3d at 829). (See also Steelworkers, 647 F.2d at 1234-36.)

OSHA decided to adopt the proposed host-contractor provisions, with some substantial modifications (described later in this section of the preamble), in the final rule. Before addressing each specific provision, however, OSHA must first address the scope of these requirements.

The proposal defined a “host employer” as “[a]n employer who operates and maintains an electric power transmission or distribution installation covered by subpart V of this Part and who hires a contract employer to perform work on that installation.” This definition included electric utilities and other employers that operate and maintain electric power transmission or distribution installations. However, it did not include employers that own, but do not operate and maintain, such installations. The Agency believed that entities that do not operate or maintain these installations would generally not have the expertise necessary to work safely on transmission or distribution lines and equipment and would have little hazard-related knowledge to pass on to contractors. In addition, the employees of such entities would have little if any exposure to hazards created by a contract employer. The Agency invited comments on whether excluding such employers from the host-contractor provisions would unduly jeopardize employee safety and whether any of the host-contractor provisions could reasonably be applied to such employers.

Some commenters, such as Energy United EMC (Ex. 0219), supported the proposed exclusion of owners that do not operate or maintain installations. Ohio Rural Electric Cooperatives commented: “If an employer only owns but does not actually operate its own lines or equipment then that employer would certainly not be able to pass on any useful information to a contractor” (Ex. 0186).

IBEW took the position that “[e]xcluding such employers from any host-contract employer provisions, in general, should not jeopardize employee safety,” but questioned whether those entities may make “decisions on how the system will be operated, such as switching procedures and load transfer, that . . . could have a direct impact on worker safety” (Ex. 0230). The union went on to suggest that “[w]hatever entity has the responsibility and/or decision making power as to how the system is operated should be included in the proposed provisions” (id.).

Others commented that the host-contractor provisions should apply to all system owners. Ms. Susan O'Connor of Siemens Power Generation commented, for example, that excluding owners that do not perform operations or maintenance could jeopardize employee safety “in situations where host employers might use this provision as a loophole to avoid regulation” (Ex. 0163). Ms. O'Connor suggested that a utility could “eliminate [its] qualified maintenance department and outsource . . . maintenance to avoid dealing with this regulation” (id.). MYR Group also “believe[d] that the protections afforded to contractors through the host employer obligations should apply regardless of whether the host actually operates the installation” (Ex. 0162). MYR thought that “[s]erious and inequitable problems could arise from failure to apply the proposed rule requirements on host employers that own but do not operate their electric utility installations” (id.).

OSHA considered the record and concludes that the host employer should be the employer that is in the best position to have information on the design, operation, and condition of an electric power generation, transmission, or distribution system. Based on this principle, OSHA decided that an employer that controls how the system is operated, such as switching procedures and load transfer, should not be excluded from the host-contractor provisions. Depending on the type of work practices used, such operational control could have a direct impact on worker safety. For example, an employer that controls the operation of an electric power generation, transmission, or distribution system could institute new switching procedures without informing contractors or coordinating the new procedures with contractors (Ex. 0230). In addition, because an employer, to fall within the proposed definition of “host employer,” needed to operate and maintain the installation and hire the contractor, it would have been possible under the proposal to have scenarios in which there was no host employer, such as if one employer owned the installation (and hired the contractor) and a different employer operated or maintained the installation. This result could have undermined the information-sharing requirements altogether.

The Agency is revising the definition of “host employer” to include employers that operate installations or control procedures for operation of installations without regard to whether the employer owns the installation. In addition, OSHA is deleting the reference to “maintenance” in the final definition of “host employer” because the Agency believes that an employer that only maintains an electric power generation, transmission, or distribution system is unlikely to have knowledge of the design, operation, and condition of the installation; employers that perform such maintenance may be contractors hired by an electric utility. (See, for example, Tr. 403, 1200-1201.) Maintenance contractors will need information from the employer that operates or controls the operation of the installation, as would any other contractor. The final rule states that an employer that operates, or that controls the operating procedures for, an electric power generation, transmission, or distribution installation on which a contract employer is performing work covered by subpart V is a host employer. A note to the definition of “host employer” provides that OSHA will treat the electric utility or the owner of the installation as the host employer if it operates or controls operating procedures for the installation. If the electric utility or installation owner neither operates nor controls operating procedures for the installation, OSHA will treat the employer that the utility or owner has contracted with to operate or control the operating procedures for the installation as the host employer. In no case will there be more than one host employer. (See the definition of “host employer” in final § 1926.968.)

The revised definition incorporates IBEW's recommendation that the Agency focus on the entity that has control over the system. OSHA believes any such entity is likely to have critical safety-related information about the system. In addition, the revised language renders Ms. O'Connor's comment moot; the revised language ensures that an entity that is in a position to have information that affects the safety of contractor employees will be identified as a host employer under the final rule. [63] Note that OSHA has added electric power generation installations to the installations covered by the definition of “host employer” in subpart V for consistency with the definition of this term in § 1910.269.

In addition, the definition in the final rule removes the criterion that the host employer be the entity that hires the contractor. The record indicates that various entities hire contractors to work on electric power generation, transmission, and distribution installations. For example, utility owners hire contractors to perform maintenance (Ex. 0186; Tr. 403). In addition, some contractors subcontract some of their work (Tr. 315-316, 1380-1381). Subcontractors will be treated as “contract employers” under the final rule even though the host does not hire them directly. [64] The standard's information-exchange requirements hinge on the need to exchange information between the entity that operates or controls operating procedures for the system and entities that are performing maintenance or construction work on the system. The type of contractual relationship that exists between the host employer and contract employers does not change the need for this information exchange. OSHA realizes that the final rule will require some employers to exchange information with entities with which they have no direct contractual relationship. These employers can either exchange information directly with each other or can arrange to handle their information exchange through contacts with entities that do have contractual relationships with the other employer. For example, an electric utility transmitting information to an employer under contract to perform work on the installation could instruct (or contract for) that contractor to share the same information with any subcontractors hired to perform work under the contract. Ultimately, however, it is the host employer's responsibility to ensure that whatever procedures it uses are adequate to get the required information to all “contract employers” working on the installation. Paragraph (c)(3) of final § 1926.950 (discussed later in this section of the preamble) requires host employers and contract employers to coordinate their work rules and procedures; part of this coordination involves establishing appropriate procedures for exchanging information in accordance with the host-contractor provisions.

The other issue involving coverage under the host-contractor provisions pertains to line-clearance tree trimming. OSHA proposed to exclude from the host-contractor requirements work done by line-clearance tree trimmers who are not qualified employees. As discussed earlier in this section of the preamble, line-clearance tree-trimming work is covered by § 1910.269. Paragraph (a)(1)(i)(E)(2) of existing § 1910.269 lists the paragraphs of that section that apply to work performed by line-clearance tree trimmers who are not qualified employees, and OSHA did not propose to add the host-contractor provisions to that list.

By not proposing to modify existing § 1910.269(a)(1)(i)(E)(2), OSHA would not have applied the host-contractor provisions to line-clearance tree-trimming operations performed by unqualified employees. However, as long as qualified employees are using electrical protective equipment, these employees would be permitted to come much closer to energized parts than unqualified employees. The Agency believed that qualified employees performing line-clearance tree-trimming work in proximity to energized lines and equipment face hazards similar to contract power line workers and should receive similar protection. [65]

OSHA requested comments on whether its proposed approach for dealing with line-clearance tree-trimming work under the host-contractor provisions unduly jeopardized employee safety and whether any of the host-contactor provisions could reasonably be applied to tree-trimming work performed by line-clearance tree trimmers who are unqualified employees. Many commenters supported OSHA's proposal. (See, for example, Exs. 0126, 0174, 0177, 0200, 0201, 0213, 0219, 0227.) For instance, EEI agreed “that line clearance tree-trimming contractors should be excluded from the requirement,” explaining: “Host utilities are usually not familiar with the hazards associated with trimming trees and routinely rely on the expertise of the line clearance tree-trimming contractors to perform that work in a manner which ensures the safety of their employees” (Ex. 0227). These comments were echoed by ULCC, which “commended” OSHA's proposal to exclude work done by line-clearance tree trimmers who “do not work on or touch electric supply lines” from the host-contractor provisions (Ex. 0174). ULCC urged the Agency to maintain this exclusion in the final rule, commenting:

[T]he wisdom of the exclusion is manifest: for, the rationale of the proposed “host-contractor” provisions . . . is to apply the utilities' expertise to utility contractors performing utilities' typical work—in effect, to force down utilities' safety expertise onto their electric-work contractors in order to raise the safety experience rate of those contractors to the better safety rate of the utilities who employ them. Such policy-driver for applying “host-contractor” to utility contractors performing electric utility (i.e. lineman) “qualified” work, simply is inapplicable to line clearance work: for, the utilities hire line clearance contractors because line clearance contractors are arborists who are specialists in vegetation management—precisely skills which the utilities contract out because they typically do not have that expertise in tree growth, tree trimming techniques, tree rigging, tree removal, vegetation management, etc. In short, utilities simply do not have the institutional expertise of line clearance tree knowledge to develop and direct line clearance safety practices of line clearance contractors via “host-contractor” provisions. . . . So, the “force-down” premise of “host-contractor” simply does not apply to line clearance. [Id.; emphasis included in original.]

Duke Energy commented that “[t]here should be no expectation that host employers provide information on tree-trimming hazards to line-clearance tree trimming contractors,” suggesting that “[a]pplying the host-contract employer provisions [in the context of line-clearance tree trimming] will be very difficult” (Ex. 0201).

Some commenters, however, advised against the proposed exclusion and argued that all line-clearance tree trimmers should be covered by the host-contractor provisions. (See, for example, Exs. 0162, 0186, 0230, 0234.) IBEW, for instance, commented:

Line-clearance tree-trimming work could, in some instances, be affected by the host employer[']s operation of the system. Lockout/Tagout procedures during service restoration are one example where contractor employee safety could be jeopardized if line-clearance tree-trimming contractors are excluded from all provisions of the proposed host-contract employer provisions. At a minimum, information regarding circuit conditions, changes in conditions, and lockout/tagout applications should be communicated by the host employer to the contractor employer. [Ex. 0230]

The Ohio Rural Electrical Cooperatives agreed, also suggesting that all line-clearance tree trimmers be covered by the host-contractor requirements. That organization explained that tree trimmers “might not need as much information as a line contractor but they still need to know for sure which lines are energized, which are on single-shot protection, etc.” (Ex. 0186). Mr. Wilson Yancey of Quanta Services noted that “[w]hether an employee is qualified or not, hazards will exist that are unique to the host employer” (Ex. 0234). He believed that the proposal to leave some line-clearance tree trimmers out of the host-contractor requirements was “not well-founded and might unduly jeopardize employee safety” (id.).

The Agency recognizes that line-clearance tree trimmers do not face exactly the same hazards as line workers. However, the record indicates that host employers have information that line-clearance tree trimmers need so that they can perform their work safely (Ex. 0505; Tr. 642-643, 686-688, 775). For example, Mr. Mark Foster of Lucas Tree Experts testified that line workers will generally inform tree crews that a line is about to be reenergized (Tr. 642-643). In addition, ULCC's posthearing brief indicated that “line clearance tree trimmers necessarily must rely upon information from utility representatives that the line has been deenergized, isolated and grounded when those procedures are appropriate” and that the “safety of line clearance tree trimmers would be enhanced by . . . utilities being required, by OSHA standard, to give [certain] information to line clearance tree trimmers” (Ex. 0502).

Not only do line-clearance tree trimmers need information from utilities, but line-clearance tree trimming contractors often have important safety information for utilities, for example, information they discover in the course of work about hazardous conditions that could affect utility employees. Such conditions can include downed power lines, transformer problems, and insulator and pole issues (Tr. 665, 689-690, 787-788).

Upon considering the record, it has become apparent to OSHA that: (1) There is a need for information exchange between host employers and tree-trimming contractors and (2) the host-contractor provisions should apply to all line-clearance tree trimming. Therefore, the Agency added § 1910.269(a)(3) to the list of paragraphs denoted in final § 1910.269(a)(1)(i)(E)(2) to cover line-clearance tree-trimming operations performed by line-clearance tree trimmers who are not qualified employees.

As noted earlier, some commenters maintained that utilities hire contractors for their expertise and knowledge about particular hazards and rely on those contractors to use that expertise to protect their (that is, the contractors') own employees. (See, for example, Exs. 0127, 0172, 0173, 0177, 0200, 0207, 0227.) For instance, Mr. Frank Brockman with Farmers Rural Electric Cooperatives Corporation stated, “We, as host employers, hire contractors to do specific jobs, often that we do not have the knowledge, expertise, equipment or manpower to accomplish.” He maintained that “[c]ontractors are responsible for their employees' safety” (Ex. 0173). SBA commented that “the host is usually not present at these worksites and often does not possess expertise in the type of work being performed” and noted that “many of the SERs questioned whether the host-contractor provisions are appropriate for the electric power industry at all” (Ex. 0207).

Some comments specifically addressed the issue of whether line-clearance tree trimming firms should be covered by the host-contractor provisions. For example, Consumers Energy stated, “Host utilities are usually not familiar with the hazards associated with trimming trees and routinely rely on the expertise of the line clearance tree-trimming contractors to perform that work in a manner which ensures the safety of their employees” (Ex. 0177). In addition, TCIA stated:

OSHA makes the correct assertion that the utility must have a shared expertise with the contractor in order to specify its safety standards for the contractor to follow. In stark contrast, utilities typically contract line clearance tree trimming because of their lack of expertise in that subject. [Ex. 0200; emphasis included in original]

OSHA recognizes that contractors may have specific expertise that host employers do not have. However, the Agency does not believe that this is a valid reason not to require the type of information exchange required by the final rule. As noted earlier, electric utilities have information about their systems that the contractors do not have. The Agency also believes that contractors, especially those hired for expertise in a particular area, have information about hazardous conditions related to their work that host employers do not have (for example, the dangers posed to the host employer's employees from chippers and falling tree limbs). In addition, when one employer's activities may endanger another employer's employees, the Agency believes that it is essential for the two employers to coordinate their activities to ensure that all employees are adequately protected. For example, as noted later in this section of the preamble, it is important for an electrical contractor to coordinate procedures for deenergizing and grounding lines and equipment with the host employer. Similarly, it is important for line-clearance tree trimming firms to coordinate their work with host employers and to inform host employers of hazardous conditions posed by the tree-trimming work to ensure that the host employers' employees are not exposed to tree-trimming hazards about which those employees have received no training.

OSHA proposed to define “contract employer” as “[a]n employer who performs work covered by subpart V of this part for a host employer.” OSHA did not receive any significant comment on this definition. However, OSHA is revising the definition to include any “work covered by subpart V of this part under contract” rather than just work “for a host contractor.” This revision correlates the definition of “contract employer” with the revised definition of “host employer,” which no longer provides that an employer must “hire” another employer to be a host employer. This revision makes it clear that an employer performing subpart V work under contract is covered as a “contract employer” by the host-contractor provisions in final paragraph (c) regardless of whether the entity for which the work is being performed is the “host employer” or another “contract employer.” Contract employers under the final rule may include painting contractors, line-construction contractors, electrical contractors, and any other contractors working on the construction of electric power transmission and distribution lines. (For final § 1910.269, contract employers will also include contractors working on covered electric power generation installations, such as boiler-maintenance contractors, conveyor-servicing contractors, and electrical contractors.) The definition of “contract employer” does not include contractors that might be present at a jobsite where some work performed is covered by subpart V, but that are not performing covered work.

Paragraph (c) of final § 1926.950 contains requirements for the transfer of information between host employers and contract employers. In the proposal, OSHA entitled this paragraph “Contractors.” After considering the comments received, the Agency concludes that the proposed title does not reflect the true scope of the paragraph's provisions. The title at final § 1926.950(c) is being changed to “Information transfer” to more appropriately describe the requirements contained in the paragraph. [66] In addition, the final rule does not include proposed § 1926.950(c)(1)(ii), which would have required host employers to report observed contract-employer-related violations of this section to the contract employer. Consequently, OSHA renumbered proposed paragraph (c)(1)(i) (and subordinate paragraphs (c)(1)(i)(A) and (c)(1)(i)(B)) as final paragraph (c)(1) (and subordinate paragraphs (c)(1)(i) through (c)(1)(iv)).

Proposed paragraph (c)(1)(i) required host employers to provide certain information to contract employers. Paragraph (c)(1)(i)(A), as proposed, required host employers to provide contractors with information about “[k]nown hazards that are covered by this section, that are related to the contract employer's work, and that might not be recognized by the contract employer or its employees.” The purpose of this provision was to ensure that contractors could take measures to protect their employees from hazards posed by hosts' workplaces. Although this proposed provision would not require hosts to inform contract employers of hazards that contract employees are expected to recognize, such as hazards posed by an overhead power line, the proposal provided that hosts inform contract employers of hazards known to the hosts that might not be recognized by the contractors. For example, if a host employer knew that a particular manhole on its system was subject to periodic contamination from a nearby fuel tank, the host was to share this information with the contractor.

OSHA received considerable feedback on this proposed requirement. (See, for example, Exs. 0146, 0159, 0160, 0167, 0175, 0178, 0186, 0201, 0227, 0234, 0480, 0505; Tr. 1333-1334.) Some commenters agreed with the proposal to require host employers to inform contractors of known hazards. (See, for example, Exs. 0167, 0169, 0234; Tr. 1333-1334.) For example, the Iowa Association of Electric Cooperatives commented that its members supported proposed paragraph (c)(1)(i)(A), explaining that “[i]t is . . . common practice for Iowa's cooperatives to inform their contract employers of hazards that are related to the contract employer's work that might not be recognized by the contract employer or its employees” (Ex. 0167).

However, most of the comments on this provision objected to the proposed language. The most common complaint was that the proposed language was too broad or vague. (See, for example, Exs. 0146, 0175, 0178, 0201, 0227.) For instance, EEI commented:

This proposal is impermissibly vague because it fails to provide adequate notice of what would constitute compliance. See, e.g., Ga. Pac. Corp., v. OSHRC, 25 F.3d 999 (11th Cir. 1994). For example, what are hazards “that are covered by this section?” Considering that the proposed standards incorporate the requirements of many standards other than those addressed in the proposal, would host employers be required to inform contractors of known hazards addressed by all potentially applicable standards? Even if the term is confined to the standards under consideration here, this is a vastly overbroad requirement.

Next, what is the test for determining the hazards that are “related” to the contractor's work? Further, on what objective basis is a host employer to determine which hazards might not be recognized by the contract employer or its employees? Does this mean that the host must be sufficiently familiar with the training of a specialty contractors' employees to allow an intelligent assessment of what hazards those employees “might” or “might not” recognize? What will be the penalty for mis-evaluating these possibilities, if made in good faith?

Indeed, what are “hazards” for purposes of this rule? Are they limited to conditions and practices that pose a significant risk of injury to employees, and would the likelihood of occurrence and degree of gravity make a difference? Similarly, what are “known” hazards? Are they hazards that the host employer actually knows of, or are they hazards that a host employer should have known through the exercise of reasonable diligence? Does actual knowledge for this purpose mean knowledge of any hazard that can be discerned by searching a company's records—a daunting test for an electric utility that may have decades of records related to work on transmission and distribution facilities that cover literally thousands of square miles—or is a more realistic test to be applied? If so, what is it? [Ex. 0227]

Mr. James Shill with ElectriCities similarly commented that the proposed provision would ‘require ElectriCities’ members to take into account every section of the OSHA standards, as well as others incorporated by reference, and make a ‘guess’ as to all of the potential hazards a contractor may be unable or unwilling to ‘recognize’ (Ex. 0178). Ms. Salud Layton with the Virginia, Maryland & Delaware Association of Electric Cooperatives argued that “[t]he phrase ‘might not be recognized by the contract employer or its employees’ is too broad” and suggested that the proposed paragraph be revised to “specifically state the items that must be provided by the host employer to the contract employer” (Ex. 0175).

Some commenters proposed new language for this provision. (See, for example, Exs. 0201, 0227, 0505.) For instance, EEI suggested:

[T]he final rules should be limited to requiring that a host employer notify a contractor of a hazard where: (1) The host employer has actual knowledge: (a) That the hazard is present, and (b) that the contractors' employees are likely to encounter the hazard in performing the work for which the contractor is engaged; (2) given its known expertise, the contractor cannot reasonably be expected to recognize the hazard; and (3) for this purpose, the “hazard” is a condition or practice that poses a significant risk of death or serious physical harm to the contractor's employees. The standard should also make clear that the host employer is not obligated to evaluate each job assigned to a contractor to determine whether such hazards are presented. [Ex. 0227]

IBEW, although generally supporting this and the other proposed host-contractor requirements, also suggested changes to paragraph (c)(1)(i)(A). The union proposed:

The host employer shall inform the contract employer of . . . existing or reasonably anticipated hazards covered by this subsection (i) of which the host employer is aware, (ii) that are related to the contract employer's work, and (iii) that are sufficiently unique to the host employer's operations or premises that the contract employer or its employees would not, through the exercise of reasonable care, be expected to recognize. [Ex. 0505]

Mr. Donald Hartley with IBEW explained:

It is important . . . to require the host employer to disclose hazardous conditions that it knows actually exist and that it reasonably anticipates may exist. The point here is to include hazards that may exist intermittently: for example, switching surges or environmental conditions or only under certain circumstances that, when they occur, affect the workplace safety.

Second, the focus of the information disclosure should be on information that is sufficiently unique to the host's workplace or operations that the contract employer cannot be expected to know without the input from the host employer. A contractor may be unable to identify hazards not only because it lacks the technical expertise, but for the very basic reason that it is unfamiliar with the unique features of the host's operation or workplace environment. Again, environmental conditions or specific operating procedures are examples of this.

Finally, we believe that host employers should be required to disclose any hazards that threaten contractor employees with any illness or injury, not just death or the most serious of physical harm. [Tr. 879-880]

OSHA considered the comments on proposed paragraph (c)(1)(i)(A) and continues to believe that the final rule should include a requirement for host employers to convey certain information to contractors that will bear on the contractor's ability to ensure the safety of its employees. Much of the opposition to this provision was to the specific language in the proposal, not to the general principle that utilities have safety-related information that should be shared with contractors.

OSHA is sensitive to the concerns of commenters who noted that the proposed language was overbroad or unclear. Therefore, OSHA revised the final rule to more clearly define the information host employers must provide to contractors. The Agency is linking the information-transfer requirements, in part, to the requirement in final § 1926.950(d) for determining existing conditions. (Paragraph (d), discussed later in this section of the preamble, is essentially the same as existing § 1910.269(a)(3).) In the final rule, § 1926.950(d) requires a determination of the existing characteristics and conditions of electric lines and equipment related to the safety of the work. The examples of “existing conditions” that were listed in proposed paragraph (d) have been separately numbered in final paragraph (d). The first five items of information listed in final paragraph (d) are “characteristics” of the electric power installation. The remaining three items of information listed in final paragraph (d) are “conditions” at those installations. Therefore, paragraphs (c)(1)(i) and (c)(1)(ii) of the host-contractor provisions in the final rule refer to (and require the sharing of) information about the characteristics and conditions specifically listed in final paragraph (d) that are related to the safety of the work to be performed.

Contract employers may request from the host employer information they need to protect their employees, in addition to the information that host employers must provide under final paragraphs (c)(1)(i) through (c)(1)(iii). [67] Thus, final paragraph (c)(1)(iv) requires host employers to provide contractors with information about the design or operation of the host employer's installation that is known by the host employer, that the contract employer requests, and that is related to the protection of the contract employer's employees.

As already noted, OSHA decided to adopt language in paragraphs (c)(1)(i) and (c)(1)(ii) in the final rule that more clearly specifies the information that host employers must provide to contractors and does so by using language that is familiar to employers complying with existing § 1910.269. [68] Paragraph (d), discussed later in this section of the preamble, lists specific characteristics and conditions of electric lines and equipment that must be determined before work on or near electric lines or equipment is started when these characteristics and conditions are related to the safety of the work to be performed. These characteristics and conditions include the nominal voltages of lines and equipment, maximum switching transient voltages, the presence and condition of protective grounds and equipment grounding conductors, and the condition of poles. Host employers are the parties that possess much of this information, and it would be difficult in many cases (and impossible in others) for contract employers to determine these conditions and comply with paragraph (d) without getting the necessary information from the host employer.

For example, an electrical contractor might be able to make a reasonable estimate of the nominal voltage on a line through examination of the equipment. However, having the host employer provide that information to the contractor eliminates guesswork and the hazards associated with inaccurate estimates.

Similarly, contractors will usually be unable to determine the maximum switching transient overvoltages on a power line without information from the host employer. The maximum per-unit transient overvoltage determines the minimum approach distance for workers to maintain from exposed, energized parts (see the discussion of this issue under the summary and explanation of final § 1926.960(c)(1) later in this section of the preamble). Without this information from the host, a contractor might not adhere to the proper minimum approach distance and, as a result, a power line worker might come too close to the power line and be at risk of serious injury from electric shock and burns.

Paragraph (c)(1)(i) of the final rule provides that, before work begins, the host employer must inform the contractor of the characteristics of the host employer's installation that are related to the safety of the work to be performed and are listed in paragraphs (d)(1) through (d)(5). These characteristics are: the nominal voltages of lines and equipment, the maximum switching-transient voltages, the presence of hazardous induced voltages, the presence of protective grounds and equipment grounding conductors, and the locations of circuits and equipment, including electric supply and communication lines and fire-protective signaling circuits. [69] OSHA presumes that host employers have this information because they typically need it for the design and operation of an electric power generation, transmission, or distribution system. A note to final paragraph (c)(1)(i) explains that in an unusual case in which the host employer does not have this information in existing records, it must obtain the information for purposes of complying with paragraph (c)(1)(i).

Paragraph (c)(1)(ii) of the final rule requires that, before work begins, the host employer inform the contract employer of the conditions of the host employer's installation that are related to the safety of the work to be performed, that are listed in final paragraphs (d)(6) through (d)(8), and that are known to the host employer. These conditions are: the condition of protective grounds and equipment grounding conductors, the condition of poles, and environmental conditions relating to safety. Final paragraph (c)(1)(ii) only requires host employers to provide known information to contractors. Host employers gain information on the condition of their electric power generation, transmission, and distribution systems through normal preventive-maintenance inspections; and, if host employers find conditions listed in final paragraphs (d)(6) through (d)(8) and related to the safety of work to be performed by a contractor during such inspections, the host employer must pass that information to the contract employer under final paragraph (c)(1)(ii). For example, if a utility conducts a wood-pole inspection program and finds several poles that are structurally unsound and that need replacement, this information must be imparted to a contractor whose work involves the affected poles. However, this paragraph only requires the host employer to provide information that the host can obtain from existing records through the exercise of reasonable diligence; this provision does not require host employers to conduct inspections to identify these conditions. To make this clear in the final rule, OSHA included a note following paragraph (c)(1)(ii) clarifying that, for the purposes of that paragraph, the host employer does not have to inspect of worksite conditions or otherwise get information that it cannot obtain through a reasonably diligent search of its existing records.

OSHA believes that the revised language in paragraphs (c)(1)(i) and (c)(1)(ii) of the final rule addresses the concerns expressed by commenters, such as ElectriCities and EEI, about the clarity and scope of proposed paragraph (c)(1)(i)(A). The provision no longer requires host employers to determine whether a hazard exists or whether contractors might be expected to recognize particular hazards.

Under final paragraph (c)(1)(iv), before work begins, a host employer must provide additional information about the design or operation of the installation, but only if that information (1) is known by the host employer, (2) is requested by the contract employer, and (3) is related to the protection of the contract employer's employees. A note to final paragraph (c)(1)(iv) clarifies that, for purposes of complying with that paragraph, the host employer is not required to make inspections or otherwise get information that it cannot obtain through a reasonably diligent search of its existing records.

IBEW commented that, “[i]n addition to the information about `existing conditions' needed to perform the hazard analysis, there may be other information unique to the host's operations or premises that the contractor employer needs to ensure the safety of its employees” (Ex. 0505). The union identified “schedules of other crews that may be working on the same circuits or equipment, anticipated operational changes, and the potential impact of unique localized climatic, environmental or geological conditions” as examples of such information (id.). Details about the scheduling of outages is another example of information a contractor might need to obtain from the host employer before employees start work.

OSHA is not explicitly requiring host employers to provide this other type of information to contractors. The Agency believes that, although information such as the scheduling of crews may prove useful in some situations, it is not always essential to ensure the safety of employees. When a contractor needs this information to protect its employees, the contractor may request this type of information under final paragraph (c)(1)(iv). In addition, OSHA believes that host employers and contract employers will exchange this type of information in their efforts to comply with other provisions in final paragraph (c). For example, when host and contractor crews will be working together or on the same circuit, OSHA intends for both employers to exchange crew-scheduling information when necessary to comply with final paragraph (c)(3) (discussed later in this section of the preamble), which requires the contract employer and the host employer to coordinate their work rules and procedures to ensure that employees are protected as required by subpart V.

As a general matter, OSHA does not believe that the information host employers must share with contract employers under final paragraph (c)(1)(iv) is likely to contain proprietary information or trade secrets. OSHA recognizes, however, that an unusual case could arise presenting issues related to trade secrets. In any such case, OSHA expects that the host employer will find a way to provide the necessary information to the contract employer without divulging trade secrets or will share the information with the contract employer pursuant to an appropriate confidentiality agreement.

Southern Company expressed concern that contractors and their employees might rely on the information provided by the utility in lieu of doing a thorough job briefing as required by final § 1926.952 (Ex. 0212). Final § 1926.950(c)(1)(i), which requires host employers to provide information to contractors, does not replace the contract employer's basic responsibility to conduct the job briefing required by final § 1926.952. The briefing will impart information, including relevant information a contractor obtains from a host employer, to the employees doing the work. The requirements in final §§ 1926.950(c)(1) and (d) and 1926.952 work in combination to ensure that the employees performing the work are provided with sufficient information to perform that work safely.

Proposed paragraph (c)(1)(i)(B) required host employers to provide contract employers with information about the installation that the contract employer would need to make the assessments required elsewhere in Subpart V. EEI inquired as to who (the host or contract employer) would be responsible for deciding what assessments the contractor must make and whether the host would have to survey contractor work areas to identify hazards that need assessment (Ex. 0227).

The language in final paragraph (c)(1)(iii) states explicitly that, before work begins, the host employer must provide information that the contract employer needs to perform the assessments. In addition, the language from the proposal has been modified in the final rule to limit the information the host employer must provide to “[i]nformation about the design and operation of the host employer's installation.” Table 2 shows the assessments that are implicitly or explicitly required by final subpart V and lists information that the Agency anticipates contractors will need to perform the required assessments.

Table 2—Assessments Required by Subpart V Back to Top
Provision Assessment required Type of information to be provided under § 1926.950(c)(1)(iii)
1Includes information on conditions that must be in place for the maximum transient overvoltage to be valid, such as whether circuit reclosing devices are disabled.
§ 1926.953(a) Whether an enclosed space must be entered as a permit-required confined space Whether an enclosed space contains hazards, other than electrical and atmospheric hazards, that could endanger the life of an entrant or could interfere with escape from the space.
§ 1926.953(m) Whether forced air ventilation has been maintained long enough that a safe atmosphere exists The size of the enclosed space.
§ 1926.960(c)(1)(i) What is the appropriate minimum approach distance for the work to be performed What the operating conditions are for the value of the maximum transient overvoltage provided to the contract employer.1
§ 1926.960(g)(1) Whether employees are exposed to hazards from flames or electric arcs Information on electric equipment, such as safety information provided by manufacturers, that relates to the required hazard assessment.
§ 1926.960(g)(2) What is the estimated incident energy from an electric arc The electrical parameters needed to calculate incident energy, such as maximum fault current, bus spacings, and clearing times.
§ 1926.960(k) Whether devices are designed to open or close circuits under load conditions Load current for, and the opening and closing ratings of, devices used to open and close circuits under load.
§§ 1926.961 and 1926.967(h) What are the known sources of electric energy (including known sources of backfeed) supplying electric circuits All known sources of electric energy, including known sources of backfeed.
§ 1926.962(d)(1)(i) Whether protective grounds have adequate current-carrying capacity The maximum fault current and clearing time for the circuit.
§ 1926.962(g) Whether there is a possibility of hazardous transfer of potential should a fault occur Potential rise on remote grounds under fault conditions.
§ 1926.964(a)(2) Whether overhead structures such as poles and towers are capable of sustaining stresses imposed by the work The design strength of the pole or structure.

In specific cases, contractors may need information that is somewhat different from that described in Table 2. OSHA expects that contractors will inform host employers if they need additional information, and that information must be provided to the extent the host employer is required to provide it by final paragraph (c)(1)(iii). In addition, the Agency does not expect host employers to provide contractors with information in the table if the contractor informs the host that the information is not needed.

EEI questioned whether the proposed provision was limited to information actually known by the host employer (Ex. 0227). OSHA expects that the host employer will usually have, in existing records, information about the design and operation of its installation that the contract employer will need to make required assessments. OSHA presumes that host employers know their electric power generation, transmission, or distribution installations and know their systems' nominal system and operating voltages, available fault currents, relay protection schemes, anticipated relay clearing times, and switching schedules. As IBEW noted, this is information “that the host employer should have for basic operational purposes and that is generally solely in the host's possession” (Ex. 0505). In addition, electric utilities will also need to have this information to perform their own required assessments when their employees are performing work on the utilities' installations. However, the record also indicates that, in some unusual circumstances, electric utilities do not have basic information about their system readily available. (See Mr. Brian Erga's testimony regarding a nuclear power plant that did not know its available fault current, Tr. 1241-1242.) In such cases, the final rule requires the host employer to ascertain the information and provide it to its contractor so that the contractor can conduct the required assessments. A note to final paragraph (c)(1)(iii) clarifies that, in any situation in which the host does not have such information in existing records, it must obtain the information and provide it to the contract employer to comply with paragraph (c)(1)(iii). [70]

Mr. Steven Theis of MYR Group recommended that the final rule require hosts and contractors to perform joint hazard analyses (Tr. 1334).

The final rule neither requires nor prohibits such joint assessments. Even if employers do not conduct a joint hazard analysis, the information exchange required by final paragraph (c)(1) of the final rule will be part of a two-way conversation between host employers and contract employers. As discussed later in this section of the preamble, final paragraph (c)(3) requires hosts and contractors to coordinate their work rules and procedures to ensure that employees are protected as required by subpart V. To comply with the final rule, the contractor, as part of this effort, must communicate with the host about the information the contractor needs about the host's installation.

OSHA notes that final paragraph (c)(1) does not require the host employer to report any information to the contract employer in writing; the Agency will deem it sufficient for the host employer to provide the necessary information, through any appropriate mechanism (for example, a phone call or an email), to an authorized agent of the contractor.

Proposed paragraph (c)(1)(ii) would have required the host employer to report observed contract-employer-related violations of subpart V to contract employers. OSHA included this provision in the proposal because the Agency believed that host employers occasionally observe contractor employees performing work under the contract and that it was important for the host employer to inform the contract employer of observed violations so that the contractor could correct them and prevent them from occurring in the future.

OSHA received many comments on this proposed requirement. (See, for example, Exs. 0128, 0152, 0160, 0167, 0169, 0170, 0171, 0178, 0183, 0186, 0201, 0222, 0227, 0235, 0505; Tr. 880-882.) IBEW supported the need for a reporting requirement, explaining:

[T]he point is that if in performing its usual functions the host observes contract employees exposed to hazards, it must report those observations to their contract employer. This requirement is particularly important in the electrical industry where contract employees are potentially exposed to extremely serious hazards.

If the host employer who knows the worksite's hazards and the potential for harm sees a contract employee exposed to those conditions the host knows to be hazardous, it is unconscionable for the host to walk away. The host must report that information to the contract employer so the contract employer can take the steps necessary to eliminate the unsafe condition, and the contract employer must report back what action it actually took . . . [Tr. 881].

Many commenters objected to the proposed reporting requirement, however. (See, for example, Exs. 0128, 0152, 0167, 0170, 0178, 0183, 0186, 0222, 0227.) Some expressed concerns about putting host employers in an enforcement role and requiring them to make determinations about whether an OSHA violation exists. (See, for example, Exs. 0128, 0152, 0170, 0178, 0183, 0222, 0227.) For instance, EEI commented:

The proposal would require a host employer to report observed contract-employer-related violations of the standard to the contract employer.

* * * * *

Typically, utility employees and managers are not trained “in the requirements of” OSHA standards.” [sic] Rather . . . they are trained in the requirements of their own employer's safety rules. . . . There simply are no requirements that any employee know what OSHA standards require—only that behavior and work practices be in compliance with standards. Employees are entitled, however, to assume that if they comply with their employer's safety rules, they will comply with OSHA standards. . . . Indeed, among EEI members, the requirements of safety rules often exceed the minimum requirements of OSHA standards.

Clearly, the proposed requirement would create confusion. Utility representatives may believe they are seeing OSHA violations, but in fact may observe that contractors are not performing as the utility's internal safety rules require. [T]he proposal would effectively place utility personnel in the role of surrogate Compliance Officers. They are not trained or qualified to perform such a function. [Ex. 0227; emphasis included in original]

Mr. Alan Blackmon with the Blue Ridge Electric Cooperative suggested that, “[b]y requiring the [host] employer to report on the violation of a federal rule, the proposal in a sense deputizes the employer as an OSHA inspector, a role for which employers have no training and no experience” (Ex. 0183). Mr. Chris Tampio of the National Association of Manufacturers argued that, by requiring hosts to report observed violations, OSHA “would inappropriately force a host employer to make a legal determination as to whether the contractor has committed a violation of the OSH Act” (Ex. 0222).

EEI was also concerned that host employers would be cited for failing to report violations that were present, but not recognized by, the host's employees, commenting:

The proposal provides no guidance as to the kinds of observation that would trigger a notification requirement. For example, [utilities commonly] engage inspectors . . . to observe contractors' performance. In other situations, this is performed by a utility's own foremen or supervisors. Such inspections often are aimed at assuring that the work is performed accurately and in timely fashion, and observation of safety performance, while important, may not be the main or only focus. If a utility inspector is found to have had the opportunity to observe a contractor's violative behavior but did not understand or appreciate what he saw and failed to report it, would the host be cited? [Ex. 0227]

Similarly, Duke Energy commented: “Host employers may have a variety of employees observing contract operations for reasons unrelated to safety. They may be observing contract operations for quality, schedule, productivity, or cost purposes. A host employee may `observe' a condition, but not recognize it as a violation of this OSHA regulation” (Ex. 0201).

Some commenters presumed that the proposal required host employers to either actively monitor contractors or take measures to ensure that reported hazards were abated. (See, for example, Exs. 0187, 0225, 0235, 0238, 0504.) For instance, Mr. James Strange with American Public Power Association (APPA) commented that municipal utilities “do not have the personnel to shadow contractors on each utility job site to assure that they are working according to OSHA rules” (Ex. 0238). In addition, several commenters argued that the proposal would create an adversarial relationship between hosts and contractors. (See, for example, Exs. 0169, 0171, 0183.) Mr. Wilson Yancey expressed this argument as follows:

[T]he proposed requirements might create an unduly adversarial relationship between the parties. For instance, the host employer seeking to fulfill its perceived duties under the regulations would thrust the host employer into the role of an investigator and rule-enforcer, rather than a business partner seeking to achieve a common goal of employee safety. [Ex. 0169]

After considering the comments received on this issue, OSHA decided not to include proposed paragraph (c)(1)(ii) in the final rule. First, the host employer, as defined in the final rule, may not be in position to recognize, or even observe, hazardous conditions created by contract employers. OSHA based the proposed rule on the premise that the host employer would hire the contract employer and would perform some maintenance on the system. As noted earlier, in the final rule, the Agency adopted a definition of “host employer” that is designed to capture the employer in the best position to provide information about the electric power generation, transmission, or distribution installation on which the contract employer is working. The definition of “host employer” in the final rule does not require the host employer to maintain the installation or to be the entity that hired the contractor. A host employer that does not perform maintenance work on the system would be unlikely to recognize hazardous conditions created by contractors. In addition, a host employer that does not hire the contract employer usually would not find itself in a position to observe the contractor's employees working. [71]

Second, in some circumstances, the host employer will also be a controlling employer under OSHA's multiemployer citation policy. A controlling employer has an underlying duty to exercise reasonable care to prevent and detect violations endangering contractor employees at the worksite. (See CPL 02-00-124; see also OSHA's discussion of the multiemployer citation policy earlier in this section of the preamble.) This is a broader obligation than the one OSHA proposed for host employers in proposed paragraph (c)(1)(ii); therefore, the proposed requirement is not necessary with respect to hosts that are controlling employers. (Whether a host employer is a controlling employer depends on whether it has general supervisory authority over the worksite, including the power to correct, or require others to correct, safety and health violations. [72] ) Indeed, the Agency is concerned that including the proposed reporting requirement in the final rule would lead host employers to believe they could fulfill their obligations as controlling employers just by complying with the more limited requirement in the standard.

Although OSHA is not including proposed paragraph (c)(1)(ii) in the final rule, the Agency expects that, in many situations, liability and practical considerations will drive host employers that are not controlling employers to notify the contractor if they observe hazardous conditions involving the contractor's employees. Unsafe conditions created by contractors can pose hazards to employees of the host employer and to the public and can create additional obligations for host employers to protect their employees (for example, through OSHA standards and the general duty clause) and the public (for example, through liability concerns) from those hazards. For instance, a host employer that observes a contractor bypassing safety rules when installing a new line will likely have concerns about the quality of the contractor's work and about the effect of the contractor's unsafe practices on the installation and on public safety. These concerns will form a strong incentive for the host employer to report the hazardous conditions to the contractor.

Although the Agency concluded, based on the current rulemaking record, that the reporting requirement in proposed paragraph (c)(1)(ii) is neither necessary nor appropriate for this final rule, the Agency will continue to monitor this issue and evaluate whether regulatory requirements like the one in proposed paragraph (c)(1)(ii) are necessary to ensure the safety of employees under subpart V or other OSHA standards.

Proposed paragraph (c)(2)(iii)(C) would have required the contract employer to advise the host employer of measures taken to correct, and prevent from recurring, violations reported by the host employer under proposed paragraph (c)(1)(ii). In light of the Agency's decision not to adopt proposed paragraph (c)(1)(ii), proposed paragraph (c)(2)(iii)(C) is no longer meaningful and is not incorporated in the final rule.

In addition to proposing the requirement for hosts to report observed contract-employer-related violations, OSHA requested comments on the related, but distinct, issue of whether it should require host employers to take appropriate measures to enforce contractual safety requirements or review the contracts of contractors who fail to correct violations. [73]

IBEW was the only commenter that supported such requirements, explaining:

The host employer should regularly review the safety performance of a contractor while operating on its site. The host employer should take necessary action to ensure contractual obligations are being met. The rule should require the host employer to initiate further action if the review finds non compliance. [Ex. 0230]

Rulemaking participants agreed that host employers regularly adopt contracts that specify safety standards to which contractors must adhere and that include provisions for enforcing those requirements. (See, for example, Exs. 0163, 0175, 0213, 0405; Tr. 1386-1387.) Also, some commenters recognized a general need for hosts to evaluate the safety performance of contractors. (See, for example, Exs. 0167, 0175, 0184, 0213, 0219.) However, none of these rulemaking participants supported the adoption of OSHA requirements related to the enforcement, review, or awarding of contracts.

For example, Ms. Susan O'Connor with Siemens Power Generation explained:

While host employers often [require and enforce compliance with OSHA standards], in practice it would be burdensome [on] the host employer to require them, at the risk of OSHA sanctions, to enforce contract provisions as a regulatory matter. Indeed, establishing this as a regulatory standard could operate as a disincentive for host employers to establish sound health and safety contractual terms with contractors, particularly terms which go beyond regulatory requirements. . . . In addition, OSHA regulations are promulgated and undergo public review; Host Employer requirements do not go through such a regulatory review process and therefore must not be held on par with OSHA regulations. Host employers have a right to establish site safety requirements that are more stringent than the law requires; however, they should have the right to deal with contractors who do not comply individually and in their own manner. But they must currently do this against the backdrop of specific OSHA standards, and the OSHA Multi-employer Workplace policy. Siemens sees no reason to change this.

* * * * *

OSHA should not prescribe how contractors are selected or prescribe how contractors must be evaluated for purposes of contracting work or terminating work. It is up to the discretion of the party contracting for the services to make those determinations. Host employers should have the discretion to choose, to dismiss, or continue utilizing contractors. Given the already comprehensive and pervasive nature of health and safety regulation through OSHA and the states, as well as considerations of tort law, the effects of the marketplace will weed out contractors that are repeatedly substandard from a safety standpoint, as well as those that are chronically poor perform[ers] from a quality, delivery, or other standpoint. Contractors should be answerable to the host employe[r] for business matters, and the agency for regulatory matters. These lines should not be blurred by attempting to make the host employer responsible for both. As a practical matter, it would be impossible for OSHA . . . to come up with minimum requirements for every contract activity, to establish an “acceptable” versus “unacceptable” contractor. [Ex. 0163]

Duke Energy commented:

The only safety performance that OSHA has authority to regulate is compliance with OSHA rules. Worker Compensation Insurance Carriers and others review safety performance. There is no need for OSHA to impose additional requirements. Each host employer is faced with a unique set of available contractors, each with its own safety record. Some may excel in one area and perform poorly in another. Some host employers may have such a limited pool of available contractors that requiring some pre-determined level of contractor safety performance would eliminate all contractors. Other goals, such as employing minority firms may cause hosts to work with poor performers to improve their performance, rather than eliminating the minority contractor with the poor record. OSHA should not interfere in decisions such as these. [Ex. 0201]

In light of the comments received, OSHA decided not to adopt provisions requiring host employers to enforce contractual safety requirements, to review the contracts of contractors who fail to correct violations or hazards, or to evaluate the safety performance of contractors. As discussed previously, the host employer might not be the entity that hired the contract employer, in which case the host employer would not be in position to enforce contract requirements or be involved in awarding contracts to the contract employer. In addition, as Ms. O'Connor pointed out, and as noted earlier in this section of the preamble, host employers that have supervisory authority over a contractor's worksite are subject to a background statutory obligation, as set forth in OSHA's multiemployer citation policy, to exercise reasonable care to detect and prevent violations affecting contractor employees. Moreover, for the reasons stated previously, OSHA believes that, even in the absence of a specific requirement in subpart V, host employers that are not controlling employers have strong incentives to take measures to ensure safe contractor performance. In addition, the Agency believes that contractors with poor safety performance are likely to have similarly poor records with respect to the quality of their work, making it less likely that host employers will hire them. Therefore, the final rule does not contain provisions related to the enforcement, review, or awarding of contracts.

Paragraph (c)(2) of final § 1926.950 addresses the responsibilities of the contract employer. Final paragraph (c)(2)(i) requires the contract employer to ensure that each of its employees is instructed in any hazardous conditions relevant to the employee's work of which the contractor is aware as a result of information communicated to the contractor by the host employer as required by final paragraph (c)(1). This paragraph ensures that information on hazards the employees might face is conveyed to those employees. The information provided by the host employer under paragraph (c)(1) is essential to the safety of employees performing the work, especially because it may include information related to hazardous conditions that the contract employees might not identify or recognize.

Proposed paragraph (c)(2)(i) was worded differently from the final rule; the proposed paragraph required contractors to instruct their employees in hazards communicated by the host employer. OSHA received no comments on this proposed provision. However, changes were made to this paragraph in the final rule to mirror the changes made to paragraph (c)(1) (described earlier). In the final rule, the Agency did not include the note to proposed paragraph (c)(2)(i) because OSHA believes that the note was confusing. The proposed note suggested that the instruction required under paragraph (c)(2)(i) was not part of the training required under § 1926.950(b). The contractors' employees will already be trained in many of the hazards that are related to the information the contractor receives from the host, and the final rule does not require employers to duplicate this training. Contractors will need to supplement an employee's training only when that employee will be exposed to a hazard or will follow safety-related work practices with respect to which he or she has not already been trained.

Paragraph (c)(2)(ii), as proposed, required the contract employer to ensure that its employees followed the work practices required by subpart V, as well as safety-related work rules imposed by the host employer. In proposing this provision, OSHA explained that a host employer's safety-related work rules are almost certain to impact the safety and health of the contractor's employees (70 FR 34840). For example, electric utilities typically require contractors to follow the utilities' procedures for deenergizing electric circuits. If the contract employer's employees do not follow these procedures, a circuit the contractor's employees are working on might not be properly deenergized, endangering the contractor's employees, or a circuit the contractor was not working on might become reenergized, endangering any host employer's employees that might be working on that circuit.

OSHA invited comments on whether requiring a contractor to follow a host employer's safety-related work rules could make work more hazardous. A few commenters supported proposed paragraph (c)(2)(ii). (See, for example, Exs. 0164, 0213.) For instance, Mr. Tommy Lucas of TVA commented:

The proposed requirement is supported. Regardless whether this requirement is carried forward, we will require contractors to follow certain host-employer safety rules contractually, such as the lockout/tagout (LOTO) procedure. Failure to follow the LOTO procedure could result in host or contractor employees being seriously injured. [Ex. 0213]

In contrast, the vast majority of rulemaking participants opposed the proposed provision. (See, for example, Exs. 0156, 0161, 0162, 0168, 0183, 0201, 0202, 0212, 0220, 0222, 0227, 0233, 0237, 0501; Tr. 1323, 1333.) These commenters gave several reasons for objecting to this proposed requirement:

  • It could result in the implementation of inadequately safe work rules, such as when the contractor has more protective work rules than the host (see, for example, Ex. 0161) or when the host's work rules may be based on its own employees' working conditions that are less hazardous than the working conditions to which contractor employees will be exposed (see, for example, Ex. 0233).
  • It could cause contract employees to be confused about proper work methods if rules change from contract to contract (see, for example, Ex. 0227).
  • It would result in contractual requirements becoming enforceable OSHA standards in a way that constitutes an illegal delegation of OSHA's rulemaking authority, thereby circumventing proper rulemaking procedures (see, for example, Ex. 0237).
  • It would place OSHA in the position of having to interpret and enforce third-party contracts (see, for example, Ex. 0233).
  • It could increase disaster-response time (Ex. 0233).
  • It would increase costs and administrative burdens on contract employers (see, for example, Ex. 0162).
  • It could result in contractors having to follow host employer work rules that are not directly linked to employee safety, for example, in a situation in which the host's rules approve only one vendor for safety equipment when equivalent, equally protective, equipment is available from other vendors (Ex. 0162).

For instance, Mr. Steven Theis with MYR Group commented:

MYR Group believes that requiring a contractor to follow a host's safety rules would create hazards. Contractors are required by the standard to have appropriate work rules and policies for compliance. Requiring them to follow another employer's policies—which they are unfamiliar with and untrained on—would either result in accidents or add undue and unnecessary time for retraining and familiarization with the policies when the contractor has its own policy . . . Indeed, MYR Group has experienced situations where host employers impose work rules that do not significantly affect employee safety and may even create an unsafe situation. [H]ost work rules can specify chain of command requirements that do not align with contractor management structure or responsibility and thus following host requirements could result in loss or miscommunication of safety information or safe work directives. Accordingly, MYR Group respectfully submits that the requirement to follow host employer work rules should be deleted. [Ex. 0162]

Mr. Terry Williams with the Electric Cooperatives of South Carolina agreed and provided an example of how following a host employer's safety rules could jeopardize worker safety:

The proposal ignores the fact that contractors have developed their own rules that are appropriate for the work they do. They train on these rules and operate according to them all the time. Requiring contractors . . . to work to the rules of others could easily result in the contractor working less safely.

Consider the following actual situation: an electric utility that is primarily a 12kV system, with some 34.5kV. The utility uses its own crews for the 12kV work, and uses a qualified contractor for the 34.5kV work, as the need arises. The utility's safety rules specify use of Class 2 gloves, sleeves and cover up for all work, as that is all their line crews need. For the 34.5 kV work, the contractor should use Class 4 equipment, yet OSHA's proposal could justify use of Class 2, with unsafe results.

OSHA should retract this proposal and allow host employers to require contractors to work to appropriate safety rules. [Ex. 0202]

EEI made similar comments in its posthearing brief:

[T]he standard would require contractors to utilize different safe procedures depending upon the owner involved. For example, an electric line contractor could be required to observe a “ground-to-ground” rubber glove requirement while working for one electric utility, but not while working for another utility nearby (Tr. 110-11). The confusion and consequent increased risk to employees from such requirements is obvious, not to mention the cost of training for employees and supervisors alike. [Ex. 0501]

As to the legal arguments, Susan Howe with the Society of the Plastics Industry suggested that “OSHA's incorporation” of the host employer's rules “into the OSHA standards which are the subject of this rulemaking would violate the rulemaking provisions of the Occupational Safety and Health Act, the Administrative Procedures Act, and the Federal Register Act” (Ex. 0170). The National Association of Manufacturers similarly stated, with reference to this provision: “OSHA has never had the authority to incorporate the provisions of millions of private contracts into OSHA standards, nor to delegate its rulemaking authority to private entities” (Ex. 0222). EEI also commented that the proposed requirement “effectively would place each host employer in the position of promulgating safety and health standards for contractors' employees, and therefore would constitute an unconstitutional delegation of legislative power” (Ex. 0227).

OSHA does not believe that the proposed provision would cause the practical problems identified by rulemaking participants. There is evidence in the record that, as IBEW stated, “contractors . . . routinely adapt their work rules and safety practices to accommodate the demands of particular jobs and the requirements of specific hosts” (Ex. 0505). The union explained this statement as follows:

There are circumstances related to contractors performing work on utility properties that would require the contractors to work under the host employer's safety related work rules to ensure both the contractor employees and the host employer employees are provided a safe work environment. In fact, many collective bargaining agreements require this. [Ex. 0230]

Mr. Brian Erga with ESCI noted that some utilities have such unique systems that contractors have no choice but to follow the host's rules (Tr. 1271-1272). Several witnesses stated that contractors routinely follow a host employer's lockout-tagout requirements (Tr. 314, 984, 1299-1301). There is evidence that some host employers require contractors to follow NFPA 70E (Ex. 0460), to follow the host's fall protection requirement for working from aerial lifts (Tr. 391), and to use particular types of flame-resistant clothing (Tr. 1346). In addition, the proposal did not require contractors to follow all of the host employer's safety rules, only rules the host imposes on contractors, which the contractors are required to follow anyway. The Agency also does not believe that proposed paragraph (c)(2)(ii) would result in undue confusion from work rules that vary from one employer to another. The record indicates that contractors are already required to institute different work rules because of contractual or other requirements imposed by host employers, such as following the host employers' lockout-tagout procedures (Tr. 314), using particular live-line work methods (Tr. 320), and using particular forms of fall protection (Tr. 643-644).

On the other hand, the record establishes that hosts sometimes impose rules that do not meet OSHA requirements (Tr. 1366 [74] ) or that may be less safe than the contractor's rules (Tr. 1365-1366 [75] ). These are outcomes that OSHA did not envision in proposing paragraph (c)(2)(ii). Considering these potential risks, and the commenters' overwhelming opposition to this proposed provision, the Agency decided not to include proposed paragraph (c)(2)(ii) in the final rule.

OSHA concludes, however, that some coordination of work rules between hosts and contractors is necessary, particularly with respect to deenergizing lines and equipment (Ex. 0505) and grounding procedures (Tr. 1271-1272). According to IBEW:

[What is important] is not that one party's rules take precedence over the others. Instead, what is important is that the parties operating on an electrical system coordinate procedures to ensure that all of the employees can perform safely. There are two sets of circumstances in which this kind of coordination is an issue: Where employees actually work together and when the manner in which one group of employees performs has an impact on the safety of another group of employees. [Ex. 0505]

Other rulemaking participants similarly supported a requirement for coordination between host employers and contract employers to assure the protection of host employees and contract employees. (See, for example, Exs. 0128, 0235, 0237.) Therefore, the Agency is adopting a new paragraph in the final rule, § 1926.950(c)(3), entitled “Joint host- and contract-employer responsibilities,” which reads as follows:

The contract employer and the host employer shall coordinate their work rules and procedures so that each employee of the contract employer and the host employer is protected as required by this subpart.

This new provision provides host employers and contract employers more flexibility than the proposal to select appropriate work rules and procedures for each task or project, while ensuring that workers are not at risk of harm due to a lack of coordination between employers.

Under the new provision, each employer has independent responsibility for complying with the final rule. In addition, the Agency stresses that a contract employer must comply with the final rule even though a host employer may try to impose work rules that would cause the contract employer to violate OSHA's rules. Accordingly, a contract employer is not relieved of its duty to comply with the final rule by following a work rule imposed by the host employer. For example, a contract employer must comply with final § 1926.962(c), which prescribes rules for equipotential grounding, even if the host employer has its own noncompliant grounding procedures. Paragraph (c)(3) of final § 1926.950 requires host employers and contract employers to confer in an effort to select work rules and procedures that comply with final § 1926.962(c).

Final paragraphs (c)(2)(ii) and (c)(2)(iii) (proposed as part of paragraph (c)(2)(iii)) require the contract employer to advise the host employer of unique hazardous conditions posed by the contract employer's work [76] and any unanticipated hazardous conditions found, while the contractor's employees were working, that the host employer did not mention. Final paragraphs (c)(2)(ii) and (c)(2)(iii) enable the host employer to take necessary measures to protect its employees from hazards of which the host employer would not be aware. These requirements will protect the host employer's employees: when they are working near the contractor's employees (for example, during storm situations (Tr. 315, 392, 1379-1380); during outages on transmission lines (Tr. 1380) and in plants (Tr. 985); while working in the same substation (Tr. 313-314, 559); and when the host employer's employees work on the same equipment after the contract employer departs (such as, when contractors are working on equipment in the field that the host employer does not regularly inspect) (Tr. 877-878)). The Utility Workers Union supported these proposed requirements, commenting: “Requiring the sharing of information of hazards found or created by the contractor is . . . insurance that all employees, host and contractor, are in a safer working environment” (Ex. 0197). OSHA notes that proposed paragraph (c)(2)(iii)(B) (now paragraph (c)(2)(iii)) required contractors to report any unanticipated “hazards” not mentioned by the host; however, in the final rule, the phrase “hazardous conditions” replaces the word “hazards” throughout paragraph (c). In addition, the Agency anticipates that contract employers will inform host employers of any information provided by the host that is at odds with actual conditions at the worksite, consistent with paragraph (c)(3), which specifies that host employers and contract employers coordinate their work rules and procedures so that each employee is protected as required by subpart V.

Some commenters believed that proposed paragraph (c)(2)(iii) (now paragraphs (c)(2)(ii) and (c)(2)(iii)) needed clarification. For example, the Associated General Contractors of America (AGC) commented that proposed paragraph (c)(2)(iii) was vague and did not provide guidance on the timeframes or format of required information transfers (Ex. 0160).

OSHA does not agree that final paragraphs (c)(2)(ii) or (c)(2)(iii) are vague or unclear. These provisions simply require that contractors provide information to host employers, which reciprocates the requirements under final paragraph (c)(1) that host employers provide contractors with information. The Agency deliberately omitted, in the proposed and final rules, any requirement for a formal or written report; the final rule simply requires contractors to advise the host employer, which allows contract employers maximum flexibility in complying with the final requirements. The Agency will deem it sufficient for the contract employer to provide the necessary information, through any appropriate mechanism (for example, a phone call or an email), to an authorized agent of the host employer.

The purpose of final paragraph (c)(2)(ii) is to enable host employers to protect their own employees from hazardous conditions presented by the contractor's work. Thus, the information addressed by paragraph (c)(2)(ii) needs to be provided to the host employer soon enough so that the host employer can take any necessary action before its employees are exposed to a hazardous condition. To address AGC's concern that the proposed paragraph did not provide guidance on the timeframe of the required information transfer, OSHA added language to paragraph (c)(2)(ii) in the final rule to indicate that this information must be provided “[b]efore work begins.”

The final rule also includes, in paragraph (c)(2)(iii), a 2-working day timeframe in which the contractor must advise the host employer of information described in that paragraph. OSHA believes that this timeframe will give the contract employer sufficient time to provide the required information. The final rule does not specifically require hosts to take any direct action in response to information provided by contractors, although the Agency anticipates that host employers will use this information to protect their employees and comply with the OSH Act.

Frequently, the conditions present at a jobsite can expose workers to unexpected hazards. For example, the grounding system available at an outdoor site may be damaged by weather or vehicular traffic, or communications cables in the vicinity could reduce the approach distance to an unacceptable level. To protect employees from such adverse situations, conditions affecting safety that are present in the work area should be known so that appropriate action can be taken. Paragraph (d) of § 1926.950 addresses this problem by requiring safety-related characteristics and conditions existing in the work area to be determined before employees start working in the area. The language for proposed paragraph (d) was based on language in current § 1926.950(b)(1) and was the same as existing § 1910.269(a)(3). A similar requirement can be found in ANSI/IEEE C2-2002, Rule 420D. [77] As noted earlier, OSHA revised the language in the final rule to clarify that the paragraph addresses installation characteristics, as well as work-area conditions, and to separately number the examples listed in the provision.

OSHA received only a few of comments on proposed paragraph (d). EEI objected to this provision, commenting:

EEI recognizes that the regulatory text of proposed paragraph 1926.950(d) is the same as in existing 1910.269(a)(3). Also, the preamble accompanying the current proposal is essentially the same as in the final 1910.269. There are certain aspects of the current proposal, however, that are troublesome. . . .

* * * * *

It is susceptible of being applied in a manner that effectively requires an employer to examine every imaginable condition on a jobsite, lest it be held accountable if some obscure, unexpected condition later is involved in causing an accident.

* * * * *

[I]f the standard is not applied reasonably, the result could be a significant burden for line crews, as time is taken not to miss a single detail, however obscure, lest the crew be second-guessed for having missed observing some condition if something later goes wrong. In the final rule, OSHA needs to address this issue. Rather than state that there is an unqualified obligation to “determine” existing conditions relating to the safety of the work, the obligation should be modified to require a “reasonable effort to determine” the reasonably anticipated hazards. [Ex. 0227]

EEI noted, as an example of “some obscure, unexpected condition . . . involved in causing an accident,” an energized static line that caused the electrocution of an apprentice line worker (id.):

In that case, the contractor was performing maintenance work on a high-voltage transmission tower. The host utility was shown to have been aware that what appeared to be a grounded static line atop one side of the tower was in fact energized at 4,000 volts. The utility did not inform the contractor of this information, however, and the contractor's foremen on the ground and on the tower did not notice that there was an insulator separating the line and tower, thus indicating that the line could be energized. [Id.]

EEI stated that the contractor was cited, under existing § 1910.269(a)(3), “for failing to ascertain existing conditions, i.e., the energized condition of the static line, before beginning work” (id.).

OSHA considered this comment and decided not to adopt EEI's recommended change to proposed § 1926.950(d). First, OSHA does not believe that obscure and unexpected conditions often lead to accidents, as EEI seems to argue. EEI's example, in which an apprentice power line worker was electrocuted by an energized static line, is a case in point (id.). An employer exercising reasonable diligence can be expected to determine that a static line is energized. In the case described by EEI, the electric utility that owned the line was aware that the line was energized, and the line itself was installed on insulators (id.). Thus, the energized condition of the static wire was neither obscure nor unexpected.

Second, EEI appears confused about the purpose of this provision. Paragraph (d) of final § 1926.950 requires employers to determine, before work is started on or near electric lines or equipment, existing installation characteristics and work-area conditions related to the safety of the work to be performed. The requirement also includes examples of such characteristics and conditions.

Characteristics of the installation, such as the nominal voltage on lines, maximum switching transient overvoltages, and the presence of grounds and equipment grounding conductors, are parameters of the system. This is information the employer already has, either through direct knowledge or by the transfer of information from the host employer to the contract employer. [78] Thus, this aspect of final paragraph (d) does not place any burden, much less an unreasonable one, on line crews.

Conditions of the installation, including the condition of protective grounds and equipment grounding conductors, the condition of poles, and environmental conditions relating to safety, are worksite conditions. In some cases, the employer already will have information on the condition of the installation, such as information on the condition of poles from pole-inspection programs or on the condition of electric equipment from equipment manufacturers. In the usual case, however, the conditions addressed by paragraph (d) of the final rule will be determined by employees through an inspection at the worksite. This inspection need not be overly detailed, but it does need to be thorough rather than cursory. The standard does not require crews to determine “every imaginable condition,” as EEI suggests. Rather, the inspection must be designed to uncover the conditions specifically noted in this paragraph as well as any other conditions of electric lines and equipment that are related to the safety of the work to be performed and that can be discovered through the exercise of reasonable diligence by employees with the training required by § 1926.950(b) of the final rule.

Employers are required by § 1926.952(a)(1) of the final rule to provide information on such worksite-specific conditions and the characteristics of the installation to the employee-in-charge. With this information, the employer then will determine the current conditions of the installation through an examination by employees at the worksite. Employer-supplied information, as well as information gathered at the worksite, must be used in the job briefing required by § 1926.952 of the final rule. (See the discussion of § 1926.952 later in this section of the preamble.) The characteristics and conditions found as a result of compliance with final § 1926.950(d) could affect the application of various Subpart V requirements. For example, the voltage on equipment will determine the minimum approach distances required under final § 1926.960(c)(1). Similarly, the presence or absence of an equipment grounding conductor will affect the work practices required under final § 1926.960(j). If conditions are found to which no specific subpart V provision applies, then the employee would need to be trained, as required by final § 1926.950(b)(1)(ii), to use appropriate safe work practices.

Employers need not take measurements on a routine basis to make the determinations required by final § 1926.950(d). For example, knowledge of the maximum transient voltage level is necessary to perform many routine transmission and distribution line jobs safely. However, no measurement of this maximum level is necessary to make the requisite determination. Employers can make the determination by conducting an analysis of the electric circuit, or they can assume the default maximum transient overvoltages discussed under the summary and explanation of final § 1926.960(c)(1), later in this section of the preamble. Similarly, employers can make determinations about the presence of hazardous induced voltages, as well as the presence and condition of grounds, without taking measurements.

It may be necessary for employers to make measurements when there is doubt about the condition of a ground or the level of induced or transient voltage if the employer is relying on one of these conditions to meet other requirements in the standard. For example, an engineering analysis of a particular installation might demonstrate that the voltage induced on a deenergized line is considerable, but should not be dangerous. However, a measurement of the voltage may be required if the employer is using this analysis as a basis for claiming that the provisions of final § 1926.964(b)(4) on hazardous induced voltage do not apply. In another example, further investigation is required when an equipment ground is found to be of questionable reliability, unless the equipment is treated as energized under final § 1926.960(j).

EEI was concerned about this discussion of engineering analysis in the preamble to the proposed rule (70 FR 34841), commenting:

This [discussion] is unrealistic: engineering analyses are not made in the field in transmission and distribution work. [Ex. 0227]

OSHA agrees with EEI that engineering analyses are not made in the field. Under this provision of the final rule, employers would conduct any engineering analyses required by this provision off site and supply the requisite information to the employees performing the work.

Section 1926.951, Medical services and first aid

Section 1926.951 sets requirements for medical services and first aid. Paragraph (a) of § 1926.951 emphasizes that the requirements of § 1926.50 apply. (See § 1926.950(a)(2).) Existing § 1926.50 includes provisions for available medical personnel, first-aid training and supplies, and facilities for drenching or flushing of the eyes and body in the event of exposure to corrosive materials.

Mr. Daniel Shipp with the International Safety Equipment Association (ISEA) recommended that the reference in § 1926.50, Appendix A, to ANSI Z308.1-1978, Minimum Requirements for Industrial Unit-Type First-aid Kits, be updated to the 2003 edition (Ex. 0211). OSHA did not propose any changes to § 1926.50, nor was that section a subject of this rulemaking. Thus, the Agency is not adopting Mr. Shipp's suggestion. It should be noted, however, that Appendix A to § 1926.50 is not mandatory. The Agency encourages employers to examine the recommendations in the latest edition of the consensus standard, which is ANSI/ISEA Z308.1-2009, when reviewing the guidance in Appendix A to § 1926.50.

Mr. Stephen Sandherr with AGC was concerned that the requirements proposed in § 1926.951 conflicted with the requirements in § 1926.50 and maintained that such a conflict would hinder a contractor's ability to implement safety (Ex. 0160).

OSHA reexamined the requirements in proposed § 1926.951 and found that the requirements for first-aid supplies in proposed paragraphs (b)(2) and (b)(3) in that section conflicted with similar requirements in § 1926.50. Proposed paragraph (b)(2) would have required weatherproof containers if the supplies could be exposed to the weather, whereas existing § 1926.50(d)(2) requires that the contents of first-aid kits be placed in weatherproof containers, with individual sealed packages for each type of item. Further, proposed paragraph (b)(3) would have required that first-aid kits be inspected frequently enough to ensure that expended items are replaced, but not less than once per year. By contrast, existing § 1926.50(d)(2) requires that first-aid kits “be checked by the employer before being sent out on each job and at least weekly on each job to ensure that the expended items are replaced.”

As noted earlier, final § 1926.951(a), which requires that employers comply with existing § 1926.50, was adopted without change from the proposal. The Agency is not including proposed paragraphs (b)(2) and (b)(3) in the final rule because these provisions were less restrictive than the requirements of § 1926.50. Including them in the final rule would compromise OSHA's efforts to enforce § 1926.50 on jobsites covered by Subpart V. OSHA notes that the remaining provisions in § 1926.951 apply in addition to those in § 1926.50.

Final § 1926.951(b) supplements § 1926.50 by requiring cardiopulmonary resuscitation (CPR) to help resuscitate electric shock victims. [79] OSHA concludes that the requirements for CPR training in the final rule are supported by the record. This training is required by existing § 1910.269(b)(1), and work under subpart V poses the same electric-shock hazards and requires the same protection against those hazards. As discussed in the summary and explanation for § 1926.953(h), the final rule defines “first-aid training” to include CPR training. Therefore, in final § 1926.951(b), OSHA replaced the proposed phrase “persons trained in first aid including cardiopulmonary resuscitation (CPR)” with “persons with first-aid training.” The Agency stresses that CPR training is required by this and other provisions in the final rule for first-aid training.

Electric shock is a serious and ever-present hazard to electric power transmission and distribution workers because of the work they perform on or with energized lines and equipment. CPR is necessary to revive an employee rendered unconscious by an electric shock. As OSHA concluded in the 1994 § 1910.269 rulemaking, CPR must be started within 4 minutes to be effective in reviving an employee whose heart has gone into fibrillation (59 FR 4344-4347; see also 269-Ex. 3-21).

To protect employees performing work on, or associated with, exposed lines or equipment energized at 50 volts or more, OSHA proposed to require that employees with training in first aid including CPR be available to render assistance in an emergency.

OSHA chose 50 volts as a widely recognized threshold for hazardous electric shock. [80] In this regard, several OSHA and national consensus standards recognize this 50-volt threshold. For example, OSHA's general industry and construction electrical standards require guarding live parts energized at 50 volts or more (§§ 1910.303(g)(2)(i) and 1926.403(i)(2)(i)); the general industry electrical standard also requires that electric circuits be deenergized generally starting at 50 volts (§ 1910.333(a)(1)). Similarly, NFPA's Standard for Electrical Safety in the Workplace (NFPA 70E-2004) and the National Electrical Safety Code (ANSI/IEEE C2-2002) impose electrical safety requirements starting at 50 volts (Exs. 0134, 0077, respectively). (See, for example, Section 400.16 of NFPA 70E- 2004, which requires guarding of live parts of electric equipment operating at more than 50 volts, and Rule 441A2 of ANSI/IEEE C2-2002, [81] which prohibits employees from contacting live parts energized at 51 to 300 volts unless certain precautions are taken.)

Many electric shock victims suffer ventricular fibrillation (59 FR 4344-4347; 269-Ex. 3-21). Ventricular fibrillation is an abnormal, chaotic heart rhythm that prevents the heart from pumping blood and, if unchecked, leads to death (id.). Someone must defibrillate a victim of ventricular fibrillation quickly to allow a normal heart rhythm to resume (id.). The sooner defibrillation is started, the better the victim's chances of survival (id.). If defibrillation is provided within the first 5 minutes of the onset of ventricular fibrillation, the odds are about 50 percent that the victim will recover (id.). However, with each passing minute, the chance of successful resuscitation is reduced by 7 to 10 percent (id.). After 10 minutes, there is very little chance of successful rescue (id.). Paragraph (b) of the final rule requires CPR training to ensure that electric shock victims survive long enough for defibrillation to be efficacious. The employer may rely on emergency responders to provide defibrillation.

In the preamble to the proposal, OSHA requested public comment on whether the standard should require the employer to provide automated external defibrillators (AEDs) and, if so, where they should be required. AEDs are widely available devices that enable CPR-trained individuals to perform defibrillation.

Many rulemaking participants recommended that OSHA not adopt a requirement for AEDs. (See, for example, Exs. 0125, 0162, 0167, 0169, 0171, 0173, 0174, 0177, 0200, 0225, 0227; Tr. 635-636, 762-763.) Some commenters argued that there were no injuries for which AEDs would prove beneficial. (See, for example, Exs. 0174, 0200; Tr. 635-636, 762-763.) In this regard, Mr. Steven Semler, commenting on behalf of ULCC, stated:

[W]hen tragic electric contact accidents do, albeit rarely, occur with respect to line clearance tree trimmers, they tend to involve catastrophic accidental direct contract with high voltage electric supply lines which inherently pass massive amounts of electricity through the victim which irreversibly damages cardiac conductivity altogether—as to which AED's cannot, nor even purport to, rectify . . . . It is, of course, a misnomer that AED's can restart a heart which is stopped from electrical contact or any other reason. The stoppage is known as “asystole” for which an AED is programmed to not shock the patient because AED's cannot start a stopped heart—for instance, one whose stoppage is due to destruction of the heart's electrical path, or due to irreversible brain damage, respiratory muscle paralysis, tissue burn, or due to electrical contact which serves to destroy the ability to breathe.

Rather, AED's use is limited solely to cases of cardiac fibrillation—cases of the heart beating in quivering fashion so as to cease effective pumping capacity (and also to rarer situations of ventricular tachycardia where the heart beats very fast). But, as a trauma specialist physician has observed, ventricular fibrillation is a rare occurrence in high voltage electrical contacts, as to which rescue breathing and CPR (currently required) are remedial pending arrival of medical help. [Footnote: Richard F. Edlict, MD, “Burns, Electrical, www.emedicine.com/plastic/topic491.htm (7/12/05) . . .]

Given that the unfortunate nature of line clearance tree trimmers cardiac events due to electric contact tend to be catastrophic because of accidental non compliance with the OSHA minimum distance separation from electric supply lines separation requirement, the cardiac events which unfortunately have happened to line clearance tree trimmers have tended to catastrophic, tending to involve cardiac and brain damage of such severity that AED's are not designed to, and cannot, perform a useful purpose. [Ex. 0174; emphasis included in original]

Furthermore, TCIA presented polling data to show that their members have not experienced any occupational incidents for which AED use would have been appropriate to treat the victim (Exs. 0200, 0419).

On the other hand, several rulemaking participants pointed out that AEDs have saved lives (Exs. 0213, 0230). TVA, which has deployed AEDs in both fixed work locations, such as generation plants, and in field service-centers, reported two successful uses of AEDs in a 17-month period (Ex. 0213). IBEW commented that “AED units have proven to be effective in the utility industry. More than one `save' has occurred” (Ex. 0230). Testifying on behalf of IBEW, Mr. James Tomaseski stated, “[B]ased on what the experts tell you about the need to have AEDs in certain environments, [electric utility work] is [at the] top of the list. We have an aging workforce. The possibilities of sudden cardiac arrest to occur to people in this industry is very high” (Tr. 964).

The Agency concludes that employees performing work covered by subpart V and § 1910.269 are exposed to electric shocks for which defibrillation is needed as part of the emergency medical response to such injuries. The Agency bases this conclusion on the evidence in both this record, as well as the record supporting its decision in the 1994 § 1910.269 rulemaking to require first-aid training, including CPR training, for work covered by that standard. OSHA found in its 1994 § 1910.269 rulemaking that line-clearance tree trimmers were exposed to electric-shock hazards for which CPR would be efficacious (59 FR 4344-4347), and the National Arborist Association (TCIA's predecessor) pointed out that low-voltage electric shock can result from indirect contact with higher voltage sources (269-Ex. 58, 59 FR 4345). OSHA's inspection data amply demonstrate that indirect contacts, such as contacting a power line through a tree branch, do occur in work covered by § 1910.269 and Subpart V (Ex. 0400). Half of the ten line-clearance tree-trimmer electrocutions described in these data resulted from indirect contacts. The experience of TVA and IBEW reinforces the Agency's conclusion that employees performing work covered by Subpart V and § 1910.269 are exposed to electric shocks for which defibrillation is needed as part of the emergency medical response.

Many rulemaking participants argued that work covered by Subpart V would subject AEDs to environmental and other conditions for which the devices are not, or may not be, designed, including:

  • Extreme heat (see, for example, Exs. 0169, 0171, 0173, 0177, 0227),
  • Extreme cold (see, for example, Exs. 0169, 0171, 0173, 0177, 0227),
  • Vibration or jarring (see, for example, Exs. 0169, 0173, 0175),
  • Dust (see, for example, Exs. 0169, 0171, 0173, 0175), and
  • Humidity and moisture (see, for example, Exs. 0169, 0171, 0173).

For instance, Mr. Wilson Yancey with Quanta Services commented that the conditions to which AEDs would be exposed could “quickly degrade the performance of the equipment and require frequent inspection and maintenance” (Ex. 0169). Ms. Salud Layton with the Virginia, Maryland & Delaware Association of Electric Cooperatives commented, “Most field experience with AED's has been at either fixed sites or carried by ambulances in padded bins/cases inside of heated and cooled ambulance bodies. This is not what the AED's would be exposed to on a utility vehicle” (Ex. 0175). Mr. Thomas Taylor with Consumers Energy noted that manufacturers' instructions tightly control AEDs' storage requirements, explaining:

[L]ine truck storage conditions would prohibit the AED from functioning properly and therefore provide no tangible safety benefit to employees. In this regard, the manufacturer instructions for preventing electrode damage states: “Store electrodes in a cool, dry location (15 to 35 degree Celsius or 59 to 95 degrees Fahrenheit”. The instruction also states: [“]It is important that when the AED is stored with the battery installed, temperature exposure should not fall below 0 degrees Celsius (32 degrees Fahrenheit) or exceed 50 degrees Celsius (122 degrees Fahrenheit). If the AED is stored outside this temperature range, the auto tests may erroneously detect a problem and the AED may not operate properly.[”] [Ex. 0177]

OSHA decided not to include a requirement for AEDs in the final rule because the Agency believes that there is insufficient evidence in the record that AEDs exposed to the environmental extremes typical of work covered by Subpart V and § 1910.269 would function properly when an incident occurs. There is no evidence in the record that AEDs are adversely affected by dust, vibration, or humidity; however, it is clear that line work in many areas of the country would subject AEDs to temperatures above and below their designed operating range of 0 to 50 degrees Celsius. For example, Mr. Frank Owen Brockman with the Farmers Rural Electric Cooperatives testified that temperatures in Kentucky can get as cold as −34 degrees Celsius and as high as 44 degrees Celsius (Tr. 1283). Although the record indicates that the highest of these temperatures is within the operating range of AEDs, OSHA believes that it is likely that the interior of trucks would be significantly hotter than the 50-degree Celsius recommended maximum. Accordingly, there is insufficient evidence in the record for the Agency to determine whether AEDs will work properly in these temperature extremes during use, even if they are stored in temperature-controlled environments as mentioned by some rulemaking participants (see, for example, Ex. 0186; Tr. 965-966). [82]

As explained previously, the Agency stresses that defibrillation is a necessary part of the response to electric shock incidents that occur during work covered by the final rule. OSHA is not adopting a rule requiring AEDs because the record is insufficient for the Agency to conclude that these devices will be effective in the conditions under which they would be used. OSHA encourages employers to purchase and deploy AEDs in areas where they could be useful and efficacious. This action likely will save lives and provide the Agency with useful information on the use of AEDs under a wide range of conditions.

Proposed paragraph (b)(1) would have required CPR training for field crews of two or more employees, in which case a minimum of two trained persons would generally have been required (proposed paragraph (b)(1)(i)), and for fixed worksites, in which case enough trained persons to provide assistance within 4 minutes would generally have been required (proposed paragraph (b)(1)(ii)). Proposed paragraph (b)(1)(i) provided that employers could train all employees in first aid including CPR within 3 months of being hired as an alternative to having two trained persons on every field crew. If the employer chose this alternative for field work, then only one trained person would have been required for each crew. In practice, crews with more than one employee would normally have two or more CPR-trained employees on the crew, since all employees who worked for an employer more than 3 months would receive CPR training. However, employers who rely on seasonal labor (for example, employees hired only in the summer months), or those with heavy turnover, might have some two-person crews with only one CPR-trained employee. Because the Agency was concerned that those new employees might be most at risk of injury, OSHA requested comment on whether allowing employers the option of training all their employees in CPR if they are trained within 3 months of being hired is sufficiently protective. The Agency also requested comment on how this provision could be revised to minimize the burden on employers, while providing adequate protection for employees.

Several commenters shared OSHA's concern with the 3-month delay in CPR training. (See, for example, Exs. 0126, 0187, 0213, 0230) Mr. Rob Land with the Association of Missouri Electric Cooperatives commented that this option was too hazardous because of “the hazards that linemen face and the distinct possibility that [emergency medical services] may be delayed due to remoteness and distances involved” (Ex. 0187). TVA opposed the option because the “3[ ]months when a two-person crew would have only one CPR trained member . . . reduce[s] the level of safety provided” (Ex. 0213). IBEW presented its reasons for opposing the 3-month option, and its recommendation for revising the rule, as follows:

Allowing employers the option of training all their employees in CPR if they are trained within 3 months of being hired may not work in all situations. Many utilities engaged in field work have implemented the use of 2-person crews. It is not uncommon for the 2-person crew to perform rubber gloving work on all distribution voltage ranges. It is also not uncommon for a utility to assign a new-hire (less than 3 months of service) as the second person on the 2-person crew. In these work scenarios, the second person would have to be trained in CPR. Waiting 3 months to complete this training would not [be] proper.

* * * * *

The only revision that is necessary is to make it clear that under certain circumstances, new-hires may need to be trained in CPR well before the 3 month window. Manning of crews, especially in the construction industry, cannot always be accomplished using CPR certification as a factor. All employees need to receive the training and the 3 months gives enough flexibility when appropriate[.] [Ex. 0230; emphasis included in original]

Other rulemaking participants supported the provision as proposed. (See, for example, Exs. 0155, 0162, 0174, 0200; Tr. 633-635, 764-765.) Some of them argued that the provision, which was taken from existing § 1910.269(b)(1)(i), has worked well. (See, for example, Exs. 0155, 0200; Tr. 764.) The tree care industry stated that the line-clearance tree trimming industry did not use seasonal labor and argued that the 3-month delay in training new employees in CPR was justified on the basis of high turnover in that industry (Exs. 0174, 0200; Tr. 633-635, 764-765). For example, testifying on behalf of ULCC, Mr. Mark Foster stated:

[T]he current standard reflects a clearly considered balance made by OSHA at the time of adoption of the current standard to allow a three-month phase-in period for CPR compliance for new hires. That policy judgment rests on the fact that there was then an 81 percent turnover rate among line clearance tree trimming employees such that many would not last in employment beyond the initial training period and that that would be very difficult to field crews if new hires had first had to be sent for CPR training.

While the turnover ratio has improved somewhat, it is still staggering[ly] high, [presenting] the same considerations that led to the adoption of the phase-in period in the initial standard. [Tr. 633-634]

In its comment, ULCC indicated that the annual turnover rate in the line- clearance tree trimming industry is 53 to 75 percent (Ex. 0174).

OSHA decided to restrict the exception permitting a 3-month delay in training employees in first aid, including CPR, to line-clearance tree trimming. The Agency agrees that turnover in the line-clearance tree trimming industry remains high, which was the underlying reason for OSHA's original adoption of the 3-month delay in training for newly hired employees in the 1994 § 1910.269 rulemaking (59 FR 4346-4347). However, as noted by Mr. Land, the provision as proposed leaves employees exposed to hazards when a new employee who has not yet been trained in CPR is the second person in a two-worker crew (Ex. 0187). IBEW also recognized the need to have both employees trained in CPR in many circumstances (Ex. 0230). Finally, turnover rates for the electric utility and power line contractor industries are not nearly as high as that for the tree trimming industry. OSHA estimates that the turnover rates among employees performing electric power generation, transmission, and distribution work ranges from 11 to 16 percent in the construction industries and 3 percent in the generation and utility industries (see Section VI, Final Economic Analysis and Regulatory Flexibility Analysis, later in the preamble). These turnover rates are significantly lower than the turnover rate indicated by ULCC for the line-clearance tree trimming industry.

Because this exception in the final rule applies only to line-clearance tree trimming, which is addressed only in § 1910.269, the Agency is not adopting it in final § 1926.951(b)(1). [83] The corresponding provision in § 1910.269(b)(1)(i) retains the exception providing for a 3-month delay in first-aid training, including CPR, but only for line-clearance tree-trimming work.

These changes will continue to permit employers in the line-clearance tree trimming industry to delay training in first aid, including CPR, to new employees for a reasonable time.

Finally, OSHA notes that it remains concerned that some employees in the line-clearance tree trimming industry might encounter an unnecessary delay in being treated in an emergency. The Agency does not believe that it is reasonable to unnecessarily staff crews so that some crews had only one CPR-trained worker, while other crews had three or four. Although the Agency is not addressing this concern in the final rule, OSHA expects employers to staff each tree trimming crew with as many employees trained in first aid as possible, including CPR, to assist in emergencies.

Mr. Steven Theis of MYR Group requested that OSHA provide a similar 3-month grace period for refresher training (Ex. 0162). [84]

OSHA rejects this request. As stated, OSHA is adopting the 3-month delay in CPR training because of the high turnover in the tree trimming industry. There is no evidence in the record that this rationale also applies to refresher training. The Agency expects employers to plan for their employees' training needs and to schedule training in accordance with the standard.

Mr. Paul Hamer, a member of the NFPA 70E Technical Committee on Electrical Safety in the Workplace, recommended that OSHA require first-aid training, including CPR training, for all qualified employees who work on electric circuits of 50 volts or more. He also recommended deleting the 4-minute maximum response time for fixed work locations (Ex. 0228). He argued that the sooner a victim receives CPR, the less cell damage will occur. On the other hand, the American Forest & Paper Association recommended that the 4-minute requirement should be deleted because “no one could ensure ([that is], guarantee) survival of the victim for any particular length of time or that defibrillation would be successful” (Ex. 0237).

OSHA rejects these recommendations. OSHA considered requiring all employees to receive first-aid training, including CPR training, when the Agency developed existing § 1910.269. In lieu of such a requirement, OSHA decided that the best approach was to require a 4-minute maximum response time for fixed work locations and to require at least two trained persons for field work involving crews of two or more employees (existing § 1910.269(b)). OSHA supplemented these provisions with a requirement that two employees be present for work exposing an employee to contact with exposed live parts energized at more than 600 volts (existing § 1910.269(l)(1)). [85] This approach continues to be the best one, as it ensures that persons trained in first aid, including CPR, will be available to employees most at risk of electrocution. The Agency further notes that Mr. Hamer's approach does not address employees working alone in fixed work locations. In these cases, it would still take time for someone to discover the injury, which also would delay first-aid treatment, including CPR.

Two rulemaking participants commented that proposed paragraphs (b)(1)(i) and (b)(1)(ii) were vague (Exs. 0175, 0180). They did not understand the difference between “field work” and “fixed work locations” (id.). For example, Ms. Salud Layton with the Virginia, Maryland & Delaware Association of Electric Cooperatives questioned whether the requirements for fixed work locations applied to work at unmanned substations (Ex. 0175). OSHA does not consider an unmanned location to be a fixed work location, as there are normally no employees present. In determining whether to apply paragraph (b)(1) or (b)(2), the Agency would treat an unmanned substation no differently than a manhole or utility pole in the field.

As explained previously in this section of the preamble, OSHA decided not to include proposed paragraphs (b)(2) or (b)(3) in the final rule. The corresponding provisions in existing § 1910.269(b)(2) and (b)(3) are being retained, however. The Agency did not propose to revise these existing requirements and received no comments alleging inconsistencies between existing § 1910.269(b) and § 1910.151, OSHA's general industry standard addressing medical services and first aid.

Section 1926.952, Job Briefing

In § 1926.952, OSHA is requiring that employers ensure that employees conduct a job briefing before each job. This section, which has no counterpart in existing subpart V, is based largely on existing § 1910.269(c).

Most of the work covered by this final rule requires planning to ensure employee safety (as well as to protect equipment and the general public). Typically, electric power transmission and distribution work exposes employees to the hazards of exposed conductors energized at thousands of volts. If the work is not thoroughly planned ahead of time, the possibility of human error that could harm employees increases greatly. To avoid problems, the task sequence is prescribed before work is started. For example, before climbing a pole, the employee must determine if the pole is capable of remaining in place and if minimum approach distances are sufficient, and he or she must determine what tools will be needed and what procedure should be used for performing the job. Without job planning, the worker may not know or recognize the minimum approach-distance requirements or may have to reclimb the pole to retrieve a forgotten tool or perform an overlooked task, thereby increasing employee exposure to the hazards of falling and contact with energized lines.

Employers performing electric power generation, transmission, and distribution work use job briefings to plan the work and communicate the job plan to employees. If the job is planned, but the plan is not discussed with the workers, an employee may perform his or her duties out of order or may not coordinate activities with the rest of the crew, thereby endangering the entire crew. Therefore, OSHA is requiring a job briefing before work is started.

Commenters agreed that job briefings are an important part of electric power work. (See, for example, Exs. 0162, 0173, 0184, 0213, 0241; Tr. 1335.) For instance, Mr. John Masarick of the Independent Electrical Contractors considered job briefings to be “one of the most critical steps for safety on any task” (Ex. 0241). Also, Mr. Stephen Frost of the Mid-Columbia Utilities Safety Alliance voiced his organization's support for job briefings:

We strongly agree that the job briefing requirement should be written into § 1926.952. Good communications on the job is paramount to safety, and too often workers either choose not to communicate or don't have the skills to communicate their ideas. The job briefing requirement makes it the personal responsibility of every crew member to understand all aspects of the job. The time it takes to do a thorough job briefing is usually 5 to 15 minutes. This is time well-spent to eliminate the possibility of an accident due to workers not knowing or controlling hazards in the work area. [Ex. 0184]

OSHA's experience in enforcing § 1910.269(c), however, shows that some employers are placing the entire burden of compliance with the job briefing requirement on the employee in charge of the work. Therefore, OSHA proposed to include a provision in Subpart V requiring the employer to provide the employee in charge of a job with available information necessary to perform the job safely. This requirement, which is not in existing § 1910.269(c), was in proposed § 1926.952(a)(1). OSHA proposed to add the same requirement to § 1910.269(c). A note following the proposed paragraph indicated that the information provided by the employer was intended to supplement the training requirements proposed in § 1926.950(b) and was likely to be more general than the job briefing provided by the employee in charge. This note also clarified that information covering all jobs for a day could be disseminated at the beginning of the day.

Many commenters recognized the need for the employer to provide certain information to the employee in charge about conditions to which an employee would be exposed. (See, for example, Exs. 0125, 0127, 0186, 0197, 0200, 0219, 0230.) For instance, Mr. Anthony Ahern with Ohio Rural Electric Cooperatives commented:

The person in charge does need to be given more information than is usually given him/her. They need to know things like the status of the system where they will be working. What are the breaker configurations/settings. Is reclosing enabled or disabled. What is the available fault current at their work site. Are there any other crews working in the area whose work could impact them. For the most part most of this information is of a general type and a company could probably develop a simple form that would be fairly easy to fill out and attach to the usual work orders. This could also be used to document that this information was given and could be used to document the job briefing (tailgate) that the person in charge is required to give the rest of the crew. [Ex. 0186]

Mr. James Junga, the Safety Director of Local 223 of the Utility Workers Union of America (UWUA), also commented on the need for the employer to supply information about the work:

Requiring the employer to provide adequate information to the employee in charge of a crew is the best way of ensuring that all available information is given to the crew leader. Then and only then the crew leader will be able to brief the crew. Without this requirement a crew leader will be left on his/her own to figure out what the crew is to do. [Ex. 0197]

Some rulemaking participants described the types of information that should be provided to employees. (See, for example, Exs. 0186, 0219; Tr. 402-403, 1373.) Commenters stated that employees in charge need to be provided with the available fault current (Ex. 0186; Tr. 1373), circuit breaker settings, including whether reclosing is enabled (Ex. 0186), whether there are other crews that could affect their work (Ex. 0186), detailed maps and staking sheets (Ex. 0219), and relevant information from outage reports by customers (Tr. 402-403).

Other rulemaking participants addressed when there was a need for the employer to provide information about a job. Mr. Allan Oracion with EnergyUnited EMC maintained: “When a job is not routine, special or large-scale, the employer needs to share any special information with the employee in charge. When the employee in charge is working at a distant location, radio or telephone can be used to communicate information” (Ex. 0219). Mr. Donald Hartley with IBEW stated that the employer needs to provide information “when a contractor's crew performs its first tasks on a host employer's worksite or when the job assignment involves hazards or conditions the crew has not yet encountered” (Tr. 887).

However, many commenters argued that the provision as proposed was inappropriate. (See, for example, Exs. 0125, 0127, 0128, 0163, 0177, 0178, 0200, 0201 0226.) Many argued that the proposed provision was too broad. (See, for example, Exs. 0125, 0127, 0200, 0226.) For instance, Ms. Cynthia Mills of TCIA stated, “We are uncomfortable with the open-ended and subjective nature of the [proposed language], even though we believe it is intended to convey anything `known to the employer, but unusual,' associated with the work assignment” (Ex. 0200).

Some commenters argued that it was the responsibility of the employee in charge to survey the site and determine all hazards associated with the work. (See, for example, Exs. 0163, 0177, 0178, 0201.) Consumers Energy's submission typified these comments:

The computer-generated job assignment will contain information related to the location, circuit, and task to be accomplished but no information related to unique hazards of the assignment. It is critical that the employees on the job site survey the site and identify all hazards upon arrival at the site. Removing that responsibility from them would create a false sense of security and a less than desirable knowledge of the hazards present. Safety manuals and written procedures provide general information on hazards that are typically expected in transmission and distribution work. It is the responsibility of the employee in charge to survey the site and identify all hazards upon arrival at the site. [Ex. 0177]

After carefully considering the evidence in the record, OSHA concludes that job briefings are important for ensuring the safety of employees performing work covered by the final rule and that the employer needs to provide adequate information to employees in charge so that a complete job briefing can be conducted. However, OSHA also decided to address the concerns of commenters that the proposed rule was overly broad or open ended. To this end, OSHA decided to require the employer to provide the employee in charge of the job with all available information that relates to the determination of existing characteristics and conditions required by § 1926.950(d). Thus, final § 1926.952(a)(1) requires the employer, in assigning an employee or a group of employees to perform a job, to provide the employee in charge of the job with all available information that relates to the determination of existing characteristics and conditions required by § 1926.950(d).

The Agency notes that final paragraph (a)(1) requires the employer to provide the employee in charge with two types of available information, as noted in § 1926.950(d): (1) Available information on the characteristics of electric lines and equipment, and (2) available information on the conditions of the installation. The Agency also notes that, because § 1926.950(d) limits the determination of characteristics and conditions only to characteristics and conditions that relate to the safety of the work to be performed, this same limitation extends to information that must be provided under final § 1926.952(a)(1). As such, information on the characteristics of electric lines and equipment that must be provided under the final rule (including, for instance, the nominal voltage of lines and equipment, the maximum switching transient voltages, and the presence of hazardous induced voltage) is critical to the selection of proper safety-related work practices and protective equipment. [86] For example, for an employee to select the minimum approach distance required by final § 1926.960(c)(1), he or she needs to know, at a minimum, the nominal voltage on the energized parts. Depending on the employer's established minimum approach distances, the employee also may need to know the maximum transient overvoltage at the worksite. Similarly, an employee needs to know the employer's estimate of incident energy for electric equipment so that he or she can select protective equipment with an appropriate arc rating as required by final § 1926.960(g)(5).

Information on the conditions of the installation that must be provided under the final rule (including, for instance, the condition of protective grounds and equipment grounding conductors, the condition of poles, and environmental conditions relative to safety) also is critical because that information can facilitate the employees' assessment of conditions at the worksite and enable the employees to take appropriate protective measures. For example, an employer may know of defects in a wood pole on which employees are to work because it has a pole-inspection program or has received reports that the pole had defects. Information on such defects can help employees ascertain whether the pole is safe to climb as required by § 1926.964(a)(2). Likewise, information from an employee or a customer that electric equipment is making arcing noises periodically can affect the assessment of whether the employee is exposed to hazards from flames or electric arcs as required by § 1926.960(g)(1).

Thus, the type of information that the employer must provide under the final rule ensures that employees in charge are provided with information relevant to selecting appropriate work practices and protective equipment as required by the final rule. Moreover, because final § 1926.952(a)(1) links the information that the employer must provide the employee in charge to the determination required by § 1926.950(d), final § 1926.952(a)(1) is neither overly broad nor open ended.

The final rule also is narrowly tailored because it limits the information the employer must provide to information that is available to the employer. Under the rule, the question of whether information is available to the employer varies depending on the type of information at issue. First, OSHA presumes that information related to the characteristics of electric lines and equipment is available to the employer. Second, OSHA will deem information on the condition of the installation to be available to the employer only when the information is known by the employer or can be obtained by the employer from existing records through the exercise of reasonable diligence. OSHA does not expect employers to make inspections of worksite conditions to determine the conditions of the installation. The Agency believes that, in most instances, employees will gather additional information about worksite conditions after they reach the worksite. It is nevertheless important that employers provide employees with available information to aid the employees' assessment of worksite conditions and as a secondary precaution in case employees at the site fail to observe a particular condition related to their safety.

Paragraph (a)(1) of 1926.952 applies fully to contractors. Contractors will obtain much or all of the information that they need to comply with § 1926.952(a)(1)—especially information about the characteristics of electric lines and equipment—through the operation of the host-contractor provision in § 1926.950(c).

Several commenters maintained that, in proposing this provision, OSHA did not account for the way work is currently assigned to employees. (See, for example, Exs. 0128, 0163, 0177, 0178, 0201.) For instance, Mr. James Shill of ElectriCities noted that small towns often assign work through a town manager who has insufficient knowledge of the electrical system to provide the required information (Ex. 0178). Further, Mr. James Gartland of Duke Energy described how the process commonly used to assign work to employees at many utilities was at odds with the proposal:

Requiring a representative of the employer (a manager or supervisor) to provide employees with information necessary to perform a job safely for every job is inconsistent with the use of technology in work management and scheduling. Today's utility workers drive vehicles equipped with computers with wireless communications. They receive job assignments throughout the day from the computer. There frequently is no direct supervisor-employee interface to discuss specific work assignments. The computer-generated job assignment will contain information related to the location, circuit, and task to be accomplished but no information related to unique hazards of this assignment. . . .

It is also inconsistent with industry practices to expect a supervisor/manager to conduct a pre-job briefing at the beginning of the day as mentioned in the Note [to proposed § 1926.952(a)(1)]. Many utilities have employees who report directly to work locations where their supervisor/manager is not present. They are expected to do a pre-job briefing and to assess hazards on their own. There is no company manager/supervisor at the work location to do that assessment. [Ex. 0201]

Some of these commenters also recommended that the Agency make it clear (1) that the rule does not require a face-to-face exchange of information and (2) that the exchange can be provided through work orders or in conjunction with training, safety manuals, and written procedures. (See, for example, Exs. 0177, 0201.)

OSHA appreciates these commenters' concerns and therefore changed the heading for paragraph (a)(1) to read “Information provided by the employer” to help clarify that a separate briefing or face-to-face discussion between the employer and the employee in charge is not required. The Agency recognizes that assignments are made through a wide range of mechanisms that do not always provide for face-to-face contact between the employer and the employees performing the work. The rule does not require such contact. The employer is free to use any mechanism that provides the required information before the employees begin their assignment. For example, information could be provided through radio communication with the employee in charge, through a written work order, or through a computer-generated assignment conveyed electronically. Some of this information may be provided through training, in a safety manual, or through written work procedures. However, the Agency will deem such information as meeting paragraph (a)(1) only if it effectively communicates the information about the particular job in question to the employee in charge and if employers respond to these employees' questions about this information as it relates to the particular job in question.

Some commenters suggested that OSHA add certain explicit language to the requirement. (See, for example, Exs. 0125, 0127, 0149, 0169, 0171.) For instance, several commenters recommended revising the rule to read: “In assigning an employee or group of employees to perform a job, the employer shall provide the employee in charge of the job with any additional information known by the employee's supervisor that could affect the safety of the job before the start of the work” (Exs. 0125, 0127, 0149). Other commenters recommended that OSHA clarify that the employer need only provide the information once for work lasting long periods of time (Exs. 0169, 0171).

OSHA rejects these recommended approaches. First, the key issue is whether the information is available to the employer, not whether the supervisor has knowledge of the required information. Second, the final rule requires the employer to provide required information in connection with each job. As stated, the information must be communicated to the employee in charge in an effective manner. Whether a prior communication constitutes an effective communication depends on several factors, such as, but not limited to: The time between the prior communication and the job at hand; the manner in which the prior communication was made; the extent to which the prior job and the present job are similar; and whether any additional or different information needs to be provided with respect to the present job.

OSHA is not including in the final rule the note following proposed paragraph (a)(1). This note was to clarify the meaning of the phrase “available information necessary to perform the job safely.” The final rule does not contain that phrase, and OSHA concludes that the note is no longer necessary.

Paragraph (a)(2), which is being adopted without substantive change from the proposal, requires the employee in charge of the job to conduct a job briefing. This provision comes from existing § 1910.269(c).

In the 2005 notice extending the comment period on the proposal, OSHA requested comments on whether the standard should include a requirement to document the job briefing. Comments addressing this issue recommended that the Agency not include such a requirement in the final rule because it would add to employers' paperwork burden without a significant increase in safety. (See, for example, Exs. 0201, 0212.) Considering the lack of record support for such a provision, OSHA is not adopting a requirement to document job briefings in the final rule.

Paragraph (b), which is being adopted without substantive change from the proposal, requires the briefing by the employee in charge to cover: Hazards and work procedures involved, special precautions, energy-source controls, and requirements for personal protective equipment. This requirement also comes from existing § 1910.269(c).

Under final paragraph (c)(1), the employee in charge must conduct at least one briefing before the start of each shift. Only one briefing in a shift is needed if all the jobs to be performed are repetitive or similar. Additional briefings must be conducted pursuant to final paragraph (c)(2) for work involving significant changes in routine that might affect the safety of the employees. For example, if the first two jobs of the day involve working on a deenergized line and the third job involves working on energized lines with live-line tools, separate briefings must be conducted for each type of job. It should be noted that additional job briefings provided under paragraph (c)(2) are separate from the job briefing provided at the start of the shift; these briefings may not be combined. Paragraphs (c)(1) and (c)(2), which duplicate existing § 1910.269(c)(1), have been adopted without substantive change from the proposal.

For routine work, under final paragraph (d)(1), the required briefing need only consist of a concise discussion outlining the tasks to be performed and how to perform them safely. However, if the work is complicated or particularly hazardous or if the employees may not be able to recognize and avoid the hazards involved, then a more thorough discussion is required by paragraph (d)(2). OSHA included a note following this paragraph to clarify that, regardless of how short the discussion is, the briefing must still address all the topics listed in paragraph (b).

OSHA received several comments on proposed paragraphs (d)(1) and (d)(2). These commenters expressed concern that the proposed provisions were vague and provided insufficient guidance on the conditions requiring more detailed job briefings. (See, for example, Exs. 0162, 0175, 0213.) For instance, MYR Group maintained that the proposal did not sufficiently distinguish between work that is “routine” and work that is “complicated” (Ex. 0162; Tr. 1335), and TVA asked the Agency to define “complicated or particularly hazardous” (Ex. 0213).

With final paragraphs (d)(1) and (d)(2), which were taken from existing § 1910.269(c)(2), OSHA recognizes that employees are familiar with the tasks and hazards involved in routine work. However, it is important to take the time to carefully discuss unusual work situations that may pose additional or different hazards to workers. (See also the discussion of § 1926.950(b)(4) earlier in this section of the preamble.) The Agency believes that it is important for the briefing to be as detailed as necessary for the hazards and work practices involved. MYR Group noted that “the general requirement for short discussions could . . . be applied differently depending on the skill and qualification of the employees involved in the work rather than the work itself” (Ex. 0162). This comment interprets the requirement correctly, and the Agency believes that the language in final § 1926.952(d)(1) and (d)(2), which duplicates existing § 1910.269(c)(2), appropriately conveys this meaning. Accordingly, a more detailed discussion is required “[i]f the employee cannot be expected to recognize and avoid the hazards involved in the job.” In addition, the Agency has received no formal interpretation requests related to existing § 1910.269(c)(2). Thus, OSHA concludes that the vast majority of employers understand this provision, and the Agency is adopting § 1926.952(d) without change from the proposal.

OSHA recognizes the importance of job planning for all employees. Although employees working alone cannot participate in formal job briefings, the Agency believes that an employee who works alone needs to plan his or her tasks as carefully and extensively as an employee who works as part of a team. OSHA is aware of several fatalities involving lone employees who could have benefited from better job planning, or perhaps a briefing with the supervisor, before the job started (Ex. 0400). In one such incident, a power line worker working alone was repairing a broken guy. Standing on the ground, the employee had the anchor in place and grabbed the dangling guy to attach it to the anchor. The guy contacted a 7200-volt overhead power line that had not been guarded or insulated. Had the employee properly planned the job, he would have seen that the guy was close to the power line and could have avoided the contact (id.). [87] Therefore, paragraph (e), which OSHA took from existing § 1910.269(c)(3), provides that employees working alone do not need to conduct job briefings, but the employer must ensure that that the tasks are planned as if a briefing were required. This provision is being adopted in the final rule without change from the proposal.

4. Section 1926.953, Enclosed Spaces

Section 1926.953 contains requirements for entry into, and work in, enclosed spaces. An “enclosed space” is defined in final § 1926.968 as a working space, such as a manhole, vault, tunnel, or shaft, that has a limited means of egress or entry, that is designed for periodic employee entry under normal operating conditions, and that, under normal conditions, does not contain a hazardous atmosphere, but may contain a hazardous atmosphere under abnormal conditions. The hazards posed by enclosed spaces consist of (1) limited access and egress, (2) possible lack of oxygen, (3) possible presence of flammable gases, and (4) possible presence of limited amounts of toxic chemicals. The potential atmospheric hazards are caused by an enclosed space's lack of adequate ventilation and can normally be controlled through the use of continuous forced-air ventilation alone. Practices to control these hazards are widely recognized and are currently in use in electric, telecommunications, and other underground utility industries. Such practices include testing for the presence of flammable gases and vapors, testing for oxygen deficiency, ventilation of the enclosed space, controls on the use of open flames, and the use of an attendant outside the space. These practices already are required by existing § 1910.269(e) for the maintenance of electric power generation, transmission, and distribution installations, and OSHA took the requirements adopted in final § 1926.953 from existing § 1910.269(e).

Paragraph (a) of final § 1926.953, which is being adopted without substantive change from the proposal, sets the scope of the section's provisions. Accordingly, this section applies only to the types of enclosed spaces that are routinely entered by employees engaged in electric power transmission and distribution work and that are unique to underground utility work. Work in these spaces is part of the day-to-day activities performed by some of the employees protected by this final rule. Enclosed spaces covered by this section include, but are not limited to, manholes and vaults that provide employees access to electric power transmission and distribution equipment.

There are several types of spaces that are not covered by final § 1926.953 (or the corresponding general industry provisions in final § 1910.269(e)). If maintenance work is being performed in confined spaces, it may be covered by OSHA's general industry permit-required confined space (permit-space) standard at § 1910.146; this standard applies to all of general industry, including industries engaged in electric power generation, transmission, and distribution work.

In § 1910.146(b), the permit-space standard defines “confined space” and “permit-required confined space.” A confined space is a space that: (1) Is large enough and so configured that an employee can bodily enter and perform assigned work; and (2) Has limited or restricted means for entry or exit (for example, tanks, vessels, silos, storage bins, hoppers, vaults, and pits are spaces that may have limited means of entry); and (3) Is not designed for continuous employee occupancy. A permit-required confined space (permit space) is a confined space that has one or more of the following characteristics: (1) Contains or has a potential to contain a hazardous atmosphere; (2) Contains a material that has the potential for engulfing an entrant; (3) Has an internal configuration such that an entrant could be trapped or asphyxiated by inwardly converging walls or by a floor which slopes downward and tapers to a smaller cross-section; or (4) Contains any other recognized serious safety or health hazard.

Section 1926.953 of the final rule applies to “enclosed spaces.” By definition, an enclosed space is a permit-required confined space under § 1926.146. An enclosed space meets the definition of a confined space—it is large enough for an employee to enter; it has a limited means of access or egress; and it is designed for periodic, rather than continuous, employee occupancy under normal operating conditions. An enclosed space also meets the definition of a permit space—while it is not expected to contain a hazardous atmosphere, it has the potential to contain one. OSHA also notes that the definition of permit space in the general industry permit-space standard is broader than the definition of enclosed space in § 1926.968. For instance, if a space contains a hazardous atmosphere under normal conditions, that space is a permit space under § 1910.146, but it is not an enclosed space under final § 1910.269 or Subpart V.

Paragraph (b)(6) of § 1926.21 specifies training requirements for employees who enter “confined or enclosed spaces” as defined in § 1926.21(b)(6)(ii).

When § 1926.21(b)(6) applies, it requires employers to: (1) Instruct their employees about confined-space hazards, the necessary precautions to be taken, and protective and emergency equipment required; and (2) comply with any specific regulations that apply to work in dangerous or potentially dangerous areas. An enclosed space under § 1926.953 also is a confined or enclosed space under § 1926.21(b)(6). However, the definition of confined or enclosed space in § 1926.21(b)(6) (like the definition of permit space in the general industry permit-space standard) is broader than the definition of enclosed space in § 1926.968. [88]

Paragraph (b)(6) of § 1926.21 applies to enclosed spaces covered by final § 1926.953 because employers covered under subpart V are not exempt from complying with other applicable provisions in Part 1926 (see § 1926.950(a)(2)). Section 1926.953 is, therefore, different from final § 1910.269(e), which “applies to routine entry into enclosed spaces in lieu of the permit-space entry requirements contained in paragraphs (d) through (k) of § 1910.146.” OSHA concludes, however, that an employer that is compliant with § 1926.953 is considered as being in compliance with existing § 1926.21(b)(6) for entry into enclosed spaces covered by final § 1926.953. Therefore, for all practical purposes, § 1926.953 applies to routine entry into enclosed spaces in lieu of the requirements contained in § 1926.21(b)(6). OSHA is not including the “in lieu of” language in final § 1926.953 because OSHA recently proposed a new standard for confined-space entry during construction work (72 FR 67352, Nov. 28, 2007). OSHA intends to revise § 1926.953 to include appropriate “in lieu of” language when it promulgates the new standard.

Under final § 1926.953(a), entry into an enclosed space to perform construction work covered by Subpart V must meet the permit-space entry requirements of paragraphs (d) through (k) of the general industry permit-space standard at § 1910.146 when the precautions taken under §§ 1926.953 and 1926.965 are insufficient to eliminate hazards in the enclosed space that endanger the life of an entrant or could interfere with escape from the space. This requirement ensures that employees working in enclosed spaces will be afforded protection in circumstances in which the Subpart V provisions are insufficiently protective. [89]

Some employers may prefer to comply with § 1910.146 instead of § 1926.953 for entry into enclosed spaces covered by Subpart V. Because the provisions of § 1910.146 protect employees entering enclosed spaces at least as effectively as § 1926.953, OSHA will accept compliance with § 1910.146 as meeting the enclosed-space entry requirements of § 1926.953. OSHA included a note to this effect immediately following final § 1926.953(o). The Agency is adopting the note as proposed.

MYR Group opposed applying the general industry standard for permit spaces to construction work. The company argued that subpart V should not incorporate “standard requirements that have already been rejected for construction work” and recommended that the Agency develop requirements specific “to electrical construction work or through the proposed and pending separate confined space standard for construction” (Ex. 0162).

OSHA disagrees with this comment. The Agency developed the enclosed-space provisions in existing § 1910.269 to protect employees during routine entry into enclosed spaces. As discussed in detail previously, OSHA concluded that the requirements for work on electric power generation, transmission, and distribution installations should generally be the same regardless of whether the work is covered by final § 1910.269 or subpart V. (See the summary and explanation for final § 1926.950(a)(1), earlier in this section of the preamble.) For the purpose of routine entry into these spaces, OSHA concludes that it is appropriate for employers to follow the same rules with respect to both construction and general industry work.

OSHA also is applying the general industry permit-space standard to work in enclosed spaces when the hazards remaining in the enclosed space endanger the life of an entrant or could interfere with escape from the space after an employer takes the precautions required by §§ 1926.953 and 1926.965. This action is necessary because, as OSHA noted in the proposed construction standard for confined spaces, “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” (72 FR 67354). OSHA notes, however, that the references to the general industry standard in final § 1926.953 are included as a placeholder pending the promulgation of the confined spaces in construction standard. OSHA intends to change these references to refer to the construction standard when it promulgates that standard.

Paragraph (a) in final § 1926.953 provides that § 1926.953 does not apply to vented vaults under certain conditions. Permanent ventilation in vented vaults prevents a hazardous atmosphere from accumulating. However, the intake or exhaust of a vented vault could be clogged, limiting the flow of air through the vaults. The employee in such cases would be exposed to the same hazards presented by unvented vaults. Additionally, mechanical ventilation for a vault so equipped may fail to operate. To ensure that the employee is protected from the hazards posed by lack of proper ventilation, the final rule exempts vented vaults only if the employer determines that the ventilation is operating to protect employees. This determination must ensure that ventilation openings are clear and that any permanently installed mechanical ventilating equipment is in proper working order.

Section 1926.953 also does not apply to spaces not designed for periodic entry by employees during normal operating conditions, such as spaces that require energy sources to be isolated or fluids to be drained before an employee can safely enter. These types of spaces include, but are not limited to, boilers, fuel tanks, coal bunkers, and transformer and circuit breaker cases. As explained in the preamble to the 1994 § 1910.269 final rule, the measures required in existing § 1910.269(e) (and, by implication, final § 1926.953) are not adequate to protect employees from the various hazards posed by these types of permit-entry confined spaces (59 FR 4364-4367).

MYR Group commented that subpart V's definition of “enclosed space” was “overly narrow and unclear” because “there is no specific basis for creation of such a broad definition solely for electrical work” (Ex. 0162).

OSHA disagrees with this comment. The Agency derived the definition from the definition of “enclosed space” in existing § 1910.269(x). As explained in the preamble to the 1994 § 1910.269 final rule, OSHA narrowly tailored the definition of “enclosed space” to the protective measures required by existing § 1910.269(e) (59 FR 4364-4367). A broader definition would involve permit spaces presenting hazards against which final § 1926.953 would not offer protection. Therefore, OSHA is adopting the definition of “enclosed space” as proposed. However, OSHA is not adopting the proposed note in final § 1926.968. [90] The proposed note, which appears in existing § 1910.269(x), describes types of spaces that are enclosed, but that do not meet the definition of “enclosed space,” and explains that such spaces meet the definition of permit spaces in § 1910.146 and that entries into those spaces must conform to that standard. Although the types of spaces described in the proposed note do not meet the definition of “enclosed space” in either the general industry or construction standard, § 1910.146 does not apply to confined-space entry during construction work. Consequently, the final rule does not include the note to the definition of “enclosed space” in final § 1926.968. OSHA intends to revise § 1926.968 to include an appropriate note to the definition of “enclosed space” when it promulgates the new standard for confined-space entry during construction work.

Paragraph (b), which is being adopted without substantive change from the proposal, contains the general requirement that employers ensure the use of safe work practices for entry into, and work in, enclosed spaces and for rescue of employees from such spaces. These safe work practices ensure that employees are protected against hazards in the enclosed space and include, among others, the practices specified in paragraphs (e) through (o).

Paragraph (c), which is being adopted without substantive change from the proposal, requires each employee who enters enclosed spaces, or who serves as an attendant, to be trained in the hazards associated with enclosed-space entry and in enclosed-space entry and rescue procedures. This training must ensure that employees are trained to work safely in enclosed spaces and that they will be knowledgeable of the rescue procedures in the event that an emergency arises within the space.

Paragraph (d), which is being adopted without change from the proposal, requires that the employer provide equipment that will assure the prompt and safe rescue of employees from the enclosed space. This requirement is necessary to ensure that employees who are injured in enclosed spaces will be retrieved from the spaces. The equipment must enable a rescuer to remove an injured employee from the enclosed space quickly and without injury to the rescuer or further harm to the injured employee. A harness, lifeline, and self-supporting winch can normally be used for this purpose.

Mr. Leo Muckerheide with Safety Consulting Services recommended that, because of the risk of arc hazards, OSHA should explicitly require nonconductive and flame-resistance-rated rescue equipment that meets ASTM F887, Standard Specifications for Personal Climbing Equipment (Ex. 0180). He argued that the general industry confined space standard does not protect against arc-flash and electric-shock hazards and contrasted proposed paragraph (d) with provisions in proposed § 1926.960 that do require protection from these hazards (id.).

OSHA rejects this recommendation. First, work in enclosed spaces does not always pose arc-flash or electric-shock hazards. Sometimes, employees enter spaces to take readings or perform inspections; during these activities these hazards are unlikely to be present, [91] or there may be no energized electric equipment present.

Second, addressing arc-flash and electric-shock hazards in § 1926.953 would be unnecessarily duplicative, as these hazards are more appropriately addressed in § 1926.960, which applies to work on or near exposed live parts. When work is performed within reaching distance of exposed energized parts of equipment, final § 1926.960(f) requires the employer to ensure that each employee removes, or renders nonconductive, all exposed conductive articles, unless such articles do not increase the hazards associated with contact with the energized parts. This provision covers conductive articles on harnesses. Paragraph (c)(1)(iii) of final § 1926.960 requires the employer to ensure that employees do not take conductive objects, such as conductive lifelines, closer to energized parts than the employer's established minimum approach distances, unless the live parts or conductive objects are insulated. [92] Because, in a rescue situation, the attendant would not have control over how close the lifeline got to exposed energized parts, any lifeline would have to be insulated, or the live parts would have to be insulated, to protect the attendant and the entrant against electric shock. Paragraph (g)(1) of final § 1926.960 requires the employer to assess the workplace to determine if each employee is exposed to hazards from flames or electric arcs. This assessment can guide the selection of rescue equipment that can effect safe rescue when employees are exposed to these hazards. If there is a risk that an electric arc could occur in an enclosed space, then the rescue equipment must be capable of withstanding that hazardous condition.

Some conditions within an enclosed space, such as high temperature and high pressure, make it hazardous to remove a cover from the space. For example, if high pressure is present within the space, the cover could be blown off in the process of removing it. Paragraph (e), which is being adopted without substantive change from the proposal, protects against these hazards by requiring a determination of whether it is safe to remove the cover. This determination must include checking for the presence of any atmospheric pressure or temperature differences (generally between the inside and outside of the enclosed space) and evaluating whether there might be a hazardous atmosphere in the space. Furthermore, any condition making it unsafe for employees to remove the cover must be eliminated (that is, reduced to the extent that it is no longer unsafe) before the cover is removed. A note following paragraph (e) clarifies that this determination may consist of checking the conditions that might foreseeably be inside the enclosed space. For example, the cover could be checked to see if it is hot and, if it is fastened in place, it could be loosened gradually to release any residual pressure. The note also clarifies that, to evaluate whether there might be a hazardous atmosphere in the space, an evaluation needs to be made of whether conditions at the site could cause a hazardous atmosphere to accumulate in the space.

Paragraph (f), which is being adopted without substantive change from the proposal, requires that, when covers are removed, openings to enclosed spaces be promptly guarded to protect employees from falling into the space and to protect employees in the enclosed space from being injured by objects entering the space. The guard could be a railing, a temporary cover, or any other barrier that provides the required protection.

Paragraph (g), which is being adopted without substantive change from the proposal, prohibits employees from entering enclosed spaces that contain a hazardous atmosphere unless the entry conforms to the general industry permit-space standard at § 1910.146. Accordingly, if an entry is to be made while a hazardous atmosphere is present in the enclosed space, the entry must conform to the general industry permit-required confined spaces standard at § 1910.146. [93] Once the hazardous atmosphere is removed (for example, by ventilating the enclosed space), employees may enter the enclosed space following the provisions in § 1926.953.

The use of the term “entry” in this paragraph of § 1926.953 is consistent with the use of that term in § 1910.146, and OSHA proposed to include the § 1910.146 definition of “entry” in Subpart V. Two commenters objected to the proposed definition of “entry” on the basis that the definition would prevent them from hanging a tag in the chimney of a manhole with a fault (Exs. 0157, 0227). Consolidated Edison Company of New York (ConEd) described their opposition to the proposed definition of “entry” as follows:

In order to comply with § 1910.269(t)(7)(i), Con Edison utilizes an identification system for structures that have cable and joint abnormalities. This system requires the identifying crew to hang a tag (in our nomenclature, a D-Fault tag) in the chimney of the manhole. This red tag is a clear indication to any other personnel who may attempt to enter the structure that the entry should not be made. This tagging system is an integral part of our compliance method and of protecting our employees. If OSHA adds the definition as proposed, it will prevent us from breaking the plane of the opening and hence prevent us from hanging the tag. This process will reduce, not increase the safety of our employees and as such will have the opposite effect from what OSHA is trying to accomplish. [Ex. 0157]

EEI recommended instead that “that the Agency grant electric utilities an [exemption from] the definition for [§ 1910.269](t)(7) Protection against faults, to allow utilities to properly comply” (Ex. 0227).

OSHA rejects ConEd's recommendation. Paragraph (g) of final § 1926.953 does not preclude employers from hanging tags in the chimney of a manhole with a fault. To the contrary, the rule permits entry into an enclosed space that contains a hazardous atmosphere if entry conforms to the general industry permit-space standard. Moreover, if there is no hazardous atmosphere in the space, employees may enter when the entry conforms to § 1926.953. OSHA concludes that the proposed definition is, therefore, appropriate as it applies to final § 1926.953 and the corresponding requirements in final § 1910.269(e).

OSHA also rejects EEI's recommendation, because it is unnecessary. The definition of “entry,” as proposed and adopted, applies only to the use of that term in final §§ 1910.269(e) and 1926.953. The definition does not apply to final § 1910.269(t)(7)(i) or § 1926.965(h)(1). (See the summary and explanation for final § 1926.965(h)(1) for the response to ConEd's and EEI's concerns that this provision, and its counterpart in § 1910.269(t)(7)(i), would preclude an employer from hanging a tag in the chimney of a manhole or vault to indicate the presence of a faulted cable.)

Paragraph (h), which has been adopted with clarifying revisions from the proposal, requires an attendant with first-aid training, including CPR, to be immediately available outside the enclosed space to provide assistance when a hazard exists because of traffic patterns in the area of the opening used for entry. [94] This paragraph does not prohibit the attendant from performing other duties outside the enclosed space, as long as those duties do not distract the attendant from monitoring employees who are in the enclosed space (entrants) and ensuring that it is safe to enter and exit the space. This paragraph has two purposes: To protect the entrant from hazards involving traffic patterns while the entrant is entering or exiting the space and to provide assistance in an emergency.

Mr. Frank Brockman with Farmers Rural Electric Cooperative Corporation noted that attendants should never be allowed to enter manholes or confined spaces (Ex. 0173).

The final rule, like the proposal, requires the attendant to remain immediately available outside the enclosed space during the entire entry. If the attendant were permitted to enter the enclosed space during entry, he or she might not be able to assist the entrant. For example, if traffic-pattern hazards are present in the area of the opening to the enclosed space and if the attendant enters the space, then both the attendant and the workers he or she is protecting would be vulnerable upon leaving the enclosed space because no one would be present to minimize or control the traffic-pattern hazards. Therefore, the final rule specifies that the attendant must remain outside the enclosed space during the entire entry process. It should be noted that the rescue equipment required by paragraph (d) will enable the entrant to rescue the entrant from the space before administering any necessary first aid.

Mr. Lee Marchessault of Workplace Safety Solutions recommended that paragraph (h) require the attendant to be trained in CPR, in addition to first-aid training (Ex. 0196; Tr. 575). He noted that the electrical hazards in the space, as well as other hazards, might present a need for CPR (Tr. 598).

OSHA is clarifying paragraph (h) in the final rule. The proposed rule required training in first aid, including CPR, so that the attendant could provide emergency assistance in case of injury. This is the type of training required by § 1926.951(b). However, the reference to § 1926.951(b)(1) in the proposal likely caused Mr. Marchessault to misinterpret the requirement. Therefore, the Agency included a definition of “first-aid training” in § 1926.968 in the final rule. That definition states that first-aid training is training in the initial care, including cardiopulmonary resuscitation (which includes chest compressions, rescue breathing, and, as appropriate, other heart and lung resuscitation techniques), performed by a person who is not a medical practitioner, of a sick or injured person until definitive medical treatment can be administered. The definition clarifies that, wherever first-aid training is required by the final rule, CPR training must be included. [95] OSHA also dropped the proposed cross-reference to § 1926.951(b)(1), as it is no longer necessary.

Mr. Anthony Ahern with the Ohio Rural Electric Cooperatives recommended that an attendant always be available for enclosed-space operations, not just when traffic-pattern hazards exist (Ex. 0186).

OSHA is not adopting this recommendation. By definition, an enclosed space contains a hazardous atmosphere only under abnormal conditions. The Agency previously concluded that these spaces do not present the type of atmospheric hazards that warrant the presence of an attendant after the employer takes precautions such as those required by § 1926.953. (See, for example, 58 FR 4485-4488.) In addition, as provided in final § 1926.953(a), when a hazardous atmosphere is present after the employer takes the precautions required by this section, paragraphs (d) through (k) of OSHA's general industry permit-space standard, § 1910.146, which do require attendants, apply. Therefore, the Agency concluded that, when paragraph (h) applies, the only hazards (other than electrical) that necessitate the presence of an attendant while work is being performed in an enclosed space are traffic-pattern hazards in the area of the opening used for entering and exiting the enclosed space. OSHA notes that even if no traffic-pattern hazards are present, an attendant is required under § 1926.965(d) of the final rule while work is being performed in a manhole or vault containing energized electric equipment. A note to this effect follows final § 1926.953(h).

Mr. Leo Muckerheide with Safety Consulting Services commented that the purpose of proposed paragraph (h) was confusing because the purpose of the requirement as stated in the first sentence—that is, protecting entrants from traffic-pattern hazards—differs from the attendant's duties as noted in the second sentence—monitoring employees within the space. He recommended that OSHA revise the second sentence of that paragraph as follows:

That person is not precluded from performing other duties outside the enclosed space if these duties do not distract the attendant from monitoring the traffic patterns outside the enclosed space. [Ex. 0180]

OSHA rejects Mr. Muckerheide's recommended language. Part of the attendant's duty to monitor employees in the space is to warn entrants preparing to exit an enclosed space about hazards involving traffic patterns. If the attendant is watching traffic patterns instead of monitoring the entrant, the entrant might not receive warnings about that traffic before exiting the space. When the entrant is ready to exit the space, the attendant can then monitor or direct traffic and let the entrant know when it is safe to exit the space. On the other hand, OSHA agrees with Mr. Muckerheide that the duties of the attendant may not be clear from the language of the provision as proposed. Therefore, OSHA revised the language in final paragraph (h) to make it clear that ensuring that it is safe to enter and exit an enclosed space is part of the attendant's duties.

Paragraph (i), which is being adopted without change from the proposal, requires that test instruments used to monitor atmospheres in enclosed spaces have a minimum accuracy of ±10 percent and be kept in calibration. This provision will ensure that test measurements are accurate so that hazardous conditions will be detected when they arise. The accuracy of instruments used for testing the atmosphere of these spaces is important for employee safety, and calibration is critical to test-instrument accuracy. As noted in the preamble to the proposal and to the 1994 § 1910.269 final rule, OSHA considers ±10 percent to be the minimum accuracy needed to detect hazardous conditions reliably (70 FR 34849, 59 FR 4369).

Two commenters objected to the proposed requirements (Exs. 0128, 0227). EEI recommended that the standard only require “that test instruments be kept in calibration using the recommendations set forth by the specific manufacturer” and not address accuracy (Ex. 0227). Mr. Mark Spence of Dow Chemical Company argued that OSHA did not demonstrate that the provision was necessary or that calibration has been a problem (Ex. 0128). He stated that the general industry permit-space standard did not contain such a requirement, but only requires that the atmospheres in spaces be monitored (id.).

OSHA rejects the recommendations from these two commenters. Mr. Spence is incorrect. The permit-space standard requires test equipment to be calibrated. As mentioned previously, § 1910.146(c)(5) contains requirements for alternative procedures for permit spaces that are analogous to the enclosed-space requirements contained in § 1926.953 of the final rule. Paragraph (c)(5)(ii)(C) of § 1910.146 requires atmospheric testing using a calibrated test instrument. Paragraph (d) of § 1910.146, which contains requirements for permit-required confined-space programs, specifies, at paragraph (d)(4)(i), that employers maintain “[t]esting and monitoring equipment needed to comply with paragraph (d)(5).” As OSHA concluded in the preamble to the general industry permit-space final rule, if test equipment “is properly selected, calibrated, and maintained . . ., the testing and monitoring needs for entry and work in permit-required confined spaces can be effectively met” (58 FR 4498). Thus, the use of inaccurate or uncalibrated test instruments does not meet the permit-space standard.

OSHA rejects EEI's recommendation that the standard not address accuracy. The Agency concluded in the 1994 § 1910.269 rulemaking that the requirement for test instruments to be accurate within ±10 percent was reasonably necessary for the protection of employees (59 FR 4369). OSHA continues to believe that the accuracy of instruments used for testing the atmosphere of these spaces is important, and EEI offered no evidence to the contrary.

OSHA also rejects EEI's assertion that equipment calibrated to manufacturers' specification is an adequate substitute for test equipment accuracy. Calibration and accuracy are not synonymous. A calibrated test instrument is one that has been compared to a standard reference source for the substance (oxygen, or a toxic or flammable gas) to be measured. Accuracy is a measure of the precision with which the substance can be measured. An oxygen meter, for example, with an accuracy of ±20 percent could give a reading as much as 20 percent above or below the actual oxygen content even when it is properly calibrated. It is evident that this calibrated instrument would not meet the final rule's minimum accuracy requirement of ±10 percent.

Several commenters recommended that OSHA include in the final rule specific requirements on how to keep instruments calibrated. (See, for example, Exs. 0196, 0211, 0227.) For instance, ISEA recommended that OSHA refer employers and employees to the Agency's Safety and Health Information Bulletin “Verification of Calibration for Direct-Reading Portable Gas Monitors” (SHIB 05-04-2004) for information on this topic (Ex. 0211). [96] As noted earlier, EEI recommended that test instruments be calibrated in accordance with manufacturers' instructions (Ex. 0227). Another commenter, Mr. Lee Marchessault with Workplace Safety Solutions agreed that the standard should require calibration in accordance with manufacturers' instructions because test instruments “may go out of calibration 2 hours after being calibrated” (Ex. 0196).

OSHA is not adopting these recommendations. The Agency decided to adopt a performance-based approach for this requirement to provide compliance flexibility. OSHA considers a test instrument to be “kept in calibration,” as required by paragraph (i), when the employer follows the manufacturers' calibration instructions or other reasonable guidelines for the calibration of the instrument involved. The Agency anticipates that most employers will follow manufacturers' instructions. However, these instructions might not be available if the manufacturer has gone out of business. In addition, there are other sources of information on proper calibration methods. As mentioned earlier, ISEA noted one appropriate source of information that can be used instead, although the Agency decided against including a reference to that publication in the final rule.

Mr. Kevin Taylor with the Lyondell Chemical Company asked for clarification of the requirement that test instruments have a minimum accuracy of ±10 percent (Ex. 0218). He inquired whether that level of accuracy was needed for each measured gas or whether the accuracy measurement was based on total detection of gases.

OSHA clarifies that the accuracy required by the final rule pertains to each gas being measured. Moreover, the accuracy of the instrument must be determined based on the threshold quantities that would make the atmosphere within the space hazardous (as per the definition of “hazardous atmosphere” in § 1926.968). For example, a particular enclosed space could potentially contain hazardous levels of methane, carbon dioxide, and carbon monoxide, as well as insufficient levels of oxygen. The instrument or instruments used to test the space in this example must be accurate to within ±10 percent of: (1) A 0.5-percent concentration of methane (which is 10 percent of its lower flammable limit), [97] (2) the permissible exposure limits (PELs) contained in Subpart D for both carbon dioxide and carbon monoxide (9,000 and 55 mg/m3, respectively), and (3) atmospheric concentrations of oxygen at 19.5 percent. It is important for the test instrument to be accurate near the threshold because those are the critical values for determining whether or not a space is hazardous.

As noted earlier, because of the lack of adequate ventilation, enclosed spaces can accumulate hazardous concentrations of flammable gases and vapors, or an oxygen deficient atmosphere could develop. It is important to keep concentrations of oxygen and flammable gases and vapors at safe levels; otherwise, an explosion could occur while employees are in the space, or an oxygen deficiency could lead to suffocation of an employee. Toward these ends, paragraphs (j) through (o) of the final rule address the testing of the atmosphere in the space and ventilation of the space. OSHA notes that the specific testing requirements in paragraphs (j), (k), and (o) must be met irrespective of the results of the employer's evaluation performed under paragraph (e). The evaluation performed under paragraph (e) serves only to ensure that it is safe to remove the cover and will not determine whether an enclosed space contains a hazardous atmosphere. The testing required by paragraphs (j), (k), and (o) will ensure, as required by paragraph (g), that employees not enter an enclosed space while it contains a hazardous atmosphere unless they follow the requirements of the general industry permit-space standard.

Paragraph (j), which is being adopted without substantive change from the proposal, requires that, before an employee enters an enclosed space, the atmosphere in the space be tested for oxygen deficiency and that the testing be done with a direct-reading meter or similar instrument capable of collecting and immediately analyzing data samples without the need for off-site evaluation. Continuous forced air-ventilation is permitted as an alternative to testing. However, procedures for such ventilation must ensure that employees are not exposed to the hazards posed by oxygen deficiency. [98] (See also paragraph (m) for additional requirements relating to ventilation of the space.)

Paragraph (k), which is being adopted without change from the proposal, requires that, before employees enter an enclosed space, the internal atmosphere of the space be tested for flammable gases and vapors. If the results of the test indicate the presence of a hazardous atmosphere, employees may not enter under the procedures specified by § 1926.953. (See § 1926.953(g).) So that the results are accurate and relevant to the atmosphere in the space at the time of employee entry, testing must be performed with a direct-reading meter, or similar instrument, capable of collecting and immediately analyzing data samples without the need for off-site evaluation. The flammability test required by this paragraph must be performed after oxygen testing and ventilation required by paragraph (j) demonstrate that the enclosed space has sufficient oxygen for an accurate flammability test.

If flammable gases or vapors are detected or if an oxygen deficiency is found, paragraph (l), which is being adopted without substantive change from the proposal, requires the employer to provide forced-air ventilation to maintain safe levels of oxygen and to prevent a hazardous concentration of flammable gases or vapors from accumulating. As an alternative to ventilation, an employer may use a continuous monitoring system that ensures that no hazardous atmosphere develops and no increase in flammable gas or vapor concentrations above safe levels occur if flammable gases or vapors are detected at safe levels. The language in the final rule clarifies that the monitoring must ensure that concentrations of flammable gases and vapors do not increase above safe levels (as opposed to not increasing at all). The definition of hazardous atmosphere contains guidelines for determining whether the concentration of a substance is at a hazardous level. OSHA is including a note to this effect after paragraph (l). An identical note appears after paragraph (o). OSHA changed the title of this paragraph in the final rule to “Ventilation, and monitoring for flammable gases or vapors” to accurately reflect the contents of the paragraph.

Paragraph (m), which is being adopted without substantive change from the proposal, contains specific requirements for the ventilation of enclosed spaces. When forced-air ventilation is used, it must begin before entry is made and must be maintained long enough for the employer to be able to demonstrate that a safe atmosphere exists before employees are allowed to enter the space. To accomplish this, the ventilation must be maintained long enough to purge the atmosphere within the space of hazardous levels of flammable gases and vapors and to supply an adequate concentration of oxygen.

OSHA decided not to specify a minimum number of air changes before employee entry into the enclosed space is permitted. Instead, the Agency places the burden on the employer to ensure that the atmosphere is safe before such entry. The employer can discharge this duty either by testing to determine the safety of the atmosphere in the space or by a thorough evaluation of the air flow required to make the atmosphere safe. In this way, the safety of employees working in enclosed spaces will not be dependent on speculation by a supervisor or an employee. [99]

Paragraph (m) also requires the air provided by the ventilating equipment to be directed at the immediate area within the enclosed space where employees are at work. The forced-air ventilation must be maintained the entire time the employees are present within the space. These provisions ensure that a hazardous atmosphere does not reoccur where employees are working.

NIOSH recommended that “the atmosphere in a confined space be tested before entry and monitored continuously while workers are in the confined space to determine if the atmosphere has changed due to the work being performed” (Ex. 0130). NIOSH identified its publication “Worker Deaths in Confined Spaces: A Summary of NIOSH Surveillance and Investigative Findings,” Publication No. 94-103, as evidence of the need for continuous monitoring (id.).

As explained earlier in this section of the preamble, the final rule requires the atmosphere in enclosed spaces to be tested before entry. OSHA concludes, however, that continuous monitoring of enclosed spaces is unnecessary. By definition, enclosed spaces contain a hazardous atmosphere only under abnormal conditions. Thus, enclosed spaces almost never contain the types of conditions that will cause a hazardous atmosphere to reoccur after employers implement the precautions required by § 1926.953 (such as forced-air ventilation). If these precautions are not sufficient to keep the atmosphere in the space safe, then the space would not qualify for entry under § 1926.953, and entry could only proceed under the general industry permit-required confined space standard, as specified by paragraph (a) of that section. Therefore, OSHA has not adopted NIOSH's recommendation in the final rule.

Two commenters noted that proposed paragraph (m) might be impossible to implement under certain conditions and recommended that the final rule recognize these conditions (Exs. 0128, 0224). One of these commenters, Dow Chemical Company, noted that it is not always possible to test atmospheric conditions before entry into an enclosed space (Ex. 0128). The other commenter, the Alabama Rural Electric Association of Cooperatives, maintained that it was not always feasible to use forced-air ventilation because of space constraints (Ex. 0224).

OSHA concludes that no changes to paragraph (m) are necessary. The final rule, as with the proposal, recognizes that the enclosed-space procedures might not adequately protect employees in some circumstances. Paragraph (a) of the final rule requires that employers follow the general industry permit-space standard at § 1910.146 whenever the precautions required by final §§ 1926.953 and 1926.965 are insufficient to adequately control the hazards posed by the space. These conditions include any conditions that make complying with those two sections in this final rule infeasible. Therefore, OSHA is including paragraph (m) in the final rule as proposed.

To ensure that the air supplied by the ventilating equipment provides a safe atmosphere, paragraph (n), which is being adopted without substantive change from the proposal, requires the air supply to be from a clean source and prohibits it from increasing the hazards in the enclosed space. For example, the final rule prohibits positioning the air intake for ventilating equipment near the exhaust from a gasoline or diesel engine because doing so would contaminate the atmosphere in the enclosed space.

The use of open flames in enclosed spaces is safe only when flammable gases or vapors are not present in hazardous quantities. For this reason, final paragraph (o), which is being adopted without change from the proposal, requires additional testing for flammable gases and vapors if open flames are to be used in enclosed spaces. The tests must be performed immediately before the open-flame device is used and at least once per hour while the device is in use. More frequent testing is required if conditions indicate the need for it. Examples of such conditions include the presence of volatile flammable liquids in the enclosed space and a history of hazardous quantities of flammable vapors or gases in such a space.

5. Section 1926.954, Personal protective equipment

Final § 1926.954 contains requirements for personal protective equipment (PPE). Paragraph (a), which is being adopted without change from the proposal, clarifies that PPE used by employees during work covered by Subpart V must meet Subpart E of Part 1926.

Mr. Daniel Shipp with ISEA recommended that OSHA update the national consensus standards incorporated by reference in Subpart E (Ex. 0211). He pointed out, for example, that § 1926.100, which covers head protection, incorporates two outdated ANSI standards, namely ANSI Z89.1-1969, Safety Requirements for Industrial Head Protection, and ANSI Z89.2-1971, Industrial Protective Helmets for Electrical Workers (id.).

Updating the national consensus standards incorporated by reference in Subpart E is beyond the scope of this rulemaking, so OSHA is not adopting Mr. Shipp's recommendation in this final rule. However, on June 22, 2012, OSHA published a direct final rule updating its head protection standard in Subpart E (77 FR 37587-37600). [100] On November 16, 2012, OSHA published a notice confirming the effective date of the direct final rule (77 FR 68684; effective date—September 20, 2012). That rulemaking action updates the national consensus standard for head protection incorporated in Subpart E of the construction standards as recommended by Mr. Shipp.

The preamble to the proposal noted that OSHA had separately proposed regulatory language for the general PPE standards to clarify that employers are generally responsible for the cost of PPE (70 FR 34868-34869; 64 FR 15402, Mar. 31, 1999). OSHA published the final rule on employer payment for PPE on November 15, 2007 (72 FR 64342). The final rule on employer payment for PPE requires employers to pay for the PPE used to comply with OSHA standards, with a few exceptions. The exceptions include: (1) Everyday clothing, such as longsleeve shirts, long pants, street shoes, and normal work boots; and (2) ordinary clothing, skin creams, or other items, used solely for protection from weather, such as winter coats, jackets, gloves, parkas, rubber boots, hats, raincoats, ordinary sunglasses, and sunscreen. (See §§ 1910.132(h) and 1926.95(d).)

Employers must pay for fall protection equipment and other PPE used by employees in compliance with this final rule to the extent required by § 1926.95(d), the general construction rule regarding payment for PPE, or § 1910.132(h), the general rule regarding payment for PPE in general industry. (See 72 FR 64369 (explaining that the general PPE-payment provisions “apply to all OSHA standards requiring PPE”); see also the March 16, 2009, letter of interpretation to Mr. William Mattiford [101] (employers must pay for body belts, positioning straps, and pole- and tree-climbing equipment in accordance with § 1910.132(h)) and the May 1, 2008, letter to Mr. Gil Niedenthal [102] (employers must pay for body belts and pole climbers in accordance with § 1910.132(h)).)

OSHA included a note to final § 1926.954(a) to indicate that § 1926.95(d) sets employer payment obligations for the PPE required by subpart V, including, but not limited to, the fall protection equipment required by final § 1926.954(b), the electrical protective equipment required by final § 1926.960(c), and the flame-resistant and arc-rated clothing and other protective equipment required by final § 1926.960(g). (See the summary and explanation for § 1926.960(g), later in this section of the preamble, for a discussion of the issue of employer payment for flame-resistant and arc-rated clothing.)

Paragraph (b) of the final rule sets requirements for personal fall protection systems. Subpart M of part 1926, which sets requirements for fall protection for construction, contains provisions covering two types of personal fall protection systems: Personal fall arrest systems, addressed in § 1926.502(d), and positioning device systems, addressed in § 1926.502(e). Subpart M defines a “personal fall arrest system” as a system used to arrest an employee in a fall from a working level. It consists of an anchorage, connectors, and body harness and may include a lanyard, deceleration device, lifeline, or suitable combinations of these. (See § 1926.500(b).) Personal fall arrest systems are designed to safely arrest the fall of an employee working on a horizontal or vertical surface.

Subpart M defines a “positioning device system” as a body belt or body harness system rigged to allow an employee to be supported on an elevated vertical surface, such as a wall, and work with both hands free while leaning. (See § 1926.500(b).)

Positioning device systems are designed to support an employee working on a vertical surface so that the employee can work with both hands without falling. Proposed Subpart V contained requirements for “work positioning equipment,” which is equivalent to “positioning device system” as that term is defined in subpart M. (See the summary and explanation for final § 1926.954(b)(2), later in this section of the preamble.)

A third form of personal fall protection system, which is not specifically addressed in Subpart M, is a tethering, restraint, or travel-restricting system. OSHA's steel erection standard in Subpart R of Part 1926 contains requirements for “fall restraint systems,” which it defines as a fall protection system that prevents the user from falling any distance. The system consists of either a body belt or body harness, along with an anchorage, connectors and other necessary equipment. The other components typically include a lanyard, and may also include a lifeline and other devices. (See § 1926.751. [103] )

Fall restraint, tethering, and travel-restricting equipment are all designed to prevent employees from falling, in some cases by restraining an employee's access to unprotected edges (restraint, tethering, and travel-restricting equipment) and in other cases by holding the employee in place to prevent falling (restraint equipment).

IBEW recommended that the fall protection provisions in proposed paragraph (b), and in its general industry counterpart, proposed § 1910.269(g)(2), contain a reference to IEEE Std 1307, Standard for Fall Protection for Utility Work (Ex. 0230; Tr. 904-905, 983-984). The union noted that this is the only consensus standard addressing specific fall protection issues for the utility industry (Ex. 0230).

OSHA agrees that this consensus standard provides useful information to help employers comply with some provisions of the final rule and added the IEEE standard to the list of reference documents in Appendix G to subpart V and Appendix G to § 1910.269. [104] The Agency is not, however, referencing IEEE Std 1307 in § 1926.954 of the final rule. OSHA made substantial changes to the fall protection requirements in the final rule, and the IEEE standard does not reflect all of the final rule's requirements. For example, on and after April 1, 2015, final § 1926.954(b)(3)(iii)(C) generally does not permit qualified employees to climb poles, towers, or similar structures without fall protection. (See the summary and explanation for final § 1926.954(b)(3)(iii), later in this section of the preamble.) In contrast, section 6.2.1 of IEEE Std 1307-2004 permits qualified climbers to climb poles, towers, and similar structures without fall protection (Ex. 0427). [105]

Proposed paragraph (b)(1) provided that personal fall arrest systems had to meet the requirements of Subpart M of Part 1926. Existing § 1910.269(g)(2)(i) already contains a similar requirement. A note following proposed paragraph (b)(1) indicated that this provision would apply to all personal fall arrest systems used in work covered by subpart V. OSHA is not including this note in the final rule as it is unnecessary.

OSHA received a number of comments about proposed paragraph (b)(1). (See, for example, Exs. 0128, 0180, 0211, 0219, 0227, 0230.) Some of these comments generally supported the proposal, noting that there are no situations in which work covered by Subpart V would necessitate different requirements for fall arrest equipment than those already found in Subpart M. (See, for example, Exs. 0219, 0227, 0230.) Mr. Mark Spence with Dow Chemical Company supported the incorporation of subpart M in both subpart V and § 1910.269, but noted OSHA's plan to revise the general industry fall protection standard. He recommended that § 1910.269 and subpart V eventually be revised to refer to the updated general industry fall protection provisions:

The existing general industry standard [§ 1910.269] requires personal fall arrest equipment to meet the requirements of the construction industry fall protection standards, 29 CFR Part 1926, Subpart M. Both § 1910.269 and Subpart M were promulgated in 1994, whereas the general industry fall protection standards date back to 1971 (and are based on earlier requirements). To take advantage of the updated fall protection requirements in the construction standards, OSHA chose to make them applicable to work under this general industry standard. [Footnote omitted.]

* * * * *

Dow sees no current option for OSHA other than continuing to refer to Subpart M, supplementing it as appropriate with new provisions, as OSHA has done here. However, Dow urges OSHA to proceed expeditiously with the issuance of . . . new general industry fall protection . . . standards. Once . . . new [general industry fall protection standards are] published as a final rule, OSHA should revise both [Subpart V and § 1910.269] to refer to the new [provisions]. [Ex. 0126]

On May 24, 2010, OSHA proposed to revise the general industry walking-working surfaces standards and the personal protective equipment standards (75 FR 28862). The proposal included a new standard for personal fall protection systems, § 1910.140, which would increase consistency between construction, maritime, and general industry standards. When that rulemaking is finalized, OSHA will consider whether the cross-references in subpart V and § 1910.269 should be changed as recommended by Mr. Spence.

Two commenters noted that subpart M does not address arc-flash resistance for fall arrest equipment and recommended that OSHA require this equipment to pass arc-flash tests (Exs. 0180, 0211). Mr. Daniel Shipp of ISEA supported arc-flash testing as follows:

We believe that workers in electric power transmission and distribution have special requirements different from those in general construction activities. These special requirements are recognized as hazards associated with exposure to high-voltage electric current. The hazard of exposure to energized electrical sources often occurs at height[s] where personal fall arrest systems are required. The hazard of electric arc flash has been addressed in the ASTM F887-04 [Standard Specifications for Personal Climbing Equipment] for full body harnesses used in fall arrest.

We support the inclusion of electric arc-flash resistance requirements, referenced in ASTM F887-04, to be extended to [include] fall arrest PPE, especially full body harnesses and shock absorbing lanyards that are worn together as part of a complete fall arrest system. These components would be exposed to potentially damaging thermal shock in the event of an arc flash. The damage to lanyards not designed to withstand a high-voltage arc flash can be quite severe, reducing strength to levels below the factor of safety necessary to assure arrest of a fall. Tests have been performed by the Kinetrics high energy laboratory on high-tensile webbing, such as that used in fall protection PPE products. Testing at exposure levels of 40 cal/cm2, in accordance with the procedures in ASTM F1958/F1958M-99 [Standard Test Method for Determining the Ignitability of Non-flame-Resistance Materials for Clothing by Electric Arc Exposure Method Using Mannequins], demonstrated ignition and melting of the webbing sufficient to reduce webbing strength by greater than 30 percent.

One common example of this hazard involves employees tied off in bucket trucks working in close proximity to high-voltage power lines. The fall arrest harness and lanyard are typically exposed above the edge of the bucket where contact with electric arc flash is possible. In the event of an incident, including a fall by ejection out of the bucket, the strength of fall arrest components could be severely compromised if they were exposed to a high-voltage electric arc flash. [Ex. 0211]

Mr. Leo Muckerheide of Safety Consulting Services similarly recommended that harnesses and lanyards used by employees working on or near energized circuits meet ASTM F887-04, because that consensus standard provides performance criteria for arc resistance (Ex. 0180).

OSHA recognizes that employees performing work covered by subpart V and § 1910.269 are sometimes exposed to hazards posed by electric arcs. In fact, final §§ 1910.269(l)(8) and 1926.960(g) are designed to protect employees from electric arcs. In addition, the Agency already recognized the need for work-positioning equipment to be capable of passing a flammability test to ensure that the equipment does not fail if an electric arc occurs. (See final §§ 1910.269(g)(2)(iii)(G)(5) and 1926.954(b)(2)(vii)(E).) On the other hand, in work covered by subpart V or § 1910.269, personal fall arrest equipment has broader application than work-positioning equipment, with work-positioning equipment being used primarily on support structures for overhead power lines. Several applications for personal fall arrest equipment involve work that does not pose electric-arc hazards, especially in electric power generation work covered by § 1910.269. For example, an employee working on a cooling tower or atop a dam at an electric power generation plant would not normally be exposed to these hazards. Consequently, OSHA decided not to include a general requirement for all fall arrest equipment used under the final rule to be capable of passing an electric-arc test.

However, OSHA agrees that electric arcs can damage personal fall arrest equipment as readily as work-positioning equipment. The testing to which the commenters referred, and which is the basis of the test data found in the record, demonstrates that harnesses subjected to an electric arc can fail a drop test (Ex. 0432). The Agency concludes from these test data that personal fall arrest equipment worn by an employee who is exposed to an electric arc could fail if it is not designed to withstand the heat energy involved. OSHA also agrees with the commenters that employees working on or near energized circuits are exposed to electric arcs when the circuit parts are exposed (Ex. 0180). Accordingly, OSHA adopted a requirement in the final rule that fall arrest equipment used by employees exposed to hazards from flames or electric arcs be capable of passing a drop test after exposure to an electric arc [106] with a heat energy of 40±5 cal/cm2. This requirement matches the electric arc performance required of fall arrest equipment by ASTM F887-04 (Ex. 0055). The provision appears in final paragraph (b)(1)(ii).

Paragraph (g)(1) of § 1926.960 in the final rule requires employers to identify employees exposed to the hazards of flames or electric arcs. When these employees are using personal fall arrest equipment, that equipment also would be exposed to flame or electric-arc hazards, and the final rule requires this fall arrest equipment to be capable of passing a drop test equivalent to the test specified in paragraph (b)(2)(xii) (discussed later in this section of the preamble) after exposure to an electric arc with a heat energy of 40±5 cal/cm2. Harnesses and shock-absorbing lanyards meeting ASTM F887-12e1 [107] will be deemed to comply with this provision.

OSHA received a substantial number of comments addressing fall protection requirements for employees working in aerial lifts. Existing fall protection requirements to protect employees in aerial lifts performing work, including line-clearance tree-trimming work, covered by Subpart V or § 1910.269 are found in several standards. In construction, the construction aerial lift standard (§ 1926.453) and subpart M apply. For maintenance and operation work, the general industry aerial lift standard (§ 1910.67) and existing § 1910.269(g)(2) (incorporating subpart M of the construction standards) apply. Currently, line-clearance tree-trimming work is typically governed by the fall protection requirements in § 1910.269 and, depending on the type of work performed, falls under either the general industry or construction aerial lift standard.

Paragraph (b)(2)(v) of § 1926.453 in the construction standard for aerial lifts requires an employee working from an aerial lift to wear a body belt with a lanyard attached to the boom or basket. However, the introductory text to § 1926.502(d) in subpart M provides that “body belts are not acceptable as part of a personal fall arrest system.” The hazards of using a body belt as part of a fall arrest system are described in the preamble to the Subpart M final rule (59 FR 40672, 40702-40703, Aug. 9, 1994) and later in this section of the preamble. In short, since the fall-arrest forces are more concentrated for a body belt compared to a body harness, the risk of injury in a fall is much greater with a body belt. In addition, an employee can fall out of a body belt in a fall. Lastly, an employee faces an unacceptable risk of further injury while suspended in a body belt awaiting rescue.

Given the potential discrepancy between the aerial lift standard's requirement for body belts and the subpart M limitation on the use of body belts in fall arrest systems, a note following § 1926.453(b)(2)(v) explains that § 1926.502(d) provides that body belts are not acceptable as part of a personal fall arrest system. The use of a body belt in a tethering system or in a restraint system is acceptable and is regulated under § 1926.502(e).

Like the aerial lift standard in construction, the general industry aerial lift standard at § 1910.67(c)(2)(v) requires an employee working from an aerial lift to wear a body belt with a lanyard attached to the boom or basket. Even though existing § 1910.269(g)(2)(i) requires fall arrest equipment to meet subpart M of part 1926, which prohibits the use of body belts in personal fall arrest systems, the Agency previously decided that employers could use body belts and lanyards configured as fall arrest systems to protect employees doing work covered by § 1910.269 in aerial lifts.

OSHA explained in the preamble to the proposal that this rulemaking would prohibit the use of body belts in personal fall arrest systems for all work covered by § 1910.269 and subpart V, including work done from aerial lifts (70 FR 34850). The tree trimming industry criticized OSHA's proposed application of the Subpart M prohibition on body belts in personal fall arrest systems on the basis that it left line-clearance tree trimming employers with two (in the industry's view, undesirable) options—providing either (1) a personal fall arrest system with a body harness, or (2) a positioning system that, under proposed § 1926.954(b)(3)(iv) (or proposed § 1910.269(g)(2)(iii)(D)), is rigged to prevent free falls of more than 0.6 meters (2 feet). (See, for example, Exs. 0174, 0200, 0502, 0503; Tr. 611-619, 756-760.)

The tree trimming industry is mistaken about the compliance options available to its employers. The 0.6-meter free-fall limit applies only to work-positioning equipment, which may not be used in aerial lifts. As noted previously, under § 1926.500(b) of subpart M, “positioning device system” is defined as “a body belt or body harness system rigged to allow an employee to be supported on an elevated vertical surface, such as a wall, and work with both hands free while leaning.” Positioning device systems are not permitted to be used from a horizontal surface, such as the platform or bucket of an aerial lift. [108]

Although employees in aerial lifts cannot use work-positioning equipment, they can use restraint systems. As noted previously, a restraint system is a method of fall protection that prevents the worker from falling, for example, by preventing the employee from reaching an unprotected edge. Body belts are permissible in restraint systems. If an employer has an employee use a fall restraint system, it must ensure that the lanyard and anchor are arranged so that the employee is not exposed to falling any distance. [109] In addition, for a restraint system to work, the anchorage must be strong enough to prevent the worker from moving past the point where the system is fully extended, including an appropriate safety factor. In a November 2, 1995, letter of interpretation to Mr. Dennis Gilmore, OSHA suggested that, at a minimum, a fall restraint system have the capacity to withstand at least 13.3 kilonewtons (3,000 pounds) or twice the maximum expected force that is needed to restrain the employee from exposure to the fall hazard. [110] The Agency recommended that, in determining this force, employers should consider site-specific factors such as the force generated by an employee (including his or her tools, equipment and materials) walking, slipping, tripping, leaning, or sliding along the work surface. [111] With respect to work in aerial lifts, to the extent that the bucket or platform can become separated from the boom as noted by several commenters (see, for example, Tr. 614-615, 700), the restraint system would need to be anchored to the boom.

The proposed rule gave line-clearance tree trimming employers two options for employees in aerial lifts: (1) Use a personal fall arrest system with a harness; or (2) use a fall restraint system with a body belt or a harness. With respect to the first option, the tree trimming industry argued that personal fall arrest systems with body harnesses pose two hazards unique to line-clearance tree trimmers: (1) An electrocution hazard in the event of a fall into a power line and (2) a hazard associated with a harness' being pulled into a chipper. (See, for example, Exs. 0174, 0200, 0502, 0503; Tr. 616-617, 757-758.) Testifying on behalf of ULCC, Mr. Andrew Salvadore explained these arguments as follows:

It is to be noted that this full body harness as one of the options is potentially problematic though for line clearance tree trimmers. [D]ue to the unique way that line clearance tree trimmers work, this is for two reasons.

Reason 1: Linemen work next to energized conductors at arm's height. So if they fall from the aerial lift, they fall below the wire suspended in the air. But because . . . line clearance tree trimmers uniquely work from aerial lifts routinely positioned . . . or traveling above the wires if they were to fall from the bucket, they would likely fall onto the wire below when using the six-foot lanyard and full body harness, facing certain death by electrocution.

Reason 2: Some line clearance tree trimming companies have their tree trimmers help feed brush into the truck's wood chippers. This is a concern among many line clearance tree trimming safety professionals in that the harness's appendage straps . . . can get caught on the brush being fed into the chipper and drag the operator into the chipper. Additionally the donning and doffing of a full body harness may predispose the aerial lif[t] operator to take [an] unacceptable risk of aiding a coworker chipping brush on the ground or conversely removing the harness and not putting it back on when returning [aloft] in the lift. [Tr. 616-617]

In their posthearing comments, ULCC and TCIA expanded on this testimony. These organizations acknowledged that power line workers also work above power lines, but maintained that there are still significant differences that make it more dangerous to use personal fall arrest equipment with harnesses for line-clearance tree trimming work (Exs. 0502, 0503). First, ULCC and TCIA argued that, unlike line-clearance tree trimmers, line workers take measures to protect themselves from contact with power lines below the aerial lift bucket. For example, TCIA commented:

Through questioning of IBEW Panelists Jim Tomaseski and Don Hartley (Hearing Transcript, pages 1016-1019), we discovered that it is the lineman's typical practice to insulate wires underneath the person in an elevated work position in an aerial lift when there is the possibility of the worker coming within (including falling within) the minimum approach distance. Obviously, it effectively frees the lineman from concern of their fall protection allowing them to drop into the conductor(s). [I]nsulating the line is infeasible or impractical for our crews since they do not possess the tools or expertise to implement it. [Ex. 0503]

Second, ULCC asserted that line workers perform significantly less work above power lines than line-clearance tree trimmers, explaining:

Linemen usually work at the height of the electric line; their work from above the line is atypical—we estimate that less than 20% of linemen work is from above the line. Thus, the amount of linemen work [conducted] from above an electric line is di minimis [sic]. [Ex. 0502; emphasis included in original]

First, with respect to fall arrest equipment, OSHA does not consider body harnesses to pose greater hazards to line-clearance tree trimmers than body belts. The hazard to a worker from being pulled into a chipper is easily dismissed. OSHA acknowledges that there are serious hazards associated with operating chippers, including the hazard that workers could be caught by the chipper feed mechanism. NIOSH published an article warning of hazards associated with the operation of chippers (see NIOSH Publication No. 99-145, “Hazard ID 8—Injury Associated with Working Near or Operating Wood Chippers;” Ex. 0481), and that publication provides recommendations to protect workers against being caught in the feed mechanism. [112] These recommendations include: (1) Having workers wear close-fitting clothing and gloves, (2) having workers wear trousers without cuffs, and (3) ensuring that employees tuck in their clothing. Consistent with these recommendations, OSHA expects that any hazards associated with using a chipper while wearing a harness can be avoided by requiring employees to remove their harnesses before working with the chipper. The tree trimming industry commented that employees might not want to take off their harnesses before feeding brush into chippers. (See, for example, Ex. 0502; Tr. 616-617.) OSHA does not find that argument persuasive. Employers can avoid this concern altogether by having these workers perform other ground-based work, such as moving the cut tree branches near the chipper, while ground workers, who are not wearing harnesses, feed the branches into the chippers.

Second, OSHA does not consider the risk of falling into a power line to be as serious as the tree care industry portrays. If an employee falls from an aerial lift while using a personal fall arrest system with a harness, contact with a power line, though possible, is not certain. Sometimes the employee will not be working over the line. In other situations, the line will be on one side of the aerial lift bucket, but the employee will fall out on the other side where no conductors are present. In addition, the line may be far enough away that the employee does not reach it during the fall. In any event, the hazards associated with an employee falling into a power line can be reduced—or even removed altogether—by using a shorter lanyard as suggested by some rulemaking participants. (See, for example, Ex. 0505; Tr. 694-695.) In this regard, IBEW noted: “If . . . the normal lanyard length [for a fall arrest system] of 5 to 6 feet is too long, the lanyard can be shortened to 3 or 4 feet, thereby eliminating the anticipated problems” (Ex. 0505). Noting that the attachment point on a harness will be farther from the anchorage on the boom than is the attachment point on a body belt, ULCC claimed that a 0.9-meter (3-foot) lanyard was unworkable with a body harness (Ex. 0502). OSHA is not suggesting that a 0.9-meter lanyard with a body harness is feasible, only that a lanyard shorter than 1.8 meters (6 feet) could be used to reduce the risk of contact with a power line. A retractable lanyard could be used to keep the length of the lanyard as short as possible, thereby reducing the risk even further.

Finally, the tree trimming associations' attempt to portray the hazards of falling into power lines as unique to their industry is flawed. The evidence is clear from the comments of employees who perform line work that power line workers also work above power lines and can fall into them. (See, for example, Ex. 0505; Tr. 971.) In addition, ULCC's attempt to distinguish line-clearance tree trimming work from power line work on the grounds that power line workers insulate the conductors above which they are working is unpersuasive. Like line-clearance tree trimmers, power line workers often work above energized power lines that have not been insulated. The final rule does not require insulation on conductors for a power line worker maintaining the minimum approach distance. In addition, insulating the lines is not always possible. According to § 1926.97(c)(2)(i) and Table E-4 of the final rule, the highest maximum use voltage for rubber insulating equipment, such as rubber insulating line hose or blankets, is 36 kilovolts. The maximum use voltage for plastic guard equipment is 72.5 kilovolts (Ex. 0073). Insulation is not available above those voltages.

TCIA argued that insulating power lines is not feasible or practical for line-clearance tree trimming crews (Ex. 0503). OSHA is not persuaded by this argument. To the extent that it is the practice of line workers to insulate conductors beneath them, OSHA concludes that this practice also represents a feasible means of protecting line-clearance tree trimmers from the hazard of falling into the line. The comment that line-clearance tree trimmers are not currently being trained in this practice is not relevant to whether it is feasible. If necessary, a line-clearance tree trimming employer could have the electric utility install the insulation or train line-clearance tree trimmers so that they are qualified to install insulation. In any event, the final rule does not require insulation for line-clearance tree trimmers; the final rule at § 1910.269(r)(1)(iii) simply requires them to maintain the minimum approach distance from power lines. The use of insulation would simply be one way for line-clearance tree trimming employers to address their concern about employees falling into power lines while using personal fall arrest systems.

The tree trimming industry did not submit any comments directly addressing the use of restraint systems, which is the second compliance option available to line-clearance tree trimming employers. Instead, as a result of the industry's misunderstanding regarding the applicability of the 0.6-meter (2-foot) free-fall distance for work-positioning systems (described earlier), it simply argued that it would be impossible or unsafe for employees working from an aerial lift to use a 0.6-meter lanyard with a body belt for their work. (See, for example, Exs. 0174, 0200, 0419, 0502, 0503; Tr. 613-615, 756.)

Mr. Andrew Salvadore, representing ULCC, testified as follows:

[W]e can't do line clearance tree trimming with a lanyard of two foot [sic] or less. There are three reasons for this.

Reason No. 1: Line clearance tree trimmers need to be able to reach from the four corners of an aerial lift bucket to do their work because [of the need] to maintain a minimum approach distance from energized wires different from linemen who can work right next to the wires. We can't get to the four corners of the bucket with a two-foot or shorter lanyard, typically anchored . . . outside of the bucket on the boom. This prevents us from reaching outside of the bucket with our tools or extending from the bucket. . . .

Reason 2: The two-foot limitation is also unworkable because we usually work from [an] aerial lift positioned above energized conductors, reaching down to the tree branches below adjacent to conductors using insulated pole tools. This is different from linemen who typically position their lift buckets right next to the wire at arm's length. We lack the range of movement within the bucket necessary to reach over the bucket and down to the worksite because we would be restrained to the side of the bucket closest to the anchor. Relocation of an anchor is not [an] easy fix because the anchor is required to withstand a 5,000 pounds of force and typically can't be installed on the bucket . . . because [of] the lack of [a] strong enough anchoring point and because if the bucket breaks off in a catastrophic incident the worker goes down with the anchor attached to the bucket [rather than] being suspended by the lanyard attached to the boom.

The Third Reason: Our people may be potentially yanked out of the bucket into precisely the fall that is sought to be avoided by the proposal because line clearance tree trimmers routinely rotate and articulate their lift buckets in ways that would exceed the distance of a short lanyard. . . . [This exposes] the worker to being yanked out of the bucket by the short lanyard when the range of articulation of the bucket exceeds the short length of the lanyard. [Tr. 613-615]

To address these problems, the tree care industry recommended that OSHA permit the use of a 0.9-meter (3-foot) shock-absorbing lanyard with a body belt. (See, for example, Exs. 0174, 0200, 0502, 0503; Tr. 615—616, 759—760.) The industry proposed a 408-kilogram (900-pound) limitation on fall arrest forces, presumably to remove hazards associated with concentrated fall arrest forces in falls into body belts (id.).

As noted earlier, the tree care industry misinterpreted its compliance options under the proposed rule. For work from an aerial lift, there are only two options: (1) Fall arrest equipment and (2) a fall restraint system. Restraint systems do not permit any free fall. An acceptable restraint system for an aerial lift would prevent an employee from falling out of the lift and from being catapulted from the lift (for example, if the vehicle supporting the aerial lift was struck by a vehicle or if a large tree section struck the boom). Body belts are permitted as part of a restraint system; however, a system rigged to allow an employee to free fall even 0.6 meters (2 feet) would not be acceptable as a restraint system. The system proposed by the tree care industry, namely a body belt connected to a 0.9-meter (3-foot) lanyard attached to an anchorage on the boom of an aerial lift, would not prevent the employee from falling out of or being catapulted from an aerial lift. Therefore, it would not be acceptable as a restraint system.

Moreover, with a body belt instead of a harness, the system proposed by the tree care industry would not be an acceptable fall arrest system. Even if it provides sufficient protection to employees against concentrated fall arrest forces, it does not address the other two significant hazards associated with falling into body belts, that is, falling out of the body belt and sustaining further injury during suspension. [113]

The tree care industry asserted that OSHA has not demonstrated that using body belts in personal fall arrest systems in aerial lifts poses hazards to line-clearance tree trimmers. (See, for example, Exs. 0174, 0200, 0502, 0503; Tr. 613, 758-759.) TCIA made this point as follows:

The only fall protection issue arising in aerial lifts is failure to use any form of fall protection—an unsafe and non-compliant behavior that the industry must strive to eliminate. Similarly, if operators in the past have worn body belts incorrectly, causing the equipment to not deliver the level of protection it should have, then there is a behavioral issue to address in training.

It is our industry's experience that workers are not being injured by virtue of using body belts . . . and that non-compliance with PPE use requirements is directly proportional to how hard or uncomfortable the PPE is to use. [Ex. 0200; emphasis included in original]

ULCC had similar comments:

Preliminarily, there is NO showing in the subject notice of rule making that . . . allowing a body belt and lanyard for fall protection from aerial devices . . . creates a risk which merits modification of existing practice. It is our industry's experience that line clearance tree trimmers are not being injured by virtue of using body belts (OSHA cites no evidence, nor contrary evidence of any such bucket fall hazard or hazard from body belt lanyards over two feet long in line clearance tree trimming), and that lack of compliance with PPE use requirements is directly proportional to how hard or uncomfortable the PPE is to use. Between 1984 and 2002, there were 34 OSHA-recorded fatalities in Tree Trimming (SIC 0783) involving aerial device operators and falls. The details of these accidents illustrate where the greatest problems lie:

  • 23 of 34 fatalities were caused by catastrophic mechanical failures of some part of the aerial device that slammed the victim to the ground from considerable height. Fall protection, or lack of it, was not a factor in these fatalities.
  • 5 of 34 fatalities were caused by a tree or limb striking the aerial lift boom, again causing failure of the aerial device. Again, fall protection was not a factor.
  • 6 of 34 fatalities were caused by unsecured falls from the aerial device, and probably would have been prevented by the use of any means of fall protection.

At a recent meeting of the Tree Care Industry Association Safety Committee (a tree care industry trade association), with the safety directors of 20 of the largest tree care companies representing well over 60,000 tree care employees present, a survey was taken as to whether these companies had any experience with aerial lift operators being injured from secured falls out of buckets. None did. For them, the more profound problem was the operator who disobeyed company policy and failed to wear any fall protection.[Ex. 0174; emphasis included in original]

In its posthearing comments, ULCC further argued that the one accident OSHA described, in which an employee slipped out of a body belt, occurred to a line worker, not a line-clearance tree trimmer, and that this single accident “is statistically insignificant, insufficiently documented on the record, and in no way probative of any problem of line clearance tree trimmers falling from aerial lifts” (Ex. 0502). ULCC further suggested that OSHA's proposal ignored the suspension-trauma risk associated with full body harnesses (Exs. 0481, 0502). (OSHA describes the hazards related to prolonged suspension in fall protection equipment later in this section of the preamble.)

OSHA rejects these assertions. OSHA closely examined issues related to the use of body belts in arresting falls in its Subpart M rulemaking (59 FR 40702-40703). In that rulemaking, the Agency concluded that “evidence in the record clearly demonstrates that employees who fall while wearing a body belt are not afforded the level of protection they would be if the fall occurred while the employee was wearing a full body harness” (59 FR 40703). In addition, the Agency pointed to “evidence of injuries resulting from the use of body belts” in fall arrest systems (id.). Also, as mentioned by ULCC, there is evidence in this rulemaking of an incident in which an employee, working from an aerial lift while wearing a body belt in a fall arrest system, slipped from the belt in a fall (Ex. 0003 [114] ). Contrary to the tree care industry's suggestion, OSHA need not show that injuries are presently occurring to line-clearance tree trimmers because of falls into body belts; it is sufficient that the Agency found that tree trimming employees are exposed to a significant risk of injury under the existing standard and that the final rule will substantially reduce that risk. (See Section II.D, Significant Risk and Reduction in Risk, earlier in this preamble, for OSHA's response to the argument that the Agency is required to demonstrate a significant risk for each of the hazards addressed by this rulemaking.) ULCC's own analysis confirms that line-clearance tree trimmers are exposed to fall hazards (Ex. 0174). Nearly 18 percent of falls from aerial lifts were of the type that, if the employee had been wearing a body belt in a personal fall arrest system, he or she would have been exposed to the serious hazards, described earlier, that are associated with using body belts in fall arrest systems (id.).

The Agency acknowledges the suspension risk from body harnesses identified by ULCC. When an employee is suspended in a body belt or harness, a number of adverse medical effects can occur, including upper or lower extremity numbness; abdominal, shoulder, or groin pain; respiratory distress; nausea; dizziness; and arrhythmias (Ex. 0088). At least one of the adverse effects, orthostatic incompetence, can lead to death (Ex. 0481). It is because of these hazards that § 1926.502(d)(20) in Subpart M requires the employer to provide for prompt rescue of employees in the event of a fall or to assure that employees are able to rescue themselves. In any event, the hazards associated with prolonged suspension in a body belt are substantially more severe than the hazards associated with suspension in a harness. In 1985, the U.S. Technical Advisory Group on Personal Equipment for Protection Against Falling stated, in comments on another OSHA rulemaking: “The length of time which a fallen person can tolerate suspension in a body belt is measured in a very few minutes under the most favorable conditions” (Ex. 0084). In addition, a 1984 U.S. Air Force literature review recounted one study that found that “two subjects evaluated in . . . waist belt[s] with shoulder straps tolerated suspension for 1 min 21 sec and 3 min” (Ex. 0088). [115] That same study showed that subjects suspended in full body harnesses could tolerate suspension for approximately 20 to 30 minutes (id.).

The tree care industry commented that, to the extent injuries are occurring, they are caused by the failure of employees to use any fall protection, rather than by the use of body belts. (See, for example, Exs. 0174, 0200.) This argument supports, rather than undermines, a requirement for harnesses in personal fall arrest systems. To the extent better enforcement of fall protection requirements by employers is a critical component of protecting employees in aerial lifts, harnesses are preferable to body belts. It is not always possible to detect from the ground whether an employee is wearing a body belt, but it is relatively easy to determine if an employee is wearing a body harness (Tr. 972-973). If employees initially resist the use of body harnesses, as suggested by some commenters (see, for example, Exs. 0174, 0200, 0219), employers must be proactive in communicating the need for, and ensuring the use of, the required equipment.

The Agency concludes that the use of a 0.9-meter shock-absorbing lanyard with a body belt, as proposed by the tree trimming industry, is not an adequate substitute for the use of a harness in a fall arrest system. OSHA has not been persuaded to abandon its finding in the Subpart M rulemaking that body belts present unacceptable risks in fall arrest situations and should be prohibited as components of fall arrest equipment. OSHA is adopting in the final rule the requirement proposed in paragraph (b)(1) that personal fall arrest equipment meet Subpart M of Part 1926. This provision appears in final § 1926.954(b)(1)(i).

ULCC noted what it perceived as an implied, but unstated, revision in the proposal to the provisions contained in the general industry aerial lift standard (§ 1910.67(c)(2)(v)) requiring employees working in aerial lifts to use body belts and lanyards. (See, for example, Ex. 0174.)

In the preamble to the proposal, OSHA explained that it was relying on the provisions in the aerial lift standards to establish the employer's duty to provide fall protection for employees, but that Subpart M would govern the criteria fall arrest equipment must meet (70 FR 34850). In other words, for work covered by this rule, body belts would not be permitted in personal fall arrest systems. The ULCC commented: “OSHA's suggestion that [the aerial lift standard] describes only the `duty' to use fall protection rather than the kind of fall protection, respectfully, is a makeweight” (Ex. 0502).

In light of ULCC's comments, the Agency is concerned that some employers reading the final rule may mistakenly assume that the body belts required by §§ 1910.67(c)(2)(v) and 1926.453(b)(2)(v) remain acceptable for use in personal fall arrest systems. In addition, the Agency wants to make it clear in the final rule that work-positioning equipment is unacceptable from the horizontal working surface of an aerial lift. Employees working from aerial lifts covered by the final rule must be protected using either a fall restraint system or a personal fall arrest system. Therefore, OSHA is adding a provision in final §§ 1910.269(g)(2)(iv)(C)(1) and 1926.954(b)(3)(iii)(A) providing that employees working from aerial lifts be protected with a fall restraint system or a personal fall arrest system and that the provisions of the aerial lift standards requiring the use of body belts and lanyards do not apply. This provision clearly states the requirement contained in the proposal. As a consequence of this change, the final rule does not include the text in Note 1 to proposed § 1910.269(g)(2)(iii)(C) and Note 1 to proposed § 1926.954(b)(3)(iii) referring to fall protection for aerial lifts or referencing the general industry and construction standards on aerial lifts. (The corresponding notes in the final rule are Note 1 to § 1910.269(g)(2)(iv)(C)(2) and (g)(2)(iv)(C)(3) and Note 1 to § 1926.954(b)(3)(iii)(B) and (b)(3)(iii)(C).)

OSHA is adopting revised requirements for work-positioning equipment in § 1926.954(b)(2). [116] Section 1926.959 of existing Subpart V contains requirements for body belts, safety straps, [117] and lanyards. [118] This equipment was traditionally used as both work-positioning equipment and fall arrest equipment in the maintenance and construction of electric power transmission and distribution installations. However, fall arrest equipment and work-positioning equipment present significant differences in the way they are used and in the forces they place on an employee's body. With fall arrest equipment, an employee has freedom of movement within an area restricted by the length of the lanyard or other device connecting the employee to the anchorage. In contrast, and as explained earlier, work-positioning equipment is used on a vertical surface to support an employee in position while he or she works. The employee “leans” into this equipment so that he or she can work with both hands free. If a fall occurs while an employee is wearing fall arrest equipment, the employee will free fall up to 1.8 meters (6 feet) before the slack is removed and the equipment begins to arrest the fall. In this case, the fall arrest forces can be high, and they need to be spread over a relatively large area of the body to avoid injury to the employee. Additionally, the velocity at which an employee falls can reach up to 6.1 meters per second (20 feet per second). Work-positioning equipment is normally used to prevent a fall from occurring in the first place. If the employee slips and if the work-positioning equipment is anchored, the employee will only fall a short distance (no more than 0.6 meters (2 feet) under paragraph (b)(3)(iv) of final § 1926.954). This distance limits the forces on the employee and the maximum velocity of a fall. Additionally, because of the way the equipment is used, the employee should not be free falling. Instead, the work-positioning equipment will be exerting some force on the employee to stop the fall, thereby further limiting the maximum force and velocity. As long as the employee is working on a vertical surface, the chance of an employee using work-positioning equipment falling out of, or being suspended at the waist in, a body belt is extremely low.

In the final rule, OSHA is applying requirements to personal fall arrest systems that differ from the requirements that apply to work-positioning equipment. As discussed previously, personal fall arrest systems must meet subpart M of part 1926, as required by paragraph (b)(1)(i), supplemented by the requirement in final paragraph (b)(1)(ii) that the equipment withstand exposure to electric arcs. Work-positioning equipment must meet the requirements contained in paragraph (b)(2) of the final rule. Employers engaged in electric power transmission and distribution work may use the same equipment for fall arrest and for work positioning provided the equipment meets both sets of requirements. In fact, as noted in the preamble to the proposal, several manufacturers market combination body harness-body belt equipment, which can be used as fall arrest systems by employees working on horizontal surfaces or as work-positioning systems supporting employees working on vertical surfaces (70 FR 34850).

Paragraph (b)(2) of the final rule is based on existing § 1926.959 and ASTM F887-04, Standard Specifications for Personal Climbing Equipment, which was the latest edition of the national consensus standard applicable to work-positioning equipment when OSHA developed the proposed rule (Ex. 0055). Although OSHA is adopting requirements derived from the ASTM standard, the final rule is written in performance-oriented terms. Detailed specifications contained in the ASTM standard, which do not directly impact the safety of employees, were not included in the final rule. The Agency believes that this approach will retain the protection for employees afforded by the ASTM standard, while giving employers flexibility in meeting the OSHA standard and accommodating future changes in the ASTM standard without needing to change the OSHA standard. This is similar to the approach OSHA took in final § 1926.97, discussed previously.

While the ASTM standard does not cover lanyards, paragraph (b)(2), as proposed, would have applied many of the requirements based on the ASTM standard to lanyards. Existing § 1926.959 imposes the same basic requirements on lanyards.

OSHA requested comment on whether any of the proposed requirements for work-positioning equipment should not be applicable to lanyards. Some commenters supported the Agency's proposal. (See, for example, Exs. 0211, 0230.) For instance, IBEW stated:

[L]anyards used for fall protection for electric power transmission and distribution work [already] meet the requirements of ASTM F887-04. Therefore these requirements, as proposed, should be applicable to lanyards used for work positioning equipment. [Ex. 0230]

However, Buckingham Manufacturing Company, a manufacturer of work-positioning equipment used by line workers, opposed the application of some of the proposed requirements for work-positioning equipment to lanyards:

Buckingham Mfg. recommends including a section on lanyards to remove requirements outlined in the referenced sections that are not applicable to lanyards such as: (b)(2)(vii) and including at least criteria such as strength requirements for the rope or webbing used to manufacture . . . a lanyard, the minimum number of rope tucks for rope lanyards, the length of stitching for turnover at ends of web lanyards, stitching used be of a contrasting color to facilitate visual inspection, etc. [Ex. 0199]

ASTM F887-04 refers to the straps used with work-positioning equipment as “positioning straps,” not lanyards. [119] That consensus standard uses the term “lanyard” only with respect to personal fall arrest equipment. In addition, subpart M uses the term “lanyard” only in the requirements applicable to personal fall arrest systems in § 1926.502(d). However, existing § 1926.959 applies to “body belts, safety straps, and lanyards” used for either work positioning or fall arrest. Because the term “lanyard” is most typically used with reference to fall arrest equipment, OSHA is concerned that using that term in requirements for work-positioning equipment could lead employers or employees to believe that work-positioning equipment is acceptable for use in fall arrest situations, for example, when an employee is working from a horizontal surface. For these reasons, OSHA decided to use the term “positioning strap” instead of lanyard in final paragraph (b)(2) to describe the strap used to connect a body belt to an anchorage in work-positioning equipment. Thus, any strap used with work-positioning equipment is a “positioning strap” for the purposes of paragraph (b)(2). This language also should address Buckingham Manufacturing's concerns that some of the proposed requirements were inapplicable to lanyards. The Agency believes that Buckingham Manufacturing's comment was referring to lanyards used with personal fall arrest systems, which OSHA recognizes may not meet all of the requirements for positioning straps in final § 1926.954(b)(2). Paragraph (b)(2)(vii) contains specifications for positioning straps that are essential to electric power generation, transmission, and distribution work, including requirements for electrical performance, strength, and flame resistance (Ex. 0055). Lanyards, which are used with personal fall arrest systems, have to meet appropriate strength and, if necessary, arc-resistance requirements under subpart M and final § 1926.954(b)(1)(ii).

Paragraph (b)(2)(i), which is being adopted without substantive change from the proposal, requires hardware for body belts and positioning straps to be made from drop-forged steel, pressed steel, formed steel, or equivalent material. This hardware also must have a corrosion-resistant finish. Surfaces must be smooth and free of sharp edges. These requirements ensure that the hardware is durable, strong enough to withstand the forces likely to be imposed, and free of sharp edges that could damage other parts of the work-positioning equipment. These requirements are equivalent to existing § 1926.959(a)(1), except that the existing standard does not permit hardware to be made of any material other than drop-forged or pressed steel. Although ASTM F887-04 requires hardware to be made of drop-forged steel, [120] OSHA explained in the preamble to the proposal that, while the drop-forged steel process produces hardware that more uniformly meets the required strength criteria and will retain its strength over a longer period than pressed or formed steel, it is possible for other processes to produce hardware that is equivalent in terms of strength and durability (70 FR 34851). Paragraphs (d)(1) and (e)(3) of § 1926.502 already permit “connectors” (that is, “hardware” as that term is used in this final rule) to be made of materials other than drop-forged or pressed steel.

OSHA invited comments on whether alternative materials would provide adequate safety to employees. Most commenters responding to this issue supported the proposed language accepting the use of equivalent materials. (See, for example, Exs. 0126, 0162, 0173, 0175, 0186, 0230.) For instance, Ms. Salud Layton of the Virginia, Maryland & Delaware Association of Electric Cooperatives commented:

We support the flexibility OSHA [is] offering in this area. Allowing hardware to be made of material other than drop-forged or pressed steel allows for potential alternatives to be evaluated for use. Other material, however, must meet the strength and durability criteria of drop-forged or pressed steel materials. [Ex. 0175]

Other commenters supported the proposal because it would permit the use of alternative materials that might be developed in the future (Exs. 0162, 0186, 0230). Mr. Daniel Shipp with ISEA commented that the “use of non-ferrous materials, including high-tensile aluminum with [a] protective anodize coating, is common” and noted that there are “criteria [available] for evaluating the equivalence between forged alloy steel and other materials” (Ex. 0211).

Although OSHA received no outright opposition to the proposal, ASTM Committee F18 on Electrical Protective Equipment for Workers, the committee responsible for developing ASTM F887, submitted the following statement from Mr. Hans Nichols, P.E., Metallurgical Consulting:

My opinion is that forgings are superior to stampings. The principal advantage of forgings is control of grain direction to match the part geometry. The grain direction of a stamping will be oriented transverse to the part in some areas. Since the mechanical properties, i.e.—yield strength and impact strength, are lower in the transverse direction, this area of the part would be a weak point. [Ex. 0148]

OSHA agrees that some materials have advantages over others and expects that manufacturers typically base their design decisions on factors such as these. However, the fact that forgings may result in more uniform strength throughout a material than stampings is not relevant to the overall strength of hardware. It is the area of least strength that determines whether hardware has sufficient overall strength, and the design-test requirements in the final rule (discussed later in this section of the preamble) ensure that hardware, and the entire work-positioning system, are sufficiently strong. In other words, the testing requirements in the rule ensure that the weakest part of the weakest piece of the system will not fail under conditions likely to be encountered during use. In addition, the final rule requires that the hardware be made of material that has strength and durability equivalent to that of drop-forged, pressed, or formed steel, materials used successfully for work-positioning equipment for decades. Therefore, OSHA is including paragraph (b)(2)(i) in the final rule substantially as proposed.

Paragraph (b)(2)(ii), which is being adopted without substantive change from the proposal, requires buckles to be capable of withstanding an 8.9-kilonewton (2,000-pound-force) tension test with a maximum permanent deformation no greater than 0.4 millimeters (0.0156 inches). This requirement, which also can be found in existing § 1926.959(a)(2), will ensure that buckles do not fail if a fall occurs.

Paragraph (b)(2)(iii), which is being adopted without substantive change from the proposal, requires that D rings be capable of withstanding a 22-kilonewton (5,000-pound-force) tensile test without cracking or breaking. (A D ring is a metal ring in the shape of a “D.” See Figure 2, which shows a snaphook and a D ring.) This provision, which is equivalent to existing § 1926.959(a)(3), will ensure that D rings do not fail if a fall occurs.

Paragraph (b)(2)(iv), which is being adopted without substantive change from the proposal, is equivalent to existing § 1926.959(a)(4) and requires snaphooks to be capable of withstanding a 22-kilonewton (5,000-pound-force) tension test without failure. A note following this provision indicates that distortion of the snaphook sufficient to release the keeper is considered to be tensile failure. The language of the note in the final rule was revised from the proposal to make it clear that such distortion is only one form of failure. The snaphook breaking completely is a more obvious failure not mentioned in the note.

Paragraph (b)(2)(v), which is being adopted without change from the proposal, prohibits leather or leather substitutes from being used alone as a load-bearing component of a body-belt and positioning-strap assembly. This is a new requirement for Subpart V and was derived from ASTM F887-04, Sections 14.2.1 and 15.2.1. [121] The requirement is necessary because leather and leather substitutes do not retain their strength as they age. Because this loss in strength is not always easy to detect by visual inspection, it can lead to failure under fall conditions.

Paragraph (b)(2)(vi), which is being adopted without substantive change from the proposal, requires that plied fabric used in positioning straps and in load-bearing portions of body belts be constructed so that no raw edges are exposed and the plies do not separate. This new requirement, which also is based on ASTM F887-04, in this instance, Sections 14.2.2 and 15.2.2, will prevent plied fabric from separating, which could cause it to fail under fall conditions. [122]

Although work-positioning equipment used in electric power transmission and distribution work is not to be used as insulation from live parts, positioning straps could come into accidental contact with live parts while an employee is working. Thus, OSHA deems it important for this equipment to provide a specified level of insulation. Accordingly, the Agency proposed, in paragraphs (b)(2)(vii)(A) and (b)(2)(vii)(B), to require positioning straps to be capable of passing dielectric and leakage current tests. [123] Similar requirements are found in existing § 1926.959(b)(1). The voltages listed in the proposed paragraphs were alternating current. A note following proposed paragraph (b)(2)(vii)(B) indicated that equivalent direct current tests also would be acceptable.

In the preamble to the proposed rule, OSHA explained that ASTM F887-04 did not require positioning straps to pass a withstand-voltage test (70 FR 34851). Instead, the consensus standard stated in a note that the fabric used in the positioning straps must pass a withstand-voltage test. The Agency invited comment on whether performing electrical tests on positioning straps is necessary for employee safety in electric transmission and distribution work (that is, whether the requirements proposed in paragraphs (b)(2)(vii)(A) and (b)(2)(vii)(B) were necessary). [124] A number of commenters responded to this question. Some commenters supported OSHA's proposal. (See, for example, Exs. 0148, 0230.) For instance, IBEW explained:

Positioning straps should offer a minimum level of insulation in the event [the] strap comes in contact with energized parts. The manufacturing specifications from ASTM F887-04 do not ensure the positioning strap actually offers any level of insulation. As stated in the proposal, the ASTM requirements only require the fabric used to make the strap be tested for leakage current. Other products used [in] the manufacture of the strap could . . . jeopardize the electrical [insulation] integrity of the fabric. Therefore, the leakage current of the finished product will not be known without a separate test. [Ex. 0230]

ASTM commented that “requirements in ASTM F887 04 for leakage current and withstand testing of the positioning strap material in Sections 15.3.1 and 15.3.1—Note 2 are adequate for the performance of the positioning strap” (Ex. 0148). The organization recommended that the ASTM language “be repeated in the Final 1926.954, or incorporated by reference” (id.).

Other commenters did not see a need to perform electrical tests on positioning straps. (See, for example, Exs. 0162, 0173, 0186, 0219.) For instance, Mr. Anthony Ahern with Ohio Rural Electric Cooperatives argued: “Given the environment these devices will be used in, within 5 minutes of being used the first time they will probably have enough dirt and wood preservative ground into them that they couldn't pass such a test again” (Ex. 0186). He also noted that this equipment has been in service for years and he is not aware of any accidents that have occurred due to the breakdown of a positioning strap (id.). Mr. Allen Oracion with Energy United EMC maintained that positioning straps will be separated from energized parts by at least the minimum approach distance, making withstand tests unnecessary (Ex. 0219).

OSHA believes that requiring positioning straps to be capable of passing the electrical tests in proposed § 1926.954(b)(2)(vii)(A) and (b)(2)(vii)(B) will provide an additional measure of protection to employees if a conductor or other energized part slips and lands on the strap or if the strap slips from the employee's hand and lands on an energized part. In response to Mr. Oracion's comment, the Agency notes that the minimum approach distance will not always protect employees exposed to electric-shock hazards. For example, minimum approach distances do not apply to conductors on which work is being performed by employees using rubber insulating gloves (as explained under the discussion of § 1926.960(c)(1) of the final rule). The proposed withstand- and leakage-testing requirements will confirm that the fabric used in the manufacture of the strap will provide insulation from electrical contact and that the manufacturing process that created the strap did not compromise the fabric's insulating properties. Although the equipment may become contaminated during use, as noted by Mr. Ahern, the inspection requirements in § 1926.954(b)(3)(i) of the final rule (discussed later in this section of the preamble) will ensure that any contamination that can affect the insulating properties of the equipment will be identified and removed. In addition, any contamination will normally be on the portion of the positioning strap in contact with a pole; the remaining portion of the strap will still provide a measure of protection.

The testing requirements in final paragraphs (b)(2)(vii)(A) and (b)(2)(vii)(B) are also equivalent to the tests required by ASTM F887-12e1(Section 15.3.1 and Note 2). It is not clear why ASTM included the requirement that positioning straps pass a withstand test in a note rather than in the rule itself. OSHA is including the requirement that positioning straps be capable of passing a withstand test in the text of final § 1926.954(b)(2)(vii)(A) to make it clear that this provision is mandatory. The Agency believes that straps currently being manufactured and used usually meet the final provisions. There is no evidence in the rulemaking record that current positioning straps do not meet these requirements. Therefore, OSHA is including paragraphs (b)(2)(vii)(A) and (b)(2)(vii)(B) in the final rule as proposed.

Paragraphs (b)(2)(vii)(C) and (b)(2)(vii)(D), which are being adopted without substantive change from the proposal, contain new requirements for positioning straps to be capable of passing tension tests and buckle-tear tests. These tests are based on ASTM F887-04, sections 15.3.2 and 15.3.3, and will ensure that individual parts of positioning straps have adequate strength and will not fail during a fall. [125]

Paragraph (b)(2)(vii)(E) requires positioning straps to be capable of passing a flammability test (described in Table V-1). This requirement, and the test in Table V-1, are based on ASTM F887-04, Section 15.3.4. [126] If an electric arc occurs while an employee is working, the work-positioning equipment must be capable of supporting the employee in case he or she loses consciousness. It is particularly important for the positioning strap to be resistant to igniting, because, once ignited, it would quickly lose its strength and fail.

Mr. Pat McAlister with Henry County REMC questioned the “value in the proposed arc testing requirement” because his company was “not aware of any situation where exposure to thermal energy has contributed to failure of” positioning straps (Ex. 0210).

OSHA responds that, although paragraph (b)(2)(vii)(E) will help ensure that positioning straps do not fail if an electric arc occurs, the standard just requires positioning straps to be capable of passing a flammability test; the standard does not require electric-arc testing. As noted later in the discussion of § 1926.960(g) of the final rule, electric power generation, transmission, and distribution work exposes employees to hazards from electric arcs. Paragraph (b)(2)(vii)(E) of § 1926.954 protects against some of those hazards, including ignition of the positioning strap, which could lead to failure of the strap and burns to the employee. ASTM F887 has required positioning straps to be capable of passing a flammability test since 1988, so the Agency is not surprised that Mr. McAlister is not aware of failures of positioning straps in electric-arc exposures. Having ASTM adopt a requirement for positioning straps to pass a flammability test is evidence that the consensus of industry opinion is that such testing is necessary. Therefore, OSHA is including paragraph (b)(2)(vii)(E) in the final rule as proposed. (OSHA, however, has made nonsubstantive, clarifying changes to final Table V-1.)

Paragraph (b)(2)(viii), which is being adopted without substantive change from the proposal, requires the cushion part of a body belt to be at least 76 millimeters (3 inches) wide, with no exposed rivets on the inside. This requirement is equivalent to existing § 1926.959(b)(2)(i) and (ii).

Existing § 1926.959(b)(2)(iii), which requires the cushion part of the body belt to be at least 0.15625 inches thick if made of leather, was omitted from the final rule. The strength of the body belt assembly, which this existing provision addresses, is now adequately addressed by the performance-based strength criteria specified in final § 1926.954(b)(2)(xii) (discussed later in this section of the preamble). Additionally, as noted previously, load-bearing portions of the body belt may no longer be constructed of leather alone under paragraph (b)(2)(v) of the final rule.

Paragraph (b)(2)(ix), which is being adopted without substantive change from the proposal, requires that tool loops on a body belt be situated so that the 100 millimeters (4 inches) at the center of the back of the body belt (measured from D ring to D ring) are free of tool loops and other attachments. OSHA based this requirement on ASTM F887-04, Section 14.4.3, which is similar to existing § 1926.959(b)(3). This requirement will prevent spine injuries to employees who fall onto their backs while wearing a body belt, which could happen to an employee walking on the ground before or after climbing a pole.

Existing § 1926.959(b)(2)(iv) requires body belts to contain pocket tabs for attaching tool pockets. ASTM F887-04 also contained a requirement that body belts have pocket tabs. In the proposal, OSHA stated that it did not consider provisions regarding pocket tabs to be necessary for the protection of employees; the Agency believed that these requirements ensured that body belts were suitable as tool belts, but did not contribute significantly to the safety of employees (70 FR 34851).

ASTM Committee F18 on Electrical Protective Equipment for Workers clarified the purpose of the requirements for pocket tabs in the consensus standard as follows:

[Pocket tabs are] addressed in ASTM F887-04, Section 14.4.1[127] as follows: “The belt shall have pocket tabs extending at least 11/2″ (3.8 cm) down, and with the point of attachment at least 3 in. (7.6 cm) back of the inside of the circle dee rings on each side for the attachment of pliers or tool pockets. On shifting dee belts, the measurement for pocket tabs shall be taken when the dee ring section is centered.”

* * * * *

The primary reason for the specific placement of these pocket tabs is to assist in eliminating the interference of tools being carried on the belt with the proper engagement of a positioning strap snaphook into the body belt dee ring.

Therefore, this detail is important for the safety of employees using these body belts. [Ex. 0148]

The committee recommended that OSHA either adopt the ASTM language or incorporate it by reference.

OSHA does not believe that pocket tabs are a hazard. The tabs are flush with the body belt and extend down from it. They do not interfere with the attachment of snaphooks to the D rings. OSHA agrees that tool pockets fastened to the tabs, or the tools in those pockets, could interfere under certain conditions. For example, a large tool or pocket could interfere with the attachment of snaphooks and D rings even with the tabs positioned as required by the consensus standard. The Agency believes that this hazard is better addressed by the general requirement in final paragraph (b)(3)(i) (discussed later in this section of the preamble) that work-positioning equipment be inspected to ensure that it is in safe working condition before use. In addition, the ASTM committee did not explain why tabs are necessary in the first place. Therefore, OSHA is not adopting the committee's recommendation to add the ASTM requirement on pocket tabs in the final rule.

Existing § 1926.959(b)(3) permits a maximum of four tool loops on body belts. As explained in the preamble to the proposal, OSHA does not believe that this provision is necessary for the protection of employees (70 FR 34851). Like existing § 1926.959(b)(2)(iv), this requirement ensures only that body belts are suitable as tool belts. OSHA received no comments on the proposed removal of this requirement, and the final rule removes this requirement from subpart V. [128]

Paragraph (b)(2)(x), which is being adopted without change from the proposal, requires copper, steel, or equivalent liners to be used around the bars of D rings. This provision, which duplicates existing § 1926.959(b)(4), will prevent wear between the D ring and the body belt fabric. Such wear could contribute to failure of the body belt during use.

In paragraph (b)(2)(xi), OSHA proposed that snaphooks used as part of work-positioning equipment be of the locking type. A snaphook has a keeper designed to prevent the D ring to which it is attached from coming out of the opening of the snaphook. (See Figure 1.) However, if the design of the snaphook is not compatible with the design of the D ring, the D ring can roll around, press open the keeper, and free itself from the snaphook. (See Figure 2.)

For many years, ASTM F887 had a requirement that snaphooks be compatible with the D rings with which they were used. Even with this requirement, however, accidents resulting from snaphook roll-outs still occurred. As OSHA explained in the preamble to the proposal, several factors account for this condition (70 FR 34852). First, while one manufacturer can (and most do) thoroughly test its snaphooks and its D rings to ensure “compatibility,” no manufacturer can test its hardware in every conceivable combination with other manufacturers' hardware, especially since some models of snaphooks and D rings are no longer manufactured. While an employer might be able to test all of the different hardware combinations with its existing equipment, the employer normally does not have the expertise necessary to conduct such tests in a comprehensive manner. Second, snaphook keepers can be depressed by objects other than the D rings to which they are attached. For example, a loose guy (a support line) could fall onto the keeper while an employee is repositioning himself or herself. This situation could allow the D ring to escape from the snaphook, and the employee would fall as soon as he or she leaned back into the work-positioning equipment. The locking-type snaphooks OSHA proposed to require will not open unless employees release the locking mechanisms.

A few commenters objected to the requirement for locking snaphooks, maintaining that existing pole straps with nonlocking snaphooks have been used safely and effectively for many years. (See, for example, Exs. 0210, 0225.) Mr. Jonathan Glazier with the National Rural Electric Cooperative Association (NRECA) questioned the safety benefits of locking snaphooks, commenting:

Is the cost of replacing the thousands of non-locking snaphooks in use today outweighed by the benefit? Certainly workers are familiar with the rudimentary technology presented by non-locking snaphooks, so the danger they present is low. [Ex. 0233]

A majority of the rulemaking participants who commented on this issue agreed that the proposed requirement for locking snaphooks was justified. (See, for example, Exs. 0167, 0169, 0213; Tr. 579.) For instance, Quanta Services commented that “the current requirement [to use] snaphooks compatible with the particular D rings with which they are used is not sufficient because accidents from snaphook rollover still occur” and agreed with OSHA that the proposal to require locking snaphooks “will provide greater protection” (Ex. 0169).

Snaphook rollout is a recognized hazard, as indicated by updated requirements in the consensus standard. The ASTM committee believed that the former requirement for compatibility between snaphooks and D rings was inadequate to protect employees; thus, the committee included a requirement for locking snaphooks in ASTM F887-04 (Ex. 0055). Evidence in the record indicates that the committee was correct; one exhibit showed that two workers were killed when the snaphooks they were using apparently rolled out (Ex. 0003). [129] OSHA considered the record on this issue and concluded that the proposed requirement for locking snaphooks is justified; therefore, the Agency is including the proposed provision in the final rule.

Mr. Lee Marchessault with Workplace Safety Solutions recommended that the term “double locking type” be used rather than “locking type” (Ex. 0196; Tr. 579). His comment addressed the reference to locking snaphooks in proposed paragraph (b)(3)(vi) (discussed later in this section of the preamble), but, because paragraph (b)(2)(xi) contains the requirement that snaphooks on positioning straps be of the locking type, his comment applies equally here.

The devices specified in the standard are “locking snaphooks.” They are also known as “double-locking snaphooks.” However, this latter term is a misnomer. There is only a single locking mechanism. The keeper, which “keeps” the snaphook on the D ring, is not self-locking. Consequently, these devices are correctly known as “locking snaphooks,” and OSHA is using this term in the final rule.

In issuing the proposal, OSHA recognized that there might be thousands of existing nonlocking snaphooks currently in use and requested comment on whether it should phase in the requirement for locking snaphooks for older equipment or allow employers to continue using existing equipment that otherwise complies with the standard until it wears out and must be replaced.

Several commenters recommended grandfathering existing equipment and requiring that only newly purchased positioning straps be equipped with locking snaphooks. (See, for example, Exs. 0162, 0175, 0210, 0224, 0225, 0227, 0233.) For instance, the Virginia, Maryland & Delaware Association of Electric Cooperatives commented:

[G]randfathering existing equipment for those companies that have not started utilizing locking snap-hooks is prudent. For companies currently using older equipment, the requirement should be that as the older equipment is phased out or worn out, new equipment must be the locking snap-hook type. [Ex. 0175]

In addition, Mr. Glazier with NRECA was concerned that requiring an immediate switch to locking snaphooks could lead to a shortage of compliant equipment (Ex. 0233).

Other commenters argued that there should be little or no phase-in period because nonlocking snaphooks have not been available for over 10 years and because employees would be left at risk. (See, for example, Exs. 0148, 0199, 0212.) TVA commented that it had “prohibited nonlocking snaphooks for a number of years” before OSHA's proposal (Ex. 0213). The Southern Company and ASTM Committee F18 recommended a phase-in period of no more than 12 months (Exs. 0148, 0212). Buckingham Manufacturing Company recommended a phase-in period of no more than 3 months (Ex. 0199).

According to the ASTM committee, manufacturers stopped producing nonlocking snaphooks before 1998 (Ex. 0148). In addition, evidence in the record indicates that the average useful life of a body belt or body harness is 5 years (Ex. 0080). The Agency believes that the useful life of positioning straps (to which snaphooks are affixed) also is approximately 5 years because they are made from the same materials and are subject to the same conditions of use. Thus, any nonlocking snaphooks still remaining in use are substantially beyond their expected useful life and are probably in need of replacement. In addition, there is evidence in the record that the vast majority of positioning straps in use already have locking snaphooks. Mr. James Tomaseski of IBEW testified that, based on a survey of the union's members, 80 percent of electric utilities and contractors performing work covered by the final rule require the use of locking snaphooks (Tr. 976). He also testified that locking snaphooks are used even by companies that do not require them and that there will not be a problem with availability (Tr. 975-976). Therefore, OSHA concludes that a phase-in period of 90 days should be adequate to comply with the requirement. Compliance with paragraph (b)(2)(xi) is required on the effective date of the final rule: July 10, 2014.

OSHA proposed three requirements for locking snaphooks to ensure that keepers do not open without employees intentionally releasing them. First, for the keeper to open, a locking mechanism would have to be released, or a destructive force would have to be impressed on the keeper (paragraph (b)(2)(xi)(A)). Second, a force in the range of 6.7 N (1.5 lbf) to 17.8 N (4 lbf) would be required to release the locking mechanism (paragraph (b)(2)(xi)(B)). Third, with a force on the keeper and the locking mechanism released, the keeper must be designed not to open with a force of 11.2 N (2.5 lbf) or less, and the keeper must begin to open before the force exceeds 17.8 N (4 lbf) (paragraph (b)(2)(xi)(C)). [130] These requirements are based on ASTM F887-04, section 15.4.1. [131] Proposed paragraph (b)(2)(xi)(C), relating to the spring tension on the keeper, was equivalent to existing § 1926.959(b)(6).

Mr. Daniel Shipp with ISEA objected to these proposed requirements and maintained that the provisions on work-positioning equipment should be consistent with § 1910.66 (Powered platforms for building maintenance), Appendix C, and § 1926.502 (Fall protection systems criteria and practices), commenting:

Neither of these [existing] standards set forth detailed specifications for the forces required to actuate the locking and gate mechanisms of snaphooks. The determining factors that relate most closely to incidents of accidental disengagement of a snaphook from its connector are (a) the compatibility in size and shape of the connecting element, and (b) the tensile strength of the gate in the closed and locked position, which are fully discussed in 1910.66 and 1926.502. It is difficult to envision one range of force requirements that would apply equally to all locking snaphooks because of the wide variety of existing and possible snaphook designs.

OSHA should limit its regulation of self-closing and self-locking snaphooks to use in work positioning applications that follow existing fall protection regulations. The addition of further restrictive requirements will have the effect of possibly eliminating otherwise safe and efficient equipment from the marketplace without any demonstrable improvement in worker safety. [Ex. 0211]

It is not clear from Mr. Shipp's comment whether he opposes the requirement that snaphooks be of the locking type. If he does, there is ample evidence in the record, as discussed previously, to support the adoption of a requirement for locking snaphooks. Therefore, the Agency will focus on his comments relating to the forces used to unlock and open keepers. The proposed paragraphs ensure the adequacy of the locking mechanism by requiring a destructive force to open the keeper if it is not first unlocked and by specifying the minimum force required to open the locking mechanism. The proposed paragraphs also ensure that the keeper does not open unintentionally if the locking mechanism is opened accidentally (for example, by a loose conductor striking it), or if it breaks.

In addition to specifying minimum forces, the proposed paragraphs specified the maximum forces necessary to open the locking mechanism and the keeper when the locking mechanism is open. Because this equipment is frequently used with rubber insulating gloves and leather protectors, employees have limited dexterity when they are opening and closing keepers (Ex. 0173). Snaphook keepers that are too difficult to unlock or open by employees wearing rubber insulating gloves could interfere with connecting a snaphook to a D ring and lead to falls. In addition, employees develop a rhythm, buckling and unbuckling the positioning straps into the D rings of their body belts (see, for example, 269-Ex. 3-11). Snaphook keepers that are too difficult to unlock or open will interfere with this rhythm, potentially leading to falls. These conditions are not present for employees working from power platforms covered by § 1910.66 or in general construction work covered by § 1926.502.

As noted previously, existing subpart V already requires the opening force on the keeper to be within the range specified in the proposal. Also, the inclusion of similar provisions in ASTM F887 is evidence that the ASTM committee concluded that there is a need for the requirements proposed in paragraph (b)(2)(xi). For these reasons, OSHA is including paragraphs (b)(2)(xi)(A), (b)(2)(xi)(B), and (b)(2)(xi)(C) in the final rule as proposed. (As previously noted, OSHA has corrected the metric units in these provisions in the final rule.)

Mr. Frank Owen Brockman of Farmers Rural Electric Cooperative Corporation recommended that OSHA prohibit the use of any snaphook that requires employees to remove gloves before opening the snaphook (Ex. 0173). As noted earlier, the objective performance requirements in paragraph (b)(2)(xi) will ensure that snaphooks meeting the standard are usable by employees wearing rubber insulating gloves and leather protectors. The Agency does not believe that adding a requirement that snaphooks be capable of being opened by an employee wearing gloves will improve the safety of these devices. OSHA believes, however, that employers will consider this facet of snaphook design when selecting positioning straps, if only to minimize employee complaints.

Existing § 1926.959(b)(7) requires body belts, safety straps, and lanyards to be capable of passing a drop test in which a test load is dropped from a specific height and the equipment arrests the fall. The test consists of dropping a 113.4-kg (250-lbm) bag of sand a distance of either 1.2 meters (4 feet) or 1.8 meters (6 feet), for safety straps and lanyards, respectively. [132]

OSHA explained in the preamble to the proposal that ASTM adopted a different test in ASTM F887-04 (70 FR 34853). Under the existing OSHA test, the bag of sand can be fitted with the body belt in different ways, resulting in tests that are not necessarily consistent among different testing laboratories. To overcome this problem, ASTM 887-04 adopted a drop test that uses a rigid steel mass of a specified design. To compensate for differences between a rigid mass and the more deformable human body, the ASTM standard uses a lower test mass, 100 kg (220 lbm), and a shorter drop height, 1 meter (39.4 inches). OSHA proposed to replace the drop test in existing § 1926.959(b)(7) with a test modeled on the test specified in the 2004 ASTM standard. [133]

Proposed paragraph (b)(2)(xii)(A) would have required the test mass to be rigidly constructed of steel or equivalent material having a mass of 100 kg (220.5 lbm). OSHA explained in the proposal that this mass was comparable to the 113.4-kg (250-lbm) bag of sand that must be used under the existing OSHA standard (70 FR 34853). Even though the proposed test mass was lighter than a heavy power line worker, OSHA explained that the proposed test method would place significantly more stress on the equipment than an employee of the same mass because the test drop was greater than the maximum permitted free-fall distance and because the test mass was rigid (id.).

Proposed paragraphs (b)(2)(xii)(B) and (b)(2)(xii)(C) specified the means used to attach body belts and positioning straps during testing. These provisions would ensure that the work-positioning equipment being tested was properly attached to the test apparatus.

Proposed paragraph (b)(2)(xii)(D) provided for the test mass to be dropped an unobstructed distance of 1 meter (39.4 inches). OSHA explained in the preamble that, for positioning straps, this distance was equivalent (given the rigid test mass) to the existing standard's test distance of 1.2 meters (4 feet) (70 FR 34853).

Proposed paragraphs (b)(2)(xii)(E) and (b)(2)(xii)(F) specified the following acceptance criteria for tested equipment: (1) Body belts would have had to arrest the fall successfully and be capable of supporting the test mass after the test, and (2) positioning straps would have had to successfully arrest the fall without breaking or allowing an arresting force exceeding 17.8 kilonewtons (4,000 pounds-force). Additionally, the proposal provided that snaphooks on positioning straps not distort sufficiently to allow release of the keeper.

OSHA requested comment on whether the proposed test was reasonable and appropriate and, more specifically, whether the requirement for a rigid test mass of 100 kg (220.5 lbm) dropped a distance of 1 meter (39.4 inches) was sufficiently protective.

Most rulemaking participants who commented on this issue supported the proposed requirements. (See, for example, Exs. 0126, 0199, 0230.) For instance, IBEW commented:

This change has been accepted in the ASTM standard. The ASTM Technical Subcommittee realized more consistent results were necessary, and therefore, through experimentation with different test methods, developed the test method using a specific design of a rigid steel mass. OSHA should recognize this test method as the best industry practice. [Ex. 0230]

Two commenters noted that the test mass specified in the proposed rule was adequate for workers weighing up to 140 kg (310 lbm) (Exs. 0199, 0211). Mr. James Rullo of Buckingham Manufacturing explained:

The standard conversion factor used in the industry for the sand bag to steel mass is 1.4 which when applied to the 220.5 lbm equates to 310 lbm. That would seem to cover the general range of line workers. In addition, the straight drop with the wire cable imposes forces on the equipment which we believe to be more severe than most falls that might be experienced by line workers. [Ex. 0199]

Mr. Daniel Shipp with ISEA supported the proposal's requirement for testing with a 100-kg rigid test mass, but recommended a modification for workers weighing more than 140 kg:

ISEA supports the change to a test mass of rigid steel construction, weighing 100 kg (220 lb). Our members' experience in testing fall protection products leads us to conclude that the rigid mass will produce more repeatable results than testing with a sand-filled bag. However, we believe the 100 kg test mass should only be sufficient to qualify products for use by employees with a maximum body weight up to 140 kg (310 lb). For employees with weights greater [than] 140 kg (310 lb), including body weight, clothing, tools and other user-borne objects, the test should be modified to increase the test mass proportionately greater than 100 kg (220 lb). For example, for a worker with an all-up weight of 160 kg (354 lb), the test mass should be increased to 114 kg (251 lb). [Ex. 0211]

The ASTM committee and the fall-protection equipment-manufacturing industry recognize the proposed tests as being reasonable and adequate. As some of the commenters noted, the proposed test mass will impose sufficient stress on work-positioning equipment for a worker weighing 140 kg (310 lbm), including tools and equipment. However, OSHA concludes that the proposed test is insufficiently protective for workers weighing more than 140 kg when fully equipped. Therefore, the Agency is adopting paragraph (b)(2)(xii)(A) as proposed, except that the final rule requires work-positioning equipment used by employees with an equipped weight of more than 140 kg to be capable of passing the same test, but with a test mass of proportionally greater mass (that is, the test mass must equal the mass of the equipped worker divided by 1.4). With this change, the final rule will ensure that work-positioning equipment will adequately protect even the heaviest workers. OSHA believes that, if any equipped worker has a mass greater than 140 kg, the employer will order work-positioning equipment that is adequate for the increased mass and that manufacturers will supply work-positioning equipment that has been tested with a mass that conforms to the standard.

In the final rule, OSHA is adopting the remaining provisions in § 1926.954(b)(2)(xii), namely paragraphs (b)(2)(xii)(B) through (b)(2)(xii)(F), without substantive change from the proposal.

OSHA proposed three notes to paragraph (b)(2). The first note indicated that paragraph (b)(2) applies to all work-positioning equipment used in work covered by subpart V. The Agency is not including this note in the final rule as it is unnecessary.

The Ohio Rural Electric Cooperatives suggested that, instead of the specific provisions proposed in paragraph (b)(2), the standard require only that belts be certified to ASTM F887-04 (Ex. 0186). A note to final paragraph (b)(2) (Note 2 in the proposal), which appears after final paragraph (b)(2)(xii)(F), provides that, when used by employees weighing no more than 140 kg (310 lbm) fully equipped, body belts and positioning straps that conform to ASTM F887-12e1, the most recent edition of that standard, are deemed to be in compliance with paragraph (b)(2). This note clearly informs employers that body belts and positioning straps meeting that consensus standard also meet the testing requirements in OSHA's final rule. To avoid confusion, the Agency removed the phrase “the manufacturing and construction requirements of,” which modified “paragraph (b)(2) of this section” and which appeared in the proposal, from the language of this note in the final rule. The purpose of this phrase was to describe the contents of paragraph (b)(2) rather than restrict the application of the note. The Agency restricted the application of the note in the final rule to body belts and safety straps used by employees weighing no more than 140 kg (310 lbm), as the ASTM standard does not address this aspect of the final rule. [134]

Note 2 in the proposal provided that work-positioning equipment meeting the consensus standard also needed to meet proposed paragraphs (b)(2)(iv), which specified tensile testing for snaphooks, and (b)(2)(xi), which required snaphooks to be of the locking type. ASTM Committee F18 stated that ASTM F887-04 contained nearly identical requirements and suggested that the note omit references to those two proposed paragraphs (Ex. 0148). OSHA agrees that ASTM F887-04 adequately covered all the requirements in final paragraph (b)(2), and OSHA removed the two referenced paragraphs (paragraphs (b)(2)(iv) and (b)(2)(xi)) from the note in the final rule. In addition, the Agency reviewed the latest edition of the ASTM standard, ASTM F887-12e1, and found that it also adequately addresses all of the design requirements in the final rule. Consequently, the note in the final rule states that, when used by employees weighing no more than 140 kg (310 lbm) fully equipped, body belts and positioning straps meeting this later edition of the consensus standard will be deemed as complying with paragraph (b)(2).

OSHA also proposed a third note to paragraph (b)(2) indicating that body belts and positioning straps meeting § 1926.502(e) on positioning device systems would be deemed to be in compliance with the manufacturing and construction requirements of paragraph (b)(2) of proposed § 1926.954, provided that the equipment also conformed to proposed paragraph (b)(2)(vii), which contained provisions addressing electrical and flame-resistance tests for positioning straps, as well as requirements for positioning straps to be capable of withstanding a tension test and a buckle-tear test. The preamble to the proposal explained that body belts and positioning straps that are parts of positioning device systems addressed by § 1926.502(e) serve the same function as work-positioning equipment used for work covered by subpart V (70 FR 34853). OSHA originally believed that body belts and positioning straps that met the design criteria specified by § 1926.502(e), as well as the provisions in proposed § 1926.954(b)(2)(vii), would generally be sufficiently strong for power line work.

OSHA reexamined the need for, and appropriateness of, proposed Note 3 to § 1926.954(b)(2) in light of the rulemaking record for subpart V. As indicated by Mr. Daniel Shipp with ISEA, § 1926.502(e) does not contain requirements comparable to those in final § 1926.954(b)(2)(xi)(B) and (b)(2)(xi)(C) for the minimum and maximum opening and closing forces for snaphook keepers and locking mechanisms. As explained in the discussion of final § 1926.954(b)(2)(xi) earlier in this section of the preamble, OSHA believes that snaphooks must meet these performance requirements to be adequately protective in the conditions encountered by employees performing work covered by Subpart V. In addition, § 1926.502(e) does not contain requirements comparable to several other provisions of final § 1926.954(b)(2), including those prohibiting leather in load-bearing components of body-belt and positioning-strap assemblies (paragraph (b)(2)(v)), prohibiting tool loops in the center 100 millimeters (4 inches) of the back of a body belt (paragraph (b)(2)(ix)), and requiring a maximum arresting force during the drop test (paragraph (b)(2)(xii)(F)). OSHA believes that these also are important requirements necessary for the safety of employees performing work covered by Subpart V. Consequently, OSHA is not including Note 3 to proposed § 1926.954(b)(2) in the final rule.

Some commenters were concerned that the proposal required the tests in paragraph (b)(2) to be conducted by the employer. (See, for example, Exs. 0169, 0175, 0186.) OSHA notes that the final rule states that work-positioning equipment must be “capable” of passing these tests. The tests in the final rule could be performed by the manufacturer on samples that are representative of the finished product. However, it will be the employer's responsibility to ensure that it selects, and has its employees use, a type of equipment that has been subject to adequate testing by the manufacturer. The final rule does not require employers to conduct the tests specified by paragraph (b)(2) when the manufacturer conducts such testing. Employers will be able to determine, in most instances, whether work-positioning equipment meets the OSHA standard simply by ensuring that the manufacturer has tested the equipment in accordance with the OSHA standard or ASTM F887-12e1. The tests required by paragraph (b)(2) are potentially destructive and should never be performed on work-positioning equipment that will be used by employees (Exs. 0055, 0072).

Paragraph (b)(3) addresses the care and use of fall protection equipment. As OSHA explained in the preamble to the proposal, fall protection equipment provides maximum protection only when it is properly used and maintained (70 FR 34853). Existing § 1926.951(b)(3) requires this equipment to be inspected each day before use. OSHA believed that this requirement had to be supplemented by additional requirements to protect employees fully from fall hazards posed by electric power transmission and distribution work and, therefore, proposed to add requirements to subpart V, borrowed from existing § 1910.269(g)(2) and § 1926.502(d) and (e), regulating the care and use of fall protection equipment.

Paragraph (b)(3)(i) requires the employer to ensure that work-positioning equipment is inspected before use each day to determine if it is in safe working condition. (Paragraph (d)(21) of § 1926.502 already contains a similar requirement for fall arrest equipment that applies, and will continue to apply, to work covered by Subpart V.) Paragraph (b)(3)(i) also prohibits the use of work-positioning equipment that is not in safe working condition. The proposal was worded to prohibit the use of “defective equipment.” OSHA replaced this term in the final rule with “equipment that is not in safe working condition” and added “work-positioning” before “equipment” to clarify that this provision applies to any condition that would make work-positioning equipment unsafe. This language also makes it consistent with the requirement in this paragraph to inspect the equipment to determine if it is in “safe working condition.” This paragraph ensures that protective equipment will be capable of protecting employees when needed. This requirement is similar to existing § 1926.951(b)(3), except that the prohibition on the use of unsafe equipment is now stated explicitly. A thorough inspection of fall protection equipment can detect defects such as cracked snaphooks and D rings, frayed lanyards, loose snaphook keepers, and bent buckles. A note to this paragraph states that a guide to the inspection of this equipment is included in Appendix F.

Paragraph (b)(3)(ii) requires personal fall arrest systems to be used in accordance with § 1926.502(d). Paragraph (d)(21) of § 1926.502 provides: “Personal fall arrest systems shall be inspected prior to each use for wear, damage and other deterioration, and defective components shall be removed from service.” Removing “defective” equipment from service in accordance with § 1926.502(d)(21) will ensure that employees are not using fall arrest equipment that is not in safe working condition. [135]

OSHA explained in the proposal that personal fall arrest equipment is sometimes used as work-positioning equipment such that the employee can lean into the body harness and perform work (70 FR 34854). In this scenario, the normal attachment point would be at waist level. Paragraph (d)(17) of § 1926.502 requires the attachment point for body harnesses to be located in the center of the employee's back near shoulder level or above his or her head. As the Agency explained in the preamble to the proposal, such an attachment could prevent the employee from performing his or her job while the employee is using work-positioning equipment (id.), so OSHA proposed to exempt fall arrest equipment used as work-positioning equipment from this requirement if the equipment was rigged so that the maximum free-fall distance was no greater than 0.6 meters (2 feet).

Mr. Daniel Shipp with ISEA agreed with the proposal, commenting:

ISEA agrees with the proposed change to allow frontal-attachment for personal fall arrest on equipment that is used for work positioning, with a maximum permissible free fall distance of 0.6 m (2 ft). [Ex. 0211]

OSHA reconsidered including this exception in the regulatory text of paragraph (b)(3)(ii) and concluded that it is unnecessary. Fall arrest equipment that is rigged for work positioning is considered to be work-positioning equipment for the purposes of final § 1926.954(b). When fall protection equipment is rigged for work positioning, the equipment must meet the requirements in paragraph (b) that apply to work-positioning equipment, and the provisions that apply to fall arrest systems, including the anchorage requirement in § 1926.502(d)(17), are not applicable. When fall protection equipment is rigged to arrest falls, the equipment is considered to be a fall arrest system, and the provisions for those systems apply. OSHA included a note to paragraph (b)(3)(ii) to clarify this point.

In paragraph (b)(3)(iii), OSHA proposed to require the use of a personal fall arrest system or work-positioning equipment by employees working at elevated locations more than 1.2 meters (4 feet) above the ground on poles, towers, and similar structures if other fall protection has not been provided. As OSHA clarified in the proposal, the term “similar structures” includes any structure that supports electric power transmission or distribution lines or equipment, such as lattice substation structures and H-frame wood transmission structures (70 FR 34854). A similar requirement is in existing § 1910.269(g)(2)(v). (In existing § 1926.951(b)(1), OSHA requires fall protection for “employees working at elevated locations,” but does not specify a height at which such protection becomes necessary.) Note 1 to proposed paragraph (b)(3)(iii) indicated that these fall protection requirements did not apply to portions of buildings, electric equipment, or aerial lifts, and referred to the relevant portions of the construction standards that do apply in those instances (that is, subpart M for walking and working surfaces generally and § 1926.453 for aerial lifts). [136]

Many rulemaking participants commented on the proposed requirement to use fall protection starting at 1.2 meters (4 feet) above the ground. (See, for example, Exs. 0173, 0183, 0186, 0196, 0202, 0210, 0219, 0229, 0233, 0239; Tr. 575-576.) Two commenters recommended that Subpart V mirror the Subpart M “6-foot rule,” in other words, that fall protection not be required until an employee is 1.8 meters (6 feet) or more above the ground (Exs. 0196, 0219; Tr. 575-576). Lee Marchessault with Workplace Safety Solutions commented:

[The proposal] requires fall protection when working at heights greater than 4 feet, however the referrence [sic] to 1926 subpart M requires 6 feet and therefore the fall protection system is designed to engage at distances not more than 6 feet. This renders the system useless for a 5 foot fall in some cases. An example may be working on a trash platform of a hydro generation facility cleaning racks that are 4.5 feet off the lower walking surface. A fall restraint system works best, but workers are allowed to use a harness and 6 foot lanyard. [Ex. 0196]

Mr. Marchessault suggested in testimony at the 2006 public hearing that using different length lanyards for different jobs would not be feasible (Tr. 576). The Virginia Maryland & Delaware Association of Electric Cooperatives commented that it did not see a need for OSHA to set any height threshold for fall protection in the standard, explaining: “Line work is inherently different than other occupations with climbing a necessary skill required in the trade. Therefore, specification of a distance does not add additional safety to the employee” (Ex. 0175).

Other commenters supported the proposed 1.2-meter height or stated that it generally has not presented problems since it was adopted in existing § 1910.269. (See, for example, Exs. 0186, 0211, 0213, 0230.) IBEW commented that “[t]he 1910.269 requirement [for fall protection starting at] 1.2 meters (4 feet) has proven not [to] be problematic. The addition of 2 feet will not offer anything to the requirement” (Ex. 0230).

Most of the comments relating to the starting height for fall protection were from electric cooperatives or their representatives who recommended that OSHA not require fall protection until 3 meters (10 feet) above the ground for employees who are undergoing training. (See, for example, Exs. 0183, 0186, 0202, 0210, 0229, 0233, 0239.) For instance, Mr. Anthony Ahern of Ohio Rural Electric Cooperatives commented:

[F]or training purposes it would be nice to have the option of going to 10 feet without fall protection . . . under close supervision. At a height of only 4 [feet] a climber really does not get a sense of height. Using fall arrest equipment at higher levels gives the new climber a false sense of security, can hinder mobility and make it more difficult to move around the pole. Being able to work new climbers up to 10 [feet] after demonstrating basic abilities at lower levels would give the new climber a better sense of working at heights and make it easier for trainers to determine which [climbers] need additional training or who simply can not handle working on a pole. [Ex. 0186]

NRECA maintained that “in the highly-supervised and specially-equipped environment of linemen training, the extra height adds very little, if any extra danger” (Ex. 0233).

As previously noted, the current requirement in § 1910.269(g)(2)(v) for fall protection starts at 1.2 meters (4 feet), and multiple commenters indicated that this provision is not causing problems. (See, for example, Exs. 0186, 0230.) Adjustable-length lanyards, retractable lanyards, and work-positioning equipment can serve to accommodate the varying heights at which an employee will be working (Ex. 0211). In addition, the relevant paragraph in the final rule (§ 1926.954(b)(3)(iii)(B)) does not apply to the example provided by Mr. Marchessault (the “trash platform of a hydro generation facility”), as such work locations are not “poles, towers, or similar structures.” OSHA is not persuaded by the speculation that employees undergoing training experience a “false sense of security” or that employees using fall protection cannot be successfully trained in the use of free-climbing techniques. Employees undergoing training can use combination body belt-body harness systems that attach both to a retractable lanyard anchored to the top of a pole (for fall arrest) and to a positioning strap (for work positioning). This arrangement will ensure protection for the trainees until they master climbing techniques. Any sense of security the employee experiences using such equipment would not be “false,” but rather would be based on real protection. There is evidence in the record that unprotected employees in training to climb wood poles have been injured (Ex. 0003 [137] ). Several of these employees were climbing wood poles with wood chips at the base of the pole. The chips did not protect the employees, and they received serious injuries, for which all but one were hospitalized. OSHA has previously taken the position that wood chips do not provide adequate fall protection for employees, and the evidence in this rulemaking does not support a different conclusion. Under final § 1926.954(b)(3)(iii)(B), employers must provide employees with appropriate fall protection when they are in training to climb wood poles. [138]

The 1.2-meter threshold provides additional safety when compared to higher thresholds. The speed with which an employee will strike the ground increases with increasing height. An extra 0.6 meters (2 feet) in height increases fall velocity by over 20 percent, substantially increasing the potential severity of any injuries the employee receives. An extra 1.8 meters (6 feet) in height increases fall velocity by nearly 50 percent. After considering the comments in the record, OSHA concluded that the rationales offered by these commenters do not justify increasing the severity of the fall hazard by increasing the height threshold. Therefore, OSHA is adopting the proposed requirement for fall protection to start at 1.2 meters (4 feet) and, for the reasons described previously, is not adopting a less protective threshold for employees undergoing training.

Southern Company suggested that OSHA reference IEEE Std 1307-2004, Standard for Fall Protection for Utility Work, for work on transformers, circuit breakers, and other large equipment. That standard requires fall protection at heights of 3.05 meters (10 feet) and higher (Ex. 0212).

The duty to provide fall protection for work on electric equipment, such as transformers and capacitors, is not in Subpart V or § 1910.269, but rather in Part 1926, Subpart M, and Part 1910, Subpart D, for construction and general industry, respectively. The application of Subpart D rather than § 1910.269 to walking-working surfaces other than poles, towers, and similar structures was explained in the preamble to the 1994 § 1910.269 final rule (59 FR 4374) and in letters of interpretation. [139] The consensus standard's requirement for fall protection at heights over 3.05 meters conflicts with the more protective requirements in Subparts M and D. Also, for reasons noted earlier, the Agency concluded that an increase in the 1.2-meter (4-foot) and 1.8-meter (6-foot) threshold heights for initiating fall protection in Subparts D and M, respectively, is not warranted. It should be noted that IEEE Std 1307 is included in Appendix G, and employers may find that it contains useful information on how to provide fall protection for work covered by subpart V. However, OSHA concludes that a nonmandatory reference to the consensus standard for a situation to which § 1926.954(b)(3)(iii) does not apply, as recommended by Southern Company, would be inappropriate and misleading. Note 1 to proposed § 1926.954(b)(3)(iii) stated that “[t]he duty to provide fall protection associated with walking and working surfaces is contained in subpart M of this part.” However, the relevant portion of existing § 1926.500(a) seems to indicate otherwise, stating that requirements relating to fall protection for employees engaged in the construction of electric transmission and distribution lines and equipment are provided in subpart V (see § 1926.500(a)(2)(vi)).

As was clear from Note 1 to proposed § 1926.954(b)(3)(iii), OSHA was proposing that the duty to provide fall protection for general walking working surfaces, that is, everything other than aerial lifts and poles, towers, and similar structures, would be covered by subpart M. To clarify this point, in the final rule, OSHA is revising § 1926.500(a)(2)(vi) so that the subpart V exemption applies only to the duty to provide fall protection for aerial lifts and poles, towers, and similar structures.

Existing § 1910.269(g)(2)(v) permits travel-restricting equipment as an alternative to fall arrest or work-positioning systems. OSHA proposed to omit the use of travel-restricting equipment as a recognized fall protection system for electric power transmission and distribution work on poles, towers, and similar structures. In the preamble to the proposal, the Agency explained that travel-restricting equipment is only appropriate for work on open-sided platforms, where employees can walk around the working surface with the travel-restricting equipment keeping them from approaching too close to an unguarded edge (70 FR 34854). When it published the proposal, the Agency did not believe that this type of working surface could be found on poles, towers, or similar structures (id.). Therefore, OSHA did not include travel-restricting equipment as an acceptable fall protection system in proposed § 1926.954(b)(3)(iii) and proposed to remove the reference to travel-restricting equipment in existing § 1910.269(g)(2)(v), but invited comments on this omission.

Many commenters argued that there are surfaces used in work covered by Subpart V for which travel-restricting equipment is appropriate and recommended that OSHA restore travel-restricting equipment as an alternative form of fall protection. (See, for example, Exs. 0126, 0173, 0183, 0201, 0202, 0210, 0225, 0229, 0230, 0233, 0239.) However, few of these commenters provided specific, relevant examples. IBEW commented that travel-restricting equipment is sometimes used when an employee is transferring from a crossarm to a hook ladder or working or climbing above an energized circuit (Ex. 0230). In addition, Duke Energy asserted that the top of large transformers and rooftop installations were places where travel-restricting equipment could be used (Ex. 0201).

OSHA concludes that the examples provided by IBEW and Duke Energy are not relevant because the paragraph at issue does not apply to the tops of transformers or rooftops. Also, travel-restricting equipment, which is used to protect employees from fall hazards at unprotected edges, is not an appropriate form of fall protection for employees transferring from one location to another or for employees working or climbing above energized equipment.

Several commenters maintained that open-sided platforms are found on electric utility structures. (See, for example, Exs. 0126, 0183, 0202, 0229, 0233, 0239.) One of them, BGE, commented that it still has some open-sided platforms on switch structures (Ex. 0126).

OSHA previously concluded that equipment that can prevent an employee from falling, such as fall restraint equipment, is an acceptable form of fall protection. This conclusion is consistent with Agency policy as indicated in several letters of interpretation. (See, for example, letter dated November 2, 1995, to Mr. Mike Amen, http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21999, and letter dated August 14, 2000, to Mr. Charles E. Hill, http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24110.) The term “travel restricting equipment” appears only in existing § 1910.269; the equivalent terms “restraint system” and “tethering system” are used consistently throughout other OSHA standards, such as § 1926.760(a)(1), and official letters of interpretation (id.). The term “fall restraint system,” as defined in § 1926.751 (in the steel erection standard), is a broad term that OSHA generally uses to refer to any equipment that prevents employees from falling. Thus, “fall restraint” includes travel-restricting equipment, tethering systems, and other systems that prevent falls from occurring. On the basis of comments received on travel-restricting equipment, OSHA believes that there are situations in which fall restraint systems can be used to protect employees performing work on poles, towers, and similar structures; therefore, the final rule includes these systems as an acceptable form of fall protection.

In reviewing the rulemaking record for § 1926.954, the Agency noted situations in which commenters appeared confused about the proper use of the various forms of fall protection. For example, the tree care industry believed that it was acceptable for employees working from aerial lifts to use work-positioning equipment (Exs. 0174, 0200, 0502, 0503), and IBEW condoned the use of travel-restricting equipment in what appear to be fall-arrest situations (Ex. 0230). OSHA adopted two changes in the final rule to clarify these terms. First, in §§ 1910.269(x) and 1926.968, OSHA is defining the three forms of fall protection listed in paragraph (b)(3)(iii) of the final rule.

The final rule defines “personal fall arrest system” as a system used to arrest an employee in a fall from a working level. This definition is borrowed from § 1926.500(b) in subpart M. The Agency is not, however, including the descriptive text following the definition in § 1926.500(b), which describes the various parts of personal fall arrest systems. Although this description is not a necessary part of the definition, OSHA notes that it describes personal fall arrest systems as consisting of an anchorage, connectors, and a body harness and indicates that such equipment may include a lanyard, deceleration device, lifeline, or suitable combinations of these.

The final rule defines “work-positioning equipment” as a body belt or body harness system rigged to allow an employee to be supported on an elevated vertical surface, such as a utility pole or tower leg, and work with both hands free while leaning. This definition is based on the definition of “positioning device system” in § 1926.500(b) in subpart M. However, OSHA is replacing the example of vertical surface work in the subpart M definition with examples of vertical surfaces that are commonly found in electric power generation, transmission, and distribution work and that are covered by the final rule.

Finally, the final rule defines “fall restraint system” as a fall protection system that prevents the user from falling any distance. This definition is borrowed from § 1926.751, which specifies definitions for the steel erection standard in subpart R of part 1926. The Agency is not including the descriptive text following the definition, which describes the various parts of fall restraint systems. Although this description is not a necessary part of the definition, OSHA notes that it describes such systems as consisting of either a body belt or body harness, along with an anchorage, connectors and other necessary equipment. The final rule does not specify strength requirements for fall restraint systems; however, the system must be strong enough to restrain the worker from exposure to the fall hazard. [140]

Second, OSHA is adding the phrase “as appropriate” to the requirement in paragraph (b)(3)(iii)(B) to provide a personal fall arrest system, work-positioning equipment, or fall restraint system on poles, towers, or similar structures. This addition will make it clear that the system the employer chooses to implement must be appropriate for the situation, as indicated by the respective definitions. For example, because work-positioning equipment, by definition, is to be used on a vertical working surface, it would be inappropriate to use this equipment on horizontal working surfaces, such as a crossarm or horizontal tower arm.

With these modifications, the relevant provision in the final rule, which is in paragraph (b)(3)(iii)(B), states that, except as provided in paragraph (b)(3)(iii)(C), each employee in elevated locations more than 1.2 meters (4 feet) above the ground on poles, towers, or similar structures must use a personal fall arrest system, work-positioning equipment, or fall restraint system, as appropriate, if the employer has not provided other fall protection meeting Subpart M.

In the final rule, OSHA also added the phrase “meeting subpart M of this part” to clarify that the requirements of Subpart M apply to other forms of fall protection. The Agency is making a corresponding clarification in final § 1910.269(g)(2)(iv)(C)(2) that “other fall protection” must meet the general industry fall protection requirements in subpart D.

The Southern Company recommended that OSHA not specify the type of fall protection equipment to be used for open-sided platforms (Ex. 0212).

The language OSHA is adopting in paragraph (b)(3)(iii)(B) of the final rule provides the employer some latitude in deciding which form of fall protection is appropriate for employees working at elevated locations on poles, towers, and similar structures. However, the rule requires that the selected fall protection equipment be appropriate for the fall hazard. Using equipment for an application for which it is not designed exposes employees to hazards that were not considered in the design of the equipment. For example, an employee using work-positioning equipment in a fall-arrest situation could fall out of the equipment or be injured by fall-arrest forces. Thus, the Agency concludes that employers must select fall protection equipment that is appropriate for the hazard to which the employee is exposed. Consequently, an employee exposed to a fall hazard on an open-sided platform more than 1.2 meters (4 feet) above the ground must use either a fall arrest system or a fall restraint system, with the fall restraint system eliminating exposure to the fall hazard altogether.

Proposed paragraph (b)(3)(iii) included an exemption from fall protection requirements for qualified employees climbing or changing locations on poles, towers, or similar structures unless conditions, such as ice or high winds, could cause the employee to lose his or her grip or footing. Two rulemaking participants objected to the proposed provision allowing qualified employees to climb or change location without using fall protection (Exs. 0130, 0196; Tr. 576-579). NIOSH recommended “that fall protection equipment be used by all employees, including qualified employees, climbing or changing location on poles, towers, and other walking/working surfaces that present a potential fall hazard in both general industry and construction” (Ex. 0130). NIOSH supported its recommendation with a report that summarized surveillance data and investigative reports of fatal work-related falls from elevations (Ex. 0144). The first report noted that, according to National Traumatic Occupational Fatalities surveillance-system data, 23 percent of fatal falls in the transportation/communications/public utilities sector were from structures, predominantly poles and towers. This report provided detailed information about two fatalities involving employees performing work on poles or towers covered by this final rule:

  • A power line worker died in a fall from a utility pole. As he was securing his positioning strap around the pole, he contacted a 120-volt conductor and fell as he tried to free himself from the conductor. He landed on his head and died of a broken neck.
  • A painter died in a fall from an electric power transmission tower. As the employee unhooked his lanyard to reposition himself on the tower, he lost his balance and fell to the ground. He died of massive internal trauma sustained in the fall.

In both of these cases, NIOSH recommended evaluating the possibility of using 100-percent fall protection, including using fall protection while employees climb and relocate.

Lee Marchessault of Workplace Safety Solutions also recommended requiring fall protection for employees climbing or changing location on poles, towers, or similar structures, commenting:

I have asked line workers in many companies if they have “cutout” (gaffs released and fallen to some extent from a pole).[141] The answer is almost universal, most (more than 90%) have cutout at lease once. The resulting injury is usually a nasty sliver from a treated wood pole or minor bruises or broken bones. This is a known hazard and yet it is allowed to continue even though there are devices that prevent this injury. This section should be eliminated from this regulation and replaced with “fall restraint devices are required from the ground for climbing poles or similar structures more than 6 feet and these devices shall be of a type that cannot be defeated where practicable”. In other words, systems modifying existing pole straps, or pole mounted devices that need to be installed once you arrive would not be allowed because free-climbing is still or may still be done. Pole top mounted retractable devices protect from free fall but will not prevent slowly slipping down the pole picking up slivers from every gaff cut along the way. A system such as or similar to Buckingham's Bucksqueeze fall protection belt would meet this requirement. Regarding towers and structures, there is equipment or options available for most circumstances. [Ex. 0196]

Mr. Marchessault recognized, however, that there may be times when it is not feasible to provide protection and suggested that the standard account for those situations (Tr. 595).

Other rulemaking participants supported the proposed provision in paragraph (b)(3)(iii) that permitted qualified employees to free climb without fall protection. (See, for example, Exs. 0167, 0185, 0212.) For instance, Mr. John Vocke with Pacific Gas and Electric Company (PG&E) recommended that OSHA retain the exception allowing employees to free climb poles and towers, commenting:

PG&E submits that the “free climbing” of utility poles and/or towers should continue to be permitted by the OSHA regulations. As more cable television, telephone and communication equipment is situated on utility poles, safe climbing space on these structures becomes a consideration. In order for line workers to access overhead electric facilities, in some instances, free climbing is a safer alternative. [Ex. 0185]

Whether to provide fall protection for employees climbing poles, towers, and similar structures was an issue in the 1994 § 1910.269 rulemaking. Participants in that rulemaking submitted substantial evidence on the need for, and feasibility of, providing such protection. Based on accident data submitted to that record in several exhibits, the Agency found that employees are at risk of injury when free climbing:

[T]hese exhibits demonstrate that electric power generation, transmission, and distribution workers face a significant risk of serious injury due to falls under current industry practices. To determine the extent to which they face hazards addressed by proposed § 1910.269(g)(2)(v), OSHA analyzed fall accidents included in various exhibits contained in the rulemaking record. . . . [E]mployees do fall while climbing poles, towers, or similar structures—26 percent of the falling accidents related to § 1910.269 occurred in this manner. The evidence in the record indicates that climbing a pole, tower, or similar structure is not as safe, under current industry practices, as some of the hearing witnesses testified. Therefore, the Agency has decided that the final standard must provide additional protection beyond that provided by the existing industry practices. . . . [59 FR 4373]

Although OSHA concluded that it was not always safe to free climb, the Agency “accepted the position that it is not always necessary for a qualified employee to use a pole strap when climbing an unstepped wooden pole” (id.) Therefore, in existing § 1910.269(g)(2)(v), OSHA adopted a rule, identical to that proposed in paragraph (b)(3)(iii), that allowed free climbing “unless conditions . . . could cause the employee to lose his or her grip or footing.” OSHA believed that the rule adopted in § 1910.269 would ensure that employees were protected when conditions were most likely to lead to falls.

The Agency examined the accident information in the current record to determine if the rule in existing § 1910.269(g)(2)(v) has reduced climbing-related accidents. Table 3 presents relevant accident information from the 1994 record, and from the record in this rulemaking, to show the number of fall accidents occurring over time.

Table 3—Falls by Year Back to Top
Type of fall1 Number of accidents2
1981-1989 1991-1993 1994 1995 1996 1997 1998 1999
Notes: 1. The table only includes falls from poles, towers, and similar structures.
2. Each accident involves the death or serious injury of one or more employees.
3. Climbing includes descending and changing location.
Sources: 1981-1989—Table 1 in the preamble to the 1994 § 1910.269 final rule (59 FR 4373).
1991-1999—Exs. 0003 and 0400.
Climbing3 11 15 3 5 2 3 1 3
At work location 7 5 0 0 0 0 0 1
Other (not stated) 3 0 0 0 0 0 0 0
Failure of Structure 12 6 0 0 1 2 0 2

The number of accidents in the years 1991 through 1999 are based on OSHA IMIS data. Because IMIS reports are based on investigations resulting from employer reports of accidents, and because employers are not required to report accidents that do not involve a fatality or the hospitalization of three or more employees, it is likely that IMIS data substantially undercount the number of nonfatal injuries. Even without adjusting for potential undercounting, however, the table shows that employees still face a significant risk of being severely injured in a fall while climbing poles, towers, or similar structures. In the 3 years before § 1910.269 was promulgated, employees climbing poles, towers, or similar structures experienced five accidents per year, on average. In the first 6 years after that standard was promulgated, there were approximately three accidents per year, on average, for a reduction of two accidents per year, on average. [142] This is in sharp contrast to the reduction in the number of falls experienced by employees at the work location on poles, towers, and similar structures. This type of accident has largely disappeared since OSHA issued § 1910.269.

In addition, more than a third of the falls experienced by employees climbing wood structures occurred when the employee's gaff cut out of the wood and caused the employee to fall to the ground (Exs. 0003, 0004). This is also the experience reported by Mr. Marchessault of Workplace Safety Solutions (Tr. 578). Federal and State compliance records reported that the poles involved in two of the gaff cutout accidents reflected in Table 3 had no observable defects (Ex. 0003 [143] ). Even though both of those accidents occurred before § 1910.269 was promulgated, it is likely that nothing in that standard would have prevented those accidents. Based on the comments, Mr. Marchessault's testimony, and the accident descriptions in the record, OSHA concludes that gaff cutout is pervasive, cannot be reliably predicted, and can lead to death or serious physical harm. (Mr. Marchessault described the injuries as “slivers” in his testimony, but injuries from gaff cutout accidents have included such serious injuries as severe fractures, a concussion, and a collapsed lung for which the injured employees were hospitalized (Exs. 0003, 0400). [144] )

The current rule in § 1910.269 requires employers to protect employees from falling while climbing or changing location under specified circumstances, and evidence in this record indicates that in many, if not all, circumstances it is feasible for employees to climb and change locations while protected. For example, Mr. Marchessault of Workplace Safety Solutions testified that there are “equipment options available for most circumstances [involving employees climbing or changing location]” (Tr. 576); Mr. Steven Theis of MYR testified that he was aware that one utility required 100-percent fall protection (Tr. 1357); and IBEW noted that some employers require “fulltime attachment while climbing and working on a wood pole” [145] (Ex. 0230). According to an IBEW survey of 102 IBEW construction locals, more than a quarter of 93 locals responding to one question in the survey reported that “the employer require[s] continuous attachment to the pole when climbing,” and nearly a third of 91 locals responding to another question reported that “the employer require[s] continuous attachment to the structure when climbing” (Ex. 0230). The preamble to the 1994 final rule for § 1910.269 noted that the Electrical Division of the Panama Canal Commission and Ontario Hydro in Canada required fall protection for their employees while they work on elevated structures (59 FR 4372-4373).

There are several new forms of work-positioning equipment that can provide continuous attachment for employees climbing or changing location on poles, towers, and similar structures. The preamble to the proposal noted the Pole Shark and Pole Choker (70 FR 34855). [146] Two commenters pointed to the BuckSqueeze as another work-positioning system that can provide continuous attachment while employees are climbing or changing location on wood structures (Ex. 0199; Tr. 578). [147] A video of this equipment being used demonstrates that an employee proficient in its use can ascend and descend poles with relative ease while being protected from falling (Ex. 0492). Rulemaking participants indicated that fall protection equipment is available to protect employees climbing or changing location on towers and similar structures (Exs. 0144, 0196). This equipment includes rail and rope-grab systems to which an employee can attach a harness and a lanyard, retractable lanyards attached above the employee, and double-lanyard systems (Ex. 0199; Tr. 578, 587 [148] ). OSHA believes that these, and similar new, devices make it easier to provide fall protection for employees climbing or changing location on poles, towers, and similar structures, as evidenced by the growing prevalence of employers requiring 100-percent attachment. Therefore, OSHA concludes that employees climbing or changing location on poles, towers, and similar structures can use fall protection under more conditions than required by existing § 1910.269(g)(2)(v).

However, OSHA also concludes that there may be circumstances that preclude the use of fall protection while employees are climbing or changing location. For example, Mr. James Tomaseski of IBEW testified, “[O]n congested poles, to be able to ascend the pole to your working area could be a major task in itself. On the congested poles it is enough of a task already, but adding to the point that you have to stay connected the entire time, it would be at best difficult” (Tr. 977). Mr. Theis of MYR Group echoed these concerns:

[Employees] are using [pole chokers] now. And some of the guys are telling us they can't be used in all situations. In a lot of situations, they can be. When they start getting into a very congested pole, very congested area, they become more cumbersome than they are of any benefit. [Tr. 1357]

Consequently, OSHA decided to modify the provision proposed in paragraph (b)(3)(iii) (paragraph (b)(3)(iii)(C) in the final rule) to require fall protection even for qualified employees climbing or changing location on poles, towers, or similar structures, unless the employer can demonstrate that the conditions at the worksite would make using fall protection infeasible or would create a greater hazard for employees climbing or changing location on these structures while using fall protection. This rule will ensure that 100-percent fall protection is the default procedure when employees are working on these structures and, therefore, will better protect employees than the current requirement. Based on the rulemaking record, OSHA would consider it feasible to use fall protection while climbing or changing location on a structure with few or no obstructions. Employers may, however, make reasonable determinations of what conditions, for example, the degree of congestion on a pole, would result in a greater hazard for employees climbing with fall protection than without fall protection. Employers making these determinations must consider the use of devices that provide for continuous attachment and should account for other conditions that would make climbing or changing location without fall protection unsafe, including such conditions as ice, high winds, and the other conditions noted in existing § 1910.269(g)(2)(v). In addition, OSHA notes that this provision does not affect fall protection requirements in final § 1926.954(b)(3)(iii)(B) for employees once they reach the work location.

Because the final rule permits qualified employees to climb or change location without fall protection under limited circumstances, the Agency anticipates that it will be necessary for employees to occasionally defeat the continuous attachment feature on the fall protection equipment. Therefore, OSHA decided not to require the equipment used to meet paragraph (b)(3)(iii)(C) of the final rule to be incapable of being defeated by employees, as recommended by Mr. Marchessault (Ex. 0196).

Even though under existing § 1910.269(g)(2)(v) there already are some circumstances in which employers must provide equipment that will protect employees who are climbing or changing location on structures, OSHA believes that many employers covered by the final rule will need additional time to explore options to select equipment that best protects their employees while climbing or changing location. In some cases, the equipment employers currently are providing may not be ideal for everyday use. In addition, employers will need time to train employees to become proficient in the use of any new equipment. Before employees gain proficiency, it is possible that not only will they have difficulties climbing or changing location on structures, but the equipment may distract them from climbing or changing location safely. As noted by Mr. Gene Trombley, representing EEI in the 1994 rulemaking, “To suddenly try to require them to change years and years of training and experience would, I feel, cause a serious reduction in that high level of confidence and ability” (DC Tr. 853, as quoted in the preamble to the 1994 rulemaking, 59 FR 4372). [149] Therefore, OSHA is giving employers until April 1, 2015, to comply with the new requirements in § 1926.954(b)(3)(iii)(C) of the final rule. This delay should provide sufficient time for employers to: Evaluate the various types of fall protection equipment that employees climbing or changing location can use; select and purchase the type of equipment that best satisfies their needs; train employees in the use of this equipment; and certify that the employees demonstrated proficiency in using the equipment.

In the intervening period, paragraph (b)(3)(iii)(C) of the final rule will apply the existing rule from § 1910.269, which permits qualified employees to climb and change location without fall protection as long as there are no conditions, such as ice, high winds, the design of the structure (for example, no provision for holding on with hands), or the presence of contaminants on the structure, that could cause the employee to lose his or her grip or footing. The conditions specifically listed in the standard are not the only ones warranting the use of fall protection for climbing and changing position. Other factors affecting the risk of an employee's falling include the level of competence of the employee, the condition of a structure, the configuration of attachments on a structure, and the need to have both hands free for climbing. Moreover, if the employee is not holding onto the structure (for example, because the employee is carrying tools or equipment in his or her hands), the final rule requires fall protection. Video tapes entered into the 1994 § 1910.269 rulemaking record by EEI (269-Ex. 12-6), which EEI claimed represented typical, safe climbing practices in the utility industry, show employees using their hands to provide extra support and balance. [150] Climbing and changing location in this manner will enable an employee to continue to hold onto the structure in case his or her foot slips. When employees are not using their hands for additional support, they are much more likely to fall as a result of a slip.

All of these revisions, including the revisions related to fall protection for employees working from aerial lifts described earlier in this section of the preamble, appear in final § 1926.954(b)(3)(iii).

Paragraph (e)(1) of § 1926.502 limits the maximum free-fall distance for work-positioning systems to 0.6 meters (2 feet). OSHA proposed to adopt this same limit in § 1926.954. However, in electric power transmission and distribution work, permanent anchorages are not always available. Many utility poles provide no attachment points lower than the lowest crossarm. If an employee is working below the crossarm, there would be no place on the pole where he or she can attach the work-positioning equipment. The preamble to the proposed rule explained that, in such cases, work-positioning equipment still provides some degree of fall protection in that the equipment holds the employee in a fixed work position and keeps him or her from falling (70 FR 34855). Therefore, OSHA proposed in paragraph (b)(3)(iv) to require work-positioning equipment to be rigged so that the employee could free fall no more than 0.6 meters (2 feet), unless no anchorage was available. In the preamble to the proposed rule, OSHA requested comment on whether proposed paragraph (b)(3)(iv) would provide sufficient protection for employees and on whether portable devices (such as a Pole Shark, Pole Choker, or similar device) could be used as suitable anchorages.

Some commenters objected to the proposed requirement that work-positioning equipment be rigged with a maximum free fall of 0.6 meters (2 feet) insofar as it would apply when employees are working above equipment that could serve as an anchorage. (See, for example, Exs. 0201, 0230.) For instance, IBEW noted that an employee using work-positioning equipment might be much more than 0.6 meters above a potential attachment point, such as a neutral bolt (Ex. 0230). The union claimed that, if the employee used this attachment point, the free-fall distance would have to be more than 0.6 meters for the employee to reach the work.

OSHA acknowledges these concerns, but believes they can be eliminated by the use of portable devices. With portable devices, employees will not have to rely on anchorages on poles or structures because the employees would have anchorages that are part of the work-positioning equipment. Thus, it would always be possible to rig the equipment to accommodate a free fall of no more than 0.6 meters.

Many commenters opposed requiring portable devices to provide anchorages for employees on poles, towers, and similar structures. (See, for example, Exs. 0125, 0127, 0149, 0151, 0162, 0171, 0173, 0175, 0177, 0186, 0200, 0209, 0227.) Some of these commenters maintained that these devices do not meet the strength requirements for anchorages. (See, for example, Exs. 0177, 0227.) For instance, Mr. Thomas Taylor with Consumers Energy commented that “the specified portable devices do not meet the specifications for anchorages in Subpart M and were never designed to be used for that purpose” (Ex. 0177). Several commenters argued that these devices are not always effective, are difficult or impossible to use in some circumstances, are unnecessary, and could even increase the risk to employees. (See, for example, Exs. 0125, 0127, 0149, 0151, 0171, 0175, 0186, 0200.) For instance, Ms. Jill Lowe of the Employers Electrical and Communication Safety Committee of Washington and Oregon commented:

The use of an anchorage device [such as] the pole shark, would not be an effective anchor when working on a structural member or sitting on a cross arm. The device would only be effective when climbing a pole without obstructions or working in a position on a pole below a cross arm or structural member. It must also be acknowledged that some of these devices could not physically be used due to limited space available on the pole at the work position (i.e.: Secondaries, crossarm braces, etc.) . . . .

More information and data would be required before mandating the use of this type of equipment. For example, how many actual injuries have been recorded in a fall where a worker is belted in on the pole? Would this add weight or further encumber the worker when climbing the pole? These types of devices could be effective in severe ice conditions, but for day to day use, would not provide the desired efficacies and would impede climbing, add to maneuvering difficulties and could increase risk factor(s). [Ex. 0151]

Ms. Salud Layton of the Virginia, Maryland & Delaware Association of Electric Cooperatives argued that these devices pose a greater hazard because they increase “the amount of time spent on the pole, the complexity of the work performed on the pole, and the number of opportunities to make mistakes while doing unnecessary jobs not related to the original reason the pole was actually climbed” (Ex. 0175).

Mr. Anthony Ahern with the Ohio Rural Electric Cooperatives provided the following explanation for his argument that these devices can be difficult to use and could potentially increase the risk to employees:

Some of these devices, especially the pole-shark, are large and very awkward to use. They are very difficult to maneuver into a narrow space and greatly limit movement on the pole. It is next to impossible for a lineman to turn around far enough with one of these devices to be able to reach the end of a ten foot cross arm or a davit arm or even work on a transformer bank mounted on a cluster rack. If two or more workers are working in the same area on a pole, these devices can really create a lot of interference. Also, quite often a second safety is required to be used with these devices so that the climber can transition past cables, cross arms or other equipment on a pole. This means an extra snap hook in the D-rings and increases the possibility of an accident because the lineman grabs the wrong one. These devices are also much more difficult to operate with rubber gloves on than a conventional safety strap. [Ex. 0186]

However, some commenters suggested that these types of devices could be used as anchorages. (See, for example, Ex. 0199; Tr. 1338, 1357.) A video submitted to the record shows one of these devices successfully supporting an employee who had fallen from a pole (Ex. 0492).

OSHA concludes that the concerns of commenters who argued that portable anchorage equipment is difficult to use or poses increased hazards are unwarranted. As noted earlier, some employers already require 100-percent attachment. The testimony of Messrs. Marchessault (of Workplace Safety Solutions) and Theis (of MYR Group) offer evidence that Pole Sharks, Pole Chokers, and similar devices can be, and have been, used successfully as anchorages (Tr. 576-579, 1338, 1357). The videotape of one of these devices in use clearly demonstrates that the particular device is reasonably light and not significantly more difficult to use than the traditional positioning straps currently used by power line workers (Ex. 0492). Some of these devices occupy about the same space on a pole or structure as a positioning strap and, therefore, should fit wherever those straps fit (id.). Evidence also indicates that, with training, employees can use these devices proficiently (Ex. 0199; Tr. 576-579).

Mr. Ahern's example of an employee using positioning equipment to reach the end of a 3-meter (10-foot) crossarm supports the need for employees to use an anchorage at the work location. The end of the crossarm would be about 1.4 meters (4.6 feet) from the edge of the pole. To perform such work, a 2-meter-tall (6.5-foot-tall) employee would have to be in a nearly horizontal position to reach the end of the arm. This position increases the likelihood of gaff cutout, because the gaffs would be at an angle to the force applied by the employee's weight, which would be applied in a vertical direction. A gaff is designed to penetrate the wood when force is applied along its length. When force is applied perpendicular to the length of the gaff, it can twist the gaff out of the wood. In addition, to the extent it is impossible to reach the end of the crossarm with some of these devices, other methods of working from the pole can be used. For example, the employee could work from a pole-mounted platform, which would both enable the employee to reach further from the pole and provide an anchorage for the fall protection equipment (269-Ex. 8-5). Thus, the Agency concludes that there is greater need for an anchorage when work is performed in such positions.

The examples of working on a crossarm or a structural member provided by Ms. Lowe with the Employers Electrical and Communication Safety Committee of Washington and Oregon are inapposite. As noted earlier, work-positioning equipment is inappropriate for use in these situations; such equipment may be used only on vertical structural members. It is not clear why Pole Sharks, Pole Chokers, or similar devices, which are designed to supplement or replace traditional positioning straps, could not be used on vertical members in the same way a traditional positioning strap can be used.

OSHA concludes that the accident information in the record indicates that there is a need for employees to use an anchorage to keep them from falling while they are at the work location (Exs. 0002, 0400). Two of the gaff cutout accidents included in Table 3 occurred while an employee was at the work location. One commenter stated that one of his company's eight fall accidents occurred while an employee was at the work position (Ex. 0209). Although the total number of accidents is not great, these accidents are easily preventable.

The final rule, in paragraph (b)(3)(iii)(C), already requires employees to be protected while climbing. The same equipment that protects an employee climbing a pole can serve as an anchorage and can prevent him or her from falling while at the work location as well (Ex. 0492; Tr. 576-579). As a result, OSHA does not believe there will often be problems finding or providing anchorage points for work-positioning equipment that can satisfy the 0.6-meter maximum free-fall requirement.

The Agency notes that Consumers Energy incorrectly identified the relevant strength requirements for anchorages used with work-positioning equipment. Paragraph (b)(1)(i) of final § 1926.954 applies Subpart M only to fall arrest equipment. Paragraph (b)(3)(v) of final § 1926.954, described later in this section of the preamble, requires anchorages used with work-positioning equipment to be capable of supporting at least twice the potential impact load of an employee's fall, or 13.3 kilonewtons (3,000 pounds), whichever is greater. OSHA concludes that it is feasible with available technology for portable anchorage devices to meet the tensile-strength requirement in paragraph (b)(3)(v) of the final rule. The materials, including straps, buckles, rivets, snaphooks, and other hardware, that are, or could be, used in anchorages also are used in positioning straps for work-positioning equipment (Exs. 0055, 0492), which paragraph (b)(2)(vii)(C) of the final rule requires to have greater tensile strength than required by paragraph (b)(3)(v) of the final rule. In addition, Mr. Lee Marchessault with Workplace Safety Solutions testified about the experience of a line worker he had been training (Tr. 577-578). The line worker, who had been using a portable anchorage device (the BuckSqueeze) during the training exercise, experienced a gaff cutout, but was not injured because the device successfully arrested the fall (id.). The videotape Mr. Marchessault submitted for the record depicted this equipment as successfully arresting the fall of the worker who had been using it (Ex. 0492). Portable anchorage devices are designed to arrest an employee's fall into work-positioning equipment; thus, the devices almost certainly meet the strength requirements in ASTM F887-04, which, as noted earlier, are equivalent to OSHA's strength requirements for work-positioning equipment. In fact, the latest edition of the consensus standard, ASTM F887-12e1, contains equivalent strength requirements for what it calls “wood pole fall restriction devices.” [151] OSHA has included a note following paragraph (b)(3)(v) of the final rule to indicate that wood-pole fall-restriction devices meeting ASTM F887-12e1are deemed to meet the anchorage-strength requirement when they are used in accordance with manufacturers' instructions.

For these reasons, paragraph (b)(3)(iv) in the final rule requires work-positioning systems to be rigged so that an employee can free fall no more than 0.6 meters (2 feet). OSHA is not including the proposed exemption for situations in which no anchorage is available. In view of the availability of wood-pole fall-restriction devices, OSHA expects that in most, if not all, circumstances, anchorages will not only be available, but will be built into work-positioning equipment to permit compliance with this provision, as well as paragraph (b)(3)(iii)(C) of the final rule. However, because the Agency believes that employers will purchase equipment that complies with both paragraphs (b)(3)(iii)(C) and (b)(3)(iv), OSHA is requiring compliance with both of these paragraphs starting on April 1, 2015. This delay should provide employers with sufficient time to evaluate, and then purchase, compliant equipment.

Final paragraph (b)(3)(v), which is being adopted without substantive change from the proposal, requires anchorages used with work-positioning equipment to be capable of sustaining at least twice the potential impact load of an employee's fall, or 13.3 kilonewtons (3,000 pounds), whichever is greater. This provision, which duplicates § 1926.502(e)(2), will ensure that an anchorage will not fail when needed to stop an employee's fall. Comments on the technological feasibility of this provision are addressed in the summary and explanation for paragraph (b)(3)(iv), earlier in this section of the preamble.

Final paragraph (b)(3)(vi), which is being adopted without substantive change from the proposal, provides that, unless a snaphook is a locking type and designed specifically for the following conditions, snaphooks on work-positioning equipment not be engaged to any of the following:

(1) Webbing, rope, or wire rope;

(2) Other snaphooks;

(3) A D ring to which another snaphook or other connector is attached;

(4) A horizontal lifeline; or

(5) Any object that is incompatibly shaped or dimensioned in relation to the snaphook such that accidental disengagement could occur should the connected object sufficiently depress the snaphook keeper to allow release of the object.

This paragraph, which duplicates § 1926.502(e)(8), prohibits methods of attachment that are unsafe because of the potential for accidental disengagement of the snaphooks during use.

6. Section 1926.955, Portable Ladders and Platforms

Final § 1926.955 addresses portable ladders and platforms. Paragraph (a) provides that requirements for portable ladders used in work covered by Part 1926, Subpart V are contained in Part 1926, Subpart X, except as noted in § 1926.955(b). Proposed paragraph (a) also provided that the requirements for fixed ladders in subpart D of part 1910 (§ 1910.27) applied to fixed ladders used in electric power transmission and distribution construction work. OSHA is including proposed paragraph (a) in the final rule with one change—deleting the second provision.

Fixed ladders used in electric power generation, transmission, and distribution work are permanent ladders. They are the same ladders irrespective of whether the work being performed on them is construction work covered by subpart V or maintenance work covered by § 1910.269. In the preamble to the proposal, OSHA explained that the Agency believed that the Part 1910, Subpart D standards should apply to these ladders during construction, as well as during maintenance work (70 FR 34855), but requested comments on whether the proposed incorporation of the general industry standard for fixed ladders was warranted, especially in light of the 1990 proposed revision to Part 1910, Subpart D (55 FR 13360, Apr. 10, 1990). OSHA recently reproposed the revision of that subpart (75 FR 28862, May 24, 2010).

A few commenters responded to this issue. (See, for example, Exs. 0162, 0212, 0227, 0230.) Southern Company was concerned about the proposed incorporation of Subpart D, commenting:

We question the use of 1910.27 for fixed ladders since OSHA proposed the revision of this standard over 15 years ago and there has been no action to date. Due to the time that has elapsed since OSHA published the proposed revisions to 1910 Subpart D and the revisions that have been made to the national consensus standards for all types of ladders, OSHA may wish to consider reopening the rulemaking prior to proceeding with the revisions to Subpart D. We recommend that OSHA not reference Subpart D as a part of the revisions to Subpart V and 1910.269 until work on the revision to Subpart D is completed. [Ex. 0212]

Southern Company also asked OSHA to explain “why the provisions of 1910 Subpart D should be applied to fixed ladders instead of the fixed ladder requirements of 1926.1053” (id.). Southern Company asserted that the construction standard contained requirements that are not found in the general industry standard, but that contribute to employee safety (id.).

EEI recommended that neither § 1926.955(a) nor the corresponding provision in the general industry standard, § 1910.269(h)(1), incorporate part 1910, subpart D by reference until OSHA finalizes revisions to part 1910, subpart D (Ex. 0227). EEI asserted that there were discrepancies between the requirements for fixed ladders in existing part 1910, subpart D, the 1990 proposed part 1910, subpart D, and the then-current ANSI standard for fixed ladders, ANSI A14.3-2002, American National Standard for Ladders—Fixed—Safety Requirements (id.). EEI also asserted that the existing general industry standard contained outdated design requirements (id.).

OSHA accepts EEI's and Southern Company's recommendation not to apply the requirements for fixed ladders in § 1910.27 to fixed ladders used in the construction of electric power transmission and distribution installations, though not for the reasons these commenters stated. OSHA believes that the use of fixed ladders in the construction of transmission and distribution installations is not unique. As such, the requirements that apply to fixed ladders in the construction of electric power transmission and distribution installations should be the same as the requirements that apply generally to construction work (including, as Southern Company noted, the requirements contained in § 1926.1053).

Because OSHA is not including the cross-reference to subpart D for fixed ladders in the final rule and because the remaining provisions in § 1926.955(a) apply only to portable ladders and platforms, OSHA is revising the title of § 1926.955 to “Portable ladders and platforms” to more accurately reflect the contents of this section.

OSHA also accepts EEI's and Southern Company's recommendation not to reference in final § 1910.269(h) the part 1910, subpart D provisions for fixed ladders because, as with final § 1926.955, § 1910.269(h) in the final rule covers only portable ladders and platforms. Therefore, OSHA is revising the title of § 1910.269(h) to “Portable ladders and platforms” and is revising the regulatory text of final § 1910.269(h)(1) to clarify that the paragraph applies to portable ladders and platforms, not fixed ladders. These changes make final § 1910.269(h) consistent with final § 1926.955.

MYR Group also had concerns about applying the general industry standards to construction work. MYR Group maintained that contractors would have little control over fixed ladders provided by host employers (Ex. 0162).

The Agency notes that an employer whose employees are performing the work must adhere to OSHA standards. If, for example, an electric utility's fixed ladder does not comply with Part 1926, Subpart X, then a contractor whose employees would be using that ladder must take whatever measures are necessary to protect its employees and comply with Part 1926, Subpart X. Such measures include enforcing any contractual language requiring the utility to address any noncompliant ladders, using other means of accessing the work area, such as portable ladders or aerial lifts, and repairing or replacing the ladder.

IBEW recommended that OSHA consider the specifications for fixed ladders in IEEE Std 1307, Standard for Fall Protection for Utility Work, when finalizing the language for subpart V and § 1910.269 (Ex. 0230).The union wrote:

[T]he committee responsible for developing the standard went through great pains to research ladders, step bolts, and other climbing devices commonly installed on electrical structures. Lineman climbing boots and other equipment was looked at for the purpose of establishing ladder and step bolt criteria that would be compatible with the worker safety equipment. [Ex. 0230]

OSHA rejects IBEW's recommendation to adopt requirements based on IEEE Std 1307. Although that consensus standard contains requirements for structures found in electric power generation, transmission, and distribution work (for example, utility poles and towers), those structures are not unique to the electric power industry; and the Agency believes, therefore, that this rulemaking is not the proper vehicle to regulate them. The same types of structures are found in other industries, in particular, the telephone and cable-television industries. Utility poles and towers are used to support telephone lines, cable television lines, communications antennas, and other equipment used by these industries. OSHA notes that its recently proposed revision of part 1910, subpart D includes requirements for fixed ladders on towers and for step bolts on towers and poles (see proposed § 1910.24, Step bolts and manhole steps; 75 FR 29136).

Paragraph (b) of the final rule establishes requirements for special ladders and platforms used for electrical work. Because the lattice structure of an electric power transmission tower and overhead line conductors generally do not provide solid footing or upper support for ladders, OSHA is exempting portable ladders used on structures or conductors in conjunction with overhead line work from the general provisions of § 1926.1053(b)(5)(i) and (b)(12), which address ladder support and the use of ladders near exposed electric equipment. As noted in the preamble to the proposal, an example of a type of ladder exempted from these provisions is a portable hook ladder used by power line workers to work on overhead power lines (70 FR 34855). [152] These ladders are hooked over the line or other support member and then are lashed in place at both ends to keep them steady while employees are working from them.

Final paragraphs (b)(1) through (b)(4) and (c) provide employees with protection that is similar to the protection afforded to employees by § 1926.1053(b)(5)(i) and (b)(12). These provisions require that these special ladders and platforms be secured, specify the acceptable loads and proper strength of this equipment, and provide that the ladders be used only for the particular types of application for which they are designed. These provisions thereby ensure that employees are adequately protected when using the ladders covered by the final rule. In the § 1910.269 rulemaking, OSHA concluded that these alternative criteria provide for the safe use of this special equipment, and the Agency is extending the application of these alternative criteria to work covered by Subpart V (59 FR 4375). It should be noted that the requirements for portable ladders in final paragraphs (b)(1) through (b)(4) apply in addition to requirements in § 1926.1053 for portable ladders. OSHA revised the language in the final rule to clarify that the requirements in § 1926.1053, except for paragraph (b)(5)(i) and (b)(12), apply to portable ladders used on structures or conductors in conjunction with overhead line work and that the requirements in paragraphs (b)(1) through (b)(4) apply only to portable ladders and platforms used in this manner.

Paragraph (b)(1) of final § 1926.955 requires portable platforms to be capable of supporting without failure at least 2.5 times the maximum intended load in the configurations in which they are used. Paragraph (b)(1) in the proposed rule also applied this requirement to portable ladders. However, § 1926.1053(a)(1), which also applies, already specifies the strength of portable ladders. Having two standards with different strength requirements for portable ladders would be confusing. Consequently, OSHA revised § 1926.955(b)(1) in the final rule so that it covers only portable platforms.

Paragraph (b)(2) of final § 1926.955 prohibits portable ladders and platforms from being loaded in excess of the working loads for which they are designed. It should be noted that, with respect to portable ladders, compliance with this provision constitutes compliance with § 1926.1053(b)(3).

Paragraph (b)(3) of final § 1926.955 requires portable ladders and platforms to be secured to prevent them from becoming accidentally dislodged. [153] Accordingly, with respect to portable ladders, OSHA concludes that compliance with § 1926.955(b)(3) constitutes compliance with § 1926.1053(b)(6), (b)(7), and (b)(8). [154]

Paragraph (b)(4) of final § 1926.955 requires portable ladders and platforms to be used only in applications for which they are designed. It should be noted that, with respect to portable ladders, compliance with this provision constitutes compliance with § 1926.1053(b)(4).

Paragraph (c) prohibits the use of portable metal, and other portable conductive, ladders near exposed energized lines or equipment. This paragraph addresses the hazard to employees of contacting energized lines and equipment with conductive ladders. However, as noted in the preamble to the proposal, in specialized high-voltage work, the use of nonconductive ladders could present a greater hazard to employees than the use of conductive ladders (70 FR 34855-34856). In some high-voltage work, voltage can be induced on conductive objects in the work area. When the clearances between live parts operating at differing voltages, and between the live parts and grounded surfaces, are large enough that it is relatively easy to maintain the minimum approach distances required by § 1926.960(c)(1), electric shock from induced voltage on objects in the vicinity of these high-voltage lines can pose a greater hazard. Although these voltages do not normally pose an electrocution hazard, the involuntary muscular reactions caused by contacting objects at different voltages can lead to falls. Using a conductive ladder in these situations can minimize the voltage differences between objects within an employee's reach, thereby reducing the hazard to the employee. Therefore, the final rule permits a conductive ladder to be used if an employer can demonstrate that the use of a nonconductive ladder would present a greater hazard to employees.

7. Section 1926.956, Hand and Portable Power Equipment

Final § 1926.956 addresses hand and portable power equipment. The title of this section in the proposal was “Hand and portable power tools.” OSHA revised the title to comport with the scope of the requirements in this section, which address equipment generally and not just tools. Paragraph (a) of this section of the final rule provides that electric equipment connected by cord and plug is covered by paragraph (b), portable and vehicle-mounted generators used to supply cord- and plug-connected equipment are governed by paragraph (c), and hydraulic and pneumatic tools are covered by paragraph (d). OSHA took all of the requirements in this section from existing § 1910.269(i).

Electric equipment connected by cord and plug must satisfy the requirements in paragraph (b). Proposed paragraph (b)(1) stated that cord- and plug-connected equipment supplied by premises wiring is covered by Subpart K of Part 1926. OSHA is not including this proposed requirement in the final rule because, first, OSHA determined that the language in proposed paragraph (b) improperly emphasized “premises wiring.” The purpose of the proposed provision was to clarify that equipment covered by Subpart K would continue to be covered by that Subpart (70 FR 34856). However, OSHA derived the proposed provision from the corresponding provision in existing § 1910.269(i). That provision was, in turn, derived from § 1910.302(a)(1), which specifies the scope of part 1910, subpart S, and provides that the subpart's “design safety standards for electric utilization of systems” apply to “electrical installations and utilization equipment installed or used within or on buildings, structures, and other premises” (that is, premises wiring). Section 1926.402, which specifies the scope of Subpart K, does not use the term “premises wiring.” Second, proposed § 1926.956(b)(1), and its counterpart in existing § 1910.269(i)(2)(i), are unnecessary because these provisions simply refer to requirements that already apply. Therefore, to remove any ambiguity, the Agency is not including proposed § 1926.956(b)(1) in the final rule and is removing existing § 1910.269(i)(2)(i) and is replacing the reference in existing § 1910.269(i)(2)(ii) (final § 1910.269(i)(2)) to any cord- and plug-connected equipment supplied by other than premises wiring with a reference to cord- and plug-connected equipment not covered by Subpart S.

Pursuant to proposed paragraph (b)(2), equipment not covered by subpart K had to have the tool frame grounded, be double insulated, or be supplied by an isolating transformer with an ungrounded secondary. The proposed rule (and existing § 1926.951(f)(2)(iii)) did not specify any limit on the secondary voltage of the isolating transformer. OSHA is promulgating this paragraph in the final rule (final paragraph (b)(3)) with one substantive change—if an isolating transformer with an ungrounded secondary is used to comply with this provision, its secondary voltage is limited to 50 volts.

In the preamble to the proposed rule, OSHA noted the widespread availability of double-insulated tools and requested comment on whether the option permitting tools to be supplied through an isolating transformer was still necessary (75 FR 34856). Several commenters responded to this request. (See, for example, Exs. 0126, 0186, 0201, 0209, 0212, 0213, 0227, 0230.)

Most of these comments supported retaining the proposed option that permits cord- and plug-connected equipment to be supplied by an isolating transformer. (See, for example, Exs. 0201, 0209, 0212, 0213, 0227.) For instance, Duke Energy stated: “OSHA should continue to allow the third option of isolating transformers. While most applications are covered by grounding or double insulating, there are unique situations where neither of these is possible and an isolating transformer may be necessary to protect employees” (Ex. 0201). TVA commented, without elaboration, that “[d]uring plant outages there are situations where the use of isolating transformers provides the best employee safety” (Ex. 0213). Southern Company relied on OSHA's statement in the preamble to the proposal [155] that using isolating transformers is “an effective means of protecting employees from shock” (Ex. 0212).

Other commenters asserted that using isolating transformers was an outdated form of protection. (See, for example, Exs. 0126, 0186, 0230.) For instance, Mr. Anthony Ahern of Ohio Rural Electric Cooperatives wrote:

Isolating transformers are not needed today. Almost all tools today are either double insulated or equipped with a grounding (3 wire) cord and plug. OSHA already has rules which cover the use and maintenance of these types of tools. Further, battery operated and gas powered tools are becoming more and more common and hydraulic tools are commonly used with bucket trucks. [Ex. 0186]

IBEW commented, “Double insulated hand tools are the industry standard. It would be difficult to find tools that are not double insulated or the tool frame is not grounded” (Ex. 0230). IBEW stated, however, that isolating transformers continue to be an option “[i]f other types of tools continue to be used” (id.).

OSHA determined that the proposed option permitting cord- and plug-connected equipment to be supplied by an isolating transformer was insufficiently protective and that this option will only provide sufficient protection against ground faults when the isolation transformer has an ungrounded secondary of no more than 50 volts. OSHA is imposing the 50-volt limit on isolation transformers because, although OSHA stated in the preamble to the proposal that each of the three options (grounding, double insulation, and isolation) provided protection from electric shock (70 FR 34856), OSHA recognized in other standards the limited protection provided by isolating transformers. [156] If unlimited voltages are permitted with respect to the isolating transformer option, employees working with cord- and plug-connected equipment operating at higher voltages would be exposed to a serious electric-shock hazard when a second ground fault occurs. Even if equipment is supplied by an isolating transformer with an ungrounded secondary, there will always be a path to ground for the circuit conductors. This path will be caused by leakage or by capacitive or inductive coupling. Depending on the location of this path, one of the circuit conductors could have a voltage to ground as high as the full circuit voltage. Thus, while the corresponding electrical standards for general industry and construction at §§ 1910.304(g)(6)(vi) and (g)(6)(vii) and 1926.404(f)(7)(iv), respectively, permit all three options, the standards (in §§ 1910.304(g)(6)(vii)(A) and 1926.404(f)(7)(iv)(C)(6)) also limit the secondary voltage on the isolating transformer to 50 volts or less. Fifty volts or less is widely recognized as a generally safe voltage. (See, for example, Exs. 0076, 0077, 0532.)

Paragraph (c) of final § 1926.956 requires portable and vehicle-mounted generators used to supply cord- and plug-connected equipment covered by paragraph (b) to meet several requirements. Under paragraph (c)(1), the generator may only supply equipment on the generator or the vehicle (for example, lights mounted on the generator or vehicle) and cord- and plug-connected equipment through receptacles mounted on the generator or the vehicle. Paragraph (c)(2) provides that non-current-carrying metal parts of equipment, and the equipment grounding conductor terminals of the receptacles, must be bonded to the generator frame. Paragraph (c)(3) requires that the frame of vehicle-mounted generators be bonded to the vehicle frame. Finally, paragraph (c)(4) requires the neutral conductor to be bonded to the generator frame. The final rule clarifies that these requirements apply only when Subpart K does not apply, as explained in the discussion of § 1926.956(b), earlier in this section of the preamble. The requirements in this paragraph are similar to the corresponding Subpart K requirements, which are contained in § 1926.404(f)(3).

Final paragraph (d), which is being adopted without substantive change from the proposal, applies to pneumatic and hydraulic tools. Paragraph (d)(1) of § 1926.302 requires the fluids used in hydraulic-powered tools to be fire resistant. As explained in the preamble to the proposed rule, insulating hydraulic fluids are not inherently fire resistant, and additives that could make them fire resistant generally make the hydraulic fluid unsuitable for use as insulation (70 FR 34856). Because of these characteristics and because hydraulic fluids must be insulating to protect employees performing power transmission and distribution work, existing § 1926.950(i) exempts insulating hydraulic fluids from § 1926.302(d)(1).

OSHA proposed to continue this exemption in § 1926.956(d)(1), but was concerned by several accidents described in the record that occurred when insulating hydraulic fluid ignited and burned employees (Ex. 0002). The Agency requested information on whether fire-resistant insulating hydraulic fluids were available or were being developed.

OSHA did not receive any information about the availability or progress with the development of fire-resistant insulating hydraulic fluid; consequently, OSHA is including the existing exemption for insulating hydraulic fluids in the final rule. The Agency believes that the most serious hazard faced by an employee performing work covered by subpart V is electric shock. The Agency also reviewed the accidents in the record (such as Exs. 0002, 0003, 0004, and 0400) and concluded that, although insulating hydraulic fluid poses a substantial risk of igniting and burning workers, the risk of electric shock with uninsulated hydraulic equipment poses a greater risk of harm. OSHA encourages employers and manufacturers to develop insulating fluid that also is fire-resistant and will reexamine this issue if such fluids become available.

Final paragraph (d)(2) provides that safe operating pressures may not be exceeded. This requirement protects employees from the harmful effects of tool failure. If hazardous defects are present, no operating pressure would be safe, and the tools could not be used. In the absence of defects, the maximum rated operating pressure (which may be specified by the manufacturer or by hydraulics handbooks) is the maximum safe pressure. OSHA included a note to this effect in the final rule.

If a pneumatic or hydraulic tool is used where it may contact exposed energized parts, the tool must be designed and maintained for such use under final paragraph (d)(3). In addition, under paragraph (d)(4), hydraulic systems for tools that may contact exposed live parts during use must provide protection against loss of insulating value, for the voltage involved, due to the formation of a partial vacuum in the hydraulic line. Under paragraph (d)(5), a pneumatic tool used on energized electric lines or equipment or used where it may contact exposed live parts must provide protection against the accumulation of moisture in the air supply. These three requirements protect employees from electric shock by restricting current flow through hoses.

OSHA included a note following paragraph (d)(4) of the final rule addressing the use of hydraulic lines that do not have check valves. [157] If such lines are located in such a manner that the highest point on the hydraulic system is more than 10.7 meters (35 feet) above the oil reservoir, a partial vacuum can form inside the line. A partial vacuum can cause a loss of insulating value, possibly resulting in an electrical fault and consequent hydraulic system failure while an employee is working on a power line. During the rulemaking on the 1994 § 1910.269 final rule, IBEW reported two accidents that resulted from such an occurrence (269-DC Tr. 613). Therefore, OSHA inserted the note when the Agency adopted existing § 1910.269(i)(4)(iii), which is mirrored in final § 1926.956(d)(4). [158]

Final paragraphs (d)(6) and (d)(7) provide work-practice requirements to protect employees from the accidental release of pressure and from the injection of hydraulic oil (which is under high pressure) through the skin and into the body. The first of these two provisions requires the release of pressure before connections in the lines are broken, unless quick-acting, self-closing connectors are used. In the case of hydraulic tools, the spraying hydraulic fluid itself, which is flammable, poses additional hazards. Final paragraph (d)(7) requires employers to ensure that employees do not use any part of their bodies, such as a finger, to try to locate or stop a hydraulic leak. This provision in the final rule has been reworded to clarify that the employer has responsibility for compliance.

Final paragraph (d)(8) provides that hoses not be kinked. Kinks in hydraulic and pneumatic hoses can lead to premature failure of the hose and to sudden loss of pressure. If this loss of pressure occurs while the employee is using the tool, an accident could result in harm to employees. For example, a hydraulic or pneumatic tool supporting a load could drop the load onto an employee on a sudden loss of pressure.

NIOSH suggested that OSHA “consider an additional safeguard against the unintentional release of hydraulic oil—the use of hoses that are color coded by the [operating pressure] they can withstand, thus reducing the hazard of skin absorption or fire” (Ex. 0130). NIOSH did not submit any evidence that employers are using hoses of improper rating on hydraulic equipment. Consequently, the Agency is not adopting a requirement to color code hydraulic hoses according to safe operating pressure. However, NIOSH submitted evidence that an employer performing maintenance on an insulating hydraulic tool improperly replaced a nonconductive hose with a hose that was conductive because of its metal reinforcement (Ex. 0139). Although OSHA is not adopting a color-coding requirement in the final rule, the Agency advises manufacturers to clearly distinguish between conductive and nonconductive hoses.

Section 1926.957, Live-Line Tools

Final § 1926.957 is equivalent to existing § 1910.269(j) and contains requirements for live-line tools (some of which are commonly called “hot sticks”). This type of tool is used by qualified employees to handle energized conductors. The tool insulates the employee from the energized line. For example, a wire tong, which is a slender insulated pole with a clamp on one end, is used to hold a conductor at a distance while work is being performed. Common types of live-line tools include wire tongs, wire-tong supports, tension links, and switch, fuse, and tie sticks.

Mr. Leo Muckerheide of Safety Consulting Services was concerned that proposed § 1926.957 did not address all types of live-line tools, stating:

There is no definition given for a live-line tool except in the preamble. It states that such a tool is used to handle energized conductors and then gives some examples. There are other work practices, such as installing personal protective grounds, checking for voltage, pulling fuses or cutouts, removing or installing pins on suspension insulators, removing or installing jumpers, etc., where an insulated tool (switch/fuse/hot stick) is utilized. The insulating characteristics of these insulated tools (switch/fuse/hot stick) is critical to the accomplishment of such activities without injury to the worker. Any insulated tool (switch/fuse/hot stick) that is used on an energized circuit or a normally energized circuit in a manner that places a part of the tool inside the minimum approach distance . . . should be considered a live-line tool. The worker is depending on the insulating characteristics of the tool for protection. [Ex. 0180]

He recommended that OSHA expand this section to include these other insulated tools (id.).

OSHA notes that the lists of live-line tools provided here and in the preamble to the proposal (70 FR 34853) are not exhaustive. Also, OSHA added some of Mr. Muckerheide's examples to the list in the first paragraph of the summary and explanation for final § 1926.957. Final § 1926.957, and its general industry counterpart, final § 1910.269(j), cover any tool that is designed to contact an energized part and insulate the worker from that part. IEEE Std 516-2003, IEEE Guide for Maintenance Methods on Energized Power Lines, defines “insulating tool or device” as a tool or device “designed primarily to provide insulation from an energized part or conductor” (Ex. 0041). [159] This definition is consistent with OSHA's use of the term “live-line tool.” The Agency believes that the term is well understood by the regulated community and that the guidance provided in this preamble makes the Agency's meaning of the term clear. Therefore, OSHA concludes that it is not necessary to define “live-line tool” in the final rule.

Paragraph (a), which is being adopted without change from the proposal, requires live-line tool rods, tubes, and poles to be designed and constructed to withstand 328,100 volts per meter (100,000 volts per foot) for 5 minutes if made of fiberglass-reinforced plastic (FRP), 246,100 volts per meter (75,000 volts per foot) for 3 minutes if made of wood, or other tests that the employer can demonstrate are equivalent. The voltage per unit length varies with the type of material because different insulating materials are capable of withstanding different voltages over equal lengths. For example, a higher design standard for wood would cause most wood to fail to meet the specification, while a lower design specification would allow substandard products into service. Since the withstand voltages in final paragraph (a) are consistent with the withstand voltages in existing § 1910.269(j)(1) and ASTM F711-02 (2007), Standard Specification for Fiberglass-Reinforced Plastic (FRP) Rod and Tube Used in Live-Line Tools, OSHA expects that tools currently in use in the industry will continue to be acceptable. A note in the final regulatory text provides that tools that meet ASTM F711-02 (2007) will be deemed to comply with paragraph (a)(1) of final § 1926.957. Together with the minimum approach distances in § 1926.960(c)(1), final paragraph (a) of § 1926.957 protects employees from electric shock when they are using these tools.

Mr. Frank Owen Brockman with Farmers Rural Electric Cooperative Corporation recommended that the standard not contain provisions for live-line tools made of wood (Ex. 0173). He maintained that these tools are outdated and should no longer be in service (id.).

OSHA believes that wood live-line tools likely are no longer in service and are no longer being manufactured. However, the Agency has no evidence in the record that there are no wood live-line tools currently in service. As long as they meet the requirements in final § 1926.957, they can effectively protect employees from electric shock. Therefore, OSHA is including in the final rule without change the proposed requirements for live-line tools made of wood.

Paragraph (b) addresses the condition of tools. The requirements in this paragraph duplicate the requirements in existing § 1910.269(j)(2) and will ensure that live-line tools remain in a safe condition after they are put into service. Paragraph (b)(1), which is being adopted without change from the proposal, requires live-line tools to be wiped clean and visually inspected for defects before each day's use. Wiping the tool removes surface contamination that could lower the insulating value of the tool. Inspecting the tool will identify any obvious defects that could also adversely affect the insulating value of the tool.

Paragraph (b)(2), which is being adopted without change from the proposal, provides that a tool be removed from service if any contamination or defect that could adversely affect its insulating qualities or mechanical integrity is present after the tool is wiped clean. This paragraph protects employees from the failure of live-line tools during use. Tools removed from service must be examined and tested under final paragraph (b)(3) before being returned to service.

During the rulemaking on existing § 1910.269, OSHA found that, while there was no evidence in the record of any injuries related to the failure of a hot stick, evidence did indicate that these tools have failed in use (without injury to employees) and that employees depend on their insulating value while using them to handle energized conductors (59 FR 4378). The Agency believes that live-line tools are not typically used to provide protection for employees in the rain (when work is normally suspended), which probably accounts for the lack of injuries in the record. [160] However, live-line tools might be used under wet conditions, in which case it is necessary to ensure that these tools will retain their insulating qualities when they are wet. In addition, employee safety is dependent on the insulating integrity of the tool—failure of a live-line tool would almost certainly lead to serious injury or death whenever the tool is the only insulating barrier between the employee and a live part. Therefore, OSHA is adopting rules on the periodic examination and testing of live-line tools to ensure that the live-line tools employees use are safe.

Although visual inspection can detect the presence of hazardous defects and contamination, the Agency concluded, on the basis of the 1994 rulemaking record for existing § 1910.269, that the daily inspections required by final paragraph (b)(1) might not detect all defects and contamination (59 FR 4378). Referring to live-line tools that had failed in use, a Georgia Power Company study submitted to that 1994 rulemaking record stated: “Under visual inspection all the sticks appeared to be relatively clean with no apparent surface irregularities” (269-Ex. 60). These tools passed a dry voltage test, but failed a wet voltage test. [161] While the study further noted that the surface luster on the sticks was reduced, apparently the normal visual inspection alone did not detect the defects that caused those tools to fail.

To address these concerns, OSHA is adopting requirements in paragraph (b)(3) for the thorough examination, cleaning, repair, and testing of live-line tools on a periodic basis. These provisions are adopted in the final rule without substantive change from the proposal. The tools must undergo this process on a 2-year cycle and whenever the tools are removed from service on the basis of the daily inspection. [162]

The final rule first requires a thorough examination of the live-line tool for defects (paragraph (b)(3)(i)). After the examination, the tool must be cleaned and waxed if no defects or contamination are found; if a defect or contamination that could adversely affect the insulating qualities or mechanical integrity of the live-line tool is found during the examination, the tool must be repaired and refinished or permanently removed from service as specified by final paragraph (b)(3)(ii). In addition, under final paragraph (b)(3)(iii), a tool must be tested: (1) After it has been repaired or refinished, regardless of its composition; or (2) after an examination is conducted in accordance with final paragraph (b)(3)(i) that results in no repair or refinishing being performed (although no testing is required if the tool is made of FRP rod or foam-filled FRP tube and the employer can demonstrate that the tool has no defects that could cause it to fail in use).

In accordance with final paragraph (b)(3)(iv), the test method used must be designed to verify the tool's integrity along its full working length and, if the tool is made of FRP, its integrity under wet conditions. The performance criteria specified by final paragraph (a) are “design standards” that must be met by the manufacturer. The test voltages and test duration used during the manufacturing process are not appropriate for periodic retesting of the hot sticks because live-line tools may sustain damage during such tests. Accordingly, the in-service tests required by final paragraph (b)(3)(v) are designed to assure as much employee protection as possible without damaging the tools. For tools with both hollow and foam-filled sections, the filled section is typically considered to constitute the insulating portion of the tool, which, for the purposes of final paragraph (b)(3)(iv), is the working length of the tool.

Under final paragraph (b)(3)(v), the test voltages must be 246,100 volts per meter (75,000 volts per foot) for fiberglass tools or 164,000 volts per meter (50,000 volts per foot) for wood tools, and, in both cases, the voltage must be applied for 1 minute. Other tests are permitted if the employer can demonstrate that they provide equivalent employee protection.

A note to paragraph (b) of the final rule states that guidelines for the inspection, care, and testing of live-line tools are specified in IEEE Std 516-2009.

Mr. Stephen Frost with Mid-Columbia Utilities Safety Alliance commented that the IEEE standard does not contain test criteria for FRP tools with hollow sections, but supported OSHA's proposal to adopt the same language as existing § 1910.269 (Ex. 0184).

OSHA reviewed the test procedures in IEEE Std 516-2009 and found that they do address hollow, as well as foam-filled, live-line tools. The Agency believes that these tests can be used by the employer as appropriate for the different sections of multiple-section tools.

Mr. Leo Muckerheide of Safety Consulting Services commented that existing § 1910.269(j)(2)(iii) references a 1994 edition of the 2003 IEEE standard that OSHA referenced in the note to proposed paragraph (b). He also noted that the “wet” test procedure in an ASTM standard differs from the one in the IEEE standard. Mr. Muckerheide explained:

[Paragraph (j)(2)(iii)(D) of existing § 1910.269 and proposed § 1926.957(b)(3)(iv)] require the integrity testing of fiberglass-reinforced plastic tools under “wet conditions” but it does not define “wet conditions”. The note for paragraph 1926.957(b)(3)(iv) refers to IEEE Std 516-2003 while the note for 1910.269(j)(2)(iii)(D) refers to IEEE Std 978-1984. IEEE Std 978-1984 is no longer supported by IEEE. There is also an ASTM standard, F711-02, that establishes specifications for live-line tools. Both have a test protocol for “wet conditions”. However, they are not identical. One specifies a 7 day 93% humidity test and the other a fine mist of distilled water. [Ex. 0180]

He recommended that both § 1910.269 and subpart V require testing under wet conditions to conform to the “current version of IEEE Std 516.”

OSHA notes that the test procedure and criteria in ASTM F711 are design or acceptance tests for new live-line tools, while the tests in the IEEE standard are in-service tests. As noted earlier, design and acceptance tests generally are more severe than in-service tests and can damage tools if repeated on a regular basis. A tool in new condition should perform at an optimal level. Once a tool has been in service for a while, it will typically exhibit reduced performance because the tool deteriorates as it is handled—it develops microscopic scratches and becomes contaminated with creosote and other substances. To account for this deterioration, in-service testing frequently uses different test procedures or test criteria, or both. In the final standard, the Agency provides employers flexibility in adopting test procedures and criteria. Thus, test procedures and criteria are acceptable as long as they meet the performance requirements of the standard, that is, they “verify the tool's integrity along its entire working length and, if the tool is made of fiberglass-reinforced plastic, its integrity under wet conditions.” As explained in detail under the summary and explanation for final § 1926.97, earlier in this section of the preamble, OSHA is adopting performance requirements rather than incorporating consensus standards by reference for a number of reasons, including allowing greater compliance flexibility and reducing the need to update the OSHA standards as frequently.

As explained in the summary and explanation for Appendix G, later in this section of the preamble, OSHA is updating the consensus standards specified in nonmandatory references throughout final § 1910.269 and final subpart V. In this case, the note to final § 1910.269(j)(2) includes an updated reference to IEEE Std 516-2009 to match the corresponding note to final § 1926.957(b). (See the summary and explanation of § 1926.97, earlier in this preamble, for a discussion of OSHA's approach regarding future updates of the consensus standards referenced in this final rule.)

Section 1926.958, Materials Handling and Storage

Final § 1926.958 is equivalent to existing § 1910.269(k) and contains requirements for materials handling and storage. Final paragraph (a) clarifies that material-handling and material-storage requirements in Part 1926, including those in Subparts N and CC, apply. Proposed paragraph (a) referenced only Subpart N. [163] However, OSHA recently revised its cranes and derricks standard, former § 1926.550, which was in subpart N when OSHA published the proposed rule for subpart V. The recently published cranes and derricks final rule moved the requirements for cranes and derricks into a new subpart, subpart CC of part 1926 (75 FR 47906, Aug. 9, 2010). [164] Consequently, the Agency is including a reference to this new subpart in final § 1926.958(a). Work performed under subpart V is exempt from certain requirements in subpart CC. For example, § 1926.1408(b)(5) exempts cranes and derricks used in subpart V work from § 1926.1408(b)(4), which requires employers to adopt one of several encroachment-prevention measures for certain work near overhead power lines. Any exemptions in subpart CC for subpart V work continue to apply; those exemptions are not affected by this final rule.

It should be noted that Subparts H and O of OSHA's construction standards also contain requirements pertaining to material handling and storage. For example, § 1926.602 covers material-handling equipment. These provisions continue to apply even though they are not specifically mentioned in final § 1926.958(a). (See final § 1926.950(a)(2).) To make this clear in the final rule, OSHA reworded § 1926.958(a) in the final rule to require material handling and storage to “comply with applicable material-handling and material-storage requirements in this part, including those in subparts N and CC of this part.”

Paragraph (b) addresses the storage of materials in the vicinity of energized lines and equipment. Paragraph (b)(1), which is being adopted without substantive change from the proposal, contains requirements for areas to which access is not restricted to qualified employees only. As a general rule, the standard does not permit materials or equipment to be stored in such areas within 3.05 meters (10 feet) of energized lines or exposed parts of equipment. This clearance distance must be increased by 0.10 meters (4 inches) for every 10 kilovolts over 50 kilovolts. The distance also must be increased to account for the maximum sag and side swing of any conductor and to account for the height and movement of material-handling equipment. Maintaining these clearances protects unqualified employees from contacting energized lines or equipment with materials being handled. Storing materials at the required distances also will facilitate compliance with provisions elsewhere in the construction standards that require material-handling equipment to maintain specific distances from energized lines and equipment, such as § 1926.600(a)(6). [165]

The work practices unqualified workers must use in handling material stored near energized lines, including in areas addressed by final § 1926.958(b)(1), are addressed elsewhere in Part 1926, including subparts K and CC of part 1926. The general approach taken in this revision of subpart V is to provide safety-related work practices for qualified employees to follow when they are performing electric power transmission and distribution work, including work in areas addressed by final § 1926.958(b)(1). (See the summary and explanation for final § 1926.950(a)(1)(ii).)

Mr. Kenneth Brubaker was concerned that unqualified employees storing materials near energized lines or equipment could not determine the relevant voltage and recommended specifying clearance distances that did not require calculations based on voltage (Exs. 0099, 0100).

OSHA is not adopting Mr. Brubaker's recommendation. As noted under the summary and explanation for final § 1926.950(a)(1)(ii), subpart V does not apply to electrical safety-related work practices for unqualified employees. Paragraph (b)(1) of final § 1926.958 specifies minimum clearance distances between energized lines or exposed energized parts and stored material or equipment. The electrical safety-related work practices used by unqualified employees handling the stored material or equipment are addressed in subparts of part 1926 other than subpart V. In any event, the employer is responsible for determining where to store material and equipment so as to comply with final § 1926.958(b)(1), which addresses Mr. Brubaker's concern that unqualified employees will be determining these distances.

Paragraph (b)(2), which is being adopted without substantive change from the proposal, governs the storage of materials in areas restricted to qualified employees. If the materials are stored where only qualified workers have access to them, the materials may be safely stored closer to the energized parts than 3.05 meters (10 feet), provided that the employees have sufficient room to perform their work. Therefore, to ensure that enough room is available, paragraph (b)(2) prohibits material from being stored in the working space around energized lines or equipment. A note to this paragraph clarifies that requirements for the size of the working space are contained in § 1926.966(b). (See the discussion of final § 1926.966(b) later in this preamble for an explanation of requirements for access and working space.)

Working space under this provision is the clear space that must be provided around the equipment to enable qualified employees to work on the equipment. The minimum working space specifies the minimum distance an obstruction can be from the equipment. For example, if a switchboard is installed in a cabinet that an employee will enter, the inside walls of the cabinet must provide sufficient minimum working space to enable the employee to work safely within the cabinet.

The minimum approach distance that must be maintained from a live part is the minimum dimension of the space around the equipment that a qualified employee is not permitted to enter, except under specified conditions. Note that the minimum approach distance a qualified employee must maintain from an energized part (covered in final § 1926.960(c)(1)) is smaller than the working space that is required to be provided around the part. Accordingly, the employee must enter the working space and still maintain the minimum approach distance unless one of the exceptions specified in § 1926.960(c)(1) applies. Employers must ensure that materials are stored outside the working space so that employees can quickly escape from the space if necessary. In addition, sufficient room must be available in the working space to allow employees to move without violating the minimum approach distance.

Section 1926.959, Mechanical Equipment

Requirements for mechanical equipment are contained in § 1926.959. Paragraph (a) sets general requirements for mechanical equipment used in the construction of electric power transmission or distribution lines and equipment. Paragraph (a)(1) provides that mechanical equipment must be operated in accordance with applicable requirements in part 1926, including subparts N, O, and CC, except for one requirement pertaining to the operation of mechanical equipment near energized power lines at § 1926.600(a)(6), which does not apply to operations performed by qualified employees. Accordingly, § 1926.600(a)(6) continues to apply to operations performed by unqualified employees. Final subpart V contains requirements for the operation of mechanical equipment by qualified employees near energized power lines and equipment. While the final rule allows qualified employees to operate equipment closer to energized lines and equipment than permitted for unqualified employees by § 1926.600(a)(6), the final rule also contains the relevant safeguards for protecting these employees. These safeguards include special training for qualified employees (see § 1926.950(b)(2)) and the use of special safety procedures for operations involving mechanical equipment (see § 1926.959(d)). Therefore, OSHA believes that the final rule will provide more appropriate protection for qualified electric power transmission and distribution workers than § 1926.600(a)(6). OSHA revised the language of final § 1926.959(a)(1) from the proposal to clarify this point and to be more consistent with final § 1926.958(a).

OSHA proposed to exempt subpart V operations performed by qualified employees from § 1926.550(a)(15) in subpart N, which specified minimum approach distances for cranes and derricks. As noted earlier, however, after OSHA published proposed subpart V, the Agency revised its standard for cranes and derricks. The revised requirements for cranes and derricks were relocated to subpart CC. In the cranes and derricks rulemaking, OSHA concluded that the provisions for operating cranes and derricks near overhead power lines in subpart CC were reasonable and appropriate and were more protective of employees than comparable provisions in existing subpart V. However, the Agency also concluded that existing § 1910.269(p) was just as protective of employees as the requirements for operating cranes and derricks near power lines adopted in subpart CC. (See 75 FR 47921, 47930, 47965-47966.) Accordingly, OSHA deemed compliance with existing § 1910.269(p) as compliance with §§ 1926.1407 through 1926.1411. (See § 1926.1400(g).) The exemptions for subpart V work specified in subpart CC (or elsewhere in part 1926) continue to apply; however, as explained later in this section of the preamble, the Agency revised several provisions in subpart CC to incorporate changes to subpart V in this final rule.

Paragraph (a)(2) of final § 1926.959 requires that the critical safety components of mechanical elevating and rotating equipment receive a thorough visual inspection before use on each shift. Although the inspection must be thorough, it is not necessary to disassemble the equipment. The note following this paragraph describes what equipment parts OSHA considers to be critical safety components, that is, any part for which failure would result in a free fall or free rotation of the boom. These parts are critical to safety because failure would immediately pose serious hazards to employees, as can be seen in several aerial-lift accidents in the record (Ex. 0004 [166] ). This provision is adopted as proposed.

Paragraph (a)(3), which is being adopted without substantive change from the proposal, prohibits the operator of an electric line truck from leaving his or her position at the controls while a load is suspended, unless the employer can demonstrate that no employee, including the operator, would be endangered if the operator left his or her position. This provision ensures that the operator will be at the controls if an emergency arises that necessitates moving the suspended load. For example, due to wind or unstable soil, the equipment might start to tip over. Having the operator at the controls ensures that corrective action can be taken quickly enough to prevent an accident.

Paragraph (b) sets requirements for outriggers. As proposed, paragraph (b)(1) would have required that mobile equipment [167] provided with outriggers be operated with the outriggers extended and firmly set “as necessary for the stability of the specific configuration of the equipment.” The manufacturer normally provides limits for various configurations to ensure the stability of the equipment, but these limits can also be derived through engineering analysis.

Mr. Frank Owen Brockman with Farmers Rural Electric Cooperative Corporation commented that outriggers “should be used any time the boom is out of the cradle” (Ex. 0173).

In considering this comment, OSHA examined accidents in the record involving overturned mobile equipment. There were several such accidents in the record involving equipment that overturned, and at least two of them occurred because the outriggers were not set (Exs. 0002, 0400 [168] ). Based on these accidents, OSHA believes that, even if employees setting up mobile mechanical equipment expect to operate the equipment within its stability limits, they may inadvertently go beyond those limits while operating the equipment. Consequently, the Agency agrees with Mr. Brockman that outriggers should always be set, at least when it is possible to do so. Therefore, in paragraph (b)(1) of the final rule, OSHA is requiring the outriggers of mobile equipment to be extended and firmly set, except as permitted in paragraph (b)(3), which provides for the safe operation of the equipment when the work area or terrain precludes the use of outriggers.

The second sentence of proposed paragraph (b)(1) would have prohibited outriggers from being extended or retracted outside the clear view of the operator unless all employees were outside the range of possible equipment motion. There were no comments on this provision, and OSHA is including this requirement as paragraph (b)(2) in the final rule. This requirement will prevent injuries caused by extending outriggers into employees.

If the work area or terrain precludes the use of outriggers, proposed paragraph (b)(2) would have permitted the operation of the equipment only within the maximum load ratings specified by the manufacturer for the particular equipment configuration without outriggers. There were no comments on this provision, and OSHA is including this requirement in paragraph (b)(3) in the final rule. The requirements contained in paragraphs (b)(1) and (b)(3) will ensure the stability of the equipment while loads are being handled, thereby preventing equipment tipovers, which could harm employees.

Paragraph (c), which is being adopted without substantive change from the proposal, requires mechanical equipment used to lift or move lines or other material to be operated within its maximum load rating and other design limitations for the conditions under which it is being used. As OSHA explained in the preamble to the proposal, it is important for mechanical equipment to be used within its design limitations so that the lifting equipment does not fail during use and harm employees (70 FR 34858).

In electric-utility operations, contact between live parts and mechanical equipment causes many fatalities each year. A sample of typical accidents involving the operation of mechanical equipment near overhead lines is given in Table 4. Industry practice (Exs. 0041, 0076, 0077), and existing rules in Subpart V (§§ 1926.952(c) and 1926.955(a)(5)(ii)), require that mechanical equipment be kept from exposed energized lines and equipment at distances generally greater than or equal to those proposed in Table V-2 (AC Live-Line Work Minimum Approach Distance). However, incidents involving contact between mechanical equipment and energized parts still occur during the hundreds of thousands of operations performed near overhead power lines each year (Ex. 0017). If the equipment operator is distracted briefly or if the distances involved or the speed of the equipment towards the line is misjudged, contact with the lines is likely to occur, especially when the minimum approach distances are small. Because these types of contacts cannot be totally avoided, OSHA believes that additional requirements, beyond provisions for maintaining minimum approach distances, are necessary for operating mechanical equipment near exposed energized lines. Paragraph (d) of final § 1926.959 addresses this issue.

Table 4—Accidents Involving the Operation of Mechanical Equipment Near Overhead Lines Back to Top
Type of equipment Number of fatalities Types of accident
Total Grounded
Yes No ?
Source: OSHA accident investigation data (269-Exs. 9-2 and 9-2A).
Boom Truck/Derrick Truck 9 2 7 Boom contact with energized line. Pole contact with energized line.
Aerial Lift 8 1 7 Boom contact with energized line.
Lower boom contact with energized line.
Employee working on deenergized line when upper boom contacted energized line.
Electric current arced from a winch on a lift used on an energized line to nearby ground.
Vehicle 2 1 1 Line fell on vehicle.
Unknown type of vehicle and type of accident.
Total 19 2 2 15

Mr. Brian Erga with ESCI proposed a complete revision of proposed paragraph (d) (Exs. 0155, 0471; Tr. 1249-1253). OSHA decided not to adopt this proposal. The Agency addresses his specific concerns and recommendations in the following discussion of the individual provisions of proposed paragraph (d).

Proposed paragraph (d)(1) would have required that the minimum approach distances in Table V-2 through Table V-6 be maintained between the mechanical equipment and live parts while the equipment was being operated near exposed energized lines or equipment. This provision would ensure that sufficient clearance is provided between the mechanical equipment and the energized part to prevent an electric arc from occurring and energizing the equipment. The requirement to maintain a minimum approach distance also lessens the chance that the mechanical equipment will strike the lines and knock them to the ground. (See 70 FR 34858-34859; 59 FR 4400-4401.)

Mr. Brian Erga with ESCI objected to the prohibition against taking mechanical equipment inside the minimum approach distance (MAD), commenting:

[The proposal] requires that mechanical equipment can not be allowed within the minimum approach distance. However, the electric utility industry routinely works near MAD, at MAD, and takes mechanical equipment into MAD during many industry accepted work practices many times per day. [Ex. 0155]

Mr. Erga argued that proper work methods and grounding would prevent accidents involving mechanical equipment contacting overhead power lines. He expanded on his comments in his posthearing submission:

During cross examination at the public hearing on March 2006, speakers from EEI, NECA, IBEW and others, testified that qualified workers routinely take mechanical equipment into the Minimum Approach Distance (MAD). In cross examination of Mr. Tomaseski, IBEW Director of Safety, was asked, “is mechanical equipment taken inside the minimum approach distance at times?” Mr. Tomaseski replied “regularly,” and he further stated “it could be (the standard) rewritten to offer a better level of safety.”

This standard industry practice of taking mechanical equipment into MAD occurs when qualified workers are setting new poles, installing transformers, installing equipment and moving conductors with mechanical equipment. This practice is safe and effective if [proper work methods are used].

Table IV-5 “Accidents Involving the Operation of Mechanical Equipment Near Overhead Lines,” page 34859 of the Federal Register, dated June 15, 2005, details fatalities around mechanical equipment that were grounded, ungrounded, or not known. However, the table does not detail how the equipment was grounded, if proper cover-up was used or if any safety precaution was taken. To date there has never been a documented case of a worker being injured or killed around properly grounded mechanical equipment, or when the proper work methods . . . have been used.

And, as clearly seen in the IEEE paper 91 SM 312-9 PWRD “Tests Results of Grounding Uninsulated Aerial Lift Vehicles Near Energized Lines” (Attachment 1), whether the vehicle was left ungrounded or grounded to a temporarily driven ground rod, neither of these two practices provided any worker protection. However, when the vehicle was grounded to a proper ground source, electrical hazards to workers were greatly reduced to survival levels. Use of insulated cover-up on the exposed energized lines and equipment, or the use of insulated and tested mechanical equipment are industry accepted and safe work procedures which should be supported by OSHA. [Ex. 0471]

OSHA does not dispute Mr. Erga's evidence regarding the effectiveness of grounding and addresses that issue in the discussion of paragraph (d)(3)(iii), later in this section of the preamble. Although Mr. Erga maintains that “qualified workers routinely take mechanical equipment into the Minimum Approach Distance” (Ex. 0471), OSHA does not consider this a valid reason for eliminating proposed paragraph (d)(1) from § 1926.959. Mr. Erga did not demonstrate that it is infeasible to comply with proposed paragraph (d)(1). In fact, when performing tasks such as installing poles or equipment, employers can use temporary arms or other live-line tools to move the lines far enough away from mechanical equipment so that the equipment maintains the required minimum approach distance (269-Ex. 8-5). Moreover, insulated aerial lifts (discussed later in this section of the preamble) can be used to install equipment and move conductors (id.)

Mr. Erga also maintains that grounding mechanical equipment and other safety precautions, such as insulating the lines with coverup, provide better protection than the proposed rule. However, he did not explain how grounding, insulated coverup, or any of the other practices he recommended protect employees from conductors being knocked down as a result of contact by mechanical equipment. The practices he recommended can help protect employees who contact energized equipment; however, those practices do not protect employees from being injured or killed by energized lines contacting them directly or energizing the earth around them.

Proposed § 1926.959(d)(1) was equivalent to existing § 1910.269(p)(4)(i). Mr. Erga was the only rulemaking participant in either this rulemaking or the 1994 rulemaking to object to the prohibition against taking mechanical equipment into the minimum approach distance. OSHA concludes that this provision of proposed paragraph (d)(1) is reasonably necessary and appropriate and is including it in the final rule.

The proposal specified minimum approach distances in proposed Table V-2 through Table V-6. However, in the final rule, § 1926.960(c)(1)(i) requires the employer to establish minimum approach distances. (See the summary and explanation of § 1926.960(c)(1)(i), later in this section of the preamble.) Accordingly, final § 1926.959(d)(1) requires mechanical equipment to maintain “the minimum approach distances, established by the employer under § 1926.960(c)(1)(i)” rather than “the minimum approach distances of Table V-2 through Table V-6,” as proposed.

Mr. Erga questioned whether proposed paragraph (d)(1) allowed a qualified employee to “use insulating protective material to cover the line and then go into [the minimum approach distance] with a conductive boom” (Ex. 0155). The word “exposed” is defined in final § 1926.968 as “[n]ot isolated or guarded.” The word “isolated” is defined in final § 1926.968 as “Not readily accessible to persons unless special means for access are used.” (See the summary and explanation for final § 1926.960(b)(3) for a discussion of this definition.) The word “guarded” is defined in final § 1926.968 as covered, fenced, enclosed, or otherwise protected, by means of suitable covers or casings, barrier rails or screens, mats, or platforms, designed to minimize the possibility, under normal conditions, of dangerous approach or inadvertent contact by persons or objects. A note following the definition of “guarded” explains that conductors that are insulated, but not otherwise protected, are not guarded. Thus, energized lines and equipment that are protected only by rubber insulating equipment are neither guarded nor isolated from the mechanical equipment and would, consequently, still be “exposed” for purposes of final paragraph (d)(1). Therefore, under these conditions, employers must ensure that mechanical equipment complies with the minimum approach distance.

Proposed paragraph (d)(1) provided an exception permitting the insulated portion of an aerial lift operated by a qualified employee located in the lift to breach the minimum approach distance. The Agency is adopting this exception in final paragraph (d)(1) with only minor editorial changes. As OSHA noted in the preamble to the proposal, aerial lifts are designed to enable an employee to position himself or herself at elevated locations with a high degree of accuracy (70 FR 34859). The aerial-lift operator is in the bucket next to the energized lines and, therefore, can easily judge the approach distance. This requirement minimizes the chance that the equipment will contact an energized line and that the energized line will be struck down should such contact occur. Furthermore, the employee operating the lift in the bucket would be protected under the provisions of final § 1926.960 from the hazards of contacting the live parts. As the aerial lift is insulated, employees on the ground are protected from electric shock in case the aerial lift contacts the lines, provided that the contact is made above the insulated section of the boom. OSHA further noted in the preamble to the proposal that § 1926.959(c) [169] and other provisions would protect employees against the possibility that the aerial lift would strike down the power line (id.).

Two commenters requested clarification of the exception specified in proposed paragraph (d)(1) for parts of insulated aerial lifts (Exs. 0186, 0192). Mr. Anthony Ahern of Ohio Rural Electric Cooperatives requested clarification regarding the portion of the boom of an aerial-lift truck that would be considered uninsulated (Ex. 0186). He noted that some aerial devices have second insulated inserts in the lower portion of their booms and that some companies treat these inserts as secondary protection and do not regularly dielectrically test them (id.). In addition, an aerial-lift manufacturer, Altec Industries, offered these comments:

It is important to clarify that insulated aerial lifts have conductive components located above their insulated sections. The insulated aerial lift allows a qualified employee using appropriate PPE to approach within the minimum approach distance to a single unguarded energized conductor. However the minimum approach distance to other unguarded conductors at different potentials remain in effect. The qualified employee may not approach, or take any conductive object, including conductive portions of an insulated aerial lift (e.g., material handling system) that are located above its insulated section, into the minimum approach distance of two unguarded conductors at different electrical potential. [Ex. 0192]

Altec recommended that the exception be worded, in part: “the insulated portion of an aerial lift operated by a qualified employee in the lift is exempt from this requirement if the applicable minimum approach distance ARE maintained between the CONDUCTIVE PORTIONS OF THE AERIAL LIFT LOCATED ABOVE INSULATION, THE uninsulated portions of the aerial lift and exposed objects at a different potential” (id.; emphasis in original).

Final paragraph (d)(1) will protect employees on the ground by ensuring that the equipment does not become energized and that the overhead power lines are not knocked to the ground. Both of these conditions pose hazards for ground workers. For the purposes of final paragraph (d)(1), OSHA considers “the insulated portion of an aerial lift” to be that portion of an insulated aerial lift that is on the end of the insulated boom section farthest from the vehicle supporting the aerial lift. This is the portion of the aerial device that is insulated from the vehicle. If contact with an energized line is made on this portion of the boom, employees on the ground are protected. [170] The Agency does not believe that Altec's recommended language would further clarify this requirement. In addition, OSHA does not consider insulated inserts that the employer does not deem to be insulation, or does not maintain, to be part of the insulated portion of the aerial lift as specified by final paragraph (d)(1).

It should be noted that, even if the exception in final paragraph (d)(1) for the insulated portions of aerial lifts applies, the employee must still maintain the minimum approach distances to the extent required in final § 1926.960(c)(1). In addition, final § 1926.959(d)(1) requires the conductive portions of the boom to continuously maintain the minimum approach distances from conductive objects at potentials different from that on which the employee is working. It should also be noted that the insulating portion of the boom can be bridged by improper positioning of the boom or by conductive objects suspended from the aerial lift platform. For example, the insulating portion of the boom will be bridged when it is resting against a grounded object, such as a utility pole, or when the employee in an aerial bucket is holding onto a grounding jumper. For purposes of final § 1926.959(d)(1), OSHA does not consider any part of the aerial lift to be insulated when the insulation is bridged.

Paragraph (d)(2), which is being adopted without substantive change from the proposal, requires a designated employee to observe the operation and give timely warnings to the equipment operator before the minimum approach distance is reached. There is an exception to this requirement for situations in which the employer can demonstrate that the operator can accurately determine that the minimum approach distance is being maintained. As OSHA explained in the preamble to the proposal, determining the distance between objects that are relatively far away from an equipment operator who is standing on the ground can sometimes be difficult (70 FR 34859). For example, different visual perspectives can lead to different estimates of the distance, and lack of a suitable reference point can result in errors (269-Ex. 8-19). In addition, an operator may not be in the best position to observe the clearance between an energized part and the mechanical equipment because, for example, an obstruction may block his or her view.

An aerial-lift operator would not normally need to judge the distance between far away objects. In most cases, an aerial-lift operator is maintaining the minimum approach distance from energized parts relatively close to himself or herself, and it should be easy for him or her to stay far enough away from these parts. In such cases, the employer would normally be able to demonstrate that the employee can maintain the minimum approach distance without an observer. However, even an aerial-lift operator may have difficulty maintaining the minimum approach distances in certain circumstances. For example, the congested configuration of some overhead power lines may necessitate maintaining clearance from more than one conductor at a time, or an aerial-lift operator may need to judge the distance between the lower, uninsulated portion of the boom and a conductor that is located well below the operator. In these situations, in which it is unlikely that an employer could demonstrate that the operator could accurately determine that the required distance is being maintained, an observer is required.

Final paragraph (d)(3) will protect employees, primarily employees on the ground, from electric shock in case contact is made between the mechanical equipment and the energized lines or equipment. This paragraph requires employers to take one of three alternative protective measures if the equipment can become energized. The first option (paragraph (d)(3)(i)) requires that energized lines or equipment exposed to contact with the mechanical equipment be covered with insulating protective material that will withstand the type of contact that could be made during the operation. The second option (paragraph (d)(3)(ii)) requires the mechanical equipment to be insulated for the voltage involved. Under this option, the mechanical equipment must be positioned so that uninsulated portions of the equipment cannot come within the applicable minimum approach distance of the energized line or equipment. [171]

Mr. Brian Erga with ESCI was concerned about the requirement in proposed paragraph (d)(3)(ii) that insulated equipment be positioned so that its uninsulated portions cannot approach energized lines or equipment closer than the minimum approach distance, commenting:

OSHA 1910.269(p)(4) is currently being read word for word that when using the insulated portion of mechanical equipment, the un-insulated portion cannot possibly ever reach into [the minimum approach distance]. This requires the truck to be positioned so far away that it cannot lift anything, and is often impractical since the truck may need to be 30 feet from the pole or line to keep the possibility of the un-insulated portion entering [the minimum approach distance]. [Ex. 0155]

Paragraph (d)(3)(ii) in the final rule, which applies to insulated equipment, requires the mechanical equipment to be positioned so that the uninsulated portion cannot approach any closer than the minimum approach distance. OSHA understands that this may not always be practical, depending on the work to be performed, the location of the energized lines and equipment, and available operating positions for the mechanical equipment. However, the Agency notes that this paragraph presents one of three options that employers may take to comply with final paragraph (d)(3). The first and third options, in final paragraphs (d)(3)(i) and (d)(3)(iii), permit mechanical equipment, including insulated equipment, to be positioned more closely to energized lines and equipment provided that employers take the precautions specified in those paragraphs. (Note that final paragraph (d)(1) still generally requires mechanical equipment to be operated so that the minimum approach distances, established by the employer under final § 1926.960(c)(1)(i), are maintained from exposed energized lines and equipment, regardless of where the equipment is positioned.)

The third compliance option, specified in final paragraph (d)(3)(iii), is for each employee to be protected from the hazards that could arise from contact of mechanical equipment with the energized lines or equipment. The measures used must ensure that employees will not be exposed to hazardous differences in electric potential. Based on the § 1910.269 rulemaking record, OSHA concluded that vehicle grounding alone could not always provide sufficient protection against the hazards of mechanical equipment contact with energized power lines (59 FR 4403). However, the Agency recognized the usefulness of grounding as a protective measure against electric shock when it is used with other techniques. Therefore, proposed paragraph (d)(3)(iii), which was equivalent to existing § 1910.269(p)(4)(iii)(C), required:

(1) Using the best available ground to minimize the time the lines or equipment remain energized,

(2) Bonding equipment together to minimize potential differences,

(3) Providing ground mats to extend areas of equipotential, and

(4) Using insulating protective equipment or barricades to guard against any remaining hazardous electrical potential differences.

To comply with the third compliance option in final paragraph (d)(3)(iii), the employer must use all of these techniques, unless it can show that it is using other methods that protect each employee from the hazards that could arise if the mechanical equipment contacts the energized lines or equipment. The techniques listed in paragraph (d)(3)(iii): (1) minimize differences in electrical potential, (2) minimize the time employees would be exposed to hazardous electrical potentials, and (3) protect against any remaining hazardous electrical potentials. The performance-oriented requirements in final paragraph (d)(3)(iii) assure that employees are protected from the hazards that could arise if the mechanical equipment contacts energized parts. Information in Appendix C to final subpart V provides guidelines for employers and employees that explain various measures for protecting employees from hazardous differences in electrical potential and how to use those measures. A note referencing this appendix is included after final paragraph (d)(3)(iii).

Mr. Erga objected to proposed paragraph (d)(3)(iii). He recommended that mechanical equipment always be grounded “cradle to cradle,” that is, from the time the boom lifts out of the cradle until it returns (Tr. 1237) and that it always be grounded when it comes within 3 meters (10 feet) of energized lines or equipment (Tr. 1252). He recommended further that the standard provide three options to supplement this grounding requirement: (1) that the lines or equipment be covered, (2) that the mechanical equipment be insulated, or (3) that barricades, ground mats, and rubber insulating gloves be used (Tr. 1252).

OSHA concludes that it is not always necessary to ground mechanical equipment operated near energized lines or equipment. Under the first option in final paragraph (d)(3), the energized lines or equipment are covered with insulating protective material that will withstand the type of contact that could be made during the operation. This option should prevent the mechanical equipment from becoming energized, and the Agency, therefore, concludes that grounding is unnecessary for this option. Under the second option in final paragraph (d)(3), the uninsulated portion of insulated mechanical equipment must be positioned so that it cannot approach any closer than the minimum approach distance. This option also should prevent the mechanical equipment from becoming energized, and the Agency concludes that grounding is unnecessary under this option as well.

The third option in final paragraph (d)(3) requires that mechanical equipment be grounded unless the employer can demonstrate that other methods in use will protect each employee from the hazards that could arise if the mechanical equipment contacts the energized lines or equipment. In his comments, Mr. Erga referred to an IEEE paper on grounding, explaining:

IEEE paper 91 SM 312-9 PWRD “Test results of grounding un-insulated aerial lift vehicles near energized distribution lines” . . . clearly shows mechanical equipment grounded to the best available ground reduces the voltage and current exposed to the worker by more than 96%. The ESCI staff knows of no electrical worker ever killed or injured around properly grounded mechanical equipment that has become accidentally energized. [Ex. 0155; emphasis included in original]

The IEEE paper to which Mr. Erga referred clearly shows that using the best available ground provides the most protection for employees and, therefore, supports the requirement in final paragraph (d)(3)(iii)(A) to ground the mechanical equipment to the best available ground (Ex. 0472). However, the paper also demonstrates that this ground is insufficient by itself to protect employees fully. With grounding alone, the current through a resistor of more than 900 ohms is high enough to injure and possibly kill an employee. OSHA has considered the minimum resistance of an employee to be 500 ohms, not 1,000 ohms, as specified in the paper (59 FR 4406). As NIOSH states in its Publication No. 98-131, Worker Deaths by Electrocution: A Summary of NIOSH Surveillance and Investigative Findings,“High-voltage electrical energy quickly breaks down human skin, reducing the human body's resistance to 500 Ohms” (Ex. 0141). Using Ohm's Law, current is inversely proportional to resistance, and the current through a 500-ohm resistor would be nearly twice the current shown in the IEEE paper. In addition, the testing for the IEEE paper was performed with a 7,200-volt power line. Distribution and transmission lines of higher voltages, which are not uncommon, would result in even higher currents through a resistor. Thus, the evidence provided by Mr. Erga demonstrates the need for additional measures beyond grounding, such as the measures required by the final rule.

As noted earlier, final paragraph (d)(3)(iii) requires the employer to take specified measures unless it can demonstrate that the methods in use protect each employee from the hazards that could arise if the equipment contacts the energized line or equipment. Mr. Erga's proposal would require only two of those measures: Grounding and one of three additional measures, two of which are comparable to measures required by final paragraph (d)(3)(iii). OSHA continues to believe that all of the measures listed in final paragraph (d)(3)(iii) will protect employees from hazardous differences in electrical potential as explained in the preamble to the 1994 § 1910.269 final rule (59 FR 4402-4403). Employers are free to use other protective measures, including those proposed by Mr. Erga, but these employers must demonstrate that the methods in use protect each employee from the hazards that could arise if the equipment contacts an energized line or equipment. OSHA concludes that it is important for employers that do not implement all of the measures required by final paragraph (d)(3)(iii) to evaluate their systems, and the alternative measures they select, to ensure that employees are protected. Therefore, OSHA is not adopting Mr. Erga's recommended changes to paragraph (d)(3)(iii).

OSHA is including paragraph (d)(3) in the final rule substantially as proposed. The Agency has, however, made technical changes to the proposed language to clearly distinguish between references to mechanical equipment and references to energized equipment. Several provisions in proposed paragraph (d)(3) used the word “equipment” without specifying whether it meant the mechanical equipment itself or the energized equipment that the mechanical equipment could contact. Although the language was clear from the context, the final rule consistently states which term applies. Also, in two places, proposed paragraph (d)(3) used the term “energized lines” when OSHA meant “energized lines or equipment.” The final rule corrects these oversights. In addition, final paragraph (d)(3)(ii) requires mechanical equipment to maintain “the minimum approach distances, established by the employer under § 1926.960(c)(1)(i),” rather than “the minimum approach distances specified in Table V-2 through Table V-6,” as proposed.

11. Section 1926.960, Working on or Near Exposed Energized Parts

Paragraph (a) specifies the scope of § 1926.960 of the final rule. This section applies to work on exposed live parts and work near enough to such parts to expose the employee to any hazard they present. Many of the provisions in this section have been taken directly from existing § 1910.269(l).

Paragraph (b) contains general requirements for working on or near live parts. OSHA is adopting paragraph (b)(1) in this final rule without change from the proposal. This paragraph requires employees working on, or with, exposed energized lines or parts of equipment (at any voltage), and employees working in areas containing unguarded, uninsulated energized lines or parts of equipment operating at 50 volts or more, to be qualified employees. Without proper training in the construction and operation of the lines and equipment and in the electrical hazards involved, workers performing this type of work are at risk of being electrocuted and also may expose others to injury. In areas containing unguarded live parts energized at 50 volts or more, untrained employees would not be familiar with the practices that are necessary to recognize and avoid contact with these parts.

Commenting on the language in proposed paragraph (b)(1), Mr. Tommy Lucas with TVA questioned what OSHA means by “areas containing unguarded, uninsulated energized lines or parts of equipment” (Ex. 0213). He noted that the “area” at issue could be the room, yard, or building in which the equipment is located.

Paragraph (e) of § 1926.966 of the final rule contains requirements for guarding rooms containing electric supply equipment in substations. Paragraphs (u)(4) and (v)(4) of existing § 1910.269 contain corresponding requirements for maintenance work in substations and generating plants. These provisions generally require live parts operating at 50 volts or more to be in rooms or spaces enclosed within fences, screens, partitions, or walls so as to minimize the possibility that unqualified persons will enter. (See existing § 1910.269(u)(4)(ii) and (v)(4)(ii) and final § 1926.966(e)(2).) These are the areas to which final § 1926.960(b)(1)(ii) (and the corresponding requirement in final § 1910.269(l)(1)(ii)) refer.

The definition of “qualified employee” contains a note to indicate that employees who are undergoing on-the-job training are considered to be qualified if they have demonstrated an ability to perform duties safely and if they are under the immediate supervision of a qualified employee. (See the discussion of this definition under the summary and explanation of final § 1926.968.) Therefore, employees in training, who have demonstrated an ability to perform duties safely and are under the direct supervision of a qualified employee, are permitted to perform the types of work described in paragraph (b)(1). OSHA believes that close supervision of trainees will permit employers to correct errors before they cause accidents. Allowing these workers to perform tasks under workplace conditions also may better prepare the employees to work safely.

Paragraph (b)(2), which is similar to the last sentence of the introductory text of existing § 1910.269(l)(1), is being adopted in the final rule without change from the proposal. This paragraph requires lines and equipment to be considered and treated as energized unless they have been deenergized under the provisions of final § 1926.961. Existing § 1926.950(b)(2) requires electric lines and equipment to be considered energized until determined to be deenergized by tests or other appropriate means. The existing standard does not specify what those appropriate means are. However, even if the line or equipment is tested and found to be deenergized, it may become reenergized through contact with another source of electric energy or by someone reenergizing it at its points of control. So § 1926.961 of the final rule contains requirements for deenergizing electric power transmission and distribution lines and equipment. Unless the procedures contained in that section have been followed, lines and equipment cannot reliably be considered as deenergized.

Two-Person Rule

If an employee working on or near energized electric power transmission or distribution lines or equipment is injured by an electric shock, a second employee will be needed to provide emergency care to the injured employee. As noted under the summary and explanation of final § 1926.951(b), discussed earlier in this section of the preamble, CPR must begin within 4 minutes after an employee loses consciousness as a result of an electric shock. OSHA is requiring the presence of a second employee during certain types of work on or near electric power transmission or distribution lines or equipment to ensure that CPR begins as soon as possible and to help ensure that it starts within the 4-minute timeframe. (Note that final § 1926.951(b) requires at least two people trained in first-aid procedures, including CPR, for field work involving two or more employees at a work location.)

OSHA proposed, in paragraph (b)(3)(i) of § 1926.960, to require the presence of at least two employees during the following types of work:

(1) Installation, removal, or repair of lines energized at more than 600 volts,

(2) Installation, removal, or repair of deenergized lines if an employee is exposed to contact with other parts energized at more than 600 volts,

(3) Installation, removal, or repair of equipment, such as transformers, capacitors, and regulators, if an employee is exposed to contact with parts energized at more than 600 volts,

(4) Work involving the use of mechanical equipment, other than insulated aerial lifts, near parts energized at more than 600 volts, and

(5) Other work that exposes an employee to electrical hazards greater than, or equal to, the electrical hazard posed by these operations.

However, OSHA also proposed exemptions to the two-person requirement to account for work that the Agency believed could be performed safely by a single employee or that must be performed as quickly as possible for public-safety purposes. These exemptions were proposed in paragraph (b)(3)(ii) for the following operations:

(1) Routine circuit switching, if the employer can demonstrate that conditions at the site allow safe performance of this work,

(2) Work performed with live-line tools if the employee is in a position from which he or she is neither within reach of nor exposed to contact with energized parts, and

(3) Emergency repairs to the extent necessary to safeguard the general public.

OSHA based the proposed two-person rule on existing § 1910.269(l)(1)(i) and (l)(1)(ii). OSHA explained in the preamble to the proposal that the first four work operations listed in proposed paragraph (b)(3)(i) were the operations that expose employees to the greatest risk of electric shock, as demonstrated by the 1994 § 1910.269 rulemaking record (70 FR 34861). OSHA proposed the fifth and last category in paragraph (b)(3)(i) to cover additional types of work that pose equal or greater electrical hazards. The preamble to the proposal noted that operations covered under existing § 1910.269(l)(1)(i) are performed during construction, as well as during maintenance (id.). The preamble further noted that construction operations are similar to the operations performed during maintenance work and that the Agency believed that these operations involved the same hazards (id.). For example, using mechanical equipment near a 7200-volt overhead power line during construction of a new line poses hazards that are equivalent to the hazards posed during the use of mechanical equipment to replace a damaged pole on an existing line of the same voltage. Thus, OSHA proposed to extend the existing general industry requirement to construction.

The proposed requirement for at least two employees to be present during certain operations generally would not have applied if the voltage of the energized parts involved was 600 volts or less. In the proposal, OSHA requested comments on whether the final rule should extend the application of the two-person rule to any operations involving work on installations operating at 600 volts or less.

Most commenters opposed changing the proposed rule to require two persons for work on energized lines or parts operating at 600 volts or less. (See, for example, Exs. 0175, 0177, 0209, 0210, 0212, 0219, 0224, 0227.) Some of these rulemaking participants likened this work to the work performed by electricians, for which consensus standards do not require the presence of two people. (See, for example, Exs. 0175, 0209, 0212.) For instance, Ms. Salud Layton with the Virginia, Maryland & Delaware Association of Electric Cooperatives commented:

We do not see the need for a second person on the job site for voltages below 600 Volts. . . . This work is generally easier and less hazardous. Work below 600 volts is generally similar to electricians work. Neither the NEC nor NESC require two employees to be present when working these voltages. Most electricians isolate themselves only thru the use of insulated tools. Utilities commonly exceed that level of protection by requiring the use of Class 0 gloves, in addition to the use of insulated tools. This combination effectively negates the need for a second person. The use of insulated tools with Class 0 gloves helps with protection and also eliminates the need for a second person. [Ex. 0175]

Mr. Allan Oracion with Energy United EMC similarly commented that work at voltages of 600 volts and less is less hazardous than work at higher voltages and that there is little potential for injury during “low-voltage” work as long as other applicable OSHA standards are followed (Ex. 0219). Others argued that a requirement for a second person would be costly and impractical without substantial benefits. (See, for example, Exs. 0177, 0224, 0227.) EEI commented:

EEI submits that there is no need for further precautions to be required for such work, provided that the required insulated cover-up materials are used and personal protective equipment is being worn by employees while working on lines and equipment energized at less than 600 volts. One moderately sized utility forecasts that if it is required to replace existing one-person crews with two-person operations due [to] a revision in this requirement, the cost to the company would be approximately $ 3.8 million annually. OSHA has shown no data supporting a change in the requirements for work at less than 600 volts, including none showing that the benefit, if any, to be derived from unspecified additional precautions would be reasonably related to the cost. [Ex. 0227]

In responding to OSHA's request for comments on whether to require two persons for work at voltages of 600 volts or less, Consumers Energy noted that its accident experience indicated that employees who work alone have a significantly lower injury incidence rate than employees working together (Ex. 0177). Also on this issue, Siemens Power Generation commented that “OSHA should allow the employer to evaluate the hazard and determine which situations meet the need for a two person rule” (Ex. 0163).

Some commenters maintained that a second person should be present when work is performed on equipment energized at 600 volts or less. (See, for example, Exs. 0126, 0161, 0197, 0230.) Mr. Brad Davis of BGE suggested that “the same care should be taken at all voltage levels” (Ex. 0126). Mr. James Junga with Local 223 of the UWUA maintained that two persons should be required for all work on voltages of 480 volts or more, commenting:

Working on secondary voltage at or above 480 volts should also require two qualified persons. I believe this voltage is extremely dangerous and should not be performed by one person [because of] the quick response that is necessary for a person who gets in contact with energized equipment operating at 480 volts. [Ex. 0197]

IBEW recommended that two-person crews always be required for construction work covered by Subpart V and that § 1910.269 be amended to include limitations on the work that can be performed by employees working alone on voltages of 600 volts or less, explaining:

First and foremost, contractor crews, unless assigned only to perform minor maintenance, should never employ a one person crew. Contractor crews are generally performing new construction type work that usually requires several employees on each job. For the purposes of 1926 Subpart V, reference to a one person crew should not be included.

For the purpose of 1910.269 and maintenance work, this section should be clarified. Just because the work involves voltages under 600 volts, there should be limitations as to how much a one person crew can perform. For example, the job requires open wire 1/0 aluminum secondary conductors that were burned down by a tree limb to be reinstalled up a pole. This will include clearing the downed tree parts, splicing the conductors, and sagging and dead-ending the conductors. Some of this work will even be performed de-energized, but exposure to other energized conductors is a possibility. There is no reason to put one person in this situation. [Ex. 0230]

OSHA does not agree with the comments suggesting that work on circuit parts energized at 600 volts and less is safe. When § 1910.269 was promulgated in 1994, the Agency concluded that there was “insufficient evidence in the record as to whether or not it is safe for qualified employees to work alone on live parts energized at” 600 volts or less (59 FR 4381). In developing the subpart V proposal, OSHA examined more recent accident data. Table 5 shows the number of electrocutions for various voltage ranges for the years 1991 through 1998. In the years 1991 to 1994, an average of 3 fatalities occurred per year involving voltages of 600 volts or less. For the years 1995 to 1998, when § 1910.269 was fully in effect, the average dropped slightly to 2.5 fatalities per year.

Table 5—Fatalities by Voltage and Year Back to Top
Year 600 V or less 601 V to 20 kV 20 to 80 kV 100 kV and higher
Source: OSHA database of electric power generation, transmission, and distribution accidents (Ex. 0004). These data include only cases involving electrocution in which the voltage was indicated in the accident abstract.
1991 3 24 2 1
1992 5 24 2 0
1993 3 23 3 1
1994 1 21 2 2
1995 2 22 4 5
1996 4 16 0 2
1997 1 6 3 1
1998 3 13 0 1

These data indicate that, in general, there is a substantial risk of death for employees working on voltages of 600 volts or less. Although it appears as though exposures to live parts energized at 600 volts or less result in relatively few accidents, OSHA concludes that these voltages are capable of killing workers. Consumers Energy's injury rates are not relevant here. The primary purpose of the two-person rule is the prevention of electrocution. Electrocutions are the result of electric shocks, which are a very low probability event, and have no significant effect on injury rates even when they occur in substantial numbers among all employees performing work addressed by the final rule. [172]

In addition, the types of work commonly assigned to crews of more than one employee include line installation and removal and the use of mechanical apparatus to lift or position material (59 FR 4380). This heavy type of work seems more likely to cause sprains and strains, lacerations, contusions, and scratches and abrasions, which form the majority of line worker injuries, than the lighter type of work commonly assigned to employees working alone, such as switching (Ex. 0081). OSHA, therefore, concludes that it is unlikely that the increased incidence rates experienced by Consumers Energy for employees working together are due to an increased incidence of electric shock. OSHA does not believe, and it is illogical to suggest, that an employee working alone is less likely to die as the result of an electric shock than an employee working in an environment in which another employee is available to provide emergency assistance in the event of a shock incident.

OSHA also disagrees with comments arguing that requirements for proper use of electrical protective equipment and other safety-related work practices make safe any work performed on circuit parts energized at 600 volts or less. The use of personal protective equipment and compliance with other OSHA-required work practices may well protect against hazards posed by these voltages; however, in the 1994 § 1910.269 final rule, the Agency adopted the two-person rule to supplement work practice and PPE requirements for certain types of electrical work.

In the rulemaking on the 1994 § 1910.269 final rule, OSHA examined the record to determine what operations posed sufficient residual risk to warrant the presence of a second person. The Agency found that some work involving installations operating at more than 600 volts posed hazards requiring the presence of a second person, but other work was safe enough for an employee to perform alone. In this rulemaking, OSHA is using the same approach to examine the need for a second person at voltages of 600 volts and less. Because there are relatively few accidents involving circuit parts energized at 600 volts or less, the Agency believes it is reasonable to assume, at these voltages, that there are few types of work that cannot be safely performed without the presence of a second person. However, OSHA agrees with IBEW that some low-voltage operations require at least two persons. There are many types of low-voltage work in which employees suffer electric shock, including installation, repair, and testing. Employees have sustained low-voltage electric shocks working on transformers, circuit breakers, and conductors.

Although the Agency is in general agreement with IBEW about the need for two persons for some work involving parts energized at 600 volts or less, OSHA decided not to require the presence of a second person during any specific types of work at such voltages because the record does not specifically indicate which low-voltage operations are hazardous enough to warrant a second-person requirement (except when a worker could contact lines or circuit parts energized at more than 600 volts while working on parts energized at less than 600 volts).

IBEW listed the following factors that limit when a one-person crew performs work: complexity of the tasks, hot-stick versus the rubber-glove work method, voltage-range limitations, limited time spent on a specific task, maintenance work only, and other factors (Ex. 0230). As already noted, with respect to low-voltage work, the union further commented:

Just because the work involves voltages under 600 volts, there should be limitations as to how much a one person crew can perform. For example, the job requires open wire 1/0 aluminum secondary conductors that were burned down by a tree limb to be reinstalled up a pole. This will include clearing the downed tree parts, splicing the conductors, and sagging and dead-ending the conductors. Some of this work will even be performed de-energized, but exposure to other energized conductors is a possibility. There is no reason to put one person in this situation. [Id.].

IBEW's comments do not provide the specificity about hazardous low-voltage tasks that the Agency determined is missing from the record. The purpose of the second-person requirement is to prevent fatalities from electric shock. Thus, the complexity of the job and time spent during the deenergized portion of the work have no bearing on the likelihood of an electric shock occurring and, accordingly, no bearing on whether OSHA should require a second person. Finally, in IBEW's specific example of low-voltage work, a second person is already required under the final rule if the employee is exposed to parts energized at more than 600 volts. [173] The remaining factors listed by IBEW do not appear to be related to the causes of low-voltage electrical accidents in the record. Although OSHA is not adopting any two-person requirements for work exposing employees to contact with lines or circuit parts energized at 600 volts or less, the Agency anticipates that, in certain situations, an employer will need to ensure that at least two trained persons are present for such work to satisfy the employer's obligations under the general duty clause of the OSH Act (Section 5(a)(1)). (See Chapter 4, Section III of OSHA's Field Operations Manual (FOM), CPL 02-00-150 (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=4935), for a discussion of general duty clause violations.)

IBEW pointed to new construction as an example of work necessitating the presence of more than one worker. New construction involves the installation of lines and equipment. Final paragraph (b)(3)(i) requires a second person for installation of lines or equipment if an employee is exposed to contact with other parts energized at more than 600 volts. IBEW's recommendation would also require a second person when an employee is exposed to electric-shock hazards of 600 volts or less and when electric-shock hazards are not present at all. OSHA decided against requiring a second person for lower voltage work for the reasons explained previously.

Mr. Junga recommended that the standard require a second person when “work is to be performed on electrical lines operating at primary voltages” (Ex. 0197). He stated:

If a person working alone gets in contact with energized primary voltages and they are working alone they will die. No one will be there to assist, provide CPR, use an AED, provide first aid or even call for help. [Id.]

OSHA decided not to adopt Mr. Junga's recommendation. The Agency believes that the language adopted in final § 1926.960(b)(3)(i) adequately captures work in which employees are exposed to contact with parts energized at more than 600 volts (primary voltage). The exceptions to the two-person rule, adopted in final § 1926.960(b)(3)(ii), generally are limited to work that does not expose the employee to contact with parts energized at more than 600 volts. [174] OSHA believes that final § 1926.960(b)(3) ensures that employees at a substantial risk of electric shock are protected by the presence of a second person.

Mr. Daniel Shipp with ISEA recommended that OSHA require the presence of a second person whenever fall hazards are present in combination with electric-shock hazards (Ex. 0211). He pointed to risks associated with prolonged suspension in personal fall protection equipment, commenting:

In a recent Safety and Health Information Bulletin, OSHA describes the hazard of prolonged suspension in a full body harness following a fall event. OSHA SHIB 03-24-2004 cites the hazard of orthostatic intolerance, recommending prompt rescue of suspended personnel, especially when other complicating factors may be present. A fall precipitated by exposure to an energized electrical source will require immediate rescue of the incapacitated employee and removal to a safe working level where medical aid can be administered. [Id.]

OSHA recognizes the hazards associated with prolonged suspension in full body harnesses. Therefore, § 1926.502(d)(20), which applies to personal fall arrest equipment, requires employers to provide for prompt rescue of employees in the event of a fall or assure that employees are able to rescue themselves. The Agency believes that final § 1926.960(b)(3) will assure the rescue of employees exposed to electric-shock hazards of more than 600 volts. Also, as explained previously, under Section 5(a)(1) of the OSH Act, employers may need to adopt additional measures beyond the measures required in final subpart V to assure prompt rescue of employees exposed to lower voltage electric-shock hazards. Because hazards associated with suspension in full body harnesses already are covered in § 1926.502(d)(20), OSHA sees no need to address them further in subpart V.

For all of these reasons, OSHA concludes that the evidence in this rulemaking record does not support adding a two-person requirement for any operation that existing § 1910.269(l)(1) permits an employee to perform alone.

Some commenters requested clarification of the relationship between the two-person rule in paragraph (b)(3) and the requirements on minimum approach distances, which are discussed later in this section of the preamble (Exs. 0209, 0230; Tr. 903). Mr. Thomas Frank of Ameren Corporation requested that OSHA revise the language so that the two-person rule applies only when an employee performs work within the applicable minimum approach distance (Ex. 0209). In addition, Mr. Edwin Hill with IBEW suggested that there is confusion in the industry about the applicability of minimum approach distances to employees working alone, commenting:

The current language in 1910.269 is many times misunderstood. [S]ome people believe that a worker can get closer than the minimum approach distance to an energized primary conductor when working alone. This should not be true. . . .

If the standard is going [to] allow a one person crew to work around energized primary conductors of voltages greater than 600 volts, then it should be clear that minimum approach distances must be maintained. In the case of underground distribution equipment, the same detailed restrictions should be explained. Many times during an underground circuit outage, a worker opens the equipment doors and is within the minimum approach distances of the energized cables, both “live front terminations” and “dead front elbows”. The established minimum approach distances should be maintained at all times, in any work situation, to ensure worker safety. If these distances cannot be maintained, rubber insulating cover-up equipment should be installed. [Ex. 0230]

In this regard, paragraph (b)(3) does not excuse compliance with otherwise applicable minimum approach-distance requirements. OSHA previously clarified existing § 1910.269(l)(1), from which it adopted final paragraph (b)(3), explaining that an employee is “exposed to contact” for purposes of § 1910.269(l)(1) when he or she is in a working position from which he or she can reach or take a conductive object within the electrical component of the minimum approach distance. [175] (See the summary and explanation for final § 1926.960(c)(1) later in this section of the preamble for a discussion of the electrical component of the minimum approach distance.) OSHA notes that an employee who is “exposed to contact” with an energized part under this interpretation is still “exposed to contact” with the energized part even when insulation covers the part, the employee, or both. (See final §§ 1910.269(x) and 1926.968 (defining “exposed” as not isolated [176] or guarded; [177] merely covering a conductor or an employee with insulation does not provide guarding or isolation).) [178] The Agency also notes that a second employee may be required when employees can reach or take a conductive object into the electrical component of the minimum approach distance as they are approaching or leaving their final work positions or moving from one work position to another.

Mr. Junga with UWUA Local 223 was concerned that “[e]mployers are pushing for more one-person crews and asking [them] to do more [of] the work that historically has been performed by two or more qualified persons” (Ex. 0197).

In response, OSHA reiterates that the exceptions from the two-person rule, which are specified in final paragraph (b)(3)(ii) and are based on existing § 1910.269(l)(1)(ii), will be interpreted and applied narrowly. Paragraph (b)(3)(ii)(A) permits an employee to work alone to perform routine circuit switching, as long as the employer can demonstrate that conditions at the site allow safe performance of this work. Employees have been injured during switching operations when unusual conditions, such as poor lighting, bad weather, or hazardous configuration or state of repair of the switching equipment, were present (269-Ex. 9-2). If there is poor lighting, for example, the employer may be unable to demonstrate that the operation can be performed safely by one employee; the employer could, however, elect to provide supplemental lighting adequate to make it safe for an employee to work alone.

Paragraph (b)(3)(ii)(B) permits one employee to work alone with live-line tools if the employee is positioned so that he or she is neither within reach of, nor otherwise exposed to contact with, energized parts. Accidents involving hot-stick work have typically occurred only when the employee was close enough to energized parts to be injured—either through direct contact or by contact through conductors being handled (269-Ex. 9-2).

Finally, paragraph (b)(3)(ii)(C) permits one employee to work alone on emergency repairs necessary to safeguard the general public. OSHA will generally consider situations in which there is a downed energized power line, an energized power line on an occupied vehicle, or a service outage to life-support equipment to be emergency situations for which an employee can work alone to safeguard the public. Whether outages to street lights, traffic lights, or homes are emergency situations for purposes of final paragraph (b)(3)(ii)(C) depends on many factors, including the extent and expected duration of the outage and the availability of alternative means of protecting the public, such as the availability of police or other officials to manage or stop traffic at intersections in the absence of working stoplights. Because hospitals and similar patient-care facilities usually have backup generators, outages of circuits supplying these facilities will not generally be deemed to fall under final paragraph (b)(3)(ii)(C).

Minimum Approach Distances

Paragraph (c)(1) in the final rule sets requirements for minimum approach distances. Paragraph (c)(1)(i) requires employers to establish minimum approach distances no less than the distances computed by the equations set in Table V-2 for ac systems or Table V-7 for dc systems. (The equations in Table V-2 in the final rule are described and explained later in this section of the preamble.) Paragraph (c)(1)(iii) of the final rule requires the employer to ensure that no employee approaches, or takes any conductive object, closer to exposed energized parts than the employer's established minimum approach distance, except as permitted in paragraphs (c)(1)(iii)(A), (c)(1)(iii)(B), and (c)(1)(iii)(C) (as explained later in this section of the preamble).

Table V-2 provides equations for the employer to use to compute minimum approach distances under paragraph (c)(1)(i). The equations vary depending on voltage and, for phase-to-phase voltages of more than 72.5 kilovolts, on whether the exposure is phase-to-phase or phase-to-ground.

Paragraph (c)(1)(ii) in the final rule provides that, no later than April 1, 2015, for voltages over 72.5 kilovolts, the employer determine the maximum anticipated per-unit transient overvoltage, phase-to-ground, through an engineering analysis or assume a maximum anticipated per-unit transient overvoltage, phase-to-ground, in accordance with Table V-8. The employer must make any engineering analysis conducted to determine maximum anticipated per-unit transient overvoltage available upon request to affected employees and to the Assistant Secretary or designee for examination and copying. When the employer uses portable protective gaps to control the maximum transient overvoltage, final paragraph (c)(1)(ii) also requires that the value of the maximum anticipated per-unit transient overvoltage, phase-to-ground, must provide for five standard deviations between the statistical sparkover voltage of the gap and the statistical withstand voltage corresponding to the electrical component of the minimum approach distance.

Under Appendix B to existing § 1910.269, employers use engineering analyses to determine any reductions in maximum transient overvoltages below the maximum values listed in Table R-7 and Table R-8. Also under Appendix B to existing § 1910.269, when an employer is using portable protective gaps, it determines minimum approach distances using a specific methodology that provides for five standard deviations between the statistical sparkover voltage of the gap and the statistical withstand voltage corresponding to the electrical component of the minimum approach distance at the worksite. OSHA incorporated both of these performance requirements in final paragraph (c)(1)(ii). To explain terms used in final paragraph (c)(1)(ii), OSHA also added definitions of “statistical sparkover voltage” and “statistical withstand voltage” to final § 1926.968. Statistical sparkover voltage is a transient overvoltage level that produces a 97.72-percent probability of sparkover (in other words, two standard deviations above the voltage at which there is a 50-percent probability of sparkover). Statistical withstand voltage is a transient overvoltage level that produces a 0.14-percent probability of sparkover (in other words, three standard deviations below the voltage at which there is a 50-percent probability of sparkover). OSHA based both definitions on definitions in IEEE Std 516-2009 (Ex. 0532).

Table V-7 contains minimum approach distances for dc systems. In Table V-7, the applicable minimum approach distance depends on the maximum anticipated per-unit transient overvoltage and the maximum line-to-ground voltage. In accordance with final paragraph (c)(1)(ii) and Table V-8, an employer using Table V-7 must determine the maximum anticipated per-unit transient overvoltage through an engineering analysis that is made available upon request to affected employees and to the Assistant Secretary or designee for examination and copying or must assume a maximum per-unit transient overvoltage of 1.8.

Paragraph (c)(1)(i) makes it clear that the required minimum approach distances are based on engineering principles that OSHA adopted in the final rule. The Agency is adopting the equations and the engineering principles behind the minimum approach distances rather than just setting distances as it did when it promulgated § 1910.269 in 1994. This paragraph also ensures that the minimum approach distance maintained by each employee is appropriate for the workplace rather than for the industry in general. OSHA believes that this approach will better protect each employee than existing § 1910.269 and the proposed rule.

The minimum approach distances set by Table V-2 for phase-to-phase system voltages of 72.5 kilovolts and less do not vary based on worksite conditions provided the altitude is 900 meters (3,000 feet) or less above sea level. Therefore, OSHA calculated the minimum approach distances for these voltages and listed them in Table V-5 in the final rule. Note 1 in Table V-2 provides that, for voltages up to 72.5 kilovolts, employers may use the precalculated minimum approach distances in Table V-5 provided the worksite is at an elevation of 900 meters or less.

Minimum approach distances for phase-to-phase system voltages of more than 72.5 kilovolts will vary depending on conditions present at the worksite and possibly the work practices used by employees. Parameter C in the equation for these voltages varies depending on whether an insulated tool or conductive object is in the approach distance (gap) between the employee and the energized part (if the employee is at ground potential or at the potential of a different energized part) or between the employee and ground (if the employee is at the potential of the energized part). For phase-to-ground exposures, if the employer can demonstrate that there is only air in this gap, then C equals 0.01. For phase-to-phase exposures, if the employer can demonstrate that no insulated tool spans the gap and that no large conductive object is in the gap, then C equals 0.01. In all other cases, C equals 0.011. When an employee is climbing on a structure or performing live-line barehand work, OSHA expects that there normally will only be air present in the gap, and the equation will produce a smaller minimum approach distance than if the employee is using an insulated tool to work on energized parts. [179]

The saturation factor, a, in the equation for system voltages of more than 72.5 kilovolts varies depending on whether the exposure is phase-to-ground or phase-to-phase. For phase-to-ground exposures, the saturation factor will be reduced slightly, resulting in smaller minimum approach distances. As explained in Note 3 in Table V-2, unless the employer can demonstrate that no insulated tool spans the gap and that no large conductive object is in the gap, the employer must calculate the saturation factor using the phase-to-ground equations (with the peak voltage for phase-to-phase exposures), even for phase-to-phase exposures.

Finally, T [180] in the equation for phase-to-phase system voltages of more than 72.5 kilovolts represents the maximum phase-to-ground anticipated per-unit transient overvoltage, which can vary from worksite to worksite.

For voltages over 72.5 kilovolts, employers may use the minimum approach distances in the tables in Appendix B provided the worksite is at an elevation of 900 meters or less. The tables in Appendix B contain minimum approach distances for various values of T. In accordance with final paragraph (c)(1)(ii), the employer must determine T through engineering analysis or use the maximum T from Table V-8.

For phase-to-phase system voltages of more than 5,000 volts, the altitude-correction factor applies when the worksite is at an elevation of more than 900 meters above sea level. When the worksite is at these higher elevations, the employer must use the appropriate altitude correction factor from Table V-4 when calculating minimum approach distances. Table V-2 explains how to apply the altitude correction factors in computing minimum approach distances.

As noted earlier, paragraph (c)(1)(i) requires employers to establish minimum approach distances. Because the elevation and maximum transient overvoltage may vary from worksite to worksite, each minimum approach distance established by the employer must be appropriate for the worksite involved. Employers can avoid establishing separate distances for every worksite by using worst-case values for elevation and T or by grouping worksites by ranges for elevation and T.

Paragraph (c)(1) of proposed § 1926.960 would have required employers to ensure that employees maintain minimum approach distances from exposed energized parts. Proposed Table V-2 through Table V-6 specified the minimum approach distances. This proposed provision was borrowed from existing § 1910.269(l)(2), although, as described later, OSHA proposed to make minor changes to the minimum approach distances listed in the existing § 1910.269 tables.

Electric power systems operate at a given nominal voltage. However, the actual voltage on a power line varies above and below that nominal voltage. For brief periods, the instantaneous voltage on a line can be 3 or more times its nominal value (Ex. 0532).

The safe minimum approach distance assures that an electric arc will not form, even under the most severe transient overvoltages that can occur on a system and even when the employee makes errors in maintaining the minimum approach distance. To determine what this distance is for a specific voltage, OSHA must first determine the size of the air gap that must be present to prevent arc-over during the most severe overvoltage that can reasonably be expected to occur on the system. This gap is the electrical component of the minimum approach distance. To determine the minimum safe approach distance, OSHA must add extra distance to account for ergonomic considerations (that is, human error).

The electrical component depends on five factors:

(1) The maximum voltage,

(2) The wave shape of this voltage,

(3) The configuration of the “electrodes” forming the end points of the gap,

(4) The insulating medium in the gap, and

(5) The atmospheric conditions.

In existing § 1910.269, and in the proposal for this rulemaking, OSHA borrowed its approach for setting minimum approach distances from a consensus standard, namely the NESC. OSHA based the minimum approach distances in existing § 1910.269 on the 1993 edition of the NESC. In this rulemaking, OSHA proposed to adopt slightly revised minimum approach distances for both § 1910.269 and subpart V; the revised minimum approach distances in the proposal were drawn from the updated, 2002 edition of the NESC.

To develop the minimum approach distance tables for the 1993 standard, NESC Subcommittee 8 adopted the following principles:

  • ANSI/IEEE Std 516 was to be the electrical basis of the NESC Rules for approach distances for alternating- and direct-current voltages above 72.5 kilovolts. [181] Distances for lower voltages were to be based on ANSI/IEEE Std 4. The application of ANSI/IEEE Std 516 included the formula used by that standard to derive electrical clearance distances.
  • Altitude correction factors were to be in accordance with ANSI/IEEE Std 516.
  • The maximum design transient-overvoltage data to be used in the development of the basic approach distance tables were:
  • 3.0 per unit for voltages of 362 kilovolts and less
  • 2.4 per unit for 500 to 550 kilovolts
  • 2.0 per unit for 765 to 800 kilovolts
  • All phase-to-phase values were to be calculated from the EPRI Transmission Line Reference Book for 115 to 138 kilovolts.
  • An ergonomic-movement factor (inadvertent component) that accounted for errors in judging the approach distance was to be added to all basic electrical approach distances (electrical component) for all voltage ranges. A distance of 0.31 meters (1 foot) was to be added to all voltage ranges for the ergonomic component. An additional 0.3 meters (1 foot) was to be added to voltage ranges below 72.6 kilovolts.
  • The voltage reduction allowance for controlled maximum transient overvoltage was to be such that the minimum allowable approach distance was not less than the approach distance specified for the highest voltage listed for the given range.
  • The transient overvoltage tables were to be applied only at voltage ranges inclusive of 72.6 to 800 kilovolts. All tables were to be established using the higher voltage of each separate voltage range.

After publication of OSHA's proposed rule in 2005, the IEEE technical committee responsible for revising Standard 516 identified what in its view was an error in calculating the minimum approach distances in the IEEE standard that potentially affected the validity of the minimum approach distances in the 2002 NESC and OSHA's proposed rule. IEEE Std 516 was revised in 2009 to address the issue identified by the technical committee. (The error identified by the IEEE committee is discussed, at length, later in this section of the preamble.) In light of the IEEE revision process, OSHA twice reopened the record on subpart V, first in October 2008 and again in September 2009, to solicit additional comments on minimum approach distances. (See 73 FR 62942, Oct. 22, 2008; 74 FR 46958, Sept. 14, 2009.) The Agency requested information on whether there was an error in the method OSHA used to calculate the proposed minimum approach distances and on what basis OSHA should set minimum approach distances. A public hearing was held on these issues in October 2009.

In response to the issues OSHA raised about the minimum approach distances, EEI, IBEW, and the NESC urged the Agency to delay issuing revised minimum approach distances until after IEEE approved the next update of the NESC in 2012. [182] (See, for example, Exs. 0545.1, 0551.1, 0552.1; Tr2. 40-41, 72-75, 151-154.) The commenters maintained that, in writing the respective standards, the NESC subcommittees give greater weight to the practical effects of its rules than does the IEEE subcommittee responsible for IEEE Std 516. The commenters also maintained that an OSHA standard setting minimum approach distances that turn out to be different from the distances in the 2012 NESC could cause confusion.

The chair of Subcommittee 8 of the NESC, Mr. James Tomaseski, testified that the NESC serves as the authority on safety requirements for electric power systems, that (at the time of his testimony) the NESC had yet to act on the revised methodologies in IEEE Std 516-2009 for calculating minimum approach distances, and that NESC Subcommittee 8 would transcribe the engineering information contained in the 2009 IEEE 516 standard into a user-friendly format (Tr2. 34-41). [183] He stated:

NESC's Subcommittee 8 has the task of trying to make sense of and keep up with this evolving problem [of adopting adequate minimum approach distances]. Simply put, the IEEE 516 MAD Tables as they are published today in that [2009] guide are confusing.

This takes us to the point what Subcommittee 8 recommends to OSHA for this Rule making. The agency should realize this is a difficult issue, not only for the Technical Subcommittee responsible for the different Codes, but most importantly for the users of the Rules. The MAD concept has been around for a long time. Even though new engineering principles continue to be developed, industry performance associated with these rules [has] to be considered.

* * * * *

When OSHA revise[s] this Rule, these changes are somewhat permanent. This rule will probably not be revised again for a long time. Subcommittee 8 wants to do their part to make sure the MAD [c]oncepts get fixed correctly this time. The NESC Subcommittee 8 recommends that OSHA leave the record open until the time the Subcommittee has the opportunity to review public comments as to what MAD values should be in the NESC. [Tr2. 39-41]

IBEW also maintained that the OSHA standard should be consistent with the 2012 NESC (Tr2. 151-152). Testifying on behalf of IBEW, Mr. Donald Hartley stated:

The IBEW believes the responsibility for developing [minimum approach distances resides with] the NESC. Technical Subcommittee 8 on Work Rules, the body responsible for writing Part IV of the NESC where MAD Rules and Tables are located, should [set the rules] for OSHA to follow.

The NESC is adopted by many states in the U.S. The U.S. [Rural] Electric Service requires member cooperatives to follow the NESC if they receive government loans. Many public power utilities, municipalities are not covered by OSHA. The NESC in these instances becomes the rule to follow.

* * * * *

The IBEW strongly recommends that OSHA keep this record open until Subcommittee 8 has the opportunity to review public comment on this issue and develop final Code Language on the MAD principles and Rules. [Id.]

EEI argued that, if OSHA failed to follow NESC action on minimum approach distances, the final rule could differ from the 2012 NESC and create confusion for the electric utility industry (Ex. 0545.1). Mr. Stephen Yohay, counsel for EEI, described the potential for confusion over differing standards as follows:

The other question you asked is whether [there is] confusion in the industry [resulting from the fact that there are currently differences between the minimum approach distances in the exist