[Federal Register Volume 79, Number 70 (Friday, April 11, 2014)]
[Rules and Regulations]
[Pages 20315-20743]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-29579]



[[Page 20315]]

Vol. 79

Friday,

No. 70

April 11, 2014

Part II





Department of Labor





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Occupational Safety and Health Administration





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29 CFR Parts 1910 and 1926





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

Federal Register / Vol. 79 , No. 70 / Friday, April 11, 2014 / Rules 
and Regulations

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1910 and 1926

[Docket No. OSHA-S215-2006-0063]
RIN 1218-AB67


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

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

ACTION: Final rule.

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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 Those provisions are now out of 
date and inconsistent with the more recently promulgated general 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.

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

ADDRESSES: 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:
    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:

Table of Contents

    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 (Sec. Sec.  1926.950(c) and 
1910.269(a)(3))
    B. Revised Provisions on the Use of Fall Protection Systems 
(Sec. Sec.  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 
(Sec. Sec.  1926.960(c)(1) and 1910.269(l)(3))
    D. New Requirements for Protecting Employees From the Hazards 
Associated with Electric Arcs (Sec. Sec.  1926.960(g) and 
1910.269(l)(8))
XIII. Authority and Signature

Executive Summary

A. Introduction

    OSHA last issued rules for the construction of transmission and

[[Page 20317]]

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

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

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

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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 
Sec.  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

A. Acronyms and Abbreviations

    The following acronyms have been used throughout this document:

ACCSH Advisory Committee on Construction Safety and Health
AED automated external defibrillator
AGC Associated General Contractors of America
ALJ administrative law judge
ANSI American National Standards Institute
APPA American Public Power Association
ASTM American Society for Testing and Materials
BLS Bureau of Labor Statistics
BPA Bonneville Power Administration
CFOI Census of Fatal Occupational Injuries
CPL 02-01-038 the compliance directive for existing Sec.  1910.269, 
CPL 02-01-038, ``Enforcement of the Electric Power Generation, 
Transmission, and Distribution Standard'' (June 18, 2003, originally 
CPL 2-1.38D)
CPR cardiopulmonary resuscitation
CRIEPI Central Research Institute of Electric Power Industry
EEI Edison Electric Institute
EIA Energy Information Administration
E.O. Executive Order
EPRI Electric Power Research Institute
ERG Eastern Research Group, Inc.
ESCI Electrical Safety Consultants International
Ex. Exhibit \1\
FCC Federal Communications Commission
FEA Final Economic Analysis and Regulatory Flexibility Analysis
FR flame-resistant \2\

[[Page 20320]]

FRA flame-resistant apparel
FRECC Farmers Rural Electric Cooperative Corporation
FRFA Final Regulatory Flexibility Analysis
FTE full-time equivalent [employee]
IBEW International Brotherhood of Electrical Workers
IEC International Electrotechnical Commission
IEEE Institute of Electrical and Electronic Engineers
IMIS OSHA's Integrated Management Information System
IRFA Initial Regulatory Flexibility Analysis
IRS Internal Revenue Service
ISEA International Safety Equipment Association
MAD minimum approach distance
MAID minimum air-insulation distance
MCC motor control center
MTID minimum tool-insulation distance
NA not applicable
NAHB National Association of Home Builders
NAICS North American Industry Classification System
NAM National Association of Manufacturers
NECA National Electrical Contractors Association
NEPA National Environmental Policy Act of 1969
NESC National Electrical Safety Code
NFPA National Fire Protection Association
NIOSH National Institute for Occupational Safety and Health
NRECA National Rural Electric Cooperative Association
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OSH Act (or the Act) Occupational Safety and Health Act of 1970
OSHA Occupational Safety and Health Administration
OSHRC Occupational Safety and Health Review Commission
PPE personal protective equipment
PPG portable protective gap
PRIA Preliminary Regulatory Impact Analysis and Initial Regulatory 
Flexibility Analysis
PSM process safety management
p.u. per unit
RIN regulatory information number
SBA Small Business Administration
SBAR Panel (or Panel) Small Business Advocacy Review Panel
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    \1\ Exhibits are posted on http://www.regulations.gov and are 
accessible at OSHA's Docket Office, Docket No. OSHA-S215-2006-0063, 
U.S. Department of Labor, 200 Constitution Avenue NW., Room N2625, 
Washington, DC 20210; telephone (202) 693-2350. (OSHA's TTY number 
is (877) 889-5627.) OSHA Docket Office hours of operation are 8:15 
a.m. to 4:45 p.m., E.T.
    Throughout this notice exhibit numbers are referred to in the 
form Ex. XXXX, where XXXX is the last four digits of the full 
document number on http://www.regulations.gov. For example, document 
number OSHA-S215-2006-0063-0001 is referred to as Ex. 0001. Exhibit 
numbers referred to as ``269-Ex.'' are from the record for the 1994 
final rule on Sec. Sec.  1910.137 and 1910.269 and are contained in 
Docket Number OSHA-S015-2006-0645.
    \2\ In citations, such as 70 FR 34822, ``FR'' means ``Federal 
Register.''
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SBREFA Small Business Regulatory Enforcement Fairness Act
SER small entity representative
SIC Standard 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
TCIA Tree Care Industry Association
the 1994 Sec.  1910.269 rulemaking the rulemaking in which existing 
Sec. Sec.  1910.137 and Sec.  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 rule \3\
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    \3\ Exhibit numbers 0509 through 0515.
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Tr2. Transcript page number or numbers from the October 28, 2009, 
public hearing on the limited reopening of the proposed rule \4\
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    \4\ Exhibit number 0571.
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TVA Tennessee Valley Authority
ULCC Utility Line Clearance Coalition
USDA United States Department of Agriculture
UWUA Utility Workers Union of America
WCRI Worker 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 Sec.  1910.269, OSHA has also relied on the record 
developed during the earlier rulemaking for that general industry 
standard (the 1994 Sec.  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 Sec.  1910.137 
and Sec.  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\
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    \5\ Documents in the records, with the exception of copyrighted 
material such as ASTM standards, are also generally available 
electronically at www.regulations.gov. The subpart V and 1994 Sec.  
1910.269 dockets are available at: http://www.regulations.gov/#!docketDetail;dct=FR+PR+N+O+SR+PS;rpp=250;po=0;D=OSHA-S215-2006-
0063 and http://www.regulations.gov/#!docketDetail;dct=FR+PR+N+O+SR+PS;rpp=250;po=0;D=OSHA-S015-2006-
0645, respectively.
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    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

[[Page 20321]]

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 Sec.  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 Sec.  
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\
---------------------------------------------------------------------------

    \6\ `` Analytical Support and Data Gathering for a Preliminary 
Economic Analysis for Proposed Standards for Work on Electric Power 
Generation, Transmission, and Distribution Lines and Equipment (29 
CFR 1910.269 and 29 CFR 1926--Subpart V),'' 2005, CONSAD Research 
Corp. (Ex. 0080).
---------------------------------------------------------------------------

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

[[Page 20322]]

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\
---------------------------------------------------------------------------

    \7\ In industries in which worker exposure is less frequent than 
in other industries, the number of injuries or fatalities associated 
with the hazards covered by the final rule will most likely be less 
than that of industries that have a higher rate of exposure. But 
even for industries with low, negligible, or even no reported 
injuries or fatalities, the workers exposed to the hazards covered 
by the final rule face a ``significant risk of material harm.'' As 
such, there is a significant risk to any worker of any industry 
exposed to the hazards covered by the final rule. See, for example, 
Lockout/Tagout II, 37 F.3d at 670 (``even in industries with low or 
negligible overall accident rates, the workers who engage in the 
operations covered by the standard face a `significant risk of 
material harm'''); Associated Builders and Contractors, Inc. v. 
Brock, 862 F.2d 63, 67-68 (3d Cir. 1988) (where the Court ordered 
OSHA to expand its rule to cover additional industries, there was no 
need to make separate significant risk findings for those industries 
because ``the significant risk requirement must of necessity be 
satisfied by a general finding concerning all potentially covered 
industries'').
---------------------------------------------------------------------------

    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 Sec.  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

[[Page 20323]]

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.
---------------------------------------------------------------------------

    \8\ Indeed, disputes over how to define hazards are commonplace 
in enforcement cases under the general duty clause of the OSH Act. 
See, for example, Secretary of Labor v. Arcadian Corp., 20 BNA OSHC 
2001 (OSHRC, Sept. 30, 2004); Secretary of Labor v. Inland Steel 
Co., 12 BNA OSHC 1968 (OSHRC, July 30, 1986); Secretary of Labor v. 
Pelron Corp., 12 BNA OSHC 1833 (OSHRC, June 2, 1986).
---------------------------------------------------------------------------

    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

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 Sec.  1910.12(d) and existing Sec.  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 Sec.  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, Sec.  1910.269 was also based on the latest 
technology and national consensus standards.
    OSHA revised its Electrical Protective Equipment Standard in Sec.  
1910.137 at the same time Sec.  1910.269 was promulgated. The revision 
of Sec.  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

[[Page 20324]]

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 Sec.  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, Sec.  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 Sec.  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\
---------------------------------------------------------------------------

    \9\ ACCSH transcript for May 18, 2004, pages 224-239. This 
document can be viewed in the OSHA Docket Office or online at http://www.osha.gov.
---------------------------------------------------------------------------

    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

[[Page 20325]]

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 distances \10\ 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 Sec.  1926.960(c)(1), in Section V, Summary 
and Explanation of the Final Rule, later in this preamble.)
---------------------------------------------------------------------------

    \10\ The basic equation for computing minimum approach distances 
in the final rule is the same as the one used in existing Sec.  
1910.269 and in the draft proposal submitted to ACCSH.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  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

    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

    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

[[Page 20326]]

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 Sec.  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 Sec. Sec.  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\
---------------------------------------------------------------------------

    \11\ Similar data are available at http://www.bls.gov/iif/oshcfoi1.htm#2009 for each year back to 2003.
---------------------------------------------------------------------------

    The use of properly designed, manufactured, and cared-for 
electrical protective equipment helps protect employees from this risk. 
Therefore, OSHA is issuing final Sec.  1926.97, Electrical protective 
equipment, which addresses the design, manufacture, and proper care of 
electrical protective equipment. In addition, OSHA is revising existing 
Sec.  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 Sec.  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 Sec.  
1926.97, should apply, not only to electric power transmission and 
distribution work, but to all construction work. Therefore, OSHA is 
issuing new Sec.  1926.97, Electrical protective equipment, which 
applies to all construction work.
    Existing Sec.  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  J6.7-1935 (R1971)
 apparatus.
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 Sec.  
1926.951(a)(1).\12\
---------------------------------------------------------------------------

    \12\ The relevant ASTM standards are in the record as Exs. 0048, 
0049, 0050, 0051, 0066, 0067, 0068, 0069, 0070. In several cases, 
the version of the consensus standard in the record is older than 
the version listed in the preamble. However, OSHA based final 
Sec. Sec.  1926.97 and 1910.137 only on the ASTM documents and other 
data in the record. The preamble lists editions of the consensus 
standards not in the record because OSHA evaluated them for 
consistency with the final rule. OSHA determined that these later 
ASTM standards conform to the requirements of final Sec. Sec.  
1926.97 and 1910.137. See the discussion of the notes following 
paragraphs (a)(3)(ii)(B) and (c)(2)(ix) for the significance of this 
determination.
---------------------------------------------------------------------------

    OSHA derived proposed new Sec.  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 Sec.  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

[[Page 20327]]

standards. Final Sec.  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 
Sec.  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 
Sec.  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 Sec.  
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 Sec.  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 Sec.  
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 Sec.  1926.97 and Sec.  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 Sec.  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 Sec.  1926.97.\13\
---------------------------------------------------------------------------

    \13\ De minimis conditions are conditions in which an employer 
implemented a measure different from one specified in a standard, 
but that has no direct or immediate relationship to safety or 
health. The Agency does not issue citations or penalties for de 
minimis conditions, nor is the employer required to bring the 
workplace into compliance, that is, there are no abatement 
requirements. Pursuant to OSHA's de minimis policy, which is set 
forth in OSHA Instruction CPL 02-00-148 (``Field Operations 
Manual''), a de minimis condition exists when an employer complies 
with a consensus standard rather than with the standard in effect at 
the time of the inspection and the employer's action clearly 
provides equivalent or more effective employee protection.
---------------------------------------------------------------------------

    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 Sec.  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\
---------------------------------------------------------------------------

    \14\ Note that this approach applies to the use of any consensus 
standard referenced in the final rule. Moreover, the same principles 
described with respect to subsequent versions of the consensus 
standards also apply to earlier versions of the consensus standards.
---------------------------------------------------------------------------

    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 Sec.  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

[[Page 20328]]

about applicable compliance obligations specified by the final rule.
---------------------------------------------------------------------------

    \15\ For instance, NFPA 70E, Standard for Electrical Safety in 
the Workplace, one of the documents listed in Appendix G to Subpart 
V, described later in this section of the preamble, is available at 
http://www.nfpa.org/aboutthecodes/AboutTheCodes.asp?DocNum=70E&cookie_test=1. Select either the 2009 
or 2012 edition from the drop-down box labeled ``Edition to 
display'' and click the link labeled ``View [selected] edition 
online.'' Note that registration with NFPA is required to view the 
standard.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \16\ When a question arises as to the validity of a test method 
a laboratory is using, OSHA will investigate the validity of the 
method.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  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 Sec.  1926.97 were based on existing 
Sec.  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.
---------------------------------------------------------------------------

    \17\ The language in proposed paragraph (a) has been editorially 
revised in the final rule to make it clearer that the paragraph 
applies to rubber insulating equipment only.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \18\ Flexing can cause different types of stress on rubber, 
including tensile, compression, and shear stress. Rubber insulating 
line hose and covers are subject to the greatest amount of flexing 
while employees are installing them on an energized part. However, 
employees install this equipment either with live-line tools or 
while wearing rubber insulating gloves and sleeves. Thus, when seam 
separation is likely, the employee is protected by other means.
    Rubber insulating matting is generally laid on the floor and is 
not subject to the type of flexing that is likely to cause 
separation.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \19\ The maximum use voltages for individual classes of 
equipment are provided in Table E-4, discussed under the summary and 
explanation for paragraph (c)(2)(i), infra.
---------------------------------------------------------------------------

    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

[[Page 20329]]

record demonstrates that most of the workers covered by Sec.  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 
Sec. Sec.  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 Sec.  1910.333 contains a 
similar requirement for workers performing other types of general 
industry electrical work. Paragraph (b)(2) of Sec.  1926.21 contains 
training requirements for workers performing construction work. 
Although this requirement is more general than the training requirement 
in this final standard, Sec.  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 Sec.  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.
---------------------------------------------------------------------------

    \20\ The cuff area is the area near the reinforced edge of the 
glove.
---------------------------------------------------------------------------

    Paragraph (a)(2) of final Sec.  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.
---------------------------------------------------------------------------

    \21\ Existing Sec.  1910.137 contains Table I-2 through Table I-
6, and the proposal did not redesignate those tables. The final rule 
revises all of Sec.  1910.137 so as to redesignate the tables, 
starting with Table I-1. Consequently, existing Table I-2 
corresponds to Table I-1 in the final rule, existing Table I-3 
corresponds to Table I-2 in the final rule, existing Table I-4 
corresponds to Table I-3 in the final rule, existing Table I-5 
corresponds to Table I-4 in the final rule, and existing Table I-6 
corresponds to Table I-5 in the final rule.
---------------------------------------------------------------------------

    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 Sec.  
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.

[[Page 20330]]

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\
---------------------------------------------------------------------------

    \22\ Atmospheric conditions might invalidate the test results at 
the clearances specified in Table E-3. For instance, under certain 
atmospheric conditions, the air between the water inside and outside 
the glove, which forms the two electrodes, might flash over, and 
thereby invalidate the test results and damage the glove. As another 
example, some atmospheric conditions can lead to excessive corona 
and the formation of ozone that ventilation cannot sufficiently 
dissipate. To account for these atmospheric conditions, final Table 
E-3 contains a note that provides that, if atmospheric conditions 
make these clearances impractical, the clearances may be increased 
by a maximum of 25 mm. (1 in.).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \23\ ASTM F819-10, Standard Terminology Relating to Electrical 
Protective Equipment for Workers, which is listed in the note 
following paragraph (a)(3)(ii)(B), defines ``ozone cutting and 
checking'' as: ``Cracks produced by ozone in a material under 
mechanical stress.''
---------------------------------------------------------------------------

    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 Sec.  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

[[Page 20331]]

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 Sec.  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 Sec.  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 Sec.  1926.97(a).\24\
---------------------------------------------------------------------------

    \24\ See the extended discussion, earlier in this section of the 
preamble, on how to address future revisions of the listed consensus 
standards, as well as earlier versions of the listed consensus 
standards.
---------------------------------------------------------------------------

    Paragraph (b). Paragraph (b) of final Sec.  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 Sec.  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 Sec.  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-

[[Page 20332]]

to-phase, with a 3.0 per unit maximum transient overvoltage.\25\
---------------------------------------------------------------------------

    \25\ The maximum impulse voltage for this equipment is 20 
kilovolts times 1.3, or 26 kilovolts. The maximum phase-to-ground 
use voltage for the equipment is 26 kilovolts divided by the maximum 
transient overvoltage in kilovolts, or 8.7 kilovolts. The phase-to-
phase circuit voltage for this exposure is 8.7 kilovolts times 
[radic]3, or 15 kilovolts.
---------------------------------------------------------------------------

    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. 0532 \26\]
---------------------------------------------------------------------------

    \26\ This is the definition of ``overvoltage,'' for which 
``transient overvoltage'' is a synonym.

    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 Sec.  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 F968 \27\ (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.
---------------------------------------------------------------------------

    \27\ The proposal noted that there were two ASTM standards 
addressing plastic guard equipment, F712, which contained test 
methods, and F968, which contained specifications (70 FR 34829-
34830, June 15, 2005). ASTM has since combined those two standards 
into a single one, F712-06 (2011), which contains both test methods 
and specifications for plastic guard equipment.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \28\ Table 2 in ASTM F711-02 sets maximum leakage current for 
different types of rod and tube used in live-line tools (Ex. 0053). 
The highest value in this table is 14 microamperes. A note to the 
table provides that, for special applications, the maximum 
acceptable leakage current is twice the value listed in the table, 
so that 28 microamperes is the highest acceptable leakage current. 
The voltage applied during this test is 50 kilovolts. Thus, the 
maximum current is less than 1 microampere per kilovolt.
    \29\ It should be noted that the equipment current requirement 
contained in paragraph (b)(2) does not apply to rubber insulating 
equipment, which is covered by paragraph (a).
---------------------------------------------------------------------------

    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

[[Page 20333]]

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 Sec.  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 Sec.  
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 Sec.  1926.97(a), the in-service care of this 
matting is not covered by any ASTM standard or by existing Sec.  
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 Sec.  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 Sec.  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 [radic]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\
---------------------------------------------------------------------------

    \30\ Depending on the configuration of the system, an employee 
could be isolated from two of the phases on the pole by approaching 
one of the outside phase conductors and working on it from a 
position where there is no possibility of coming too close to the 
other two phase conductors. Isolation of the employee may be 
impossible for some line configurations.
    \31\ It should be noted that, until the multiphase exposure has 
actually been removed, the phase-to-phase voltage remains the 
maximum use voltage. Thus, the maximum use voltage of any insulation 
used to ``remove phase-to-phase exposure'' must be greater than or 
equal to the phase-to-phase voltage on the system.
---------------------------------------------------------------------------

    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

[[Page 20334]]

comments generally supported the note to proposed Table E-4 and 
previously codified in Table I-5 in existing Sec.  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 
Sec.  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

[[Page 20335]]

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.
---------------------------------------------------------------------------

    \32\ ASTM F496-08 contains an identical requirement in Section 
8.7.4.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \33\ The thickness of the rubber increases with increasing class 
of rubber insulating glove (for example, from Class 0 to Class 1).
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  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),

[[Page 20336]]

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 Sec.  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.
---------------------------------------------------------------------------

    \34\ Existing Sec.  1910.137(b)(2)(vii)(B) only requires gloves 
to be tested before being used on a higher voltage. The final rule 
adopts the proposed revision to this requirement so that rubber 
insulating gloves used without protectors must be tested before 
reuse after any use without protector gloves. For the purposes of 
Sec. Sec.  1926.97(c)(2)(vii)(D) and 1910.137(c)(2)(vii)(D), 
``reuse'' means any use after the limited use permitted without 
protector gloves.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \35\ Both the 1990 edition of ASTM D1050 referenced in the note 
to existing Sec.  1910.137(b)(2)(ix) and the 2005 edition referenced 
in the note to final Sec.  1926.97(c)(2)(ix) contain test methods 
for rubber insulating line hose.
    \36\ The insulating value of rubber insulating equipment is 
suspect when the inspection required by final paragraph (c)(2)(ii) 
leads to questions about the quality of the insulation or uncovers 
any damage to the insulating equipment.
---------------------------------------------------------------------------

    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 Sec.  
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.

[[Page 20337]]

    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 Sec.  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 Sec.  
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 Sec.  1926.950 is adopted without change from proposed Sec.  
1926.950(a)(1) and sets the scope of revised subpart V. This paragraph 
has been taken largely from existing Sec.  1926.950(a) and (a)(1). 
Subpart V applies to the construction of electric power transmission 
and distribution installations. In accordance with existing Sec.  
1926.950(a)(1) and Sec.  1910.12(d), paragraph (a)(1)(i) of final Sec.  
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 Sec.  1910.269 and subpart V. However, many 
commenters urged the Agency to combine Sec.  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 Sec.  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 Sec.  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 Sec.  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, Sec.  1910.269 and 
subpart V reference the general industry and construction standards on 
medical services and first aid in Sec. Sec.  1910.151 and 1926.50, 
respectively. These general industry and construction standards set 
slightly different requirements for

[[Page 20338]]

medical services and first aid. Similarly, Sec.  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 Sec.  1926.950(a)(1)(i) to 
indicate that an employer that complies with Sec.  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 Sec.  1910.269 will not be 
sufficient. The new note to Sec.  1926.950(a)(1) should allay the 
concerns of commenters about potentially inconsistent interpretations 
of identical requirements in Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec. Sec.  1910.137 and 1926.97, or simply reference 
Sec.  1910.137, instead of creating a new section on electrical 
protective equipment in the construction standards (Ex. 0186).
    OSHA rejects this request. New Sec.  1926.97 applies to all of 
construction, not just electric power generation, transmission, and 
distribution work. Final Sec.  1926.97 imposes no additional burden on 
employers beyond what would apply under Sec.  1910.137. Duplicating the 
Sec.  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 Sec.  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 Sec.  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:
---------------------------------------------------------------------------

    \37\ This document is available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21569.

    [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

[[Page 20339]]

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 Sec.  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 Sec.  1926.950(a)(1) is, therefore, 
being carried forward into the final rule without change.
---------------------------------------------------------------------------

    \38\ The Knobbs and Tindell letters are available at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24789 and http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22687, 
respectively.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  1910.269(a)(1)(i)(D) states that ``[Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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).)
---------------------------------------------------------------------------

    \39\ See the letter of interpretation dated June 9, 1999, to Mr. 
G. William Doody, which is available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22749.
---------------------------------------------------------------------------

    OSHA does not believe that the final rule will impose substantial 
additional costs on the insurance industry. Existing Sec.  1910.269 
currently covers the vast majority of insurance inspections on electric 
power installations. Of the new provisions this final rule is adding to 
Sec.  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 
Sec. Sec.  1910.269(l) and 1926.960).\40\
---------------------------------------------------------------------------

    \40\ According to final Sec.  1910.269(a)(1)(ii)(B), Sec.  
1910.269 does not apply to electrical safety-related work practices 
covered by Subpart S. Subpart S applies to work performed by 
unqualified persons on, near, or with electric power generation, 
transmission, and distribution installations (see Sec.  
1910.331(b)).
---------------------------------------------------------------------------

    Second, the host-contractor provisions in Sec. Sec.  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 Sec. Sec.  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 Sec.  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, Sec.  
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

[[Page 20340]]

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 Sec.  
1926.960(b)(1)(i), permits only qualified employees to work on or with 
exposed energized lines or parts of equipment. Final Sec.  
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 Sec.  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 Sec.  
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 Sec.  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, 
Sec.  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 Sec.  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.
---------------------------------------------------------------------------

    \41\ See NFPA 70E-2004, Section 110.1, which sets the scope for 
Article 110, General Requirements for Electrical Safety-Related Work 
Practices (Ex. 0134).
---------------------------------------------------------------------------

    OSHA designed subpart V to mirror the requirements in Sec.  
1910.269. Existing Sec.  1910.269(a)(1)(i)(A), which is being adopted 
in the final rule without substantive change, provides that Sec.  
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) Sec.  1910.269(a)(1)(ii)(B) 
explicitly excludes ``electrical safety-related work practices . . . 
covered by subpart S of this part'' from coverage. According to Sec.  
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, 
Sec.  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 Sec.  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 Sec.  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 Sec.  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, Sec.  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 Sec.  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, Sec.  
1910.269(a)(1)(iii) is being amended to include language equivalent to 
that in Sec.  1926.950(a)(2).
    Subpart V has never applied to work on electric power generation 
installations. Proposed Sec.  1926.950(a)(3) provided that Sec.  
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 Sec.  1910.269 in those situations (id.). Rather than repeat 
the relevant portions of Sec.  1910.269 in subpart V, OSHA proposed 
that Sec.  1910.269 apply to all work involving electric power 
generation installations.
    The Agency requested comments on whether Sec.  1910.269 should 
apply to all work involving electric power generation installations, as 
proposed, or whether instead the relevant requirements from Sec.  
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 
Sec.  1910.269 applicable to all work involving electric power 
generation installations. For

[[Page 20341]]

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 
Sec.  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, 
Sec.  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 Sec.  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 Sec.  1910.269(l) would not apply. Similarly, in the 
construction of a coal-fired generating station, the requirements in 
Sec.  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 Sec.  
1910.269 applies, the provisions of Sec.  1910.269 supplement, but do 
not replace, any relevant general construction requirements. (See 
Sec. Sec.  1910.269(a)(1)(iii) and 1926.950(a)(2).) For example, the 
training requirements in Sec.  1910.269(a)(2) apply in addition to any 
applicable training requirements in part 1926.\42\
---------------------------------------------------------------------------

    \42\ Paragraph (e) of Sec.  1910.269 contains requirements for 
work in enclosed spaces. OSHA recently proposed a standard covering 
confined spaces in construction, which will cover many of the same 
hazards. OSHA will consider how to apply these new confined space 
provisions to the construction of power generation installations in 
the development and promulgation of that final rule.
---------------------------------------------------------------------------

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

    \43\ Current Sec.  1910.269(a)(1)(ii)(A) provides that Sec.  
1910.269 does not apply to construction work. In the final rule, 
OSHA is revising this paragraph to indicate that Sec.  1910.269 does 
not apply to construction work, as defined in Sec.  1910.12, except 
for line-clearance tree-trimming operations and work involving 
electric power generation installations as specified in Sec.  
1926.950(a)(3). This change makes the application of Sec.  1910.269 
consistent with the coverage of work involving electric power 
generation installations in subpart V.
---------------------------------------------------------------------------

    Another coverage issue raised in the proposal relates to line-
clearance tree trimming, which is currently addressed in Sec.  
1910.269.\44\ (See existing Sec.  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 
Sec.  1926.950(a)(3) provided that Sec.  1910.269 would apply to all 
line-clearance tree-trimming operations, even those that might be 
considered construction. OSHA requested comments on whether Sec.  
1910.269 should apply to all work involving line-clearance tree 
trimming, as proposed, or whether the relevant requirements from Sec.  
1910.269 should be contained in subpart V.
---------------------------------------------------------------------------

    \44\ Line-clearance tree trimming is also addressed in Sec.  
1910.268 when the lines involved are telecommunications lines. (See 
29 CFR 1910.268(q).)
    \45\ Throughout the preamble discussion of this final rule, OSHA 
generally refers to line-clearance tree trimmers who are not 
qualified employees under Sec.  1910.269 or subpart V as ``line-
clearance tree trimmers,'' and to qualified employees who also meet 
the definition of ``line-clearance tree trimmers'' as ``qualified 
employees.''
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  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 Sec.  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 Sec.  1910.269 in those 
circumstances. Given that clarification, IBEW agreed that the Sec.  
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 Sec.  1926.950(a)(3) as proposed 
with respect to line-clearance tree trimming.\46\
---------------------------------------------------------------------------

    \46\ Current Sec.  1910.269(a)(1)(ii)(A) provides that Sec.  
1910.269 does not apply to construction work. In the final rule, 
OSHA is revising this paragraph to indicate that Sec.  1910.269 does 
not apply to construction work, as defined in Sec.  1910.12, except 
for line-clearance tree-trimming operations and work involving 
electric power generation installations as specified in Sec.  
1926.950(a)(3). This change makes the application of Sec.  1910.269 
consistent with the coverage of line-clearance tree-trimming 
operations in subpart V.
---------------------------------------------------------------------------

    Although the tree trimming industry did not object to covering all 
line-clearance tree trimming in Sec.  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 Sec.  
1926.968, which was based on existing Sec.  1910.269(x), read as 
follows:


[[Page 20342]]


    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 
Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  1910.269 applied. 
The proposed ``10-foot rule'' did not create any internal conflicts in 
Sec.  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 Sec.  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 Sec.  1910.269 would not necessarily achieve the 
industry's goal. As stated previously, even work covered by Sec.  
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 Sec.  
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 (Sec. Sec.  
1910.266 and 1926.604, respectively), the contractor will have to 
ensure that its work rules meet those standards, in addition to Sec.  
1910.269.\47\
---------------------------------------------------------------------------

    \47\ ULCC suggested that the references in Sec.  1910.269(r)(5) 
to specific requirements in the logging standard ``shows OSHA's 
intent to not apply [the] logging standard to line clearance unless 
so-designated'' (Ex. 0174). This is an erroneous interpretation that 
overlooks existing Sec.  1910.269(a)(1)(iii), which explains that 
``[s]pecific references in this section to other sections of part 
1910 are provided for emphasis only.'' Other relevant provisions in 
part 1910 continue to apply, including other provisions in the 
logging standard, if the work being performed falls within the scope 
of those standards and within the scope of Sec.  1910.269 at the 
same time.
---------------------------------------------------------------------------

    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 (Sec.  1910.269(r)(2), 
(r)(3), (r)(4), (r)(5), (r)(6), (r)(7), and (r)(8), respectively) in 
existing Sec.  1910.269 were taken, in part, from the EEI-IBEW draft on 
which Sec.  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 Sec.  1910.269. Thus, many important safety 
provisions included in applicable consensus standards and in other OSHA 
standards were not included in Sec.  1910.269, and that section does 
not address some important safety hazards faced by workers performing 
tree care operations. For example, Sec.  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 Sec.  
1910.269 tree-trimming provisions, the OSHA standards do not cover 
those hazards as comprehensively as the current version,

[[Page 20343]]

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 Sec.  1910.269. For these reasons, adopting 
the industry's recommendation to have Sec.  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 Sec.  1910.269, eliminating the 
protection provided by the logging standard's tree-felling provisions.
---------------------------------------------------------------------------

    \48\ As stated earlier, in its review of the EEI-IBEW draft, 
OSHA checked provisions of that draft against equivalent provisions 
in ANSI Z133.1-1982. However, because Sec.  1910.269 is a standard 
for electric power generation, transmission, and distribution work 
and not a comprehensive standard on tree trimming, the Agency did 
not examine provisions in the ANSI standard that had no counterpart 
in the EEI-IBEW draft.
---------------------------------------------------------------------------

    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 Sec.  1910.269 is that the 
electrical hazards regulated by Sec.  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 Sec.  1910.269 should apply.
    The line-clearance tree-trimming provisions in existing Sec.  
1910.269 contain several requirements to protect line-clearance tree 
trimmers from electrical hazards. First, to be considered line-
clearance tree trimmers under Sec.  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 
Sec.  1910.269(a)(1)(i)(E)(2) and the definition of ``line-clearance 
tree trimmer'' in existing Sec.  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 Sec.  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 Sec.  
1910.269(b)(1).) Fourth, employees must maintain minimum approach 
distances appropriate for qualified employees. (See existing Sec.  
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 Sec.  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 Sec.  1910.269. 
(See existing Sec.  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 Sec.  1910.269(p)(4).)
---------------------------------------------------------------------------

    \49\ Throughout this preamble, OSHA differentiates between line-
clearance tree trimmers (as defined in Sec.  1910.269) and other 
workers involved in tree-trimming operations. OSHA refers to 
employees doing tree-related work who are not line-clearance tree 
trimmers under Sec.  1910.269 as ``regular tree trimmers'' (that is, 
all other tree trimmers) or ``tree workers who are not line-
clearance tree trimmers'' (that is, all other tree trimmers and 
ground workers). See also the summary and explanation for Sec.  
1926.950(b)(2), later in this section of the preamble.
    \50\ See the summary and explanation for final Sec.  
1926.951(b)(1), later in this section of the preamble, for a 
discussion of the requirements for first-aid training for field 
work, such as line-clearance tree-trimming operations.
---------------------------------------------------------------------------

    Requirements for tree trimmers who are not performing line-
clearance tree trimming (as defined in final Sec.  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 Sec.  1910.269), whom 
OSHA considers qualified persons under subpart S. Line-clearance tree 
trimmers under Sec.  1910.269 are exempt from the electrical safety-
related work practice requirements in subpart S and must comply with 
the Sec.  1910.269 requirements described previously.\51\ (See Sec.  
1910.331(c)(1).) In contrast, regular tree trimmers are subject to the 
subpart S requirements, but are not covered by Sec.  1910.269.\52\
---------------------------------------------------------------------------

    \51\ Note 2 to the definition of ``line-clearance tree trimmer'' 
in existing Sec.  1910.269(x) explains that line-clearance tree 
trimmers are considered qualified employees for purposes of the 
electrical safety-related work practices in Subpart S (Sec. Sec.  
1910.331 through 1910.335). Paragraph (c)(1) of Sec.  1910.331 
provides that Sec. Sec.  1910.331 through 1910.335 do not apply to 
work performed by qualified persons, including line-clearance tree 
trimmers under Sec.  1910.269, on or directly associated with 
generation, transmission, and distribution installations. In 
addition, Note 3 to Sec.  1910.331(c)(1) clarifies that the agency 
considers line-clearance tree trimming to be work directly 
associated with such installations.
    \52\ Currently, an employee must meet the definition of ``line-
clearance tree trimmer'' in existing Sec.  1910.269(x) and have 
training meeting Sec.  1910.332(b)(3) to be considered a line-
clearance tree trimmer who is a qualified employee for the purposes 
of subpart S. (See Note 1 to Sec.  1910.332(b)(3), which states that 
a person must have the training required by that paragraph to be 
considered a qualified person.) As explained in the summary and 
explanation for Sec. Sec.  1926.950(b)(2) and 1910.269(a)(2)(iii), 
later in this section of the preamble, OSHA added to Sec.  1910.269 
appropriate training requirements for line-clearance tree trimmers. 
Consequently, under this final rule, an employee must meet the 
definition of ``line-clearance tree trimmer'' and have training 
meeting Sec.  1910.269(a)(2)(iii) to be considered a line-clearance 
tree trimmer who is a qualified employee for the purposes of subpart 
S. Under both the existing standards and the final rule, any given 
tree trimmer is either a line-clearance tree trimmer, who is 
considered a qualified employee under subpart S, or a regular tree 
trimmer, who is considered an unqualified employee under subpart S.
---------------------------------------------------------------------------

    Subpart S sets some basic requirements for regular tree trimmers.

[[Page 20344]]

(Other requirements also apply, but are not germane to this 
discussion.) First, regular tree trimmers must be appropriately trained 
(see Sec.  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 Sec.  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 
Sec.  1910.333(c)(3)(iii)(B)).
    As a general matter, OSHA believes that workers performing line-
clearance tree-trimming operations under existing Sec.  1910.269 are 
afforded more protection than workers performing regular tree-trimming 
operations under Subpart S. Under existing Sec.  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 Sec.  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 Sec.  
1910.269 contains additional requirements to protect workers in case 
mechanical equipment contacts a power line. OSHA believes that these 
important protections in existing Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 
Sec.  1910.331(c)(3)(i). As noted previously, under Sec.  
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 Sec.  
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 Sec.  1910.333(c)(3)(i)(A). 
The revised definition appears in Sec. Sec.  1910.269(x) and 1926.968.
    Paragraph (b) of final Sec.  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 Sec.  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\
---------------------------------------------------------------------------

    \53\ Several provisions in the proposed rule and existing Sec.  
1910.269 require employers to provide personal protective equipment 
(PPE) and training for ``employees'' or for ``all employees.'' The 
final rule amends these provisions to require PPE and training for 
``each employee.'' These editorial, nonsubstantive changes emphasize 
that the standards' training and PPE requirements impose a 
compliance duty to each and every employee covered by the standards 
and that noncompliance may expose the employer to liability on a 
per-employee basis. This action is in accord both with OSHA's 
longstanding position and OSHA standards addressing employers' 
duties. (See Sec. Sec.  1910.9 and 1926.20(f); see also 73 FR 75568 
(Dec. 12, 2008)). It should be noted that, if any provision in the 
final rule continues to require training or PPE for ``employees'' or 
for ``all employees,'' rather than for ``each employee,'' as 
described above, this was an unintentional omission on OSHA's part 
and should not be interpreted as amending OSHA's longstanding 
position, or the general standards, addressing employers' duties to 
provide training and PPE to each employee.
---------------------------------------------------------------------------

    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

[[Page 20345]]

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 Sec.  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 Sec.  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 Sec.  
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 Sec.  1910.269 (see, for example, Tr. 683).
    Existing Sec.  1910.269(a)(2)(i) already contains a requirement 
identical to the one proposed in Sec.  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

[[Page 20346]]

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 Sec.  1910.269(a)(2)(i) (for example, in 
2008, OSHA issued only 2 citations of Sec.  1910.269(a)(2)(i) in 362 
inspections of electric utilities), which supports OSHA's conclusion 
that employees performing work under existing Sec.  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 Sec.  1910.269(a)(2)(i).
    On the other hand, the Agency agrees with these commenters that 
Sec.  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 Sec. Sec.  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 Sec.  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 Sec.  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 Sec.  1926.21(b)(2). Consequently, employers who meet 
Sec.  1926.21(b)(2) also meet final Sec.  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 Sec.  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 Sec.  
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 Sec. Sec.  1910.269(a)(2)(i)(C) 
and 1926.950(b)(1)(iii), were based on Sec.  1910.332(c), although 
Sec.  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 Sec.  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 Sec.  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 Sec.  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:
---------------------------------------------------------------------------

    \54\ The remaining discussion of these provisions refers to the 
proposed construction requirement. However, the comments and OSHA's 
resolution of those comments applies equally to the corresponding 
general industry provision as is generally the case throughout this 
preamble.

    We question the soundness of changing the [current] requirements 
[in Sec.  1910.269] because if compliance with existing Section 
1910.269 training requirements is sufficient, there is no reason to 
add another regulatory

[[Page 20347]]

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 Sec.  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 Sec.  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\
---------------------------------------------------------------------------

    \55\ This document can be obtained by contacting OSHA's Office 
of Publications as directed in the ADDRESSES section of this 
preamble or from OSHA's Web page: http://www.osha.gov/pls/publications/publication.html. See, in particular, Section III of 
the voluntary guidelines, ``Matching Training to Employees,'' on pp. 
6-8.
---------------------------------------------------------------------------

    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 Sec.  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 
Sec.  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 
Sec.  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

[[Page 20348]]

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 Sec.  
1910.269 nor line-clearance tree trimmers. Subpart S, not Sec.  
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 Sec.  1910.331(b).) The 
preamble to the 1994 Sec.  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 Sec.  1910.269(x). These employees are 
not covered under Sec.  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 Sec.  1910.269(a)(1)(ii)(B) states that Sec.  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 Sec.  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 Sec.  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 (Sec.  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 Sec.  1910.269. 
Under existing Sec.  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 Sec.  1910.269(x). Note 2 to that definition 
explains that while line clearance tree trimmers are not considered 
qualified employees for purposes of Sec.  1910.269, they are considered 
to be qualified employees exempt from the electrical safety-related 
work practice requirements in subpart S (Sec. Sec.  1910.331 through 
1910.335). The note following Sec.  1910.332(b)(3) indicates that, for 
the purposes of Sec. Sec.  1910.331 through 1910.335, a person must 
have the training required by Sec.  1910.332(b)(3) for OSHA to consider 
that person a qualified person. Therefore, to be considered a line-
clearance tree trimmer under Sec.  1910.269 and, thus, a qualified 
person under subpart S, a tree trimmer needs the training specified by 
Sec.  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 Sec.  1910.269 as explained previously.
    The training required by Sec.  1910.332(b)(3) is virtually 
identical to the training required by final Sec.  1910.269(a)(2)(ii)(A) 
through (a)(2)(ii)(C) for qualified employees, except that Sec.  
1910.332(b)(3)(iii) requires training in the clearance (that is, 
minimum approach) distances specified in Sec.  1910.333(c), whereas 
Sec.  1910.269(a)(2)(ii)(C) requires training in the minimum approach 
distances in Sec.  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 Sec.  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 Sec.  
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 Sec.  
1910.269(a)(2)(iii)(A)), (2) the skills and techniques necessary to 
determine the nominal voltage of exposed live parts (final Sec.  
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 Sec.  1910.269(a)(2)(iii)(C)).\56\ The 
first two training requirements, final Sec.  1910.269(a)(2)(iii)(A) and 
(a)(2)(iii)(B), are identical to Sec.  1910.332(b)(3)(i) and 
(b)(3)(ii). The remaining requirement, final Sec.  
1910.269(a)(2)(iii)(C), is comparable to Sec.  1910.332(b)(3)(iii), 
except that line-clearance tree trimmers need to be trained in the 
minimum approach distances required under Sec.  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 Sec.  1910.269 are the more 
appropriate reference for final Sec.  1910.269(a)(2)(iii)(C) because 
line-clearance tree trimmers are required to comply with the minimum 
approach distances in Sec.  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 Sec.  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).
---------------------------------------------------------------------------

    \56\ Line-clearance tree trimming firms may need to train their 
employees in the more protective of the minimum approach distances 
in subpart S and Sec.  1910.269 to ensure compliance both during 
work that is covered by subpart S and work that is covered by Sec.  
1910.269.
    \57\ Even though line-clearance tree trimmers are not generally 
qualified employees under Sec.  1910.269, paragraph (r)(1)(iii) of 
final Sec.  1910.269 requires them to maintain the minimum approach 
distances specified in Table R-5, Table R-6, Table R-7, and Table R-
8.
---------------------------------------------------------------------------

    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 Sec.  1910.269(a)(2)(ii)(E), which is the 
general industry counterpart to proposed Sec.  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

[[Page 20349]]

qualified employees unless the devices are in areas restricted to 
qualified employees (final Sec. Sec.  1910.269(u)(4) and (v)(4) and 
1926.966(e)) or otherwise expose the employees to contact with live 
parts (final Sec.  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 Sec. Sec.  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 Sec.  
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 Sec.  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.
---------------------------------------------------------------------------

    \58\ OSHA interprets the phrase ``must employ'' in paragraph 
(b)(4)(iii) to include both practices the employer specifically 
assigns to the employee and practices the employer expects the 
employee to be prepared to use, such as emergency response 
procedures.
---------------------------------------------------------------------------

    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 Sec.  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 
Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  1910.269 
(paragraph (a)(2)(vii)) and subpart V (Sec.  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

[[Page 20350]]

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 Sec.  
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 Sec.  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

[[Page 20351]]

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 Sec.  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 Sec.  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 Sec.  
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,

[[Page 20352]]

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).
---------------------------------------------------------------------------

    \59\ In this discussion, OSHA uses the term ``electric utility'' 
and ``host employer'' synonymously. In some cases, however, the host 
employer may not be an electric utility. See the discussion of the 
definition of ``host employer'' later in this section of the 
preamble.
---------------------------------------------------------------------------

    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 Sec.  1926.950 (as well as in Sec.  
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), Sec.  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 Sec.  
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-
[agrave]-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

[[Page 20353]]

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.
---------------------------------------------------------------------------

    \60\ As explained later in this section of the preamble, the 
overall sharing of information that will occur in accordance with 
the final host-contractor provisions will help protect the employees 
of both host employers and contract employers.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \61\ This language is in marked contrast to the language of 
Section 5(a)(1) of the OSH Act (known as the ``general duty 
clause''), which requires each employer to ``furnish to each of his 
employees employment and a place of employment which are free from 
recognized hazards that are causing or are likely to cause death or 
serious physical harm to his employees'' (29 U.S.C. 654(a)(1)). (See 
Brennan v. OSHRC, 513 F.2d 1032, 1037-38 (2d Cir. 1975).)
---------------------------------------------------------------------------

    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'' (Pub. L. 101-549, 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.
---------------------------------------------------------------------------

    \62\ As a rationale for those provisions, OSHA explained that 
chemical manufacturers and importers are in the best position to 
develop, disseminate, and obtain information about their products. 
(See 48 FR 53280, 53322, Nov. 25, 1983.)
---------------------------------------------------------------------------

    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

[[Page 20354]]

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 Sec.  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 Sec.  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 Sec.  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 
Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  1910.12(a) reveals that the purpose 
of this provision is to extend, not limit, the Agency's authority. 
Indeed, Sec.  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 Sec.  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

[[Page 20355]]

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

[[Page 20356]]

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 Sec.  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 Sec.  1910.269.
---------------------------------------------------------------------------

    \63\ The definition of host employer in the final rule also 
removes any confusion over whether a holding company that owns a 
utility company's outstanding stock, which is a common practice, or 
the electric utility itself ``owns'' the installation.
---------------------------------------------------------------------------

    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 Sec.  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.
---------------------------------------------------------------------------

    \64\ As explained later in this section of the preamble, 
``contract employer'' is defined as: ``An employer, other than a 
host employer, that performs work covered by subpart V of this part 
under contract.''
---------------------------------------------------------------------------

    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 Sec.  1910.269. Paragraph (a)(1)(i)(E)(2) of 
existing Sec.  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 Sec.  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

[[Page 20357]]

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\
---------------------------------------------------------------------------

    \65\ For a full discussion of why Sec.  1910.269 applies 
different requirements to line-clearance tree-trimming operations 
depending on whether they are performed by qualified or unqualified 
employees, see the preamble to the 1994 Sec.  1910.269 final rule 
(59 FR 4336).
---------------------------------------------------------------------------

    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 
Sec.  1910.269(a)(3) to the list of paragraphs denoted in final Sec.  
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

[[Page 20358]]

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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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)).
---------------------------------------------------------------------------

    \66\ The title of this provision is ``Information transfer.'' 
However, throughout the rulemaking, the Agency and the regulated 
community referred to the provision as the ``host-contractor 
provision,'' as the provision contains information-transfer 
requirements for host employers and contract employers. OSHA, 
therefore, uses the terms ``information-transfer provision'' and 
``host-contractor provision'' interchangeably when referring to this 
provision.
---------------------------------------------------------------------------

    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

[[Page 20359]]

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 Sec.  1926.950(d) 
for determining existing conditions. (Paragraph (d), discussed later in 
this section of the preamble, is essentially the same as existing Sec.  
1910.269(a)(3).) In the final rule, Sec.  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.
---------------------------------------------------------------------------

    \67\ Final paragraph (c)(1)(iii), discussed later in this 
section of the preamble, requires host employers to provide 
contractors with information about the design and operation of the 
host employer's installation that the contract employer needs to 
make the assessments required by subpart V.
---------------------------------------------------------------------------

    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 Sec.  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

[[Page 20360]]

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.
---------------------------------------------------------------------------

    \68\ It should be noted that, in revising the language of this 
provision in the final rule, OSHA did not conclude that the proposed 
language was overbroad or too vague. Similar language is used in 
other OSHA standards, including the standard for process safety 
management of highly hazardous chemicals (see Sec.  
1910.119(h)(2)(ii)). The Agency believes that employers subject to 
that rule are successfully complying with it. However, OSHA is 
revising the language of this provision in Subpart V because it 
resolves rulemaking participants' concerns about the proposed 
provision in a manner that adequately protects employees and is more 
consistent with existing requirements for electric power generation, 
transmission, and distribution work in Sec.  1910.269.
---------------------------------------------------------------------------

    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 Sec.  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).
---------------------------------------------------------------------------

    \69\ In final Sec.  1926.950(d)(5), OSHA changed the proposed 
term ``power . . . lines'' to ``electric supply . . . lines.'' The 
two terms are synonymous, and the final rule defines ``electric 
supply lines'' in Sec.  1926.968. Note that lines that employees 
encounter are either electric supply lines, communication lines, or 
control lines, such as those on fire-protective signaling circuits.
---------------------------------------------------------------------------

    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

[[Page 20361]]

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 Sec.  1926.952 
(Ex. 0212). Final Sec.  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 Sec.  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 
Sec. Sec.  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
------------------------------------------------------------------------
                                                     Type of information
                                                    to be provided under
          Provision            Assessment required          Sec.
                                                     1926.950(c)(1)(iii)
------------------------------------------------------------------------
Sec.   1926.953(a)..........  Whether an enclosed   Whether an enclosed
                               space must be         space contains
                               entered as a permit-  hazards, other than
                               required confined     electrical and
                               space.                atmospheric
                                                     hazards, that could
                                                     endanger the life
                                                     of an entrant or
                                                     could interfere
                                                     with escape from
                                                     the space.
Sec.   1926.953(m)..........  Whether forced air    The size of the
                               ventilation has       enclosed space.
                               been maintained
                               long enough that a
                               safe atmosphere
                               exists.
Sec.   1926.960(c)(1)(i)....  What is the           What the operating
                               appropriate minimum   conditions are for
                               approach distance     the value of the
                               for the work to be    maximum transient
                               performed.            overvoltage
                                                     provided to the
                                                     contract
                                                     employer.\1\
Sec.   1926.960(g)(1).......  Whether employees     Information on
                               are exposed to        electric equipment,
                               hazards from flames   such as safety
                               or electric arcs.     information
                                                     provided by
                                                     manufacturers, that
                                                     relates to the
                                                     required hazard
                                                     assessment.
Sec.   1926.960(g)(2).......  What is the           The electrical
                               estimated incident    parameters needed
                               energy from an        to calculate
                               electric arc.         incident energy,
                                                     such as maximum
                                                     fault current, bus
                                                     spacings, and
                                                     clearing times.
Sec.   1926.960(k)..........  Whether devices are   Load current for,
                               designed to open or   and the opening and
                               close circuits        closing ratings of,
                               under load            devices used to
                               conditions.           open and close
                                                     circuits under
                                                     load.
Sec.  Sec.   1926.961 and     What are the known    All known sources of
 1926.967(h).                  sources of electric   electric energy,
                               energy (including     including known
                               known sources of      sources of
                               backfeed) supplying   backfeed.
                               electric circuits.
Sec.   1926.962(d)(1)(i)....  Whether protective    The maximum fault
                               grounds have          current and
                               adequate current-     clearing time for
                               carrying capacity.    the circuit.
Sec.   1926.962(g)..........  Whether there is a    Potential rise on
                               possibility of        remote grounds
                               hazardous transfer    under fault
                               of potential should   conditions.
                               a fault occur.
Sec.   1926.964(a)(2).......  Whether overhead      The design strength
                               structures such as    of the pole or
                               poles and towers      structure.
                               are capable of
                               sustaining stresses
                               imposed by the work.
------------------------------------------------------------------------
\1\ Includes information on conditions that must be in place for the
  maximum transient overvoltage to be valid, such as whether circuit
  reclosing devices are disabled.

    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

[[Page 20362]]

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\
---------------------------------------------------------------------------

    \70\ The preamble to the proposal indicated that proposed 
paragraph (c)(1)(i) would not require host employers to provide 
``unknown information'' to contractors (70 FR 34840). It should be 
noted, however, that OSHA presumes that host employers ``know'' the 
information that must be shared under final paragraphs (c)(1)(i) and 
(c)(1)(iii) because it relates to the design and operation of the 
installation, which are aspects of an electric power generation, 
transmission, or distribution system that are under the exclusive 
purview of the host employer.
---------------------------------------------------------------------------

    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

[[Page 20363]]

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\
---------------------------------------------------------------------------

    \71\ For example, a generation plant owner could contract with a 
company to operate, but not maintain, the plant. If the plant owner 
neither operates nor controls operating procedures for the 
installation, the company it contracts with to operate the plant is 
the host employer under the final rule. The plant owner could hire a 
different company to perform maintenance in the substation in the 
generation plant. Because the host employer in this scenario does 
not perform maintenance, it is likely that the host employer will 
not have any employees qualified to enter the substation, and, thus, 
will not observe the maintenance contractor's employees.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \72\ Such control can be established by contract or by the 
exercise of control in practice.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \73\ Contracts between electric utilities and their contractors 
often contain provisions requiring contractors to meet OSHA 
standards and other provisions addressing noncompliance with the 
terms of the contract. (See, for example, Ex. 0175.)
---------------------------------------------------------------------------

    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,

[[Page 20364]]

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 Sec.  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 Sec.  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

[[Page 20365]]

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.
---------------------------------------------------------------------------

    \74\ Some host employers ``don't believe in equipotential work 
zone,'' which is required by existing Sec.  1910.269(n)(3), or want 
trucks barricaded, instead of having them grounded, as required by 
existing Sec.  1910.269(p)(4)(iii)(C).
    \75\ One host employer requires contractor employees to wear 
rubber insulating gloves while working with live-line tools on 
transmission lines, which may cause the gloves to fail.
---------------------------------------------------------------------------

    OSHA concludes, however, that some coordination of work rules 
between

[[Page 20366]]

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, Sec.  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 Sec.  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 Sec.  1926.950 requires host employers and contract 
employers to confer in an effort to select work rules and procedures 
that comply with final Sec.  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.
---------------------------------------------------------------------------

    \76\ For the purposes of final paragraph (c)(2)(ii), ``unique 
hazardous conditions presented by the contract employer's work'' 
means hazardous conditions that the work poses to which employees at 
the worksite are not already exposed.
---------------------------------------------------------------------------

    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 Sec.  1926.950 addresses this problem by requiring 
safety-related characteristics and conditions existing in the work area 
to

[[Page 20367]]

be determined before employees start working in the area. The language 
for proposed paragraph (d) was based on language in current Sec.  
1926.950(b)(1) and was the same as existing Sec.  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.
---------------------------------------------------------------------------

    \77\ The 2012 NESC contains an equivalent requirement in Rule 
420D.
---------------------------------------------------------------------------

    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 Sec.  
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 Sec.  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 Sec.  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.
---------------------------------------------------------------------------

    \78\ The employer may not have knowledge of the exact locations 
of customer-owned backup generators; however, the location of 
possible sources of backfeed from such customer-owned equipment can 
readily be determined by looking for connections to customers' 
wiring in circuit diagrams or during an inspection at the worksite.
---------------------------------------------------------------------------

    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 Sec.  1926.950(b) 
of the final rule.
    Employers are required by Sec.  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 
Sec.  1926.952 of the final rule. (See the discussion of Sec.  1926.952 
later in this section of the preamble.) The characteristics and 
conditions found as a result of compliance with final Sec.  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 Sec.  1926.960(c)(1). Similarly, the 
presence or absence of an equipment grounding conductor will affect the 
work practices required under final Sec.  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 Sec.  
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 Sec.  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 Sec.  1926.960(c)(1), later in this section of

[[Page 20368]]

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 Sec.  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 Sec.  
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 Sec.  1926.951 emphasizes that the requirements 
of Sec.  1926.50 apply. (See Sec.  1926.950(a)(2).) Existing Sec.  
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 Sec.  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 Sec.  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 
Sec.  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 Sec.  1926.50.
    Mr. Stephen Sandherr with AGC was concerned that the requirements 
proposed in Sec.  1926.951 conflicted with the requirements in Sec.  
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 Sec.  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 Sec.  1926.50. Proposed paragraph (b)(2) would have 
required weatherproof containers if the supplies could be exposed to 
the weather, whereas existing Sec.  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 Sec.  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 Sec.  1926.951(a), which requires that 
employers comply with existing Sec.  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 Sec.  1926.50. Including 
them in the final rule would compromise OSHA's efforts to enforce Sec.  
1926.50 on jobsites covered by Subpart V. OSHA notes that the remaining 
provisions in Sec.  1926.951 apply in addition to those in Sec.  
1926.50.
    Final Sec.  1926.951(b) supplements Sec.  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 Sec.  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 Sec.  
1926.953(h), the final rule defines ``first-aid training'' to include 
CPR training. Therefore, in final Sec.  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.
---------------------------------------------------------------------------

    \79\ In discussing these remaining provisions in this preamble, 
OSHA generally uses the term ``CPR training'' to describe the first-
aid training required by the provisions. OSHA does not mean to imply 
by this language that the final provisions do not require first-aid 
training other than CPR. In fact, as explained later in the 
preamble, the final rule defines ``first-aid training'' as training 
in the initial care, including CPR, performed by a person who is not 
a medical practitioner, of a sick or injured person until definitive 
medical treatment can be administered. OSHA is emphasizing ``CPR 
training'' in its preamble discussion because that type of first aid 
is particularly beneficial to workers who are injured by an electric 
shock.
---------------------------------------------------------------------------

    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 Sec.  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 (Sec. Sec.  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 (Sec.  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-

[[Page 20369]]

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.)
---------------------------------------------------------------------------

    \80\ Although it is theoretically possible to sustain a life-
threatening shock below this voltage, it is considered extremely 
unlikely. (See, for example, Ex. 0428.)
    \81\ The 2012 NESC contains a similar requirement in Rule 441A2.
---------------------------------------------------------------------------

    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 Sec.  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 
Sec.  1910.269 rulemaking to require first-aid training, including CPR 
training, for work covered by that standard. OSHA found in its 1994 
Sec.  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 Sec.  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 Sec.  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:


[[Page 20370]]


    [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 Sec.  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\
---------------------------------------------------------------------------

    \82\ Some rulemaking participants gave other reasons why OSHA 
should not require AEDs, including: Costs of acquiring the devices 
(see, for example, Exs. 0162, 0169, 0173, 0174, 0200, 0227), varying 
State requirements related to AEDs, such as requirements that they 
be prescribed by a physician (see, for example, Exs. 0125, 0149, 
0227), conflicts with requirements of other Federal agencies, such 
as the Food and Drug Administration (see, for example, Exs. 0177, 
0227), and OSHA's failure to meet all its regulatory burdens, such 
as burdens imposed by the Small Business Regulatory Enforcement 
Fairness Act (Ex. 0170). Because OSHA decided not to require AEDs 
for the reason given in this section of the preamble, it need not 
consider these other issues.
---------------------------------------------------------------------------

    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 
Sec.  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-

[[Page 20371]]

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 Sec.  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 Sec.  1910.269, the 
Agency is not adopting it in final Sec.  1926.951(b)(1).\83\ The 
corresponding provision in Sec.  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.
---------------------------------------------------------------------------

    \83\ Final Sec.  1926.951(b) uses the term ``trained persons,'' 
rather than ``trained employees,'' because the individuals with the 
training do not necessarily need to be employees. For instance, the 
``trained persons'' required by the rule could be self-employed 
individuals working with a crew of employees.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \84\ Although paragraph (b)(1) in the final rule does not 
address refresher first-aid training, final Sec.  
1926.950(b)(4)(iii) contains a general requirement that employees 
receive additional training when they must employ safety-related 
work practices (such as administering first aid) that are not 
normally used during their regular work duties. A note following 
Sec.  1926.950(b)(4)(iii) indicates that the Agency would consider 
tasks performed less often than once per year to require retraining. 
See the discussion of that requirement earlier in this section of 
the preamble.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  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 Sec.  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.
---------------------------------------------------------------------------

    \85\ The issue of whether the requirement for two employees 
should apply to voltages of 600 volts or less is discussed under the 
summary and explanation of final Sec.  1926.960(b)(3), later in this 
section of the preamble.
---------------------------------------------------------------------------

    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 Sec.  
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 Sec.  1910.269(b) 
and Sec.  1910.151, OSHA's general industry standard addressing medical 
services and first aid.
Section 1926.952, Job Briefing
    In Sec.  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 
Sec.  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

[[Page 20372]]

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 Sec.  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 Sec.  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 Sec.  1910.269(c), was in proposed Sec.  
1926.952(a)(1). OSHA proposed to add the same requirement to Sec.  
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 Sec.  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

[[Page 20373]]

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 Sec.  1926.950(d). Thus, 
final Sec.  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 Sec.  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 Sec.  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 Sec.  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 
Sec.  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 
Sec.  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 Sec.  
1926.960(g)(5).
---------------------------------------------------------------------------

    \86\ In fact, these are the types of information that commenters 
argued employers should provide. (See, for example, Exs. 0186, 0219; 
Tr. 402-403, 1373.)
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  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 Sec.  1926.952(a)(1) links the information that the employer must 
provide the employee in charge to the determination required by Sec.  
1926.950(d), final Sec.  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 Sec.  1926.952(a)(1)--especially information about the 
characteristics of electric lines and equipment--through the operation 
of the host-contractor provision in Sec.  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 Sec.  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

[[Page 20374]]

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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  1926.952(d)(1) and (d)(2), which duplicates existing Sec.  
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 Sec.  1910.269(c)(2). Thus, OSHA concludes that the vast 
majority of employers understand this provision, and the Agency is 
adopting Sec.  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

[[Page 20375]]

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 Sec.  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.
---------------------------------------------------------------------------

    \87\ This accident can be viewed at: http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=909119.
---------------------------------------------------------------------------

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 Sec.  
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 
Sec.  1910.269(e) for the maintenance of electric power generation, 
transmission, and distribution installations, and OSHA took the 
requirements adopted in final Sec.  1926.953 from existing Sec.  
1910.269(e).
    Paragraph (a) of final Sec.  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 
Sec.  1926.953 (or the corresponding general industry provisions in 
final Sec.  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 Sec.  1910.146; this 
standard applies to all of general industry, including industries 
engaged in electric power generation, transmission, and distribution 
work.
    In Sec.  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 Sec.  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 Sec.  1926.968. For 
instance, if a space contains a hazardous atmosphere under normal 
conditions, that space is a permit space under Sec.  1910.146, but it 
is not an enclosed space under final Sec.  1910.269 or Subpart V.
    Paragraph (b)(6) of Sec.  1926.21 specifies training requirements 
for employees who enter ``confined or enclosed spaces'' as defined in 
Sec.  1926.21(b)(6)(ii).
    When Sec.  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 Sec.  1926.953 also is a confined or enclosed space under Sec.  
1926.21(b)(6). However, the definition of confined or enclosed space in 
Sec.  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 Sec.  1926.968.\88\
---------------------------------------------------------------------------

    \88\ Under Sec.  1926.21(b)(6)(ii), a confined or enclosed space 
is any space having a limited means of egress, which is subject to 
the accumulation of toxic or flammable contaminants or has an oxygen 
deficient atmosphere.
---------------------------------------------------------------------------

    Paragraph (b)(6) of Sec.  1926.21 applies to enclosed spaces 
covered by final Sec.  1926.953 because employers covered under subpart 
V are not exempt from complying with other applicable provisions in 
Part 1926 (see Sec.  1926.950(a)(2)). Section 1926.953 is, therefore, 
different from final Sec.  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 Sec.  
1910.146.'' OSHA concludes, however, that an employer that is compliant 
with Sec.  1926.953 is considered as being in compliance with existing 
Sec.  1926.21(b)(6) for entry into enclosed

[[Page 20376]]

spaces covered by final Sec.  1926.953. Therefore, for all practical 
purposes, Sec.  1926.953 applies to routine entry into enclosed spaces 
in lieu of the requirements contained in Sec.  1926.21(b)(6). OSHA is 
not including the ``in lieu of'' language in final Sec.  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 Sec.  1926.953 to include appropriate ``in lieu of'' language 
when it promulgates the new standard.
    Under final Sec.  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 Sec.  1910.146 when the precautions 
taken under Sec. Sec.  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\
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    \89\ Section 1926.953 thus functions similarly to corresponding 
provisions in Sec.  1910.146. An employer need not follow the 
permit-entry requirements of Sec.  1910.146 for spaces where the 
hazards have been completely eliminated, or for limited situations 
in which OSHA permits the use of alternative procedures (Sec.  
1910.146(c)(5) and (c)(7)). The spaces for which alternative 
procedures may be used are similar to ``enclosed spaces,'' as 
defined in this final rule, and the alternative procedures 
themselves are similar to the procedures contained in final Sec.  
1926.953 (Sec.  1910.146(c)(5); 58 FR 4462, 4486-4489, Jan. 14, 
1993).
---------------------------------------------------------------------------

    Some employers may prefer to comply with Sec.  1910.146 instead of 
Sec.  1926.953 for entry into enclosed spaces covered by Subpart V. 
Because the provisions of Sec.  1910.146 protect employees entering 
enclosed spaces at least as effectively as Sec.  1926.953, OSHA will 
accept compliance with Sec.  1910.146 as meeting the enclosed-space 
entry requirements of Sec.  1926.953. OSHA included a note to this 
effect immediately following final Sec.  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 Sec.  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 Sec.  1910.269 or subpart V. (See the summary and explanation 
for final Sec.  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 
Sec. Sec.  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 Sec.  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 Sec.  1926.953 provides that Sec.  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 Sec.  1910.269 final rule, the measures required in existing 
Sec.  1910.269(e) (and, by implication, final Sec.  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 Sec.  
1910.269(x). As explained in the preamble to the 1994 Sec.  1910.269 
final rule, OSHA narrowly tailored the definition of ``enclosed space'' 
to the protective measures required by existing Sec.  1910.269(e) (59 
FR 4364-4367). A broader definition would involve permit spaces 
presenting hazards against which final Sec.  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 Sec.  1926.968.\90\ The proposed note, which appears in existing 
Sec.  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 Sec.  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, Sec.  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 Sec.  
1926.968. OSHA intends to revise Sec.  1926.968 to include an 
appropriate note to the definition of ``enclosed

[[Page 20377]]

space'' when it promulgates the new standard for confined-space entry 
during construction work.
---------------------------------------------------------------------------

    \90\ OSHA is not removing the existing note to that definition 
from final Sec.  1910.269(x).
---------------------------------------------------------------------------

    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 Sec.  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.
---------------------------------------------------------------------------

    \91\ It is possible under certain circumstances that employees 
taking readings or performing inspection activities could be exposed 
to arc-flash hazards. See the discussion of arc-flash hazard 
assessment under the summary and explanation for final Sec.  
1926.960(g)(1), later in this section of the preamble.
---------------------------------------------------------------------------

    Second, addressing arc-flash and electric-shock hazards in Sec.  
1926.953 would be unnecessarily duplicative, as these hazards are more 
appropriately addressed in Sec.  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 Sec.  
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 Sec.  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 Sec.  
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.
---------------------------------------------------------------------------

    \92\ There is a third exception associated with live-line 
barehand work, which is generally inapplicable in enclosed spaces.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  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 Sec.  1926.953.
---------------------------------------------------------------------------

    \93\ As stated previously, the references to the general 
industry standard in final Sec.  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.
---------------------------------------------------------------------------

    The use of the term ``entry'' in this paragraph of Sec.  1926.953 
is consistent with the use of that term in Sec.  1910.146, and OSHA 
proposed to include the Sec.  1910.146 definition of ``entry'' in 
Subpart V. Two commenters objected to the proposed definition of 
``entry'' on the basis that the definition would

[[Page 20378]]

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 Sec.  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 [Sec.  1910.269](t)(7) 
Protection against faults, to allow utilities to properly comply'' (Ex. 
0227).

    OSHA rejects ConEd's recommendation. Paragraph (g) of final Sec.  
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 Sec.  1926.953. OSHA concludes that the proposed 
definition is, therefore, appropriate as it applies to final Sec.  
1926.953 and the corresponding requirements in final Sec.  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 Sec. Sec.  1910.269(e) and 1926.953. The 
definition does not apply to final Sec.  1910.269(t)(7)(i) or Sec.  
1926.965(h)(1). (See the summary and explanation for final Sec.  
1926.965(h)(1) for the response to ConEd's and EEI's concerns that this 
provision, and its counterpart in Sec.  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.
---------------------------------------------------------------------------

    \94\ Typically, workers direct traffic away from the work area 
using traffic control devices, as required by Sec.  1926.967(g). 
When the resultant traffic patterns (that is, the flow of traffic) 
could bring vehicles close to the enclosed space entrance (for 
example, when the work reduces the number of traffic lanes), the 
employer must provide an attendant.
---------------------------------------------------------------------------

    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 Sec.  1926.951(b). However, the 
reference to Sec.  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 Sec.  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 Sec.  1926.951(b)(1), as it is no 
longer necessary.
---------------------------------------------------------------------------

    \95\ The definition also clarifies that CPR training includes 
resuscitation techniques both for the heart and for the lungs.
---------------------------------------------------------------------------

    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 Sec.  1926.953. (See, for example, 58 FR 4485-4488.) In addition, as 
provided in final Sec.  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, Sec.  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 Sec.  
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 Sec.  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

[[Page 20379]]

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 Sec.  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, Sec.  1910.146(c)(5) 
contains requirements for alternative procedures for permit spaces that 
are analogous to the enclosed-space requirements contained in Sec.  
1926.953 of the final rule. Paragraph (c)(5)(ii)(C) of Sec.  1910.146 
requires atmospheric testing using a calibrated test instrument. 
Paragraph (d) of Sec.  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 Sec.  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).
---------------------------------------------------------------------------

    \96\ This document is available on the OSHA Web site at: http://www.osha.gov/dts/shib/shib050404.pdf.
---------------------------------------------------------------------------

    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 Sec.  1926.968). For

[[Page 20380]]

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/m\3\, 
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.
---------------------------------------------------------------------------

    \97\ The lower flammable limit for methane is 5 percent, and 10 
percent of that value is 0.5 percent.
---------------------------------------------------------------------------

    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.)
---------------------------------------------------------------------------

    \98\ The definition of ``hazardous atmosphere'' determines what 
concentrations of oxygen are considered hazardous. (See Sec.  
1926.968.) Paragraph (g) of final Sec.  1926.953 prohibits entry 
into an enclosed space while a hazardous atmosphere is present.
---------------------------------------------------------------------------

    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 
Sec.  1926.953. (See Sec.  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\
---------------------------------------------------------------------------

    \99\ This discussion, which also appeared in the preamble to the 
proposal, responds to one commenter's request for clarification of 
how the employer could demonstrate that the atmosphere in the 
enclosed space is safe (Ex. 0186).
---------------------------------------------------------------------------

    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

[[Page 20381]]

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 Sec.  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 Sec.  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 Sec.  1910.146 
whenever the precautions required by final Sec. Sec.  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 Sec.  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 Sec.  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.
---------------------------------------------------------------------------

    \100\ OSHA also updated its consensus standards for general 
industry and maritime on September 9, 2009 (74 FR 46350). The Agency 
again updated the general industry and maritime standards with the 
June 22, 2012, direct final rule because OSHA published the proposal 
for the 2009 final rule before ANSI updated its head-protection 
standard that year.
---------------------------------------------------------------------------

    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 Sec. Sec.  
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 Sec.  1926.95(d), the general construction rule regarding payment 
for PPE, or Sec.  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 Sec.  
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 
Sec.  1910.132(h)).)
---------------------------------------------------------------------------

    \101\ The letter of interpretation to Mr. Mattiford is available 
at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=27014.
    \102\ The letter of interpretation to Mr. Niedenthal is 
available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=27091.
---------------------------------------------------------------------------

    OSHA included a note to final Sec.  1926.954(a) to indicate that 
Sec.  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 Sec.  1926.954(b), the electrical 
protective equipment required by final Sec.  1926.960(c), and the 
flame-resistant and arc-rated clothing and other protective equipment 
required by final Sec.  1926.960(g). (See the summary and explanation 
for Sec.  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

[[Page 20382]]

construction, contains provisions covering two types of personal fall 
protection systems: Personal fall arrest systems, addressed in Sec.  
1926.502(d), and positioning device systems, addressed in Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  1926.751.\103\)
---------------------------------------------------------------------------

    \103\ The term ``fall restraint system'' as defined in Sec.  
1926.751 is a broad term that includes travel-restricting equipment, 
tethering systems, and other systems that prevent an employee from 
falling any distance.
---------------------------------------------------------------------------

    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 Sec.  
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 Sec.  1910.269.\104\ The 
Agency is not, however, referencing IEEE Std 1307 in Sec.  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 Sec.  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 
Sec.  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\
---------------------------------------------------------------------------

    \104\ See the discussion of the appendices to the final rule, 
later in this section of the preamble. As explained in the 
appendices, the referenced national consensus standards, including 
IEEE Std 1307, contain detailed specifications that employers may 
follow in complying with the more performance-oriented requirements 
of OSHA's final rule. However, compliance with IEEE Std 1307 is not 
a substitute for compliance with Sec.  1926.954(b).
    \105\ IEEE Std 1307-2004 is the most recent edition of that 
consensus standard.
---------------------------------------------------------------------------

    Proposed paragraph (b)(1) provided that personal fall arrest 
systems had to meet the requirements of Subpart M of Part 1926. 
Existing Sec.  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 Sec.  1910.269, but noted OSHA's plan to revise 
the general industry fall protection standard. He recommended that 
Sec.  1910.269 and subpart V eventually be revised to refer to the 
updated general industry fall protection provisions:

    The existing general industry standard [Sec.  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 Sec.  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 Sec.  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, Sec.  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 Sec.  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.

[[Page 20383]]

    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/cm\2\, 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 Sec.  1910.269 are sometimes exposed to hazards posed by electric 
arcs. In fact, final Sec. Sec.  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 Sec. Sec.  
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 Sec.  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 Sec.  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 405 cal/cm\2\. 
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).
---------------------------------------------------------------------------

    \106\ The electric arc test required by this paragraph is a test 
exposing the equipment to an electric arc with a specified incident 
heat energy. ASTM F887-12\e1\ includes an electric-arc test method 
that involves positioning the fall arrest equipment in front of two 
vertically mounted electrodes. The electric arc forms between the 
electrodes.
---------------------------------------------------------------------------

    Paragraph (g)(1) of Sec.  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 405 
cal/cm\2\. Harnesses and shock-absorbing lanyards meeting ASTM F887-
12\e1\ \107\ will be deemed to comply with this provision.
---------------------------------------------------------------------------

    \107\ The final rule is based on the edition of the consensus 
standard that is in the record, ASTM F887-04, Standard 
Specifications for Personal Climbing Equipment (Ex. 0055). OSHA 
reviewed the most recent edition of this standard, ASTM F887-12\e1\, 
and found that equipment meeting that standard will also comply with 
final Sec.  1926.954(b)(1)(ii).
---------------------------------------------------------------------------

    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 Sec.  1910.269 are found in several standards. In 
construction, the construction aerial lift standard (Sec.  1926.453) 
and subpart M apply. For maintenance and operation work, the general 
industry aerial lift standard (Sec.  1910.67) and existing Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  
1926.453(b)(2)(v) explains that Sec.  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 Sec.  1926.502(e).
    Like the aerial lift standard in construction, the general industry 
aerial lift standard at Sec.  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 Sec.  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

[[Page 20384]]

arrest systems to protect employees doing work covered by Sec.  
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 Sec.  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 Sec.  1926.954(b)(3)(iv) (or proposed Sec.  
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 Sec.  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\
---------------------------------------------------------------------------

    \108\ See, for example, the following OSHA letters of 
interpretation:
    May 11, 2001, to Mr. Jessie L. Simmons (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24360);
    August 14, 2000, to Mr. Charles E. Hill (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24110); and
    April 20, 1998, to Mr. Jonathan Hemenway Glazier (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22569).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \109\ See, for example, the August 14, 2000, letter of 
interpretation to Mr. Charles E. Hill (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24110).
    \110\ This letter of interpretation is available at (http://osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22006.
    \111\ See also the following letters of interpretation:
    November 8, 2002, to Mr. Jeff Baum (http://osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24576); and
    November 2, 1995, to Mr. Mike Amen (http://osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21999).
---------------------------------------------------------------------------

    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

[[Page 20385]]

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.
---------------------------------------------------------------------------

    \112\ This document is available at http://www.cdc.gov/niosh/docs/99-145.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  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

[[Page 20386]]

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\
---------------------------------------------------------------------------

    \113\ Paragraph (d)(16) of Sec.  1926.502 requires a personal 
fall arrest system to be rigged so that the employee cannot free 
fall more than 6 feet (1.8 meters) nor contact any lower level. The 
Agency notes that the lanyard may need to be shorter than the 
maximum free-fall distance. This is the case for aerial lift work. 
The anchorage point on the boom of an aerial lift may be below the 
attachment point on the body belt or harness. As a result, the 
employee could free fall a distance equal to twice the length of the 
lanyard if he or she is ejected or catapulted from the aerial lift, 
as can happen when a vehicle strikes the aerial lift truck or a 
falling object, such as a tree branch, strikes the boom. This is not 
an unlikely event as several accidents in the record demonstrate 
(Ex. 0003; these three accidents can be viewed at http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=14507743&id=953869&id=14333157). Thus, the tree industry's 
recommended lanyard length could result in a free fall of 1.8 meters 
(6 feet).
---------------------------------------------------------------------------

    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

[[Page 20387]]

are associated with using body belts in fall arrest systems (id.).
---------------------------------------------------------------------------

    \114\ The description of this accident is available at: http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=170155857.
---------------------------------------------------------------------------

    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 Sec.  
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.).
---------------------------------------------------------------------------

    \115\ Hearon, B.F., Brinkley, J.W., ``Fall Arrest and Post-Fall 
Suspension: Literature Review and Directions for Further Research,'' 
AFAMRL-TR-84-021, April 1984.
---------------------------------------------------------------------------

    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 Sec.  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 (Sec.  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 Sec. Sec.  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 Sec. Sec.  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 Sec.  1910.269(g)(2)(iii)(C) and Note 1 to 
proposed Sec.  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 Sec.  1910.269(g)(2)(iv)(C)(2) and (g)(2)(iv)(C)(3) and 
Note 1 to Sec.  1926.954(b)(3)(iii)(B) and (b)(3)(iii)(C).)
    OSHA is adopting revised requirements for work-positioning 
equipment in Sec.  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

[[Page 20388]]

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 Sec.  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.
---------------------------------------------------------------------------

    \116\ In Sec.  1910.269(g)(2)(ii), OSHA proposed to require body 
belts and positioning straps for work positioning to meet Sec.  
1926.954(b)(2). The final rule duplicates the requirements of Sec.  
1926.954(b)(2) in Sec.  1910.269(g)(2)(iii) rather than referencing 
them.
    \117\ ``Safety straps'' is an older, deprecated term for 
``positioning straps.''
    \118\ Existing Sec.  1926.500(a)(3)(iii) states that additional 
performance requirements for personal climbing equipment, lineman's 
body belts, safety straps, and lanyards are provided in subpart V. 
OSHA is revising the language in this provision to make it 
consistent with the terms used in final Subpart V. Furthermore, 
because the Agency is adopting, in subpart V, an additional 
requirement for fall arrest equipment used by employees exposed to 
electric arcs (as described earlier in this section of the 
preamble), OSHA is adding fall arrest equipment to the list of 
equipment in Sec.  1926.500(a)(3)(iii). As revised, Sec.  
1926.500(a)(3)(iii) states that additional performance requirements 
for fall arrest and work-positioning equipment are provided in 
Subpart V.
---------------------------------------------------------------------------

    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 Sec.  
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 Sec.  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 Sec.  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 Sec.  
1926.502(d). However, existing Sec.  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 Sec.  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 Sec.  1926.954(b)(1)(ii).
---------------------------------------------------------------------------

    \119\ ASTM F887-12\e1\ uses the term ``adjustable positioning 
lanyards'' for equipment used as part of certain positioning 
devices. OSHA treats these lanyards as ``positioning straps'' under 
the final rule.
---------------------------------------------------------------------------

    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 Sec.  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

[[Page 20389]]

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 Sec.  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.
---------------------------------------------------------------------------

    \120\ The current edition of this standard, ASTM F887-12\e1\, 
also requires hardware to be made from drop-forged steel in Section 
15.4.1.1.
---------------------------------------------------------------------------

    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 Sec.  
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 Sec.  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 Sec.  
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.
---------------------------------------------------------------------------

    \121\ These requirements are also contained in the latest 
edition, ASTM F887-12\e1\, in Sections 14.2.1 and 15.2.1.1.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \122\ These requirements are also contained in the latest 
edition, ASTM F887-12\e1\, in Sections 14.2.2 and 15.2.1.2.
---------------------------------------------------------------------------

    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 Sec.  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.
---------------------------------------------------------------------------

    \123\ The dielectric and leakage-current tests required by these 
paragraphs involve attaching electrodes to the fall protection 
equipment, applying a test voltage across the electrodes, and 
checking for deterioration (in the case of the dielectric test) or 
measuring leakage current (in the case of the leakage-current test). 
ASTM F887-12\e1\ includes test methods for these two tests.
---------------------------------------------------------------------------

    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

[[Page 20390]]

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:
---------------------------------------------------------------------------

    \124\ The preamble to the proposal asked specifically about the 
withstand test requirement proposed in paragraph (b)(2)(vii)(A); 
however, most commenters responded to the question of whether there 
is a need to perform electrical tests on positioning straps (the 
withstand test and the leakage test proposed in paragraph 
(b)(2)(vii)(B)).

    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 Sec.  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 Sec.  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 Sec.  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-
12\e1\ (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 Sec.  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\
---------------------------------------------------------------------------

    \125\ These requirements are also contained in the latest 
edition, ASTM F887-12\e1\, in Section 15.3.2 and 15.3.3.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \126\ This requirement is also contained in the latest edition, 
ASTM F887-12\e1\, in Section 15.3.4.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  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.)

[[Page 20391]]

    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 Sec.  
1926.959(b)(2)(i) and (ii).
    Existing Sec.  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 
Sec.  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 Sec.  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 Sec.  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 1\1/2\ (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.''
---------------------------------------------------------------------------

    \127\ Section 14.3.1 in ASTM F887-12\e1\ contains an identical 
requirement.
---------------------------------------------------------------------------

* * * * *
    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 Sec.  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 Sec.  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\
---------------------------------------------------------------------------

    \128\ Existing Sec.  1926.959(b)(3) also requires the 100-
millimeter (4-inch) section of the body belt in the middle of the 
back to be free of tool loops and other attachments. This portion of 
the existing paragraph is retained as Sec.  1926.954(b)(2)(ix) in 
the final rule, as described previously.
---------------------------------------------------------------------------

    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 
Sec.  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.)

[[Page 20392]]

[GRAPHIC] [TIFF OMITTED] TR11AP14.000

    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.
---------------------------------------------------------------------------

    \129\ Descriptions of these two accidents can be viewed at: 
http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=922336&id=14340061.
---------------------------------------------------------------------------

    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

[[Page 20393]]

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 Sec.  
1926.959(b)(6).
---------------------------------------------------------------------------

    \130\ In proposed paragraphs (b)(2)(xi)(B) and (b)(2)(xi)(C), 
the metric units were not equal to the English units. The metric 
units were corrected in the final rule.
    \131\ These requirement are also contained in the latest 
edition, ASTM F887-12\e1\, in Section 15.4.2.1.
---------------------------------------------------------------------------

    Mr. Daniel Shipp with ISEA objected to these proposed requirements 
and maintained that the provisions on work-positioning equipment should 
be consistent with Sec.  1910.66 (Powered platforms for building 
maintenance), Appendix C, and Sec.  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 Sec.  1910.66 or in general construction 
work covered by Sec.  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,

[[Page 20394]]

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 Sec.  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\
---------------------------------------------------------------------------

    \132\ As noted earlier, existing Sec.  1926.959 covers body 
belts, safety straps, and lanyards as both fall arrest and work-
positioning equipment. Paragraph (b)(2) of final Sec.  1926.954 
covers only work-positioning equipment. Lanyards, which are used in 
fall arrest and are not covered in final Sec.  1926.954(b)(2), have 
to be capable of withstanding higher forces as required by Sec.  
1926.502(d)(9).
---------------------------------------------------------------------------

    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 Sec.  1926.959(b)(7) with 
a test modeled on the test specified in the 2004 ASTM standard.\133\
---------------------------------------------------------------------------

    \133\ ASTM F887-12\e1\ specifies equivalent test procedures and 
criteria for this equipment.
---------------------------------------------------------------------------

    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

[[Page 20395]]

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 
Sec.  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 F887-12 \e1\, 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\
---------------------------------------------------------------------------

    \134\ Body belts and safety straps that meet ASTM F887-12\e1\, 
but with the test weight adjusted as required by Sec.  
1926.954(b)(2)(xii)(A), will be deemed to be in compliance with 
final Sec.  1926.954(b)(2).
---------------------------------------------------------------------------

    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 F887-12\e1\, 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 Sec.  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 Sec.  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 Sec.  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 Sec.  
1926.502(e), as well as the provisions in proposed Sec.  
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 Sec.  1926.954(b)(2) in light of the rulemaking record for subpart 
V. As indicated by Mr. Daniel Shipp with ISEA, Sec.  1926.502(e) does 
not contain requirements comparable to those in final Sec.  
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 Sec.  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, Sec.  1926.502(e) does not contain requirements 
comparable to several other provisions of final Sec.  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 Sec.  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 F887-12 
\e1\. 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 Sec.  
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 Sec.  1910.269(g)(2) and Sec.  1926.502(d) and (e), regulating 
the care and use of fall protection equipment.

[[Page 20396]]

    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 Sec.  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 Sec.  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 Sec.  1926.502(d). Paragraph (d)(21) of Sec.  
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 Sec.  
1926.502(d)(21) will ensure that employees are not using fall arrest 
equipment that is not in safe working condition.\135\
---------------------------------------------------------------------------

    \135\ Subpart M, Appendix C, section II, paragraph (g) provides 
examples of defects that require removing equipment from service. 
Such defects include cuts, tears, abrasions, mold, or undue 
stretching; alterations or additions which might affect the 
efficiency of the equipment; damage due to deterioration; contact 
with fire, acids, or other corrosives; distorted hooks or faulty 
hook springs; tongues unfitted to the shoulder of buckles; loose or 
damaged mountings; nonfunctioning parts; or wearing or internal 
deterioration in the ropes.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  
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 Sec.  
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 Sec.  
1910.269(g)(2)(v). (In existing Sec.  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 
Sec.  1926.453 for aerial lifts).\136\
---------------------------------------------------------------------------

    \136\ As noted earlier, the corresponding note in the final rule 
does not pertain to fall protection for employees in aerial lifts or 
reference Sec.  1926.453.
---------------------------------------------------------------------------

    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 Sec.  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).

[[Page 20397]]

    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 Sec.  
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 (Sec.  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 Sec.  
1926.954(b)(3)(iii)(B), employers must provide employees with 
appropriate fall protection when they are in training to climb wood 
poles.\138\
---------------------------------------------------------------------------

    \137\ See, for example, the descriptions of five accidents at: 
http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=170157069&id=170181432&id=170175269&id=170176630&id=170204267.
    \138\ As stated in Note 2 to paragraphs (b)(3)(iii)(B) and 
(b)(3)(iii)(C), employees who have not completed training in 
climbing and the use of fall protection are not considered 
``qualified employees'' for the purposes of paragraph 
(b)(3)(iii)(C), which permits qualified employees to climb without 
fall protection in limited situations.
---------------------------------------------------------------------------

    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 Sec.  
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 Sec.  1910.269 to walking-working surfaces other 
than poles, towers, and similar structures was explained in the 
preamble to the 1994 Sec.  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 Sec.  1926.954(b)(3)(iii) does not apply, as 
recommended by Southern Company, would be inappropriate and misleading. 
Note 1 to proposed Sec.  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 Sec.  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 Sec.  1926.500(a)(2)(vi)).
---------------------------------------------------------------------------

    \139\ See, for example, the October 18, 1995, letter to Mr. 
Lonnie Bell (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21981) and the December 18, 
1997, letter to Mr. Dimitrios Mihou (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22508).

    As was clear from Note 1 to proposed Sec.  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 Sec.  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 Sec.  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

[[Page 20398]]

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 Sec.  
1926.954(b)(3)(iii) and proposed to remove the reference to travel-
restricting equipment in existing Sec.  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 Sec.  1910.269; the 
equivalent terms ``restraint system'' and ``tethering system'' are used 
consistently throughout other OSHA standards, such as Sec.  
1926.760(a)(1), and official letters of interpretation (id.). The term 
``fall restraint system,'' as defined in Sec.  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 Sec.  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 Sec. Sec.  
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 Sec.  1926.500(b) in subpart M. The Agency 
is not, however, including the descriptive text following the 
definition in Sec.  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 Sec.  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 Sec.  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\
---------------------------------------------------------------------------

    \140\ OSHA recommended more specific strength criteria in a 
letter of interpretation dated November 2, 1995, to Mr. Mike Amen 
(http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21999). This letter stated: ``OSHA has 
no specific standards for restraint systems, however, we suggest 
that as a minimum, fall restraint systems should have the capacity 
to withstand at least twice the maximum expected force that is 
needed to restrain the person from exposure to the fall hazard. In 
determining this force, consideration should be given to site-
specific factors such as the force generated by a person walking, 
leaning, or sliding down the working surface.''
---------------------------------------------------------------------------

    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.

[[Page 20399]]

    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 Sec.  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]

    \141\ A line worker using positioning equipment on a wood pole 
uses pole climbers, leg irons that are strapped to the worker's 
legs. A gaff, or spike, protrudes from the leg iron. The gaffs 
penetrate the wood of the pole and support the weight of the worker. 
A cutout occurs when the gaff slips out of the wood, allowing the 
worker to fall.

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 Sec.  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 Sec.  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 Sec.  
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

[[Page 20400]]

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 Sec.  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 Sec.  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 Sec.  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
----------------------------------------------------------------------------------------------------------------
                                                              Number of accidents \2\
        Type of fall \1\         -------------------------------------------------------------------------------
                                   1981-1989    1991-1993     1994     1995     1996     1997     1998     1999
----------------------------------------------------------------------------------------------------------------
Climbing \3\....................          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
----------------------------------------------------------------------------------------------------------------
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 Sec.   1910.269 final rule (59 FR 4373).
1991-1999--Exs. 0003 and 0400.

    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 Sec.  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 Sec.  1910.269.
---------------------------------------------------------------------------

    \142\ OSHA examined accident data for electric utilities for the 
years 2009 and 2010. In that industry alone, four employees were 
injured (three fatally) when they fell from structures supporting 
overhead power lines. (See the descriptions of these four accidents 
at: http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=202469680&id=202489316&id=201491990&id=201859964.) In half 
the cases, the employees were climbing or changing location.
---------------------------------------------------------------------------

    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 Sec.  
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\)
---------------------------------------------------------------------------

    \143\ See the descriptions of the two accidents at: http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=170374144&id=170611693.
    \144\ OSHA also has documentation, not included in this 
analysis, of three instances in which employees were killed when 
they fell from utility poles as a result of gaff cutout (http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=170252852&id=14422471&id=14412209).
---------------------------------------------------------------------------

    The current rule in Sec.  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

[[Page 20401]]

structure when climbing'' (Ex. 0230). The preamble to the 1994 final 
rule for Sec.  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).
---------------------------------------------------------------------------

    \145\ OSHA concludes that, in describing the ``climbing'' of 
poles or structures, rulemaking participants used the term 
``climbing'' broadly to indicate any employee movement, including 
``changing location,'' on poles or structures, as climbing a pole or 
structure to get to the working position involves the same 
horizontal and vertical movements as changing location vertically or 
horizontally on a pole or structure. OSHA also concludes that, in 
this context, rulemaking participants used the term ``working'' 
narrowly to indicate the activity of working in stationary positions 
on poles or structures and not broadly to also indicate the activity 
of climbing or changing location on poles or structures.
---------------------------------------------------------------------------

    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 Sec.  1910.269(g)(2)(v).
---------------------------------------------------------------------------

    \146\ A Pole Shark is a device that uses jaws and a spur wheel 
to grip the pole and provide an anchorage for climbing wood poles. A 
Pole Choker is a pole strap with an integrated choker strap. The 
employee tightens the choker strap against the pole to prevent the 
pole strap from sliding down the pole. Note that, throughout this 
notice, references to these and other products are examples only and 
do not constitute an endorsement by OSHA.
    \147\ A BuckSqueeze is a pole strap with an integrated choker 
strap. The employee tightens the choker strap against the pole to 
prevent the pole strap from sliding down the pole.
    \148\ Mr. Marchessault described a double-strap system for use 
on a pole (Tr. 587). OSHA believes that employers can adapt this 
system, using lanyards in place of positioning straps, for use on a 
tower or similar structure.
---------------------------------------------------------------------------

    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 Sec.  1910.269(g)(2)(v). In 
addition, OSHA notes that this provision does not affect fall 
protection requirements in final Sec.  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 Sec.  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 Sec.  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.
---------------------------------------------------------------------------

    \149\ This transcript is available for inspection and copying in 
OSHA's Docket Office, Docket No. S-015, U.S. Department of Labor, 
200 Constitution Avenue NW., Room N2625, Washington, DC 20210; 
telephone (202) 693-2350. (OSHA's TTY number is (877) 889-5627.) 
OSHA Docket Office hours of operation are 8:15 a.m. to 4:45 p.m., 
ET.
---------------------------------------------------------------------------

    In the intervening period, paragraph (b)(3)(iii)(C) of the final 
rule will apply the existing rule from Sec.  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

[[Page 20402]]

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 Sec.  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.
---------------------------------------------------------------------------

    \150\ Exhibits in the 1994 Sec.  1910.269 rulemaking record 
(denoted as ``269-Ex'') also are available in Docket Number S-015.
---------------------------------------------------------------------------

    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 Sec.  
1926.954(b)(3)(iii).
    Paragraph (e)(1) of Sec.  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 Sec.  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).

[[Page 20403]]

    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 Sec.  1926.954 
applies Subpart M only to fall arrest equipment. Paragraph (b)(3)(v) of 
final Sec.  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 F887-12\e1\, 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 F887-12\e1\ are deemed to meet the 
anchorage-strength requirement when they are used in accordance with 
manufacturers' instructions.
---------------------------------------------------------------------------

    \151\ Section 15.3.2 of ASTM F887-12\e1\ requires these devices, 
when new, to have a breaking strength of 13.3 kilonewtons (3,000 
pounds). Section 24 of that standard describes test procedures for 
these devices to ensure that they will successfully arrest a fall.
---------------------------------------------------------------------------

    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.

[[Page 20404]]

This provision, which duplicates Sec.  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 Sec.  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 Sec.  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 Sec.  1926.955(b). Proposed paragraph (a) 
also provided that the requirements for fixed ladders in subpart D of 
part 1910 (Sec.  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 
Sec.  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 Sec.  1926.955(a) nor the 
corresponding provision in the general industry standard, Sec.  
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 Sec.  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 
Sec.  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 
Sec.  1926.955(a) apply only to portable ladders and platforms, OSHA is 
revising the title of Sec.  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 Sec.  1910.269(h) the part 1910, subpart D 
provisions for fixed ladders because, as with final Sec.  1926.955, 
Sec.  1910.269(h) in the final rule covers only portable ladders and 
platforms. Therefore, OSHA is revising the title of Sec.  1910.269(h) 
to ``Portable ladders and platforms'' and is revising the regulatory 
text of final Sec.  1910.269(h)(1) to clarify that the paragraph 
applies to portable ladders and platforms, not fixed ladders. These 
changes make final Sec.  1910.269(h) consistent with final Sec.  
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 Sec.  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

[[Page 20405]]

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 Sec.  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 Sec.  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.
---------------------------------------------------------------------------

    \152\ Existing Sec.  1926.1053(b)(12) provides that ``[l]adders 
shall have nonconductive siderails if they are used where the 
employee or the ladder could contact exposed energized electrical 
equipment, except as provided in Sec.  1926.951(c)(1) of this 
part.'' In this final rule, OSHA is replacing the reference to Sec.  
1926.951(c)(1) with a reference to the corresponding provision in 
the final rule, Sec.  1926.955(c), and to final Sec.  1926.955(b), 
which exempts special ladders used for electrical work from the 
requirement for nonconductive siderails.
---------------------------------------------------------------------------

    Final paragraphs (b)(1) through (b)(4) and (c) provide employees 
with protection that is similar to the protection afforded to employees 
by Sec.  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 Sec.  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 Sec.  1926.1053 for 
portable ladders. OSHA revised the language in the final rule to 
clarify that the requirements in Sec.  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 Sec.  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, Sec.  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 Sec.  
1926.955(b)(1) in the final rule so that it covers only portable 
platforms.
    Paragraph (b)(2) of final Sec.  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 Sec.  1926.1053(b)(3).
    Paragraph (b)(3) of final Sec.  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 Sec.  1926.955(b)(3) constitutes 
compliance with Sec.  1926.1053(b)(6), (b)(7), and (b)(8).\154\
---------------------------------------------------------------------------

    \153\ It should be noted that, to meet paragraph (b)(3), 
employers must ensure that portable ladders and platforms are always 
secured when in use, regardless of the conditions of the surface on 
which the ladder is placed. For example, when a conductor platform, 
such as a cable cart, is suspended from a line conductor by a 
trolley or hooks, the platform must be secured to the conductor so 
that it cannot fall if the trolley or hooks become dislodged.
    \154\ It should also be noted that Sec.  1926.1053(b)(1), which 
requires that portable ladders be secured in certain situations, 
applies additional requirements when portable ladders are used to 
access an upper landing surface. Therefore, compliance with final 
Sec.  1926.955(b)(3) does not constitute compliance with these 
requirements.
---------------------------------------------------------------------------

    Paragraph (b)(4) of final Sec.  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 Sec.  
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 Sec.  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 Sec.  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

[[Page 20406]]

(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 Sec.  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 Sec.  1910.269(i). That 
provision was, in turn, derived from Sec.  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 Sec.  1926.956(b)(1), and its counterpart in 
existing Sec.  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 Sec.  
1926.956(b)(1) in the final rule and is removing existing Sec.  
1910.269(i)(2)(i) and is replacing the reference in existing Sec.  
1910.269(i)(2)(ii) (final Sec.  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 Sec.  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).
---------------------------------------------------------------------------

    \155\ See 70 FR 34856.
---------------------------------------------------------------------------

    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 
Sec. Sec.  1910.304(g)(6)(vi) and (g)(6)(vii) and 1926.404(f)(7)(iv), 
respectively, permit all three options, the standards (in Sec. Sec.  
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.)
---------------------------------------------------------------------------

    \156\ OSHA notes that TVA did not address the safety of using an 
isolating transformer with a secondary voltage of more than 50 volts 
during a plant outage. However, pursuant to the final rule, if TVA 
uses such a transformer during a plant outage or otherwise, that 
transformer must have a secondary voltage of not more than 50 volts.
---------------------------------------------------------------------------

    Paragraph (c) of final Sec.  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

[[Page 20407]]

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 Sec.  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 
Sec.  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 Sec.  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 Sec.  1926.950(i) 
exempts insulating hydraulic fluids from Sec.  1926.302(d)(1).
    OSHA proposed to continue this exemption in Sec.  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 Sec.  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 
Sec.  1910.269(i)(4)(iii), which is mirrored in final Sec.  
1926.956(d)(4).\158\
---------------------------------------------------------------------------

    \157\ A check valve blocks reverse flow of the hydraulic fluid 
and prevents the formation of a partial vacuum.
    \158\ OSHA notes that whether a partial vacuum will result in 
the loss of insulating value that triggers actions to prevent the 
formation of a partial vacuum depends on the voltage involved.
---------------------------------------------------------------------------

    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 Sec.  1926.957 is equivalent to existing Sec.  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

[[Page 20408]]

wire tongs, wire-tong supports, tension links, and switch, fuse, and 
tie sticks.
    Mr. Leo Muckerheide of Safety Consulting Services was concerned 
that proposed Sec.  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 Sec.  1926.957. 
Final Sec.  1926.957, and its general industry counterpart, final Sec.  
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.
---------------------------------------------------------------------------

    \159\ IEEE Std 516-2009 contains the same definition (Ex. 0532).
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  1926.957. Together with 
the minimum approach distances in Sec.  1926.960(c)(1), final paragraph 
(a) of Sec.  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 
Sec.  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 Sec.  
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 Sec.  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.
---------------------------------------------------------------------------

    \160\ A contaminated tool will fail more easily when wet than 
when dry (Ex. 0532). Tools are supposed to be wiped before use, in 
part to remove moisture.
---------------------------------------------------------------------------

    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 Sec.  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

[[Page 20409]]

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.
---------------------------------------------------------------------------

    \161\ A so-called ``dry test'' of a live-line tool is an 
electrical test performed on the tool after it is stored under 
ambient, low-humidity, test conditions for 24 hours. A so-called 
``wet test'' is an electrical test performed on the tool after the 
tool is placed in a high-humidity (at least 93-percent humidity) 
chamber for 168 hours. After conditioning and before testing, the 
tool is wiped with a dry cloth. Thus, the outside of the tool is dry 
during both tests.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \162\ When an employer removes a tool from service under final 
paragraph (b)(2) and inspects and tests it under final paragraph 
(b)(3), the 2-year cycle begins again on the date of the test.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  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 Sec.  1910.269 and 
proposed Sec.  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 Sec.  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 Sec.  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 Sec.  
1910.269 and final subpart V. In this case, the note to final Sec.  
1910.269(j)(2) includes an updated reference to IEEE Std 516-2009 to 
match the corresponding note to final Sec.  1926.957(b). (See the 
summary and explanation of Sec.  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 Sec.  1926.958 is equivalent to existing Sec.  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

[[Page 20410]]

revised its cranes and derricks standard, former Sec.  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 Sec.  1926.958(a). 
Work performed under subpart V is exempt from certain requirements in 
subpart CC. For example, Sec.  1926.1408(b)(5) exempts cranes and 
derricks used in subpart V work from Sec.  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.
---------------------------------------------------------------------------

    \163\ When subpart V was originally promulgated in 1972, that 
final rule also added a standard for aerial lifts to subpart N. That 
aerial lift standard, which originally appeared at Sec.  1926.556, 
eventually was redesignated as Sec.  1926.453, in subpart L. It 
should be noted that, except for Sec.  1926.453(b)(2)(v), the aerial 
lift standard still applies to work covered by subpart V even though 
it is not referenced in final Sec.  1926.958 or final Sec.  
1926.959. (See Sec.  1926.950(a)(2).) See, also, the summary and 
explanation for final Sec.  1926.954(b)(3)(iii) for a discussion of 
why the fall protection requirement in Sec.  1926.453(b)(2)(v) does 
not apply to work covered by Subpart V.
    \164\ Subpart CC applies to power-operated equipment, when used 
in construction, that can hoist, lower, and horizontally move a 
suspended load. The discussion of Subpart CC in the preamble to the 
Subpart V final rule refers to this equipment as ``cranes and 
derricks.''
---------------------------------------------------------------------------

    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, Sec.  1926.602 covers material-handling 
equipment. These provisions continue to apply even though they are not 
specifically mentioned in final Sec.  1926.958(a). (See final Sec.  
1926.950(a)(2).) To make this clear in the final rule, OSHA reworded 
Sec.  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 Sec.  1926.600(a)(6).\165\
---------------------------------------------------------------------------

    \165\ OSHA's revised standard for cranes and derricks at subpart 
CC requires minimum clearance distances for cranes and derricks, 
which, under certain conditions, are greater than the distances 
specified by final Sec.  1926.958(b)(1). Therefore, employers 
covered by subpart V must be knowledgeable about these requirements 
when they store materials that are lifted by equipment covered under 
subpart CC and may need to adjust the clearance distances for 
storing materials away from energized lines and equipment 
accordingly. (For work covered by subpart V, compliance with final 
Sec.  1926.959 is deemed compliance with the relevant requirements 
in subpart CC (per Sec.  1926.1400(g)). However, employers must 
comply with subpart CC clearance distances for work performed by 
unqualified employees because subpart V does not contain electrical 
safety-related work practices for those workers. See final Sec.  
1926.950(a)(1)(ii).)
---------------------------------------------------------------------------

    The work practices unqualified workers must use in handling 
material stored near energized lines, including in areas addressed by 
final Sec.  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 Sec.  1926.958(b)(1). (See the summary and 
explanation for final Sec.  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 Sec.  1926.950(a)(1)(ii), subpart 
V does not apply to electrical safety-related work practices for 
unqualified employees. Paragraph (b)(1) of final Sec.  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 Sec.  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 Sec.  
1926.966(b). (See the discussion of final Sec.  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 Sec.  
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 Sec.  1926.960(c)(1) applies. 
Employers must ensure that materials are stored outside the working 
space so that employees can quickly

[[Page 20411]]

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 Sec.  
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 Sec.  1926.600(a)(6), which does not 
apply to operations performed by qualified employees. Accordingly, 
Sec.  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 Sec.  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 Sec.  1926.950(b)(2)) and the use of special safety 
procedures for operations involving mechanical equipment (see Sec.  
1926.959(d)). Therefore, OSHA believes that the final rule will provide 
more appropriate protection for qualified electric power transmission 
and distribution workers than Sec.  1926.600(a)(6). OSHA revised the 
language of final Sec.  1926.959(a)(1) from the proposal to clarify 
this point and to be more consistent with final Sec.  1926.958(a).
    OSHA proposed to exempt subpart V operations performed by qualified 
employees from Sec.  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 Sec.  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 Sec.  
1910.269(p) as compliance with Sec. Sec.  1926.1407 through 1926.1411. 
(See Sec.  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 Sec.  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.
---------------------------------------------------------------------------

    \166\ See, for example, the seven accidents described at http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=951145&id=200200137&id=928168&id=908343&id=837740&id=14244818&id=564765.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \167\ Paragraphs (p)(1)(ii) and (p)(2) of existing Sec.  
1910.269 use the term ``vehicular equipment,'' which is not defined 
in existing Sec.  1910.269(x). Existing paragraph (p)(1)(ii) 
requires reverse-signal alarms under certain conditions. This 
paragraph ``is based on existing Sec. Sec.  1926.601(b)(4) and 
1926.602(a)(9)(ii)'' (59 FR 4399). Existing Sec.  1926.601(b)(4) 
contains a reverse-signal-alarm requirement applicable to motor 
vehicles, and existing Sec.  1926.602(a)(9)(ii) contains a similar 
requirement applicable to earthmoving and compacting equipment. 
Because those construction standards apply to motor vehicles and 
earthmoving and compacting equipment, the term ``vehicular 
equipment'' in existing Sec.  1910.269(p)(1)(ii), which OSHA drew 
from those construction standards, means motor vehicles and 
earthmoving and compacting equipment.
    Existing Sec.  1910.269(p)(2) generally requires vehicular 
equipment, if provided with outriggers, to be operated with the 
outriggers extended and firmly set. Thus, ``vehicular equipment'' in 
existing Sec.  1910.269(p)(2) applies more broadly to mobile 
equipment fitted with outriggers.
    In the final rule, OSHA is clarifying these two provisions in 
Sec.  1910.269 and the provision in Sec.  1926.959(b), which 
corresponds to existing Sec.  1910.269(p)(2). First, OSHA is 
replacing the term ``vehicular equipment'' in the introductory text 
to paragraph (p)(1)(ii) with ``motor vehicle or earthmoving or 
compacting equipment'' to make it clear that Sec.  
1910.269(p)(1)(ii) applies to the same equipment as Sec. Sec.  
1926.601(b)(4) and 1926.602(a)(9)(ii). Second, the Agency is using 
the term ``mobile equipment'' in final Sec. Sec.  1910.269(p)(2)(i) 
and 1926.959(b)(1) in place of the term ``vehicular equipment.'' 
``Mobile equipment,'' as used in these paragraphs, means mechanical 
equipment that is mounted on a body, such as a truck, that is used 
to transport the equipment.
---------------------------------------------------------------------------

    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

[[Page 20412]]

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.
---------------------------------------------------------------------------

    \168\ See the two accidents described at http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=170872162&id=201403771.
---------------------------------------------------------------------------

    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 (Sec. Sec.  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 Sec.  1926.959 
addresses this issue.

             Table 4--Accidents Involving the Operation of Mechanical Equipment Near Overhead Lines
----------------------------------------------------------------------------------------------------------------
                                                  Number of fatalities
                                          ------------------------------------
            Type of equipment                                Grounded                  Types of accident
                                            Total  ---------------------------
                                                      Yes       No       ?
----------------------------------------------------------------------------------------------------------------
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  .................................
----------------------------------------------------------------------------------------------------------------
Source: OSHA accident investigation data (269-Exs. 9-2 and 9-2A).

    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,''

[[Page 20413]]

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 Sec.  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 Sec.  1926.959(d)(1) was equivalent to existing Sec.  
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, Sec.  
1926.960(c)(1)(i) requires the employer to establish minimum approach 
distances. (See the summary and explanation of Sec.  1926.960(c)(1)(i), 
later in this section of the preamble.) Accordingly, final Sec.  
1926.959(d)(1) requires mechanical equipment to maintain ``the minimum 
approach distances, established by the employer under Sec.  
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 Sec.  
1926.968 as ``[n]ot isolated or guarded.'' The word ``isolated'' is 
defined in final Sec.  1926.968 as ``Not readily accessible to persons 
unless special means for access are used.'' (See the summary and 
explanation for final Sec.  1926.960(b)(3) for a discussion of this 
definition.) The word ``guarded'' is defined in final Sec.  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 Sec.  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 Sec.  1926.959(c) \169\ and other 
provisions would protect employees against the possibility that the 
aerial lift would strike down the power line (id.).
---------------------------------------------------------------------------

    \169\ Paragraph (c) of final Sec.  1926.959 requires mechanical 
equipment used to lift or move lines to be used within its maximum 
load rating and other design limitations. This provision will ensure 
that an aerial lift used to move an overhead line conductor is 
designed for that purpose and operated in a manner that will not 
cause the conductor to fail.
---------------------------------------------------------------------------

    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

[[Page 20414]]

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).
---------------------------------------------------------------------------

    \170\ Requiring the equipment to be operated by an employee in 
the aerial lift, who has better control over the distance between 
the equipment and the power line than an operator on the ground, 
also ensures that the line is not knocked down.
---------------------------------------------------------------------------

    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 Sec.  1926.960(c)(1). In addition, final Sec.  
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 Sec.  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\
---------------------------------------------------------------------------

    \171\ This provision contrasts with final paragraph (d)(1), 
which prohibits mechanical equipment (except, in some situations, 
the insulated portion of an aerial lift) from being taken closer 
than the minimum approach distance to exposed energized lines and 
equipment, but allows the equipment to be positioned so that it is 
possible to breach that distance.
---------------------------------------------------------------------------

    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

[[Page 20415]]

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 Sec.  
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 Sec.  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 Sec.  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

[[Page 20416]]

paragraph (d)(3)(iii) will protect employees from hazardous differences 
in electrical potential as explained in the preamble to the 1994 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  
1910.269(u)(4)(ii) and (v)(4)(ii) and final Sec.  1926.966(e)(2).) 
These are the areas to which final Sec.  1926.960(b)(1)(ii) (and the 
corresponding requirement in final Sec.  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 Sec.  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 Sec.  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 Sec.  
1926.961. Existing Sec.  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 Sec.  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 Sec.  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 
Sec.  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 Sec.  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,

[[Page 20417]]

    (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 Sec.  
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 Sec.  
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 Sec.  
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 Sec.  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 Sec.  
1910.269 was promulgated in 1994, the Agency concluded that there was 
``insufficient

[[Page 20418]]

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 Sec.  
1910.269 was fully in effect, the average dropped slightly to 2.5 
fatalities per year.

                                     Table 5--Fatalities by Voltage and Year
----------------------------------------------------------------------------------------------------------------
                                                                                                    100 kV and
                      Year                         600 V or less  601 V to 20 kV    20 to 80 kV       higher
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------
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.

    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\
---------------------------------------------------------------------------

    \172\ Electric shocks are responsible for a tiny proportion of 
the total number of injuries suffered by workers in the electric 
utility industry, as shown in ``Assessment of the Benefits of the 
Proposed Standard on Electric Power Generation, Transmission, and 
Distribution; Coding Results and Analysis,'' which is an analysis of 
reports of injuries in the electric utility industry for calendar 
year 1989 (Ex. 0081). As this report shows, the leading categories 
for nature of injury are sprains and strains, lacerations, 
contusions, and scratches and abrasions, which together accounted 
for over 70 percent of the injuries. Electric shock accounted for 
only 0.7 percent of the injuries.
---------------------------------------------------------------------------

    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 Sec.  
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 Sec.  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.].


[[Page 20419]]


    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.)
---------------------------------------------------------------------------

    \173\ Final paragraph (b)(3)(i)(B) requires the presence of a 
second employee when an employee installing deenergized lines is 
exposed to contact with parts energized at more than 600 volts. The 
operating voltage of the deenergized line has no bearing on whether 
a second person is required.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  
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 Sec.  1926.960(b)(3) ensures that 
employees at a substantial risk of electric shock are protected by the 
presence of a second person.
---------------------------------------------------------------------------

    \174\ Under final Sec.  1926.960(b)(3)(ii)(C), one employee 
working alone may perform emergency repair work involving parts 
energized at more than 600 volts, but only to the extent necessary 
to safeguard the general public.
---------------------------------------------------------------------------

    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, Sec.  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 
Sec.  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 Sec.  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 Sec.  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 Sec.  1910.269(l)(1), from which it 
adopted final paragraph (b)(3), explaining that an employee is 
``exposed to contact'' for purposes of Sec.  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 
Sec.  1926.960(c)(1) later in this section of the preamble for a 
discussion of the

[[Page 20420]]

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 Sec. Sec.  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.
---------------------------------------------------------------------------

    \175\ See the letter of interpretation dated October 18, 1995, 
to Mr. Lonnie Bell, http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21981.)
    \176\ The proposed rule and existing Sec.  1910.269 did not 
define ``isolated.'' However, existing Subpart V did define that 
term in Sec.  1926.960 as ``not readily accessible to persons unless 
special means of access are used.'' This definition is identical to 
the definition of this term in OSHA's electrical standards for 
general industry (Sec.  1910.399) and construction (Sec.  1926.449) 
and in the 2002 NESC (Ex. 0077). This definition also is consistent 
with the use of the term ``exposed to contact'' in final paragraph 
(b)(3). OSHA believes that defining ``isolated'' will help clarify 
the final rule. Consequently, OSHA included the definition of 
``isolated'' in final Sec. Sec.  1910.269(x) and 1926.968. The 
Agency also included ``exposed to contact'' as a synonym in the 
definition of ``exposed'' to clarify that the definition of 
``exposed'' also applies to the term used in final paragraph (b)(3).
    \177\ Section 1926.968 defines ``guarded'' as ``[c]overed, 
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.'' 
Subpart V recognizes two methods of guarding: barriers (or 
enclosures), which serve to ``minimize the possibility . . . of . . 
. inadvertent contact,'' and guarding by location, which serves to 
``minimize the possibility . . . of dangerous approach.'' As 
explained in the note to final Sec.  1926.966(f)(1), the 2002 NESC 
contains guidelines for the dimensions of clearance distances about 
electric equipment in substations. OSHA considers these clearance 
distances as minimizing the possibility of dangerous approach for 
employees and considers energized parts conforming to the clearance 
distances in the 2002 NESC to be guarded, unless employees bypass 
those distances (for example, by accessing a ``guarded'' area). (See 
also the summary and explanation for final Sec.  1926.966(f)(1) 
later in this section of the preamble.)
    \178\ IEEE Std 516 further clarifies the treatment of insulated 
cables (Exs. 0041, 0532). For example, Section 4.9.1 of IEEE Std 
516-2009 states:
    The following are considered to be live parts at their normal 
operating voltage unless they are properly grounded:
    * * * * *
    --Conductors--insulated unless they have solidly grounded and 
tested shields (The condition of the conductor insulation exposed to 
weather is unknown and may be damaged or defective.) [Ex. 0532]
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  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 Sec.  1910.269, when an employer 
is using portable protective gaps, it determines minimum approach 
distances using a specific methodology

[[Page 20421]]

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 Sec.  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 Sec.  
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 Sec.  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\
---------------------------------------------------------------------------

    \179\ Live-line barehand work is work performed with the 
employee at the same potential as one of the phase conductors. The 
employee is insulated, by air or another insulating medium, from the 
other phase conductors and from ground.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \180\ T is the ratio of the 2-percent statistical switching 
overvoltage expected at the worksite to the nominal peak line-to-
ground voltage of the system.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  1910.269(l)(2), although, as described 
later, OSHA proposed to make minor changes to the minimum approach 
distances listed in the existing Sec.  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

[[Page 20422]]

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 Sec.  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 Sec.  1910.269 on the 1993 
edition of the NESC. In this rulemaking, OSHA proposed to adopt 
slightly revised minimum approach distances for both Sec.  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.
---------------------------------------------------------------------------

    \181\ ANSI/IEEE Std 516-1987 (the edition in effect when NESC 
Subcommittee 8 revised the minimum approach distances for the 1993 
NESC) listed values for the electrical component of the minimum 
approach distance, both for air alone as an insulating medium and 
for live-line tool sticks in air, that were accepted as being 
accurate when the standard was adopted (by IEEE) in 1987.
---------------------------------------------------------------------------

     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.
---------------------------------------------------------------------------

    \182\ IEEE approved the 2012 NESC on April 14, 2011, and ANSI 
approved the 2012 NESC as an American National Standard on June 3, 
2011.
---------------------------------------------------------------------------

    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:
---------------------------------------------------------------------------

    \183\ The 2012 NESC adopts the 2009 IEEE Std 516 distances for 
certain voltage ranges and values of T and permits an engineering 
determination of minimum approach distances as an alternative.

    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:


[[Page 20423]]


    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 existing 
OSHA standards and the distances in the consensus standards], and I 
am going to answer this anecdotally based on my experience in 
representing employers in this industry.
    I have often, not often, but more than occasionally heard 
confusion expressed as to which standards are the applicable 
standards, whether they are the OSHA standards, whether they are the 
NESC standards. And as you heard Mr. Tomaseski say various companies 
adopt different [distances] for their own work practices.
    Now when you throw in the element of State plans, you further 
confuse the mix. So I think there is some confusion and I think you 
all heard him say here earlier, and I think we all agree it is time 
for there to be consistency. [Tr2. 102-103]

    EEI also pointed out that Section 6(b)(8) of the OSH Act requires 
OSHA to explain deviations from national consensus standards (Ex. 
0545.1). Mr. Charles Kelly testified to this point on behalf of EEI, as 
follows:

    Section 6(b)(8) of the Act expresses that OSHA standards should 
not deviate from National Consensus Standards without an adequate 
statement of reason.
    The NESC Committee may or may not adopt the precise distances 
stated in the IEEE documents. Therefore, if OSHA incorporates the 
IEEE distances in a final standard that is promulgated in the next 
year or so, OSHA [may] soon find its final standard at odds with 
even the newest version of the NESC.
    The NESC, however, is well recognized as the preeminent National 
Consensus Standard on clearance distances for electric utility work 
on high voltage lines and equipment. Such a result could only create 
confusion in the industry. [Tr2. 73]

Mr. Kelly also maintained that the NESC gives greater weight to the 
practical application of its rules than does IEEE and that OSHA should 
adhere to its past practice of basing its rules for minimum approach 
distances on the NESC, testifying:

    [B]y virtue of the nature of its membership and the mission of 
its Subcommittee 8, we daresay with due respect to IEEE Committee 
516, that the NESC's final standards on Work Rules tend to give more 
attention to the practical impact that its Rules will have in the 
workplace than do IEEE Technical Standards.
    [T]he 516 Standard is basically an engineering standard and 
built that way on the technical issues whereby the NESC Subcommittee 
8 Standard; it deals with the Work Rules and Worker Protection more 
specifically.
* * * * *
    The usual cycle, and as I mean the historical cycle that OSHA 
has followed, is that the IEEE 516 Standard develops its standard, 
ballots it and publishes the standard over a period of time.
    The NESC Subcommittee 8 reviews 516, develops their standard, 
tables, ballots, and publishes it in that order. Then OSHA usually 
comes in and reviews the documented proof by both groups, and 
incorporates the NESC document into its particular Rule.
    The above scenario reflects the past practices used by OSHA in 
its development of standards affecting electric power generation, 
transmission, and distribution work. [Tr2. 73-74]

    Although the Agency considered the commenters' suggestion to hold 
the record for this rulemaking open until IEEE approved the 2012 NESC, 
OSHA concludes that it is unnecessary to reopen the record to consider 
the 2012 NESC in this rulemaking. First, OSHA does not agree that 
adopting minimum approach distances that differ from the distances in 
the 2012 NESC will produce widespread confusion or lead to additional 
risk for employees in the electric power industry. As acknowledged by 
some of the rulemaking participants, the distances in existing Sec.  
1910.269 and Subpart V differed from the 2009 edition of the NESC. 
(See, for example, Tr2. 53, 102-103.) In fact, Mr. Tomaseski presented 
slides showing that there were many differences between the NESC, IEEE 
Std 516, and the OSHA standards (Ex. 0568). Rulemaking participants 
testified that they were not aware of any specific safety problems 
arising in the industry by virtue of these discrepancies. (See, for 
example, Tr2. 58, 102, 104). Also, counsel for EEI admitted that 
``[e]mployers are at least following OSHA standards. . . . Some are 
exceeding the values that are in the OSHA standards and adopting more 
conservative standards'' (Tr2. 104). In any event, evidence in the 
record indicates that consensus standards are constantly evolving (see 
for example, Tr2. 39-40, 142-143); therefore, if the Agency were to 
adopt the minimum approach distances from the 2012 NESC, it is likely 
that there would be differences between the OSHA standard and 
subsequent editions of the NESC.
    OSHA does not believe there is merit to the commenters' suggestion 
that the existence of State plan programs will be an additional source 
of confusion for employers. As noted in Section XI, State-Plan 
Requirements, later in this preamble, States with OSHA-approved 
occupational safety and health plans must adopt standards that are 
equivalent to, and at least as protective as, this final rule within 6 
months of its promulgation. Thus, States with State plans will adopt 
provisions on minimum approach distances that are at least as 
protective as the provisions in this final standard. On a technical 
issue such as minimum approach distances, OSHA expects that most States 
with State plans will choose to incorporate the federal provision as 
promulgated in this final rule, although it is possible that one or 
more of these States will adopt more protective provisions. Even if 
some States do adopt more protective standards, OSHA does not believe 
that the resultant differences will result in any significant confusion 
for employers.
    Public electric utilities in States with State occupational safety 
and health plans, including plans that cover only State and local 
government employees, will be required to comply with the applicable 
State plan standards. Public electric utilities in other States are not 
covered by a State plan or by the Federal OSHA standard and may choose 
to adhere to the NESC. Private-sector electric utilities must comply 
with the Federal or State plan OSHA standards that cover their 
worksites. This scheme is well established, and OSHA does not believe 
that employers will have difficulty determining the applicable 
requirements.
    As noted earlier, IBEW suggested that a conflict between the OSHA 
and the 2012 NESC minimum approach distances could be problematic for 
loan recipients in the United States Department of Agriculture's (USDA) 
Rural Development Electric Programs because, according to the union, 
utilities receiving USDA loans must comply with the NESC as a condition 
of their loans (Tr2. 151). These USDA programs

[[Page 20424]]

provide loans for electric services that meet certain standards, and 
IBEW is correct that the NESC is among the standards that these 
services must meet (7 CFR 1724.50). However, even if the loan programs 
require compliance with the minimum approach distances in the NESC, 
employers can meet both the OSHA and USDA loan-program requirements 
simply by adopting the more conservative (that is, larger) minimum 
approach distances. Therefore, differences between the minimum 
approach-distance provisions in this final rule and the minimum 
approach distances in the 2012 NESC should not be a problem for 
participants in the USDA programs.
    Second, the Agency does not believe that considering public input 
on the 2012 NESC will result in a standard that is more protective than 
the final rule. The NESC minimum approach distances are based on the 
minimum approach distances in IEEE Std 516-2009, on which OSHA already 
solicited public comment and provided opportunity for additional input 
at a public hearing (74 FR 46958). The 2012 NESC does not include any 
additional support for the IEEE minimum approach distances, which, as 
explained later in this section of the preamble, OSHA rejected. In 
addition, reopening the record for this rulemaking would further delay 
the final rule. Therefore, OSHA concludes that reopening the record to 
gather additional public comment on the 2012 NESC minimum approach 
distances is unwarranted.
    Finally, in response to the commenters' references to Section 
6(b)(8) of the OSH Act the Agency concludes that, with respect to 
minimum approach distances, this final rule ``will better effectuate 
the purposes of [the] Act'' than the 2012 edition of the NESC. (See the 
discussion under the heading OSHA's requirements on minimum approach 
distances better effectuate the purpose of the OSH Act than the 
national consensus standard, later in this section of the preamble.)
    Some commenters maintained that the minimum approach distances in 
the 2005 proposed rule, which were based on the 2002 NESC, were safe 
despite any technical errors potentially made in calculating those 
distances. (See, for example, Ex. 0545.1; Tr2. 79-82.) The commenters 
argued that industry experience establishes the safety of the existing 
minimum approach distances in Sec.  1910.269. (See, for example, Exs. 
0545.1, 0551.1.)
    American Electric Power argued against adopting minimum approach 
distances different from the minimum approach differences in OSHA's 
proposal, relying on calculations they made that were taken from a 
paper by Vaisman et al.\184\ (Ex. 0550.1). American Electric Power 
described this method as follows:
---------------------------------------------------------------------------

    \184\ Vaisman, R., Fonseca, J. R., Andrade, V. H. G., Almeida, 
M. A., Hattori, H. K., Melo, M. O. B. C., Teivelis, F., Fernandes, 
J. H. M., Silva, J. T. S., Dias, L. E. N., Esmeraldo, P. C. V., and 
Samico, R. A. M., ``Switching Impulse Strength of Compact 
Transmission Lines,'' IEEE Transactions on Power Delivery, Vol. 8, 
No. 3, July 1993 (Ex. 0555).

    The method is based on calculating V50[percnt] 
(critical flashover[\185\] voltage--CFO) and determining distances 
from the V50[percnt] value of conductor-to-
conductor gap test data. The V50[percnt] is 
derived from the required VW (withstand voltage), using 
the line-to-line overvoltage factor, TL-L. The required 
distance for [minimum air insulation distance] and MAD is then taken 
from . . . Figure 13 in an IEEE paper by Vaisman [footnote omitted] 
et al., 1993, which represents conductor-to-conductor gap test data 
from five different laboratories. The test data is based on [alpha] 
= 0.50 (ratio between the negative impulse crest and the phase to 
phase voltage) which provides more conservative results for 
V50[percnt] than [alpha] = 0.33 (Figure 12 of 
the aforementioned Vaisman paper). [Id.]
---------------------------------------------------------------------------

    \185\ IEEE Std 516-2009 defines ``flashover'' as ``[a] 
disruptive discharge through air around and over a surface of solid 
or liquid insulation, between parts at different potential or 
polarity, produced by application of voltage wherein the breakdown 
path becomes sufficiently ionized to maintain an electric arc'' (Ex. 
0532). That standard defines ``sparkover'' as ``[a] disruptive 
discharge between preset electrodes in either a gaseous or a liquid 
dielectric'' (id.). Thus, the more technically correct term for an 
electrical discharge across an air gap is ``sparkover.'' However, 
the term ``flashover'' has been used historically for either event, 
and this preamble uses these terms interchangeably. The critical 
flashover distance, V50 or 
V50[percnt], is the distance that will 
flashover 50 percent of the time at a given voltage.

American Electric Power calculated V50[percnt] to 
be 2421 kilovolts for an 800-kilovolt power line (id.). From Figure 13 
of the Vaisman paper, American Electric Power determined that the 
corresponding minimum air-insulation distance (the electrical component 
of the minimum approach distance) was 6.52 meters (21.4 feet) and that 
the minimum approach distance (with the ergonomic component included as 
explained later in this section of the preamble) was 6.82 meters (22.4 
feet). American Electric Power contrasted this with the corresponding 
7.91-meter (26-foot) minimum approach distance proposed by OSHA and 
concluded that the proposed value was adequately protective (id.). 
(See, also, Ex. 0545.1, in which EEI makes a similar argument based on 
the Vaisman paper.)
    As explained in greater detail later in this section of the 
preamble, OSHA concludes that the proposed minimum approach distances 
do not provide adequate safety for employees. In addition, OSHA finds 
that there are two basic problems with American Electric Power's 
comparison of the proposed 800-kilovolt minimum approach distance and 
what it considers to be a safe approach distance. First, as is clear 
from the Vaisman paper (Ex. 0555), the distances in Figure 13 of that 
paper (which correspond to [alpha] = 0.50) are less conservative than 
the distances in Figure 12 of that paper (corresponding to [alpha] = 
0.33).\186\ The air-insulation distance from Figure 12 appears to be 
about 7.8 meters (25.6 feet). Adding the 0.31-meter (1-foot) ergonomic 
component yields a comparable minimum approach distance of 8.11 meters 
(26.6 feet), which is clearly more protective than the 7.91-meter (26-
foot) minimum approach distance proposed by OSHA in 2005.\187\
---------------------------------------------------------------------------

    \186\ American Electric Power commented that an [alpha] of 0.50 
``provides more conservative results for V50[percnt] 
than [alpha] = 0.33'' (Ex. 0550.1). This comment may be true, but it 
is irrelevant. For a given V50[percnt], an 
[alpha] of 0.33 produces a more conservative (that is, greater) 
minimum approach distance, as is the case here.
    \187\ The quality of Figures 12 and 13 in the original Vaisman 
paper is poor, and it is difficult to accurately determine the 
distance (Ex. 0555). The figures included in American Electric 
Power's and EEI's exhibits, which apparently recreated Figure 13 
from the Vaisman paper, were of much better quality (Exs. 0550.1 and 
0545.1).
---------------------------------------------------------------------------

    Second, the testing that serves as the basis for Figures 12 and 13 
of the Vaisman paper determined the switching impulse strength of two 
conductors in parallel (Ex. 0555). From the paper's description of the 
test procedure, OSHA concludes that the testing did not account for 
different configurations that could be present during live-line work or 
for the presence of workers and the tools and equipment they would be 
using to perform this work. As explained later in this section of the 
preamble, different electrode configurations and the presence of 
workers and other conductive objects in the gap between them can reduce 
the electrical strength of the air gap substantially. Thus, although 
American Electric Power's and EEI's approach may validly estimate the 
strength of a power line while no work is being performed, OSHA 
concludes that this approach fails to represent employee exposure 
adequately.
    For reasons described later in this section of the preamble, the 
Agency concludes that there is a significant risk to employees from the 
minimum approach distances contained in existing Sec.  1910.269 and 
Subpart V. In addition, OSHA concludes that it has enough information 
in the rulemaking record to set appropriate minimum approach-distance 
requirements.

[[Page 20425]]

Consequently, the Agency decided that it is necessary and appropriate 
to include revised minimum approach-distance provisions in this final 
rule.
    The ergonomic component of MAD. The ergonomic-movement component of 
the minimum approach distance is a safety factor designed to ensure 
that the employee does not breach the electrical component of the 
minimum approach distance in case he or she errs in judging and 
maintaining the minimum approach distance. In developing the minimum 
approach distance tables for its 1993 standard, the NESC subcommittee 
based the ergonomic-movement factor (the ergonomic component of MAD) on 
relevant data, including a typical arm's reach of about 610 millimeters 
(2 feet) and a reaction time to a stimulus ranging from 0.2 to more 
than 1.0 second (269-Ex. 8-19). As OSHA explained in the preamble to 
the proposal, the ergonomic-movement factor must be sufficient for the 
employee to be able to recognize a hazardous approach to an energized 
line and withdraw to a safe position so that he or she does not breach 
the air gap required for the electrical component of the minimum 
approach distance (70 FR 34862). Thus, the ergonomic-movement distance 
should equal the response time multiplied by the average speed of an 
employee's movement plus the stopping distance.\188\ The maximum reach 
(or range of movement) may place an upper bound on the ergonomic 
component. The NESC subcommittee developing the 1993 standard used this 
information as a basis for selecting appropriate distances for two 
major voltage ranges: 1.1 to 72.5 kilovolts and 72.6 kilovolts and 
more.
---------------------------------------------------------------------------

    \188\ This calculation is comparable to the calculation of total 
braking distance for a motor vehicle. This distance equals the 
initial speed of the vehicle times the driver's reaction time plus 
the stopping distance of the vehicle after the driver applies the 
brakes.
---------------------------------------------------------------------------

    For system voltages up to 72.5 kilovolts, phase-to-phase, much of 
the work is performed using rubber gloves, and the employee is working 
within arm's reach of energized parts. The ergonomic component of the 
minimum approach distance must account for this condition since the 
employee may not have time to react and position himself or herself out 
of danger. A distance of 0.61 meters (2 feet) for the ergonomic 
component appears to meet this criterion and was, therefore, adopted by 
the NESC subcommittee developing the 1993 standard. This ergonomic 
component remained the same in the 2007 NESC, except that the standard 
applied it to voltages as low as 751 volts instead of 1100 volts (Ex. 
0533).\189\ OSHA used this value in existing Sec.  1910.269 for 
voltages of 1.1 to 72.5 kilovolts and proposed to use it in Subpart V 
for voltages of 751 volts to 72.5 kilovolts. There were no objections 
to this distance on the record.\190\ Therefore, for voltages of 751 
volts to 72.5 kilovolts, the final rule adopts a 0.61-meter (2-foot) 
ergonomic-movement component of the minimum approach distance, as 
proposed.
---------------------------------------------------------------------------

    \189\ At all voltages, the values for the ergonomic component of 
the minimum approach distance are the same in the 2012 NESC as they 
are in the 2007 NESC.
    \190\ EEI did, however, object to what it mistakenly believed 
was a proposed increase in the ergonomic component over what was 
adopted in existing Sec.  1910.269 (Exs. 0227, 0501; Tr. 1056-1082). 
OSHA discusses these comments later in this section of the preamble.
---------------------------------------------------------------------------

    As OSHA explained in the preamble to the proposed rule, the 
applicable work practices change for operations involving lines 
energized at voltages over 72.5 kilovolts (70 FR 34862; 269-Exs. 64, 
65). Generally, live-line tools are employed to perform the work while 
equipment is energized. These tools hold the energized part at a fixed 
distance from the employee, ensuring that the minimum approach distance 
is maintained during the work operation. Even when live-line tools are 
not used, as during live-line barehand work, employees use work methods 
that more tightly control their movements than when they perform rubber 
glove work, and it is usually easier to plan how to keep employees from 
violating the minimum approach distance. For example, employees 
planning a job to replace spacers on a 500-kilovolt overhead power line 
can circumscribe an envelope (or bounds) of anticipated movement for 
the job and ensure that the working position they select keeps this 
envelope entirely outside the minimum approach distance. Thus, all the 
employees' movements during the job can easily be kept within the 
envelope. Additionally, there is limited or no exposure to conductors 
at a potential different from the one on which work is being performed 
because the distance between conductors is much greater than the 
distance between conductors at lower voltages and higher voltage 
systems do not present the types of congestion that are found commonly 
on lower voltage systems. Consequently, a smaller ergonomic component 
is appropriate for higher voltages. The NESC subcommittee developing 
the 1993 standard accepted a value of 0.31 meters (1 foot) for this 
component. This ergonomic component also remained the same in the 2007 
NESC (Ex. 0533). OSHA used this value in existing Sec.  1910.269 and 
proposed it in this rulemaking. There were no comments on this issue in 
this rulemaking, therefore, OSHA is adopting the proposed ergonomic-
movement component of 0.31 meters (1 foot) for voltages over 72.5 
kilovolts.\191\
---------------------------------------------------------------------------

    \191\ In the 1994 Sec.  1910.269 rulemaking, OSHA adopted an 
ergonomic-movement factor based on English units of 1 foot or 2 
feet, depending on voltage. It should be noted that, to three 
significant digits, 0.305 meters is 1.00 foot and 0.610 meters is 
2.00 feet. In this final rule, OSHA used metric units and rounded 
0.305 meters up to 0.31 meters.
---------------------------------------------------------------------------

    EEI misconstrued OSHA's proposal as increasing the ergonomic-
movement component in existing Sec.  1910.269 by 0.61 meters (2 feet), 
for a total ergonomic component of 1.22 meters (4 feet) for voltages up 
to 72.5 kilovolts (Exs. 0227, 0392; Tr. 1056-1082). Testifying on 
behalf of EEI, Mr. Clayton Abernathy of OG&E Energy Corporation 
described how increasing the minimum approach distance by 0.61 meters 
would restrict some of the work performed by his company's employees 
(Tr. 1056-1082).
    The ergonomic components of the minimum approach distances in 
OSHA's proposal were the same as the ergonomic components used for the 
minimum approach distances in existing Sec.  1910.269 for voltages over 
1,000 volts. The ergonomic component for voltages between 751 volts and 
72.5 kilovolts (the voltages addressed by EEI's comments) is 0.61 
meters. The ergonomic component of the proposed minimum approach 
distances for those voltages was not, contrary to EEI's suggestion, 
greater than that value. It appears that EEI's objections were aimed at 
two other proposed requirements: (1) Proposed Sec.  1926.960(c)(2)(ii), 
which provided that, when using rubber insulating gloves or rubber 
insulating gloves with sleeves for insulation against energized parts, 
employees put on and take off their rubber insulating gloves and 
sleeves when they are in positions from which they cannot reach into 
the minimum approach distance, and (2) proposed Sec.  1926.960(d)(2), 
which provided that employees performing work near exposed parts 
energized at 601 volts to 72.5 kilovolts either work from positions 
from which they cannot reach into the minimum approach distance or use 
specified protective measures or work methods. OSHA addresses EEI's 
concerns with these proposed provisions later in this section of the 
preamble.
    Finally, OSHA addresses some confusion expressed by commenters 
during the rulemaking about whether

[[Page 20426]]

the ergonomic component of the minimum approach distance should be used 
in determining whether a line worker is exposed to phase-to-phase or 
phase-to-ground voltage (Tr. 1060-1061, 1076-1077).
    As noted earlier in this section of the preamble, under the summary 
and explanation for final Sec.  1926.97(c)(2)(i) and Table E-4, the 
final rule permits insulating protective equipment to be rated for 
phase-to-ground voltage if ``[t]he electric equipment and devices are 
insulated . . . so that the multiphase exposure on a grounded wye 
circuit is removed'' (Table E-4, Note 1).\192\ Existing Sec.  1910.137 
and Table I-5 contain the same provisions. OSHA policy with regard to 
whether there is multiphase exposure under existing Sec.  1910.137 is 
discussed in a September 27, 2005, letter of interpretation to Mr. 
Edwin Hill, IBEW President.\193\ This letter explains how to determine 
whether multiphase exposure exists:
---------------------------------------------------------------------------

    \192\ Note that the word ``exposure'' in the note relates to the 
maximum voltage that can appear across the insulation, and not to 
whether an energized part is ``exposed.'' The definition of 
``exposed'' in final Sec.  1926.968 applies only to the use of that 
term in Subpart V. It does not apply to final Sec.  1926.97.
    \193\ This letter is available on OSHA's Web site at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25133.

    Phase-to-phase exposure exists whenever it is foreseeable that 
an employee or the longest conductive object he or she may handle 
can simultaneously breach the electrical components of the MADs of 
live parts energized at different phase potentials, taking into 
account such factors as: The nature of the work being performed, the 
physical configuration and spacing of the conductors, the proximity 
of grounded objects or other circuit conductors, the method of 
approach to the conductors, the size of the employee, the tools and 
equipment being used, and the length of the conductive object. In 
addition, the employer must always consider mechanical loads and 
other conditions, such as wind and ice, that could cause a conductor 
to move or a support to fail. Notably, the determination of whether 
or not multiphase exposure exists is made without regard to 
insulation that may be covering the live part or the employee. This 
is because the exposure determination must be made prior to the 
selection of insulation in order to ensure that the insulation 
selected is adequate to protect employees from the electrical 
hazard. Moreover, it must be noted that phase-to-phase exposure 
involves not only the hazard of electric shock to the employee, but 
also arc flash and arc blast hazards from phase-to-phase contact of 
conductive objects, such as could occur if an employee dropped a 
conductive object onto or within the electrical components of the 
MADs of live parts energized at different phase potentials. 
[Figures] illustrating when phase-to-phase exposure exists can be 
---------------------------------------------------------------------------
found at the conclusion of this letter. . . .

Figure 3 and Figure 4 are the figures from that letter:
[GRAPHIC] [TIFF OMITTED] TR11AP14.001


[[Page 20427]]


[GRAPHIC] [TIFF OMITTED] TR11AP14.002

    The 0.61-meter ergonomic component of the minimum approach distance 
is labeled ``2 feet'' in these figures. As can be seen from the 
explanation and figures in the letter of interpretation, the ergonomic 
component of the minimum approach distance has no bearing on whether 
there is multiphase exposure. The rating required for the insulating 
protective equipment installed on the phase conductors depends on the 
electrical component of the minimum approach distance (which, in turn, 
depends on the voltage on the power line, as discussed later in this 
section of the preamble), the distance between the phase conductors, 
and the reach of the employee and any conductive object he or she may 
handle while working. As noted in the letter to Mr. Hill, when 
multiphase exposure exists, the insulating protective equipment used to 
remove multiphase exposure must be rated for the phase-to-phase voltage 
at a minimum.\194\ In addition, the preamble to the 1994 Sec.  1910.269 
rulemaking noted that ``until the multiphase exposure has actually been 
removed, the phase-to-phase voltage remains the maximum use voltage'' 
(59 FR 4328). After the insulating protective equipment covering the 
conductors not being worked on is in place, the rubber insulating 
gloves and sleeves need only be rated for the phase-to-ground voltage. 
This is current OSHA policy under existing Sec. Sec.  1910.137 and 
1910.269 and will continue to be the policy of the Agency under this 
final rule.
---------------------------------------------------------------------------

    \194\ It should be noted that the insulating values of two 
insulating materials in series are not additive (Exs. 0041, 0532; 
269-Ex. 60). At least one layer of insulation must be rated for the 
maximum voltage for the exposure.
---------------------------------------------------------------------------

    The electrical component of MAD--general. The differences between 
the minimum approach distances under existing Sec.  1910.269 and the 
minimum approach distances under this final rule are the result of 
changes in the way the Agency is calculating the electrical components 
of the minimum approach distances. As described previously, this final 
rule adopts the ergonomic components of the minimum approach distances 
used in existing Sec.  1910.269. In addition, as explained later in 
this section of the preamble, the number of variables (such as 
elevation, maximum transient overvoltage, type of exposure, and type of 
insulating medium) involved in determining the appropriate minimum 
approach distance in any particular set of circumstances makes setting 
minimum approach distances exclusively by means of tables unmanageable. 
This approach would require one set of tables for each potential set of 
variables. Consequently, the final rule requires the employer to 
establish an appropriate minimum approach distance based on equations 
that OSHA is adopting in Table V-2. The final rule also contains a 
table, Table V-5, that specifies alternative minimum approach distances 
for work done at elevations not exceeding 900 meters (3,000 feet) for 
system voltages of 72.5 kilovolts and less. Finally, Appendix B to 
final subpart V contains tables of minimum approach distances, for 
varying maximum transient overvoltages for system voltages above 72.5 
kilovolts, that employers may use for work done at elevations not 
exceeding 900 meters.
    Some rulemaking participants questioned the need for any changes to 
the minimum approach distances in existing Sec.  1910.269. (See, for 
example, Exs. 0227, 0545.1, 0551.1, 0552.1; Tr2. 71.) For instance, Mr. 
Charles Kelly with EEI testified:

    [U]nder Sections 3(8) and 6(b) of the Occupational Safety and 
Health Act, as long interpreted by the Supreme Court, OSHA [is] 
required to show that the change[s] in the clearance distances are, 
as a matter of substantial evidence, reasonably necessary to protect 
employees, and that they would reduce or eliminate a significant 
risk for employees.
    As several people have stated previous to our testimony, we are 
not aware that the existing MAD distances, even though they may have 
been mathematically incorrect for decades, have shown to be unsafe 
in that they have contributed to accidents or placed employees at 
substantial risk of harm. We doubt seriously that a desire to make a 
technical mathematical correction is enough to satisfy this 
requirement. [Tr2. 71-72]

IBEW also maintained that the minimum approach distances in existing 
Sec.  1910.269 are adequate:

    It is important to look at how the use [of] MAD values, 
regardless of the origin and year of publication, have protected 
workers performing tasks in the vicinity of energized power lines. 
The IBEW regularly reviews accidents occurring in the electric 
utility industry. We cannot remember a single accident caused by 
inadequate MAD values. OSHA 1910.269 MAD values have proven to 
protect workers as they were intended to do. The obvious question 
then is why change successful MAD values? Based on industry 
performance, we do not see why changes are necessary. [Ex. 0551.1]


[[Page 20428]]


    As OSHA explained in Section II.D, Significant Risk and Reduction 
in Risk, earlier in this preamble, the Agency need not make hazard-
specific or provision-specific risk findings. In any event, the Agency 
concludes that the electric-shock hazards faced by employees performing 
electric power generation, transmission, and distribution work are 
serious and significant and that the changes to the minimum approach-
distance provisions in this final rule are reasonably necessary and 
appropriate to reduce a significant risk to employees.
    OSHA finds that employees are being injured by the dielectric 
failure of air (that is, sparkover) between them (or a conductive 
object they are handling) and conductive objects at a different 
potential. It is widely recognized that electric current can arc over 
distances and that it is necessary only to come too close to, rather 
than contact, an energized object to sustain an electric shock. In 
fact, some of the accidents in the record occurred when an employee 
brought a conductive object or himself or herself too close to an 
energized part and electric current arced to the object or employee 
(Exs. 0002,\195\ 0003 \196\).
---------------------------------------------------------------------------

    \195\ See, for example, the five accidents described at http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=908012&id=170220602&id=564740&id=14496384&id=14418321.
    \196\ See, for example, the three accidents described at http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=200000453&id=201350485&id=596304.
---------------------------------------------------------------------------

    The Agency does not believe that it is necessary to show that the 
specific minimum approach distances in the existing standards have led 
to accidents. Instead, it is only necessary to show that the 
probability of sparkover at the worksite, given the existing minimum 
approach distances, is significant. The sparkover voltage between two 
objects at different potentials is recognized as following a normal 
distribution (Ex. 0532). The withstand voltage for an air gap between 
two objects at different potentials is three standard deviations below 
the statistical mean sparkover voltage. This represents approximately a 
1 in 1,000 probability that the air gap will fail dielectrically and 
spark over.\197\ The withstand distance is the distance between two 
objects corresponding to a given withstand voltage. (In other words, 
the withstand distance is the shortest distance between two objects 
that will spark over at a given voltage approximately one time in 
1,000.) Consensus standards have based the electrical component of the 
minimum approach distance on the withstand distance corresponding to 
the maximum voltage that can occur at the worksite. (See, for example, 
Exs. 0076, 0077, 0532, 0533.) When the electrical component of the 
minimum approach distance is less than the withstand distance for the 
maximum voltage at the worksite, the probability of sparkover is 
greater than 1 in 1,000. OSHA, therefore, concludes that employees are 
at significant risk of injury whenever the electrical component of the 
minimum approach distance is less than the withstand distance for the 
maximum voltage that can occur at the worksite. As explained in detail 
later in this section of the preamble, several of the minimum approach 
distances contained in the existing OSHA standards and in the proposed 
rule represent a significant risk of injury under this criterion.
---------------------------------------------------------------------------

    \197\ The probability of sparkover at the withstand voltage is 
0.14 percent or 1.4 in 1,000.
---------------------------------------------------------------------------

    The electrical component of MAD--tools and conductive objects in 
the air gap. The methodology used to develop the proposed minimum 
approach distances, which were based on the 2002 NESC, did not account 
for tools in the air gap. As noted in the 2009 reopening notice, the 
presence of an insulated tool in the air gap reduces the air gap's 
dielectric strength (74 FR 46961). IEEE Std 516-2009 (Ex. 0532) 
generally provides two values for the electrical component of the 
minimum approach distance: One in air (called MAID \198\) and one with 
a tool in the air gap (called MTID \199\). However, that consensus 
standard does not provide minimum tool-insulation distances for either: 
(1) Any exposures (phase-to-ground or phase-to-phase) at voltages of 
72.5 kilovolts or less or (2) phase-to-phase exposures at voltages of 
more than 72.5 kilovolts. In the 2009 reopening notice, the Agency 
requested comments on whether any of the minimum approach distances in 
the final rule should be based on minimum tool-insulation distances 
rather than minimum air-insulation distances. A similar question was 
raised in the 2008 reopening notice.
---------------------------------------------------------------------------

    \198\ MAID is the minimum air-insulation distance.
    \199\ MTID is the minimum tool-insulation distance.
---------------------------------------------------------------------------

    Scenario 1--exposures at 72.5 kilovolts and less. Rulemaking 
participants generally opposed basing minimum approach distances for 
voltages of 72.5 kilovolts and less on minimum tool distances. (See, 
for example, Exs. 0543.1, 0545.1, 0548.1, 0550.1; Tr2. 88.) For 
instance, Pike Electric commented, ``Pike utilizes proper rubber 
protective cover-up at . . . voltages [of 72.5 kilovolts and lower]. 
This technique would eliminate the hazard of employee exposure to 
energized lines and equipment, so there is no need to utilize a MAD 
approach using tool insulation distances'' (Ex. 0543.1). EEI and 
Southern Company argued that only one set of minimum approach distances 
is necessary for work on systems operating at voltages of 72.5 
kilovolts and less because, based on IEEE Std 516-2009, minimum tool 
distances and minimum air distances are the same at those voltages 
(Exs. 0545.1, 0548.1). American Electric Power maintained that, for 
voltages at or less than 72.5 kilovolts, MAD has not been based on 
minimum tool distances in the past, so doing so now could potentially 
confuse workers (Ex. 0550.1).
    IEEE Std 516-2009 defines MTID as ``the required undisturbed air 
insulation distance that is needed to prevent a tool flashover at the 
worksite during a system event that results in the maximum anticipated 
TOV'' (Ex. 0532). Although the specified minimum tool distances in IEEE 
Std 516-2009 are the same as the corresponding minimum air-insulation 
distances for voltages of 72.5 kilovolts and less, the consensus 
standard includes the following disclaimer in Section 4.5.2.1: ``The 
MTID for ac and dc line-to-line voltages at and below 72.5 kV has not 
been determined. Industry practices normally use an MTID that is the 
same as or greater than the MAID'' (id.; emphasis added). Thus, IEEE 
Std 516-2009 does not indicate that the minimum air- and tool-
insulation distances are the same, nor does it contain tables with 
minimum tool-insulation distances for voltages of 72.5 kilovolts and 
less. According to IEEE Std 516-2009, electrical testing at higher 
voltages indicates that the dielectric strength of an air gap is lower 
when an insulating tool is present across the gap or when a conductive 
object is present within the gap (id.). OSHA concludes that minimum 
approach distances for voltages of 72.5 kilovolts and less should be 
conservative enough so that the gap will withstand the electric 
potential across it even if a tool bridges the gap or a conductive 
object is present within it. As explained later in this section of the 
preamble, the final rule specifies minimum approach distances that meet 
this criterion. Because the final rule does not adopt separate minimum 
approach distances for exposures with and without tools at 72.5 
kilovolts and less, the concerns about confusion at these voltages are 
unfounded.
    Scenario 2--phase-to-ground exposures at more than 72.5 kilovolts. 
Some commenters maintained that the final rule should follow the 
practice of

[[Page 20429]]

the 2007 NESC and base minimum approach distances for phase-to-ground 
exposures at voltages of 72.6 kilovolts and higher on the minimum tool 
distance. (See, for example, Exs. 0519, 0521, 0528, 0543.1.) For 
instance, Mr. Brian Erga with ESCI commented:

    The MAD for voltages above 72.6 kV should be based on the 
minimum tool distance as published in the 2007 NESC. Live line work 
is conducted with tools, workers and equipment within the electrical 
field of energized lines and equipment[,] and the minimum tool 
distance is correct information to be provided to the industry. [Ex. 
0521]

    Others suggested that the final rule include two sets of minimum 
approach distances for phase-to-ground exposures at voltages exceeding 
72.5 kilovolts: One each for work performed with and without tools in 
the air gap. (See, for example, Exs. 0545.1, 0548.1, 0575.1; Tr2. 88.) 
For instance, Mr. Charles Shaw with Southern Company commented:

    In the proposed rule, OSHA is using minimum air insulation 
distances when a line worker is using a tool in the air gap. 
Allowing the minimum air insulation distance plus an inadvertent 
movement factor to be used as the live-line tool distance is an 
incorrect interpretation of the science behind the IEEE method. At a 
minimum, the note in the [Subpart] V and [Sec.  1910.269] tables 
that states that the referenced distances are for ``live-line tool 
distances'' should be removed since they are not.
    However, we recommend that OSHA include two sets of minimum 
approach distances for phase to ground work on voltages above 72.5 
kV, one for work performed without tools in the air-gap and one for 
work performed with tools in the air gap. These distances should be 
based on MAID and MTID respectively using the method shown in IEEE 
516-2009. [Ex. 0548.1]

    Some commenters suggested that separate sets of air and tool 
minimum approach distances might be necessary for phase-to-ground 
exposures above 72.5 kilovolts because basing minimum approach 
distances solely on minimum tool distances could prevent employees from 
performing activities such as climbing and inspection with lines or 
equipment energized. (See, for example, Ex. 0549.1, 0573.1; Tr2. 54-
55.)
    EEI submitted evidence that approximately 23 percent of the 
insulators installed on transmission systems, and 25 percent of 
insulators installed on systems operating at 345 kilovolts and more, 
would be too short to accommodate the IEEE standard's minimum approach 
distances for tools (Ex. 0575.1). EEI noted that ``there have been no 
reported safety events or flashovers with the current insulator 
lengths'' \200\ and maintained that using MAD for tools would force 
employers to perform routine inspections under deenergized conditions 
(id.).
---------------------------------------------------------------------------

    \200\ OSHA is unsure what EEI meant by ``safety event,'' but 
assumes that it means accident or near miss.
---------------------------------------------------------------------------

    Minimum approach distances in the 2007 NESC and IEEE Std 516-2009 
are generally based on a substantial body of electrical tests run on 
air gaps with and without objects in them (Ex. 0532; Tr2. 38).\201\ A 
1968 IEEE Committee Report entitled ``Recommendations for Safety in 
Live Line Maintenance,'' and a 1973 IEEE Committee Report entitled 
``Live-Line Maintenance Methods,'' presented a formula, based on that 
testing, for calculating minimum safe distances for energized power 
line work (Exs. 0556, 0558). This formula, which is given later in this 
section of the preamble, generally provides for a 10-percent increase 
in distance to account for the presence of tools across the air gap. 
\202\
---------------------------------------------------------------------------

    \201\ As noted later in this section of the preamble, the 2012 
NESC distances are identical to corresponding minimum approach 
distances in IEEE Std 516-2009.
    \202\ The equation included a factor, C2, equal to 
``1.1, composed of 1.06 for live-line tool-to-air withstand distance 
ratio plus intangibles'' (Ex. 0556).
---------------------------------------------------------------------------

    IEEE Std 516-2009, in Section 4.7.9.2, recognizes the effect that a 
large floating object has on minimum approach distances:

    When a large floating object, not at ground or the conductor 
potential, is in the air gap, additional compensation may be needed 
to provide for the size and location of the floating object in the 
air gap. [Ex. 0532]

IEEE Std 516-2009 accounts for this effect by reducing the withstand 
voltage by 10 percent for phase-to-phase exposures on systems operating 
at more than 72.5 kilovolts (id.). This approach effectively increases 
the minimum approach distance by at least 10 percent. Although IEEE Std 
516-2009 applies a floating-object correction factor only to phase-to-
phase exposures, the effect (as noted in the quoted passage) also 
applies to phase-to-ground exposures.
    In light of the comments received and the other information in the 
record, OSHA concludes that, for phase-to-ground exposures at voltages 
of more than 72.5 kilovolts, basing minimum approach distances on 
minimum air-insulation distances will not provide sufficient protection 
for employees when insulated tools or large conductive objects are in 
the air gap. Minimum air-insulation distances are based on testing air 
gaps with only air between the electrodes, which does not account 
adequately for the presence of tools (Ex. 0532). Therefore, the 
provisions adopted in the final rule ensure that minimum air-insulation 
distances are applied only when air alone serves as the insulating 
medium protecting the worker. For phase-to-ground exposures at voltages 
of more than 72.5 kilovolts, Table V-2 requires employers to establish 
minimum approach distances that are based on the minimum air-insulation 
distance ``for phase-to-ground exposures that the employer can 
demonstrate consist only of air across the approach distance.'' 
Otherwise, the minimum approach distances for these exposures must be 
based on the minimum tool-insulation distance.
    Scenario 3--phase-to-phase exposures at more than 72.5 kilovolts. 
The third and final scenario the Agency has to address is the presence 
of tools or other insulation across a phase-to-phase air gap at 
voltages of more than 72.5 kilovolts. Rulemaking participants 
maintained that, for voltages of more than 72.5 kilovolts, minimum 
approach distances based on minimum tool-insulation distances are 
unnecessary because the phase-to-phase air gap is rarely, if ever, 
bridged by an insulated tool. (See, for example, Exs. 0545.1, 0548.1, 
0550.1, 0551.1; Tr2. 89, 157). For instance, Dr. Randy Horton, 
testifying on behalf of EEI, stated:

    [EEI is] unaware of any live-line working scenario situations 
above 72.5 kV where the phase-to-phase air gap is bridged by live-
line tool. Most work practices are developed to work on only one 
phase at a time per structure, phase to ground. [Tr2. 89]

    Thus, the rulemaking record indicates that, for voltages over 72.5 
kilovolts, tools or other objects infrequently, if ever, bridge the gap 
between two phases. Considering how rare the practice of spanning the 
air gap is, OSHA decided against adopting generally applicable minimum 
approach distances that account for tools in the gap for phase-to-phase 
exposures at these voltages. However, there is still a need to account 
for conductive bodies in the air gap in the limited circumstances in 
which they are present, for example, when an employee is moving between 
phases in an aerial lift. Therefore, OSHA is including provisions in 
the final rule ensuring that the phase-to-phase minimum approach 
distance for voltages over 72.5 kilovolts takes account of any objects 
that will be present in the air gap. Table V-2 requires the employer to 
establish minimum approach distances that are based on the minimum air-
insulation distance as long as ``the employer can demonstrate that no 
insulated tool spans

[[Page 20430]]

the gap and that no large conductive object is in the gap.''\203\
---------------------------------------------------------------------------

    \203\ Two variables in the equation for minimum approach 
distances account for tools or large conductive bodies in the air 
gap. The variable C is 0.01 for exposures that the employer can 
demonstrate are with air only between the employee and the energized 
part if the employee is at ground potential or between the employee 
and ground if the employee is at the potential of the energized 
part, or 0.011 otherwise. Because it is rare that tools or large 
conductive bodies are in the air gap between phases, employers 
should not have difficulty making this demonstration for phase-to-
phase exposures. The second variable, the saturation factor, a, is 
calculated differently when an insulated tool spans the gap or a 
large conductive object is in the gap. For phase-to-phase exposures, 
the final rule requires this factor generally to be based on air 
only in the gap.
---------------------------------------------------------------------------

    The electrical component of MAD--maximum transient overvoltages. 
Existing Sec.  1910.269 and OSHA's 2005 proposal specified maximum 
transient overvoltages of 3.0 per unit for voltages up to 362 
kilovolts, 2.4 per unit for voltages in the 550-kilovolt range (500 to 
550 kilovolts, nominal\204\), and 2.0 per unit for voltages in the 800-
kilovolt range (765 to 800 kilovolts, nominal). These are known as 
``industry-accepted values'' of maximum per-unit overvoltage (Ex. 
0532). The IEEE committee and the electric utility industry, as 
evidenced by the 1993 through 2002 NESC and pre-2003 editions of IEEE 
Std 516, believed that these were the highest transient overvoltages 
possible. However, the 2007 NESC and IEEE Std 516-2009 recognize that 
even higher maximum per-unit transient overvoltages can exist (Exs. 
0532, 0533).\205\ Therefore, OSHA requested comments on how, if at all, 
the final rule should address the possibility of higher maximum 
transient overvoltages.
---------------------------------------------------------------------------

    \204\ Table R-7 and Table R-8 in existing Sec.  1910.269 and 
Table V-1 and Table V-2 in existing subpart V list the upper bound 
of this voltage range as 552 kilovolts. Table R-6 in existing Sec.  
1910.269 lists the upper bound of this voltage range as 550 
kilovolts, which is the correct value (Ex. 0532). The final rule 
uses 550 kilovolts as the upper bound of this voltage range.
    \205\ Table 441-2 of the 2007 NESC contains minimum approach 
distances with maximum transient overvoltages higher than the 
industry-accepted values, though the higher values do not apply when 
certain conditions are met (Ex. 0533). Section 4.7.4.3 of IEEE Std 
516-2009 lists the industry-accepted values for maximum transient 
overvoltages. However, it also states that, if certain assumptions 
about the operation of the system are not met, ``the values listed 
in the table may not be valid, and an engineering evaluation should 
be performed to determine [the maximum per-unit transient 
overvoltage]'' (Ex. 0532).
---------------------------------------------------------------------------

    No rulemaking participants disputed that overvoltages beyond those 
accounted for in the proposed standard were possible. Pike Electric 
recommended that minimum approach distances be calculated for the 
highest possible transient overvoltage (Ex. 0543.1). IBEW suggested 
that, if the higher per-unit overvoltage factors are included, specific 
instructions for using those higher factors also should be included in 
the final rule (Ex. 0551.1; Tr2. 158).
    Electric utility representatives argued that, even though higher 
overvoltages are possible, their industry does not widely recognize 
that higher overvoltages exist. (See, for example, Exs. 0545.1, 0548.1, 
0549.1, 0550.1; Tr2. 90-93.) These rulemaking participants urged OSHA 
to base the final standard on the existing industry-accepted values 
upon which the proposal was based (id.). For example, Southern Company 
stated, ``Although IEEE 516-2003 and IEEE 516-2009 recognize the 
possibility of higher surge values, the concept that such surges exist 
is not widely accepted in the Industry'' (Ex. 0548.1).
    Dr. Randy Horton, testifying on behalf of EEI, explained this 
position as follows:

    Over the years, none of the field-measured over-voltages on 
actual operating systems has produced results which exceed the 
industry accepted T values (transient overvoltage values). The 
documentation of these measurements and of numerous simulations, 
encompassing all current transmission operating voltages, and the 
results have consistently supported the accepted T values. [Tr2. 90]

    However, Dr. Horton acknowledged that one utility (Bonneville Power 
Administration, or BPA) measured overvoltages above 3.0 per unit on one 
of its 230-kilovolt circuits (id.). As he noted, BPA tested that 
circuit in response to sparkovers on rod gaps placed on the circuit to 
protect it from lightning strikes (Tr2. 90-91). Dr. Horton argued that 
the measured overvoltages on that circuit were unrealistic because: (1) 
The gaps on the circuit flashed over at overvoltages less than 3.0 per 
unit during testing; (2) the circuit breaker characteristics and 
performance, including pole-closing spans and breaker current, were 
unrealistic; and (3) monitoring inaccuracies could have occurred, 
leading to measurements that were too high. (See, for example, Exs. 
0546.1, 0575.1; Tr2. 90-92.) EEI recommended adhering to the industry-
accepted overvoltage values. However, it noted that, if OSHA elected to 
account for the values of maximum per-unit overvoltage from the BPA 
measurements, the final rule should just include a footnote similar to 
that contained in IEEE Std 516-2009, noting: ``At 242 kV, it is assumed 
that automatic instantaneous reclosing is disabled. If not, the values 
shown in the table may not be valid, and an engineering evaluation 
should be performed to determine `T' '' (Ex. 0545.1; Tr2. 93).
    In its posthearing submission, EEI offered evidence suggesting that 
the industry-accepted values of maximum per-unit transient overvoltage 
are reasonable (Ex. 0575.1). In this submission, EEI reported results 
of testing on several other systems of varying voltages, none of which 
exceeded the industry-accepted values. EEI explained:

    The field tests were conducted for energization, reclosings and 
with or without shunt reactors. Attempts were made to obtain the 
worst possible overvoltages during the field tests. For all cases, 
listed above, the expected overvoltages, now, would be lower since 
the system has matured and at each bus, the source strength has 
increased considerably. . . .
    The IEEE Transactions Papers on the aforementioned information 
are provided below. Additional IEEE Transactions Papers references 
are attached for switching overvoltage field tests on system voltage 
levels of 220 kV, 345 kV and 500 kV by various power companies, 
including American Electric Power. All papers show that:
     Without breaker closing resistors, the maximum 
switching overvoltages do not exceed 3.0 pu.
     With closing resistor, the maximum switching 
overvoltages are near 2.0 pu. And, with control closings the maximum 
switching overvoltages do not exceed 1.6 pu.
     Calculated overvoltages are generally much higher than 
those by the field measured values . . . [Id.]

    EEI also pointed to an excerpt from International Electrotechnical 
Commission (IEC) Standard 61472 as evidence that higher maximum 
transient overvoltages are possible, but unlikely (id.). This IEC 
excerpt reads as follows:

    B.2.2 Overvoltages under abnormal conditions.
    Among the possible abnormal conditions which can lead to very 
high overvoltages, restrikes between the contacts of circuit 
breakers during opening is considered, and in particular the 
following conditions may be of concern:
    -single or three-phase opening of no load lines;
    -three-phase clearing of line-to-earth fault.
    Such abnormal behaviour may lead to overvoltage amplitudes of 
the same order or even higher than those under three-phase 
reclosing.
    However, the restrike probability of circuit breakers is 
normally low, and is very low for the modern circuit breaker. So the 
low probability of these events is not such as to influence the 
probability distribution of the family considered (opening or fault 
clearing) and thus the relevant Ue2 value. [Id.]

    OSHA understands that the information in the record pertaining to 
maximum transient overvoltages applies basically to voltages over 72.5 
kilovolts.

[[Page 20431]]

IEEE Std 516-2009 does not include separate overvoltage factors for 
voltages of 72.5 kilovolts and less (Ex. 0532). For voltages of 72.5 
kilovolts and less, IEEE Std 516-2009 relies on a maximum transient 
overvoltage of 3.0 per unit and does not recognize the possibility of 
higher values. Section 4.8.1d of IEEE Std 516-2009 states, ``Shunt-
connected devices, such as transformers, and reactors will tend to 
reduce the trapped charge on the line and, therefore, limit the 
overvoltages due to reenergization'' (id.). Such shunt-connected 
devices are not only pervasive on systems of 72.5 kilovolts and less, 
but are a necessary part of the distribution systems that form the 
overwhelmingly predominant portion of these systems (see, for example, 
269-Ex. 8-13). Even for the 45- and 69-kilovolt systems that are 
sometimes used in transmission circuits, there is no evidence in the 
record that maximum transient overvoltages exceed 3.0 per unit. 
Consequently, the final rule adheres to a maximum transient overvoltage 
of 3.0 per unit for systems with a nominal phase-to-phase voltage of 
72.5 kilovolts or less. OSHA calculated the values in Table V-3, which 
are the electrical components of the minimum approach distances, using 
a maximum transient overvoltage of 3.0 per unit.
    For voltages of more than 72.5 kilovolts, no rulemaking participant 
disputed the fact that maximum transient overvoltages based on 
engineering calculations can exceed those on which the proposed rule 
was based. (See, for example, Exs. 0532, 0575.1.) It also is clear that 
maximum transient overvoltages exceeding industry-accepted values are 
possible as IEEE Std 516-2009, IEC Standard 61472, and the BPA report 
show. (id.) The evidence in the record indicates that most systems do 
not, however, exceed the industry-accepted values on which the proposal 
was based. (See, for example, Exs. 0545.1, 0549.1, 0575.1; Tr2. 90-93.) 
This is the major argument relied on by the commenters that urged OSHA 
to base the final rule on industry-accepted values of maximum transient 
overvoltage (id.).
    The Agency considered all of the comments and record evidence on 
this issue and concluded that the arguments against relying on BPA's 
report are not strong enough to justify ignoring it for purposes of 
this final rule. First, EEI argued that, in the BPA scenario, during 
testing the gaps on the circuit flashed over at overvoltages less than 
3.0 per unit (see, for example, Tr2. 91). The magnitude of the 
overvoltage during these gap sparkovers is irrelevant. In one series of 
tests, the measured overvoltages for two of the tests in which three 
gaps arced over were lass than 3.0 per unit. However, measured 
overvoltages on at least one phase exceeded 3.0 per unit during 10 of 
the tests, including both tests involving sparkovers.\206\ For this 
circuit, the testing found overvoltages as high as 3.3 per unit. The 
BPA report explained:
---------------------------------------------------------------------------

    \206\ The measured overvoltages on the phases with gap 
sparkovers were under 3.0 per unit, but the measured overvoltages on 
the phases without gap sparkovers during the same tests exceeded 3.0 
per unit. For example, during test 5-25, the overvoltage on the 
phase with the gap sparkover was 2.83 per unit, and the overvoltage 
on one of the other two phases was 3.30 per unit.

    Rod gap flashovers occurred . . . during the last two tests of 
[one test series]. . . . [S]ignificantly higher overvoltages were 
measured on [the] phases [with flashovers] during other tests in the 
series, but the gaps did not flash over. This demonstrates the 
highly statistical nature of . . . gap flashover . . . . [Ex. 
---------------------------------------------------------------------------
0575.1]

Thus, that the measured overvoltages for the sparkovers were less than 
3.0 per unit has no bearing on whether overvoltages exceeding 3.0 per 
unit are possible.

    Second, EEI's argument that the circuit breaker characteristics 
were unrealistic are unpersuasive. EEI argued that, because ``[t]he 
field tests were conducted with individual phase breaker pole 
control,'' the pole-closing span \207\ was exceedingly large and 
unrealistic (id.). Although BPA controlled the opening and closing of 
the circuit breakers during testing to ``measure overvoltage levels 
that can occur on a long transmission line during high speed 
reclosing,'' there is no indication in the BPA report that it varied 
the closing spans for the individual poles on the circuit breakers 
(id.). The report states:
---------------------------------------------------------------------------

    \207\ The circuit-breaker pole-closing span is the maximum 
closing time difference between the phases.

    [The relevant test series] involved three-phase reclosing into 
trapped charge on the Big Eddy-Chemewa 230-kV line. Breaker opening 
was controlled and synchronized to generate the same polarity and 
magnitude trapped charge on each phase for each test shot. Testing 
began by switching from the Big Eddy end, varying the closing time 
of the breaker uniformly over a complete 60 Hz cycle by increments 
of 18 electrical degrees (\1/20\ cycle). After these 20 tests, 4 
additional tests were performed in an attempt to generate a maximum 
possible overvoltage. This same procedure was then repeated from the 
---------------------------------------------------------------------------
Chemewa end of the line. [Id.]

Thus, it appears that BPA took measures to synchronize the switching of 
the poles in each circuit breaker. The report mentioned that the 
circuit breaker at the Big Eddy end was ``constructed with each phase 
in its own tank'' (id.). The pole-closing span for this circuit breaker 
was 3.7 milliseconds. The circuit breaker at Chemewa was ``constructed 
with all three contacts in a single tank'' (id.). The pole-closing span 
for this circuit breaker was 0.24 milliseconds, significantly shorter 
than the pole-closing span for the Big Eddy circuit breaker. Measured 
overvoltages exceeded 3.0 per unit during tests with switching 
performed at both locations. Thus, OSHA concludes that pole-closing 
spans did not contribute to measured overvoltages exceeding 3.0 per 
unit during BPA testing. BPA did not indicate that the pole-closing 
span for either circuit breaker was unusual, and EEI did not submit any 
evidence that would demonstrate that circuit breakers of any type of 
construction generally have shorter pole-closing spans. Consequently, 
the Agency concludes that, even if the pole-closing span did contribute 
to the measured overvoltages in BPA's testing, circuit breakers in 
other installations could have similarly long pole-closing spans with 
correspondingly high maximum transient overvoltages.

    Furthermore, although the difference in time taken for each pole to 
close might affect the phase-to-phase overvoltage, that value was not 
measured during the BPA tests. Because pole-closing spans only affect 
the offset between phases and should have no substantial effect on the 
behavior of the transient voltage on a single phase, long pole-closing 
spans should have little effect on phase-to-ground overvoltages (that 
is, the overvoltage on a single phase). As explained later, the report 
clearly states that the main cause of the unexpectedly high maximum 
transient overvoltages was ``prestrike.'' OSHA, therefore, concludes 
that prestrike, not pole-closing spans, were the primary cause of the 
high maximum transient overvoltages.
    EEI, through Dr. Horton, also expressed concern about the 
performance of the circuit breakers in the BPA report, because the 
circuit breaker current showed evidence of prestrikes (Tr2. 91). 
Restrike and prestrike may occur during the opening of circuit 
breakers. The current and voltage across the contacts of a circuit 
breaker vary with time. When the contacts are closed, the voltage 
across them is very close to zero, and the current oscillates at 60 
cycles per second. When the contacts are open, the voltage oscillates, 
and the current is zero. As the contacts of a circuit breaker open or 
close, current can arc across them. When the current drops to zero,

[[Page 20432]]

the arcing stops. However, if the voltage across the contacts from 
reflected traveling waves exceeds the dielectric strength of the gap 
between the contacts, arcing can recur. Arcing that occurs after the 
initial arc is extinguished as the circuit breaker is opening is called 
``restrike.'' Arcing that occurs as the contacts close, but before they 
are touching, is called ``prestrike.''
    Whether a circuit breaker is subject to restrikes or prestrikes is 
dependent on the design of the circuit breaker, maintenance of the 
circuit breaker, and the characteristics of the circuit to which the 
breaker is connected. Prestrikes and restrikes can lead to high 
transient overvoltages that can damage equipment. Therefore, 
manufacturers design circuit breakers to resist restrikes and 
prestrikes. However, the probability that these events will occur can 
be affected by maintenance and circuit design. Poor circuit breaker 
maintenance can lead to longer pole-opening times and can increase the 
probability that prestrike or restrike will occur. Similarly, circuit 
designs can shorten the time in which traveling waves reach the breaker 
contacts, which also can increase the probability of prestrikes or 
restrikes.
    The circuit breakers that were the subject of BPA's testing 
exhibited prestrikes during testing (Ex. 0575.1). Commenting on this, 
Dr. Horton stated:

    The line breaker performance appears suspicious. The breaker 
current shows pre-strikes with abrupt interruptions and subsequent 
re-ignitions [Tr2. 91]

However, the BPA report explained why the prestrikes occurred:

    During Test Series V, it was found that the sending end can 
experience significant overvoltages that were previously assumed to 
occur only out on the line or at the receiving end. During breaker 
prestrike, a current wave (initiated by arcing across the contacts) 
travels down the line to the receiving (open) end where it is 
reflected. As the reflected wave travels back toward the sending end 
of the line, it reduces the current to near zero along the line. 
When the reflected current wave reaches the sending end of the line, 
it creates a current zero and allows the prestrike arc between the 
breaker contacts to extinguish, isolating the line voltage from the 
bus voltage. After the arc extinguishes, the line voltage often 
increases due to traveling voltage waves that continue to be 
reflected from the receiving end. The voltage across the breaker 
then builds up until another prestrike occurs. The next prestrike 
occurs at a lower breaker cross voltage because the breaker contacts 
are closer together. In Test Series V, the majority of breaker 
closings resulted in only a single prestrike. However, in a few 
tests, up to four prestrikes occurred on one phase during a single 
closing operation. [Ex. 0575.1]

BPA found this information useful, explaining:

    This field test has also provided a considerable amount of data 
on 230-kV SF6 breaker prestrikes. Typical characteristics 
of the dielectric strength across the breaker contacts have now been 
developed and can be used for statistical switching surge studies. 
Additional information has also been obtained about another property 
of 230-kV SF6 breakers--where the prestrike arc is 
extinguished by the traveling current wave during line switching. 
The test results show that when the prestrike arc extinguishes, the 
voltage at the sending end of a line reaches values that are much 
higher than were previously expected. [Id.]

    In light of this explanation in the BPA report itself, OSHA 
concludes that the existence of prestrikes does not invalidate the BPA 
report's findings. In fact, the prestrikes were the cause of the 
unexpectedly high maximum transient overvoltages. The Agency 
anticipates that any workplace where prestrikes occur during switching 
operations, particularly during reclosing, can experience similarly 
high maximum transient overvoltages.
    EEI's third and final concern about the BPA report was that 
``inaccuracies in the monitoring system and in the waveform calibration 
[could have resulted] in unrealistic over-voltage readings'' (Tr2. 91). 
However, there is no evidence in either BPA's report or in OSHA's 
rulemaking record that such inaccuracies existed during the BPA tests.
    For the foregoing reasons, OSHA does not accept EEI's criticism of 
the BPA report and finds that it provides substantial evidence of the 
existence of maximum transient overvoltages higher than industry-
accepted values.
    IEEE Std 516-2009 does not account for the possibility of circuit-
breaker restrikes. In Section 4.7.4.3, IEEE Std 516-2009 explains its 
approach for addressing maximum transient overvoltages, as follows:

    (a) At all voltage levels, it is assumed that circuit breakers 
are being used to switch the subject line while live work is being 
performed. This further assumes that the restrike probability of a 
circuit breaker is low and consequently extremely low while a worker 
is near the MAD and that it can, therefore, be ignored in the 
calculation of T. If devices other than circuit breakers are being 
utilized to switch the subject line while live work is being 
performed, then the values listed in the table may not be valid, and 
an engineering evaluation should be performed to determine T.
    (b) At 242 kV, it is assumed that automatic instantaneous 
reclosing is disabled. If not, the values shown in the table may not 
be valid, and an engineering evaluation should be performed to 
determine T. [Ex. 0532]

    OSHA has serious concerns about the validity of the assumptions on 
which this IEEE standard relies to support its general application of 
the industry-accepted values for maximum transient overvoltages. 
Indeed, with all the caveats in these paragraphs of the IEEE standard, 
it is clear that even the drafters of that standard did not believe in 
the universal applicability of its key assumptions. IEEE Std 516-2009 
recognizes that switching can be performed using devices other than 
circuit breakers and recommends an engineering analysis if such devices 
are used. The Agency concludes that the prestrike experience reported 
by BPA demonstrates that the occurrence of prestrikes is likely to be a 
consequence of the design of the circuit breaker and the circuit 
involved, rather than a low probability event for each circuit breaker 
on every circuit. The BPA report explained that the occurrence of 
prestrikes was influenced heavily by the magnitude of the trapped 
charge on the line and the speed of the initial and repeated reflected 
traveling wavefronts (Ex. 0575.1). Because the cause of prestrikes and 
restrikes are the same, the Agency believes that restrikes are 
similarly influenced. In this regard, prestrikes and restrikes are the 
same type of event, with prestrikes occurring during circuit breaker 
opening and restrikes occurring during circuit breaker closing. Thus, 
although the overall probability that circuit breakers in general will 
restrike or prestrike may be low, OSHA concludes that the probability 
that a particular circuit breaker will restrike or prestrike may be 
high enough that it cannot be ignored.
    Additionally, neither the IEEE standard nor Dr. Horton explained 
why the IEEE committee chose to base maximum transient overvoltage on 
the 2-percent statistical switching overvoltage expected at the 
worksite, which is a probability-based assessment, while ignoring the 
probability of restrikes (Ex. 0532).\208\ After all, if the probability 
is low enough, then the potential for restrikes will not have a 
significant effect on the 2-percent statistical switching overvoltage. 
On the other hand, if it is high enough, then the 2-percent statistical 
switching overvoltage will increase.
---------------------------------------------------------------------------

    \208\ Section 4.7.4.2 of IEEE Std 516-2009 reads, in part, ``The 
line-to-ground maximum anticipated per-unit TOV (T) for live work is 
defined as the ratio of the 2% statistical switching overvoltage 
expected at the worksite to the nominal peak line-to-ground voltage 
of the system.''
---------------------------------------------------------------------------

    In response to EEI's recommendation to permit employers to use 
industry-accepted values in accordance with IEEE Std 516-2009, OSHA 
concludes

[[Page 20433]]

that this alternative does not adequately account for higher maximum 
transient overvoltages. Section 4.7.4.3b of IEEE Std 516-2009 indicates 
that the industry-accepted values are valid only when reclosing is 
blocked at 242 kilovolts (Ex 0532). Although the BPA testing was 
performed on a 242-kilovolt circuit, there is no evidence in the record 
indicating that maximum transient overvoltages higher than the 
industry-accepted values are limited only to this voltage. In addition, 
---------------------------------------------------------------------------
the IEEE standard, in Section E.2 of Appendix E, notes:

    If restriking of the switching device is included [in the 
determination of maximum transient overvoltage], then the resulting 
overvoltages are essentially the same as those of reclosing into a 
trapped charge. The only difference is the probability of 
occurrence. [Id.]

Consequently, even if reclosing is blocked, the maximum transient 
overvoltage may still exceed industry-accepted values.

    OSHA concludes that it is not in the interest of worker safety to 
adopt minimum approach-distance provisions based on the conditions 
expected to be present in the workplaces of most, but not all, 
employers covered by this final rule. Basing the rule on industry-
accepted values of maximum transient overvoltage, as EEI and other 
commenters recommended, would result in some employees not receiving 
adequate protection. In the extreme case, in which the maximum 
transient overvoltage is 3.5 instead of the industry-accepted value of 
3.0, the electrical component of the minimum approach distance would 
sparkover nearly 50 percent of the time, rather than 0.1 percent of the 
time, at the maximum overvoltage. OSHA designed the minimum approach-
distance provisions in this final rule to protect employees from the 
conditions that are present in their specific workplaces. Under the 
final rule, employers must select and adhere to minimum approach 
distances based on the maximum transient overvoltages present at their 
workplaces or base minimum approach distances on the highest maximum 
transient overvoltage.
    EEI and other commenters noted that IEEE recently established a 
working group to examine maximum transient overvoltages and recommended 
that OSHA rely on industry-accepted values for these overvoltages until 
the committee reports its findings. (See, for example, Exs. 0545.1, 
0548.1; Tr2. 92-93.) For instance, Dr. Horton, testifying on behalf of 
EEI, stated:

    In order to address the possibility of higher surge values, the 
General Systems Subcommittee of the IEEE Transmission and 
Distribution Committee has recently created a working group entitled 
``Field Measured Over-Voltages and Their Analysis'' to determine if 
higher surge values actually exist, and if so, what is their upper 
limits. This working group is chaired by myself (Dr. Randy Horton of 
Southern Company) and is co-chaired by Dr. Albert Keri of American 
Electric Power. Numerous experts and utilities from around the world 
are involved in this work, and initial findings of the working group 
will likely be available in the next 3 to 4 years. Until such time, 
it is recommended that the industry accepted values (in other words 
T equal to 3 per unit, 2.4 per unit, and 2.0 per unit, corresponding 
to 362 kV and below, 363 kV to 550 kV, and 551 kV to 800 kV 
respectively) be used as the maximum per unit transient over-voltage 
values. [Tr2. 92-93]

    The Agency concludes that it is not necessary to wait for the 
findings of the new IEEE working group before proceeding with new 
minimum approach-distance provisions. The Agency does not believe that 
it is necessary to delay action on minimum approach distances until the 
IEEE or any other standard-setting organization produces additional 
information on this subject. OSHA believes that there is sufficient 
information in the record, described earlier in this discussion of 
maximum transient overvoltages, to form the basis of a final rule on 
minimum approach distances that accurately accounts for the presence, 
magnitude, and effect of maximum transient overvoltages. The Agency 
concludes that BPA's experience proves the existence of maximum 
transient overvoltages higher than the industry-accepted values; and, 
although the consensus standards do not fully account for potentially 
higher values in their minimum approach distances, the 2007 NESC and 
the 2003 and 2009 editions of IEEE Std 516 recognize the existence of 
such overvoltages (Exs. 0041, 0532, 0533, 0575.1). Consequently, for 
purposes of Table V-6, and Table 7 through Table 14 in Appendix B to 
subpart V, the Agency is adopting maximum per-unit transient 
overvoltages of 3.5 for systems operating at 72.6 to 420 kilovolts, 3.0 
for systems operating at 420.1 to 550.0 kilovolts, and 2.5 for systems 
operating at 550.1 to 800 kilovolts. These values are the same values 
as the highest maximum transient overvoltages recognized in the 2007 
NESC and IEEE Std 516-2009 (Exs. 0532, 0533).
    The electrical component of MAD--calculation methods for voltages 
up to 72.5 kilovolts. OSHA based the minimum approach distances in 
existing Sec.  1910.269 for voltages up to 72.5 kilovolts on ANSI/IEEE 
Std 4 (59 FR 4383). Existing Sec.  1910.269 specifies ``avoid contact'' 
as the minimum approach distance for voltages between 51 and 1,000 
volts. To make the revised standards consistent with the 2002 NESC, 
OSHA proposed in the 2005 proposal to adopt minimum approach distances 
of 0.31 meters (1 foot) for voltages between 301 volts and 750 volts 
and 0.65 meters (2 feet, 2 inches) for voltages between 751 volts and 
15 kilovolts. The proposal specified ``avoid contact'' as the minimum 
approach distance for 51 to 300 volts.
    Two commenters objected to the requirement for employees to ``avoid 
contact'' with lines energized at 50 to 300 volts (Exs. 0169, 0171). 
Mr. Brooke Stauffer with NECA commented, ``The `avoid contact' 
requirement on lines energized at 50 to 300 volts is infeasible for 
line construction and maintenance, because linemen must contact these 
energized lines on a routine basis while doing their work'' (Ex. 0171). 
Quanta Services similarly asserted, ``The `avoid contact' requirement 
on lines energized at 50 to 300 volts presents a problem because 
linemen will contact those lines on a routine basis while doing their 
work'' (Ex. 0169).

[[Page 20434]]

    These comments do not indicate how employees are contacting 
electric conductors and other circuit parts energized up to 300 
volts.\209\ It is well recognized that these voltages are potentially 
lethal. Exhibit 0002 alone describes at least 25 accidents in which 
employees were killed because of contact with circuit parts energized 
at 120 volts to ground.\210\ OSHA believes that, in the past, the 
practice was for power line workers to use leather gloves rather than 
rubber insulating gloves to handle these voltages, and it is possible 
that these commenters are recommending that the standard permit that 
practice. However, leather gloves do not insulate workers from 
energized parts (Ex. 0002).\211\ Perspiration can saturate these gloves 
during use, making them conductive. One of the accidents in the record 
involved an employee handling a 120-volt conductor with leather gloves 
(id.). Therefore, the final rule requires employees to avoid contact 
with circuit parts energized at 50 to 300 volts.\212\ If it is 
necessary for employees to handle exposed parts energized at these 
voltages, they must do so in accordance with final Sec.  
1926.960(c)(1)(iii)(A), (c)(1)(iii)(B), or (c)(1)(iii)(C); and any 
insulating equipment used must meet the electrical protective equipment 
requirements in final Sec.  1926.97.
---------------------------------------------------------------------------

    \209\ In the proposed rule, the lowest voltage in the avoid-
contact range was 51 volts, not 50 volts as indicated by the two 
commenters.
    \210\ See the 25 accidents described at http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=660118&id=817114&id=14307003&id=14311666&id=982645&id=14327944&id=894584&id=14351076&id=14525430&id=201360062&id=601468&id=14251771&id=14251987&id=14257034&id=14371751&id=14523591&id=14383376&id=695437&id=514547&id=170080238&id=14400782&id=14219851&id=764365&id=14505366&id=778332.
    \211\ See, for example, the two accidents described at http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=14371751&id=660118.
    \212\ OSHA proposed 51 volts as the low end of the avoid-contact 
range. The final rule adopts 50 volts as the low end for consistency 
with Table R-6 in existing Sec.  1910.269 and IEEE Std 516-2009.
---------------------------------------------------------------------------

    There were few comments on the minimum approach distances proposed 
in 2005 for voltages of 301 volts to 72.5 kilovolts. Some commenters 
objected to the small changes in minimum approach distances from 
existing Sec.  1910.269 that were specified in the 2005 proposal. (See, 
for example, Exs. 0227, 0543.1.) EEI maintained that the safety benefit 
of slight changes was outweighed by the practical implications of 
implementing revised minimum approach distances:

    For the sake of an inch or two, OSHA ought not to change the 
existing MAD tables. Such changes could require revising every 
safety rule book and training curriculum in the industry, including 
among line contractors, as well as related retraining of line 
workers. The established clearance distances are well-known to 
employees in the transmission and distribution industry, and 
changing them for the sake of an additional inch or two can only 
lead to confusion, with no significant safety benefit. As a 
practical matter, it is not clear that such a small change will make 
a significant difference in the safety of line workers. [Ex. 0227]

    OSHA understands that changing minimum approach distances, even 
slightly, may require employers to adjust their safety rules and 
training. The Agency accounted for the cost of changing these safety 
rules and training because of differences between existing Sec.  
1910.269 and the final rule, including the revised minimum approach 
distances (see Section VI, Final Economic Analysis and Regulatory 
Flexibility Analysis, later in this preamble).
    Ignoring evidence that small increases in the electrical component 
of the minimum approach distances are necessary would result in 
shrinking the ergonomic component of the minimum approach distance, 
thereby making work less safe for employees than if the ergonomic 
component remained constant. As explained previously, OSHA designed 
this final rule to ensure that the ergonomic component of the minimum 
approach distance remains at least 0.31 meters (1 foot) or 0.61 meters 
(2 feet), depending on the voltage.
    OSHA proposed a minimum approach distance of 0.31 meters (1 foot) 
for voltages of 301 through 750 volts. Although there were no comments 
on this minimum approach distance, the Agency is adopting a slightly 
larger distance. In Section 4.7.1.1, IEEE Std 516-2009 explained its 
approach to setting the electrical component of the minimum approach 
distance, as follows:

    For ac and dc line-to-line and line-to-ground work between 300 V 
and 5.0 kV, sufficient test data are not available to calculate the 
MAID,\[213]\ which is less than 2 cm or 0.07 ft. For this voltage 
range, it is assumed that MAID is 0.02 m or 0.07 ft . . . . [Ex. 
0532]
---------------------------------------------------------------------------

    \213\ IEEE Std 516-2009 assumes that MAID and MTID have the same 
value in this voltage range. Using this approach, the electrical 
component of the minimum approach distance would be the same in air 
or along the length of an insulated tool.

Using this approach for voltages of 301 to 750 volts, OSHA added the 
0.31-meter (1-foot) ergonomic component of the minimum approach 
distance to the 0.02-meter (0.07-foot) electrical component, for a 
total minimum approach distance of 0.33 meters (1.07 feet) in the final 
rule.
    As noted earlier, OSHA based the methodology for calculating the 
electrical component of the minimum approach distance for voltages from 
751 volts to 72.5 kilovolts in the 2005 proposal on IEEE Std 4. Table 6 
lists the critical sparkover distances from that standard as listed in 
IEEE Std 516-2009.

             Table 6--Sparkover Distance for Rod-to-Rod Gap
------------------------------------------------------------------------
                                                       Gap spacing from
        60 Hz Rod-to-rod sparkover (kV peak)            IEEE Std 4-1995
                                                             (cm)
------------------------------------------------------------------------
25..................................................                   2
36..................................................                   3
46..................................................                   4
53..................................................                   5
60..................................................                   6
70..................................................                   8
79..................................................                  10
86..................................................                  12
95..................................................                  14
104.................................................                  16
112.................................................                  18
120.................................................                  20
143.................................................                  25
167.................................................                  30
192.................................................                  35
218.................................................                  40
243.................................................                  45
270.................................................                  50
322.................................................                  60
------------------------------------------------------------------------
Source: IEEE Std 516-2009 (Ex. 0532).

    To use the table to determine the electrical component of the 
minimum approach distance, the employer would determine the peak phase-
to-ground transient overvoltage and select a gap from the table that 
corresponds to that voltage as a withstand voltage rather than a 
critical sparkover voltage. For voltages between 5 and 72.5 kilovolts, 
the process for using Table 6 to calculate the electrical component of 
the minimum approach distance, starting with the phase-to-phase system 
voltage, was described generally as follows in Draft 9 of the 2009 
revision to IEEE Std 516 (Ex. 0524):
    1. Divide the phase-to-phase voltage by the square root of 3 to 
convert it to a phase-to-ground voltage.
    2. Multiply the phase-to-ground voltage by the square root of 2 to 
convert the rms value of the voltage to the peak phase-to-ground 
voltage.
    3. Multiply the peak phase-to-ground voltage by the maximum per-
unit transient overvoltage, which, for this voltage range, is 3.0, as 
discussed earlier in this section of the preamble. This is the maximum 
phase-to-ground transient overvoltage, which corresponds to the 
withstand voltage for the relevant exposure.\214\
---------------------------------------------------------------------------

    \214\ The withstand voltage is the voltage at which sparkover is 
not likely to occur across a specified distance. It is the voltage 
taken at the 3[sigma] point below the sparkover voltage, assuming 
that the sparkover curve follows a normal distribution.

---------------------------------------------------------------------------

[[Page 20435]]

    4. Divide the maximum phase-to-ground transient overvoltage by 0.85 
to determine the corresponding critical sparkover voltage. (The 
critical sparkover voltage is 3 standard deviations (or 15 percent) 
greater than the withstand voltage.)
    5. Determine the electrical component of the minimum approach 
distance from the table through interpolation.\215\
---------------------------------------------------------------------------

    \215\ Draft 9 of IEEE Std 516 used curve-fitted equations rather 
than interpolation to determine the distance. The two methods result 
in nearly equivalent distances.
---------------------------------------------------------------------------

    These steps are illustrated in Table 7.

                      Table 7--Calculating the Electrical Component of MAD 751 V to 72.5 kV
----------------------------------------------------------------------------------------------------------------
                                                   Maximum system phase-to-phase voltage (kV)
             Step             ----------------------------------------------------------------------------------
                                        15                   36                   46                 72.5
----------------------------------------------------------------------------------------------------------------
1. Divide by [radic]3........  8.7................  20.8...............  26.6...............  41.9
2. Multiply by [radic]2......  12.2...............  29.4...............  37.6...............  59.2
3. Multiply by 3.0...........  36.7...............  88.2...............  112.7..............  177.6
4. Divide by 0.85............  43.2...............  103.7..............  132.6..............  208.9
5. Interpolate from Table 6..  3+(7.2/10)*1.......  14+(8.7/9)*2.......  20+(12.6/23)*5.....  35+(16.9/26)*5
Electrical component of MAD    3.72...............  15.93..............  22.74..............  38.25
 (cm).
----------------------------------------------------------------------------------------------------------------

    This method is consistent with the method OSHA used to develop the 
minimum approach distances for voltages of 751 volts to 72.5 kilovolts 
in the 2005 proposal. Although OSHA received no comments on this 
approach, the methodology contained in final IEEE Std 516-2009 added 
one additional step (Ex. 0532). The distances in IEEE Std 4-1995 result 
from 60-Hz impulse rod-to-rod tests. The extra step in IEEE Std 516-
2009 divides the phase-to-ground maximum transient overvoltage by 1.3 
to account for the difference between the strength of an air gap under 
60-hertz voltages and the strength under transient voltages.\216\ The 
IEEE committee relied on two papers that are not in the current OSHA 
record to develop the 1.3 factor.\217\
---------------------------------------------------------------------------

    \216\ A 60-hertz voltage cycles through its maximum, or peak, 
voltage 60 times each second, and the value of the voltage forms a 
sine wave. A transient overvoltage does not cycle, but generally 
increases quickly as a single pulse.
    \217\ These documents are (1) CIGR[Eacute]/SC 33, ``Phase-to-
Phase Insulation Coordination,'' ELECTRA, no. 64, 1979; and (2) 
Esmeraldo, P. C. V., and Fonseca, C. S., ``Evaluation of the Phase-
to-Phase Overvoltage Characteristics due to Switching Surges for 
Application on Risk of Failure Statistical Methods in Non- 
Conventional Power Design,'' Paper 34.01, 6th ISH, New Orleans, 
1989.
---------------------------------------------------------------------------

    OSHA is not adopting this part of the method that IEEE Std 516-2009 
uses to calculate the electrical components of the minimum approach 
distances for voltages from 751 volts to 72.5 kilovolts. First, the 
Agency does not believe that there is sufficient information in this 
record to support the 1.3 conversion factor, which was not used in 
earlier editions of IEEE Std 516 and was not used in any version of the 
NESC through the 2007 edition.\218\ Second, although OSHA raised this 
issue in its September 2009 reopening notice, no commenters voiced 
support for such a change in the OSHA rule. Finally, as previously 
noted, for voltages of 72.5 kilovolts and lower, IEEE Std 516-2009 
assumes that the electrical component of the minimum approach distance 
is the same with tools in the air gap as it is for air alone. The 
dielectric strength of an air gap is less with a tool in the gap than 
it is when the gap is air, however (see, for example, Exs. 0556, 0558). 
Thus, an increase in the electrical component of the minimum approach 
distance is necessary to account for tools. OSHA does not believe that 
a 60-hertz-to-transient conversion factor (which reduces MAD values) is 
appropriate when no counterbalancing distance is added to account for 
tools in the air gap. For these reasons, the Agency is adopting the 
proposed methodology for determining the electrical component of the 
minimum approach distance for voltages of 751 volts to 72.5 kilovolts. 
As noted earlier, OSHA also is adopting the proposed ergonomic 
component for this voltage range. Thus, the final rule incorporates 
minimum approach distances for these voltages generally as proposed. 
However, Table V-5 in the final rule breaks the proposed voltage range 
of 751 volts to 15 kilovolts into two ranges--751 to 5,000 volts and 
5.1 kilovolts to 15 kilovolts.
---------------------------------------------------------------------------

    \218\ The 2012 NESC adopts minimum approach distances from IEEE 
Std 516-2009, which, as noted, uses the 1.3 conversion factor.
---------------------------------------------------------------------------

    For the reasons described earlier under the discussion of the 301- 
to 750-volt range, IEEE Std 516-2009 sets the electrical component of 
the minimum approach distance at 0.02 meters for voltages of 301 to 
5,000 volts.\219\ As can be seen from Table 6, this is the sparkover 
distance for the smallest transient overvoltage listed in the table. 
There is no evidence in the record that lower voltages will produce 
larger sparkover distances. Consequently, there is no reason to believe 
that the electrical component of the minimum approach distance will be 
greater for voltages of 5,000 volts or less. In addition, rounding the 
electrical component of the minimum approach distance to the nearest 25 
millimeters (1.0 inch) results in a minimum distance of 25 millimeters. 
As explained earlier, OSHA concludes that this value is reasonable and, 
therefore, adopts 0.02 meter (1 inch) as the electrical component of 
the minimum approach distance for this voltage range.
---------------------------------------------------------------------------

    \219\ The electrical component of MAD is 0.02 meters (1 inch) 
for all voltages from 301 volts to 5.0 kilovolts. However, the 
ergonomic component of MAD is 0.305 meters (1 foot) for voltages up 
to 750 volts and 0.61 meters for higher voltages as explained 
earlier.
---------------------------------------------------------------------------

    The electrical component of MAD--calculation methods for voltages 
over 72.5 kilovolts. As noted earlier, OSHA based its proposed minimum 
approach distances on criteria adopted by NESC Subcommittee 8 in 1993. 
The NESC based its criteria, at least in part, on IEEE Std 516-1987. As 
noted in Appendix B to proposed Subpart V, OSHA used the following 
equation, which was based on IEEE Std 516-1987, to calculate the 
electrical component of the minimum approach distance for voltages of 
72.6 to 800 kilovolts in the proposed rule:

[[Page 20436]]

[GRAPHIC] [TIFF OMITTED] TR11AP14.003

Where:

D = Electrical component of the minimum approach distance in air in 
feet
C = 0.01 to account for correction factors associated with the 
variation of gap sparkover with voltage
a = A factor relating to the saturation of air at voltages \220\ of 
345 kilovolts or higher
---------------------------------------------------------------------------

    \220\ This voltage is the maximum transient overvoltage.
---------------------------------------------------------------------------

pu = Maximum anticipated transient overvoltage, in per unit (p.u.)
Vmax = Maximum rms system line-to-ground voltage in kilovolts--this 
value is the true maximum, that is, the normal highest voltage for 
the range (for example, 10 percent above the nominal voltage).

    Phase-to-ground exposures. For phase-to-ground exposures, 
rulemaking participants agreed that the proposal's methodology for 
calculating minimum approach distances was generally appropriate unless 
insulated tools were present across the air gap. (See, for example, 
Exs. 0521, 0527.1, 0529, 0575.1.) For instance, EEI commented, ``The 
existing MAID formula, based on rod-to-rod gap data, is acceptable for 
all line-to-ground applications [through 800 kilovolts with a maximum 
per-unit overvoltage of 2.44 per unit]'' (Ex. 0527.1).
    Therefore, the final rule requires employers to set minimum 
approach distances based on Equation 1 for phase-to-ground exposures at 
voltages of more than 72.5 kilovolts. Here is the full equation 
contained in Table V-2, with the part that is equivalent to Equation 1 
highlighted:

MAD = 0.3048(C + a)VL-GTA + M

The equation in Table V-2 is identical to Equation 1 except that it: 
(1) Incorporates an altitude correction factor, A, as described later 
in this section of the preamble, (2) converts the result to meters 
through multiplication by 0.3048, and (3) adds the ergonomic component 
of MAD, M to the electrical component of MAD given in Equation 1. In 
addition, the table uses slightly different variable designations: VL-G 
for Vmax and T for pu.
    As explained earlier in this section of the preamble, OSHA decided 
to specify minimum approach distances that account for the presence of 
tools in the air gap unless the employer can demonstrate that there is 
only air between the employee and the energized part or between the 
employee and ground, as appropriate. (The air gap would be between the 
employee and the energized part if the employee is at ground potential, 
or at the potential of another energized part, or between the employee 
and ground if the employee is at the potential of the energized part 
during live-line barehand work.) Consequently, in the equation for 
phase-to-phase system voltages of more than 72.5 kilovolts in Table V-
2, the term C must be adjusted depending on whether the minimum tool-
insulation distance or the minimum air-insulation distance will be used 
as the electrical component of the minimum approach distance. According 
to IEEE Std 516-2009, C is 0.01 for the minimum air-insulation distance 
and 0.011 for the minimum tool-insulation distance. OSHA concludes that 
these values of C are reasonable because they are supported by 
scientific evidence (Exs. 0556, 0558) and because there were no other 
values recommended in the rulemaking record for the proposal. 
Therefore, these values are incorporated in Table V-2 in the final 
rule.
    There is one other minor issue that requires resolution before the 
electrical components of the minimum approach distances for phase-to-
ground exposures can be calculated--that is, the determination of the 
saturation factor, a. The proposed rule and IEEE Std 516-1987, which 
formed the original basis for the calculation of phase-to-ground 
minimum approach distances in existing Sec.  1910.269, relied on Figure 
2 in ``Recommendations for Safety in Live Line Maintenance'' to 
determine the saturation factor (269-Ex. 60; Ex. 0558). That figure 
plotted the saturation factor against crest voltage. In preparing IEEE 
Std 516-2009, the IEEE committee decided to use equations to represent 
the saturation factor rather than reading it from the figure (Ex. 
0532). The committee used a curve-fitting program to develop the 
following equations for the saturation factor for calculating the 
electrical components of the minimum approach distances for phase-to-
ground exposures: \221\
---------------------------------------------------------------------------

    \221\ These equations calculate the saturation factor, a, for 
any exposure for which Equation 1 is used to calculate the 
electrical components of the minimum approach distances. However, as 
explained later in this section of the preamble, the committee chose 
to apply Equation 1 only to phase-to-ground exposures.

---------------------------------------------------------------------------

[[Page 20437]]

[GRAPHIC] [TIFF OMITTED] TR11AP14.004

    OSHA concludes that adopting IEEE's method of calculating the 
saturation factor is reasonable because that method will lead to more 
accurate and consistent determinations of minimum approach distances 
for phase-to-ground exposures on system voltages of more than 72.5 
kilovolts than approximating the saturation factor by reading it 
directly from the graph, as was done to calculate the minimum approach 
distances in existing Sec.  1910.269.\223\ Consequently, the Agency is 
adopting these equations for calculating the saturation factor in Table 
V-2 in the final rule for phase-to-ground exposures, except for the 
1,600-kilovolt limitation for the last voltage range. As explained 
later in this section of the preamble, the Agency concluded that 
extrapolating the saturation factor beyond the 1,600-kilovolt maximum 
switching impulse used during the experimental testing used to support 
the IEEE method is reasonable and will better protect employees than 
alternative approaches. For phase-to-ground exposures, this limit would 
have no practical effect as the Agency anticipates that few, if any, 
systems will have maximum phase-to-ground transient overvoltages 
(VPeak) as high as 1,600 kilovolts.
---------------------------------------------------------------------------

    \222\ Through an apparent oversight, the IEEE equations for a 
fail to cover 635.0 kilovolts.
    \223\ The quality of the graph is poor, and the underlying data 
is no longer available (Ex. 0532).
---------------------------------------------------------------------------

    Phase-to-phase exposures. For phase-to-phase exposures, OSHA based 
the proposal on the 2002 NESC approach, which used the maximum phase-
to-phase transient overvoltage in Equation 1 for calculating the 
electrical components of minimum approach distances for phase-to-phase 
exposures. As noted in Appendix B to proposed Subpart V, OSHA used the 
following equation to determine the phase-to-phase maximum transient 
overvoltage based on a system's per-unit nominal voltage phase-to-
ground crest:
[GRAPHIC] [TIFF OMITTED] TR11AP14.005

Where:

pup = p.u. phase-to-phase maximum transient overvoltage, and
pug = p.u. phase-to-ground maximum transient overvoltage.

    The value for pup was to be used for pu in Equation (1) for 
calculating the phase-to-phase MADs.
    Until approximately 2007, the technical committees responsible for 
IEEE Std 516 and the NESC calculated minimum approach distances based 
on these equations. Because OSHA was using the same methodology, the 
Agency relied on the technical committees' calculations as they 
appeared in IEEE Std 516-2003 and the 2002 NESC and proposed to include 
those distances in Sec.  1910.269 and subpart V.
    During the revision cycle for IEEE Std 516-2009, the IEEE technical 
committee responsible for revising that standard identified what, in 
the committee's view, was an error in the calculations of phase-to-
phase minimum approach distances for nominal voltages 230 kilovolts and 
higher. At these voltages, the saturation factor, a, which appears in 
Equation (1), varies depending on the voltage; that is, the value of a 
increases with increasing voltage. The NESC subcommittee calculated the 
phase-to-phase minimum approach distances for the 1993 NESC using a 
value for the saturation factor, a, corresponding to the maximum phase-
to-ground transient overvoltage, rather than the maximum phase-to-phase 
transient overvoltage.\224\
---------------------------------------------------------------------------

    \224\ ANSI/IEEE Std 516-1987 did not contain distances for 
phase-to-phase exposures. The NESC subcommittee derived them by 
applying the IEEE equation, Equation (1), to the phase-to-phase 
temporary overvoltages calculated using Equation (2).
---------------------------------------------------------------------------

    Because, in its proposal, OSHA borrowed the minimum approach 
distances from IEEE Std 516-2003 and the 2002 NESC, the Agency twice 
solicited comments on whether changes to its rule were necessary in 
light of the

[[Page 20438]]

errors identified by the IEEE committee (73 FR 62942, 74 FR 46958).
    The consensus among rulemaking participants was that the proposed 
rule's minimum approach distances for phase-to-phase exposures at 
maximum transient overvoltages exceeding approximately 630 kilovolts 
involved a mathematical error. (See, for example, Exs. 0521, 0524, 
0526.1, 0528, 548.1; Tr2. 122-123, 139.) Draft 9 of the 2009 revision 
of IEEE Std 516 derived formulas for the saturation factor, a, using a 
curve-fitting program (Ex. 0524). When maximum phase-to-phase transient 
overvoltages are less than 630 kilovolts, a is 0.0, and the 
mathematical error is not present (id.). For higher maximum transient 
overvoltages, a is a function of the peak voltage, which is higher for 
phase-to-phase exposures than it is for phase-to-ground exposures (id.)
    Because the proposed rule used an approach for calculating phase-
to-phase minimum approach distances that commenters generally agreed 
was in error, OSHA decided to make changes in this final rule to 
account for that mistake.
    To determine the increased risk to employees, OSHA compared the 
probability of sparkover for the electrical component of the largest 
proposed minimum approach distance with the probability of sparkover 
for the electrical component of the corrected minimum approach 
distance.\225\ For systems operating at 800 kilovolts, the probability 
of sparkover with the maximum phase-to-phase transient overvoltage at 
the corrected electrical component of the minimum approach distance is 
approximately 1 in 1,000. The probability of sparkover at the proposed 
electrical component of the minimum approach distance is 64 in 100. 
Clearly, the proposed minimum approach distance poses significant risk 
to employees when the phase-to-phase transient overvoltage is at its 
maximum. Because, for systems operating at 800 kilovolts, the minimum 
approach distance in the existing standard is the same as the distance 
in the proposed rule, the existing standard also poses a substantial 
risk to employees.
---------------------------------------------------------------------------

    \225\ The corrected minimum approach distance is the minimum 
approach distance calculated with an extrapolated saturation factor 
for the maximum phase-to-phase transient overvoltage in place of the 
maximum phase-to-ground transient overvoltage. This is the method 
used in IEEE Std 516 Draft 9 (Ex. 0524).
---------------------------------------------------------------------------

    OSHA calculated the probabilities of sparkover at the proposed 
electrical component of the minimum approach distance and the corrected 
minimum approach distance in the following manner. The minimum approach 
distance proposed in Table V-2 for this exposure was 7.91 meters, and 
the electrical component of this distance was 7.60 meters (7.91 meters 
- 0.31 meters). The phase-to-phase maximum transient overvoltage at 800 
kilovolts is 2,352 kilovolts.\226\ Draft 9 of the 2009 revision of IEEE 
Std 516 derived formulas for the saturation factor, a, using a curve-
fitting program. Equation 59 in that draft standard provided the 
following equation for a for maximum transient overvoltages of more 
than 1,485 kilovolts:
---------------------------------------------------------------------------

    \226\ Using Equation 2, the phase-to-phase maximum per-unit 
transient overvoltage is 2.0 + 1.6, or 3.6, times the peak phase-to-
ground voltage. The peak phase-to-ground voltage is the maximum 
system phase-to-phase voltage times [radic]2 divided by [radic]3. 
Thus, the maximum transient overvoltage for a phase-to-phase 
exposure for a maximum system voltage of 800 kilovolts (the highest 
system voltage) is 3.6 x 800 x [radic]2 / [radic]3, or 2,352, 
kilovolts.

---------------------------------------------------------------------------
a = (TOV - 1,485) x 0.00000491 + 0.0055704,

where TOV is the maximum transient overvoltage (Ex. 0524).

    This equation extrapolates a beyond the 1,600-kilovolt upper limit 
on available rod-gap test data. Using this equation to determine a and 
using that value in Equation 1, the withstand voltage corresponding to 
7.60 meters is 1,966 kilovolts. The critical sparkover voltage for a 
7.60-meter gap is 1,966 / 0.85, or 2,312, kilovolts. (See Step 4 in the 
explanation of how to use Table 6 to determine the electrical component 
of clearance earlier in this section of the preamble.) The probability 
of sparkover for this distance at the maximum transient overvoltage of 
2,352 kilovolts is 64 percent.\227\ This percentage means that the 
electrical component of the proposed minimum approach distance at 800 
kilovolts has a probability of 64 percent of sparking over at the 
industry-accepted maximum per-unit transient overvoltage of 2.0.
---------------------------------------------------------------------------

    \227\ The probability of sparkover is determined by normalizing 
the mean (average) sparkover voltage and the standard deviation and 
looking up those two normalized parameters in standard distribution 
tables. The critical sparkover voltage (that is, the mean voltage 
that will spark over) is 2,312 kilovolts. The standard deviation is 
5 percent of this value, or 115.6 kilovolts. The maximum transient 
overvoltage corresponding to the industry-accepted value of 2.0 per 
unit at 800 kilovolts is 2,352 kilovolts, or 0.346 standard 
deviations above the mean voltage at sparkover. The probability of 
sparkover can be determined from normal distribution tables for a Z 
of 0.346.
---------------------------------------------------------------------------

    There were three basic methods submitted to the record for 
calculating minimum approach distances for phase-to-phase exposures. 
The first method was the one OSHA used in developing the proposed rule. 
As described earlier in this section of the preamble, that method used 
Equation (1) and Equation (2) to determine the minimum approach 
distance, but without adjusting the saturation factor, a, in Equation 
(1) to account for the increase between the phase-to-ground and phase-
to-phase maximum transient overvoltage. For the reasons already 
explained, OSHA concludes that this method is invalid and would expose 
employees to an unreasonable increase in risk for phase-to-phase 
exposures at maximum transient overvoltages higher than 630 kilovolts. 
Consequently, the Agency decided against adopting this method in the 
final rule.
    The second method, adopted by IEEE Std 516-2009, uses equations 
based on the paper by Vaisman,\228\ and two papers by Gallet,\229\ to 
determine minimum approach distances (Ex. 0532). OSHA refers to this 
method as the ``IEEE method'' in the following discussion.
---------------------------------------------------------------------------

    \228\ Vaisman, op cit.
    \229\ Gallet, G., Leroy, G., Lacey, R., and Kromer, I., 
``General expression for positive switching impulse strength valid 
up to extra line air gaps,'' IEEE Transaction on Power Apparatus and 
Systems, vol. PAS-94, pp. 1989-1993, Nov./Dec. 1975 (Ex. 0560); and 
Gallet, G., Hutzler, B., and Riu, J-P., ``Analysis of the switching 
impulse strength of phase-to-phase air gaps,'' IEEE Transactions on 
Power Delivery, vol. PAS-97, no. 2, Mar./Apr. 1978 (Ex. 0553).
---------------------------------------------------------------------------

    The formula used in IEEE Std 516-2009 for calculating phase-to-
phase minimum approach distances for voltages of 72.6 kilovolts and 
higher is derived from testing that replicates line configurations 
rather than live-line work. Accordingly, the underlying formula in IEEE 
Std 516-2009 originally was intended for determining appropriate 
conductor spacing rather than for determining minimum approach 
distances appropriate for employees performing live-line work. To 
account for the presence of an employee working in an aerial lift 
bucket within the air gap between the two phase conductors, the IEEE 
committee incorporated the concept of a floating electrode in the air 
gap. The committee's approach to determining the electrical component 
of the minimum approach distance can be summarized as follows:
    1. Start with a formula to calculate the critical sparkover voltage 
for the distance between two conductors.
    2. Modify the formula to account for a 3.3-meter floating electrode 
representing an employee working within an aerial lift bucket between 
the phase conductors.
    3. Modify the formula to convert the critical sparkover voltage to 
a withstand voltage.

[[Page 20439]]

    4. Determine the maximum transient overvoltage on the line, and 
substitute that value for the withstand voltage.
    5. Rearrange the equation to solve for distance.
    In more technical detail, this approach is described as follows:
    1. The equation for calculating the critical sparkover voltage for 
a given distance between two conductors includes a gap factor, k. This 
factor depends on several variables:

alpha = the proportion of the negative switching impulse voltage to the 
total phase-to-phase impulse voltage,
Ddesign L-L = the design phase-to-phase clearance, and
H = the average height of the phase above the ground.
    Table 8 shows the values recommended by IEEE Std 516-2009 for these 
variables and the resultant gap factors.

                                   Table 8--IEEE Std 516-2009 Gap Factors (k)
----------------------------------------------------------------------------------------------------------------
               Phase-to-phase voltage                        alpha           Ddesign L-L/H             k
----------------------------------------------------------------------------------------------------------------
<= 242 kV...........................................                0.33                 0.8               1.451
> 242 kV............................................                0.41                 0.8               1.530
----------------------------------------------------------------------------------------------------------------

    IEEE Std 516-2009 uses the following equation to calculate the 
critical sparkover voltage for the designed gap between two phase 
conductors:
[GRAPHIC] [TIFF OMITTED] TR11AP14.006

Where:

V50 = the critical sparkover voltage in kilovolts,
k = the gap factor from Table 8, and
Dl-l = the sparkover distance in meters.

    2. When an employee performs live-line barehand work, the employee 
typically is positioned between two or more phase conductors. The 
employee could be working, for example, from an aerial lift platform or 
a conductor cart. These devices and the worker are both conductive. The 
presence of a conductive object in the air gap between the two 
electrodes (which, in this case, are the two conductors) reduces its 
dielectric strength. IEEE Std 516-2009 introduces a constant, 
KF, to account for the presence of the employee and other 
conductive objects in the air gap. In that consensus standard, 
KF equals 0.9 to accommodate a 3.3-meter conductive object 
in the air gap. This value is equivalent to a 10-percent reduction in 
the dielectric strength of the gap.
    With this factor included, the equation for the critical sparkover 
voltage is:
[GRAPHIC] [TIFF OMITTED] TR11AP14.007

    3. IEEE sets the withstand voltage at a level that is 3[sigma] 
lower than the critical sparkover voltage, as indicated in the 
following equation:
VW = (1-3[sigma])V50

Where:

VW = the withstand voltage,
V50 = the critical sparkover voltage, and
[sigma] = 5 percent for a normal distribution.

    4. To solve for the electrical component of the clearance, the 
maximum transient overvoltage is substituted for the withstand voltage. 
The IEEE committee used the following equation to calculate the maximum 
transient overvoltage on the line:
[GRAPHIC] [TIFF OMITTED] TR11AP14.047

Where:

TL-L = the phase-to-phase maximum transient overvoltage in per unit, 
and
TL-G = the phase-to-ground maximum transient overvoltage in per 
unit.

    5. Substituting the values of the various constants and solving 
these equations for distance, IEEE Std 516-2009 uses the following 
equations to calculate the minimum air-insulation distance:
[GRAPHIC] [TIFF OMITTED] TR11AP14.008


[[Page 20440]]


Where:

DL-L = the minimum air-insulation distance (the minimum distance 
needed to prevent sparkover with air alone as the insulating 
medium),
TL-G = the phase-to-ground maximum transient overvoltage in per 
unit, and
VL-L = the rms phase-to-phase system voltage.

    Testifying on behalf of EEI, Dr. Horton explained the IEEE method 
as follows:It is well recognized that the dielectric strength of a 
given electrode geometry is different for line-to-ground surges than 
for line-to-line surges. A phase-to-phase surge between two phases is 
the voltage difference between the phase-to-ground surges which may be 
of opposite polarity and displaced in time, (and many times are) 
whereas a maximum phase-to-ground surge is considered uni-polar.
* * * * *
[The surges from the two phases] are displaced by some amount of 
time. . . .

    The resulting line-to-line surge . . . will stress a given air 
gap geometry differently than either of the line-to-ground surges 
that the resulting waveform is comprised of. Unlike line-to-ground 
insulation characteristics of a given electrode geometry, which 
depend primarily on the gap spacing, line-to-line insulation 
characteristics . . . are more complex because one of the surges has 
a positive polarity with respect to ground while the other has a 
negative polarity with respect to ground.
    The resulting insulation strength is a function of alpha, which 
again, is the ratio of the negative surge to the sum of the negative 
and positive surge.
    The IEEE recently tried to address this limitation [in IEEE Std 
516-2009] by developing a method based on a modified version of the 
Gallet equation. The upper voltage limit of the resulting equation 
is 3500 kV peak or air gap distances of up to 15 meters. This 
limitation is well within the typical range of live-line working 
scenarios in the United States.
    Historically, IEEE Standard 516 has used rod-to-rod electrode 
geometry data for determining line-to-ground MAID. One reason for 
this is that the test data that the method is based on represents a 
rod-to-rod electrode configuration.
    In addition, the line-to ground [testing] that was performed 
showed that the rod-to-rod results were in the middle range for a 
wide range of conductor configurations. The rod-to-rod data 
presented neither the worst case nor the best. Thus, it was chosen 
as a reasonable representation of all the possible gap 
configurations to which a line worker might be exposed while 
performing tasks, which are characterized as line-to-ground.
    When considering line-to-line minimum air insulation distances, 
a rod-to-rod gap may not be the most appropriate. Typically, the 
worker will bond onto one phase and will not need to bridge the gap 
to the other phase. Since the shape of the adjacent electrode 
remains unchanged during the task, (in other words it remains a 
conductor) the resulting air gap geometry more closely resembles 
that of a conductor-to-conductor. The effect of the change in 
geometry of the phase to which the worker is bonded is dealt with in 
the new IEEE method by introducing an additional factor that 
accounts for the effect of large conductive objects floating in the 
air gap. [Tr2. 83-86]

    No rulemaking participant recommended that OSHA adopt the IEEE 
method for calculating minimum air-insulation distances for phase-to-
phase exposures at more than 72.5 kilovolts. In addition, the Agency 
has several concerns with the approach taken in that consensus 
standard. First, the IEEE method relies on test data for an electrode 
configuration that is not comparable to the rod-to-rod gap used for 
phase-to-ground exposures on which OSHA based the minimum approach 
distances in existing Sec.  1910.269. Second, the choices for some of 
the parameters used in the equations for the electrical component of 
the minimum approach distance appear to be arbitrary. Third, the IEEE 
method is based on papers that explore the dielectric strength of 
electric power lines rather than the dielectric strength of circuit 
parts configured as they would be when employees are performing live-
line barehand work.
    (1) Conductor-to-conductor-based method does not accurately model 
employee exposure. OSHA considered the evidence in the record and 
concludes that the IEEE method, which is based on testing on conductor-
to-conductor electrodes, does not accurately model employee exposure. 
As noted by Dr. Horton, the approach taken by existing Sec.  1910.269 
and earlier editions of IEEE Std 516 based the calculation of minimum 
air-insulation distances for both phase-to-ground and phase-to-phase 
exposures on phase-to-ground testing of rod-to-rod electrodes (Tr2. 
85).\230\ By adopting the approach taken in IEEE Std 516-1987 in 
promulgating existing Sec.  1910.269, OSHA deemed it reasonable to rely 
on rod-to-rod gap data (59 FR 4383-4384). The record in this rulemaking 
contains reports of tests on a variety of electrode configurations, 
showing clearly that the dielectric strength of air varies with the 
configuration (269-Ex. 60; Exs. 0553, 0554). In reviewing the record, 
OSHA has again concluded that phase-to-ground rod-to-rod gap test data 
forms a reasonable basis for the determination of minimum approach 
distances because it falls in the middle range of various electrode 
configurations (that is, it is neither the best case nor the worst). In 
addition, OSHA believes that employees performing work on energized 
lines are rarely exposed to the worst-case configuration, rod-to-plane 
electrodes, or to the best-case configuration, sphere-to-sphere 
electrodes. Thus, an exposure representing the middle range of various 
electrode configurations is reasonable for a model based on phase-to-
ground testing.
---------------------------------------------------------------------------

    \230\ Typical configurations include rod-rod, rod-plane, and 
conductor-plane. The terminology refers to the configuration of the 
two electrodes. For example, in a rod-plane configuration, one of 
the electrodes is a rod perpendicular to an electrode in the shape 
of a plane.
---------------------------------------------------------------------------

    A paper by Gallet \231\ reports on a variety of phase-to-phase gap 
factors, including supported busbars and asymmetrical geometries, as 
shown in the following table (Ex. 0553):
---------------------------------------------------------------------------

    \231\ Gallet, G, Hutzler, B., and Riu, J-P., op cit.

------------------------------------------------------------------------
       Electrode geometry             alpha = 0.5        alpha = 0.33
------------------------------------------------------------------------
Rings or large, smooth                          1.80                1.70
 electrodes.....................
Crossed conductors..............                1.65                1.53
Rod-rod or conductor-conductor..                1.62                1.52
Supported busbars...............                1.50                1.40
Asymmetrical geometries.........                1.45                1.36
------------------------------------------------------------------------
Table reprinted with permission from the Institute for Electrical and
  Electronics Engineers (IEEE). OSHA revised the table from IEEE's
  original.

    Although the performance during phase-to-phase tests are the same 
for rod-to-rod and conductor-to-conductor electrodes, OSHA concludes 
that phase-to-phase exposures are more likely to correspond to 
asymmetrical geometries, which, as can be seen from the table in the 
Gallet paper, have a lower dielectric strength than rod-to-rod or 
conductor-

[[Page 20441]]

to-conductor electrodes.\232\ Employees performing live-line barehand 
work face a wide variety of exposure conditions reflecting a number of 
different electrode configurations. Several of these electrode 
configurations are not equivalent to conductor-to-conductor electrodes. 
Employees working on energized supported busbars could experience 
phase-to-phase exposures. Additionally, during live-line barehand work 
on energized conductors, employees are working on the conductors, and 
the installation may be configured differently when maintained or 
installed. For example, a damaged portion of a bundled conductor may 
protrude from the bundle, or an employee may be holding an armor rod 
perpendicular to the conductor. The equipment used to position the 
employee also can affect the shape of one of the electrodes. The Agency 
believes that these examples may more closely resemble asymmetrical 
geometries. Consequently, the gap factor for those electrode 
configurations, as shown in the table, would be lower than the gap 
factor used in IEEE Std 516-2009. The IEEE standard reduced the gap 
factor by accounting for a conductive object in the gap. However, the 
Agency believes that such a reduction also would be necessary when 
another conductive object is in the air gap while an employee is 
working on an energized conductor, which could occur as equipment is 
transferred to the employee or if a second worker is in the air gap. 
Thus, OSHA concludes that a model based on phase-to-phase testing 
should be based on asymmetrical electrode geometries and that the IEEE 
committee's choice of a conductor-to-conductor gap is not appropriate.
---------------------------------------------------------------------------

    \232\ Dielectric strength is proportional to the gap factor. 
Thus, a smaller gap factor yields a lower dielectric strength.
---------------------------------------------------------------------------

    (2) The values of some of the parameters used in the IEEE method 
appear to be arbitrary. The ratio of the negative switching impulse 
voltage to the total phase-to-phase impulse voltage is designated as 
alpha. Dr. Horton described this parameter, and its importance, as 
follows:

    A phase-to-phase surge between two phases is the voltage 
difference between the phase-to-ground surges which may be of 
opposite polarity and displaced in time, (and many times are) 
whereas a maximum phase-to-ground surge is considered uni-polar.
    [Figure 5] shows how two separate phase-to-ground surges combine 
to form a line-to-line surge. . . .
    [W]e have one [transient] for phase 1 and we have . . . one for 
phase 2, and . . . they are displaced by some amount of time. The 
resulting transient overvoltage or surge that would be across the 
air gap, which would be the line-to-line air gap, would be . . . a 
combination of the [two] curve[s]. [Tr2. 83-84]


[[Page 20442]]


[GRAPHIC] [TIFF OMITTED] TR11AP14.009

    The IEEE committee used an alpha of 0.33 for system voltages up to 
242 kilovolts. However, the committee used a value of 0.41 for higher 
system voltages. It described the rationale for this latter decision 
with a quote from the Vaisman paper:

    \233\ Figure 5, which is a copy of Figure 4 from Ex. 0545.1, was 
included in the presentation by Dr. Horton at the October 28, 2009, 
public hearing. (See, also, Ex. 0567.) EEI identified the source of 
this figure as EPRI Transmission Line Reference Book: 115-345-kV 
Compact Line Design, 2007 (Blue Book).
---------------------------------------------------------------------------

    In [extra-high voltage] systems, where there is efficient 
overvoltage control and hence the overvoltage factor a tends to lie 
in the range of 0.41 to 0.50, the ratio between the line-to-line 
(D1) and the line-to-ground (D) clearance equal to 2.0 is the one 
which provides a more balanced distribution of flashovers between 
the two gaps. [Ex. 0532]

    OSHA has two concerns about this choice. First, the paper does not 
indicate that an alpha of 0.41 is the smallest expected for these 
systems. A smaller value of alpha will produce a smaller value for the 
gap factor, k, and, consequently, a larger electrical component of the 
minimum approach distance.\234\ Second, it is not clear why efficient 
overvoltage control has any effect on alpha. Overvoltage control limits 
the maximum transient overvoltage on each individual phase, but it does 
not necessarily limit the delay between the peak transient overvoltage 
on each phase, which appears as [Delta]Tcr in Figure 5. The 
Vaisman paper also explored the effect of [Delta]Tcr, which 
is not accounted for in the IEEE method:
---------------------------------------------------------------------------

    \234\ In the IEEE method, the critical sparkover voltage, 
V50, is directly proportional to k, and the minimum air-
insulation distance (the electrical component of the minimum 
approach distance) is inversely proportional to V50. 
Thus, the electrical component of the minimum approach distance is 
inversely proportional to k.

    In other tests, where only the negative wave was displaced, the 
observed reductions were:

[[Page 20443]]



                          Table 2--Reduction in [V50] When Displacing the Negative Wave
----------------------------------------------------------------------------------------------------------------
                  [alpha]  Desired                     [alpha]  Obtained   [Delta]Tcr  (ms)     Reduction  (%)
----------------------------------------------------------------------------------------------------------------
0.33................................................                0.28                   1                 1.5
0.50................................................                0.43                   1                 3.1
0.33................................................                0.22                   2                 4.0
0.50................................................                0.36                   2                 8.7
----------------------------------------------------------------------------------------------------------------

    Nevertheless, under these conditions, besides the shift between 
impulses, there was also a decrease of [alpha].
    From all the results a maximum reduction of 8.7% in the value of 
U50 can be observed when the positive and negative components of 
phase-to-phase overvoltage are not synchronized [Ex. 0555].

    From Figure 5, it is clear that the maximum overvoltage occurs when 
the positive and negative transient waves are synchronized, that is, 
when [Delta]Tcr = 0. In addition, it is clear from the BPA 
report that the poles of a circuit breaker do not trip simultaneously 
(Ex. 0575.1). In addition, circuit characteristics also may contribute 
to the size of [Delta]Tcr. The [Delta]Tcr range 
shown in the Vaisman paper does not seem unreasonable. Thus, from this 
paper, on which the IEEE committee relied, it appears that the maximum 
phase-to-phase transient overvoltage should be calculated, as shown by 
Table 2 in the Vaisman paper, by using an alpha of 0.50 and reducing 
the critical sparkover voltage by 8.7 percent. In this case, the peak 
overvoltage on each phase has the same value, which seems reasonable if 
the phases are identical in most respects, but displaced by 2 
milliseconds, which, based on the BPA report, also seems reasonable.
    (3) The IEEE method is based on papers on the design of lines 
rather than employee safety during maintenance. Finally, OSHA has a 
concern that the IEEE method is based almost exclusively on papers that 
explore the dielectric strength of lines. Employees perform work on 
energized lines and equipment. In addition, the lines on which 
employees work during maintenance and repair may not be in the same 
condition as the lines were when they were first installed. The Agency 
believes that it is appropriate to base minimum approach distances for 
workers on papers and scientific data derived from actual working 
conditions.
    The Agency agrees with Dr. Horton and EEI that phase-to-phase 
overvoltages are more complicated than phase-to-ground overvoltages. 
However, the Gallet formula on which the IEEE method is based models 
phase-to-ground, as well as phase-to-phase, critical sparkover 
voltages. In addition, the IEEE committee chose not to use it for 
phase-to-ground exposures, presumably because the papers supporting the 
method for phase-to-ground exposures examined the safety of employees 
performing live-line maintenance.\235\ OSHA believes that these papers 
support the method used in the final rule to calculate minimum approach 
distances for phase-to-phase exposures, as well as phase-to-ground 
exposures. Therefore, for all the foregoing reasons, OSHA concludes 
that the IEEE approach does not reasonably represent the range of 
overvoltages or the dielectric strength of air gaps that a worker will 
encounter during phase-to-phase exposures.
---------------------------------------------------------------------------

    \235\ IEEE Std 516-2009 listed three papers that supported the 
method used for phase-to-ground exposures:
    Elek, A., and Simpson, J. W., ``Safe clearance and protection 
against shocks during live-line work,'' AIEE Transaction on Power 
Apparatus and Systems, vol. 80, pt. III, pp. 897-902, Feb. 1962.
    IEEE Committee Report, ``Live-line maintenance methods,'' IEEE 
Transactions on Power Apparatus and Systems, vol. PAS-92, pp. 1642-
1648, Sept./Oct. 1973.
    IEEE Committee Report, ``Recommendations for safety in live-line 
maintenance,'' IEEE Transactions on Power Apparatus and Systems, 
vol. PAS-87, no. 2, pp. 346-352, Feb. 1968.
    All three of these papers examined minimum approach distances 
for live-line work (Ex. 0532).
---------------------------------------------------------------------------

    The third method, described in Drafts 9 and 10 of IEEE Std 516 and 
incorporated in this final rule, uses Equation (3) \236\ to determine 
the maximum per-unit transient overvoltage, calculates the saturation 
factor, a, based on the maximum phase-to-phase transient overvoltage, 
and uses Equation (1) \237\ to determine the minimum approach distance 
(Exs. 0524, 0525). The calculation of the saturation factor uses a 
curve-fitted equation, which extrapolated the value for that factor 
beyond the 1,600-kilovolt limitation on the test data noted earlier. 
OSHA refers to this method as the ``extrapolation method'' in the 
following discussion. In comments responding to the 2008 reopening 
notice, Mr. Brian Erga with ESCI supported the adoption of this method 
because it corrects the calculation error present in the 2003 edition 
of IEEE Std 516 (Ex. 0521).
---------------------------------------------------------------------------

    \236\ TL-L = 1.35TL-G + 0.45. OSHA is 
adopting this equation in Table V-2. Drafts 9 and 10 of IEEE Std 516 
and final IEEE Std 516 adopt this equation for calculating the 
phase-to-phase maximum per-unit transient overvoltage (Exs. 0524, 
0525, and 0532), and there is no evidence in the record to indicate 
that it does not accurately represent the phase-to-phase maximum 
per-unit transient overvoltage.
    \237\ D = (C + a) x pu x Vmax.
---------------------------------------------------------------------------

    Other rulemaking participants objected to the extrapolation of the 
saturation factor. (See, for example, Exs. 0545.1, 0548.1; Tr2. 77-79.) 
These rulemaking participants maintained that there was no test data to 
support extrapolating this factor and argued that other methods of 
estimating the dielectric strength of air demonstrated that 
extrapolating the saturation factor would result in minimum approach 
distances that are ``dangerously inaccurate'' (Ex. 0548.1). The 
Southern Company explained its objections as follows:

    [T]here are at least two methods of estimating the dielectric 
strength of air gaps that show that extrapolating the saturation 
factor, ``a'', beyond the test data [reference omitted] for which it 
was based is not valid. A comparison of the MAID values computed 
using the [extrapolation] formula and those of Gallet and CRIEPI 
[238]  [references omitted] show that extrapolating test 
points beyond the 1650 kV range is dangerously inaccurate. [Id.]
---------------------------------------------------------------------------

    \238\ Central Research Institute of Electric Power Industry.

The Southern Company described how it ``manipulated'' the formulas and 
plotted the results, comparing the extrapolation method with the other 
two methods (the Gallet and CRIEPI formulas), as shown in Figure 6.

[[Page 20444]]

[GRAPHIC] [TIFF OMITTED] TR11AP14.010

Southern Company included a second figure (not shown here) consisting 
of the area beyond 1,600 kilovolts, where test data is unavailable to 
support either Equation (1) or the determination of the saturation 
factor, a. The commenter concluded:

    [These figures] show that three methods agree rather closely for 
transient overvoltages less than 1600 kV (the limitation of the 
[Drafts 9 and 10] IEEE method). However, at approximately 1800 kV, 
the results found using the Gallet and CRIEPI formulas diverge 
significantly from the [extrapolation] method. The reason for this 
is primarily due to the fact that the Gallet and CRIEPI formulae are 
based on test data in this voltage range, whereas, the 
[extrapolation] formula is not. [Id.]

    OSHA notes that there is a similar divergence between these 
formulas at voltages from 600 to 750 kilovolts. The following table 
shows minimum air-insulation distances for two voltages \239\ using the 
Equation (1) extrapolation method and Southern Company's modified 
Gallet formula:
---------------------------------------------------------------------------

    \239\ OSHA chose 592.8 and 2,149 kilovolts (which correspond to 
systems of 161 kilovolts at 3.0 per-unit maximum transient 
overvoltage and 800 kilovolts at 2.1 per-unit maximum transient 
overvoltage) because these values generally represent the low and 
high end of the voltage range covered by Figure 6. In addition, 
there is rod-gap test data supporting the current method at 592.8 
kilovolts, but not at 2,149 kilovolts.

----------------------------------------------------------------------------------------------------------------
                                       Equation (1) based on
              Voltage                 extrapolation method \1\     Modified gallet formula    Percent difference
----------------------------------------------------------------------------------------------------------------
592.8 kV..........................  1.28 meters................  1.50 meters................                  17
2149.0 kV.........................  9.23 meters................  10.68 meters...............                  16
----------------------------------------------------------------------------------------------------------------
\1\ Based on IEEE Standard 516 Draft 9 (Ex. 0524).

    This table shows a substantial difference between the Southern 
Company's modified Gallet formula and the extrapolation method at 
voltages where test data exist. Southern Company's modified Gallet 
formula produces minimum approach distances that are much higher at 
voltage levels where test data exist than they are where test data do 
not exist. Because the modified Gallet formula does not accurately 
produce minimum approach distances where test data exists, there is no 
reason to believe that it will accurately calculate minimum approach 
distances where there is no test data. Therefore, OSHA concludes that 
it cannot rely on the Southern Company's analysis to show that the 
extrapolation method does not provide adequate employee 
protection.\240\ The results of this comparison are not surprising. The 
curves representing these formulas have slightly different shapes. In 
comparison to Equation (1), in which the saturation factor increases 
nearly linearly before and after extrapolation, the Gallet formula 
results in a small increase in the saturation factor at lower voltages, 
but a large increase at higher voltages. Thus, despite the similarity 
in appearance between the two equations, OSHA concludes that, compared 
to the extrapolation method, the modified Gallet formula does not 
equally represent the strength of the air gap.
---------------------------------------------------------------------------

    \240\ The Agency did not compare the modified CRIEPI formula as 
there is no evidence in the record to suggest that OSHA base the 
final rule on that formula.
---------------------------------------------------------------------------

    Further exploration of the modified Gallet and CRIEPI formulas 
sheds additional light on this issue. The Gallet formula uses a gap 
factor as one parameter. Southern Company used a gap factor of 1.3 in 
its comparison. Although the comment stated that Southern Company based 
the gap factor on rod-to-rod electrode configurations,

[[Page 20445]]

there is no record support for this value. The lowest value for the gap 
factor provided in the Gallet paper was 1.36 (Ex. 0553). Had Southern 
Company used a gap factor of 1.33 instead,\241\ the differences between 
the equations would be generally smaller, and the high-voltage 
``difference'' noted by Southern Company would not be apparent until 
approximately 2,100 kilovolts. At system voltages higher than 242 
kilovolts, IEEE Std 516-2009 uses a gap factor equivalent to 1.377, 
which results in smaller rather than larger minimum air-insulation 
distances at voltages between approximately 800 and 2,200 kilovolts 
(Ex. 0532). Therefore, the Agency is rejecting Southern Company's 
argument that the modified Gallet and CREIPI formulas show that the 
extrapolation method is not sufficiently protective.
---------------------------------------------------------------------------

    \241\ With no record support for a gap factor of 1.3, it appears 
that Southern Company chose the gap factor arbitrarily. In this 
example, OSHA has chosen an equally arbitrary gap factor simply to 
show how the curves can be manipulated.
---------------------------------------------------------------------------

    The concern about the lack of test data appears to be unfounded, at 
least for the range of overvoltages addressed by the final rule. The 
largest overvoltage addressed by the final rule is approximately 2,500 
kilovolts, which corresponds to an 800-kilovolt system with a phase-to-
ground maximum per-unit transient overvoltage of 2.5 pu. The test data 
for rod-to-rod gaps extends to 1,600 kilovolts. Thus, the data cover 
about two thirds of the voltage range covered by the final rule, and 
the test data provide substantial support for maximum transient 
overvoltages of 1,600 kilovolts (which corresponds to an 800-kilovolt 
system with a 1.5 per-unit maximum transient overvoltage) regardless of 
whether the exposure is phase-to-phase or phase-to-ground. In addition, 
the saturation factor varies almost linearly with voltage, as can be 
seen from the table and graphs of voltage vs. saturation factor in the 
IEEE reports on which Equation (1) is based (Exs. 0556, 0558). Figure 7 
reproduces the relevant graphs in those papers.\242\ Thus, an 
extrapolation of the saturation factor likely will produce reasonable 
results.
---------------------------------------------------------------------------

    \242\ This graph is Figure 1 in Ex. 0556 and Figure 2 in Ex. 
0558.
---------------------------------------------------------------------------

BILLING CODE 4510-26-P

[[Page 20446]]

[GRAPHIC] [TIFF OMITTED] TR11AP14.011

BILLING CODE 4510-26-C
    In addition, as noted earlier, the Gallet and CRIEPI formulas, the 
other two formulas described by Southern Company for determining 
sparkover voltages, have a similar shape. (See Figure 6.) The 
extrapolation method might not be as conservative at the highest 
voltages as the Gallet and CRIEPI formulas. However, because the 
modified Gallet and CREIPI formulas rely on a gap factor that is 
unsupported on the record, and because the gap factor adopted in IEEE 
Std 516-2009 yields minimum approach distances that are less 
conservative than the extrapolation method, the Agency believes that 
the extrapolation method will provide adequate protection for workers. 
For these reasons, OSHA concludes that it is reasonable to extrapolate 
the test data to determine minimum approach distances. Consequently, 
the final rule adopts the extrapolation method of determining minimum 
approach distances by providing equations for calculating the 
saturation factor, a, as described in the following paragraphs.
    Drafts 9 and 10 of the 2009 revision of IEEE Std 516, as well as 
the approved edition of that standard, provided linear equations for 
the saturation factor. These equations varied depending on the voltage 
range (Exs. 0524, 0525, 0532). IEEE Std 516-2009 limits the

[[Page 20447]]

equation for the highest range to transient overvoltages of 1,600 
kilovolts (Ex. 0532).\243\ Drafts 9 and 10 of the 2009 revision of that 
IEEE standard extrapolated the saturation factor by applying the 
equation for the highest voltage range without limit (Exs. 0524, 0525). 
OSHA notes that Drafts 9 and 10 of IEEE Std 516 used slightly different 
equations for the calculation of the saturation factor than does IEEE 
Std 516-2009 (Exs. 0524, 0525, 0532). The Agency compared the results 
of the two sets of equations with the data from the original IEEE 
reports on which Equation (1) is based and determined that the 
equations from IEEE Std 516-2009 fit the data precisely. However, IEEE 
Std 516-2009 notes:
---------------------------------------------------------------------------

    \243\ It should be noted that, despite the 1,600-kilovolt 
limitation, IEEE Std 516-2009 apparently applies this equation to 
1,633 kilovolts (the maximum transient overvoltage on an 800-
kilovolt system with a 2.5 per-unit maximum transient overvoltage) 
in the minimum approach distance tables in Appendix D of that 
standard.

    [T]here is a different value of the ``a'' [saturation] factor 
for same voltage used to calculate MAID and MTID. To avoid having 
values of the ``a'' factors for MAID and MTID, the working group 
decided to use only the MTID ``a'' factor since it matches the 
---------------------------------------------------------------------------
values of the ``a'' factor shown on the figure. [Ex. 0532]

Thus, the IEEE standard bases the saturation factor on the withstand 
voltages with tools in the gap. OSHA believes that this approach is 
appropriate for phase-to-ground exposures. However, for phase-to-phase 
exposures, which almost never involve tools across the gap, the Agency 
believes that this approach is unnecessarily conservative. Draft 9 of 
the IEEE standard uses equations for the saturation factor based on 
test data for air gaps without tools. Therefore, the final rule bases 
the saturation factor on: (1) The equations from IEEE Std 516-2009 for 
phase-to-ground exposures and (2) the equations in Draft 9 of that 
standard for phase-to-phase exposures. Therefore, Table V-2 applies the 
equations for the saturation factor, a, from IEEE Std 516-2009 to 
phase-to-ground exposures, while using the equations for this factor 
from Draft 9 of that standard for phase-to-phase exposures. To 
extrapolate the saturation factor to the highest voltage addressed by 
the final rule, OSHA is extending the application limit of Equation 59 
from IEEE Std 516-2009. The Agency based these equations on the 
assumption that no insulated tool or large conductive object are in the 
gap. Note 3 to Table V-2 indicates that, if an insulated tool spans the 
gap or if a large conductive object is in the gap, employers are to use 
the equations for phase-to-ground exposures (with VPeak for phase-to-
phase exposures).
    Circuits operating at 362.1 to 420 kilovolts. In the 2009 reopening 
notice, OSHA noted that IEEE Std 516-2009 included an additional 
voltage range, 362.1 to 420 kilovolts, in its minimum approach distance 
tables; this range did not appear in OSHA's proposed rule (74 FR 
46962). The Agency requested comments on whether it should add this 
voltage range to the minimum approach tables in the final rule. 
Rulemaking participants recommended adding this voltage range to the 
OSHA standard, though no electric utilities responding to the issue 
operated any system in this voltage range. (See, for example, Exs. 
0545.1, 0548.1, 0551.1; Tr2. 93, 159.) Dr. Randy Horton, testifying on 
behalf of EEI, stated:

    OSHA should include these voltage ranges in the final [r]ule in 
order to provide complete guidance to the industry. However, there 
are not many lines that operate at these voltages within the 
American electric utility industry. [Tr2. 93]

    Although it appears that there are few, if any, electric power 
transmission systems in the United States operating at 362.1 to 420 
kilovolts, OSHA is including this voltage range in the final standard. 
Otherwise, an employer with a system operating in this voltage range 
would have to set minimum approach distances based on a maximum system 
voltage of 550 kilovolts, the highest voltage in the next higher 
voltage range listed in Table V-6. Even if systems operating in the 
362.1- to 420-kilovolt range are extremely rare, OSHA is not requiring 
employers to adhere to minimum approach distances that are 
substantially higher than necessary to protect employees doing work at 
those voltages. Therefore, OSHA decided to include the 362.1- to 420-
kilovolt range in Table V-6 in the final rule, which specifies 
alternative minimum approach distances for worksites at an elevation of 
900 meters or less. Employers not using that table can establish 
minimum approach distances for any particular voltage, including 
voltages in the 362.1- to 420-kilovolt range, using the equations in 
Table V-2 for the maximum voltage on the particular circuit involved.
    The electrical component of MAD--DC exposures. OSHA proposed 
minimum approach distances for dc circuits in Table V-5. OSHA received 
no comments on these minimum approach distances and, therefore, is 
adopting them in Table V-7 of the final rule as proposed.
    OSHA's requirements on minimum approach distances better effectuate 
the purpose of the OSH Act than the national consensus standard. 
Whenever a final rule differs substantially from an existing national 
consensus standard, Section 6(b)(8) of the OSH Act requires OSHA to 
publish a statement of reasons in the Federal Register explaining why 
the final rule will better effectuate the purposes of the Act than the 
national consensus standard. This final rule contains requirements for 
minimum approach distances that differ substantially from those in the 
2012 NESC, which the Agency determined is the current, relevant 
national consensus standard.
    Paragraph (g) of Sec.  1910.2 defines ``national consensus 
standard''. There are currently two existing consensus standards 
addressing minimum approach distances for electric power generation, 
transmission, and distribution work: ANSI/IEEE C2-2012 and IEEE Std 
516-2009. The 2012 NESC, which also is an IEEE standard, was approved 
as an ANSI standard on June 3, 2011.\244\ IEEE Std 516-2009 is not 
currently an ANSI standard, although the 2003 edition was an ANSI 
standard.\245\ Many States adopt the NESC (Tr2. 151).\246\ Mr. Charles 
Kelly of EEI called the NESC ``the preeminent National Consensus 
Standard on clearance distances for electric utility work on high 
voltage lines and equipment'' (Tr2. 73). Mr. James Tomaseski, 
testifying on behalf of the NESC, called that document ``the authority 
on safety requirements for power . . . systems'' (Tr2. 35). In 
contrast, rulemaking participants characterized IEEE Std 516 as ``an 
engineering document'' containing engineering principles and guidelines

[[Page 20448]]

(Tr2. 56; see also, for example, Tr2. 59, 74, 129-130, 174). However, 
the NESC takes those engineering principles and produces work rules, 
taking into account the practical effects of the requirements. (See, 
for example, Tr2. 57, 73, 175-176.) OSHA, therefore, concludes that the 
2012 NESC is the existing national consensus standard for the purposes 
of Section 6(b)(8).
---------------------------------------------------------------------------

    \244\ IEEE is the secretariat of the National Electrical Safety 
Code, which IEEE adopted and which ANSI approved subsequently as a 
standard. The official designation of the current version of the 
National Electrical Safety Code is ANSI/IEEE C2-2012. Standards 
approved as ANSI standards are American National Standards. In 
addition, the ANSI approval process ensures that procedures used to 
adopt standards conform to the procedures described in the 
definition of ``national consensus standard'' in 29 CFR 1910.2(g). 
See, for example, OSHA's adoption of national consensus standards 
and established Federal standards under Section 6(a) of the OSH Act 
(36 FR 10466, May 29, 1971).
    \245\ IEEE standards frequently undergo the ANSI approval 
process. After becoming an approved American National Standard, an 
IEEE standard shares a joint ANSI/IEEE designation.
    \246\ According to a survey conducted by IEEE, over 20 States 
adopted the 2007 edition of the NESC, and several other States 
adopted other editions of the NESC (http://standards.ieee.org/about/nesc/pucsurvey2007.pdf). The States generally enforce public safety 
provisions of the NESC through public utility commissions. OSHA is 
not aware of any States that adopted the updated consensus standard 
since its most recent publication. OSHA anticipates that States will 
adopt this edition of the NESC when they update their regulations.
---------------------------------------------------------------------------

    The 2012 NESC sets its basic ac minimum approach distances in Table 
441-1. This table divides minimum approach distances into two sets of 
distances: one for voltages up to 72.5 kilovolts and the other for 
voltages of 72.6 to 800 kilovolts. The minimum approach distances 
applying to voltages of 72.5 kilovolts and less are the same for work 
with and without tools between the employee and the energized part. The 
minimum approach distances applying to voltages of 72.6 to 800 
kilovolts vary depending on whether a tool spans the distance between 
the employee and the energized part. The distances in Table 441-1 are 
identical to the minimum approach distances in IEEE Std 516-2009 for 
industry-accepted values of maximum transient overvoltage, and the NESC 
limits the application of Table 441-1 to situations in which IEEE Std 
516-2009 declares that industry-accepted values of maximum transient 
overvoltage are valid, as described earlier in this section of the 
preamble.
    Table 441-1 in the 2012 NESC does not specify distances for phase-
to-phase exposures with tools or large conductive objects between the 
employee and the energized part. In addition, the table applies only to 
worksites at an elevation below 900 meters (3,000 feet). For higher 
elevations, the 2012 NESC requires the employer to calculate minimum 
approach distances using a formula equivalent to that in IEEE Std 516-
2009.
    The 2012 NESC requires the employer to make an engineering analysis 
to determine the minimum approach distance in two situations: (1) If 
the employer uses phase-to-phase live line tools between the employee 
and the energized part (Table 441-1, Note 8), and (2) if the employer 
chooses to use an engineering analysis in lieu of using Table 441-1 
(Rule 441A1). A note in the 2012 NESC reads: ``IEEE Std 516-2009 
contains information that may be used to perform an engineering 
analysis to determine minimum approach distances.''
    The 2012 NESC bases its minimum approach distances on IEEE Std 516-
2009; and, as explained previously, the Agency concluded that the 
minimum approach distances in IEEE Std 516-2009 expose employees to 
additional risk of injury for various exposures. The IEEE standard sets 
minimum approach distances for exposures at voltages of 72.5 kilovolts 
and less that do not take account of tools or conductive objects in the 
air gap. Consequently, OSHA determined that, for these voltages, the 
IEEE method for calculating minimum approach distances, on which the 
2012 NESC bases its minimum approach distances, does not protect 
employees as well as the method for calculating minimum approach 
distances specified in the final rule. The final rule ensures adequate 
employee protection, even when tools or conductive objects are present 
in the air gap. In addition, for phase-to-phase exposures at voltages 
of more than 72.5 kilovolts, the Agency found that the method for 
calculating minimum approach distances in IEEE Std 516-2009, on which 
the 2012 NESC bases its minimum approach distances, does not use gap 
factors that adequately represent the full range of employee exposures. 
Furthermore, the 2012 NESC permits employers to use the industry-
accepted values for the maximum per-unit transient overvoltage without 
ensuring that the maximum transient overvoltages at the worksite cannot 
exceed those values. Although the 2012 NESC limits the use of the 
industry-accepted values in some situations, the limitation does not 
appear to apply to circuits such as the BPA circuit that exhibited 
higher maximum per-unit transient overvoltages. Thus, OSHA concludes 
that the 2012 NESC is not as effective as the final rule in protecting 
employees against high maximum transient overvoltages. Because the 
minimum approach distances contained in the final rule will better 
protect employees than the distances specified in the NESC, the Agency 
also concludes that the final rule will better effectuate the purposes 
of the OSH Act than the NESC. Therefore, the Agency concludes that the 
minimum approach distances required by the final rule, which account 
for actual workplace conditions, will better protect employees than the 
IEEE distances for these exposures.

    Impacts of changes in minimum approach distances. The final rule 
at Sec.  1926.950(d)(2), as well as Sec.  1926.960(c)(1)(ii) and 
Table V-2, requires employers to determine the maximum per-unit 
transient overvoltage for the systems on which employees will be 
working. Existing Sec.  1910.269(a)(3) already contains a comparable 
provision, requiring employers to determine existing conditions 
related to the safety of the work to be performed, including maximum 
switching transient voltages.

    The maximum per-unit transient overvoltages addressed by the 
existing standard are the industry-accepted values of 3.0 for voltages 
up to 362 kilovolts, 2.4 for 552 kilovolts, and 2.0 for 800 kilovolts. 
OSHA believes that, under the existing rule, most employers simply 
assume these maximum per-unit transient overvoltages and set minimum 
approach distances accordingly. As explained earlier, this final rule 
raises the highest maximum transient overvoltages to 3.5 for up to 420 
kilovolts, 3.0 for 550 kilovolts, and 2.5 for 800 kilovolts. OSHA 
believes that some systems will accommodate the larger minimum approach 
distances that will result from using these new, default values. Not 
all systems will accommodate such changes, however. (See, for example, 
Exs. 0573.1, 0575.1, 0577.1.) For phase-to-ground exposures, the 
minimum approach distance could be as much as 2.35 meters (7.67 feet) 
greater under the final rule than under Table R-6 in existing Sec.  
1910.269. The existing minimum approach distance is 4.53 meters (14.9 
feet) for phase-to-ground exposures on an 800-kilovolt system. The 
final rule sets 6.88 meters (22.57 feet) as the largest minimum 
approach distance for this voltage. (This increase is due to the use of 
minimum tool distances, as well as the higher default maximum per-unit 
transient overvoltage.) Consequently, OSHA believes that employers with 
installations that will not accommodate these larger minimum approach 
distances will either determine through engineering analysis or 
establish through the use of portable protective gaps \247\ precise 
maximum per-unit transient overvoltages on these installations so that 
the installations will accommodate the required minimum approach 
distances.
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    \247\ A portable protective gap is a device installed on a phase 
conductor to provide a known withstand voltage. The gap is designed 
to spark over at a low enough transient overvoltage to prevent 
sparkover at the (reduced) electrical component of the minimum 
approach distance at the work location (Ex. 0532).
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    For the systems that exhibit transient overvoltages that will not 
accommodate the resultant minimum approach distances, OSHA concludes 
that it is feasible for employers to either control the maximum 
transient overvoltages, through the implementation of such measures as 
portable protective gaps, circuit alterations, or operational controls 
(including blocking reclosing and restricting circuit switching), or 
deenergize the circuit to perform the work. (See, for example, Exs. 
0532, 0548.1; Tr2. 114-115.)

[[Page 20449]]

    The final economic analysis, in Section VI, Final Economic Analysis 
and Regulatory Flexibility Analysis, later in this preamble, assumes 
that electric utilities with circuits operating at 230 kilovolts or 
more (including all circuits in the 169.1- to 242.0-kilovolt voltage 
range \248\) will be affected by increases in minimum approach 
distances at those voltages. Therefore, the Agency estimates that 10 
percent of the circuits operating at 230 kilovolts or more will require 
additional measures, such as installing portable protective gaps, that 
permit employers to adopt minimum approach distances that their 
circuits can accommodate.\249\ However, OSHA is not including any costs 
for retrofitting or redesigning circuits or equipment for this purpose. 
The Agency believes that such measures will be rare and undertaken only 
when they are less costly than the alternatives or when necessitated 
for reasons unrelated to requirements in the final rule. OSHA did not 
include cost estimates for taking outages because the Agency concludes 
that only rarely will other, less costly, measures be impractical.
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    \248\ As seen from Table R-6 in existing Sec.  1910.269 and 
Table V-1 in existing Sec.  1926.950, existing electric power 
circuits operate at 161 to 169 kilovolts and at 230 to 242 
kilovolts. OSHA broadened the ranges in the corresponding tables in 
the final rule in the unlikely event that electric utilities design 
and install circuits operating at voltage between the listed voltage 
ranges.
    \249\ The final economic analysis estimates that 10 percent of 
the ``projects'' (as that term is used in Section VI, Final Economic 
Analysis and Regulatory Flexibility Analysis, later in this 
preamble) performed by employers with circuits operating at 230 
kilovolts or more will involve installing portable protective gaps 
based on the assumption that projects are distributed 
proportionately across affected and unaffected circuits. 
Consequently, if 10 percent of the circuits operating at voltages of 
230 kilovolts or more require ``additional measures, such as 
installing portable protective gaps,'' then 10 percent of the 
projects on those circuits will require such measures.
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    Several rulemaking participants maintained that adopting minimum 
approach distances greater than the distances in existing Sec.  
1910.269 would have a substantial effect on how employees perform 
energized line work and possibly on whether they could perform it at 
all. (See, for example, Exs. 0545.1, 0549.1, 0550.1, 0573.1, 0575.1; 
Tr2. 53-55, 96-98.) Some of these comments related to climbing 
structures, with the commenters claiming that employees would be 
precluded from climbing some structures if the final rule substantially 
increased minimum approach distances. (See, for example, Exs. 0549.1, 
0573.1; Tr2. 54-55, 166.) For instance, Consolidated Edison reported 
that larger minimum approach distances could prevent workers from 
climbing towers on several of its lines and noted that clearances vary 
from tower to tower (Ex. 0549.1). Consolidated Edison also maintained 
that larger minimum approach distances might prohibit it from 
positioning an employee on the tower with a live-line tool to perform 
tasks such as installing cotter keys or removing debris (id.). EEI 
argued that, if minimum approach distances exceeded the length of line 
insulators, employees would not be permitted to use existing live-line 
maintenance equipment without changing their work methods (Ex. 0545.1; 
Tr2. 114-115). EEI and Consolidated Edison, among others, maintained 
that larger minimum approach distances could increase the number of 
outages. (See, for example, Exs. 0545.1, 0549.1.)
    For each of the examples the commenters provided of situations in 
which higher minimum approach distances might be problematic, the 
worker would be at ground potential while located on a tower or other 
structure. Thus, these comments relate solely to phase-to-ground 
exposures. For these exposures, the final rule increases minimum 
approach distances substantially under two conditions: (1) When the 
maximum per-unit transient overvoltage exceeds the default maximums 
under the existing standards,\250\ or (2) when insulating tools or 
conductive objects are present in the air gap. In each case, the 
employer can implement measures, such as using a portable protective 
gap, to reduce the maximum per-unit transient overvoltage and, 
consequently, the minimum approach distance. (See Appendix B to final 
Subpart V for a discussion of the use of a portable protective gap to 
reduce the required minimum approach distance. Appendix B to existing 
Sec.  1910.269 recognizes this method of reducing the required minimum 
approach distance.) In addition, when the employer can demonstrate that 
there will be only air between the employee and the energized part, 
which should normally be the case during climbing or inspection 
procedures, Table V-2 permits the employer to determine minimum 
approach distances using the equation based on minimum air-insulation 
distances, which will produce smaller minimum approach distances than 
the equation based on minimum tool-insulation distance.
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    \250\ The maximum per-unit transient overvoltages under existing 
Sec.  1910.269 are 3.0 for voltages up to 362 kilovolts, 2.4 for 552 
kilovolts, and 2.0 for 800 kilovolts.
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    Some rulemaking participants maintained that revised minimum 
approach distances would result in costs related to the purchase of new 
tools, revision of training programs, and retraining of employees. 
(See, for example, Exs. 0545.1, 0548.1, 0550.1, 0551.1; Tr2. 94-95.) 
For instance, American Electric Power commented:

    The potential [cost impact] could be significant, especially 
when considering the proposed changes and resulting implications on 
the design standards. It is sufficient to state that changes in 
minimum approach distances, that exceed the length of standard line 
insulation, could require the re-tooling of live line maintenance 
equipment (placing some live line maintenance currently done on hold 
until new tooling is available); the development of new work methods 
and the training/re-education that could be required; and could 
impact current design standards (that are relatively common across 
the industry). In some cases, on [extra-high-voltage] lines, it is 
not possible to state that new tooling and procedures can be 
established until maintenance experts have had adequate time to 
fully evaluate the situation. [Ex. 0550.1]

    OSHA included the costs of training employees in the requirements 
of the standard, including the minimum approach-distance requirements, 
in the economic analysis conducted for the proposed rule. (See 70 FR 
34905-34910.) The proposal included revised minimum approach distances 
that were in some cases greater than the distances specified in 
existing Sec.  1910.269. OSHA's estimates for the proposed rule already 
accounted for the costs associated with training employees in the 
revised minimum approach distances, including any necessary changes in 
procedures. Therefore, the Agency concludes that it is not necessary to 
increase those cost estimates as a result of the changes made to the 
minimum approach-distance provisions between the proposed and final 
rules.\251\
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    \251\ OSHA addressed the cost of retrofitting or redesigning 
circuits or equipment earlier in this discussion. OSHA's conclusion 
regarding these costs apply equally to American Electric Power's 
comment regarding the need to purchase new live-line ma