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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A05-11585

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** June 15, 2005
- **Citation:** 70 FR 34822

## Text

DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Parts 1910 and 1926
[Docket No. S-215]
RIN 1218-AB67
Electric Power Generation, Transmission, and Distribution; Electrical Protective Equipment

AGENCY:

Occupational Safety and Health Administration (OSHA), Labor.

ACTION:

Proposed rule.

SUMMARY:

OSHA is proposing to update the existing standard for the construction of electric power transmission and distribution installations and make it consistent with the more recently promulgated general industry standard addressing the maintenance and repair of electric power generation, transmission, and distribution lines and equipment. The proposal also makes some miscellaneous changes to both standards, including adding provisions related to host employers and contractors, flame resistant clothing, and training, and updates the construction standard for electrical protective equipment, makes it consistent with the corresponding general industry standard, and makes it applicable to construction generally.

The existing rules for this type of work were issued in 1971. They are out of date and are not consistent with the more recent, corresponding rules for the operation and maintenance of electric power transmission and distribution systems. The revised standard would include requirements relating to enclosed spaces, working near energized parts, grounding for employee protection, work on underground and overhead installations, work in substations, and other special conditions and equipment unique to the transmission and distribution of electric energy.

OSHA is also proposing a new standard on electrical protective equipment for the construction industry. The current standards for the design of electrical protective equipment, which apply only to electric power transmission and distribution work, adopt several national consensus standards by reference. The new standard would replace the incorporation of these out-of-date consensus standards with a set of performance-oriented requirements that is consistent with the latest revisions of these consensus standards and with the corresponding standard for general industry. Additionally, OSHA is proposing new requirements for the safe use and care of electrical protective equipment to complement the equipment design provisions.

In addition, OSHA is proposing changes to the two corresponding general industry standards. These changes address: Class 00 rubber insulating gloves, electrical protective equipment made from materials other than rubber, training for electric power generation, transmission, and distribution workers, host-contractor responsibilities, job briefings, fall protection (including a requirement that employees in aerial lifts use harnesses), insulation and working position of employees working on or near live parts, protective clothing, minimum approach distances, deenergizing transmission and distribution lines and equipment, protective grounding, operating mechanical equipment near overhead power lines, and working in manholes and vaults. These changes would ensure that employers, where appropriate, face consistent requirements for work performed under the construction and general industry standards and would further protect employees performing electrical work covered under the general industry standards. The proposal would also update references to consensus standards in §§ 1910.137 and 1910.269 and would add new appendices to help employers comply with provisions on protective clothing and the inspection of work positioning equipment.

OSHA is also proposing to revise the general industry standard for foot protection. This standard has substantial application to employers performing work on electric power transmission and distribution installations, but that applies to employers in other industries as well. The proposal would remove the requirement for employees to wear protective footwear as protection against electric shock.

DATES:

Informal public hearing.
OSHA will hold an informal public hearing in Washington, DC, beginning December 6, 2005. The hearing will commence at 10 a.m. on the first day, and at 9 a.m. on the second and subsequent days, which will be scheduled, if necessary.

Comments.
Comments must be submitted (postmarked or sent) by October 13, 2005.

Notices of intention to appear.
Parties who intend to present testimony at the informal public hearing must notify OSHA in writing of their intention to do so no later than August 15, 2005.

Hearing testimony and documentary evidence.
Parties who request more than 10 minutes for their presentations at the informal public hearing and parties who will submit documentary evidence at the hearing must submit the full text of their testimony and all documentary evidence postmarked no later than November 3, 2005.

ADDRESSES:

You may submit written comments, notices of intention to appear, hearing testimony, and documentary evidence—identified by docket number (S-215) or RIN number (1218-AB67)—by any of the following methods:

• Federal eRulemaking Portal:
http://www.regulations.gov.
Follow the instructions for submitting comments.

• OSHA Web site:
http://dockets.osha.gov/.
Follow the instructions for submitting comments on OSHA's Web page.

• Fax: If your written comments are 10 pages or fewer, you may fax them to the OSHA Docket Office at (202) 693-1648.

• Regular mail, express delivery, hand delivery and courier service: Submit three copies to the OSHA Docket Office, Docket No. S-215, 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.S.T.

Instructions:
All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking. All comments received will be posted without change to
http://dockets.osha.gov/
, including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Participation” heading of the
SUPPLEMENTARY INFORMATION
section of this document.

Docket:
For access to the docket to read comments and background documents that can be posted go to
http://dockets.osha.gov/.
Written comments received, notices of intention to appear, and all other material related to the development of this proposed standard will be available for inspection and copying in the public record in the Docket Office, Room N2439, at the address listed previously.

Hearing.
The hearing will be held in the auditorium of the U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT:

General information and press inquiries:

Mr. Kevin Ropp, Director, 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, Director, Office of Engineering Safety, Room N3609, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-2277 or fax (202) 693-1663.

Hearings:
Ms. Veneta Chatmon, OSHA Office of Communications, Occupational Safety and Health Administration, Room N3647; 200 Constitution Avenue, NW., Washington, DC 20210, telephone: (202) 693-1999.

For additional copies of this
Federal Register
notice, 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
notice, as well as news releases and other relevant documents, are available at OSHA's Web page on the Internet at
http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. Development of Proposal

III. Legal Authority

IV. Summary and Explanation of Proposed Rule

V. Preliminary Regulatory Impact Analysis and Initial Regulatory Flexibility Analysis

VI. State Plan Standards

VII. Environmental Impact Analysis

VIII. Unfunded Mandates

IX. Federalism

X. OMB Review under the Paperwork Reduction Act of 1995

XI. Public Participation'Comments and Hearings

XII. List of Subjects in 29 CFR Parts 1910 and 1926

XIII. Authority and Signature

I. Background

A. Acronyms

The following acronyms have been used throughout this document:

AED Automated external defibrillator

ALJ Administrative law judge

ANSI American National Standards Institute

ASTM American Society for Testing and Materials

BLS Bureau of Labor Statistics

CFOI Census of Fatal Occupational Injuries

CPR Cardiopulmonary resuscitation

EEI Edison Electric Institute

EPRI Electric Power Research Institute

FRA Flame-resistant apparel

FTE Full-Time Equivalent [Employee]

IBEW International Brotherhood of Electrical Workers

IEEE Institute of Electrical and Electronic Engineers

IMIS OSHA's Integrated Management Information System

IRFA Initial Regulatory Flexibility Analysis

NAICS North American Industry Classification System

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

OIRA Office of Information and Regulatory Affairs

OMB Office of Management and Budget

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

OSHA Occupational Safety and Health Administration

OSHRC Occupational Safety and Health Review Commission

PRIA Preliminary Regulatory Impact Analysis

RIN Regulatory information number

SBA Small Business Administration

SBAR Small Business Advocacy Review Panel

SBREFA Small Business Regulatory Enforcement Fairness Act

SER small entity representative

SIC Standard Industrial Classification

WCRI Worker Compensation Research Institute

B. Need for Rule

Employees maintaining or constructing electric power transmission or distribution installations are not adequately protected by current OSHA standards, though these employees face far greater electrical hazards than those faced by other workers. The voltages involved are generally much higher than voltages encountered in other types of work, and a large part of electric power transmission and distribution work exposes employees to energized parts of the power system.

Employees performing work involving electric power generation, transmission, and distribution are exposed to a variety of significant hazards, such as fall, electric shock, and burn hazards, that can and do cause serious injury and death. As detailed below, OSHA estimates that, on average, 444 serious injuries and 74 fatalities occur annually among these workers.

Although some of these incidents may have been prevented with better compliance with existing safety standards, research and analyses conducted by OSHA have found that many preventable injuries and fatalities would continue to occur even if full compliance with the existing standards were achieved. Without counting incidents that would potentially have been prevented with compliance with existing standards, an estimated additional 116 injuries and 19 fatalities would be prevented through full compliance with the proposed standards.

Additional benefits associated with this rulemaking involve providing updated, clear, and consistent safety standards regarding electric power generation, transmission, and distribution work. The existing standard for the construction of electric power transmission and distribution lines and equipment is contained in Subpart V of OSHA's construction standards (29 CFR part 1926). This standard was promulgated on November 23, 1972, over 30 years ago (37 FR 24880). Some of the technology involved in electric power transmission and distribution work has changed since then, and the current standard does not reflect those changes. For example, the method of determining minimum approach distances has become more exact since 1972, and the minimum approach distances given in existing § 1926.950(c)(1) are not based on the latest methodology. The minimum approach distances in this proposal are more protective as well as more technologically sound. Additionally, parts of Subpart V need clarification. For example, in existing Subpart V, there are three different requirements relating to the use of mechanical equipment near overhead lines: §§ 1926.952(c)(2)
1

and 1926.955(a)(5)
2

and (a)(6).
3

These provisions apply

different requirements to these operations depending on whether or not the mechanical equipment involved is lifting equipment and on whether or not work is being performed on overhead lines. Two different United States Courts of Appeals found these regulations to be confusing even though they accepted OSHA's interpretation regarding their application (
Wisconsin Electric Power Co.
v.
OSHRC,
567 F.2d 735 (7th Cir. 1977);
Pennsylvania Power & Light Co.
v.
OSHRC,
737 F.2d 350 (3d Cir. 1984)). In fact, the majority in the Wisconsin Electric decision noted that “[r]evision of the regulations by any competent draftsman would greatly improve their clarity” (
Wisconsin Electric,
567 F.2d at 738).

1
This requirement reads as follows:

(2) With the exception of equipment certified for work on the proper voltage, mechanical equipment shall not be operator closer to any energized line or equipment than the clearances set forth in § 1926.950(c) unless:

(i) An insulated barrier is installed between the energized part and the mechanical equipment, or

(ii) The mechanical equipment is grounded, or

(iii) The mechanical equipment is insulated, or

(iv) The mechanical equipment is considered as energized.

2
This requirement reads as follows:

(5)(i) When setting, moving, or removing poles using cranes, derricks, gin poles, A-frames, or other mechanized equipment near energized lines or equipment, precautions shall be taken to avoid contact with energized lines or equipment, except in bare-hand live-line work, or where barriers or protective devices are used.

(ii) Equipment and machinery operating adjacent to energized lines or equipment shall comply with § 1926.952(c)(2).

3
This requirement reads as follows:

(6)(i) Unless using suitable protective equipment for the voltage involved, employees standing on the

ground shall avoid contacting equipment or machinery working adjacent to energized lines or equipment.

(ii) Lifting equipment shall be bonded to an effective ground or it shall be considered energized and barricaded when utilized near energized equipment or lines.

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 completely consistent with the latest advances in technology represented by updated consensus standards covering this type of work and equipment.

OSHA has different standards covering construction work on electric power transmission and distribution systems and general industry work on the same systems. In most instances, the work practices used by employees to perform construction or general industry work on these systems are the same. The application of OSHA's construction or general industry standards to a particular job depends upon whether the employer is altering the system (construction work) or maintaining the system (general industry work). For example, employers changing a cutout (disconnect switch) on a transmission and distribution system would be performing construction work if they were upgrading the cutout, but general industry work if they were simply replacing the cutout with the same model.

Since the work practices used by the employees would most likely be identical, the applicable OSHA standards should be identical. OSHA's existing requirements are not, however. Conceivably, for work involving two or more cutouts, different and conflicting OSHA standards might apply. The inconsistencies between the two standards create difficulties for employers attempting to develop appropriate work practices for their employees. For this reason, employers and employees have told OSHA that it should make the two standards identical. This proposal does so.

C. Accident Data

OSHA has looked to several sources for information on accidents in the electric utility industry in preparing this proposed rule. Besides OSHA's own accident investigation files, 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 such accident data as incidence rates for total cases, lost workday cases, and lost workdays. The National Institute for Occupational Safety and Health (NIOSH) publishes accident data as part of its Fatality Assessment and Control Evaluation Program.

Analyses of accident data for electric power transmission and distribution workers can be found in the following documents, which (like all exhibits) are available for inspection and copying in Docket S-215 in the Docket Office:

(1) “Preparation of an Economic Impact Study for the Proposed OSHA Regulation Covering Electric Power Generation, Transmission, and Distribution,” June 1986, Eastern Research Group, Section 4.

(2) “Assessment of the Benefits of the Proposed Standard on Electric Power Generation, Transmission, and Distribution Coding Results and Analysis,” October 5, 1990, Eastern Research Group.

(3) “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., Chapter 4.

To develop estimates of the potential benefits associated with this proposal, 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 included OSHA's Integrated Management Information System, and the Census of Fatal Occupational Injuries developed by the BLS.

From these sources, CONSAD identified and analyzed injuries and fatalities that would be addressed by this proposal. A description of the methodological approach used for analyzing these data is included in the final report submitted to OSHA from CONSAD. CONSAD's analysis found that an average of 74 fatalities and 25 injuries involving circumstances directly addressed by the existing or proposed standards are recorded annually in the relevant databases. These accidents include cases involving electric shock, burns from electric arcs, and falls, which are the predominant types of accidents occurring in electric power generation, transmission, and distribution work.

D. Significant Risk

OSHA must show that the hazards the Agency addresses in a safety regulation present significant risks to employees. OSHA has generally considered an excess risk of 1 death per 1000 employees over a 45-year working lifetime as clearly representing a significant risk.
Industrial Union Dept.
v.
American Petroleum Institute (Benzene),
448 U.S. 607, 655 (1980);
International Union
v.
Pendergrass (Formaldehyde),
878 F.2d 389, 392-93 (D.C. Cir. 1989);
Building and Construction Trades Dept., AFL-CIO
v.
Brock (Asbestos),
838 F.2d 1258, 1264-65 (D.C. Cir. 1988). As part of the regulatory analyses for this standard, OSHA has determined the population at risk, the occupations presenting major risks, and the incidence and severity of injuries attributable to the failure to follow the rules established in the proposed standard. In keeping with the purpose of safety standards to prevent accidental injury and death, OSHA has estimated the number of accidents that would be prevented by the new rule.

Electricity has long been recognized as a serious workplace hazard exposing employees to dangers such as electric shock, electrocution, electric arcs, fires, and explosions. The other hazards this rule addresses, namely, falls and being struck by, struck against, or caught between objects, are also widely recognized. The 227,683 employees performing work covered by the proposed standards experience an average of 444 injuries and 74 fatalities each year.
4

Over a 45-year working lifetime, more than 14 of every 1000 of these employees
5

will die from hazards

posed by their work. As detailed in Section V, Preliminary Regulatory Impact Analysis and Initial Regulatory Flexibility Analysis, later in this preamble, the Agency estimates that the proposed rule will prevent 116 injuries and 19 deaths each year. Accordingly, OSHA has preliminarily determined that hazards faced by employees performing construction or maintenance work on electric power generation, transmission, and distribution installations pose a significant risk of injury or death to those employees, and that this proposed rule would substantially reduce that risk and would be reasonably necessary to provide protection from these hazards.

4
For a detailed explanation of the number of employees covered by the proposal and the number of injuries and fatalities experienced by these workers, see Section V, Preliminary Regulatory Impact Analysis and Initial Regulatory Flexibility Analysis, later in this preamble.

5
The number of fatalities expected to occur in 45 years is 74 fatalities × 45, or 3330. Thus, 14.6 employees in 1000 covered by the proposal ((3330 fatalities/227,683 employees) × 1000) will die from job-related hazards.

II. Development of Proposal

A. Present OSHA Standards

OSHA adopted standards applying to the construction of power transmission and distribution lines and equipment in 1972 (Subpart V of Part 1926). OSHA defines the term “construction work” in § 1910.12 as “work for construction, alteration, and/or repair, including painting and decorating.” The term “construction” is broadly defined in § 1910.12(d) and § 1926.950(a)(1) to include alteration, conversion, and improvement of electric power transmission lines and equipment, as well as the original installation of the lines and equipment. However, Subpart V does not apply to the operation or maintenance of transmission or distribution installations.

On January 31, 1994, OSHA adopted rules for the operation and maintenance of electric power generation, transmission, and distribution lines and equipment, § 1910.269. This standard was intended as a companion standard to Subpart V of the construction standards to address areas where Subpart V did not apply. The new standard was also based on the latest technology and national consensus standards.

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

Other OSHA standards also relate to electric power generation, transmission, and distribution work. The permit-required confined space standard in § 1910.146 applies to entry into certain confined spaces found in this type of work. Section 1910.147 is OSHA's generic lockout and tagging standard. Although this standard does not apply to electric power generation, transmission, or distribution installations, it formed the basis of § 1910.269(d), which does apply to the lockout and tagging of these installations. Subpart S of the General Industry Standards and Subpart K of the construction standards set requirements for unqualified
6

workers who are working near electric power generation, transmission, and distribution lines and equipment.

6
In this preamble, “unqualified worker” (or “unqualified employee”) means an employee who does not have the requisite training to work on or near electric power generation, transmission, or distribution installations. For more information, see the discussion of proposed § 1926.950(b) in Section IV, Summary and Explanation of Proposed Rule, later in this preamble.

B. Relevant consensus standards

The National Electrical Safety Code (American National Standards Institute Standard ANSI C2, also known as the NESC) was also taken into consideration in the development this proposal. This national consensus standard contains requirements specifically addressing electric power generation, transmission, and distribution work. The latest version of ANSI C2
7

is much more up-to-date than Subpart V. However, ANSI C2 is primarily directed to the prevention of electric shock, although it does contain a few requirements for the prevention of falls.

7
ANSI/IEEE C2-2002.

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-2004, Electrical Safety Requirements for Employee Workplaces. Although it does not apply to electric power generation, transmission, or distribution installations, this standard contains requirements for unqualified employees working near such installations.

The Institute of Electrical and Electronic Engineers (IEEE) is also responsible for writing 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.

A list of consensus standards relating to electric power generation, transmission, and distribution work can be found in existing Appendix E to § 1910.269. OSHA considered the latest editions of all the standards listed in this section of the preamble or the Appendix in the development of the proposal.

C. Advisory Committee on Construction Safety and Health

Section 107 of the Contract Work Hours and Safety Standards Act and the Agency's own rulemaking regulations in 29 CFR Part 1911 require OSHA to consult with the Advisory Committee on Construction Safety and Health (ACCSH or the Committee) in setting standards for construction work. Specifically, § 1911.10(a) requires the Assistant Secretary to (1) provide ACCSH with the draft proposed rule along with pertinent factual information, (2) and to prescribe a period within which the Committee must submit its recommendations on the proposal.

OSHA has a 10-year history of consulting with ACCSH on the proposed construction standards for electrical protective equipment and electric transmission and distribution work. The Agency has provided several drafts of the proposed construction rules and updates on the status of the proposal.

On May 25, 1995, OSHA first 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 for and background behind the proposal. The Committee formed a workgroup to review the document and report back to ACCSH. The workgroup provided comments to OSHA. Although the Agency gave a status report on the proposal to the Committee on August 8, 1995, ACCSH did not make any formal recommendations to OSHA at that time.

The Agency provided a later draft of the proposal to ACCSH on December 10, 1999. This time, the Committee made no comments. On February 13, 2003, OSHA gave ACCSH a status report on the proposal and summarized the major revisions in the draft.

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 formal recommendations on OSHA's 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) requiring some safety-related communications between host employers and contractors was necessary; and (3) employees need to be protected from hazards posed by electric arcs through the use of flame-resistant clothing. ACCSH also recommended unanimously that OSHA issue its proposal, consistent with these specific votes.

III. Legal Authority

The purpose of the Occupational Safety and Health Act of 1970 (OSH Act or the 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. 655(b) and 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 standard is reasonably necessary or appropriate within the meaning of Section 652(8) if:

• A significant risk of material harm exists in the workplace and the proposed standard would substantially reduce or eliminate that workplace risk;

• It is technologically and economically feasible;

• It employs the most cost effective protective measures;

• It is consistent with prior Agency action or supported by a reasoned justification for departing from prior Agency action;

• It is supported by substantial evidence; and

• In the event the standard is preceded by a consensus standard, it is better able to effectuate the purposes of the OSH Act than the standard it supersedes.

International Union, UAW
v.
OSHA (LOTO II),
37 F.3d 665, 668 (D.C. Cir. 1994).

OSHA has generally considered an excess risk of 1 death per 1000 employees over a 45-year working lifetime as clearly representing a significant risk
(see Industrial Union Dept.
v.
American Petroleum Institute (Benzene),
448 U.S. 607, 655 (1980); International Union v. Pendergrass (Formaldehyde), 878 F.2d 389, 392-93 (D.C. Cir. 1989);
Building and Construction Trades Dept., AFL-CIO
v.
Brock (Asbestos),
838 F.2d 1258, 1264-65 (D.C. Cir. 1988)).

A standard is considered 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 American Iron and Steel Institute
v.
OSHA (Lead II),
939 F.2d 975, 980 (D.C. Cir. 1991)). A standard is economically feasible when industry can absorb or pass on the costs of compliance without threatening the industry's long-term profitability or competitive structure
(see American Textile Mfrs. Institute
v.
OSHA (Cotton Dust),
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 LOTO II,
37 F.3d at 668).

All OSHA standards must be highly protective (
LOTO II,
37 F.3d at 669) and, where practical, “expressed in terms of objective criteria and of the performance desired.” 29 U.S.C. 655(b)(5). 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 purpose of the Act. 29 U.S.C. 655(b)(8). As discussed elsewhere in this preamble, OSHA is using several consensus standards as the basis for its proposed rule. The deviations from these consensus standards are explained in Section IV, Summary and Explanation of Proposed Rule, later in this preamble.

IV. Summary and Explanation of Proposed Rule

This section discusses the important elements of the proposed standard, explains the purpose of the individual requirements, and explains any differences between the proposed rule and existing standards. References in parentheses are to exhibits in the rulemaking record. References prefixed by “269” are to exhibits and transcripts in the rulemaking record from OSHA's earlier rulemaking on § 1910.137 and § 1910.269. These documents are available for inspection and copying in the Docket Office under Docket S-015. (The transcripts are listed in the docket as “exhibits” 100-X through 208-X.)

OSHA is proposing a new construction standard on electrical protective equipment, 29 CFR 1926.97, and a revision of the standard on the construction of electric power transmission and distribution lines and equipment, 29 CFR Part 1926, Subpart V. The Agency is also proposing changes to the general industry counterparts to these two construction standards, 29 CFR 1910.137 and 1910.269, respectively. The proposed construction standards may contain some nonsubstantive differences from their existing counterpart general industry requirements that are not separately included in the proposed revision of the general industry standards. However, the Agency intends for the corresponding construction and general industry requirements to be the same in the final rule except to the extent that separate requirements are supported by the rulemaking record. For example, the definition of “designated employee” in existing § 1910.269(x) reads as follows:

An employee (or person) who is designated by the employer to perform specific duties under the terms of this section and who is knowledgeable in the construction and operation of the equipment and the hazards involved.

OSHA is proposing a slightly revised version of this definition in § 1926.968, as follows:

An employee (or person) who is assigned by the employer to perform specific duties under the terms of this section and who has sufficient knowledge of the construction and operation of the equipment and the hazards involved to perform his or her duties safely.

The Agency does not believe that the proposed definition for Subpart V is substantially different from the existing definition in § 1910.269(x). Therefore, OSHA is not specifically including the proposed change to the definition of “designated employee” in the proposed changes to § 1910.269. The language in the final standards (that is, §§ 1910.269(x) and 1926.968) will be the same, however, unless the record warrants a separate definition for construction work.

In addition, the proposal references national consensus standards in notes following various requirements. These references are intended to provide employers and employees with additional useful sources of information that can assist them in complying with the standards. OSHA intends to review the latest editions of these consensus standards and reference those editions when promulgating the final rule provided they still provide suitable guidance.

A. Electrical Protective Equipment, Section 1926.97

Electrical protective equipment is in constant use during electric power transmission and distribution work; and, appropriately, existing Subpart V contains provisions related to this equipment. The existing OSHA standards for electrical protective equipment in construction work are contained in § 1926.951(a)(1), which only applies during construction of electric power transmission and distribution lines and equipment. Electrical protective equipment, however, is used throughout the construction industry. OSHA therefore believes that updated personal protective equipment provisions should apply throughout the construction industry, wherever such equipment is necessary for employee safety, and that electrical protective equipment provisions should not be limited to the use of this equipment in electric power transmission and distribution work. Therefore, OSHA is proposing new § 1926.97, Electrical protective equipment, to replace § 1926.951(a)(1), which incorporates by reference the following six American National Standards Institute (ANSI) standards:

Item

ANSI
Standard

Rubber insulating gloves
J6.6-1971

Rubber matting for use around electric apparatus

J6.7-1935
(R1971)

Rubber insulating blankets
J6.4-1971

Rubber insulating hoods

J6.2-1950
(R1971)

Rubber insulating line hose

J6.1-1950
(R1971)

Rubber insulating sleeves
J6.5-1971

These ANSI standards were originally developed and adopted as American Society for Testing and Materials (ASTM) standards. (In fact, the latest revisions of these standards use the ASTM designations, rather than using separate designations for both standards-writing organizations.) As is typical of national consensus standards, the ASTM standards are filled with detailed specifications for the manufacture, testing, and design of electrical protective equipment. Additionally, these standards are revised frequently, making existing § 1926.951(a)(1) over a quarter century out of date. For example, the most recent ANSI standard listed in the former OSHA requirement is dated 1971. The most recent ASTM version available is a 2002 edition of specifications on rubber insulating gloves. The complete list of current ASTM standards corresponding to the ANSI standards is as follows:

ASTM D120-02a, Specification for Rubber Insulating Gloves.

ASTM D178-01
e1
, Specification for Rubber Insulating Matting.

ASTM D1048-99, Specification for Rubber Insulating Blankets.

ASTM D1049-98
e1
(Reapproved 2002), Specification for Rubber Insulating Covers.

ASTM D1050-90 (Reapproved 1999), Specification for Rubber Insulating Line Hose.

ASTM D1051-02, Specification for Rubber Insulating Sleeves.

Additionally, ASTM has adopted standards on the in-service care of insulating line hose and covers (ASTM F478-92 (Reapproved 1999)), insulating blankets (ASTM F479-95 (Reapproved 2001)), and insulating gloves and sleeves (ASTM F496-02a), which have no current counterparts in existing § 1926.951(a)(1).

In an attempt to retain the quality of protection afforded by the ASTM standards, OSHA has developed proposed new § 1926.97 which has been derived from the ASTM documents but which has been written in performance terms. OSHA recognizes the importance of the ASTM standards in defining basic requirements for the safe design and manufacture of electrical protective equipment for employees. Proposed § 1926.97 would increase the protection presently afforded to power transmission and distribution employees by the outdated ANSI/ASTM standards incorporated by reference in the existing standard. The proposal carries forward ASTM provisions that are performance oriented and necessary for employee safety, but does not contain many of the detailed specifications in those consensus standards. The proposal will thus provide greater flexibility for compliance with these provisions to the extent that worker safety warrants.

There are several reasons why adopting the ASTM standards in toto would be inappropriate in this rulemaking. First, ASTM has revised each of the currently referenced standards several times since they were adopted in the former OSHA regulation. Because of the continual process by which ASTM periodically revises its standards, any specific editions that OSHA might adopt would likely be outdated within a few years. Additionally, since the rulemaking process is lengthy, a complete revision of OSHA's electrical protective equipment requirements every three years or so to keep pace with the changes in the consensus standards is not practical. (In fact, some of the ASTM standards will likely be revised again during the rulemaking period.) To remedy this problem, OSHA is proposing new § 1926.97 to make the standards flexible enough to accommodate changes in technology, obviating the need for constant revision. Where possible, the proposed standard has been written in performance terms in order to allow alternative methods of compliance if they provide comparable safety to the employee.

Another difficulty with incorporation of the ASTM standards by reference is that they contain details that go beyond the purposes of the OSHA standard or that are not directly related to employee safety. In proposed § 1926.97, OSHA has tried to carry forward only provisions that are relevant to employee safety in the workplace. Furthermore, OSHA has attempted to simplify those provisions to make the requirements easier for employers and employees to use and understand. Because the revision places all relevant requirements in the text of the regulations, employers would no longer have to refer to the ASTM documents to determine their obligations under OSHA.

In striving for this degree of simplification, the Agency has tried to use an approach that will accept new methods of protection that may appear in future editions of the ASTM standards. OSHA recognizes that such future editions of these standards might contain technological advances providing significant improvement in employee safety, which might not be permitted under proposed § 1926.97. However, due to the performance-oriented nature of the OSHA standard as compared to the ASTM standards, conflicts between the two standards in areas affecting employee safety are expected to be infrequent.

Furthermore, an employer who follows future versions of ASTM standards would likely be covered by OSHA's
de minimis
policy as set forth in OSHA Instruction CPL 02-00-103 (Field Inspection Reference Manual). Under that policy, a
de minimis

condition
8

exists: (1) Where an employer's workplace has been updated in accordance with new technology or equipment as a result of revisions to the latest consensus publications from which OSHA standards were derived, (2) where the updated versions result in a “state of the art” workplace, technically advanced beyond the requirements of the applicable OSHA standard, and (3) where equal or greater safety and health protection is provided.

8
OSHA considers a
de minimis
condition to be a technical violation of a standard only. However, because the employer is considered to be in substantial compliance with the standard, the Agency issues no citations or penalties, nor is the employer required to bring his or her workplace into compliance with the older standard.

Paragraph (a).
Paragraph (a) of § 1926.97 addresses the design and manufacture of insulating blankets, matting, covers, line hose, gloves, and sleeves made of rubber (either natural or synthetic). See the summary and explanation of proposed § 1926.97(b) for general requirements on other types of insulating equipment.

Under proposed paragraph (a)(1)(i), blankets, gloves, and sleeves would have 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, blankets, gloves, and sleeves need to be seamless because the stresses placed on the equipment by the flexing of the rubber during normal use could cause a seam to separate. The other three types of electrical protective equipment (covers, line hose, and matting) generally provide a more indirect form of protection—they insulate the live parts from accidental, rather than intended, contact—and they are not usually subject to similar amounts or types of flexing.

Proposed paragraph (a)(1)(ii) would require 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; the type marking indicates whether or not the equipment is ozone resistant. This will enable employees to know the uses and voltages for which the equipment is suited. Proposed paragraph (a)(1)(ii) would also permit equipment to contain other relevant markings, such as one indicating the manufacturer's name or compliance with ASTM standards.

Paragraph (a)(1)(iii) would require all markings to be nonconductive and to be applied so that the properties of the equipment are not impaired. This would ensure that no marking interferes with the protection to be provided by the equipment.

Paragraph (a)(1)(iv) would require markings on gloves to be provided only in the cuff area. Markings in other areas could possibly wear off. Moreover, having the markings in one place will allow the employee to determine the class and type of glove quickly. Furthermore, OSHA would require in paragraph (c)(2)(vii) 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.

Under the national consensus standards, electrical protective equipment must be capable of passing certain electrical tests. In proposed § 1926.97(a)(2), OSHA incorporates these requirements. The tests specified in the ASTM standards are very detailed. This is not the case in the OSHA standard. Through the use of performance language, the proposed rule would establish the same level of protection without a lengthy discussion of test procedures.

Paragraph (a)(2)(i) would require electrical protective equipment to be capable of withstanding the a-c proof-test voltages in Table E-1 or the d-c proof-test voltages in Table E-2 of the standard (depending, of course, on whether an a-c proof test or an equivalent d-c proof test is performed). The proof-test voltages listed in these tables have been taken from the current ASTM standards, which also contain details of the test procedures used to determine whether electrical protective equipment is capable of withstanding these voltages. These details have not been included in the proposed rule. Paragraph (a)(2)(i)(A) replaces them with a performance-oriented requirement that whatever test is used must reliably indicate that the equipment can withstand the proof-test voltage involved. To meet the requirements of the OSHA performance standard, employers would normally get the assurance of the manufacturer that the equipment is capable of withstanding the appropriate proof-test voltage.
9

Manufacturers typically look to the ASTM standards for guidance in determining the testing procedure.

9
As explained in the note at the end of paragraph (a), OSHA deems equipment meeting the ASTM standards as being compliant with the OSHA standard. Thus, an employer could simply look for equipment labeled as meeting these standards. Manufacturers attest, through this label, that their equipment is capable of passing all the required tests, including the a-c or d-c proof tests.

Proposed paragraph (a)(2)(i)(B) would require the proof-test voltage to be applied for 1 minute for insulating matting and for 3 minutes for other insulating equipment. These times are based on the proof-test times given in the ASTM design standards and are appropriate for testing the design capabilities of electrical protective equipment.

Proposed paragraph (a)(2)(i)(C) would require rubber insulating gloves to be capable of withstanding the a-c 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. Water absorption is thus a critical property because exposure to perspiration or rain is quite common while line worker's gloves are in use. Electrical work is sometimes performed in the rain, and an employee's perspiration is often present while the gloves are in use. The soak test is needed to ensure that electrical protective equipment can withstand the voltage involved under these conditions.

When an a-c 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. Paragraph (a)(2)(ii) prohibits the a-c proof-test current from exceeding the current allowed in Table E-1. The currents listed in the table have been taken from ASTM D120-02a.

Under paragraph (a)(2)(ii)(A), the maximum current for a-c voltages at frequencies other than 60 hertz would be computed from the direct ratio of the frequencies.

Gloves are filled with and immersed in water during the a-c proof test, and the water inside and outside the glove forms the electrodes. The a-c proof-test current is dependent on the length of the portion of the glove that is out of water. Because the proof-test current is a function of immersion depth, it is important to specify the depth in the rule. Otherwise, employee safety could be compromised. Therefore, paragraph (a)(2)(ii)(B) in the proposed standard specifies that gloves to be tested must be filled with and immersed in water to the depth given in Table E-3 in the standard. This table was taken directly

from ASTM D120 and is valid for the proof-test currents listed in Table E-1.

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. ASTM D120 allows an increase in the proof-test current of 2 milliamperes. If the proof-test current increases more than that, it would indicate that the gloves absorbed too much water. OSHA has proposed to allow a similar increase in proof-test current in paragraph (a)(2)(ii)(C).

Since the relatively high voltages used in testing electrical protective equipment for minimum breakdown voltage can actually damage the insulating material under test (even if it passes), proposed paragraph (a)(2)(iii) would prohibit protective equipment that has been subjected to such a test from being used to protect employees from electrical hazards. The intent of the proposal is to prohibit the use of equipment that has been tested under conditions equivalent to those in the ASTM standards for minimum breakdown voltage tests.

A note at the end of proposed § 1926.97(a) indicates that all the tests given in the paragraph are described in the listed ASTM standards, as follows:

These [ASTM] standards contain specifications for conducting the various tests required in paragraph (a) of this section. For example, the a-c and d-c proof tests, the breakdown test, the water soak procedure, and the ozone test mentioned in this paragraph are described in detail in the ASTM standards.

This does not mean that OSHA is adopting the ASTM standards by reference. In enforcing proposed § 1926.97, the Agency would accept any test that meets the requirements of the OSHA standard. However, the proposal states explicitly that the ASTM tests listed in the note are acceptable; and, if the ASTM specifications are met, an employer has assurance that he or she is complying with proposed § 1926.97. If an employer uses other test methods, the Agency would determine, on a case-by-case basis, whether or not they meet the OSHA standard.

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 which 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. To ensure that ozone-resistant material will, in fact, be resistant to the damaging effects of the gas, paragraph (a)(2)(iv) requires this type of 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. As noted earlier, standardized ozone tests are given in the ASTM specifications. The proposed rule also lists signs of failure of the test, such as checking,
10

cracking, breaks, and pitting.

10
ASTM F819-00
e1
, Standard Terminology Relating to Electrical Protective Equipment for Workers, defines “ozone cutting and checking” as: “cracks produced by ozone in a material under mechanical stress.”

Paragraph (a)(3) applies to the workmanship and finish of electrical protective equipment. Because physical irregularities can interfere with the insulating properties of the equipment, paragraph (a)(3)(i) prohibits the presence of harmful defects that can be detected by the tests or inspections required under § 1926.97. However, some minor irregularities are nearly unavoidable in the manufacture of rubber goods, and these imperfections may be present in the insulating materials without significantly affecting the insulation. Paragraph (a)(3)(ii) lists the types of imperfections that are permitted. Even with these imperfections, electrical protective equipment is still required to be capable of passing the electrical tests specified in paragraph (a)(2).

Since paragraph (a) of § 1926.97 is written in performance-oriented language, OSHA believes that it is important for employees, employers, and manufacturers to have some guidance in terms of what is acceptable under the proposed standard. OSHA also realizes that the current ASTM specifications on electrical protective equipment are accepted by employers and employees in the industry as providing safety to employees and that existing electrical protective equipment is normally made to these specifications. Furthermore, the proposal is based on the provisions of these national consensus standards, although the requirements are stated in performance terms. OSHA has therefore included a footnote at the end of paragraph (a) stating that rubber insulating equipment meeting the requirements of the listed ASTM standards for this equipment are considered as conforming to the requirements contained in § 1926.97(a). The lists of ASTM standards in the proposed rule (in the notes following paragraphs (a)(3)(ii)(B) and (c)(2)(ix)) contain the latest revisions of these standards. The Agency has reviewed these documents and has found them to provide suitable guidance for compliance with § 1926.97(a).
11

It should be noted that the listed consensus standards are the only ones with official recognition within the body of the standard. Future consensus standards are not automatically given the same recognition but will have to be reviewed by OSHA to determine whether they provide sufficient protection.

11
OSHA has also reviewed earlier versions of these ASTM standards and found them to afford protection equal to that of the OSHA standard. Thus, the Agency will accept electrical protective equipment meeting earlier versions of the consensus standards provided the equipment meets the edition of the standard that was in effect at the time of manufacture and provided the employer has followed the use and care provisions set out in proposed § 1926.97(c).

Paragraph (b).
Paragraph (b) of the proposed § 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. Some of the equipment addressed in paragraph (b) is covered under a national consensus standard. For example, insulating plastic guard equipment is covered by ASTM F968, Specification for Electrically Insulating Plastic Guard Equipment for Protection of Workers. Other types of protective equipment are not covered by consensus specification.

Paragraph (b)(1) would require electrical protective equipment to be capable of withstanding any voltage that might be imposed on it. The voltage 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. This paragraph would protect employees from failure of electrical protective equipment. 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. For types of equipment not addressed by any consensus standard, OSHA is considering accepting electrical protective equipment that is capable of passing a test equivalent to that described in ASTM F712, Standard Test Methods for Electrically Insulating Plastic Guard Equipment for Protection

of Workers. Guidance for performing dielectric tests of electrical protective equipment is also given in IEEE Std. 516, IEEE Guide for Maintenance Methods on Energized Power-Lines. OSHA invites comments on whether these standards contain suitable test methods and whether equipment passing those tests should be acceptable under the OSHA standard.

The electrical test criteria set in ASTM F968 are summarized in Table IV-1 and Table IV-2. The Agency believes that the performance criteria proposed in paragraph (b)(1) minimize the necessity of setting or specifically including similar criteria in the OSHA standard. However, comments are invited on the need to set specific electrical performance values in the OSHA rule and on whether Table IV-1 and Table IV-2 could be applied to all types of electrical protective equipment that would be covered by proposed § 1926.97(b).

Table IV-1.—Withstand Voltage Proof Test

Class

Rating
kV φ-φ

Maximum use
kV φ-g
(60 Hz)

Proof test withstand voltage (in service testing)
kV φ-g
60 Hz
D-C

Duration
min.

Criteria

2
3
4

14.6
26.4
36.6

8.4
15.3
21.1

13
24
32

18
34
45

1.00
1.00
1.00

No flashover other than momentary as a result of too-close spacing of electrode.

5
6

48.3
72.5

27.0
41.8

42
64

60
91

0.50
0.25

Table IV-2.—Minimum Flashover Test

Class

Rating
kV φ-φ

Maximum use
kV φ-g
(60 Hz)

Minimum flashover test kV φ-g
60 Hz
D-C
Criteria

2
3
4

14.6
26.4
36.6

8.4
15.3
21.1

14
25
34

20
35
48

No flashover other than momentary as a result of too-close spacing of electrode.

5
6

48.3
72.5

27.0
41.8

43
67

61
95

Proposed paragraph (b)(2) addresses the properties of insulating equipment that limit the amount of current seen by an employee. Paragraph (b)(2)(i) would require 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) would limit the current encountered during the test to 1 microampere per kilovolt of applied voltage. This requirement is intended to prevent the use of poor insulating materials or good insulating materials that are contaminated with conductive substances (for example, fiberglass-reinforced plastic coated with a conductive finish), which could lead to electric shocks to employees using the equipment. The limit for current has been taken from IEEE Std. 516, and OSHA believes such a limit is reasonable and appropriate. The Agency invites comments, however, on whether another value would better protect employees.

When equipment is tested with ac voltage, the current measured during the test consists of three components: (1) Capacitive current caused by the dielectric properties of the equipment being tested, (2) conduction current through the equipment, and (3) leakage current passing along the surface of the equipment. The conduction current is negligible for materials typically used in insulating equipment, and the leakage current should be small for clean, dry insulating equipment. The capacitive component usually predominates when insulating equipment in good condition is tested. The second note to paragraph (b)(2) summarizes this information.

The tests required under proposed paragraphs (b)(1) and (b)(2) would normally be performed by the manufacturer initially during the design process and periodically during the manufacturing process. However, some employers might want to use equipment that is made of insulating materials but that is 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 proposed paragraphs (b)(1) and (b)(2). If the equipment passed the tests, it would be acceptable for use as insulating electrical protective equipment. Note 1 to paragraph (b)(2) makes clear that paragraph (b)(2) applies to equipment for primary insulation; it is not intended to apply to equipment used for secondary insulation or used for brush contact only.

Paragraph (c).
Although existing § 1926.951(a)(1) does 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 is proposing new requirements on the in-service care and use of electrical protective equipment to the design standards already contained in existing § 1926.951(a)(1). These new provisions will help ensure that these safety products retain their insulating properties.

Proposed paragraph (c)(1) would require electrical protective equipment to be maintained in a safe and reliable condition. This general, performance-oriented requirement, which would apply to all equipment addressed by

new § 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 F 478-92, Specification for In-Service Care of Insulating Line Hose and Covers.

ASTM F 479-95, Specification for In-Service Care of Insulating Blankets.

ASTM F 496-02a, Specification for In-Service Care of Insulating Gloves and Sleeves.

OSHA based the requirements proposed in paragraph (c)(2) on these standards.

Paragraph (c)(2) applies only to rubber insulating blankets, covers, line hose, gloves, and sleeves. These are the only types of electrical protective equipment addressed by consensus standards on the care and use of such equipment. Rubber insulating matting, which is addressed by the material design specifications in paragraph (a), is not covered by any ASTM standard on its in-service care or by § 1910.137(c)(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 ground, which protects them from phase-to-ground electric shock. However, 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 is not tested on a periodic basis and is not subject to the careful inspection before use that other insulating equipment is required to receive. It should be noted, however, that rubber insulating matting is required to be maintained in a safe, reliable condition under paragraph (c)(1).

Although the rubber insulating equipment addressed in § 1926.97(a) is currently designed to be capable of withstanding voltages of up to 40 kilovolts, such equipment is actually intended to be used at lower voltages (see, for example, ASTM F 496 on the care and use of rubber insulating gloves and sleeves). The use of insulating equipment at voltages less than its actual breakdown voltage provides a margin of safety for the employee. In paragraph (c)(2)(i) and Table E-4, the proposal has adopted the margins of safety recognized in the ASTM standards, restricting the use of insulating equipment to voltages lower than the proof-test voltages given in Table E-1 and Table E-2.

Table E-4 contains the following note:

The maximum use voltage is the a-c voltage (rms) classification of the protective equipment that designates the maximum nominal design voltage of the energized system that may be safely worked. The nominal design voltage is equal to the phase-to-phase voltage on multiphase circuits. However, the phase-to-ground potential is considered to be the nominal design voltage:

(1) If there is no multiphase exposure in a system area and if the voltage exposure is limited to the phase-to-ground potential, or

(2) If the electrical equipment and devices are insulated or isolated or both so that the multiphase exposure on a grounded wye circuit is removed.

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 ensures that employees are protected against the most severe possible exposure, that is, contact between one phase conductor and another. However, if the employee is only exposed to phase-to-ground voltage, then the electrical protective equipment selected can be based on this lower voltage level (nominally, the phase-to-phase voltage divided by √3 ). For example, a three-phase, solidly grounded, Y-connected overhead distribution system could be run as three phase conductors with a neutral or as three single-phase circuits with one phase conductor and a neutral each. If only one phase conductor is present on a pole, there is no multiphase exposure. If all three phase conductors are present, the multiphase exposure can be removed by insulating two of the phases or by isolating
12

two of the phases. 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. (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.) OSHA requests comments on how employees can be insulated or isolated from multiphase exposure to ensure the safe use of electrical protective equipment.

12
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.

Proposed paragraph (c)(2)(ii) would require insulating equipment to be visually inspected before use each day and immediately after any incident which might be suspected of causing damage. In this way, obvious defects can be detected before an accident occurs. Possible damage-causing incidents would include exposure to corona and exposure to possible direct physical damage. Additionally, rubber gloves would be required to be subjected to an air test along with the 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 may be used. In either case, punctures and cuts can easily be detected. The note following paragraph (c)(2)(ii) indicates that ASTM F 1236-96,
Standard Guide for Visual Inspection of Electrical Protective Rubber Products
, contains (1) information on how to inspect rubber insulating equipment and (2) descriptions and photographs of potential irregularities in the equipment.

During use, electrical protective equipment may become damaged and lose some of its insulating value. Paragraph (c)(2)(iii) of proposed § 1926.97 lists types of damage that would cause the insulating value to drop. The equipment may not be used if any of these defects are present.

Defects other than those listed in paragraph (c)(2)(iii) may develop during use of the equipment and could also affect the insulating and mechanical properties of the equipment. If such defects are found, proposed paragraph (c)(2)(iv) would require the equipment to be removed from service and tested in accordance with other requirements in paragraph (c)(2). The results of the tests 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) would require 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. Proposed paragraph (c)(2)(vi) would require insulating equipment to be stored so that it is protected from injurious 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 does not consider carrying the equipment on trucks for the use of employees during the course of work to be storage. However, the Agency does not believe that it is safe to store the 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 would not be using it. 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. Proposed paragraph (c)(2)(vii) recognizes the extra protection afforded by leather gloves and would require their use over rubber gloves, except under limited conditions.

Protector gloves would not be required with Class 0 or Class 00 gloves if high finger dexterity is needed for small parts manipulation. The maximum voltage on which Class 0 and Class 00 gloves can be used is 1,000 volts and 500 volts, respectively. At these voltages, an employee is protected against electric shock as long as a live part does not puncture the rubber and contact the employee's hand. The type of small parts encountered in work on energized circuits, such as small nuts and washers, are not likely to do this. While the exception is necessary to allow work to be performed on small energized parts, extra care is needed in the visual examination of the glove and in the avoidance of handling sharp objects. (A note to this effect is included in the proposal.)

The other exception to the requirement for protector gloves is granted if the employer can demonstrate that the possibility for damage is low and if gloves at least one class higher than required for the voltage are used. For example, if a Class 2 glove is used at 7500 volts or less (the maximum use voltage for Class 1 equipment), if high dexterity is needed, and if the possibility of damage is low, then protector gloves need not be used. In this case, the additional thickness of insulation provides a measure of additional physical protection. 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. To ensure that no loss of insulation has occurred, paragraph (c)(2)(vii)(C) would require any gloves used under this exception to be tested before being used again.

Paragraph (c)(2)(viii), Table E-4, and Table E-5 would require insulating equipment to be tested periodically to 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 taken from the relevant ASTM standards.

Paragraph (c)(2)(ix) proposes a performance-oriented requirement that the method used for the periodic tests give a reliable indication of whether or not 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 vary depending on the type of equipment being tested. On the other hand, OSHA believes that it is important for employees, employers, and testing laboratories to have some guidance in terms of what is acceptable under the proposed standard. Therefore, following paragraph (c)(2)(ix), OSHA has included a note stating that electrical test methods given in the various ASTM standards on rubber insulating equipment meet the proposed performance requirement. The Agency believes that referencing acceptable test methods within the standard will benefit employees, employers, and testing laboratories. As noted earlier, this does not mean that OSHA is adopting the ASTM standards by reference. In enforcing § 1926.97(c)(2)(ix), the Agency would accept any test that meets the requirements of the OSHA standard. However, the proposal states explicitly that the listed ASTM tests would be acceptable; and, if the ASTM specifications are met, an employer has assurance that he or she would be complying with § 1926.97(c)(2)(ix). If an employer uses other test methods, the Agency will determine, on a case-by-case basis, whether or not they meet the Federal standard.

Once the equipment has undergone the in-service inspections and tests, it is important to ensure that any failed equipment is not returned to service. Paragraph (c)(2)(x) would prohibit electrical protective equipment that failed the required inspections and tests from being used by employees, unless the defects can be safely eliminated. Proposed paragraph (c)(2)(x) also lists acceptable means of eliminating defects and rendering the equipment fit for use. Sometimes defective portions of rubber line hose and blankets can be removed. The result would be a smaller blanket or a shorter length of line hose. Under the proposal, rubber insulating blankets may only be salvaged by severing the defective portions of the blanket if the resulting undamaged area is at least 560 mm by 560 mm (22 inches by 22 inches) for Class 1, 2, 3, and 4 blankets. (Smaller sizes cannot be reliably tested using standard test methods.) Obviously, gloves and sleeves cannot be repaired in this manner; however, there are methods of patching them if the defects are minor. Rubber blankets can also be patched. The patched area must have electrical and physical properties equal to those of the material being repaired. To minimize the possibility that a patch will loosen or fail, the proposal would not permit repairs to gloves outside the gauntlet area (the area between the wrist and the reinforced edge of the opening). OSHA stresses that the proposal would 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.

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 would be required under paragraph (c)(2)(xi).

Employers, employees, and OSHA compliance staff must have a method of determining whether or not the tests required under proposed paragraphs (c)(2)(viii) and (c)(2)(xi) have been performed. Paragraph (c)(2)(xii) would require this 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.

B. Electric Power Transmission and Distribution, Subpart V

OSHA is proposing to revise Subpart V of its construction standards. This subpart contains requirements for the prevention of injuries to employees

performing construction work on electric power transmission and distribution installations.

The proposed revision of Subpart V is based primarily on the general industry standard § 1910.269, Electric power generation, transmission, and distribution, which was promulgated in January 1994, rather than on existing Subpart V, which was promulgated in 1972. As noted earlier in this preamble, the existing Subpart V is technologically out of date and contains provisions that are poorly written. OSHA believes that basing the revision of Subpart V on the more recently promulgated § 1910.269 will produce a standard that will be easier for employees and employers to understand and will better protect employees than a revision based on the existing construction standard.

Section 1926.950, General

Section 1926.950, General, proposes the scope of revised Subpart V and proposes general requirements for training and the determination of existing conditions.

Paragraph (a)(1) of proposed § 1926.950 sets the scope of revised Subpart V. OSHA intends the revision of Subpart V to apply to the same types of work covered under the existing standard. Therefore, paragraph (a)(1) has been taken directly from existing § 1926.950(a) and (a)(1). As proposed, Subpart V would apply to the construction of electric power transmission and distribution installations. For the purposes of the proposal and the existing standard, “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.

Paragraph (a)(2) of proposed § 1926.950 explains the application of the subpart with respect to the rest of Part 1926. The proposed provision reads as follows: “This subpart applies in addition to all other applicable standards contained in this Part 1926. Employers covered under this subpart are not exempt from complying with other applicable provisions in Part 1926 by the operation of § 1910.5(c) of this chapter. Specific references in this subpart to other sections of Part 1926 are provided for emphasis only.” All other construction industry standards would continue to apply to installations covered by the revised standard unless an exception is given in Subpart V. For example, § 1926.959(a)(2) would require the critical components of mechanical elevating and rotating equipment to be inspected before each shift. This provision would not supersede existing §§ 1926.500(a)(5) and (a)(6), which detail specific requirements for the inspection of cranes. Also, in a change that OSHA considers nonsubstantive, § 1910.269(a)(1)(iii) will be amended to include language equivalent to that of the new provision at § 1926.950(a)(2).
13

13
Paragraph (a)(1)(iii) of § 1910.269 presently states: “This section applies in addition to all other applicable standards contained in this part 1910. Specific references in this section to other sections of part 1910 are provided for emphasis only.”

In contrast to § 1910.269, Subpart V does not apply to work on electric power generation installations or to the installations themselves. The construction of an electric power generation station normally poses hazards more akin to those of general construction rather than those found in the operation and maintenance of the generation plant. The only exceptions would be during the final phase of construction of a generating station, when electrical and other acceptance testing of the installation is being performed, and during “reconstruction” phases, when other portions of the generating station would still be in operation. During these two operations, the work being performed resembles general industry work, and the appropriate work practices to follow are contained in the general industry standard § 1910.269. Therefore, rather than repeat the relevant portions of § 1910.269 in Subpart V, OSHA has simply stated in § 1926.950(a)(3) that such work shall comply with § 1910.269. The Agency requests comments on whether § 1910.269 should apply to all work involving electric power generation installations, as proposed, or whether the relevant requirements from § 1910.269 should be contained in Subpart V.

Similarly, line-clearance tree trimming is not normally performed as part of the construction of electric power transmission or distribution installations. One exception occurs when trees are trimmed along an existing overhead power line to provide clearance for a new transmission or distribution line being constructed. Even here, however, this work is not construction-like in nature. Therefore, OSHA is also applying § 1910.269 to line-clearance tree-trimming operations, regardless of whether the work is considered to be construction work. The Agency also requests comments on whether § 1910.269 should apply to all work involving line-clearance tree trimming, as proposed, or whether the relevant requirements from § 1910.269 should be contained in Subpart V.

Paragraph (b) of § 1926.950 addresses training for employees. Subpart V currently contains no general provisions related to training employees in the safety precautions necessary to perform electric power transmission and distribution work. It is widely recognized that electric-utility-type work requires special knowledge and skills. Additionally, both existing Subpart V and the proposed revision of Subpart V contain many safety-related work practice requirements that are necessary for the protection of employees. In order to gain the requisite knowledge and skills to employ these work practices, employees must be adequately trained. Therefore, in the proposed revision of Subpart V, OSHA has included training requirements based on those in § 1910.269.

Paragraph (b)(1) contains training requirements applying to all employees performing work covered by Subpart V. Paragraph (b)(1)(i) would require employees to be trained in the safety-related work practices, safety procedures, and other personnel safety requirements in the standard that pertain to their respective job assignments. This training is necessary to ensure that employees use the safety-related work practices outlined in proposed Subpart V.

Under paragraph (b)(1)(ii), employees would also be required to be trained in and familiar with any other safety practices necessary for their safety, including applicable emergency procedures. The proposed rule would require employees to be trained in safe work techniques that relate to his or her job. Additionally, if more than one set of work practices could be used to accomplish a task safely, the employee would need to be trained in only those work methods he or she is to use. For example, an insulator on a power line could be replaced through the use of live-line tools, through the use of rubber insulating equipment, or by deenergizing the line. The employee would only have to be trained in the method actually used to replace that insulator.

The proposal cannot specify requirements for every hazard the employee faces in performing electric power transmission or distribution work. Employers must fill in this gap by training their employees in hazards that are anticipated during the course of jobs they are expected to perform. The language of proposed § 1926.950(b)(1)(ii) imparts OSHA's intent that safety training be provided in areas that are not directly addressed by the standard but that are related to the employee's job.

Under paragraph (b)(1)(iii), the training provided to an employee would have to be commensurate with the risk he or she faces. This provision is not contained in either existing Subpart V or § 1910.269. This proposed requirement, which has been taken from § 1910.332(c), is intended to ensure that an appropriate level of training is provided. Employees who face little risk in their job tasks need less training than those whose jobs expose them to the most danger. OSHA believes that this provision will ensure that employers direct their training resources where they will provide the greatest benefit. At the same time, all employees will receive adequate training to protect them against the hazards they face in their jobs. OSHA notes, however, for employees who are currently provided the training required by existing § 1910.269, this training will be considered sufficient for compliance with proposed paragraph (b)(1)(iii). Proposed paragraph (b)(1)(iii) does not require employers to make changes to their training programs; rather it provides employers with options to tailor their training programs and resources to employees with particularly high-risk jobs.

Paragraph (b)(2) of proposed § 1926.950 contains additional requirements for the training of qualified employees. Because qualified employees are allowed to work very close to electric power lines and equipment and because they face a high risk of electrocution, it is important that they be specially trained. OSHA believes that qualified employees need to be extensively trained for them to perform their work safely. Towards this end, the proposal would require that these employees be trained in distinguishing live parts from other parts of electric equipment, in determining nominal voltages of lines and equipment, in the minimum approach distances set forth in the proposal, in the techniques involved in working on or near live parts, and in the knowledge necessary to recognize electrical hazards and the techniques to avoid these hazards.

OSHA believes that there is a need for all employees to be trained on a continuing basis. Initial instruction in safe techniques for performing specific job tasks is not sufficient to ensure that employees will use safe work practices all of the time. At OSHA's hearing on § 1910.269, Dr. Heinz Ahlers of NIOSH spoke about the effect of training on accidents, as follows:

* * * I think in a majority of those instances, the fatality involved the worker who had been appropriately trained for the exposure that he subsequently came in contact with and just was not following what the training and the company policy had involved. [269-DC Tr. 47-48]

Continual reinforcement of this initial guidance must be provided to ensure that the employee actually uses the procedures he or she has been taught. This reinforcement can take the form of supervision, safety meetings, pre-job briefings or conferences, and retraining. Typically, adequate supervision can detect unsafe work practices with respect to tasks that are routine and are performed on a daily or regular basis. However, if an employee has to use a technique that is applied infrequently or that is based on new technology, some follow-up is needed to ensure that the employee is actually aware of the correct procedure for accomplishing the task. A detailed job briefing, as required under proposed § 1926.952(d)(2), may be adequate if the employee has previously received some instruction, but training would be necessary if the employee has never been schooled in the techniques to be used.

For these reasons, OSHA has supplemented the basic training requirements proposed in § 1926.950(b)(1) and (b)(2) with two additional requirements: (1) a requirement for regular supervision (that is, supervision that takes place on a periodic basis throughout the year) and an annual inspection by the employer to determine whether or not each employee is complying with the safety-related work practices required by Subpart V and (2) a requirement for additional training whenever

• The regular supervision or annual inspection indicates that the employee is not following the safety-related work practices required by the standard,

• New technology, new types of equipment, or changes in procedures necessitate the use of safety-related work practices that are different from those 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.

These two provisions are contained in paragraphs (b)(3) and (b)(4).

The proposal includes a note indicating that the Agency considers tasks performed less often than once per year to require retraining before the task is actually performed. Instruction provided in pre-job 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. OSHA believes that this requirement will significantly improve safety for electric power transmission and distribution workers.

Under paragraph (b)(5), the proposal would require classroom or on-the-job training or a combination of both. This allows employers to continue the types of training programs that are currently in existence. (See the discussion of Note 2 to paragraph (b)(7) for an explanation of how employers may treat previous training.)

An employee who has attended a single training class on a procedure that is as complex as the lockout and tagging procedure used in an electric generating plant has generally not been fully trained in that procedure. Unless a training program establishes an employee's proficiency in safe work practices and unless that employee then demonstrates his or her ability to perform those work practices, there will be no assurance that safe work practices will result. To address this problem, the Agency is proposing paragraph (b)(6), which reads as follows:

The training shall establish employee proficiency in the work practices required by this section and shall introduce the procedures necessary for compliance with this section.

The inclusion of paragraph (b)(6) and the demonstration of proficiency requirement contained in paragraph (b)(7), discussed later in this preamble, are intended to ensure that employers do not try to comply with § 1926.950(b) by simply handing training manuals to their employees. These provisions will 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 these two paragraphs will maximize the benefits of the training required under the standard.

The employer would be required, by paragraph (b)(7), to determine that each employee has demonstrated proficiency in the work practices involved. Until the employer makes this determination, the employee would not be considered as being trained. Employers relying on training provided by others are expected to take steps to verify that the employee has indeed received it. For example, an employer could call a previous employer or training facility or could check a union employee's journeyman lineman credentials. Alternatively, an employer could test the employee's knowledge of safe work practices. After these steps have been taken, the employer could then, based on visual

observation of the employee, determine that that employee has been trained in accordance with the standard and has demonstrated proficiency in the work practices involved. A note following this paragraph explains that employee training records, which are maintained by many employers but which are not required by the standard, are one way of tracking when an employee has demonstrated proficiency. OSHA requests comments on whether the standard should require employers to record employee training.

Note 2 to paragraph (b)(7) describes how an employer may treat training that the employee has received previously (for example, through previous employment). If an employer can demonstrate that an employee has already been trained, the employer does not have to duplicate previous instruction provided that 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. OSHA believes that it is unnecessary to require employers to duplicate training the employee has received in the past. However, the Agency believes that it is important for the employer to take steps to ensure that the previous training was adequate for the work practices the employee will be performing. It is possible, for example, that an employee who has received training through an apprenticeship program was not trained in the specific grounding practices used by his or her current employer. The employer must determine where the gaps in the employee's training are and provide supplemental training to cover them. Otherwise, employees may follow different practices that endanger not only themselves but their coworkers as well. For example, a previously trained employee may have been instructed to wear rubber gloves and sleeves, but his or her current employer's practices require only rubber gloves but with the extra insulation on conductors as required by proposed § 1926.960(c)(2). This employee will be unlikely to install all the necessary insulation, increasing the risk to the employee and his or her coworkers.

Existing § 1910.269(a)(2)(vii) requires employers to certify that employees have received the training required under that section. The certification must be made when the employee demonstrates proficiency in the work practices involved. To reduce unnecessary paperwork burdens placed on employers, OSHA is proposing to eliminate the requirement to certify training. The Agency believes that compliance with the training requirements can be determined through employee interviews; thus, the certification requirement is unnecessary. OSHA does believe, however, that it is essential for the employee to demonstrate proficiency in the work practices involved before he or she is considered as having been trained satisfactorily. Therefore, as described earlier, the proposal includes this as a requirement. Comments are requested on whether or not the existing certification requirement in existing § 1910.269(a)(2)(vii) is necessary and on whether or not the proposed alternative will better protect employees.

The work covered by Subpart V is frequently done by an employer working under contract to an electric utility. Traditionally, electric utilities
14

have had a workforce that was sufficient for the day-to-day maintenance of the electric power generation, transmission, and distribution system. Electric utilities would hire contractors when the work to be performed went beyond routine maintenance. Thus, contractors typically would perform the following types of work: new transmission and distribution line construction, extensive transmission and distribution line renovation (such as the replacement of a large number of utility poles or the upgrading of the line to a higher voltage), line-clearance tree trimming, generation plant overhauls, and repair of extensive storm damage.

14
For the purposes of the discussion of § 1926.950(c), OSHA is using the term “electric utility” to include any employer who hires a contractor to work on that employer's electric power generation, transmission, or distribution facility.

Contractors performing electric power generation, transmission, and distribution work experience a disproportionate share of fatal accidents in comparison to electric utilities. Table IV-3 presents the number of fatalities experienced by electric utilities and their major electrical contractors.

Table IV-3.—Fatalities by SIC

SIC
Industry
Year
Number

783
Line-clearance tree-trimming contractors
1991
4

1992
7

1993
9

1994
4

1995
2

1996
6

1997
4

1998
5

Total

41

1623
Power Line Contractors
1991
15

1992
12

1993
20

1994
21

1995
15

1996
11

1997
11

1998
12

Total

117

1731
Electrical Contractors
1991
5

1992
6

1993
13

1994
9

1995
9

1996
6

1997
8

1998
9

Total

65

4911
Electric Utilities
1991
33

1992
34

1993
28

1994
23

1995
36

1996
23

1997
20

1998
27

Total

224

4931
Combination Utilities (e.g., Electric and Gas Utilities)
1991
2

1992
7

1993
1

1994
1

1995
1

1996
2

1997
2

1998
1

Total

17

Grand total

464

Source: OSHA accident inspection data for the years 1991 through 1998.

BILLING CODE 4510-26-P

EP15JN05.000

BILLING CODE 4510-26-C

Figure 1 shows the percentages of fatalities for the two groups. These figures demonstrate that, while the overall number of fatalities has not changed significantly, the proportion of fatal accidents has shifted from electric utilities to their contractors, with nearly half of the fatalities involving contractors.

The number of fatalities for the two industry groups does not tell the full story. To determine the relative risk faced by employees, OSHA must look at fatality rates, which represent the number of deaths per 1000 employees. Using employment data for 1997 from Section V, Preliminary Regulatory Impact Analysis and Initial Regulatory Flexibility Analysis, later in this preamble, the Agency has calculated fatality rates for electric utilities and their major contractors, as shown in Table IV-4.

Table IV-4.—Fatality Rate by Industry

Year
Electric utilities

124408 Employees
1

Number of fatalities
Fatality rate
Electrical contractors

43472 Employees
2

Number of fatalities
Fatality rate
Line-clearance tree trimmers

35020 Employees
3

Number of fatalities
Fatality rate

1991
35
0.28
20
0.46
4
0.11

1992
41
0.33
18
0.41
7
0.20

1993
29
0.23
33
0.76
9
0.26

1994
24
0.19
30
0.69
4
0.11

1995
37
0.30
24
0.55
2
0.06

1996
25
0.20
17
0.39
6
0.17

1997
22
0.18
19
0.44
4
0.11

1998
28
0.23
21
0.48
5
0.14

Total
241
0.24
182
0.52
41
0.15

1
Source: “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. (CONSAD), full-time equivalent employment for NAICS 221110, electric power generation, NAICS 221120, electric power transmission, control, and distribution, and NAICS 2211, publicly owned utilities, combined.

2
Source: CONSAD, full-time equivalent employment for NAICS 234910, water, sewer, and pipeline construction, NAICS 234920, power and communication transmission line construction, and NAICS 235310, electrical contractors, combined.

3
Source: CONSAD, full-time equivalent employment for SIC 0783, ornamental shrub and tree services.

As can be seen from this table, the fatality rates for contractors are more than double the comparable rate for electric utilities.

OSHA believes that, for the protection of all employees performing electric power generation,
15

transmission, and distribution work, it is essential that electric utilities hire contractors who have employees with the skills, knowledge, training, tools, and protective equipment necessary to perform this work safely. The safety of electric utility employees as well as the safety of contractor employees depends on this.

15
Although Subpart V applies only to the construction of transmission and distribution installations, the same requirements on the duties of host and contract employers are being proposed in § 1910.269, which applies to the maintenance and operation of electric power generation installations in addition to transmission and distribution installations.

It is clear that the safety of contract employees is dependent on their skills, knowledge, training, tools, and protective equipment. The requirements of § 1926.950(b) generally ensure that all employees have the requisite skills and training. Other requirements in the standard, including §§ 1926.954, 1926.957, and 1926.960, address tools and protective equipment. However, these other provisions do not adequately address the employees' knowledge of the actual equipment they will be working on. For example, an employee might be trained in the climbing of concrete poles. Climbing these structures typically involves the attachment of temporary ladders into fittings on the concrete poles. An employee with the general type of training in climbing electric power transmission structures that contract employees typically receive might not be aware of the specific attachment and locking means used by the concrete poles and structures owned by the electric utility that hires the contractor. Without this knowledge, the employee could attach the temporary ladder incorrectly or fail to lock it in place properly with possibly fatal results.

In addition, several provisions in the standard would require the employer to assess certain hazards covered by the standard. For example, § 1926.960(g) would require employers to assess hazards associated with electric arcs. Contract employers need to have sufficient information about the electrical system so that they can perform these hazard assessments.

The facilities owned by an electric utility pose hazards to employees of contractors working on those facilities. For example, overhead electric power transmission and distribution lines and equipment owned by electric utilities pose serious fall, electrocution, and electric shock hazards. Employees exposed to such hazards need to be highly trained and skilled. If an electric utility hires a contractor who uses unqualified employees on those lines and equipment, the hazards posed by the utility's facilities will almost certainly lead to injuries. If the contract employees are working on a power line with the understanding that it is deenergized and if the contract employees do not fully understand the electric utility's procedures for deenergizing lines and equipment, then those employees could mistakenly believe that a line is deenergized when it is not, with possibly fatal results. Inadequate maintenance of an electric utility's facilities can also lead to unexpected hazards for contract employees.

The safety of electric utility employees is also affected by the contract employer's work. 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. Additionally, a contract employee who is not familiar with the utility's procedures for reenergizing lines and equipment might inadvertently remove a tag protecting an 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 those that follow a big storm. Additionally, contractors in electric power generation plants will be working near employees working full time in the plant.

It is clear from these examples that electric utility employers and contract employers must cooperate and communicate if all employees maintaining or constructing electric power generation, transmission, or distribution facilities are to be adequately protected. Thus, OSHA is proposing requirements in § 1926.950 for each type of employer to ensure the necessary exchange of information between electric utility and contract employers. The proposed requirements have been taken from similar provisions in the Agency's standard for Process Safety Management, § 1910.119(h).

Paragraph (c)(1) of proposed § 1926.950 would impose duties on host employers that hire contractors to perform work on the host employer's installations covered by Subpart V. Host employer is defined 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 includes electric utilities and other employers who operate and maintain an electric power transmission or distribution installation. However, it does not include an employer who owns but does not operate and maintain such installations. The Agency believes that host employers who operate and maintain their electric power transmission and distribution installations have expertise in working safely on such installations. On the other hand, some entities may own but not operate or maintain these installations. These entities generally do 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. Therefore, OSHA is proposing to exclude such entities from having to comply with proposed § 1926.950(c)(1). The Agency invites comments on whether excluding such employers from the host-contract employer provisions proposed in § 1926.950(c)(1) unduly jeopardizes employee safety and whether any of the provisions in that paragraph could reasonably be applied to such employers.

OSHA is also not proposing to extend the host-contract employer provisions to line-clearance tree-trimming contractors for work performed by line-clearance tree trimmers who are not qualified employees. Existing § 1910.269(a)(1)(i)(E) lists the paragraphs that apply to line-clearance tree-trimming, and OSHA is not proposing to add the host-contract employer provisions to that list. As noted earlier, the fatality rate for line-clearance tree-trimming contractors is lower than the rate for utilities. Thus, it appears that though line-clearance tree-trimming operations are relatively hazardous, they are still safer than power line construction, repair, and maintenance. On the other hand, if a line-clearance tree-trimming operation is performed by a qualified employee, then the host-contract employer provisions would apply. (
See
existing § 1910.269(a)(1)(i)(E)(1).) As long as they are using electrical protective equipment, these employees are permitted to come much closer to energized parts than unqualified employees, and the Agency believes that these employees face hazards similar to contract power line workers.
16

OSHA requests comments on whether excluding line-clearance tree-trimming contractors from the host-contract employer provisions proposed in § 1926.950(c)(1) unduly jeopardizes employee safety and whether any of the provisions in that paragraph could reasonably be applied to such employers.

16
For a full discussion of why existing § 1910.269 applies different requirements to line-clearance tree-trimming operations depending on whether or not the operation is performed by a qualified employee, see the preamble to the final rule on electric power generation, transmission, and distribution work (January 31, 1994, 59 FR 4336).

Contract employer is defined as “[a]n employer who performs work covered by Subpart V of this Part for a host employer.” This includes painting contractors, line construction contractors, electrical contractors, and any other contractors working on the construction of electric power transmission and distribution lines.
17

It does not include contractors who might be present at a jobsite where some work performed is covered by Subpart V, but who are not performing any covered work.

17
For § 1910.269, this definition also includes contractors working on an electric power generation installation covered by that section. This would include boiler maintenance contractors, conveyor servicing contractors, electrical contractors, and others.

Sometimes the host employer is aware of hazards that are present at its facilities of which the contractor might not be aware. For example, what appeared to be a static line on one electric utility's transmission system was energized at 4,000 volts. Static lines are typically grounded. An employee of a contractor, perhaps not understanding that the line was energized, contacted the static line and was electrocuted. Paragraph (c)(1)(i) of proposed § 1926.950 would address this problem by requiring the host employer to inform contract employers of any known hazards that the contractor or its employees might fail to recognize. This provision should ensure that the contractor will be able to take measures to protect its employees from hazards posed by the host employer's workplace. Although this provision would not require the host employer to inform the contract employer of hazards the contract employees should be expected to recognize, such as hazards posed by an overhead power line, the proposal would require the host employer to inform the contract employer of known hazards the contractor might not be aware of. For example, if a host employer knows that a particular manhole on its system is subject to periodic contamination from a nearby fuel tank, that information must be relayed to the contractor.

Proposed paragraph (c)(1)(i) also covers information that a contract employer would need to make any hazard assessments called for under the proposed standard. For example, proposed § 1926.950(d) would require employers to determine existing conditions related to the safety of the work being performed before work is started. Under paragraph (c)(1)(ii), the host employer would have to provide any system parameters that the contract employer would need to satisfy paragraph (d). These parameters could include such things as the nominal circuit voltage, maximum switching transient voltages, and the presence of any utility poles known by the host employer to have defects that could affect employee safety. This is the type of information that could affect the contractor's choice of work practices or could otherwise affect the safety of the contractor's employees. In addition, the contract employer would otherwise have difficulty obtaining much of this information, if it could be obtained at all.

Proposed paragraph (c)(1)(i) would not require the host employer to survey the contract work areas for hazards. For

example, this provision does not require the host employer to inspect utility poles for damage or defects before the contract employer starts working. The proposed rule would require instead that the host employer provide all relevant and known information to the contract employer. This paragraph does not require host employers to acquire additional unknown information but does require host employers to provide any information that was known by the host employer.

Proposed paragraph (c)(1)(ii) would require the host employer to report observed contract-employer-related violations of Subpart V to the contract employer. OSHA believes that host employers as a matter of course observe employees of the contract employer, from time to time, as they perform work under the contract. When the host employer observes contract employees violating this standard, it is important for the host employer to inform the contract employer so that the contractor can correct the violations and prevent them from occurring in the future. The contract employer is responsible for correcting these violations, but may not be aware of them. Thus, the proposal would require the host employer to report violations to the contract employer so that the contract employer will know to take corrective action.

Contracts between electric utilities and their contractors typically contain provisions requiring contractors to meet OSHA standards and other provisions addressing noncompliance with the terms of the contract. OSHA believes that host employers should take appropriate measures to enforce the terms of the contract with respect to safe work practices and get the contractor to fix any uncorrected violations. OSHA also believes that host employers should carefully review the contracts of contractors who fail to correct violations before renewing those contracts. The Agency requests comments on whether the standard should require these or other actions on the part of the host employer to promote compliance with OSHA standards.

Proposed paragraph (c)(2) addresses the responsibilities of the contract employer. Paragraph (c)(2)(i) would require the contract employer to instruct its employees in the hazards communicated to the contractor by the host employer. A note following this paragraph indicates that this instruction would be in addition to the training provided under § 1926.950(b). Proposed paragraph (c)(2)(i) would ensure that information on hazards the employees might face is conveyed to those employees. The hazard information provided by the host employer is essential to the safety of employees performing the work, especially because it includes information on hazards that the contract employees might not recognize. The contract employer would also be required, under proposed § 1926.950(b)(1)(ii), to train employees in work practices for their safety, as related to those hazards.

Proposed paragraph (c)(2)(ii) would require the contract employer to ensure that its employees follow the work practices required by the standard and the safety-related work rules imposed by the host employer. This proposed paragraph: (1) Recognizes that the contract employer has the responsibility for the actions of its employees, and (2) compels the contract employer to enforce compliance with safety and health rules imposed by the host employer as if they were requirements of the standard. The latter is particularly important. If the host employer has imposed safety-related work rules on its contractors, those rules are almost certain to impact the safety and health of employees of the host and contract employers. 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 or a circuit the contractor was not working on might become reenergized. These hazards could cause the electrocution of the employees of either employer. OSHA invites comments on whether requiring a contractor to follow a host employer's safety-related work rules could possibly make the work more hazardous and, if so, how the standard should address this possibility.

Even work rules imposed primarily for reasons other than employee safety and health are likely to affect employee safety in one way or another. Work rules that address the way electric equipment is installed, for example, also affect the safety of the host employer's employees. If the equipment is installed improperly, it can fail when it is in use, possibly injuring an employee. Similarly, work rules imposed primarily for the protection of the public can also affect employee safety. For example, if a contractor's employees do not follow a rule that requires trailer loads to be tied down, employees at the host employer's facilities would be exposed to shifting or falling loads in the same way that members of the public would be. OSHA requests comments on whether host employers impose any work rules that do not significantly affect employee safety and examples of such work rules.

Proposed paragraph (c)(2)(iii) would require the contract employer to advise the host employer of: unique hazards posed by the contract employer's work; any unexpected hazards found while the contractor's employees were working; and the measures the contract employer took to correct host-employer-reported violations and to prevent them from recurring. This provision enables the host employer to take any necessary measures to protect its employees from hazards of which the host employer would not otherwise be aware. This will help protect the host employer's employees when they are working near the contractor's employees (for example, when responding to an emergency) and when the host employer's employees work on the same equipment after the contract employer departs. It will also provide essential feedback to the host employer on the safety performance of their contract employers. This feedback will also help host employers satisfy their obligations under the Agency's multiemployer enforcement policy (CPL 02-00-124).

OSHA's recognition of the need for employers on multiemployer worksites to share responsibility for workplace safety and health is reflected in the Agency's multiemployer enforcement policy. On multiemployer worksites, citations are normally issued not only to the employer whose employees are exposed to hazards (the exposing employer) but, depending on the actions the employer has taken to detect violations and protect employees, also to:

(1) The employer who creates the hazard (the creating employer);

(2) The employer who has the authority, by contract or practice, to ensure that the hazardous condition is corrected (the controlling employer); and

(3) The employer who has the responsibility for correcting the hazard (the correcting employer).

OSHA's proposed requirements concerning host employers and contractors do not affect the Agency's long-standing multiemployer enforcement policy. Neither § 1910.269(a)(4) nor § 1926.950(d) increase an employer's obligations or liability under that policy. Furthermore, nothing in the proposed rule changes OSHA's position'as expressed in CPL 02-00-124 and various court cases (
see,
for example,
Anning-Johnson
94 O.S.H. Cas. (BNA) 1193),
Harvey Workover, Inc.
(7 O.S.H. Cas. (BNA) 1687))-that each employer is responsible for the health and safety of his or her own employees,

and under certain circumstances may be cited for endangering the safety of another's employees. Because the proposed requirements will help increase communication between host emplo

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A05-11585. Public record. Not legal advice.