# Electric Power Generation, Transmission, and Distribution; Electrical Protective Equipment > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2013-29579 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** April 11, 2014 - **Citation:** 79 FR 20316 ## Text DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Parts 1910 and 1926 [Docket No. OSHA-S215-2006-0063] RIN 1218-AB67 Electric Power Generation, Transmission, and Distribution; Electrical Protective Equipment AGENCY: Occupational Safety and Health Administration (OSHA), Labor. ACTION: Final rule. SUMMARY: OSHA last issued rules for the construction of transmission and distribution installations in 1972. Those provisions are now out of date and inconsistent with the more recently promulgated general industry standard covering the operation and maintenance of electric power generation, transmission, and distribution lines and equipment. OSHA is revising the construction standard to make it more consistent with the general industry standard and is making some revisions to both the construction and general industry requirements. The final rules for general industry and construction include new or revised provisions on host employers and contractors, training, job briefings, fall protection, insulation and working position of employees working on or near live parts, minimum approach distances, protection from electric arcs, deenergizing transmission and distribution lines and equipment, protective grounding, operating mechanical equipment near overhead power lines, and working in manholes and vaults. The revised standards will ensure that employers, when appropriate, must meet consistent requirements for work performed under the construction and general industry standards. The final rule also revises the general industry and construction standards for electrical protective equipment. The existing construction standard for the design of electrical protective equipment, which applies only to electric power transmission and distribution work, adopts several national consensus standards by reference. The new standard for electrical protective equipment, which matches the corresponding general industry standard, applies to all construction work and replaces the incorporation of out-of-date consensus standards with a set of performance-oriented requirements that is consistent with the latest revisions of the relevant consensus standards. The final construction rule also includes new requirements for the safe use and care of electrical protective equipment to complement the equipment design provisions. Both the general industry and construction standards for electrical protective equipment will include new requirements for equipment made of materials other than rubber. OSHA is also revising the general industry standard for foot protection. This standard applies to employers performing work on electric power generation, transmission, and distribution installations, as well as employers in other industries. The final rule removes the requirement for employees to wear protective footwear as protection against electric shock. DATES: The final rule becomes effective on July 10, 2014. (Certain provisions have compliance deadlines after this date as explained later in this preamble.) ADDRESSES: In accordance with 28 U.S.C. 2112(a), the Agency designates the Associate Solicitor of Labor for Occupational Safety and Health, Office of the Solicitor of Labor, Room S4004, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210, to receive petitions for review of the final rule. FOR FURTHER INFORMATION CONTACT: General information and press inquiries: Mr. Frank Meilinger, Office of Communications, Room N3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-1999. Technical information: Mr. David Wallis, Directorate of Standards and Guidance, Room N3718, OSHA, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-1950 or fax (202) 693-1678. For additional copies of this Federal Register document, contact OSHA, Office of Publications, U.S. Department of Labor, Room N3101, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-1888. Electronic copies of this Federal Register document are available at http://www.regulations.gov. Electronic copies of this Federal Register document, as well as news releases and other relevant documents, are available at OSHA's Web page at http://www.osha.gov. SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary A. Introduction B. Need for Regulation C. Affected Establishments D. Benefits, Net Benefits, and Cost Effectiveness E. Cost Effectiveness F. Compliance Costs G. Economic Impacts H. Final Regulatory Flexibility Analysis II. Background A. Acronyms and Abbreviations B. Need for the Rule C. Accident Data D. Significant Risk and Reduction in Risk III. Development of the Final Rule A. History of the OSHA Standards B. Relevant Consensus Standards C. Advisory Committee on Construction Safety and Health IV. Legal Authority V. Summary and Explanation of the Final Rule A. Section 1926.97, Electrical Protective Equipment B. Subpart V, Electric Power Transmission and Distribution C. Part 1910, Revisions D. Part 1926, Removal of Incorporations by Reference E. Part 1926, Subpart CC Revisions VI. Final Economic Analysis and Regulatory Flexibility Analysis A. Introduction B. Need for the Rule C. Examination of Alternative Regulatory Approaches D. Profile of Affected Industries E. Benefits, Net Benefits, and Cost Effectiveness F. Technological Feasibility G. Costs of Compliance H. Final Regulatory Flexibility Analysis I. References VII. Federalism VIII. Unfunded Mandates IX. Consultation and Coordination With Indian Tribal Governments X. Office of Management and Budget Review Under the Paperwork Reduction Act of 1995 A. Information Collection Request for the Proposed Rule B. Information Collection Requirements in the Final Rule XI. State-Plan Requirements XII. Dates A. The New Requirements for Transferring Information Between Host Employers and Contract Employers (§§ 1926.950(c) and 1910.269(a)(3)) B. Revised Provisions on the Use of Fall Protection Systems (§§ 1926.954(b)(3)(iii) and (b)(3)(iv) and 1910.269(g)(2)(iv)(C), and (g)(2)(iv)(D)) C. Revised Requirements for Minimum Approach Distances (§§ 1926.960(c)(1) and 1910.269(l)(3)) D. New Requirements for Protecting Employees From the Hazards Associated with Electric Arcs (§§ 1926.960(g) and 1910.269(l)(8)) XIII. Authority and Signature Executive Summary A. Introduction OSHA last issued rules for the construction of transmission and distribution installations in 1972. Those provisions are now out of date and inconsistent with the more recently promulgated general industry standard covering the operation and maintenance of electric power generation, transmission, and distribution lines and equipment. OSHA is revising the construction standard to make it more consistent with the general industry standard and is making some revisions to both the construction and general industry requirements. The final rules for general industry and construction include new or revised provisions on host employers and contractors, training, job briefings, fall protection, insulation and working position of employees working on or near live parts, minimum approach distances, protection from electric arcs, deenergizing transmission and distribution lines and equipment, protective grounding, operating mechanical equipment near overhead power lines, and working in manholes and vaults. The revised standards will ensure that employers, when appropriate, must meet consistent requirements for work performed under the construction and general industry standards. The new provisions on host employers and contractors include requirements for host employers and contract employers to exchange information on hazards and on the conditions, characteristics, design, and operation of the host employer's installation. These new provisions also include a requirement for host employers and contract employers to coordinate their work rules and procedures to protect all employees. The revised provisions on training add requirements for the degree of training to be determined by the risk to the employee for the hazard involved and for training line-clearance tree trimmers and remove the existing requirement for the employer to certify training. The revised requirements for job briefings include a new requirement for the employer to provide information about existing characteristics and conditions to the employee in charge. The revised fall protection provisions include new requirements for the use of fall restraint systems or personal fall arrest systems in aerial lifts and for the use of fall protection equipment by qualified employees climbing or changing location on poles, towers, or similar structures. The revised provisions on insulation and working position of employees working on or near live parts include new requirements relating to where an employee who is not using electrical protective equipment may work. The revised provisions on minimum approach distances include a new requirement for the employer to determine maximum anticipated per-unit transient overvoltages through an engineering analysis or, as an alternative, assume certain maximum anticipated per-unit transient overvoltages. These provisions also replace requirements for specified minimum approach distances with requirements for the employer to establish minimum approach distances using specified formulas. The new provisions for protection from electric arcs include new requirements for the employer to: Assess the workplace to identify employees exposed to hazards from flames or from electric arcs, make reasonable estimates of the incident heat energy to which the employee would be exposed, ensure that the outer layer of clothing worn by employees is flame resistant under certain conditions, and generally ensure that employees exposed to hazards from electric arcs wear protective clothing and other protective equipment with an arc rating greater than or equal to the estimated heat energy. The revised provisions on deenergizing transmission and distribution lines and equipment clarify the application of those provisions to multiple crews and to deenergizing network protectors. The revised requirements for protective grounding now permit employers to install and remove protective grounds on lines and equipment operating at 600 volts or less without using a live-line tool under certain conditions. The revised provisions for operating mechanical equipment near overhead power lines clarify that the exemption from the requirement to maintain minimum approach distances applies only to the insulated portions of aerial lifts. The revised provisions on working in manholes and vaults clarify that all of the provisions for working in manholes also apply to working in vaults and include a new requirement for protecting employees from electrical faults when work could cause a fault in a cable. The final rule also revises the general industry and construction standards for electrical protective equipment. The existing construction standard for the design of electrical protective equipment, which applies only to electric power transmission and distribution work, adopts several national consensus standards by reference. The new standard for electrical protective equipment applies to all construction work and replaces the incorporation of out-of-date consensus standards with a set of performance-oriented requirements that is consistent with the latest revisions of the relevant consensus standards. The final construction rule also includes new requirements for the safe use and care of electrical protective equipment to complement the equipment design provisions. Both the general industry and construction standards for electrical protective equipment will include new requirements for equipment made of materials other than rubber. OSHA is also revising the general industry standard for foot protection. This standard applies to employers performing work on electric power generation, transmission, and distribution installations, as well as employers in other industries. The final rule removes the requirement for employees to wear protective footwear as protection against electric shock. B. Need for Regulation Employees doing work covered by the final rule are exposed to a variety of significant hazards that can and do cause serious injury and death. As explained fully in Section II.B, Need for the Rule, later in this preamble, after carefully weighing the various potential advantages and disadvantages of using a regulatory approach to reduce risk, OSHA concludes that in this case mandatory standards represent the best choice for reducing the risks to employees. In addition, rulemaking is necessary in this case to replace older existing standards with updated, clear, and consistent safety standards. Inconsistencies between the construction and general industry standards can create difficulties for employers attempting to develop appropriate work practices for their employees. For example, an employer replacing a switch on a transmission and distribution system is performing construction work if it is upgrading the cutout, but general industry work if it is simply replacing the cutout with the same model. Under the existing standards, different requirements apply depending upon whether the work is construction or general industry work. Under the final rule, the requirements are the same. C. Affected Establishments The final rule affects establishments in a variety of different industries involving electric power generation, transmission, and distribution. The rule primarily affects firms that construct, operate, maintain, or repair electric power generation, transmission, or distribution installations. These firms include electric utilities, as well as contractors hired by utilities and primarily classified in the construction industry. In addition, potentially affected firms are found in a variety of manufacturing and other industries that own or operate their own electric power generation, transmission, or distribution installations as a secondary part of their business operations. The rule also affects establishments performing line-clearance tree-trimming operations. D. Benefits, Net Benefits, and Cost Effectiveness OSHA expects the final rule to result in an increased degree of safety for the affected employees, thereby reducing the numbers of accidents, fatalities, and injuries associated with the relevant tasks and reducing the severity of certain injuries, such as burns or injuries that employees could sustain as a result of an arrested fall, that may still occur during the performance of some of the affected work procedures. An estimated 74 fatalities and 444 serious injuries occur annually among employees involved in the electric power generation, transmission, and distribution work addressed by the provisions of this rulemaking. Based on a review and analysis of the incident reports associated with the reported injuries and fatalities, OSHA expects full compliance with the final rule to prevent 79.6 percent of the relevant injuries and fatalities, compared with 52.9 percent prevented with full compliance with the existing standards. Thus, OSHA estimates that the final rule will prevent approximately 19.75 additional fatalities and 118.5 additional serious injuries annually. Applying an average monetary value of $62,000 per prevented injury and a value of $8.7 million per prevented fatality results in estimated monetized benefits of $179.2 million annually. OSHA estimated the net monetized benefits of the final rule to be about $129.7 million annually when costs are annualized at 7 percent ($179.2 million in benefits minus $49.5 million in costs), and $132.0 million when costs are annualized at 3 percent ($179.2 million in benefits minus $47.1 million in costs). Note that these net benefits exclude any unquantified benefits associated with revising existing standards to provide updated, clear, and consistent regulatory requirements for electric power generation, transmission, and distribution work. OSHA believes that the updated standards are easier to understand and to apply. Accordingly, the Agency expects the final rule to improve safety by facilitating compliance. Table 1 summarizes the costs, benefits, net benefits, and cost effectiveness of the final rule. Table 1—Net Benefits and Cost Effectiveness * 7 percent 3 percent Annualized Costs: Calculating Incident Energy and Arc-Hazard Assessment (Arc-Hazard Assessment) $2.2 million $1.8 million. Provision of Arc-Flash Protective Equipment $17.3 million $15.7 million. Fall Protection $0.6 million $0.4 million. Host-Contractor Communications $17.8 million $17.8 million. Expanded Job Briefings $6.7 million $6.7 million. Additional Training $3.0 million $2.7 million. Other costs for employees not already covered by § 1910.269 $0.2 million $0.2 million. MAD Costs $1.8 million $1.8 million. Total Annual Costs $49.5 million $47.1 million. Annual Benefits: Number of Injuries Prevented 118.5 118.5. Number of Fatalities Prevented 19.75 19.75. Monetized Benefits (Assuming $62,000 per injury and $8.7 million per fatality prevented $179.2 million $179.2 million. OSHA standards that are updated and consistent Unquantified Unquantified. Total Annual Benefits 118.5 injuries and 19.75 fatalities prevented 118.5 injuries and 19.75 fatalities prevented. Net Benefits (Benefits minus Costs): $129.7 million $132.0 million. * Totals may not equal the sum of the components due to rounding. Source: Office of Regulatory Analysis, OSHA. Details provided in text. E. Cost Effectiveness OSHA estimates that compliance with the final rule will result in the prevention of an one fatality and six injuries per $2.4 million in costs (using a 7-percent annualization rate) and one fatality and six injuries per $2.2 million in costs (using a 3-percent annualization rate). F. Compliance Costs The estimated costs of compliance with this rule represent the additional costs necessary for employers to achieve full compliance. They do not include costs for employers that are already in compliance with the new requirements imposed by the final rule; nor do they include costs employers must incur to achieve full compliance with existing applicable requirements. OSHA based the Preliminary Regulatory Impact Analysis and Initial Regulatory Flexibility Analysis (PRIA) for the proposed rule, in part, on a report prepared by CONSAD Corp. (Exhibit 0080) under contract to OSHA. Eastern Research Group, Inc., (ERG) under contract to OSHA, assisted in preparing the analysis of the final rule presented here. With ERG's assistance, OSHA updated data on establishments, employment, wages, and revenues, and updated the analyses in the final rule with these new cost inputs. OSHA also calculated costs for provisions of the final rule not accounted for in the PRIA. These costs are for the use of upgraded fall protection equipment resulting from revised fall protection requirements, the provision of arc-rated head and face protection for some employees, the training of employees in the use of new fall protection equipment, the calculation of minimum approach distances, and, in some cases, the use of portable protective gaps (PPGs) to comply with the new minimum approach-distance requirements. The FEA also modifies the PRIA's approach to estimating costs for arc-hazard assessments. OSHA estimated the total annualized cost of compliance with the present rulemaking to be between about $47.1 million (when costs are annualized at 3 percent) and $49.5 million (when costs are annualized at 7 percent). The final rule's requirements for employers to provide arc-flash protective equipment account for the largest component of the total compliance costs, at approximately $15.7 million to $17.2 million (when costs are annualized at 3 and 7 percent, respectively). Other nonnegligible compliance costs associated with the final rule include costs related to host-contractor communications ($17.8 million), job briefings ($6.7 million), training ($2.7 million to $3.0 million), minimum approach distances ($1.8 million to $1.8 million), fall protection ($0.4 million to $0.6 million), compliance with existing § 1910.269 for employees not already covered by that standard ($0.2 million), and arc-hazard assessments ($1.8 million to $2.2 million). G. Economic Impacts To assess the economic impacts associated with compliance with the final rule, OSHA developed quantitative estimates of the potential economic impact of the requirements in this rule on entities in each affected industry. OSHA compared the estimated costs of compliance with industry revenues and profits to provide an assessment of potential economic impacts. The costs of compliance for the final rule are not large in relation to the corresponding annual financial flows associated with the regulated activities. The estimated costs of compliance (when annualized at 7 percent) represent about 0.007 percent of revenues and 0.06 percent of profits, on average, across all entities; compliance costs do not represent more than 0.1 percent of revenues or more than about 2 percent of profits in any affected industry. The economic impact of the present rulemaking is most likely to consist of a small increase in prices for electricity, of about 0.007 percent on average. It is unlikely that a price increase on the magnitude of 0.007 percent will significantly alter the services demanded by the public or any other affected customers or intermediaries. If employers can substantially recoup the compliance costs of the present rulemaking with such a minimal increase in prices, there may be little effect on profits. In general, for most establishments, it is likely that employers can pass some or all of the compliance costs along in the form of increased prices. In the event that unusual circumstances may inhibit even a price increase of 0.1 percent (the highest estimated cost as a percent of revenue in any of the affected industries), profits in any of the affected industries would be reduced by a maximum of about 2 percent. OSHA concludes that compliance with the requirements of the final rule is economically feasible in every affected industry sector. In addition, based on an analysis of the costs and economic impacts associated with this rulemaking, OSHA concludes that the effects of the final rule on international trade, employment, wages, and economic growth for the United States are negligible. H. Final Regulatory Flexibility Analysis The Regulatory Flexibility Act, as amended in 1996 by the Small Business Regulatory Enforcement Fairness Act, requires the preparation of a Final Regulatory Flexibility Analysis for certain rules promulgated by agencies (5 U.S.C. 601-612). Under the provisions of the law, each such analysis must contain: (1) A succinct statement of the need for, and objectives of, the rule; (2) A summary of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a summary of the assessment of the agency of such issues, and a statement of any changes made in the final rule as a result of such comments; (3) a description and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available; (4) a description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities that will be subject to the requirement, and the type of professional skills necessary for preparation of the report or record; and (5) a description of the steps the agency took to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule, and why the agency rejected each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities. OSHA analyzed the potential impact of the final rule on small and very small entities, as described further under the heading “Final Regulatory Flexibility Analysis,” in Section VI, Final Economic Analysis and Regulatory Flexibility Analysis, later in this preamble. OSHA concludes that the compliance costs are equivalent to approximately 0.086 percent of profits for affected small entities generally, and less than approximately 2.9 percent of profits for small entities in any particular industry, and approximately 0.39 percent of profits for affected very small entities generally, and less than approximately 5.61 percent of profits for very small entities in any particular industry. II. Background A. Acronyms and Abbreviations The following acronyms have been used throughout this document: ACCSH Advisory Committee on Construction Safety and Health AED automated external defibrillator AGC Associated General Contractors of America ALJ administrative law judge ANSI American National Standards Institute APPA American Public Power Association ASTM American Society for Testing and Materials BLS Bureau of Labor Statistics BPA Bonneville Power Administration CFOI Census of Fatal Occupational Injuries CPL 02-01-038 the compliance directive for existing § 1910.269, CPL 02-01-038, “Enforcement of the Electric Power Generation, Transmission, and Distribution Standard” (June 18, 2003, originally CPL 2-1.38D) CPR cardiopulmonary resuscitation CRIEPI Central Research Institute of Electric Power Industry EEI Edison Electric Institute EIA Energy Information Administration E.O. Executive Order EPRI Electric Power Research Institute ERG Eastern Research Group, Inc. ESCI Electrical Safety Consultants International Ex. Exhibit 1 FCC Federal Communications Commission FEA Final Economic Analysis and Regulatory Flexibility Analysis FR flame-resistant 2 FRA flame-resistant apparel FRECC Farmers Rural Electric Cooperative Corporation FRFA Final Regulatory Flexibility Analysis FTE full-time equivalent [employee] IBEW International Brotherhood of Electrical Workers IEC International Electrotechnical Commission IEEE Institute of Electrical and Electronic Engineers IMIS OSHA's Integrated Management Information System IRFA Initial Regulatory Flexibility Analysis IRS Internal Revenue Service ISEA International Safety Equipment Association MAD minimum approach distance MAID minimum air-insulation distance MCC motor control center MTID minimum tool-insulation distance NA not applicable NAHB National Association of Home Builders NAICS North American Industry Classification System NAM National Association of Manufacturers NECA National Electrical Contractors Association NEPA National Environmental Policy Act of 1969 NESC National Electrical Safety Code NFPA National Fire Protection Association NIOSH National Institute for Occupational Safety and Health NRECA National Rural Electric Cooperative Association OIRA Office of Information and Regulatory Affairs OMB Office of Management and Budget OSH Act (or the Act) Occupational Safety and Health Act of 1970 OSHA Occupational Safety and Health Administration OSHRC Occupational Safety and Health Review Commission PPE personal protective equipment PPG portable protective gap PRIA Preliminary Regulatory Impact Analysis and Initial Regulatory Flexibility Analysis PSM process safety management p.u. per unit RIN regulatory information number SBA Small Business Administration SBAR Panel (or Panel) Small Business Advocacy Review Panel 1 Exhibits are posted on http://www.regulations.gov and are accessible at OSHA's Docket Office, Docket No. OSHA-S215-2006-0063, U.S. Department of Labor, 200 Constitution Avenue NW., Room N2625, Washington, DC 20210; telephone (202) 693-2350. (OSHA's TTY number is (877) 889-5627.) OSHA Docket Office hours of operation are 8:15 a.m. to 4:45 p.m., E.T. Throughout this notice exhibit numbers are referred to in the form Ex. XXXX, where XXXX is the last four digits of the full document number on http://www.regulations.gov. For example, document number OSHA-S215-2006-0063-0001 is referred to as Ex. 0001. Exhibit numbers referred to as “269-Ex.” are from the record for the 1994 final rule on §§ 1910.137 and 1910.269 and are contained in Docket Number OSHA-S015-2006-0645. 2 In citations, such as 70 FR 34822, “FR” means “ Federal Register .” SBREFA Small Business Regulatory Enforcement Fairness Act SER small entity representative SIC Standard Industrial Classification T maximum transient overvoltage, which is defined as the ratio of the 2-percent statistical switching overvoltage expected at the worksite to the nominal peak line-to-ground voltage of the system TCIA Tree Care Industry Association the 1994 § 1910.269 rulemaking the rulemaking in which existing §§ 1910.137 and § 1910.269 were developed and published on January 31, 1994 Tr. Transcript page number or numbers from the March 6-14, 2006, public hearing on the proposed rule 3 3 Exhibit numbers 0509 through 0515. Tr2. Transcript page number or numbers from the October 28, 2009, public hearing on the limited reopening of the proposed rule 4 4 Exhibit number 0571. TVA Tennessee Valley Authority ULCC Utility Line Clearance Coalition USDA United States Department of Agriculture UWUA Utility Workers Union of America WCRI Worker Compensation Research Institute Record citations. References in parentheses are to exhibits or transcripts in the rulemaking record. Documents from the Subpart V rulemaking record are accessible at the Docket Office under Docket OSHA-S215-2006-0063 (originally Docket S-215). (The 2006 transcripts, abbreviated as “Tr.,” are listed in this docket as “exhibits” 0509 through 0515. The 2009 transcript, abbreviated as “Tr2.,” is listed as “exhibit” 0571.) Because the subpart V proposal was based in large part on existing § 1910.269, OSHA has also relied on the record developed during the earlier rulemaking for that general industry standard (the 1994 § 1910.269 rulemaking). EEI “incorporate[d] into [the subpart V] record the entire record in . . . the record underlying existing Section 1910.269” (Ex. 0227). References in this preamble that are prefixed by “269” are to exhibits and transcripts in the rulemaking record from OSHA's 1994 rulemaking on § 1910.137 and § 1910.269 (59 FR 4320-4476, Jan. 31, 1994). These documents are accessible at the Docket Office under Docket OSHA-S015-2006-0645 (originally Docket S-015). 5 5 Documents in the records, with the exception of copyrighted material such as ASTM standards, are also generally available electronically at www.regulations.gov . The subpart V and 1994 § 1910.269 dockets are available at: http://www.regulations.gov/#!docketDetail;dct=FR+PR+N+O+SR+PS;rpp=250;po=0;D=OSHA-S215-2006-0063 and http://www.regulations.gov/#!docketDetail;dct=FR+PR+N+O+SR+PS;rpp=250;po=0;D=OSHA-S015-2006-0645, respectively. Some exhibits (see, for example, Exs. 0002, 0003, 0004, and 0400) contain records of accidents that are relevant to work covered by the final rule. In several instances in this preamble, OSHA has included hyperlinks to accident descriptions from those exhibits. Those hyperlinks link to one or more accident records in OSHA's IMIS system. The hyperlinked pages contain the most recent version of those records, which might have been edited since being placed in the record for this rulemaking. Consequently, the accident descriptions could differ slightly from the description included in the rulemaking record. However, the accident record numbers in the hyperlinked page match the accident record numbers in the relevant exhibit. B. Need for the Rule Employees performing work involving electric power generation, transmission, and distribution are exposed to a variety of hazards, including fall, electric shock, and burn hazards, that can and do cause serious injury and death. These workers are often exposed to energized parts of the power system, and the voltages involved are generally much higher than voltages encountered in other types of work. OSHA estimates that, on average, 74 fatalities and 444 serious injuries occur annually among these workers. (See Section VI, Final Economic Analysis and Regulatory Flexibility Analysis, later in the preamble, for a detailed discussion of the methodology used to develop these estimates.) Although some of these incidents may have been prevented with better compliance with existing safety standards, OSHA concludes that many, in fact almost half of, fatal and nonfatal injuries among employees covered by the final rule would continue to occur even if employers were in full compliance with existing standards. Discounting incidents that would potentially have been prevented with compliance with existing standards, an estimated additional 19.75 fatalities and 118.5 serious injuries will be prevented each year through full compliance with the final rule. (See Section VI, Final Economic Analysis and Regulatory Flexibility Analysis, later in the preamble, for a detailed discussion of the methodology used to develop these estimates.) This rulemaking will have the additional benefit of providing updated, clear, and consistent safety standards for electric power generation, transmission, and distribution work. OSHA currently has different standards covering construction and general industry work on electric power transmission and distribution systems. In most instances, the work practices used by employees are the same whether they are performing construction or general industry work. Which standard applies to a particular job depends upon whether the employer is altering the system (construction work) or maintaining the system (general industry work). For example, an employer replacing a cutout (disconnect switch) on a transmission and distribution system is performing construction work if it is upgrading the cutout, but general industry work if it is simply replacing the cutout with the same model. Since the work practices used by the employees would most likely be identical, the applicable OSHA standards should be as similar as possible. Inconsistencies between the construction and general industry standards can create difficulties for employers attempting to develop appropriate work practices for their employees. Currently, it is conceivable that, for work involving two or more cutouts, different and conflicting OSHA standards (that is, one for construction work, the other for general industry work) might apply. For this reason, employers and employees have told OSHA that it should make the two standards more consistent with each other. This final rule does so. (This issue is addressed in greater detail in the summary and explanation for § 1926.950, in Section V, Summary and Explanation of the Final Rule, later in this preamble.) Moreover, the final rule adds important updates to, and clarifies, existing standards. The existing standards for the construction of electric power transmission and distribution lines and equipment and for electrical protective equipment are contained in subpart V of OSHA's construction standards (29 CFR 1926.950 through 1926.960). Subpart V was promulgated on November 23, 1972, around 40 years ago (37 FR 24880, Nov. 23, 1972). Some of the technology involved in electric power transmission and distribution work has changed since then, and the current standards do not reflect those changes. For example, methods for determining minimum approach distances have become more exact since 1972, and the minimum approach distances in existing § 1926.950(c)(1) are not based on the latest methodology. The minimum approach distances in the final rule are more protective and more technologically sound than the distances specified in the existing standard. Even the newer general industry standards on the operation and maintenance of electric power generation, transmission, and distribution installations (29 CFR 1910.269) and electrical protective equipment (29 CFR 1910.137) are not entirely consistent with the latest advances in technology. Finally, the final rule clarifies certain confusing parts of the regulations. See, for example, Wisconsin Elec. Power Co. v. OSHRC, 567 F.2d 735, 738 (7th Cir. 1977) (“[r]evision of the regulations by any competent draftsman would greatly improve their clarity”). C. Accident Data OSHA has looked to several sources for information on accidents in the electric utility industry in preparing this final rule. Besides OSHA's own accident investigation files (recorded in the Agency's Integrated Management Information System (IMIS)), statistics on injuries are compiled by the Edison Electric Institute (EEI) and by the International Brotherhood of Electrical Workers (IBEW). Additionally, the Bureau of Labor Statistics (BLS) publishes accident data, including incidence rates for total cases, lost-workday cases, and lost workdays, and the National Institute for Occupational Safety and Health (NIOSH) publishes accident data as part of its Fatality Assessment and Control Evaluation Program. To develop estimates of the potential benefits associated with the standards during the proposal stage, CONSAD Corp., under contract to OSHA, researched and reviewed potential sources of useful data. CONSAD, in consultation with the Agency, determined that the most reliable data sources for this purpose were OSHA's IMIS data and the Census of Fatal Occupational Injuries developed by BLS. A majority of the accidents reviewed by CONSAD involved electrocutions or shocks. In addition, a significant percentage of victims (5.5 percent) suffered from burns to their arms, abdomen, or legs from electric arc blasts and flashes, and another sizeable group of victims (3.2 percent) died or sustained injuries after falling out of vehicle-mounted aerial lifts. 6 6 “ Analytical Support and Data Gathering for a Preliminary Economic Analysis for Proposed Standards for Work on Electric Power Generation, Transmission, and Distribution Lines and Equipment (29 CFR 1910.269 and 29 CFR 1926—Subpart V),” 2005, CONSAD Research Corp. (Ex. 0080). D. Significant Risk and Reduction in Risk Section 3(8) of the Occupational Safety and Health Act of 1970 (OSH Act or the Act) defines an “occupational safety and health standard” as “a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” 29 U.S.C. 652(8). This definition has been interpreted to require OSHA to make a threshold showing of “significant risk” before it can promulgate a safety or health standard. See, for example, Industrial Union Dept., AFL-CIO v. American Petroleum Institute ( Benzene ), 448 U.S. 607 (1980) (plurality opinion); see also, for example, UAW v. OSHA ( Lockout/Tagout II ), 37 F.3d 665 (D.C. Cir. 1994). The Agency's obligation to show significant risk is not, however, a “mathematical straitjacket.” Benzene, 448 U.S. at 655. In fact, the Agency has discretion to “determine, in the first instance, what it considers to be a ‘significant’ risk[,]” and it “is not required to support its finding that a significant risk exists with anything approaching scientific certainty.” Id. at 655-56; see also, for example, Public Citizen Health Research Group v. Tyson ( Ethylene Oxide ), 796 F.2d 1479, 1486 (D.C. Cir. 1986). Although OSHA makes significant risk findings for both health and safety standards, see Lockout/Tagout II, 37 F.3d 665, the methodology used to evaluate risk in safety rulemakings is more straightforward. Unlike the risks related to health hazards, which “may not be evident until a worker has been exposed for long periods of time to particular substances,” the risks associated with safety hazards such as burns and falls, “are generally immediate and obvious.” Benzene, 448 U.S. at 649, n.54. See also 59 FR 28594, 28599 (June 2, 1994) (proposed rule for longshoring and marine terminals, explaining that health hazards “are frequently undetectable because they are subtle or develop slowly or after long latency periods,” whereas safety hazards “cause immediately noticeable physical harm”). As OSHA explained in its lockout-tagout rulemaking: For health standards, such as benzene, risk estimates are commonly based upon mathematical models (e.g., dose response curves) and the benefits are quantified by estimating the number of future fatalities that would be prevented under various exposure reductions. [In contrast, f]or safety standards risk is based upon the assumption that past accident patterns are representative of future ones. OSHA estimates benefits [for safety standards] by determining the percentage of accidents that will be prevented by compliance with the standard. . . . [58 FR 16612, 16623, Mar. 30, 1993] OSHA's Final Economic and Regulatory Flexibility Analysis presents the Agency's assessment of the risks and benefits of this final rule. (See Section VI, Final Economic Analysis and Regulatory Flexibility Analysis, later in the preamble.) In these analyses, as previously mentioned, OSHA estimates that there are 74 fatalities and 444 serious injuries among employees covered by this final rule each year. The Agency has determined that almost half of those injuries and fatalities would have occurred even if employers were in full compliance with existing standards. (See Section VI, Final Economic Analysis and Regulatory Flexibility Analysis, later in the preamble, in which OSHA estimates that 53 percent of injuries and fatalities could have been prevented through full compliance with existing standards.) The accident data reviewed during this rulemaking, as explained in detail in the economic and regulatory analyses, reveals that the injuries and fatalities suffered by workers in power generation, transmission, and distribution result from electric shocks, burns from electric arcs, and falls, as well as other types of harmful incidents, including ones in which employees are struck by, struck against, or caught between, objects. Based on the large number of injuries and fatalities occurring in this industry each year, and the fact that existing standards are inadequate to prevent almost half of those incidents, OSHA has determined that employees working on electric power generation, transmission, and distribution installations are currently exposed to a significant risk of injury or death. 7 7 In industries in which worker exposure is less frequent than in other industries, the number of injuries or fatalities associated with the hazards covered by the final rule will most likely be less than that of industries that have a higher rate of exposure. But even for industries with low, negligible, or even no reported injuries or fatalities, the workers exposed to the hazards covered by the final rule face a “significant risk of material harm.” As such, there is a significant risk to any worker of any industry exposed to the hazards covered by the final rule. See, for example, Lockout/Tagout II, 37 F.3d at 670 (“even in industries with low or negligible overall accident rates, the workers who engage in the operations covered by the standard face a `significant risk of material harm'”); Associated Builders and Contractors, Inc. v. Brock, 862 F.2d 63, 67-68 (3d Cir. 1988) (where the Court ordered OSHA to expand its rule to cover additional industries, there was no need to make separate significant risk findings for those industries because “the significant risk requirement must of necessity be satisfied by a general finding concerning all potentially covered industries”). The Agency estimates that the changes implemented in this final rule will prevent 19.75 fatalities and 118.5 serious injuries each year. (See Section VI, Final Economic Analysis and Regulatory Flexibility Analysis, later in the preamble.) OSHA, therefore, concludes that this final standard substantially reduces the significant risk that currently exists at power generation, transmission, and distribution worksites. As noted in Section VI, Final Economic Analysis and Regulatory Flexibility Analysis, later in the preamble, the various new provisions and amendments being adopted target the hazards the Agency has identified as contributors to the significant risk associated with electric power generation, transmission, and distribution work. Therefore, each element of this final rule is reasonably necessary and appropriate to achieve the anticipated reduction in overall risk. No rulemaking participants meaningfully disputed OSHA's conclusion that the aforementioned estimates establish a significant risk for power generation, transmission, and distribution work. EEI, however, argued that OSHA has an obligation to make an independent significant risk showing for each of the hazards addressed by this rulemaking (See, for example, Exs. 0227, 0501; see also Ex. 0237 (comments of the American Forest & Paper Association).) OSHA does not agree that it is required to make multiple, hazard-specific significant risk findings. As OSHA has explained in prior rulemakings, “[v]ertical standards [such as § 1910.269 and subpart V of part 1926] apply specifically to a given industry” or type of work (59 FR 28596 (proposed rule for longshoring and marine terminals)). They generally address multiple hazards faced by employees performing the covered work. See, for example, 66 FR 5196 (Jan. 18, 2001) (steel erection standards address, among other hazards, risks from working under loads, dangers associated with landing and placing decking, and falls to lower levels); 62 FR 40142 (July 25, 1997) (standards covering longshoring and marine terminals address multiple hazards, including hazards associated with manual cargo handling and exposure to hazardous atmospheres); 52 FR 49592 (Dec. 31, 1987) (standard covering grain-handling facilities includes provisions related to fire and explosion hazards, as well as other safety hazards, such as the danger associated with entering bins, silos, and tanks). OSHA believes that vertical “standards can encourage voluntary compliance because they are directed to the particular problems of [an] industry” (59 FR 28596). The adoption of vertical standards is recognized as a legitimate exercise of OSHA's standard-setting authority under the OSH Act. See Forging Indus. Ass'n v. Secretary of Labor ( Noise ), 773 F.2d 1436, 1455 (4th Cir. 1985) (“[T]he Agency has determined that a particular industry should be made the subject of a vertical standard. . . . That decision was not arbitrary or capricious . . . . Nor does the use of a comprehensive vertical standard amount to a prohibited special treatment”). Although the Agency can identify the general types of hazards addressed by its vertical standards, and has done so in this rulemaking, there is no legal requirement for hazard-by-hazard significant risk findings in vertical standards. First, the DC Circuit Court of Appeals has already rejected the argument “that Benzene requires that the agency find that each and every aspect of its standard eliminates a significant risk faced by employees.” Ethylene Oxide, 796 F.2d at 1502, n. 16. Once OSHA makes a general finding of significant risk, the question becomes whether the requirements of the standard are reasonably related to the standard's purpose. See, for example, Noise, 773 F.2d at 1447. Second, when the Supreme Court first construed the OSH Act as imposing a significant risk requirement, it spoke in terms of the Agency making findings about unsafe workplaces, not individual hazards. Benzene, 448 U.S. at 642 (“before promulgating any standard, the Secretary must make a finding that the workplaces in question are not safe [and] a workplace can hardly be considered `unsafe' unless it threatens the workers with a significant risk of harm”). See also, for example, id. (framing the “significant risk” requirement as obligating OSHA “to make a threshold finding that a place of employment is unsafe—in the sense that significant risks are present and can be eliminated or lessened by a change in practices”); Texas Indep. Ginners Ass'n v. Marshall, 630 F.2d 398, 400 (5th Cir. 1980) (“[t]he Supreme Court recently ruled that the Act requires OSHA to provide substantial evidence that a significant risk of harm arises from a workplace or employment”). Third, courts have held that the OSH Act does not require the disaggregation of significant risk analyses along other lines. See, for example, Lockout/Tagout II, 37 F.3d at 670 (upholding OSHA's decision not to conduct individual significant risk analyses for various affected industries); American Dental Ass'n v. Martin, 984 F.2d 823, 827 (7th Cir. 1993) (OSHA is not required to evaluate risk “workplace by workplace”); Associated Builders and Contractors, 862 F.2d at 68 (“the significant risk requirement must of necessity be satisfied by a general finding concerning all potentially covered industries”). Requiring OSHA to make multiple, hazard-specific significant risk findings would place an unwarranted burden on OSHA rulemaking because of difficulties in specifically defining each of the hazards addressed by a vertical standard. 8 Hazards can be defined broadly, for example, falling from an elevation, or more narrowly, for example, falling from an elevated aerial lift while performing tree-trimming work. The outcome of the significant risk analysis called for by EEI would be largely (and somewhat arbitrarily) dependent on where along this vast spectrum OSHA defined the relevant dangers. 8 Indeed, disputes over how to define hazards are commonplace in enforcement cases under the general duty clause of the OSH Act. See, for example, Secretary of Labor v. Arcadian Corp., 20 BNA OSHC 2001 (OSHRC, Sept. 30, 2004); Secretary of Labor v. Inland Steel Co., 12 BNA OSHC 1968 (OSHRC, July 30, 1986); Secretary of Labor v. Pelron Corp., 12 BNA OSHC 1833 (OSHRC, June 2, 1986). OSHA reviewed the authority EEI relied on in support of the purported requirement for hazard-specific risk findings, but does not find it persuasive. First, EEI argued that the Supreme Court, in its Benzene decision, held that the Agency had to make separate significant risk findings for the air-contaminant and dermal-contact provisions of that standard (Ex. 0227). A close reading of the decision in that case reveals no such holding. Instead, the dermal-contact provisions in that case were remanded on the same basis that the air-contaminant provisions were rejected—namely that the provisions were not supported by any significant risk findings. See Benzene, 448 U.S. at 661-62. While the Court did suggest that OSHA needed to find that a prohibition on dermal contact was reasonably necessary and appropriate to address a significant risk, that is, that preventing dermal contact would reduce the overall risk associated with workplace exposure to benzene, it did not address whether a single significant risk finding could ultimately support both the dermal-contact and air-contaminant provisions in the standard. Id. Second, EEI relied on the Eleventh Circuit's decision in AFL-CIO v. OSHA ( PELs ), 965 F.2d 962 (11th Cir. 1992), which vacated and remanded OSHA's Air Contaminants Standard (Ex. 0227). That rule set permissible exposure limits for more than 400 toxic substances. Although in that case the court said that OSHA needed to explain its assessment of risk for each regulated substance, that rulemaking is readily distinguished from this final rule. In PELs, the various regulated substances were “unrelated” and had “little [in] common.” 965 F.2d at 972. Here, in contrast, the various hazards addressed by this final rule are closely related. They all arise at power generation, transmission, and distribution worksites and jointly contribute to the large number of injuries and fatalities suffered by covered workers. OSHA does not believe that the PELs decision limits its discretion to adopt provisions it deems reasonably necessary and appropriate to abate the existing electrocution, burn, fall, and other hazards that, together, result in covered employees being exposed to an overall workplace risk that is significant. Finally, EEI's reliance on the Agency's ergonomics rulemaking is misplaced. EEI pointed out that OSHA's risk assessment in its ergonomics rulemaking considered only accidents that resulted from hazards covered by that standard (Ex. 0227). But this interpretation offers no support for EEI's position, as the risk assessment in this rulemaking similarly considered only injuries and fatalities that occurred during the performance of work covered by this final rule (Ex. 0080). (See also Section VI, Final Economic Analysis and Regulatory Flexibility Analysis, later in the preamble.) Although OSHA does not agree that hazard-specific significant risk findings are necessary, the Agency believes that the record supports such findings for the critical hazards addressed in this rulemaking—namely electrocutions and electric shocks, burns from arc flashes, and falls. The Agency has found that a significant number of injuries and fatalities occur every year as a result of employee exposure to each of these hazards. (See Section VI, Final Economic Analysis and Regulatory Flexibility Analysis, later in the preamble.) Moreover, as EEI points out, “most of the hazards” addressed in this rulemaking “are already covered by the existing standards that OSHA [is] now . . . modify[ing] and supplement[ing]” (Ex. 0227). Furthermore, some of the hazards addressed by this rulemaking are already the subject of generally applicable hazard-specific horizontal standards. See, for example, 29 CFR part 1926, subpart K (electrical hazards) and subpart M (fall hazards). All of these existing standards were supported by findings of significant risk, and OSHA simply concludes that the additional provisions of this final rule are reasonably necessary and appropriate to reduce a substantial portion of the remaining significant risk at power generation, transmission, and distribution worksites. III. Development of the Final Rule A. History of the OSHA Standards OSHA first adopted standards for the construction of power transmission and distribution lines and equipment in 1972 (subpart V of 29 CFR part 1926). OSHA defines the term “construction work” in 29 CFR 1910.12(b) as “work for construction, alteration, and/or repair, including painting and decorating.” The term “construction” is broadly defined in § 1910.12(d) and existing § 1926.950(a)(1) to include the original installation of, as well as the alteration, conversion, and improvement of electric power transmission and distribution lines and equipment. The general industry standard at 29 CFR 1910.269 applies to the operation and maintenance of electric power generation, transmission, and distribution installations. OSHA adopted § 1910.269 on January 31, 1994. That standard is a companion standard to subpart V of the construction standards and addresses work to which subpart V did not apply. When promulgated, § 1910.269 was also based on the latest technology and national consensus standards. OSHA revised its Electrical Protective Equipment Standard in § 1910.137 at the same time § 1910.269 was promulgated. The revision of § 1910.137 eliminated the incorporation by reference of national consensus standards for rubber insulating equipment and replaced it with performance-oriented rules for the design, manufacture, and safe care and use of electrical protective equipment. OSHA published a proposed rule (the subpart V proposal) on June 15, 2005 (70 FR 34822). That document proposed revising the construction standard for electric power transmission and distribution work (29 CFR part 1926, subpart V) and the general industry standards for electric power generation, transmission, and distribution work (29 CFR 1910.269). That document also proposed a new construction standard for electrical protective equipment (29 CFR 1926.97) and revisions to the general industry standards for foot protection (29 CFR 1910.136) and electrical protective equipment (29 CFR 1910.137). Public comments were originally due by October 13, 2005, but in response to requests from interested parties, including EEI, OSHA extended the comment period 90 days to January 11, 2006 (70 FR 59290, Oct. 12, 2005). OSHA held an informal public hearing beginning on March 6, 2006, and ending on March 14, 2006. After the hearing, interested parties had until May 15, 2006, to submit additional information and until July 14, 2006, to file posthearing briefs (Tr. 1415). On October 22, 2008, OSHA reopened the record for 30 days to gather information from the public on specific questions related to minimum approach distances (73 FR 62942). EEI requested a public hearing and an additional 60 days to submit comments on the issues raised in the reopening notice (Ex. 0530). On September 14, 2009, OSHA opened the record for an additional 30 days to receive more comments on minimum approach distances and announced a public hearing to be held on October 28, 2009, addressing the limited issues raised in the two reopening notices (74 FR 46958). After the hearing, interested parties had until December 14, 2009, to submit additional information and until February 10, 2010, to file posthearing briefs (Tr2. 199). The record for this rulemaking consists of all prehearing comments, the transcripts of the two public hearings, all exhibits submitted prior to and during the two hearings, and posthearing submissions and briefs. Administrative Law Judge Stephen Purcell issued an order closing the record and certified the record to the Assistant Secretary of Labor for Occupational Safety and Health. The Agency carefully considered the entire record in preparing this final standard. B. Relevant Consensus Standards The National Electrical Safety Code (American National Standards Institute (ANSI) Standard ANSI/IEEE C2, also known as the NESC) contains provisions specifically addressing electric power generation, transmission, and distribution work. ANSI/IEEE C2 does not, however, address the full range of hazards covered by this final rule. It is primarily directed to the prevention of electric shock, although it does contain a few requirements for the prevention of falls and burns from electric arcs. The American Society for Testing and Materials (ASTM) has adopted standards related to electric power generation, transmission, and distribution work. ASTM Committee F18 on Electrical Protective Equipment for Workers has developed standards on rubber insulating equipment, climbing equipment, protective grounding equipment, fiberglass rod and tube used in live-line tools, and clothing for workers exposed to electric arcs. The National Fire Protection Association (NFPA) has adopted a standard on electrical safety for employees, NFPA 70E, Standard for Electrical Safety in the Workplace. Although it does not apply to electric power generation, transmission, or distribution installations, the NFPA standard contains provisions addressing work near such installations performed by unqualified employees, that is, employees who have not been trained to work on or with electric power generation, transmission, or distribution installations. It also contains methods for estimating heat energy levels from electric arcs and describes ways to protect employees from arc-flash hazards. The Institute of Electrical and Electronic Engineers (IEEE) writes standards for electric power generation, transmission, and distribution installations and for work on those installations. Many of these standards have been adopted by ANSI. Among these IEEE standards are: IEEE Std 516, IEEE Guide for Maintenance Methods on Energized Power-Lines, and IEEE Std 1048, IEEE Guide for Protective Grounding of Power Lines. OSHA recognizes the important role consensus standards can play in ensuring worker safety. A comprehensive list of consensus standards relating to electric power generation, transmission, and distribution work can be found in existing Appendix E to § 1910.269. OSHA proposed to add the same list as Appendix E to subpart V. OSHA considered the latest editions of all the standards listed in Appendix E in the development of this final rule. Any substantial deviations from these consensus standards are explained in Section V, Summary and Explanation of the Final Rule, later in this preamble. C. Advisory Committee on Construction Safety and Health Under 29 CFR parts 1911 and 1912, OSHA must consult with the Advisory Committee on Construction Safety and Health (ACCSH or the Committee), established pursuant to Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3701 et seq. ), in setting standards for construction work. Specifically, § 1911.10(a) requires the Assistant Secretary to provide ACCSH with a draft proposed rule (along with pertinent factual information) and give the Committee an opportunity to submit recommendations. See also § 1912.3(a) (“[W]henever occupational safety or health standards for construction activities are proposed, the Assistant Secretary [for Occupational Safety and Health] shall consult the Advisory Committee.”). OSHA has a long history of consulting with ACCSH on this rulemaking. On May 25, 1995, OSHA took a draft of the proposed construction standards to ACCSH, providing the Committee with a draft of the proposal and with a statement on the need to update the standards. The Committee formed a workgroup to review the materials, and the workgroup provided comments to OSHA. The Agency gave a status report on the proposal to the Committee on August 8, 1995, and an updated draft of the proposal to ACCSH on December 10, 1999. On February 13, 2003, OSHA gave ACCSH another status report and summarized the major revisions it had made to the proposal. On May 22, 2003, OSHA provided the Committee with the same copy of the draft proposal that had been provided to the small entity representatives who were participating in the Small Business Regulatory Enforcement and Fairness Act (SBREFA) proceedings, which were being conducted at that time. OSHA also explained the major issues being raised by the small entity representatives on the draft proposal. On May 18, 2004, ACCSH gave the Agency formal recommendations on the proposal. OSHA sought ACCSH's recommendations on the proposal generally, as well as on issues specifically related to host employer-contractor communications and flame-resistant clothing. ACCSH voted unanimously that: (1) The construction standards for electric power transmission and distribution work should be the same as the general industry standards for the same type of work; (2) it was necessary to require some safety-related communications between host employers and contractors; and (3) employees need to be protected from hazards posed by electric arcs through the use of flame-retardant clothing. ACCSH recommended, by unanimous vote, that OSHA issue its proposal, consistent with these specific recommendations. 9 9 ACCSH transcript for May 18, 2004, pages 224-239. This document can be viewed in the OSHA Docket Office or online at http://www.osha.gov . EEI suggested that OSHA had to seek additional input from ACCSH if it decided to rely on the recent work of the IEEE technical committee responsible for revising IEEE Std 516, which has not been presented to ACCSH, in developing the final rule's minimum approach-distance provisions (Tr2. 18-19). EEI is not correct. In making its assertion, EEI relies on Nat'l Constructors Ass'n. v. Marshall ( Nat'l Constructors ), 581 F.2d 960 (D.C. Cir. 1978). EEI's reliance on this case is misplaced. Although the court stated that the OSH Act and OSHA's procedural regulations (29 U.S.C. 655(b)(1); 29 CFR 1911.10(a)) place “a ‘stricter’ requirement on when, and how often, the agency must utilize the advisory committee procedure than does the [Administrative Procedure Act (APA)] with respect to public comment during informal rulemaking,” id. at 970, that statement in the decision is nonprecedential dicta. The court did not “decide how much stricter the requirement is” because, the court concluded, the rule at issue did not meet “even the APA's . . . standard.” Id. at 971 n.27. As such, the case stands, at most, for the proposition that OSHA must return to ACCSH where the final rule at issue does not meet the APA's “logical outgrowth” test. OSHA's consultation with ACCSH in this rulemaking was consistent with the Nat'l Constructors decision. The Nat'l Constructors court stated that OSHA had to engage in further consultation with ACCSH regarding its ground-fault circuit protection standard where the final rule recognized “assured equipment grounding conductor programs” as a method of compliance, but ACCSH had never had the opportunity to comment on that particular form of employee protection. The DC Circuit concluded that the compliance program in question was neither presented to ACCSH, nor “gr[e]w logically out of anything that was presented to, or heard from, the Committee.” Id. at 970—971. In this Subpart V rulemaking, in contrast, the basic requirement to adhere to minimum approach distances was presented to ACCSH. (See, for example, ACCSH Docket ACCSH 1995-2.) The Agency is simply refining the method used to establish the minimum approach distances 10 in light of technical progress that has been made since the proposal was reviewed by ACCSH. (For a complete discussion of the minimum approach-distance requirements and OSHA's rationale for adopting them, see the summary and explanation for final § 1926.960(c)(1), in Section V, Summary and Explanation of the Final Rule, later in this preamble.) 10 The basic equation for computing minimum approach distances in the final rule is the same as the one used in existing § 1910.269 and in the draft proposal submitted to ACCSH. In any event, ACCSH had an opportunity to comment on whether OSHA should rely on the work of the IEEE committee generally. ACCSH knew that OSHA might base the minimum approach distances for subpart V on existing § 1910.269. (See, for example, Exhibit 12 in Docket ACCSH 1995-2 and Exhibit 101-X in Docket ACCSH 1995-3.) In fact, ACCSH ultimately concluded in its recommendation that the construction standards for electric power transmission and distribution work should be the same as the general industry standards for the same type of work. As existing § 1910.269's minimum approach-distance requirements were derived from IEEE Std 516 (59 FR 4320, 4382-4384 (Jan. 31, 1994)), ACCSH was on notice that the work of the IEEE 516 committee might be used by the Agency in formulating the minimum approach-distance requirements for this final rule. That ACCSH did not specifically pass on the question of whether OSHA should derive its minimum approach-distance requirements from work done in the formulation of an IEEE standard that was not yet issued at the time of the ACCSH consultation is of no consequence. The OSH Act and OSHA's procedural regulation (29 U.S.C. 655(b)(1); 29 CFR 1911.10(a)) “make clear that the Assistant Secretary need only supply whatever information he has available to him at the time he submits his proposal to the Committee.” Nat'l Constructors, 581 F.2d at 968. As the Nat'l Constructors Court recognized, “by designing the Advisory Committee option as a procedural step that must precede public notice, comment, and the informal hearing, [Congress] assumed that the Committee would not be provided with all information that the Labor Department eventually developed on the subject.” Id. at 968 n.16. Thus, OSHA's action in the final rule is consistent with Nat'l Constructors. IV. Legal Authority The purpose of the OSH Act, 29 U.S.C. 651 et seq., is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” 29 U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary of Labor to promulgate and enforce occupational safety and health standards. 29 U.S.C. 654, 655(b), 658. A safety or health standard “requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” 29 U.S.C. 652(8). A safety standard is reasonably necessary or appropriate within the meaning of 29 U.S.C. 652(8) if: • It substantially reduces a significant risk of material harm in the workplace; • It is technologically and economically feasible; • It uses the most cost-effective protective measures; • It is consistent with, or is a justified departure from, prior Agency action; • It is supported by substantial evidence; and • It is better able to effectuate the purposes of the OSH Act than any relevant national consensus standard. Lockout/Tagout II, 37 F.3d at 668. In addition, safety standards must be highly protective. See, for example, id. at 669. A standard is technologically feasible if the protective measures it requires already exist, can be brought into existence with available technology, or can be created with technology that can reasonably be expected to be developed. See, for example, American Iron and Steel Inst. v. OSHA ( Lead II ), 939 F.2d 975, 980 (D.C. Cir. 1991) (per curiam ). A standard is economically feasible when industry can absorb or pass on the costs of compliance without threatening industry's long-term profitability or competitive structure. See, for example, American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 530 n. 55 (1981); Lead II, 939 F.2d at 980. A standard is cost effective if the protective measures it requires are the least costly of the available alternatives that achieve the same level of protection. See, for example, Lockout/Tagout II, 37 F.3d at 668. Section 6(b)(7) of the OSH Act authorizes OSHA to include among a standard's requirements labeling, monitoring, medical testing, and other information-gathering and information-transmittal provisions. 29 U.S.C. 655(b)(7). Finally, the OSH Act requires that when promulgating a rule that differs substantially from a national consensus standard, OSHA must explain why the promulgated rule is a better method for effectuating the purposes of the Act. 29 U.S.C. 655(b)(8). Deviations from relevant consensus standards are explained elsewhere in this preamble. V. Summary and Explanation of the Final Rule OSHA is adopting a new construction standard on electrical protective equipment, 29 CFR 1926.97, and is revising the standard on the construction of electric power transmission and distribution lines and equipment, 29 CFR part 1926, subpart V. The Agency is also revising the general industry counterparts to these two construction standards, 29 CFR 1910.137 and 1910.269, respectively. Finally, OSHA is revising its general industry standard on foot protection, 29 CFR 1910.136, to require employers to ensure that each affected employee uses protective footwear when the use of protective footwear will protect the affected employee from an electrical hazard, such as a static-discharge or electric-shock hazard, that remains after the employer takes other necessary protective measures. This section discusses the important elements of the final rule, explains the individual requirements, and explains any differences between the final rule and existing standards. This section also discusses issues that were raised at the two public hearings, significant comments received as part of the rulemaking record, and substantive changes from the language of the proposed rule. Unless otherwise noted, paragraph references in the summary and explanation of the final rule fall under the section given in the heading for the discussion. For example, except as otherwise noted, paragraph references in V.A, Section 1926.97, Electrical Protective Equipment, are to paragraphs in final § 1926.97. Except as noted, the Agency has carried proposed provisions into the final rule without substantive change. The final rule contains several differences from the proposal and existing §§ 1910.137 and 1910.269 that are purely editorial and nonsubstantive. For example, the Agency amended the language of some provisions to shift from passive to active voice, thereby making the standard easier to read. OSHA does not discuss explicitly in the preamble all of these differences. The purpose of these differences, unless otherwise noted, is to clarify the final standard. A. Section 1926.97, Electrical Protective Equipment Workers exposed to electrical hazards face a risk of death or serious injury from electric shock. According to BLS, there were 192 and 170 fatalities involving contact with electric current in 2008 and 2009, respectively ( http://www.bls.gov/iif/oshwc/cfoi/cftb0240.pdf and http://www.bls.gov/iif/oshwc/cfoi/cftb0249.pdf ). About half of these fatalities (89 in both years) occurred in construction ( id. ). 11 11 Similar data are available at http://www.bls.gov/iif/oshcfoi1.htm#2009 for each year back to 2003. The use of properly designed, manufactured, and cared-for electrical protective equipment helps protect employees from this risk. Therefore, OSHA is issuing final § 1926.97, Electrical protective equipment, which addresses the design, manufacture, and proper care of electrical protective equipment. In addition, OSHA is revising existing § 1910.137, which also contains provisions addressing the design, manufacture, and proper care of electrical protective equipment. For reasons described at length in this section of the preamble, OSHA concludes that the final rule will be a more effective means of protecting employees from the risk of electric shock than existing OSHA standards. The existing requirements for electrical protective equipment in construction work are in § 1926.951(a)(1), which only applies to the construction of electric power transmission and distribution lines and equipment. However, employers throughout the construction industry use electrical protective equipment, and OSHA believes that provisions for electrical protective equipment, as specified by final § 1926.97, should apply, not only to electric power transmission and distribution work, but to all construction work. Therefore, OSHA is issuing new § 1926.97, Electrical protective equipment, which applies to all construction work. Existing § 1926.951(a)(1) incorporates by reference the following six American National Standards Institute (ANSI) standards: Item ANSI Standard Rubber insulating gloves J6.6-1971 Rubber matting for use around electric apparatus J6.7-1935 (R1971) Rubber insulating blankets J6.4-1971 Rubber insulating hoods J6.2-1950 (R1971) Rubber insulating line hose J6.1-1950 (R1971) Rubber insulating sleeves J6.5-1971 These standards contain detailed specifications for manufacturing, testing, and designing electrical protective equipment. However, these standards have undergone several revisions since the 1971 publication date of existing subpart V and are now seriously out of date. Following is a complete list of the corresponding current national consensus standards: ASTM D120-09, Standard Specification for Rubber Insulating Gloves. ASTM D178-01 (Reapproved 2010), Standard Specification for Rubber Insulating Matting. ASTM D1048-12, Standard Specification for Rubber Insulating Blankets. ASTM D1049-98 (Reapproved 2010), Standard Specification for Rubber Insulating Covers. ASTM D1050-05 (Reapproved 2011), Standard Specification for Rubber Insulating Line Hose. ASTM D1051-08, Standard Specification for Rubber Insulating Sleeves. Additionally, there are now standards on the in-service care of insulating line hose and covers (ASTM F478-09), insulating blankets (ASTM F479-06 (2011)), and insulating gloves and sleeves (ASTM F496-08), which OSHA did not incorporate or reference in existing § 1926.951(a)(1). 12 12 The relevant ASTM standards are in the record as Exs. 0048, 0049, 0050, 0051, 0066, 0067, 0068, 0069, 0070. In several cases, the version of the consensus standard in the record is older than the version listed in the preamble. However, OSHA based final §§ 1926.97 and 1910.137 only on the ASTM documents and other data in the record. The preamble lists editions of the consensus standards not in the record because OSHA evaluated them for consistency with the final rule. OSHA determined that these later ASTM standards conform to the requirements of final §§ 1926.97 and 1910.137. See the discussion of the notes following paragraphs (a)(3)(ii)(B) and (c)(2)(ix) for the significance of this determination. OSHA derived proposed new § 1926.97 from these national consensus standards, but drafted it in performance terms. OSHA is carrying this approach forward into the final rule. The final rule relies on provisions from the consensus standards that are performance based and necessary for employee safety, but the final rule does not contain many of the detailed specifications from those standards. Thus, the final rule will provide greater flexibility for compliance. BGE commented that OSHA's performance-based approach leaves the standards “vague” and creates “opportunities for unsafe practices” (Ex. 0126). OSHA disagrees with this comment for the following reasons. The Agency recognizes the importance of the consensus standards in defining basic requirements for the safe design and manufacture of electrical protective equipment for employees. To this end, OSHA will allow employers to comply with the final rule by following specific provisions in the consensus standards. OSHA believes that the option of following these specific provisions addresses the commenter's concern about vagueness. However, OSHA determined that it would be inappropriate to adopt the consensus standards in toto in this rulemaking. First, each of the currently referenced standards has undergone several revisions since OSHA adopted the standards in existing § 1926.951(a)(1). Because of the continual process by which the consensus standards development organizations periodically revise their consensus standards, any specific editions that OSHA might adopt likely would be outdated within a few years. Additionally, since OSHA's rulemaking process is lengthy, it would not be practical for OSHA to revise its standards as often as necessary to keep pace with the changes in the consensus standards. Final § 1926.97 is flexible enough to accommodate changes in technology, obviating the need for constant revision. Wherever possible, OSHA wrote the final rule in performance terms to allow alternative methods of compliance that provide comparable safety to employees. Another difficulty with incorporating the consensus standards by reference is that they contain details that go beyond the scope of the OSHA standard and are not directly related to employee safety. In final § 1926.97, OSHA relied only on consensus standard provisions that are relevant to employee safety in the workplace. Furthermore, to make the requirements easier for employers and employees to use and understand, OSHA adopted language in the final rule that is simpler than that in the consensus standards. Because all relevant requirements are in the text of the regulations, employers will not need to refer to the consensus standards to determine their obligations under final § 1926.97. Although OSHA is no longer incorporating the consensus standards by reference, notes throughout the rule clarify that OSHA will deem compliance with the consensus standards listed in the notes to be compliance with the performance requirements of final § 1926.97. OSHA notes that it recently decided not to adopt a proposed performance-based approach when it revised the design requirements contained in several personal protective equipment standards (74 FR 46350, Sept. 9, 2009). In issuing that final rule, OSHA reasoned that “widespread opposition” to, and misunderstanding of, the proposal indicated “possible misapplication . . . if adopted” (74 FR 46352). This rationale does not apply to this rulemaking. First, there was no widespread opposition to the proposed performance-based approach in this rulemaking. A number of commenters did request that OSHA deem employers that are in compliance with all future revisions of the listed consensus standards as being in compliance with the final rule (see, for example, Exs. 0156, 0180, 0183, 0202, 0206, 0229, 0231, 0239). The Agency believes that the performance-based approach it adopts in final § 1926.97 will provide these commenters with the flexibility they requested by permitting employers to follow future versions of consensus standards so long as those future versions meet the final rule's performance-based criteria. Second, OSHA adopted a performance-based approach when it previously revised existing § 1910.137 in 1994 (59 FR 4323-4325). Several participants in the 1994 rulemaking supported a performance-based approach (59 FR 4324). Third, OSHA believes that harmonizing § 1926.97 and § 1910.137 will reduce misapplication by the regulated community and, thereby, reduce the risk of electric shock. Promulgating inconsistent standards would increase misapplication by the regulated community and, consequently, increase the risk of electric shock. Finally, OSHA has had no difficulty enforcing § 1910.137 since issuing it in 1994. Regarding the commenters' requests that OSHA deem employers that are in compliance with all future revisions of the listed consensus standards as being in compliance with the final rule, OSHA has no basis on which to find that future revisions of the consensus standards will provide suitable guidance for compliance with the performance criteria of the final rule. Revised consensus standards may or may not meet the final rule's performance criteria. If a revised consensus standard does not satisfy this final rule's performance criteria, however, the Agency may consider compliance with that consensus standard to be a de minimis condition if the consensus standard clearly provides protection equal to, or greater than, the protection provided by § 1926.97. 13 13 De minimis conditions are conditions in which an employer implemented a measure different from one specified in a standard, but that has no direct or immediate relationship to safety or health. The Agency does not issue citations or penalties for de minimis conditions, nor is the employer required to bring the workplace into compliance, that is, there are no abatement requirements. Pursuant to OSHA's de minimis policy, which is set forth in OSHA Instruction CPL 02-00-148 (“Field Operations Manual”), a de minimis condition exists when an employer complies with a consensus standard rather than with the standard in effect at the time of the inspection and the employer's action clearly provides equivalent or more effective employee protection. An employer seeking to rely on an updated consensus standard may evaluate for itself whether the consensus standard meets the performance criteria contained in final § 1926.97. An employer that is unsure about whether a revised consensus standard meets the OSHA standard's performance criteria may seek guidance from OSHA. If a revised consensus standard does not appear to meet the OSHA standard's performance criteria, but the employer nonetheless wants to follow the revised consensus standard, the employer should seek guidance from OSHA as to whether the Agency would consider an employer's following the revised consensus standard to be a de minimis condition. 14 14 Note that this approach applies to the use of any consensus standard referenced in the final rule. Moreover, the same principles described with respect to subsequent versions of the consensus standards also apply to earlier versions of the consensus standards. Some rulemaking participants asked OSHA to provide the applicable consensus standards to employers at no cost. (See, for example, Exs. 0156, 0161, 0183, 0202, 0206, 0229, 0231, 0233; Tr. 1287-1288.) For instance, Mr. Terry Williams with the Electric Cooperatives of South Carolina stated: “If OSHA is to rely on procedures that it does not describe in full, . . . the agency should provide a cost-free way for employers to review these procedures to make sure they are following them” (Ex. 0202). Mr. Don Adkins with Davis H. Elliot Construction Co. stated that the “cost of securing and reviewing these voluntary standards place[s] a financial burden on small employers” (Ex. 0156). OSHA is rejecting these requests. The Agency stated the rule in performance-based terms, which allows employers flexibility in complying with the rules. The Agency understands that employers may want additional guidance in terms of precise procedures or detailed specifications to follow. Final § 1926.97 references relevant consensus standards to provide such additional guidance, but those standards are not mandatory. In any event, even when OSHA incorporates consensus standards by reference, the Agency does not provide those consensus standards to employers at no cost. Many consensus standards are copyrighted documents; and, in those cases, the copyright holder has certain legal rights regarding the public distribution of those documents. Note that some consensus standards development organizations, for example, NFPA, do provide free, view-only access to their standards ( http://www.nfpa.org/itemDetail.asp?categoryID=279&itemID=18123&URL=Codes%20&%20Standards/Code%20development%20process/Online%20access ). 15 OSHA also will continue to explore other ways of informing the regulated community about applicable compliance obligations specified by the final rule. 15 For instance, NFPA 70E, Standard for Electrical Safety in the Workplace, one of the documents listed in Appendix G to Subpart V, described later in this section of the preamble, is available at http://www.nfpa.org/aboutthecodes/AboutTheCodes.asp?DocNum=70E&cookie_test=1 . Select either the 2009 or 2012 edition from the drop-down box labeled “Edition to display” and click the link labeled “View [selected] edition online.” Note that registration with NFPA is required to view the standard. Moreover, employers can often rely on the assurances of third parties that equipment or test methods meet the listed consensus standards. First, OSHA expects that employers will typically get the assurance of manufacturers that electrical protective equipment is capable of withstanding the appropriate electrical proof tests required by final paragraphs (a) and (b). In this regard, an employer can simply look for equipment labeled as meeting the listed consensus standards. Manufacturers attest, through such a label, typically required by the relevant consensus standard, that their equipment passed the requisite tests. Second, it is OSHA's understanding that many employers, particularly small employers, do not test their own equipment to determine whether employees can use the equipment, as required by final paragraph (c). Instead, these employers send the equipment to an electrical laboratory for testing (see, for example, the testimony of Mr. Frank Brockman of Farmers Rural Electric Cooperative Corporation about the use of testing laboratories, Tr. 1301-1302). It is OSHA's understanding that, as a matter of practice, such laboratories follow the test methods in the applicable consensus standards for testing a wide range of products (see, for example, Ex. 0211). 16 To determine whether employees can use the equipment in accordance with final paragraph (c), employers can rely on the assurance of these testing laboratories that they followed the listed consensus standards, as well as the requirements of OSHA's standard. 16 When a question arises as to the validity of a test method a laboratory is using, OSHA will investigate the validity of the method. OSHA expects that, when consensus standards development organizations revise their consensus standards, manufacturers' labels will certify that the equipment meets the latest consensus standards, and that testing laboratories will use the test methods in the latest consensus standards, rather than the consensus standards listed in the notes. OSHA is sympathetic to concerns that employers, especially small businesses, do not have the resources to purchase and check whether revised consensus standards meet the final rule's performance criteria. As discussed previously, an employer that does not have the resources to purchase and review an updated consensus standard (indeed, any employer) may request guidance from OSHA on whether compliance with an updated consensus standard would conform to this final rule or bring the employer within OSHA's de minimis policy. In the final rule, OSHA reworded the headings for paragraphs (a), (b), and (c) to more accurately reflect the content of the respective paragraphs. Paragraph (a). Paragraph (a) of § 1926.97 addresses the design and manufacture of the following types of rubber insulating equipment: Blankets, matting, covers, line hose, gloves, and sleeves. 17 (Paragraph (b) of § 1926.97 contains general requirements for other types of insulating equipment (see the discussion of this paragraph later in this section of the preamble).) Paragraphs (a) and (c) of proposed § 1926.97 were based on existing § 1910.137(a) and (b); however, the proposal added Class 00 equipment to the classes addressed by the existing provisions to reflect the coverage of this new class of equipment in the consensus standards (Exs. 0048, 0051). This class of electrical protective equipment is used with voltages of 500 volts or less. OSHA received no comments on the proposed addition of Class 00 electrical protective equipment. 17 The language in proposed paragraph (a) has been editorially revised in the final rule to make it clearer that the paragraph applies to rubber insulating equipment only. Paragraph (a)(1)(i), which is being adopted without change from the proposal, requires blankets, gloves, and sleeves to be manufactured without seams. This method of making the protective equipment minimizes the chance that the material will split. Because they are used when workers handle energized lines, gloves and sleeves are the only defense an employee has against electric shock. Additionally, the stresses placed on blankets, gloves, and sleeves by the flexing of the rubber during normal use could cause a seam to separate from tensile or shear stress. The prohibition on seams does not apply to the other three types of electrical protective equipment covered by paragraph (a) (covers, line hose, and matting). These types of equipment generally provide a more indirect form of protection because they insulate the live parts from accidental, rather than intended, contact. Moreover, they are not usually subject to similar amounts or types of flexing and, thus, are not subject to the same stress. 18 18 Flexing can cause different types of stress on rubber, including tensile, compression, and shear stress. Rubber insulating line hose and covers are subject to the greatest amount of flexing while employees are installing them on an energized part. However, employees install this equipment either with live-line tools or while wearing rubber insulating gloves and sleeves. Thus, when seam separation is likely, the employee is protected by other means. Rubber insulating matting is generally laid on the floor and is not subject to the type of flexing that is likely to cause separation. Paragraph (a)(1)(ii), which is being adopted with one modification from the proposal, requires electrical protective equipment to be marked to indicate its class and type. The class marking indicates the voltage with which the equipment can be used; 19 the type marking indicates whether the equipment is ozone resistant. These markings enable employees to know the uses and voltages for which the equipment is suited. This provision also permits equipment to contain other relevant markings, for example, the manufacturer's name, the size of the equipment, or a notation that the equipment is manufactured in accordance with the relevant consensus standards. 19 The maximum use voltages for individual classes of equipment are provided in Table E-4, discussed under the summary and explanation for paragraph (c)(2)(i), infra. Proposed paragraphs (a)(1)(ii)(G) and (a)(1)(ii)(H) would have required rubber insulating equipment “other than matting” to be marked as Type I or Type II to indicate whether or not it was ozone-resistant. Mr. James Thomas, President of ASTM International, submitted comments recommending that the quoted language be deleted from these paragraphs because the “type classification denotes the manufacturing material being either Nonresistant to Ozone (Type I) or Resistant to Ozone (Type II) and applies to all [rubber insulating equipment], including [m]atting” (Ex. 0148). OSHA agrees that the ASTM standards require matting to be marked with the type to indicate whether or not it is ozone-resistant, and the Agency has adopted the commenter's recommendation in the final rule. Mr. Leo Muckerheide of Safety Consulting Services recommended that OSHA require marking the maximum use voltage on electrical protective equipment, stating: Many electrical workers work with multiple voltages and are infrequent users of electrical protective equipment. Therefore, expecting them to remember which class to use with which voltage is a potentially hazardous problem. This problem can be easily eliminated by having the maximum use voltage marked on the electrical protective equipment. [Ex. 0180] OSHA rejects this recommendation. First, workers using electrical protective equipment receive training that ensures that they know which class of equipment to use on which voltage. The record demonstrates that most of the workers covered by § 1910.269 and subpart V are highly trained (see, for example, Tr. 1228) and use electrical protective equipment to work on energized lines on a regular, often daily, basis (see, for example, Tr. 394, 889, 1218-1219). Furthermore, several OSHA standards require training for employees working on or near exposed energized parts, when electrical protective equipment would also be required. For instance, final §§ 1910.269(a)(2)(ii)(D) and 1926.950(b)(2)(iv) require training in the use of electrical protective equipment for qualified employees performing electric power generation, transmission, and distribution work. Paragraph (c)(2) of § 1910.333 contains a similar requirement for workers performing other types of general industry electrical work. Paragraph (b)(2) of § 1926.21 contains training requirements for workers performing construction work. Although this requirement is more general than the training requirement in this final standard, § 1926.21 requires training in OSHA standards applicable to the employee's work environment. Second, electrical protective equipment meeting the applicable consensus standards is manufactured with the Class ratings included, but generally without labels for maximum use voltages. (See, for example, Exs. 0048, 0049, 0050, 0066, 0067, 0068.) Requiring electrical protective equipment to be marked with its maximum use voltage would likely force employers to mark the equipment themselves. OSHA believes that the permanent class-rating marking placed on electrical protective equipment by the manufacturer provides adequate information and is less likely to wear off over the useful life of the equipment than any marking put in place by an employer. Thus, the Agency concludes that a requirement for marking the maximum use voltage on electrical protective equipment is unnecessary. Mr. Frank Owen Brockman, representing Farmers Rural Electric Cooperative Corporation, recommended that OSHA also require that the markings include the company testing the equipment, the test date, and owners of the equipment (Ex. 0173). He did not explain how including this additional information in the markings would better protect employees. Moreover, although requiring the employer to note the date equipment is tested does enhance worker protection, final paragraph (c)(2)(xii) of § 1926.97 addresses this matter by requiring the employer to certify that equipment has successfully passed the periodic testing required by the final rule and by requiring this certification to identify the equipment that passed the test and the date it was tested. OSHA agrees with Mr. Brockman that keeping workers aware of the date of last testing would enhance worker protection. Therefore, OSHA revised the language in final paragraph (c)(2)(xii) to also require that the certification required by the rule be made available to employees or their authorized representatives. It should be noted that, although not required, the markings suggested by Mr. Muckerheide and Mr. Brockman are permitted under paragraph (a)(1)(ii)(I). Paragraph (a)(1)(iii) requires all markings to be nonconductive and to be applied so as not to impair the insulating properties of the equipment. OSHA did not receive any comments on this provision in the proposal and has carried it forward without change into the final rule. This requirement ensures that no marking interferes with the protection to be provided by the equipment. Paragraph (a)(1)(iv), which is being adopted without change from the proposal, requires markings on gloves to be confined to the cuff area. 20 As OSHA explained in the preamble to the proposed rule, markings in other areas could possibly wear off (70 FR 34828). Moreover, having the markings in one place will allow the employee to determine the class and type of glove quickly. Finally, as discussed later in this section of the preamble, final paragraph (c)(2)(vii) requires that rubber gloves normally be worn under protector gloves. Because a protector glove is almost always shorter than the corresponding rubber glove with which it is worn, and because the cuff of the protector glove can easily be pulled back without removal, it is easy to see markings on the cuff portion of the rubber glove beneath. Any marking provided on the rubber glove in an area outside of the cuff could not be seen with the protector glove in place. 20 The cuff area is the area near the reinforced edge of the glove. Paragraph (a)(2) of final § 1926.97 contains electrical requirements for rubber insulating blankets, matting, line hose, gloves, and sleeves. As previously discussed, this provision uses performance language, and does not contain a lengthy discussion of specific test procedures. Paragraph (a)(2)(i), which is being carried forward from the proposed rule, requires electrical protective equipment to be capable of withstanding the ac proof-test voltages in Table E-1 or the dc proof-test voltages in Table E-2 of the standard. 21 The proof-test voltages listed in these tables have been derived from the current ASTM standards, which also contain detailed test procedures that can be used to determine whether electrical protective equipment is capable of withstanding these voltages. As previously discussed, these details were not included in the proposed rule, and this approach is being carried forward in the final rule. Paragraph (a)(2)(i)(A) replaces those details with a performance-oriented requirement that any proof test can be used as long as it reliably indicates that the equipment can withstand the proof-test voltage involved. 21 Existing § 1910.137 contains Table I-2 through Table I-6, and the proposal did not redesignate those tables. The final rule revises all of § 1910.137 so as to redesignate the tables, starting with Table I-1. Consequently, existing Table I-2 corresponds to Table I-1 in the final rule, existing Table I-3 corresponds to Table I-2 in the final rule, existing Table I-4 corresponds to Table I-3 in the final rule, existing Table I-5 corresponds to Table I-4 in the final rule, and existing Table I-6 corresponds to Table I-5 in the final rule. Mr. Muckerheide with Safety Consulting Services stated that the standard for rubber insulating gloves, ASTM D120, lists a 280-millimeter glove instead of the 267-millimeter glove listed in Table E-1 in the proposed rule (Ex. 0180). He recommended making OSHA's standard consistent with the ASTM standard or explaining the difference in the standard. OSHA is revising Table E-1 from the proposal in response to this comment. OSHA based proposed Table E-1 on Table I-2 in existing § 1910.137, which, in turn, was based on the 1987 edition of ASTM D120. Section 10.3.1 of ASTM D120-1987 lists four standard lengths for Class 0 rubber insulating gloves: 279, 356, 406, and 457 millimeters. Table 2 in that edition, however, listed 267 millimeters as the shortest length glove even though the shortest standard length was 279 millimeters. Unlike the 1987 edition of the consensus standard, the latest edition, ASTM D120-2009, rounds up the standard metric sizes. Thus, the relevant consensus standards for rubber insulating gloves list four standard sizes of 280, 360, 410, and 460 millimeters for Classes 00, 0, 1, 2, 3, and 4 gloves. The table in the 2009 edition of the consensus standard corresponding to Table 2 in the 1987 edition lists a 280-millimeter glove as the shortest one. Based on this information, OSHA concludes that the appropriate length for the shortest glove is 280 millimeters. In addition, the Agency does not consider the difference between the 280-millimeter length recommended by Mr. Muckerheide and the 267-millimeter proposed length to be substantial. The 1987 and 2009 editions of the consensus standard each permit a glove to vary from the standard length by as much as 13 millimeters. Thus, a 280-millimeter glove can be as short as 267 millimeters. However, to ensure consistency with the latest consensus standard, OSHA is adopting, in Table E-1, both the 280-millimeter glove length in place of the proposed 267-millimeter length and the rounded-up metric sizes, as listed in the latest edition of the consensus standard. Paragraph (a)(2)(i)(B), which is being adopted as proposed, requires the proof-test voltage to be applied continuously for 1 minute for insulating matting and 3 minutes for other insulating equipment. These times are derived from on the proof-test times given in the ASTM design standards and are appropriate for testing the design capabilities of electrical protective equipment. Paragraph (a)(2)(i)(C), which is being adopted as proposed, requires rubber insulating gloves to be capable of withstanding the ac proof-test voltage indicated in Table E-1 of the standard after a 16-hour water soak. If rubber insulating gloves absorb water, a reduction in insulating properties will result. Electrical work is sometimes performed in the rain, and an employee's perspiration is often present while the gloves are in use, so water absorption is a critical property. The soak test is needed to ensure that rubber insulating gloves can withstand the voltage involved under these conditions. It should be noted that the soak test is a separate test from the initial proof test. Gloves must be capable of passing both tests. Paragraph (a)(2)(ii), which is being adopted as proposed, prohibits the 60-hertz ac proof-test current from exceeding the values specified in Table E-1 at any time during the test period. The currents listed in the table have been taken from ASTM D120-09. This provision in the final rule is important because, when an ac proof test is used on gloves, the resulting proof-test current gives an indication of the validity of the gloves' make-up, the dielectric constant of the type of material used, its thickness, and the total area under test. Under paragraph (a)(2)(ii)(A), which is being adopted without change from the proposal, the maximum current for ac voltages at frequencies other than 60 hertz is computed from the direct ratio of the frequencies. This provision ensures that maximum current is equivalent for varying frequencies. Paragraph (a)(2)(ii)(B), which is being adopted as proposed, specifies that gloves to be tested be filled with and immersed in water to the depth given in Table E-3 and that water be added to or removed from the glove as necessary to ensure that the water level is the same inside and outside the glove. Table E-3 is derived from ASTM D120 and is valid for the proof-test currents listed in Table E-1. During the ac proof test, a gloves is filled with, and immersed in, water, and the water inside and outside the glove forms the electrodes. The ac proof-test current is dependent on the length of the portion of the glove that is out of the water. Because the proof-test current is a function of immersion depth, it is important to specify the depth in the rule. 22 22 Atmospheric conditions might invalidate the test results at the clearances specified in Table E-3. For instance, under certain atmospheric conditions, the air between the water inside and outside the glove, which forms the two electrodes, might flash over, and thereby invalidate the test results and damage the glove. As another example, some atmospheric conditions can lead to excessive corona and the formation of ozone that ventilation cannot sufficiently dissipate. To account for these atmospheric conditions, final Table E-3 contains a note that provides that, if atmospheric conditions make these clearances impractical, the clearances may be increased by a maximum of 25 mm. (1 in.). Paragraph (a)(2)(ii)(C) requires that, after the 16-hour water soak specified in paragraph (a)(2)(i)(C), the 60-hertz proof-test current not exceed the values given in Table E-1 by more than 2 milliamperes. The allowable proof-test current must be increased for proof tests on gloves after a 16-hour water soak because the gloves absorb a small amount of water, which results in slightly increased current during the test. The final rule was derived from ASTM D120, which allows an increase in the proof-test current of 2 milliamperes. If the proof-test current increases more than 2 milliamperes, it indicates that the gloves absorbed too much water. OSHA has revised this provision in the final rule to indicate more clearly that it is a requirement rather than an exception. Paragraph (a)(2)(iii), which is being adopted without change from the proposed rule, prohibits electrical protective equipment that has been subjected to a minimum breakdown voltage test from being used to protect employees from electrical hazards. The relatively high voltages used in testing electrical protective equipment for minimum breakdown voltage can damage the insulating material under test (even if the equipment passes). The intent of this rule is to prohibit the use of equipment that has been tested for minimum breakdown voltage under conditions equivalent to those in the ASTM standards, because minimum breakdown tests are destructive. Such tests are performed only on equipment samples that are to be discarded. Paragraph (a)(2)(iv), which is being adopted as proposed, requires ozone-resistant material (Type II) to be capable of withstanding an ozone test that can reliably indicate that the material will resist ozone exposure in actual use. Standardized ozone tests are given in the ASTM specifications listed in the note following paragraph (a)(3)(ii)(B), and compliance with these specifications will be deemed compliance with this OSHA requirement. Around high-voltage lines and equipment, a luminous discharge, called electric corona, can occur due to ionization of the surrounding air caused by a voltage gradient that exceeds a certain critical value. The blue corona discharge is accompanied by a hissing noise and by ozone, which can cause damage to certain types of rubber insulating materials. Therefore, when there is a chance that ozone may be produced at a work location, electrical protective equipment made of ozone-resistant material is frequently used. The final rule ensures that ozone-resistant material will, in fact, be resistant to the deteriorating effects of the gas. The final rule also provides that visible signs of ozone deterioration, such as checking, cracking, breaks, and pitting, are evidence of failure to meet the requirements for ozone-resistant material. 23 23 ASTM F819-10, Standard Terminology Relating to Electrical Protective Equipment for Workers, which is listed in the note following paragraph (a)(3)(ii)(B), defines “ozone cutting and checking” as: “Cracks produced by ozone in a material under mechanical stress.” Paragraph (a)(3) addresses the workmanship and finish of electrical protective equipment. Because physical irregularities can interfere with the insulating properties of the equipment and thus reduce the protection it affords, paragraph (a)(3)(i) prohibits the presence of physical irregularities that can adversely affect the insulating properties of the equipment and that can be detected by the tests or inspections required under other provisions in § 1926.97. In the final rule, OSHA has revised the language for this provision to clarify that “harmful physical irregularities” (the term used in the proposal) means “physical irregularities that can adversely affect the insulating properties of the equipment.” OSHA recognizes that some minor irregularities are nearly unavoidable in the manufacture of rubber goods, and these imperfections may be present in the insulating materials without significantly affecting the insulation. Paragraph (a)(3)(ii), which is being adopted without change from the proposal, describes the types of imperfections that are permitted. Even with these imperfections, electrical protective equipment must be capable of passing the electrical tests specified in paragraph (a)(2). Since paragraph (a) of final § 1926.97 is written in performance-oriented language, OSHA has included a note at the end of the paragraph stating that rubber insulating equipment meeting the requirements of the listed ASTM standards will be deemed in compliance with the performance requirements of final § 1926.97(a). This list of ASTM standards references the latest revisions of those documents. The Agency has reviewed the referenced ASTM standards and has found them to provide suitable guidance for compliance with the performance criteria of § 1926.97(a). 24 24 See the extended discussion, earlier in this section of the preamble, on how to address future revisions of the listed consensus standards, as well as earlier versions of the listed consensus standards. Paragraph (b). Paragraph (b) of final § 1926.97 addresses electrical protective equipment other than the rubber insulating equipment addressed in paragraph (a). Equipment falling under this paragraph includes plastic guard equipment, insulating barriers, and other protective equipment intended to provide electrical protection to employees. Mr. Steven Theis, representing MYR Group, requested that OSHA clarify that equipment complying with the ASTM and IEEE consensus standards mentioned in the proposal would constitute compliance with the final rule (Ex. 0162). In the proposal, OSHA pointed to ASTM F712. OSHA has reviewed ASTM F712-06 (2011) and has found that it provides suitable guidance for plastic guard equipment that employers can use to comply with final § 1926.97(b). To clarify the standard, OSHA has added a new note to paragraph (b) to indicate that OSHA will consider plastic guard equipment to conform to the performance requirements of paragraph (b) if it meets, and is used in accordance with, ASTM F712-06 (2011). In the proposal, the Agency also pointed to IEEE Std 516, Guide for Maintenance Methods on Energized Power Lines, as support for the electrical criteria in proposed paragraph (b). The Agency has not referenced this consensus standard in the final rule. The IEEE standard does not contain specifications or test methods for electrical protective equipment. Instead, that consensus standard contains work methods for live-line work, including criteria for evaluating insulating tools and equipment. The Agency notes that the criteria for evaluating insulating tools and equipment specified in the IEEE standard are equivalent to the design criteria for electrical protective equipment contained in paragraph (b) in the final rule. Paragraph (b)(1), which is being adopted without substantive change from the proposed rule, requires electrical protective equipment to be capable of withstanding any voltage that might be imposed on it. The voltage that the equipment must withstand includes transient overvoltages, as well as the nominal voltage that is present on an energized part of an electric circuit. Equipment withstands a voltage if it maintains its integrity without flashover or arc through. Equipment conforming to a national consensus standard for that type of equipment will generally be considered as complying with this rule if that standard contains proof testing requirements for the voltage involved. In the proposal, OSHA considered accepting electrical protective equipment that was capable of passing a test equivalent to that described in ASTM F712 or IEEE Std 516 for types of equipment not addressed by any consensus standard. OSHA invited comments on whether these standards contain suitable test methods and whether equipment passing those tests should be acceptable under the OSHA standard. Rulemaking participants generally agreed that the consensus standards provide suitable guidance for the equipment they addressed. (See, for example, Exs. 0162, 0230.) For instance, IBEW stated: The test methods referenced in these standards are suitable for the types of equipment they are designed for . . . [This] equipment [has] proven to be acceptable for use in this industry. [Ex. 0230] Mr. Steven Theis of MYR Group agreed that the “specified standards contain suitable test methods” (Ex. 0162). As noted previously, OSHA has reviewed ASTM F712-06 (2011) and found that it provides suitable guidance for compliance with final paragraph (b). The Agency has included a note in the final rule to indicate that plastic guard equipment is deemed to conform to the performance requirements of paragraph (b) if the equipment conforms to that consensus standard. ASTM maintained that none of the ASTM standards listed in the proposed standard contain an impulse test method for transient overvoltages (Ex. 0148). The organization recommended that the final rule reflect the current referenced consensus standards. ASTM misconstrues paragraph (b)(1) of the final rule. Paragraph (b)(1) of the final rule does not require impulse testing as ASTM alleges. Rather, it is a performance requirement that equipment be capable of withstanding both the steady-state voltages and transient (or impulse) overvoltages, to which it will be subjected. Both types of voltages can appear across the equipment during use. (See the summary and explanation for final § 1926.960(c)(1), later in this section of the preamble, for a discussion of maximum transient overvoltages that can appear on electric power lines and equipment.) The typical test method contained in the ASTM standards for determining minimum breakdown voltage (or withstand voltage) requires testing at substantially higher voltages than those on which the equipment will be used. (See, for example, Exs. 0048, 0053, 0071.) In addition, minimum breakdown voltage testing is performed using a steadily rising ac voltage, in contrast to impulse testing, in which the overvoltage is applied for a very short period ( id. ). As noted in IEEE Std 516-2009, the existing standards for insulating tools and equipment do not address whether equipment passing the ac withstand voltage tests in those standards will also withstand transient voltage stresses (Ex. 0532). However, the IEEE standard suggests the use of a 1.3 ratio to convert ac withstand voltages to impulse, or transient, voltages ( id. ). While the IEEE standard notes that research in this area is ongoing, OSHA concludes that, in the absence of better information, employers may rely on this ratio and multiply the ac minimum breakdown voltage for protective equipment by this value to determine if that equipment can withstand the expected transient overvoltages on energized circuits. For example, insulating equipment with a minimum breakdown, or withstand, voltage of 20,000 volts is capable of withstanding a maximum transient overvoltage of 26,000 volts. This equipment would be acceptable for use to protect employees from phase-to-ground exposures on a circuit operating at 15-kilovolt, phase- to-phase, with a 3.0 per unit maximum transient overvoltage. 25 25 The maximum impulse voltage for this equipment is 20 kilovolts times 1.3, or 26 kilovolts. The maximum phase-to-ground use voltage for the equipment is 26 kilovolts divided by the maximum transient overvoltage in kilovolts, or 8.7 kilovolts. The phase-to-phase circuit voltage for this exposure is 8.7 kilovolts times √3, or 15 kilovolts. The Alabama Rural Electric Association of Cooperatives, requested that OSHA provide a definition of “transient overvoltage” and a suggested method of calculation (Ex. 0224). IEEE Std 516-2009 contains the following suitable guidance (although, as stated earlier, the standard does not contain specifications or test methods for electrical protective equipment). First, the IEEE standard contains the industry-recognized definition of “transient overvoltage,” which reads as follows: Voltage that exceeds the maximum operating line-to-ground voltage. This voltage may be the result of a transient or switching surge. [Ex. 0532 26 ] 26 This is the definition of “overvoltage,” for which “transient overvoltage” is a synonym. Second, the IEEE consensus standard contains methods of determining the maximum transient overvoltage on an electric power generation, transmission, or distribution system and, as noted earlier, discusses comparing the ability of insulation equipment to withstand a transient overvoltage based on its ability to withstand voltages under more typical testing conditions (Ex. 0532). OSHA has not duplicated this information in § 1926.97. It is copyrighted information that is publicly available. However, OSHA concludes that the IEEE standard provides suitable guidance that can assist employers in complying with paragraph (b)(1) and has added a reference to that consensus standard in the note following that paragraph in the final rule. The proposed rule invited comments on the need to set specific electrical performance values in the standard and on whether the electrical test criteria in ASTM F968 27 (which were summarized in Table IV-1 and Table IV-2 of the preamble to the proposal (70 FR 34830)) could be applied to all types of electrical protective equipment covered by proposed paragraph (b). IBEW commented that the test values and use values in ASTM F968 are appropriate for electrically insulating plastic guard equipment, but suggested that the values are not suitable for other types of equipment because plastic guard equipment is designed to perform differently than other types of electrical protective equipment (Ex. 0230). Based on the IBEW comment, OSHA has not included in the final rule the values from Table IV-1 and Table IV-2. Moreover, since the final rule is written in performance terms, inclusion of values like those included in these tables is [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2013-29579. Public record. Not legal advice.