[Federal Register Volume 79, Number 70 (Friday, April 11, 2014)]
[Rules and Regulations]
[Pages 20315-20743]
[FR Doc No: 2013-29579]

Vol. 79

Friday,

No. 70

April 11, 2014

Part II

Department of Labor

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Occupational Safety and Health Administration

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29 CFR Parts 1910 and 1926

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

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

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1910 and 1926

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

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

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

ACTION: Final rule.

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SUMMARY: OSHA last issued rules for the construction of transmission
and distribution installations in 1972. Those provisions are now out of
date and inconsistent with the more recently promulgated general
industry standard covering the operation and maintenance of electric
power generation, transmission, and distribution lines and equipment.
OSHA is revising the construction standard to make it more consistent
with the general industry standard and is making some revisions to both
the construction and general industry requirements. The final rules for
general industry and construction include new or revised provisions on
host employers and contractors, training, job briefings, fall
protection, insulation and working position of employees working on or
near live parts, minimum approach distances, protection from electric
arcs, deenergizing transmission and distribution lines and equipment,
protective grounding, operating mechanical equipment near overhead
power lines, and working in manholes and vaults. The revised standards
will ensure that employers, when appropriate, must meet consistent
requirements for work performed under the construction and general
industry standards.
    The final rule also revises the general industry and construction
standards for electrical protective equipment. The existing
construction standard for the design of electrical protective
equipment, which applies only to electric power transmission and
distribution work, adopts several national consensus standards by
reference. The new standard for electrical protective equipment, which
matches the corresponding general industry standard, applies to all
construction work and replaces the incorporation of out-of-date
consensus standards with a set of performance-oriented requirements
that is consistent with the latest revisions of the relevant consensus
standards. The final construction rule also includes new requirements
for the safe use and care of electrical protective equipment to
complement the equipment design provisions. Both the general industry
and construction standards for electrical protective equipment will
include new requirements for equipment made of materials other than
rubber.
    OSHA is also revising the general industry standard for foot
protection. This standard applies to employers performing work on
electric power generation, transmission, and distribution
installations, as well as employers in other industries. The final rule
removes the requirement for employees to wear protective footwear as
protection against electric shock.

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

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

FOR FURTHER INFORMATION CONTACT:
    General information and press inquiries: Mr. Frank Meilinger,
Office of Communications, Room N3647, OSHA, U.S. Department of Labor,
200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1999.
    Technical information: Mr. David Wallis, Directorate of Standards
and Guidance, Room N3718, OSHA, U.S. Department of Labor, 200
Constitution Avenue NW., Washington, DC 20210; telephone<PHONE_NUMBER>
or fax<PHONE_NUMBER>.
    For additional copies of this Federal Register document, contact
OSHA, Office of Publications, U.S. Department of Labor, Room N3101, 200
Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1888. Electronic copies of this Federal Register document are available
at http://www.regulations.gov. Electronic copies of this Federal
Register document, as well as news releases and other relevant
documents, are available at OSHA's Web page at http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

    I. Executive Summary
    A. Introduction
    B. Need for Regulation
    C. Affected Establishments
    D. Benefits, Net Benefits, and Cost Effectiveness
    E. Cost Effectiveness
    F. Compliance Costs
    G. Economic Impacts
    H. Final Regulatory Flexibility Analysis
II. Background
    A. Acronyms and Abbreviations
    B. Need for the Rule
    C. Accident Data
    D. Significant Risk and Reduction in Risk
III. Development of the Final Rule
    A. History of the OSHA Standards
    B. Relevant Consensus Standards
    C. Advisory Committee on Construction Safety and Health
IV. Legal Authority
V. Summary and Explanation of the Final Rule
    A. Section 1926.97, Electrical Protective Equipment
    B. Subpart V, Electric Power Transmission and Distribution
    C. Part 1910, Revisions
    D. Part 1926, Removal of Incorporations by Reference
    E. Part 1926, Subpart CC Revisions
VI. Final Economic Analysis and Regulatory Flexibility Analysis
    A. Introduction
    B. Need for the Rule
    C. Examination of Alternative Regulatory Approaches
    D. Profile of Affected Industries
    E. Benefits, Net Benefits, and Cost Effectiveness
    F. Technological Feasibility
    G. Costs of Compliance
    H. Final Regulatory Flexibility Analysis
    I. References
VII. Federalism
VIII. Unfunded Mandates
IX. Consultation and Coordination With Indian Tribal Governments
X. Office of Management and Budget Review Under the Paperwork
Reduction Act of 1995
    A. Information Collection Request for the Proposed Rule
    B. Information Collection Requirements in the Final Rule
XI. State-Plan Requirements
XII. Dates
    A. The New Requirements for Transferring Information Between
Host Employers and Contract Employers (Sec. Sec.  1926.950(c) and
1910.269(a)(3))
    B. Revised Provisions on the Use of Fall Protection Systems
(Sec. Sec.  1926.954(b)(3)(iii) and (b)(3)(iv) and
1910.269(g)(2)(iv)(C), and (g)(2)(iv)(D))
    C. Revised Requirements for Minimum Approach Distances
(Sec. Sec.  1926.960(c)(1) and 1910.269(l)(3))
    D. New Requirements for Protecting Employees From the Hazards
Associated with Electric Arcs (Sec. Sec.  1926.960(g) and
1910.269(l)(8))
XIII. Authority and Signature

Executive Summary

A. Introduction

    OSHA last issued rules for the construction of transmission and

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 *
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                                       7 percent           3 percent
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Annualized Costs:
    Calculating Incident Energy   $2.2 million......  $1.8 million.
     and Arc-Hazard Assessment
     (Arc-Hazard Assessment).
    Provision of Arc-Flash        $17.3 million.....  $15.7 million.
     Protective Equipment.
    Fall Protection.............  $0.6 million......  $0.4 million.
    Host-Contractor               $17.8 million.....  $17.8 million.
     Communications.
    Expanded Job Briefings......  $6.7 million......  $6.7 million.
    Additional Training.........  $3.0 million......  $2.7 million.
    Other costs for employees     $0.2 million......  $0.2 million.
     not already covered by Sec.
       1910.269.
    MAD Costs...................  $1.8 million......  $1.8 million.
        Total Annual Costs......  $49.5 million.....  $47.1 million.
Annual Benefits:
    Number of Injuries Prevented  118.5.............  118.5.
    Number of Fatalities          19.75.............  19.75.
     Prevented.
    Monetized Benefits (Assuming  $179.2 million....  $179.2 million.
     $62,000 per injury and $8.7
     million per fatality
     prevented.
    OSHA standards that are       Unquantified......  Unquantified.
     updated and consistent.
        Total Annual Benefits...  118.5 injuries and  118.5 injuries and
                                   19.75 fatalities    19.75 fatalities
                                   prevented.          prevented.
Net Benefits (Benefits minus      $129.7 million....  $132.0 million.
 Costs):.
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* 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
Sec.  1910.269 for employees not already covered by that standard ($0.2
million), and arc-hazard assessments ($1.8 million to $2.2 million).

G. Economic Impacts

    To assess the economic impacts associated with compliance with the
final rule, OSHA developed quantitative estimates of the potential
economic impact of the requirements in this rule on entities in each
affected industry. OSHA compared the estimated costs of compliance with
industry revenues and profits to provide an assessment of potential
economic impacts.
    The costs of compliance for the final rule are not large in
relation to the corresponding annual financial flows associated with
the regulated activities. The estimated costs of compliance (when
annualized at 7 percent) represent about 0.007 percent of revenues and
0.06 percent of profits, on average, across all entities; compliance
costs do not represent more than 0.1 percent of revenues or more than
about 2 percent of profits in any affected industry.
    The economic impact of the present rulemaking is most likely to
consist of a small increase in prices for electricity, of about 0.007
percent on average. It is unlikely that a price increase on the
magnitude of 0.007 percent will significantly alter the services
demanded by the public or any other affected customers or
intermediaries. If employers can substantially recoup the compliance
costs of the present rulemaking with such a minimal increase in prices,
there may be little effect on profits.
    In general, for most establishments, it is likely that employers
can pass some or all of the compliance costs along in the form of
increased prices. In the event that unusual circumstances may inhibit
even a price increase of 0.1 percent (the highest estimated cost as a
percent of revenue in any of the affected industries), profits in any
of the affected industries would be reduced by a maximum of about 2
percent.
    OSHA concludes that compliance with the requirements of the final
rule is economically feasible in every affected industry sector.
    In addition, based on an analysis of the costs and economic impacts
associated with this rulemaking, OSHA concludes that the effects of the
final rule on international trade, employment, wages, and economic
growth for the United States are negligible.

H. Final Regulatory Flexibility Analysis

    The Regulatory Flexibility Act, as amended in 1996 by the Small
Business Regulatory Enforcement Fairness Act, requires the preparation
of a Final Regulatory Flexibility Analysis for certain rules
promulgated by agencies (5 U.S.C. 601-612). Under the provisions of the
law, each such analysis must contain: (1) A succinct statement of the
need for, and objectives of, the rule; (2) A summary of the significant
issues raised by the public comments in response to the initial
regulatory flexibility analysis, a summary of the assessment of the
agency of such issues, and a statement of any changes made in the final
rule as a result of such comments; (3) a description and an estimate of
the number of small entities to which the rule will apply or an
explanation of why no such estimate is available; (4) a description of
the projected reporting, recordkeeping, and other compliance
requirements of the rule, including an estimate of the classes of small
entities that will be subject to the requirement, and the type of
professional skills necessary for preparation of the report or record;
and (5) a description of the steps the agency took to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule, and why the agency rejected each one of the
other significant alternatives to the rule considered by the agency
which affect the impact on small entities.
    OSHA analyzed the potential impact of the final rule on small and
very small entities, as described further under the heading ``Final
Regulatory Flexibility Analysis,'' in Section VI, Final Economic
Analysis and Regulatory Flexibility Analysis, later in this preamble.
OSHA concludes that the compliance costs are equivalent to
approximately 0.086 percent of profits for affected small entities
generally, and less than approximately 2.9 percent of profits for small
entities in any particular industry, and approximately 0.39 percent of
profits for affected very small entities generally, and less than
approximately 5.61 percent of profits for very small entities in any
particular industry.

II. Background

A. Acronyms and Abbreviations

    The following acronyms have been used throughout this document:

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

FRA flame-resistant apparel
FRECC Farmers Rural Electric Cooperative Corporation
FRFA Final Regulatory Flexibility Analysis
FTE full-time equivalent [employee]
IBEW International Brotherhood of Electrical Workers
IEC International Electrotechnical Commission
IEEE Institute of Electrical and Electronic Engineers
IMIS OSHA's Integrated Management Information System
IRFA Initial Regulatory Flexibility Analysis
IRS Internal Revenue Service
ISEA International Safety Equipment Association
MAD minimum approach distance
MAID minimum air-insulation distance
MCC motor control center
MTID minimum tool-insulation distance
NA not applicable
NAHB National Association of Home Builders
NAICS North American Industry Classification System
NAM National Association of Manufacturers
NECA National Electrical Contractors Association
NEPA National Environmental Policy Act of 1969
NESC National Electrical Safety Code
NFPA National Fire Protection Association
NIOSH National Institute for Occupational Safety and Health
NRECA National Rural Electric Cooperative Association
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OSH Act (or the Act) Occupational Safety and Health Act of 1970
OSHA Occupational Safety and Health Administration
OSHRC Occupational Safety and Health Review Commission
PPE personal protective equipment
PPG portable protective gap
PRIA Preliminary Regulatory Impact Analysis and Initial Regulatory
Flexibility Analysis
PSM process safety management
p.u. per unit
RIN regulatory information number
SBA Small Business Administration
SBAR Panel (or Panel) Small Business Advocacy Review Panel
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    \1\ Exhibits are posted on http://www.regulations.gov and are
accessible at OSHA's Docket Office, Docket No. OSHA-S215-2006-0063,
U.S. Department of Labor, 200 Constitution Avenue NW., Room N2625,
Washington, DC 20210; telephone<PHONE_NUMBER>. (OSHA's TTY number
is<PHONE_NUMBER>.) OSHA Docket Office hours of operation are 8:15
a.m. to 4:45 p.m., E.T.
    Throughout this notice exhibit numbers are referred to in the
form Ex. XXXX, where XXXX is the last four digits of the full
document number on http://www.regulations.gov. For example, document
number OSHA-S215-2006-0063-0001 is referred to as Ex. 0001. Exhibit
numbers referred to as ``269-Ex.'' are from the record for the 1994
final rule on Sec. Sec.  1910.137 and 1910.269 and are contained in
Docket Number OSHA-S015-2006-0645.
    \2\ In citations, such as 70 FR 34822, ``FR'' means ``Federal
Register.''
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SBREFA Small Business Regulatory Enforcement Fairness Act
SER small entity representative
SIC Standard Industrial Classification
T maximum transient overvoltage, which is defined as the ratio of
the 2-percent statistical switching overvoltage expected at the
worksite to the nominal peak line-to-ground voltage of the system
TCIA Tree Care Industry Association
the 1994 Sec.  1910.269 rulemaking the rulemaking in which existing
Sec. Sec.  1910.137 and Sec.  1910.269 were developed and published
on January 31, 1994
Tr. Transcript page number or numbers from the March 6-14, 2006,
public hearing on the proposed rule \3\
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    \3\ Exhibit numbers 0509 through 0515.
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Tr2. Transcript page number or numbers from the October 28, 2009,
public hearing on the limited reopening of the proposed rule \4\
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    \4\ Exhibit number 0571.
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TVA Tennessee Valley Authority
ULCC Utility Line Clearance Coalition
USDA United States Department of Agriculture
UWUA Utility Workers Union of America
WCRI Worker Compensation Research Institute

    Record citations. References in parentheses are to exhibits or
transcripts in the rulemaking record. Documents from the Subpart V
rulemaking record are accessible at the Docket Office under Docket
OSHA-S215-2006-0063 (originally Docket S-215). (The 2006 transcripts,
abbreviated as ``Tr.,'' are listed in this docket as ``exhibits'' 0509
through 0515. The 2009 transcript, abbreviated as ``Tr2.,'' is listed
as ``exhibit'' 0571.) Because the subpart V proposal was based in large
part on existing Sec.  1910.269, OSHA has also relied on the record
developed during the earlier rulemaking for that general industry
standard (the 1994 Sec.  1910.269 rulemaking). EEI ``incorporate[d]
into [the subpart V] record the entire record in . . . the record
underlying existing Section 1910.269'' (Ex. 0227). References in this
preamble that are prefixed by ``269'' are to exhibits and transcripts
in the rulemaking record from OSHA's 1994 rulemaking on Sec.  1910.137
and Sec.  1910.269 (59 FR 4320-4476, Jan. 31, 1994). These documents
are accessible at the Docket Office under Docket OSHA-S015-2006-0645
(originally Docket S-015).\5\
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    \5\ Documents in the records, with the exception of copyrighted
material such as ASTM standards, are also generally available
electronically at www.regulations.gov. The subpart V and 1994 Sec.
1910.269 dockets are available at: http://www.regulations.gov/#!docketDetail;dct=FR+PR+N+O+SR+PS;rpp=250;po=0;D=OSHA-S215-2006-
0063 and http://www.regulations.gov/#!docketDetail;dct=FR+PR+N+O+SR+PS;rpp=250;po=0;D=OSHA-S015-2006-
0645, respectively.
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    Some exhibits (see, for example, Exs. 0002, 0003, 0004, and 0400)
contain records of accidents that are relevant to work covered by the
final rule. In several instances in this preamble, OSHA has included
hyperlinks to accident descriptions from those exhibits. Those
hyperlinks link to one or more accident records in OSHA's IMIS system.
The hyperlinked pages contain the most recent version of those records,
which might have been edited since being placed in the record for this
rulemaking. Consequently, the accident descriptions could differ
slightly from the description included in the rulemaking record.
However, the accident record numbers in the hyperlinked page match the
accident record numbers in the relevant exhibit.

B. Need for the Rule

    Employees performing work involving electric power generation,
transmission, and distribution are exposed to a variety of hazards,
including fall, electric shock, and burn hazards, that can and do cause
serious injury and death. These workers are often exposed to energized
parts of the power system, and the voltages involved are generally much
higher than voltages encountered in other types of work. OSHA estimates
that, on average, 74 fatalities and 444 serious injuries occur annually
among these workers. (See Section VI, Final Economic Analysis and
Regulatory Flexibility Analysis, later in the preamble, for a detailed
discussion of the methodology used to develop these estimates.)
    Although some of these incidents may have been prevented with
better compliance with existing safety standards, OSHA concludes that
many, in fact almost half of, fatal and nonfatal injuries among
employees covered by the final rule would continue to occur even if
employers were in full compliance with existing standards. Discounting
incidents that would potentially have been prevented with compliance
with existing standards, an estimated additional 19.75 fatalities and
118.5 serious injuries will be prevented each year through full
compliance with the final rule. (See Section VI, Final Economic
Analysis and Regulatory Flexibility Analysis, later in the preamble,
for a detailed discussion of the methodology used to develop these
estimates.)
    This rulemaking will have the additional benefit of providing
updated, clear, and consistent safety standards for electric power
generation, transmission, and distribution work. OSHA currently has
different standards covering construction and general industry work on
electric power transmission and distribution systems. In most
instances, the work practices used by employees are the same whether
they are performing construction or general industry work. Which
standard applies to a particular job depends upon whether the employer
is altering the system (construction work) or maintaining the system
(general industry work). For example, an employer replacing a cutout
(disconnect switch) on a transmission and distribution system is
performing construction work if it is upgrading the cutout, but general
industry work if it is simply replacing the cutout with the same model.
Since the work practices used by the employees would most

likely be identical, the applicable OSHA standards should be as similar
as possible. Inconsistencies between the construction and general
industry standards can create difficulties for employers attempting to
develop appropriate work practices for their employees. Currently, it
is conceivable that, for work involving two or more cutouts, different
and conflicting OSHA standards (that is, one for construction work, the
other for general industry work) might apply. For this reason,
employers and employees have told OSHA that it should make the two
standards more consistent with each other. This final rule does so.
(This issue is addressed in greater detail in the summary and
explanation for Sec.  1926.950, in Section V, Summary and Explanation
of the Final Rule, later in this preamble.)
    Moreover, the final rule adds important updates to, and clarifies,
existing standards. The existing standards for the construction of
electric power transmission and distribution lines and equipment and
for electrical protective equipment are contained in subpart V of
OSHA's construction standards (29 CFR 1926.950 through 1926.960).
Subpart V was promulgated on November 23, 1972, around 40 years ago (37
FR 24880, Nov. 23, 1972). Some of the technology involved in electric
power transmission and distribution work has changed since then, and
the current standards do not reflect those changes. For example,
methods for determining minimum approach distances have become more
exact since 1972, and the minimum approach distances in existing Sec.
1926.950(c)(1) are not based on the latest methodology. The minimum
approach distances in the final rule are more protective and more
technologically sound than the distances specified in the existing
standard. Even the newer general industry standards on the operation
and maintenance of electric power generation, transmission, and
distribution installations (29 CFR 1910.269) and electrical protective
equipment (29 CFR 1910.137) are not entirely consistent with the latest
advances in technology.
    Finally, the final rule clarifies certain confusing parts of the
regulations. See, for example, Wisconsin Elec. Power Co. v. OSHRC, 567
F.2d 735, 738 (7th Cir. 1977) (``[r]evision of the regulations by any
competent draftsman would greatly improve their clarity'').

C. Accident Data

    OSHA has looked to several sources for information on accidents in
the electric utility industry in preparing this final rule. Besides
OSHA's own accident investigation files (recorded in the Agency's
Integrated Management Information System (IMIS)), statistics on
injuries are compiled by the Edison Electric Institute (EEI) and by the
International Brotherhood of Electrical Workers (IBEW). Additionally,
the Bureau of Labor Statistics (BLS) publishes accident data, including
incidence rates for total cases, lost-workday cases, and lost workdays,
and the National Institute for Occupational Safety and Health (NIOSH)
publishes accident data as part of its Fatality Assessment and Control
Evaluation Program.
    To develop estimates of the potential benefits associated with the
standards during the proposal stage, CONSAD Corp., under contract to
OSHA, researched and reviewed potential sources of useful data. CONSAD,
in consultation with the Agency, determined that the most reliable data
sources for this purpose were OSHA's IMIS data and the Census of Fatal
Occupational Injuries developed by BLS. A majority of the accidents
reviewed by CONSAD involved electrocutions or shocks. In addition, a
significant percentage of victims (5.5 percent) suffered from burns to
their arms, abdomen, or legs from electric arc blasts and flashes, and
another sizeable group of victims (3.2 percent) died or sustained
injuries after falling out of vehicle-mounted aerial lifts.\6\
---------------------------------------------------------------------------

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

D. Significant Risk and Reduction in Risk

    Section 3(8) of the Occupational Safety and Health Act of 1970 (OSH
Act or the Act) defines an ``occupational safety and health standard''
as ``a standard which requires conditions, or the adoption or use of
one or more practices, means, methods, operations, or processes,
reasonably necessary or appropriate to provide safe or healthful
employment and places of employment.'' 29 U.S.C. 652(8). This
definition has been interpreted to require OSHA to make a threshold
showing of ``significant risk'' before it can promulgate a safety or
health standard. See, for example, Industrial Union Dept., AFL-CIO v.
American Petroleum Institute (Benzene), 448 U.S. 607 (1980) (plurality
opinion); see also, for example, UAW v.  OSHA (Lockout/Tagout II), 37
F.3d 665 (D.C. Cir. 1994). The Agency's obligation to show significant
risk is not, however, a ``mathematical straitjacket.'' Benzene, 448
U.S. at 655. In fact, the Agency has discretion to ``determine, in the
first instance, what it considers to be a `significant' risk[,]'' and
it ``is not required to support its finding that a significant risk
exists with anything approaching scientific certainty.'' Id. at 655-56;
see also, for example, Public Citizen Health Research Group v. Tyson
(Ethylene Oxide), 796 F.2d 1479, 1486 (D.C. Cir. 1986).
    Although OSHA makes significant risk findings for both health and
safety standards, see Lockout/Tagout II, 37 F.3d 665, the methodology
used to evaluate risk in safety rulemakings is more straightforward.
Unlike the risks related to health hazards, which ``may not be evident
until a worker has been exposed for long periods of time to particular
substances,'' the risks associated with safety hazards such as burns
and falls, ``are generally immediate and obvious.'' Benzene, 448 U.S.
at 649, n.54. See also 59 FR 28594, 28599 (June 2, 1994) (proposed rule
for longshoring and marine terminals, explaining that health hazards
``are frequently undetectable because they are subtle or develop slowly
or after long latency periods,'' whereas safety hazards ``cause
immediately noticeable physical harm''). As OSHA explained in its
lockout-tagout rulemaking:

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

    OSHA's Final Economic and Regulatory Flexibility Analysis presents
the Agency's assessment of the risks and benefits of this final rule.
(See Section VI, Final Economic Analysis and Regulatory Flexibility
Analysis, later in the preamble.) In these analyses, as previously
mentioned, OSHA estimates that there are 74 fatalities and 444 serious
injuries among employees covered by this final rule each year. The
Agency has determined that almost half of those injuries and fatalities
would have occurred even if employers were in full compliance with
existing standards. (See Section VI, Final Economic Analysis and
Regulatory Flexibility Analysis, later in the preamble, in

which OSHA estimates that 53 percent of injuries and fatalities could
have been prevented through full compliance with existing standards.)
The accident data reviewed during this rulemaking, as explained in
detail in the economic and regulatory analyses, reveals that the
injuries and fatalities suffered by workers in power generation,
transmission, and distribution result from electric shocks, burns from
electric arcs, and falls, as well as other types of harmful incidents,
including ones in which employees are struck by, struck against, or
caught between, objects. Based on the large number of injuries and
fatalities occurring in this industry each year, and the fact that
existing standards are inadequate to prevent almost half of those
incidents, OSHA has determined that employees working on electric power
generation, transmission, and distribution installations are currently
exposed to a significant risk of injury or death.\7\
---------------------------------------------------------------------------

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

    The Agency estimates that the changes implemented in this final
rule will prevent 19.75 fatalities and 118.5 serious injuries each
year. (See Section VI, Final Economic Analysis and Regulatory
Flexibility Analysis, later in the preamble.) OSHA, therefore,
concludes that this final standard substantially reduces the
significant risk that currently exists at power generation,
transmission, and distribution worksites. As noted in Section VI, Final
Economic Analysis and Regulatory Flexibility Analysis, later in the
preamble, the various new provisions and amendments being adopted
target the hazards the Agency has identified as contributors to the
significant risk associated with electric power generation,
transmission, and distribution work. Therefore, each element of this
final rule is reasonably necessary and appropriate to achieve the
anticipated reduction in overall risk.
    No rulemaking participants meaningfully disputed OSHA's conclusion
that the aforementioned estimates establish a significant risk for
power generation, transmission, and distribution work. EEI, however,
argued that OSHA has an obligation to make an independent significant
risk showing for each of the hazards addressed by this rulemaking (See,
for example, Exs. 0227, 0501; see also Ex. 0237 (comments of the
American Forest & Paper Association).) OSHA does not agree that it is
required to make multiple, hazard-specific significant risk findings.
    As OSHA has explained in prior rulemakings, ``[v]ertical standards
[such as Sec.  1910.269 and subpart V of part 1926] apply specifically
to a given industry'' or type of work (59 FR 28596 (proposed rule for
longshoring and marine terminals)). They generally address multiple
hazards faced by employees performing the covered work. See, for
example, 66 FR 5196 (Jan. 18, 2001) (steel erection standards address,
among other hazards, risks from working under loads, dangers associated
with landing and placing decking, and falls to lower levels); 62 FR
40142 (July 25, 1997) (standards covering longshoring and marine
terminals address multiple hazards, including hazards associated with
manual cargo handling and exposure to hazardous atmospheres); 52 FR
49592 (Dec. 31, 1987) (standard covering grain-handling facilities
includes provisions related to fire and explosion hazards, as well as
other safety hazards, such as the danger associated with entering bins,
silos, and tanks). OSHA believes that vertical ``standards can
encourage voluntary compliance because they are directed to the
particular problems of [an] industry'' (59 FR 28596). The adoption of
vertical standards is recognized as a legitimate exercise of OSHA's
standard-setting authority under the OSH Act. See Forging Indus. Ass'n
v. Secretary of Labor (Noise), 773 F.2d 1436, 1455 (4th Cir. 1985)
(``[T]he Agency has determined that a particular industry should be
made the subject of a vertical standard. . . . That decision was not
arbitrary or capricious . . . . Nor does the use of a comprehensive
vertical standard amount to a prohibited special treatment'').
    Although the Agency can identify the general types of hazards
addressed by its vertical standards, and has done so in this
rulemaking, there is no legal requirement for hazard-by-hazard
significant risk findings in vertical standards. First, the DC Circuit
Court of Appeals has already rejected the argument ``that Benzene
requires that the agency find that each and every aspect of its
standard eliminates a significant risk faced by employees.'' Ethylene
Oxide, 796 F.2d at 1502, n. 16. Once OSHA makes a general finding of
significant risk, the question becomes whether the requirements of the
standard are reasonably related to the standard's purpose. See, for
example, Noise, 773 F.2d at 1447. Second, when the Supreme Court first
construed the OSH Act as imposing a significant risk requirement, it
spoke in terms of the Agency making findings about unsafe workplaces,
not individual hazards. Benzene, 448 U.S. at 642 (``before promulgating
any standard, the Secretary must make a finding that the workplaces in
question are not safe [and] a workplace can hardly be considered
`unsafe' unless it threatens the workers with a significant risk of
harm''). See also, for example, id. (framing the ``significant risk''
requirement as obligating OSHA ``to make a threshold finding that a
place of employment is unsafe--in the sense that significant risks are
present and can be eliminated or lessened by a change in practices'');
Texas Indep. Ginners Ass'n v. Marshall, 630 F.2d 398, 400 (5th Cir.
1980) (``[t]he Supreme Court recently ruled that the Act requires OSHA
to provide substantial evidence that a significant risk of harm arises
from a workplace or employment''). Third, courts have held that the OSH
Act does not require the disaggregation of significant risk analyses
along other lines. See, for example, Lockout/Tagout II, 37 F.3d at 670
(upholding OSHA's decision not to conduct individual significant risk
analyses for various affected industries); American Dental Ass'n v.
Martin, 984 F.2d 823, 827 (7th Cir. 1993) (OSHA is not required to
evaluate risk ``workplace by workplace''); Associated Builders and
Contractors, 862 F.2d at 68 (``the significant risk requirement must of
necessity be satisfied by a general finding concerning all potentially
covered industries'').
    Requiring OSHA to make multiple, hazard-specific significant risk
findings would place an unwarranted burden on OSHA rulemaking because
of difficulties in specifically defining each of the hazards addressed
by a vertical standard.\8\ Hazards can be defined

broadly, for example, falling from an elevation, or more narrowly, for
example, falling from an elevated aerial lift while performing tree-
trimming work. The outcome of the significant risk analysis called for
by EEI would be largely (and somewhat arbitrarily) dependent on where
along this vast spectrum OSHA defined the relevant dangers.
---------------------------------------------------------------------------

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

    OSHA reviewed the authority EEI relied on in support of the
purported requirement for hazard-specific risk findings, but does not
find it persuasive. First, EEI argued that the Supreme Court, in its
Benzene decision, held that the Agency had to make separate significant
risk findings for the air-contaminant and dermal-contact provisions of
that standard (Ex. 0227). A close reading of the decision in that case
reveals no such holding. Instead, the dermal-contact provisions in that
case were remanded on the same basis that the air-contaminant
provisions were rejected--namely that the provisions were not supported
by any significant risk findings. See Benzene, 448 U.S. at 661-62.
While the Court did suggest that OSHA needed to find that a prohibition
on dermal contact was reasonably necessary and appropriate to address a
significant risk, that is, that preventing dermal contact would reduce
the overall risk associated with workplace exposure to benzene, it did
not address whether a single significant risk finding could ultimately
support both the dermal-contact and air-contaminant provisions in the
standard. Id.
    Second, EEI relied on the Eleventh Circuit's decision in AFL-CIO v.
OSHA (PELs), 965 F.2d 962 (11th Cir. 1992), which vacated and remanded
OSHA's Air Contaminants Standard (Ex. 0227). That rule set permissible
exposure limits for more than 400 toxic substances. Although in that
case the court said that OSHA needed to explain its assessment of risk
for each regulated substance, that rulemaking is readily distinguished
from this final rule. In PELs, the various regulated substances were
``unrelated'' and had ``little [in] common.'' 965 F.2d at 972. Here, in
contrast, the various hazards addressed by this final rule are closely
related. They all arise at power generation, transmission, and
distribution worksites and jointly contribute to the large number of
injuries and fatalities suffered by covered workers. OSHA does not
believe that the PELs decision limits its discretion to adopt
provisions it deems reasonably necessary and appropriate to abate the
existing electrocution, burn, fall, and other hazards that, together,
result in covered employees being exposed to an overall workplace risk
that is significant.
    Finally, EEI's reliance on the Agency's ergonomics rulemaking is
misplaced. EEI pointed out that OSHA's risk assessment in its
ergonomics rulemaking considered only accidents that resulted from
hazards covered by that standard (Ex. 0227). But this interpretation
offers no support for EEI's position, as the risk assessment in this
rulemaking similarly considered only injuries and fatalities that
occurred during the performance of work covered by this final rule (Ex.
0080). (See also Section VI, Final Economic Analysis and Regulatory
Flexibility Analysis, later in the preamble.)
    Although OSHA does not agree that hazard-specific significant risk
findings are necessary, the Agency believes that the record supports
such findings for the critical hazards addressed in this rulemaking--
namely electrocutions and electric shocks, burns from arc flashes, and
falls. The Agency has found that a significant number of injuries and
fatalities occur every year as a result of employee exposure to each of
these hazards. (See Section VI, Final Economic Analysis and Regulatory
Flexibility Analysis, later in the preamble.) Moreover, as EEI points
out, ``most of the hazards'' addressed in this rulemaking ``are already
covered by the existing standards that OSHA [is] now . . . modify[ing]
and supplement[ing]'' (Ex. 0227). Furthermore, some of the hazards
addressed by this rulemaking are already the subject of generally
applicable hazard-specific horizontal standards. See, for example, 29
CFR part 1926, subpart K (electrical hazards) and subpart M (fall
hazards). All of these existing standards were supported by findings of
significant risk, and OSHA simply concludes that the additional
provisions of this final rule are reasonably necessary and appropriate
to reduce a substantial portion of the remaining significant risk at
power generation, transmission, and distribution worksites.

III. Development of the Final Rule

A. History of the OSHA Standards

    OSHA first adopted standards for the construction of power
transmission and distribution lines and equipment in 1972 (subpart V of
29 CFR part 1926). OSHA defines the term ``construction work'' in 29
CFR 1910.12(b) as ``work for construction, alteration, and/or repair,
including painting and decorating.'' The term ``construction'' is
broadly defined in Sec.  1910.12(d) and existing Sec.  1926.950(a)(1)
to include the original installation of, as well as the alteration,
conversion, and improvement of electric power transmission and
distribution lines and equipment.
    The general industry standard at 29 CFR 1910.269 applies to the
operation and maintenance of electric power generation, transmission,
and distribution installations. OSHA adopted Sec.  1910.269 on January
31, 1994. That standard is a companion standard to subpart V of the
construction standards and addresses work to which subpart V did not
apply. When promulgated, Sec.  1910.269 was also based on the latest
technology and national consensus standards.
    OSHA revised its Electrical Protective Equipment Standard in Sec.
1910.137 at the same time Sec.  1910.269 was promulgated. The revision
of Sec.  1910.137 eliminated the incorporation by reference of national
consensus standards for rubber insulating equipment and replaced it
with performance-oriented rules for the design, manufacture, and safe
care and use of electrical protective equipment.
    OSHA published a proposed rule (the subpart V proposal) on June 15,
2005 (70 FR 34822). That document proposed revising the construction
standard for electric power transmission and distribution work (29 CFR
part 1926, subpart V) and the general industry standards for electric
power generation, transmission, and distribution work (29 CFR
1910.269). That document also proposed a new construction standard for
electrical protective equipment (29 CFR 1926.97) and revisions to the
general industry standards for foot protection (29 CFR 1910.136) and
electrical protective equipment (29 CFR 1910.137). Public comments were
originally due by October 13, 2005, but in response to requests from
interested parties, including EEI, OSHA extended the comment period 90
days to January 11, 2006 (70 FR 59290, Oct. 12, 2005). OSHA held an
informal public hearing beginning on March 6, 2006, and ending on March
14, 2006. After the hearing, interested parties had until May 15, 2006,
to submit additional information and until July 14, 2006, to file
posthearing briefs (Tr. 1415).
    On October 22, 2008, OSHA reopened the record for 30 days to gather
information from the public on specific questions related to minimum
approach distances (73 FR 62942). EEI requested a public hearing and an
additional 60 days to submit comments on the issues raised in the
reopening notice (Ex. 0530). On September 14, 2009, OSHA

opened the record for an additional 30 days to receive more comments on
minimum approach distances and announced a public hearing to be held on
October 28, 2009, addressing the limited issues raised in the two
reopening notices (74 FR 46958). After the hearing, interested parties
had until December 14, 2009, to submit additional information and until
February 10, 2010, to file posthearing briefs (Tr2. 199).
    The record for this rulemaking consists of all prehearing comments,
the transcripts of the two public hearings, all exhibits submitted
prior to and during the two hearings, and posthearing submissions and
briefs. Administrative Law Judge Stephen Purcell issued an order
closing the record and certified the record to the Assistant Secretary
of Labor for Occupational Safety and Health. The Agency carefully
considered the entire record in preparing this final standard.

B. Relevant Consensus Standards

    The National Electrical Safety Code (American National Standards
Institute (ANSI) Standard ANSI/IEEE C2, also known as the NESC)
contains provisions specifically addressing electric power generation,
transmission, and distribution work. ANSI/IEEE C2 does not, however,
address the full range of hazards covered by this final rule. It is
primarily directed to the prevention of electric shock, although it
does contain a few requirements for the prevention of falls and burns
from electric arcs.
    The American Society for Testing and Materials (ASTM) has adopted
standards related to electric power generation, transmission, and
distribution work. ASTM Committee F18 on Electrical Protective
Equipment for Workers has developed standards on rubber insulating
equipment, climbing equipment, protective grounding equipment,
fiberglass rod and tube used in live-line tools, and clothing for
workers exposed to electric arcs.
    The National Fire Protection Association (NFPA) has adopted a
standard on electrical safety for employees, NFPA 70E, Standard for
Electrical Safety in the Workplace. Although it does not apply to
electric power generation, transmission, or distribution installations,
the NFPA standard contains provisions addressing work near such
installations performed by unqualified employees, that is, employees
who have not been trained to work on or with electric power generation,
transmission, or distribution installations. It also contains methods
for estimating heat energy levels from electric arcs and describes ways
to protect employees from arc-flash hazards.
    The Institute of Electrical and Electronic Engineers (IEEE) writes
standards for electric power generation, transmission, and distribution
installations and for work on those installations. Many of these
standards have been adopted by ANSI. Among these IEEE standards are:
IEEE Std 516, IEEE Guide for Maintenance Methods on Energized Power-
Lines, and IEEE Std 1048, IEEE Guide for Protective Grounding of Power
Lines.
    OSHA recognizes the important role consensus standards can play in
ensuring worker safety. A comprehensive list of consensus standards
relating to electric power generation, transmission, and distribution
work can be found in existing Appendix E to Sec.  1910.269. OSHA
proposed to add the same list as Appendix E to subpart V. OSHA
considered the latest editions of all the standards listed in Appendix
E in the development of this final rule. Any substantial deviations
from these consensus standards are explained in Section V, Summary and
Explanation of the Final Rule, later in this preamble.

C. Advisory Committee on Construction Safety and Health

    Under 29 CFR parts 1911 and 1912, OSHA must consult with the
Advisory Committee on Construction Safety and Health (ACCSH or the
Committee), established pursuant to Section 107 of the Contract Work
Hours and Safety Standards Act (40 U.S.C. 3701 et seq.), in setting
standards for construction work. Specifically, Sec.  1911.10(a)
requires the Assistant Secretary to provide ACCSH with a draft proposed
rule (along with pertinent factual information) and give the Committee
an opportunity to submit recommendations. See also Sec.  1912.3(a)
(``[W]henever occupational safety or health standards for construction
activities are proposed, the Assistant Secretary [for Occupational
Safety and Health] shall consult the Advisory Committee.'').
    OSHA has a long history of consulting with ACCSH on this
rulemaking. On May 25, 1995, OSHA took a draft of the proposed
construction standards to ACCSH, providing the Committee with a draft
of the proposal and with a statement on the need to update the
standards. The Committee formed a workgroup to review the materials,
and the workgroup provided comments to OSHA. The Agency gave a status
report on the proposal to the Committee on August 8, 1995, and an
updated draft of the proposal to ACCSH on December 10, 1999. On
February 13, 2003, OSHA gave ACCSH another status report and summarized
the major revisions it had made to the proposal. On May 22, 2003, OSHA
provided the Committee with the same copy of the draft proposal that
had been provided to the small entity representatives who were
participating in the Small Business Regulatory Enforcement and Fairness
Act (SBREFA) proceedings, which were being conducted at that time. OSHA
also explained the major issues being raised by the small entity
representatives on the draft proposal.
    On May 18, 2004, ACCSH gave the Agency formal recommendations on
the proposal. OSHA sought ACCSH's recommendations on the proposal
generally, as well as on issues specifically related to host employer-
contractor communications and flame-resistant clothing. ACCSH voted
unanimously that: (1) The construction standards for electric power
transmission and distribution work should be the same as the general
industry standards for the same type of work; (2) it was necessary to
require some safety-related communications between host employers and
contractors; and (3) employees need to be protected from hazards posed
by electric arcs through the use of flame-retardant clothing. ACCSH
recommended, by unanimous vote, that OSHA issue its proposal,
consistent with these specific recommendations.\9\
---------------------------------------------------------------------------

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

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

concluded, the rule at issue did not meet ``even the APA's . . .
standard.'' Id. at 971 n.27. As such, the case stands, at most, for the
proposition that OSHA must return to ACCSH where the final rule at
issue does not meet the APA's ``logical outgrowth'' test.
    OSHA's consultation with ACCSH in this rulemaking was consistent
with the Nat'l Constructors decision. The Nat'l Constructors court
stated that OSHA had to engage in further consultation with ACCSH
regarding its ground-fault circuit protection standard where the final
rule recognized ``assured equipment grounding conductor programs'' as a
method of compliance, but ACCSH had never had the opportunity to
comment on that particular form of employee protection. The DC Circuit
concluded that the compliance program in question was neither presented
to ACCSH, nor ``gr[e]w logically out of anything that was presented to,
or heard from, the Committee.'' Id. at 970--971. In this Subpart V
rulemaking, in contrast, the basic requirement to adhere to minimum
approach distances was presented to ACCSH. (See, for example, ACCSH
Docket ACCSH 1995-2.) The Agency is simply refining the method used to
establish the minimum approach distances \10\ in light of technical
progress that has been made since the proposal was reviewed by ACCSH.
(For a complete discussion of the minimum approach-distance
requirements and OSHA's rationale for adopting them, see the summary
and explanation for final Sec.  1926.960(c)(1), in Section V, Summary
and Explanation of the Final Rule, later in this preamble.)
---------------------------------------------------------------------------

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

    In any event, ACCSH had an opportunity to comment on whether OSHA
should rely on the work of the IEEE committee generally. ACCSH knew
that OSHA might base the minimum approach distances for subpart V on
existing Sec.  1910.269. (See, for example, Exhibit 12 in Docket ACCSH
1995-2 and Exhibit 101-X in Docket ACCSH 1995-3.) In fact, ACCSH
ultimately concluded in its recommendation that the construction
standards for electric power transmission and distribution work should
be the same as the general industry standards for the same type of
work. As existing Sec.  1910.269's minimum approach-distance
requirements were derived from IEEE Std 516 (59 FR 4320, 4382-4384
(Jan. 31, 1994)), ACCSH was on notice that the work of the IEEE 516
committee might be used by the Agency in formulating the minimum
approach-distance requirements for this final rule.
    That ACCSH did not specifically pass on the question of whether
OSHA should derive its minimum approach-distance requirements from work
done in the formulation of an IEEE standard that was not yet issued at
the time of the ACCSH consultation is of no consequence. The OSH Act
and OSHA's procedural regulation (29 U.S.C. 655(b)(1); 29 CFR
1911.10(a)) ``make clear that the Assistant Secretary need only supply
whatever information he has available to him at the time he submits his
proposal to the Committee.'' Nat'l Constructors, 581 F.2d at 968. As
the Nat'l Constructors Court recognized, ``by designing the Advisory
Committee option as a procedural step that must precede public notice,
comment, and the informal hearing, [Congress] assumed that the
Committee would not be provided with all information that the Labor
Department eventually developed on the subject.'' Id. at 968 n.16.
Thus, OSHA's action in the final rule is consistent with Nat'l
Constructors.

IV. Legal Authority

    The purpose of the OSH Act, 29 U.S.C. 651 et seq., is ``to assure
so far as possible every working man and woman in the Nation safe and
healthful working conditions and to preserve our human resources.'' 29
U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary
of Labor to promulgate and enforce occupational safety and health
standards. 29 U.S.C. 654, 655(b), 658.
    A safety or health standard ``requires conditions, or the adoption
or use of one or more practices, means, methods, operations, or
processes, reasonably necessary or appropriate to provide safe or
healthful employment and places of employment.'' 29 U.S.C. 652(8). A
safety standard is reasonably necessary or appropriate within the
meaning of 29 U.S.C. 652(8) if:
     It substantially reduces a significant risk of material
harm in the workplace;
     It is technologically and economically feasible;
     It uses the most cost-effective protective measures;
     It is consistent with, or is a justified departure from,
prior Agency action;
     It is supported by substantial evidence; and
     It is better able to effectuate the purposes of the OSH
Act than any relevant national consensus standard.

Lockout/Tagout II, 37 F.3d at 668. In addition, safety standards must
be highly protective. See, for example, id. at 669.
    A standard is technologically feasible if the protective measures
it requires already exist, can be brought into existence with available
technology, or can be created with technology that can reasonably be
expected to be developed. See, for example, American Iron and Steel
Inst. v. OSHA (Lead II), 939 F.2d 975, 980 (D.C. Cir. 1991) (per
curiam). A standard is economically feasible when industry can absorb
or pass on the costs of compliance without threatening industry's long-
term profitability or competitive structure. See, for example, American
Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 530 n. 55 (1981); Lead
II, 939 F.2d at 980. A standard is cost effective if the protective
measures it requires are the least costly of the available alternatives
that achieve the same level of protection. See, for example, Lockout/
Tagout II, 37 F.3d at 668.
    Section 6(b)(7) of the OSH Act authorizes OSHA to include among a
standard's requirements labeling, monitoring, medical testing, and
other information-gathering and information-transmittal provisions. 29
U.S.C. 655(b)(7). Finally, the OSH Act requires that when promulgating
a rule that differs substantially from a national consensus standard,
OSHA must explain why the promulgated rule is a better method for
effectuating the purposes of the Act. 29 U.S.C. 655(b)(8). Deviations
from relevant consensus standards are explained elsewhere in this
preamble.

V. Summary and Explanation of the Final Rule

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

any differences between the final rule and existing standards. This
section also discusses issues that were raised at the two public
hearings, significant comments received as part of the rulemaking
record, and substantive changes from the language of the proposed rule.
Unless otherwise noted, paragraph references in the summary and
explanation of the final rule fall under the section given in the
heading for the discussion. For example, except as otherwise noted,
paragraph references in V.A, Section 1926.97, Electrical Protective
Equipment, are to paragraphs in final Sec.  1926.97. Except as noted,
the Agency has carried proposed provisions into the final rule without
substantive change.
    The final rule contains several differences from the proposal and
existing Sec. Sec.  1910.137 and 1910.269 that are purely editorial and
nonsubstantive. For example, the Agency amended the language of some
provisions to shift from passive to active voice, thereby making the
standard easier to read. OSHA does not discuss explicitly in the
preamble all of these differences. The purpose of these differences,
unless otherwise noted, is to clarify the final standard.

A. Section 1926.97, Electrical Protective Equipment

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

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

    The use of properly designed, manufactured, and cared-for
electrical protective equipment helps protect employees from this risk.
Therefore, OSHA is issuing final Sec.  1926.97, Electrical protective
equipment, which addresses the design, manufacture, and proper care of
electrical protective equipment. In addition, OSHA is revising existing
Sec.  1910.137, which also contains provisions addressing the design,
manufacture, and proper care of electrical protective equipment. For
reasons described at length in this section of the preamble, OSHA
concludes that the final rule will be a more effective means of
protecting employees from the risk of electric shock than existing OSHA
standards.
    The existing requirements for electrical protective equipment in
construction work are in Sec.  1926.951(a)(1), which only applies to
the construction of electric power transmission and distribution lines
and equipment. However, employers throughout the construction industry
use electrical protective equipment, and OSHA believes that provisions
for electrical protective equipment, as specified by final Sec.
1926.97, should apply, not only to electric power transmission and
distribution work, but to all construction work. Therefore, OSHA is
issuing new Sec.  1926.97, Electrical protective equipment, which
applies to all construction work.
    Existing Sec.  1926.951(a)(1) incorporates by reference the
following six American National Standards Institute (ANSI) standards:

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

    These standards contain detailed specifications for manufacturing,
testing, and designing electrical protective equipment. However, these
standards have undergone several revisions since the 1971 publication
date of existing subpart V and are now seriously out of date. Following
is a complete list of the corresponding current national consensus
standards:
    ASTM D120-09, Standard Specification for Rubber Insulating Gloves.
    ASTM D178-01 (Reapproved 2010), Standard Specification for Rubber
Insulating Matting.
    ASTM D1048-12, Standard Specification for Rubber Insulating
Blankets.
    ASTM D1049-98 (Reapproved 2010), Standard Specification for Rubber
Insulating Covers.
    ASTM D1050-05 (Reapproved 2011), Standard Specification for Rubber
Insulating Line Hose.
    ASTM D1051-08, Standard Specification for Rubber Insulating
Sleeves.
    Additionally, there are now standards on the in-service care of
insulating line hose and covers (ASTM F478-09), insulating blankets
(ASTM F479-06 (2011)), and insulating gloves and sleeves (ASTM F496-
08), which OSHA did not incorporate or reference in existing Sec.
1926.951(a)(1).\12\
---------------------------------------------------------------------------

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

    OSHA derived proposed new Sec.  1926.97 from these national
consensus standards, but drafted it in performance terms. OSHA is
carrying this approach forward into the final rule. The final rule
relies on provisions from the consensus standards that are performance
based and necessary for employee safety, but the final rule does not
contain many of the detailed specifications from those standards. Thus,
the final rule will provide greater flexibility for compliance.
    BGE commented that OSHA's performance-based approach leaves the
standards ``vague'' and creates ``opportunities for unsafe practices''
(Ex. 0126).
    OSHA disagrees with this comment for the following reasons.
    The Agency recognizes the importance of the consensus standards in
defining basic requirements for the safe design and manufacture of
electrical protective equipment for employees. To this end, OSHA will
allow employers to comply with the final rule by following specific
provisions in the consensus standards. OSHA believes that the option of
following these specific provisions addresses the commenter's concern
about vagueness.
    However, OSHA determined that it would be inappropriate to adopt
the consensus standards in toto in this rulemaking. First, each of the
currently referenced standards has undergone several revisions since
OSHA adopted the standards in existing Sec.  1926.951(a)(1). Because of
the continual process by which the consensus standards development
organizations periodically revise their consensus standards, any
specific editions that OSHA might adopt likely would be outdated within
a few years. Additionally, since OSHA's rulemaking process is lengthy,
it would not be practical for OSHA to revise its standards as often as
necessary to keep pace with the changes in the consensus

standards. Final Sec.  1926.97 is flexible enough to accommodate
changes in technology, obviating the need for constant revision.
Wherever possible, OSHA wrote the final rule in performance terms to
allow alternative methods of compliance that provide comparable safety
to employees.
    Another difficulty with incorporating the consensus standards by
reference is that they contain details that go beyond the scope of the
OSHA standard and are not directly related to employee safety. In final
Sec.  1926.97, OSHA relied only on consensus standard provisions that
are relevant to employee safety in the workplace. Furthermore, to make
the requirements easier for employers and employees to use and
understand, OSHA adopted language in the final rule that is simpler
than that in the consensus standards. Because all relevant requirements
are in the text of the regulations, employers will not need to refer to
the consensus standards to determine their obligations under final
Sec.  1926.97. Although OSHA is no longer incorporating the consensus
standards by reference, notes throughout the rule clarify that OSHA
will deem compliance with the consensus standards listed in the notes
to be compliance with the performance requirements of final Sec.
1926.97.
    OSHA notes that it recently decided not to adopt a proposed
performance-based approach when it revised the design requirements
contained in several personal protective equipment standards (74 FR
46350, Sept. 9, 2009). In issuing that final rule, OSHA reasoned that
``widespread opposition'' to, and misunderstanding of, the proposal
indicated ``possible misapplication . . . if adopted'' (74 FR 46352).
    This rationale does not apply to this rulemaking. First, there was
no widespread opposition to the proposed performance-based approach in
this rulemaking. A number of commenters did request that OSHA deem
employers that are in compliance with all future revisions of the
listed consensus standards as being in compliance with the final rule
(see, for example, Exs. 0156, 0180, 0183, 0202, 0206, 0229, 0231,
0239). The Agency believes that the performance-based approach it
adopts in final Sec.  1926.97 will provide these commenters with the
flexibility they requested by permitting employers to follow future
versions of consensus standards so long as those future versions meet
the final rule's performance-based criteria. Second, OSHA adopted a
performance-based approach when it previously revised existing Sec.
1910.137 in 1994 (59 FR 4323-4325). Several participants in the 1994
rulemaking supported a performance-based approach (59 FR 4324). Third,
OSHA believes that harmonizing Sec.  1926.97 and Sec.  1910.137 will
reduce misapplication by the regulated community and, thereby, reduce
the risk of electric shock. Promulgating inconsistent standards would
increase misapplication by the regulated community and, consequently,
increase the risk of electric shock. Finally, OSHA has had no
difficulty enforcing Sec.  1910.137 since issuing it in 1994.
    Regarding the commenters' requests that OSHA deem employers that
are in compliance with all future revisions of the listed consensus
standards as being in compliance with the final rule, OSHA has no basis
on which to find that future revisions of the consensus standards will
provide suitable guidance for compliance with the performance criteria
of the final rule. Revised consensus standards may or may not meet the
final rule's performance criteria. If a revised consensus standard does
not satisfy this final rule's performance criteria, however, the Agency
may consider compliance with that consensus standard to be a de minimis
condition if the consensus standard clearly provides protection equal
to, or greater than, the protection provided by Sec.  1926.97.\13\
---------------------------------------------------------------------------

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

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

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

    Some rulemaking participants asked OSHA to provide the applicable
consensus standards to employers at no cost. (See, for example, Exs.
0156, 0161, 0183, 0202, 0206, 0229, 0231, 0233; Tr. 1287-1288.) For
instance, Mr. Terry Williams with the Electric Cooperatives of South
Carolina stated: ``If OSHA is to rely on procedures that it does not
describe in full, . . . the agency should provide a cost-free way for
employers to review these procedures to make sure they are following
them'' (Ex. 0202). Mr. Don Adkins with Davis H. Elliot Construction Co.
stated that the ``cost of securing and reviewing these voluntary
standards place[s] a financial burden on small employers'' (Ex. 0156).
    OSHA is rejecting these requests. The Agency stated the rule in
performance-based terms, which allows employers flexibility in
complying with the rules. The Agency understands that employers may
want additional guidance in terms of precise procedures or detailed
specifications to follow. Final Sec.  1926.97 references relevant
consensus standards to provide such additional guidance, but those
standards are not mandatory.
    In any event, even when OSHA incorporates consensus standards by
reference, the Agency does not provide those consensus standards to
employers at no cost. Many consensus standards are copyrighted
documents; and, in those cases, the copyright holder has certain legal
rights regarding the public distribution of those documents. Note that
some consensus standards development organizations, for example, NFPA,
do provide free, view-only access to their standards (http://www.nfpa.org/itemDetail.asp?categoryID=279&itemID=18123&URL=Codes%20&%20Standards/Code%20development%20process/Online%20access).\15\ OSHA also will
continue to explore other ways of informing the regulated community

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

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

    Moreover, employers can often rely on the assurances of third
parties that equipment or test methods meet the listed consensus
standards. First, OSHA expects that employers will typically get the
assurance of manufacturers that electrical protective equipment is
capable of withstanding the appropriate electrical proof tests required
by final paragraphs (a) and (b). In this regard, an employer can simply
look for equipment labeled as meeting the listed consensus standards.
Manufacturers attest, through such a label, typically required by the
relevant consensus standard, that their equipment passed the requisite
tests.
    Second, it is OSHA's understanding that many employers,
particularly small employers, do not test their own equipment to
determine whether employees can use the equipment, as required by final
paragraph (c). Instead, these employers send the equipment to an
electrical laboratory for testing (see, for example, the testimony of
Mr. Frank Brockman of Farmers Rural Electric Cooperative Corporation
about the use of testing laboratories, Tr. 1301-1302). It is OSHA's
understanding that, as a matter of practice, such laboratories follow
the test methods in the applicable consensus standards for testing a
wide range of products (see, for example, Ex. 0211).\16\ To determine
whether employees can use the equipment in accordance with final
paragraph (c), employers can rely on the assurance of these testing
laboratories that they followed the listed consensus standards, as well
as the requirements of OSHA's standard.
---------------------------------------------------------------------------

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

    OSHA expects that, when consensus standards development
organizations revise their consensus standards, manufacturers' labels
will certify that the equipment meets the latest consensus standards,
and that testing laboratories will use the test methods in the latest
consensus standards, rather than the consensus standards listed in the
notes. OSHA is sympathetic to concerns that employers, especially small
businesses, do not have the resources to purchase and check whether
revised consensus standards meet the final rule's performance criteria.
As discussed previously, an employer that does not have the resources
to purchase and review an updated consensus standard (indeed, any
employer) may request guidance from OSHA on whether compliance with an
updated consensus standard would conform to this final rule or bring
the employer within OSHA's de minimis policy.
    In the final rule, OSHA reworded the headings for paragraphs (a),
(b), and (c) to more accurately reflect the content of the respective
paragraphs. Paragraph (a). Paragraph (a) of Sec.  1926.97 addresses the
design and manufacture of the following types of rubber insulating
equipment: Blankets, matting, covers, line hose, gloves, and
sleeves.\17\ (Paragraph (b) of Sec.  1926.97 contains general
requirements for other types of insulating equipment (see the
discussion of this paragraph later in this section of the preamble).)
Paragraphs (a) and (c) of proposed Sec.  1926.97 were based on existing
Sec.  1910.137(a) and (b); however, the proposal added Class 00
equipment to the classes addressed by the existing provisions to
reflect the coverage of this new class of equipment in the consensus
standards (Exs. 0048, 0051). This class of electrical protective
equipment is used with voltages of 500 volts or less. OSHA received no
comments on the proposed addition of Class 00 electrical protective
equipment.
---------------------------------------------------------------------------

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

    Paragraph (a)(1)(i), which is being adopted without change from the
proposal, requires blankets, gloves, and sleeves to be manufactured
without seams. This method of making the protective equipment minimizes
the chance that the material will split. Because they are used when
workers handle energized lines, gloves and sleeves are the only defense
an employee has against electric shock. Additionally, the stresses
placed on blankets, gloves, and sleeves by the flexing of the rubber
during normal use could cause a seam to separate from tensile or shear
stress.
    The prohibition on seams does not apply to the other three types of
electrical protective equipment covered by paragraph (a) (covers, line
hose, and matting). These types of equipment generally provide a more
indirect form of protection because they insulate the live parts from
accidental, rather than intended, contact. Moreover, they are not
usually subject to similar amounts or types of flexing and, thus, are
not subject to the same stress.\18\
---------------------------------------------------------------------------

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

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

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

    Proposed paragraphs (a)(1)(ii)(G) and (a)(1)(ii)(H) would have
required rubber insulating equipment ``other than matting'' to be
marked as Type I or Type II to indicate whether or not it was ozone-
resistant. Mr. James Thomas, President of ASTM International, submitted
comments recommending that the quoted language be deleted from these
paragraphs because the ``type classification denotes the manufacturing
material being either Nonresistant to Ozone (Type I) or Resistant to
Ozone (Type II) and applies to all [rubber insulating equipment],
including [m]atting'' (Ex. 0148).
    OSHA agrees that the ASTM standards require matting to be marked
with the type to indicate whether or not it is ozone-resistant, and the
Agency has adopted the commenter's recommendation in the final rule.
    Mr. Leo Muckerheide of Safety Consulting Services recommended that
OSHA require marking the maximum use voltage on electrical protective
equipment, stating:

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

    OSHA rejects this recommendation. First, workers using electrical
protective equipment receive training that ensures that they know which
class of equipment to use on which voltage. The

record demonstrates that most of the workers covered by Sec.  1910.269
and subpart V are highly trained (see, for example, Tr. 1228) and use
electrical protective equipment to work on energized lines on a
regular, often daily, basis (see, for example, Tr. 394, 889, 1218-
1219). Furthermore, several OSHA standards require training for
employees working on or near exposed energized parts, when electrical
protective equipment would also be required. For instance, final
Sec. Sec.  1910.269(a)(2)(ii)(D) and 1926.950(b)(2)(iv) require
training in the use of electrical protective equipment for qualified
employees performing electric power generation, transmission, and
distribution work. Paragraph (c)(2) of Sec.  1910.333 contains a
similar requirement for workers performing other types of general
industry electrical work. Paragraph (b)(2) of Sec.  1926.21 contains
training requirements for workers performing construction work.
Although this requirement is more general than the training requirement
in this final standard, Sec.  1926.21 requires training in OSHA
standards applicable to the employee's work environment.
    Second, electrical protective equipment meeting the applicable
consensus standards is manufactured with the Class ratings included,
but generally without labels for maximum use voltages. (See, for
example, Exs. 0048, 0049, 0050, 0066, 0067, 0068.) Requiring electrical
protective equipment to be marked with its maximum use voltage would
likely force employers to mark the equipment themselves. OSHA believes
that the permanent class-rating marking placed on electrical protective
equipment by the manufacturer provides adequate information and is less
likely to wear off over the useful life of the equipment than any
marking put in place by an employer. Thus, the Agency concludes that a
requirement for marking the maximum use voltage on electrical
protective equipment is unnecessary.
    Mr. Frank Owen Brockman, representing Farmers Rural Electric
Cooperative Corporation, recommended that OSHA also require that the
markings include the company testing the equipment, the test date, and
owners of the equipment (Ex. 0173). He did not explain how including
this additional information in the markings would better protect
employees. Moreover, although requiring the employer to note the date
equipment is tested does enhance worker protection, final paragraph
(c)(2)(xii) of Sec.  1926.97 addresses this matter by requiring the
employer to certify that equipment has successfully passed the periodic
testing required by the final rule and by requiring this certification
to identify the equipment that passed the test and the date it was
tested. OSHA agrees with Mr. Brockman that keeping workers aware of the
date of last testing would enhance worker protection. Therefore, OSHA
revised the language in final paragraph (c)(2)(xii) to also require
that the certification required by the rule be made available to
employees or their authorized representatives.
    It should be noted that, although not required, the markings
suggested by Mr. Muckerheide and Mr. Brockman are permitted under
paragraph (a)(1)(ii)(I).
    Paragraph (a)(1)(iii) requires all markings to be nonconductive and
to be applied so as not to impair the insulating properties of the
equipment. OSHA did not receive any comments on this provision in the
proposal and has carried it forward without change into the final rule.
This requirement ensures that no marking interferes with the protection
to be provided by the equipment.
    Paragraph (a)(1)(iv), which is being adopted without change from
the proposal, requires markings on gloves to be confined to the cuff
area.\20\ As OSHA explained in the preamble to the proposed rule,
markings in other areas could possibly wear off (70 FR 34828).
Moreover, having the markings in one place will allow the employee to
determine the class and type of glove quickly. Finally, as discussed
later in this section of the preamble, final paragraph (c)(2)(vii)
requires that rubber gloves normally be worn under protector gloves.
Because a protector glove is almost always shorter than the
corresponding rubber glove with which it is worn, and because the cuff
of the protector glove can easily be pulled back without removal, it is
easy to see markings on the cuff portion of the rubber glove beneath.
Any marking provided on the rubber glove in an area outside of the cuff
could not be seen with the protector glove in place.
---------------------------------------------------------------------------

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

    Paragraph (a)(2) of final Sec.  1926.97 contains electrical
requirements for rubber insulating blankets, matting, line hose,
gloves, and sleeves. As previously discussed, this provision uses
performance language, and does not contain a lengthy discussion of
specific test procedures.
    Paragraph (a)(2)(i), which is being carried forward from the
proposed rule, requires electrical protective equipment to be capable
of withstanding the ac proof-test voltages in Table E-1 or the dc
proof-test voltages in Table E-2 of the standard.\21\ The proof-test
voltages listed in these tables have been derived from the current ASTM
standards, which also contain detailed test procedures that can be used
to determine whether electrical protective equipment is capable of
withstanding these voltages. As previously discussed, these details
were not included in the proposed rule, and this approach is being
carried forward in the final rule. Paragraph (a)(2)(i)(A) replaces
those details with a performance-oriented requirement that any proof
test can be used as long as it reliably indicates that the equipment
can withstand the proof-test voltage involved.
---------------------------------------------------------------------------

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

    Mr. Muckerheide with Safety Consulting Services stated that the
standard for rubber insulating gloves, ASTM D120, lists a 280-
millimeter glove instead of the 267-millimeter glove listed in Table E-
1 in the proposed rule (Ex. 0180). He recommended making OSHA's
standard consistent with the ASTM standard or explaining the difference
in the standard.
    OSHA is revising Table E-1 from the proposal in response to this
comment.
    OSHA based proposed Table E-1 on Table I-2 in existing Sec.
1910.137, which, in turn, was based on the 1987 edition of ASTM D120.
Section 10.3.1 of ASTM D120-1987 lists four standard lengths for Class
0 rubber insulating gloves: 279, 356, 406, and 457 millimeters. Table 2
in that edition, however, listed 267 millimeters as the shortest length
glove even though the shortest standard length was 279 millimeters.
    Unlike the 1987 edition of the consensus standard, the latest
edition, ASTM D120-2009, rounds up the standard metric sizes. Thus, the
relevant consensus standards for rubber insulating gloves list four
standard sizes of 280, 360, 410, and 460 millimeters for Classes 00, 0,
1, 2, 3, and 4 gloves. The table in the 2009 edition of the consensus
standard corresponding to Table 2 in the 1987 edition lists a 280-
millimeter glove as the shortest one.
    Based on this information, OSHA concludes that the appropriate
length for the shortest glove is 280 millimeters. In addition, the
Agency does not consider the difference between the 280-millimeter
length recommended by Mr.

Muckerheide and the 267-millimeter proposed length to be substantial.
The 1987 and 2009 editions of the consensus standard each permit a
glove to vary from the standard length by as much as 13 millimeters.
Thus, a 280-millimeter glove can be as short as 267 millimeters.
However, to ensure consistency with the latest consensus standard, OSHA
is adopting, in Table E-1, both the 280-millimeter glove length in
place of the proposed 267-millimeter length and the rounded-up metric
sizes, as listed in the latest edition of the consensus standard.
    Paragraph (a)(2)(i)(B), which is being adopted as proposed,
requires the proof-test voltage to be applied continuously for 1 minute
for insulating matting and 3 minutes for other insulating equipment.
These times are derived from on the proof-test times given in the ASTM
design standards and are appropriate for testing the design
capabilities of electrical protective equipment.
    Paragraph (a)(2)(i)(C), which is being adopted as proposed,
requires rubber insulating gloves to be capable of withstanding the ac
proof-test voltage indicated in Table E-1 of the standard after a 16-
hour water soak. If rubber insulating gloves absorb water, a reduction
in insulating properties will result. Electrical work is sometimes
performed in the rain, and an employee's perspiration is often present
while the gloves are in use, so water absorption is a critical
property. The soak test is needed to ensure that rubber insulating
gloves can withstand the voltage involved under these conditions.
    It should be noted that the soak test is a separate test from the
initial proof test. Gloves must be capable of passing both tests.
    Paragraph (a)(2)(ii), which is being adopted as proposed, prohibits
the 60-hertz ac proof-test current from exceeding the values specified
in Table E-1 at any time during the test period. The currents listed in
the table have been taken from ASTM D120-09. This provision in the
final rule is important because, when an ac proof test is used on
gloves, the resulting proof-test current gives an indication of the
validity of the gloves' make-up, the dielectric constant of the type of
material used, its thickness, and the total area under test.
    Under paragraph (a)(2)(ii)(A), which is being adopted without
change from the proposal, the maximum current for ac voltages at
frequencies other than 60 hertz is computed from the direct ratio of
the frequencies. This provision ensures that maximum current is
equivalent for varying frequencies.
    Paragraph (a)(2)(ii)(B), which is being adopted as proposed,
specifies that gloves to be tested be filled with and immersed in water
to the depth given in Table E-3 and that water be added to or removed
from the glove as necessary to ensure that the water level is the same
inside and outside the glove. Table E-3 is derived from ASTM D120 and
is valid for the proof-test currents listed in Table E-1. During the ac
proof test, a gloves is filled with, and immersed in, water, and the
water inside and outside the glove forms the electrodes. The ac proof-
test current is dependent on the length of the portion of the glove
that is out of the water. Because the proof-test current is a function
of immersion depth, it is important to specify the depth in the
rule.\22\
---------------------------------------------------------------------------

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

    Paragraph (a)(2)(ii)(C) requires that, after the 16-hour water soak
specified in paragraph (a)(2)(i)(C), the 60-hertz proof-test current
not exceed the values given in Table E-1 by more than 2 milliamperes.
The allowable proof-test current must be increased for proof tests on
gloves after a 16-hour water soak because the gloves absorb a small
amount of water, which results in slightly increased current during the
test. The final rule was derived from ASTM D120, which allows an
increase in the proof-test current of 2 milliamperes. If the proof-test
current increases more than 2 milliamperes, it indicates that the
gloves absorbed too much water. OSHA has revised this provision in the
final rule to indicate more clearly that it is a requirement rather
than an exception.
    Paragraph (a)(2)(iii), which is being adopted without change from
the proposed rule, prohibits electrical protective equipment that has
been subjected to a minimum breakdown voltage test from being used to
protect employees from electrical hazards. The relatively high voltages
used in testing electrical protective equipment for minimum breakdown
voltage can damage the insulating material under test (even if the
equipment passes). The intent of this rule is to prohibit the use of
equipment that has been tested for minimum breakdown voltage under
conditions equivalent to those in the ASTM standards, because minimum
breakdown tests are destructive. Such tests are performed only on
equipment samples that are to be discarded.
    Paragraph (a)(2)(iv), which is being adopted as proposed, requires
ozone-resistant material (Type II) to be capable of withstanding an
ozone test that can reliably indicate that the material will resist
ozone exposure in actual use. Standardized ozone tests are given in the
ASTM specifications listed in the note following paragraph
(a)(3)(ii)(B), and compliance with these specifications will be deemed
compliance with this OSHA requirement. Around high-voltage lines and
equipment, a luminous discharge, called electric corona, can occur due
to ionization of the surrounding air caused by a voltage gradient that
exceeds a certain critical value. The blue corona discharge is
accompanied by a hissing noise and by ozone, which can cause damage to
certain types of rubber insulating materials. Therefore, when there is
a chance that ozone may be produced at a work location, electrical
protective equipment made of ozone-resistant material is frequently
used. The final rule ensures that ozone-resistant material will, in
fact, be resistant to the deteriorating effects of the gas. The final
rule also provides that visible signs of ozone deterioration, such as
checking, cracking, breaks, and pitting, are evidence of failure to
meet the requirements for ozone-resistant material.\23\
---------------------------------------------------------------------------

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

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

these imperfections may be present in the insulating materials without
significantly affecting the insulation. Paragraph (a)(3)(ii), which is
being adopted without change from the proposal, describes the types of
imperfections that are permitted. Even with these imperfections,
electrical protective equipment must be capable of passing the
electrical tests specified in paragraph (a)(2).
    Since paragraph (a) of final Sec.  1926.97 is written in
performance-oriented language, OSHA has included a note at the end of
the paragraph stating that rubber insulating equipment meeting the
requirements of the listed ASTM standards will be deemed in compliance
with the performance requirements of final Sec.  1926.97(a). This list
of ASTM standards references the latest revisions of those documents.
The Agency has reviewed the referenced ASTM standards and has found
them to provide suitable guidance for compliance with the performance
criteria of Sec.  1926.97(a).\24\
---------------------------------------------------------------------------

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

    Paragraph (b). Paragraph (b) of final Sec.  1926.97 addresses
electrical protective equipment other than the rubber insulating
equipment addressed in paragraph (a). Equipment falling under this
paragraph includes plastic guard equipment, insulating barriers, and
other protective equipment intended to provide electrical protection to
employees.
    Mr. Steven Theis, representing MYR Group, requested that OSHA
clarify that equipment complying with the ASTM and IEEE consensus
standards mentioned in the proposal would constitute compliance with
the final rule (Ex. 0162). In the proposal, OSHA pointed to ASTM F712.
OSHA has reviewed ASTM F712-06 (2011) and has found that it provides
suitable guidance for plastic guard equipment that employers can use to
comply with final Sec.  1926.97(b). To clarify the standard, OSHA has
added a new note to paragraph (b) to indicate that OSHA will consider
plastic guard equipment to conform to the performance requirements of
paragraph (b) if it meets, and is used in accordance with, ASTM F712-06
(2011).
    In the proposal, the Agency also pointed to IEEE Std 516, Guide for
Maintenance Methods on Energized Power Lines, as support for the
electrical criteria in proposed paragraph (b). The Agency has not
referenced this consensus standard in the final rule. The IEEE standard
does not contain specifications or test methods for electrical
protective equipment. Instead, that consensus standard contains work
methods for live-line work, including criteria for evaluating
insulating tools and equipment. The Agency notes that the criteria for
evaluating insulating tools and equipment specified in the IEEE
standard are equivalent to the design criteria for electrical
protective equipment contained in paragraph (b) in the final rule.
    Paragraph (b)(1), which is being adopted without substantive change
from the proposed rule, requires electrical protective equipment to be
capable of withstanding any voltage that might be imposed on it. The
voltage that the equipment must withstand includes transient
overvoltages, as well as the nominal voltage that is present on an
energized part of an electric circuit. Equipment withstands a voltage
if it maintains its integrity without flashover or arc through.
    Equipment conforming to a national consensus standard for that type
of equipment will generally be considered as complying with this rule
if that standard contains proof testing requirements for the voltage
involved. In the proposal, OSHA considered accepting electrical
protective equipment that was capable of passing a test equivalent to
that described in ASTM F712 or IEEE Std 516 for types of equipment not
addressed by any consensus standard. OSHA invited comments on whether
these standards contain suitable test methods and whether equipment
passing those tests should be acceptable under the OSHA standard.
    Rulemaking participants generally agreed that the consensus
standards provide suitable guidance for the equipment they addressed.
(See, for example, Exs. 0162, 0230.) For instance, IBEW stated:

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

Mr. Steven Theis of MYR Group agreed that the ``specified standards
contain suitable test methods'' (Ex. 0162).
    As noted previously, OSHA has reviewed ASTM F712-06 (2011) and
found that it provides suitable guidance for compliance with final
paragraph (b). The Agency has included a note in the final rule to
indicate that plastic guard equipment is deemed to conform to the
performance requirements of paragraph (b) if the equipment conforms to
that consensus standard.
    ASTM maintained that none of the ASTM standards listed in the
proposed standard contain an impulse test method for transient
overvoltages (Ex. 0148). The organization recommended that the final
rule reflect the current referenced consensus standards.
    ASTM misconstrues paragraph (b)(1) of the final rule. Paragraph
(b)(1) of the final rule does not require impulse testing as ASTM
alleges. Rather, it is a performance requirement that equipment be
capable of withstanding both the steady-state voltages and transient
(or impulse) overvoltages, to which it will be subjected. Both types of
voltages can appear across the equipment during use. (See the summary
and explanation for final Sec.  1926.960(c)(1), later in this section
of the preamble, for a discussion of maximum transient overvoltages
that can appear on electric power lines and equipment.)
    The typical test method contained in the ASTM standards for
determining minimum breakdown voltage (or withstand voltage) requires
testing at substantially higher voltages than those on which the
equipment will be used. (See, for example, Exs. 0048, 0053, 0071.) In
addition, minimum breakdown voltage testing is performed using a
steadily rising ac voltage, in contrast to impulse testing, in which
the overvoltage is applied for a very short period (id.). As noted in
IEEE Std 516-2009, the existing standards for insulating tools and
equipment do not address whether equipment passing the ac withstand
voltage tests in those standards will also withstand transient voltage
stresses (Ex. 0532). However, the IEEE standard suggests the use of a
1.3 ratio to convert ac withstand voltages to impulse, or transient,
voltages (id.). While the IEEE standard notes that research in this
area is ongoing, OSHA concludes that, in the absence of better
information, employers may rely on this ratio and multiply the ac
minimum breakdown voltage for protective equipment by this value to
determine if that equipment can withstand the expected transient
overvoltages on energized circuits. For example, insulating equipment
with a minimum breakdown, or withstand, voltage of 20,000 volts is
capable of withstanding a maximum transient overvoltage of 26,000
volts. This equipment would be acceptable for use to protect employees
from phase-to-ground exposures on a circuit operating at 15-kilovolt,
phase-

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

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

    The Alabama Rural Electric Association of Cooperatives, requested
that OSHA provide a definition of ``transient overvoltage'' and a
suggested method of calculation (Ex. 0224).
    IEEE Std 516-2009 contains the following suitable guidance
(although, as stated earlier, the standard does not contain
specifications or test methods for electrical protective equipment).
First, the IEEE standard contains the industry-recognized definition of
``transient overvoltage,'' which reads as follows:

    Voltage that exceeds the maximum operating line-to-ground
voltage. This voltage may be the result of a transient or switching
surge. [Ex. 0532 \26\]
---------------------------------------------------------------------------

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

    Second, the IEEE consensus standard contains methods of determining
the maximum transient overvoltage on an electric power generation,
transmission, or distribution system and, as noted earlier, discusses
comparing the ability of insulation equipment to withstand a transient
overvoltage based on its ability to withstand voltages under more
typical testing conditions (Ex. 0532). OSHA has not duplicated this
information in Sec.  1926.97. It is copyrighted information that is
publicly available. However, OSHA concludes that the IEEE standard
provides suitable guidance that can assist employers in complying with
paragraph (b)(1) and has added a reference to that consensus standard
in the note following that paragraph in the final rule.
    The proposed rule invited comments on the need to set specific
electrical performance values in the standard and on whether the
electrical test criteria in ASTM F968 \27\ (which were summarized in
Table IV-1 and Table IV-2 of the preamble to the proposal (70 FR
34830)) could be applied to all types of electrical protective
equipment covered by proposed paragraph (b). IBEW commented that the
test values and use values in ASTM F968 are appropriate for
electrically insulating plastic guard equipment, but suggested that the
values are not suitable for other types of equipment because plastic