\381\ OSHA is aware that some FR clothing, such as children's FR
sleepwear and certain types of FR clothing made specifically for
protection from contact with molten metal, are not arc rated.

    OSHA disagrees with Mr. Glazier. FR clothing, even without an arc
rating, protects employees against burns caused by radiant and
convective heat as well as burns caused by potential ignition of
clothing that is not flame resistant. Dr. Thomas Neal testified that FR
clothing ``not only [does not] ignite and, basically, eliminate[s] the
burning clothing on the body syndrome, but [it] also provide[s] a level
of protection by blocking heat from reaching the body'' (Tr. 472). Dr.
Capelli-Schellpfeffer similarly testified that ``FR clothing . . . is
protective and designed to resist ignition and block heat transfer''
(Tr. 189). An arc-rating on FR clothing is a measure of how much
incident energy can be present before the wearer will just barely
sustain a second-degree burn (Ex. 0061). Clearly, arc-rated clothing
and FR clothing (even without an arc rating) protect employees from
being burned by electric arcs and are, therefore, protective.
    Mr. Frank White with ORC Worldwide expressed concern that OSHA
would consider untreated cotton clothing to be PPE (Ex. 0235). He noted
that Table 10 in proposed Appendix F listed untreated cotton clothing
as ``protective'' for incident energy up to 2 cal/cm\2\ and that ``at
higher incident energy exposures a [T]-shirt is listed as the first
layer of protective clothing, followed by other layers of FR clothing''
(id.). Mr. White also interpreted Table 11 from proposed Appendix F,
which listed ignition thresholds for various weights of cotton fabrics,
as indicating that these fabrics provide ``protection from heat energy
below the ignition threshold'' (id.).
    Untreated cotton can ignite and continue to burn when subjected to
incident heat energy above its ignition threshold (Tr. 467-469, 472).
OSHA does not consider cotton clothing, which can ignite and pose a
hazard itself, as constituting protective clothing with respect to
electric arcs common to work covered by the final rule. Therefore, OSHA
did not include Table 10 or Table 11 from proposed Appendix F in final
Appendix E. (See also the summary and explanation for the appendices to
Subpart V, later in this section of the preamble.) Finally, even though
wearing cotton clothing as one

layer in a clothing system can effectively increase the arc-rating of
the system, OSHA does not consider cotton clothing to be
protective.\382\
---------------------------------------------------------------------------

    \382\ Note that, even if cotton clothing in these circumstances
were PPE, Sec. Sec.  1910.132(h)(4)(ii) and 1926.95(d)(4)(i) exempt
``everyday clothing'' from the employer-payment requirements in
Sec. Sec.  1910.132(h) and 1926.95(d).
---------------------------------------------------------------------------

    Some commenters maintained that OSHA needed to conduct a separate
rulemaking to determine whether FR clothing is PPE. (See, for example,
Exs. 0170, 0183, 0202, 0207, 0222, 0229, 0233, 0239, 0240.) For
instance, Mr. Alan Blackmon with Blue Ridge Electric Cooperative
commented that, if ``OSHA institutes an arc protective clothing
requirement, its nature as PPE or non-PPE should be the subject of
public notice and comment. It is not enough for OSHA merely to issue a
pronouncement in the Preamble of this rulemaking'' (Ex. 0183).
    The U.S. SBA's Office of Advocacy suggested that ``the issue of
protective clothing as PPE [was] not . . . fully vetted in the
rulemaking process'' and recommended that ``OSHA address the issues of
protective clothing, PPE, and employer payment for PPE in the PPE
rulemaking process and not finalize these provisions prior to that
rulemaking's conclusion'' (Ex. 0207).
    As noted earlier, existing OSHA policy treats FR clothing (whether
or not it is arc rated) as PPE. OSHA's statement in the preamble to the
proposed rule simply reaffirmed that position. Although the Agency does
not believe notice and comment is necessary on this issue (see, for
example, 5 U.S.C. 553(b) (APA notice and comment requirements do not
apply ``to interpretative rules'')), affected parties had clear notice
in the preamble to this rulemaking that the Agency was considering
whether employers would have to pay for the arc-rated clothing required
by the final rule (an issue discussed later in this section of the
preamble). OSHA believes that the public also had clear notice that the
Agency considered FR clothing to be PPE and had ample opportunity to
challenge the Agency on that point as it relates to this rulemaking.
Consequently, OSHA concludes that there is no need to conduct further
rulemaking related to the issue of whether FR clothing is PPE.
    Who should pay for the PPE required by paragraph (g) of the final
rule? As explained earlier, OSHA considers FR clothing and arc-rated
clothing required by the final rule to be PPE. The proposed rule did
not specify whether employers would have to provide protective clothing
at no cost to employees. However, OSHA noted in the preamble to the
proposal that it was considering including an employer-payment
requirement in the final rule and sought comments on the issue.
    The preamble to the proposal also noted that OSHA had proposed
regulatory language for the general PPE standards to clarify that
employers generally are responsible for the cost of PPE (70 FR 34869,
citing 64 FR 15402, Mar. 31, 1999). OSHA published the final rule on
employer payment for PPE on November 15, 2007 (72 FR 64342). The final
rule on employer payment for PPE requires employers to pay for the PPE
used to comply with OSHA standards, with a few exceptions, including
(1) everyday clothing, such as longsleeve shirts, long pants, street
shoes, and normal work boots; and (2) ordinary clothing, skin creams,
or other items, used solely for protection from weather, such as winter
coats, jackets, gloves, parkas, rubber boots, hats, raincoats, ordinary
sunglasses, and sunscreen. (See 29 CFR 1910.132(h); 29 CFR 1926.95(d).)
    In the PPE-payment rulemaking, OSHA explained the rationale behind
its decision to require employers generally to pay for PPE, as follows:

1. The OSH Act Requires Employer Payment for PPE

    OSHA is requiring employers to pay for PPE used to comply with
OSHA standards in order to effectuate the underlying cost allocation
scheme in the OSH Act. The OSH Act requires employers to pay for the
means necessary to create a safe and healthful work environment.
Congress placed this obligation squarely on employers, believing
such costs to be appropriate in order to protect the health and
safety of employees. This final rule does no more than clarify that
under the OSH Act employers are responsible for providing at no cost
to their employees the PPE required by OSHA standards to protect
employees from workplace injury and death.
* * * * *

2. The Rule Will Result in Safety Benefits

    Separate from effectuating the statutory cost allocation scheme,
this rule will also help prevent injuries and illnesses. OSHA has
carefully reviewed the rulemaking record and finds that requiring
employers to pay for PPE will result in significant safety benefits.
As such, it is a legitimate exercise of OSHA's statutory authority
to promulgate these ancillary provisions in its standards to reduce
the risk of injury and death.
    There are three main reasons why the final rule will result in
safety benefits:
     When employees are required to pay for their own PPE,
many are likely to avoid PPE costs and thus fail to provide
themselves with adequate protection. OSHA also believes that
employees will be more inclined to use PPE if it is provided to them
at no cost.
     Employer payment for PPE will clearly shift overall
responsibility for PPE to employers. When employers take full
responsibility for providing PPE to their employees and paying for
it, they are more likely to make sure that the PPE is correct for
the job, that it is in good condition, and that the employee is
protected.
     An employer payment rule will encourage employees to
participate wholeheartedly in an employer's safety and health
program and employer payment for PPE will improve the safety culture
at the worksite.
* * * * *

3. Clarity in PPE Payment Policy

    Another benefit of the final PPE payment rule is clarity in
OSHA's policy. While it is true that most employers pay for most PPE
most of the time, the practices for providing PPE are quite diverse.
Many employers pay for some items and not for others, either as a
matter of collective bargaining or long standing tradition. In some
cases, costs are shared between employees and employers. In other
workplaces, the employer pays for more expensive or technologically
advanced PPE while requiring employees to pay for more common items.
However, in some workplaces exactly the opposite is true. [72 FR
64344]

    OSHA concludes that there is no evidence in the Subpart V
rulemaking record to persuade the Agency that any of these reasons
are invalid with respect to FR and arc-rated clothing. As explained
later, OSHA considered and rejected nearly all of the arguments
against an employer-payment requirement for FR and arc-rated
clothing in the PPE-payment rulemaking. As noted previously, OSHA
specifically considered FR clothing in the PPE-payment rulemaking
and concluded in the preamble to the final PPE-payment rule that,
``[i]f OSHA determines in [the Subpart V] rulemaking that FR
clothing is required, it will then become subject to the PPE payment
provisions of this rule, unless the final Sec.  1910.269 and Part
1926 Subpart V standards specifically exempt FR clothing from
employer payment'' (72 FR 64353). Therefore, the default position
for the Subpart V rulemaking is that employers must pay for the FR
and arc-rated clothing required by this final rule unless the Agency
adopts provisions specifically exempting this clothing from the
general PPE-payment rule. Also, for reasons described later, OSHA
concludes that such an exemption is neither necessary nor
appropriate for the FR or arc-rated clothing required under
paragraph (g) of this final rule. The general PPE-payment rule,
including all exceptions, applies to the FR and arc-rated clothing
used to comply with this final rule. (See 72 FR 64369.)
    Several rulemaking participants supported requiring employers to
pay for the FR clothing and arc-rated clothing required by the final
rule. (See, for example, Exs. 0130, 0164, 0197, 0211, 0230, 0505;
Tr. 819-820, 834, 897-898.) These rulemaking participants gave
several reasons for supporting an employer-payment requirement:
     Many employers already are providing this protective
clothing (Exs. 0230, 0505; Tr. 897-898),
     Employers are more likely to properly train employees
in using PPE (Ex. 0211),

     Employers are more likely to select, and ensure that
employees wear, proper protective clothing (Exs. 0197, 0211, 0230),
     Employers are more likely to properly maintain the
protective clothing (Exs. 0130, 0211, 0230), and
     The OSH Act requires employers to pay for this type of
protection (Tr. 848--849).
    Other commenters opposed an employer-payment requirement. (See,
for example, Exs. 0099, 0125, 0146, 0169, 0173, 0186, 0201, 0209,
0222; Tr. 546--547.) These rulemaking participants presented the
following reasons for not imposing such a requirement:
     The difficulty and expense contractors would have
buying protective clothing for employees who move from employer to
employer (Exs. 0169, 0186),
     Employees take better care of clothing when they pay at
least a portion of the cost (Exs. 0099, 0186),
     Employers consider protective clothing a ``tool of the
trade'' that employees must bring with them to the job (Ex. 0222;
Tr. 295-297),
     FR and arc-rated clothing only provides secondary
protection (Exs. 0209, 0210), and
     Protective clothing is personal because employees can
wear it off the job (Exs. 0125, 0146, 0173, 0209, 0222).
    OSHA examined several of these arguments in the PPE-payment
rulemaking. For example, the Agency explained how employers could
handle the problems associated with transient workforces:

    If the employer retains ownership of the PPE, then the employer
may require the employee to return the PPE upon termination of
employment. If the employee does not return the employer's
equipment, nothing in the final rule prevents the employer from
requiring the employee to pay for it or take reasonable steps to
retrieve the PPE, in a manner that does not conflict with federal,
state or local laws concerning such actions. In these situations,
OSHA notes that the employer is not allowed to charge the employee
for wear and tear to the equipment that is related to the work
performed or workplace conditions. As suggested by National Tank
Truck Carriers, Inc., a written agreement, for example, between the
employer and employee on the matter may be an effective method of
ensuring that the employer's expectations of the employee are clear
and unambiguous . . . . Another acceptable alternative is a deposit
system that provides an incentive for employees to return the
equipment. However, the Agency cautions that the deposit system must
not be administered in a fashion that circumvents the rule and
results in an employee involuntarily paying for his or her PPE.
    In some situations, an employer may prohibit an employee from
using PPE that the employer has paid for while working for another
employer. . . . Conversely, an employer may allow an employee to use
employer-owned PPE while working for another employer. . . . Since
the employer has retained ownership of the PPE, he or she can
stipulate where it is used. OSHA does not object to either of the
aforementioned practices. [72 FR 64359]

    The same solutions apply here. OSHA notes that the record in this
rulemaking describes another possible solution for contractors
employing unionized labor. Mr. Jules Weaver with Western Line
Constructors Chapter testified that ``[t]here are certain parts of the
country in our industry, IBEW and [NECA], have a . . . safety fund, and
the contractors pay into it, and they provide FR clothing for
individuals'' (Tr. 307). Thus, although providing employees with PPE,
including FR clothing and arc-rated clothing, might be challenging for
employers with transient workforces, the Agency believes that there are
reasonable compliance options available.
    In the PPE-payment rulemaking, the Agency rejected an argument that
employees take better care of PPE than employers, explaining: ``OSHA is
also not swayed by [the] arguments that employees are in a better
position to maintain, use, and store PPE. In fact, the existing PPE
standards place on employers the responsibility for ensuring proper
fit, use, and maintenance of PPE'' (72 FR 64380). The same rationale
applies to the argument in this rulemaking that employees take better
care of protective clothing when they pay for all, or a portion, of it.
The OSH Act and the PPE standards at Sec. Sec.  1910.132 and 1926.95
make the employer, not the employee, responsible for the care and
maintenance of PPE.
    In the PPE-payment rulemaking, the Agency decided not to exempt
``tools of the trade,'' stating:

    As discussed previously and noted by many commenters, in some
trades, industries, and/or geographic locations, PPE for employees
who frequently change jobs can take on some of the qualities of a
``tool of the trade.'' In other words, the PPE is an item that the
employee traditionally keeps with his or her tool box. This may be
because the PPE is used while performing some type of specialized
work, such as welding or electrical work, or because it is a
tradition in the industry, such as in home building. OSHA has not
included an exception to the payment requirement for tools of the
trade because, among other things, of the difficulty of defining,
with adequate precision, when an item of PPE is or is not a tool of
the trade. However, because the rule does not require employers to
reimburse employees for PPE they already own, it recognizes that
some employees may wish to own their tools of the trade and bring
that equipment to the worksite.
    OSHA has further emphasized in the regulatory text that
employees are under no obligation to provide their own PPE by
stating that the employer shall not require an employee to provide
or pay for his or her own PPE, unless the PPE is specifically
excepted in the final rule. These provisions address the concern
that employers not circumvent their obligations to pay for PPE by
making employee ownership of the equipment a condition of employment
or continuing employment or a condition for placement in a job. OSHA
recognizes that in certain emergency situations, such as response to
a natural disaster, where immediate action is required, it may be
necessary for employers to hire or select employees already in
possession of the appropriate PPE. As a general matter, however,
employers must not engage in this practice. Taking PPE-ownership
into consideration during hiring or selection circumvents the intent
of the PPE standard and constitutes a violation of the standard. [72
FR 64358-64359]

    The same rationale applies here.
    OSHA also rejects the argument that, because FR and arc-rated
clothing is secondary protection, the Agency should not require
employers to pay for it. As noted earlier, PPE is part of a hierarchy
of controls. OSHA standards typically require other forms of controls,
such as engineering and work-practice controls, in preference to PPE.
In many cases, PPE supplements engineering controls and forms a second
line of defense to protect employees in the event that other types of
controls do not provide complete abatement of the relevant hazard. For
example, existing Sec. Sec.  1910.67(c)(2)(v) and 1926.453(b)(2)(v)
require employees working from aerial lifts to wear personal fall
protection equipment because that PPE would protect the workers in case
the engineering controls (that is, the guardrails or bucket walls on
the aerial lift platforms or buckets) do not provide sufficient
protection. (See, also, the preamble to the final rule on respiratory
protection, 29 CFR 1910.134 and 29 CFR 1926.103, which notes:
``Respiratory protection is a backup method which is used to protect
employees from toxic materials in the workplace in those situations
where feasible engineering controls and work practices are . . . not in
themselves sufficient to protect employee health . . .'' (63 FR 1156-
1157, Jan. 8, 1998).) Consequently, OSHA standards often consider PPE
``secondary'' protection. FR and arc-rated clothing is not unique in
this regard. In any event, where this final rule requires FR or arc-
rated clothing, OSHA determined that it is necessary for employee
protection (as described previously) and, thus, the rationale for
requiring employers to pay for this type of PPE still applies.
    In the PPE-payment rulemaking, OSHA also considered exempting types
of PPE that were ``personal in nature.'' \383\ However, instead of

exempting all such personal PPE, the Agency chose to evaluate various
types of personal PPE individually. First, OSHA chose not to require
employer payment for everyday clothing or ordinary clothing used solely
for protection from weather. The Agency explained the reasoning for
this decision as follows:
---------------------------------------------------------------------------

    \383\ For the purposes of this discussion, OSHA considers PPE
that is ``personal in nature'' to be PPE fitted to an individual
employee and not shared by other employees and that the employee can
use off the job.

    OSHA does not believe that Congress intended for employers to
have to pay for everyday clothing and ordinary clothing used solely
for protection from the weather. While serving a protective function
in certain circumstances, employees must wear such clothing to work
regardless of the hazards found. OSHA is exercising its discretion
through this rulemaking to exempt jeans, long sleeve shirts, winter
coats, etc., from the employer payment requirement. As stated, this
is consistent with OSHA's intent in the proposal and is also
supported by the rulemaking record. A number of commenters stated
that OSHA should exempt these items from the employer payment
requirement . . .
    Thus, OSHA is not requiring employers to pay for everyday
clothing even though they may require their employees to use such
everyday clothing items such as long pants or long-sleeve shirts,
and even though they may have some protective value. Similarly,
employees who work outdoors (e.g., construction work) will normally
have weather-related gear to protect themselves from the elements.
This gear is also exempt from the employer payment requirement. [72
FR 64349]

    The PPE-payment rule also exempts nonspecialty safety-toe
protective footwear, provided the employer permits employees to wear it
off the jobsite.\384\ OSHA explained this exemption as follows:
---------------------------------------------------------------------------

    \384\ The PPE-payment rule provides additional exemptions for
such items as nonspecialty prescription safety eyewear. However, the
rationale behind those exemptions sheds no additional light on
whether FR and arc-rated clothing should or should not be subject to
the general employer-payment requirement.

    OSHA has historically taken the position that safety-toe
protective footwear has certain attributes that make it unreasonable
to require employers to pay for it in all circumstances . . . .
Safety footwear selection is governed by a proper and comfortable
fit. It cannot be easily transferred from one employee to the next.
Unlike other types of safety equipment, the range of sizes of
footwear needed to fit most employees would not normally be kept in
stock by an employer and it would not be reasonable to expect
employers to stock the array and variety of safety-toe footwear
necessary to properly and comfortably fit most individuals.
    Furthermore, most employees wearing safety-toe protective
footwear spend the majority of their time working on their feet, and
thus such footwear is particularly difficult to sanitize and reissue
to another employee. Other factors indicate as well that employers
should not be required to pay for safety-toe protective footwear in
all circumstances. Employees who work in non-specialty safety-toe
protective footwear often wear it to and from work, just as
employees who wear dress shoes or other non-safety-toe shoes do. In
contrast, employees who wear specialized footwear such as boots
incorporating metatarsal protection are likely to store this type of
safety footwear at work, or carry it back and forth between work and
home instead of wearing it. . . . OSHA does not believe that
Congress intended for employers to have to pay for shoes of this
type.
    For all of these reasons, OSHA has decided to continue to exempt
nonspecialty safety shoes from the employer payment requirement.
OSHA, however, also wants to make clear that this exemption applies
only to non-specialty safety-toe shoes and boots, and not other
types of specialty protective footwear. Any safety footwear that has
additional protection or is more specialized, such as shoes with
non-slip soles used when stripping floors, or steel-toe rubber
boots, is subject to the employer payment requirements of this
standard. Put simply, the exempted footwear provides the protection
of an ordinary safety-toe shoe or boot, while footwear with
additional safety attributes beyond this (e.g., shoes and boots with
special soles) fall under the employer payment requirement. [72 FR
64348]

    FR and arc-rated clothing is not ``everyday clothing'' or
``ordinary clothing . . . used solely for protection from weather'' as
OSHA used those terms in the exemptions from the PPE-payment rule. This
is not clothing that employees would purchase on their own to wear
every day or to wear for protection against the weather. Although
employees could wear it off the job, FR and arc-rated clothing command
a premium above the price of normal clothing. OSHA estimates that a
single set of flame-resistant apparel costs $191.75, on average. (See
Section VI, Final Economic Analysis and Regulatory Flexibility
Analysis, later in the preamble.) OSHA estimates that normal work
clothing would cost half that amount. Winter-weather gear that is
flame-resistant or arc-rated commands a greater premium. Evidence in
the record indicates that non-FR winter wear may cost about $60 to
$120, whereas similar FR winter wear could cost as much as $300 (Tr.
1024-1026).
    In addition, FR and arc-rated clothing provides more than
incidental protection. As explained earlier, manufacturers design these
garments specifically to protect against clothing ignition and incident
heat energy. Consequently, OSHA determined that the rationale for
exempting ``everyday clothing'' and ``ordinary clothing . . . used
solely for protection from weather'' from the final PPE-payment rule
does not apply to FR or arc-rated clothing, and OSHA is not
interpreting these exemptions specified in the PPE-payment rule as
covering the FR and arc-rated clothing required by final Sec.
1926.960(g).
    FR and arc-rated clothing shares some attributes with nonspecialty
safety-toe protective footwear. Employers normally may not keep in
stock the range of sizes of pants, shirts, and other clothing needed to
fit most employees,\385\ and it would not be reasonable to expect
employers to stock the array and variety of clothing necessary to
properly and comfortably fit most individuals. In addition, employees
who work in FR or arc-rated clothing may sometimes wear it to and from
work, just like employees who wear ordinary clothing.
---------------------------------------------------------------------------

    \385\ There are ways to provide FR and arc-rated clothing to
employees that do not require the employer to maintain stocks of
clothing, including using a clothing rental or uniform service and
providing a clothing allowance so that employees can purchase their
own clothing (Tr. 1134).
---------------------------------------------------------------------------

    On the other hand, FR and arc-rated clothing does not have some of
the other characteristics that formed the basis of OSHA's decision to
exempt nonspecialty safety-toe protective footwear from PPE-payment
requirements. FR clothing is not exempt from requirements for employer
payment in other workplaces, such as steel plants, where an OSHA
standard, such as Sec.  1910.132(a), requires it. Furthermore,
employers can sanitize this clothing easily for use by other employees.
In fact, evidence in the record indicates that some employers currently
use uniform-supply companies to provide and launder FR and arc-rated
clothing (Ex. 0230). In addition, employers can purchase arc-rated
clothing in a wide variety of ratings and are in a better position to
make purchasing decisions with respect to arc rating than employees,
which is not true of nonspecialty safety-toe protective footwear. OSHA
concludes that FR and arc-rated clothing do not have all the attributes
on which the Agency based its rationale for exempting nonspecialty
safety-toe protective footwear; and, therefore, OSHA is not granting a
similar exemption from the employer payment requirements for this
clothing.
    Moreover, OSHA believes that the record in this rulemaking
demonstrates that, similar to most OSHA requirements for PPE, employee
safety will significantly benefit from a requirement that employers
provide FR and arc-rated clothing at no cost to employees. Employers
generally need to ensure that the clothing worn by

employees has an arc rating at least as high as the employer's
incident-energy estimates. Selecting the proper clothing sometimes will
involve determining the rating of an entire clothing system; such a
determination is likely beyond the capability of individual employees,
but is within an employer's capability. For example, Dr. Thomas Neal
testified:

    [T]he only sure way [to obtain a rating for a layered clothing
system] is to measure the arc rating for the system. [I]t's not [a]
situation where you could have an arc rating for three different
layers that you put those on top of each other, just add them
together. That doesn't work. [Tr. 500]

In addition, as discussed later in this section of the preamble,
clothing maintenance can substantially impact the ability of FR and
arc-rated clothing to protect employees. Employers are in a better
position to make purchasing decisions based on clothing maintenance
needs than employees.
    While considerations regarding clothing selection and maintenance
address principally arc-rated clothing, the Agency believes that
requiring employers to purchase arc-rated but not FR clothing would cut
too fine a line through OSHA's rationale. It is OSHA's understanding
that most FR clothing, especially work clothing, has an arc rating (Tr.
545), and the Agency believes that employers will use arc-rated
clothing (which is always flame-resistant) to meet the requirement in
final paragraph (g)(4) for FR clothing. In this regard, it seems
unlikely that employers will purchase one set of clothing to meet final
paragraph (g)(4) and a different set of clothing to meet final
paragraph (g)(5).
    Some employers recommended that OSHA exempt clothing of various
types, or having a specified minimum arc rating, from any requirement
that employers pay for FR or arc-rated clothing. (See, for example,
Exs. 0125, 0149, 0167; Tr. 295-297.) For instance, Mr. Ward Andrews
with Wilson Construction recommended that employees come to the job in
a minimum level of protective clothing and that employers pay for any
higher level of protection needed for a particular exposure (Tr. 295-
297). He justified his recommendation as follows:

    [I]t is our belief that journeyman linemen should come to work
with basic tools. And we believe a Level one FR garment would be a
basic tool to do his everyday task.
    [O]ur position is that they should come to work with those basic
tools. And that is the minimum level one protection for the average
distributional circuit here in America.
* * * * *
    So we agree that at level one, basic [attire] should be
clothing, as part of their job requirement, to step on. And then as
they associate a job with hazards, and a higher level of protection
needs to be provided, then surely that contractor should provide
those additional levels.
    [W]e look [at] a journeyman lineman today, and we realize that
he brings in his climbing belt, his positioning belt, his skid, his
line boots. I believe that his positioning belt falls under--his
line belt is a positioning belt, which is considered personal
protective equipment. They provide that as tool that they bring to
the job. So once again, I think that's evidence to--the same thing
as a shirt, a very basic component that they should wear as
journeyman lineman.
    They provide their own raingear. They provide their own clothing
right now. Your rule as proposed would say the most outer garment
should be FR resistant. I believe that these basic tools that they
now require, they should still provide, and you should give them
time to buy FR raingear and clothes. [Tr. 295-297]

    This argument is identical to the argument made for tools of the
trade. In the PPE-payment rulemaking, OSHA rejected that argument for
tools of the trade, as described earlier, and the Agency rejects this
argument as it applies to FR and arc-rated clothing for the same
reasons.
    For the foregoing reasons, OSHA determined that employers must
provide FR and arc-rated clothing at no cost to employees, and OSHA is
not exempting this protective clothing from the PPE-payment rule. The
requirements in Sec. Sec.  1910.132(h) and 1926.95(d) apply to FR and
arc-rated clothing; and, therefore, OSHA is not adding PPE-payment
provisions to Sec.  1910.269 or Subpart V.\386\
---------------------------------------------------------------------------

    \386\ OSHA does not consider the FR and arc-rated clothing
required by this final rule to be the type of everyday or ordinary
clothing exempted from the PPE-payment rules in Sec. Sec.  1910.132
and 1926.95.
---------------------------------------------------------------------------

    Some employees performing work covered by this final rule may
already own FR or arc-rated clothing. The PPE-payment requirements in
Sec. Sec.  1910.132(h)(6) and 1926.95(d)(6) provide that, when an
employee provides adequate protective equipment that he or she owns,
the employer may allow the employee to use it and need not reimburse
the employee for the equipment. However, those provisions also prohibit
the employer from requiring an employee to provide or pay for his or
her own PPE, unless the PPE-payment requirement exempts the PPE.
Accordingly, paragraph (h)(6) of Sec.  1910.132 and paragraph (d)(6) of
Sec.  1926.95 apply to the FR and arc-rated clothing required by this
final rule.
    Maintenance of FR and arc-rated clothing. Some rulemaking
participants stressed the importance of proper maintenance of the FR
and arc-rated clothing required by the standard (Exs. 0130, 0186, 0325;
Tr. 830-831, 834-839). For example, NIOSH stated that ``[c]lothing
maintenance is required for arc-rated FR clothing to provide continued
protection at its rated arc thermal performance value'' (Ex. 0130). Mr.
Eric Frumin with UNITE HERE testified:

    Regarding the FR uniform programs in which the employees wash
the garments themselves, there are number of factors that make it
difficult or impossible for employees themselves to preserve the FR
characteristics of the garments, contamination of the garment,
inadequate training about the proper care of the garment, how do you
maintain the physical integrity of it, the proper materials to use
for repairing defects, proper laundering techniques, what kinds of
cleaning agents or bleaching agents to avoid and so forth.
    And of course maintaining a proper number of garments to be
available so that workers always have them. . . .
    A number of these problems are mentioned in the standard, [ASTM]
1449 and recommends the use of professional laundering services.
Likewise NIOSH in its comments for this hearing said, ``The emphasis
that manufacturers place on proper laundering to maintain the FR
characteristics of their garment suggests the need for professional
laundering.'' So these are important things for OSHA to be mindful
of as far as possibly assur[ing] that quality of the FR garments is
maintained even when employees are washing the garments themselves.
    Now I would like to address that question of maintenance of
consistent high quality laundering of FR clothing. Employers have a
critical role to play here and that's envisioned in the ASTM
standard. Likewise, NFPA 70E talks about the need specifically for
careful inspection of clothing and kinds of interferences,
contamination, damage and takes the position that defective clothing
shall not be used. Very important. [Tr. 835-836]

Mr. Frumin cited two examples of a contract uniform service that failed
to properly maintain the FR clothing they serviced (Tr. 836-838). Mr.
John Devlin with the Utility Workers Union of America also described
examples of inadequate maintenance of FR clothing:

This shirt was sent in several times and it continually came back
with a hole that was never repaired even though it was requested
twice. These pants were sent out twice with the repair tag for the
frayed bottoms of the trousers to be either shortened or repaired in
some manner. The answer that Cintas did was they sent back a pair of
new trousers. The only problem there was no belt loops. [Tr. 821]

Mr. Frumin urged OSHA to ``require . . . employers to obtain with each
delivery a certification from their suppliers that the correct number
of garments has been provided, that they

are free of defects and contamination that could compromise the FR
protection'' (Tr. 838).
    The record indicates that there are a variety of methods currently
in use to maintain FR and arc-rated clothing. Some employers have their
employees launder and maintain this clothing. (See, for example, Tr.
305-306, 1192--1193.) Other employers hire laundering or uniform
services to perform those functions. (See, for example, Tr. 388, 821.)
OSHA stresses that Sec. Sec.  1910.132(a) and (b) and 1926.95(a) and
(b) require employers to properly maintain FR and arc-rated clothing
required by this final rule. These provisions make PPE maintenance the
responsibility of employers, not employees. The Agency is declining to
adopt Mr. Frumin's suggestion to require employers to have suppliers
certify that each delivery of FR clothing is free of defects and
contamination because OSHA believes that it is the employer's
responsibility to ensure proper maintenance of PPE. There are ways of
ensuring proper maintenance of FR and arc-rated clothing that do not
rely on the certification of a supplier. For example, employers can
inspect this clothing before accepting it, and they can return it to
the supplier if they find defects or contaminants on the clothing. In
any event, the responsibility for maintaining PPE rests squarely with
the employer under existing OSHA standards.
    The Agency is not prohibiting home laundering of FR and arc-rated
clothing. However, to comply with Sec.  1910.132 or Sec.  1926.95,
employers cannot simply instruct employees to follow manufacturers'
instructions.\387\ If employers rely on home laundering of the
clothing, they must train their employees in proper laundering
procedures and techniques, and employers must inspect the clothing on a
regular basis to ensure that it is not in need of repair or
replacement. Evidence in the record indicates that some employers
already are performing these functions. (See, for example, Tr. 1193.)
---------------------------------------------------------------------------

    \387\ See also a memorandum from Richard E. Fairfax, Director,
Directorate of Enforcement Programs, and Steven Witt, Director,
Directorate of Cooperative and State Programs, dated March 19, 2010,
detailing OSHA's enforcement policy for flame-resistant clothing in
oil and gas drilling, well servicing, and production-related
operations http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=27296.
---------------------------------------------------------------------------

    Protecting employees from flying debris from electric arcs. Two
rulemaking participants recommended that OSHA require protection from
flying debris that results from electric arcs (Exs. 0340, 0342, 0378;
Tr. 253-268, 274-283). Mr. Nestor Kolcio with 2K Consultants argued
that a substantial number of injuries result from the flying debris,
which he called ``fragmentation'' or ``shrapnel,'' released in an
electric arc-flash incident (Ex. 0342). Using OSHA's preliminary
regulatory analysis as a baseline, he estimated that 17 injuries from
flying debris occur annually in work covered by the final rule (id.).
He stated that these injuries result from work activities such as
pulling fuses and end caps, working on dead-front transformers,
installing lightning arresters, and operating load-break switches
(id.). Mr. Jim Stillwagon with Gary Guard described injuries that
occurred from flying debris caused by electric arcs, including an eye
injury and a chest injury in which debris ``settled in the [worker's]
aort[ic] valve'' (Tr. 276-280). Mr. Kolcio and Mr. Stillwagon
recommended that OSHA require protection, in the form of shields on
live-line tools, from injuries caused by flying debris resulting from
electric arcs that occur when employees are using live-line tools (Tr.
268, 274-275). Mr. Kolcio also noted that the existence of IEEE and
ASTM standards covering these shields, as well as various scientific
papers, indicated the need for such protection (Tr. 265-267).
    OSHA agrees with Messrs. Kolcio and Stillwagon that electric arcs
pose hazards in addition to the thermal hazards addressed by the final
rule. Dr. Mary Capelli-Schellpfeffer testified that electric arcs can
result in ``sprayed or blown hot or melting installation elements,
moved by the mechanical forces in the electric arc event'' (Tr. 187).
Also, NFPA 70E-2004 warned that ``[d]ue to the explosive effect of some
arc events, physical trauma injuries could occur'' (Ex. 0134; emphasis
added).\388\ OSHA expects that the hazard analysis required by
paragraph (g)(1) in the final rule will identify nonthermal hazards,
including physical trauma hazards posed by flying debris, associated
with employee exposure to electric arcs. Although the final rule does
not address these hazards, OSHA's existing general PPE requirements,
for example, Sec. Sec.  1910.132 and 1926.95, require employers to
address them. Those standards require employers to provide shields and
barriers necessary to protect employees from physical trauma hazards.
However, as noted by NFPA 70E, not all arc events pose physical trauma
hazards from flying debris; therefore, this protection will not always
be necessary, and the Agency concludes that this final rule does not
have to address these hazards further.
---------------------------------------------------------------------------

    \388\ NFPA 70E-2012 contains the same warning in Informational
Note No. 1 to Section 130.7(A).
---------------------------------------------------------------------------

    Compliance deadlines for certain provisions in paragraph (g). The
final rule includes a new paragraph (g)(6) setting a compliance
deadline of January 1, 2015, for the requirement in paragraph (g)(2)
that the employer make reasonable estimates of incident energy and a
compliance deadline of April 1, 2015, for: (1) the requirement in
paragraph (g)(4)(iv) that the employer ensure that the outer layer of
clothing worn by an employee is flame-resistant when the estimated
incident heat energy exceeds 2.0 cal/cm\2\ and (2) the requirement in
paragraph (g)(5) that the employer ensure that each employee exposed to
hazards from electric arcs wears the necessary arc-rated protection.
These deadlines are described more fully in Section XII, Dates, later
in this preamble.
    Fuse handling, covered conductors, non-current-carrying metal
parts, and opening circuits under load. The remaining provisions in
final Sec.  1926.960 deal with handling fuses, covered (noninsulated)
conductors, non-current-carrying metal parts, and opening and closing
circuits under load. To protect employees from contacting energized
parts, paragraph (h) of final Sec.  1926.960 requires employers to
ensure that employees installing and removing fuses use tools or gloves
rated for the appropriate voltage if one or both terminals are
energized at over 300 volts or if exposed parts are energized at more
than 50 volts. When an expulsion fuse operates on a fault or overload,
the arc from the fault current reacts with an agent in the tube. This
reaction produces hot gas that blasts the arc through the fuse tube
vent or vents, and with it any loose material in its path. The arc
blast or particles blown by the blast could injure employees' eyes.
Employers must ensure that employees do not install or remove such
fuses using rubber insulating gloves alone. Therefore, final paragraph
(h) also requires employees installing or removing expulsion-type fuses
with one or both terminals energized at more than 300 volts to wear eye
protection, use a tool rated for the voltage, and be clear of the fuse
barrel's exhaust path. (See, also, the discussion of protection from
flying debris under the summary and explanation for paragraph (g) of
the final rule earlier in this section of the preamble.) OSHA adopted
this paragraph, which has no counterpart in existing Subpart V, from
existing Sec.  1910.269(l)(7).
    Proposed paragraph (h) provided that employees use eye protection
only during expulsion fuse installation. Mr.

Nestor Kolcio presented data indicating that employees sustained
injuries associated with electric arcs when the employees were
removing, as well as installing, fuses or end caps (Ex. 0342). As noted
earlier, Mr. Kolcio recommended that the standard require employees to
be protected from flying debris associated with electric arcs.
    Based on Mr. Kolcio's data, OSHA concludes that protection from the
material expelled from expulsion-type fuses is necessary for employees
removing, as well as installing, them. Therefore, final paragraph (h)
requires the same protection for employees removing expulsion-type
fuses as for employees installing such fuses.
    The Virginia, Maryland and Delaware Association of Electric
Cooperatives recommended that this paragraph include the term ``live-
line tool'' to make it clear that the provision was not requiring a
special tool designed specifically for handling fuses (Ex. 0175).
    A live-line tool is one type of insulated tool. Paragraph (h) of
the final rule permits fuse handling with any type of insulated tool,
including a live-line tool. This provision was clear in the proposed
rule. Therefore, OSHA is not adopting the recommendation from the
Virginia, Maryland and Delaware Association of Electric Cooperatives.
    Final paragraph (i) explains that the requirements of Sec.
1926.960 that pertain to the hazards of exposed live parts also apply
when employees perform work in proximity to covered (noninsulated)
conductors. That is, the final standard treats covered conductors as
uninsulated. (See the definition of ``covered conductor'' in final
Sec.  1926.968.) The covering on this type of wire protects the
conductor from the weather, but does not provide adequate insulating
value. OSHA took this provision, which has no counterpart in existing
Subpart V, from existing Sec.  1910.269(l)(8). The Agency received no
comments on this provision and is adopting it with only editorial
changes from the proposal.
    Final paragraph (j) requires that non-current-carrying metal parts
of equipment or devices be treated as energized at the highest voltage
to which those parts are exposed unless the employer inspects the
installation and determines that the parts are grounded. Grounding
these parts, whether by permanent grounds or by the installation of
temporary grounds, provides protection against ground faults and
minimizes the possibility that non-current-carrying metal parts of
equipment and devices will become energized. OSHA based this
requirement, which has no counterpart in existing Subpart V, on
existing Sec.  1910.269(l)(9). OSHA received no comments on this
provision and is adopting it in the final rule without substantive
change from the proposal.
    Paragraph (k) in the proposed rule provided that employers ensure
the use of devices designed to interrupt the current involved to open
circuits under load conditions. This proposed requirement had no
counterpart in existing Subpart V; OSHA adopted it from existing Sec.
1910.269(l)(10).
    The Ameren Corporation requested that OSHA clarify that this
provision only applies to switches and breakers (Ex. 0209). Ameren
believed that this interpretation was consistent with the 1994
rulemaking record for existing Sec.  1910.269(l)(10) (id.). In that
rulemaking, OSHA explained the rationale for this provision as follows:

    The National Electrical Manufacturers Association (NEMA) urged
OSHA to add a requirement for opening circuits under load only with
devices intended to interrupt current (Ex. 3-81). Edison Electric
Institute recommended adoption of a similar requirement (Ex. 28).
The Agency agrees with EEI and NEMA that it is hazardous to open a
circuit with a device that is not designed to interrupt current if
that circuit is carrying current. Non-load-break switches used to
open a circuit while it is carrying load current could fail
catastrophically, severely injuring or killing any nearby employee.
Therefore, OSHA has adopted a requirement that devices used to open
circuits under load conditions be designed to interrupt the current
involved . . . . [59 FR 4390]

    The Agency disagrees with Ameren that this provision applies only
to switches and circuit breakers. The preamble to the 1994 rulemaking
mentioned non-load-break switches as an example of a type of device
that could fail catastrophically. However, the rationale and the rule
apply similarly to any device that is not capable of interrupting load
current. In addition, a similar provision in the 2002 NESC, quoted in
the next paragraph, applies to ``switches, circuit breakers, or other
devices.'' The OSHA provision applies to other devices in addition to
switches and circuit breakers. Therefore, OSHA is not adopting the
change requested by Ameren.
    IBEW recommended that OSHA expand proposed paragraph (k) to cover
devices used to pick up load or close circuits (Ex. 0230). Rule 443E of
the 2002 NESC \389\ supports IBEW's position; the NESC provision
addresses the opening and closing of circuits under load as follows:
---------------------------------------------------------------------------

    \389\ The 2012 NESC contains the same requirement in Rule 443E.

    When equipment or lines are to be disconnected from any source
of electric energy for the protection of employees, the switches,
circuit breakers, or other devices designated and designed for
operation under the load involved at sectionalizing points shall be
opened or disconnected first. When re-energizing, the procedure
---------------------------------------------------------------------------
shall be reversed. [Ex. 0077]

    OSHA recognizes that closing a circuit onto a load poses the same
hazards as opening a circuit under load. In either case, heavy current
can cause a device to fail if the design of that device is not such
that it can safely interrupt or pick up load current. Therefore, OSHA
is adopting IBEW's recommendation by adding a new paragraph (k)(2),
that reads as follows: ``The employer shall ensure that devices used by
employees to close circuits under load conditions are designed to
safely carry the current involved.'' OSHA is adopting proposed
paragraph (k) without substantive change as paragraph (k)(1) in the
final rule.
12. Section 1926.961, Deenergizing Lines and Equipment for Employee
Protection
    Section 1926.961 of the final rule addresses the deenergizing of
electric transmission and distribution lines and equipment for the
protection of employees. Transmission and distribution systems are
different from other energy systems found in general industry or in the
electric utility industry. The hazardous energy control methods for
these systems are necessarily different from the methods covered under
the general industry standard on the control of hazardous energy
sources (Sec.  1910.147). As explained in the preamble to the 1994
final rule on existing Sec.  1910.269, electric utilities install
transmission and distribution lines and equipment outdoors;
consequently, these lines and equipment are subject to reenergization
by means other than normal energy sources (59 FR 4390). For example,
lightning can strike a line and energize a deenergized conductor, or
unknown cogeneration sources not under the control of the employer can
energize a line. Additionally, some deenergized transmission and
distribution lines are subject to reenergization by induced voltage
from nearby energized conductors or by contact with other energized
sources of electrical energy. Another difference is that energy control
devices often are remote from the worksite and are frequently under the
centralized control of a system operator.

    For these reasons, OSHA is adopting requirements for the control of
hazardous energy sources related to transmission and distribution
systems. This is the same approach used in existing Sec.  1910.269. In
this regard, OSHA developed the requirements proposed in Sec.  1926.961
from existing Sec.  1910.269(m). Existing Subpart V also contains
procedures for deenergizing transmission and distribution
installations. OSHA discusses the differences between existing Sec.
1926.950(b)(2) and (d) and final Sec.  1926.961 later in this preamble.
    OSHA is promulgating paragraph (a) of the final rule without change
from the proposal. Final paragraph (a) describes the application of
Sec.  1926.961 and explains that conductors and equipment that have not
been deenergized under the procedures specified by Sec.  1926.961 have
to be treated as energized.
    Ms. Susan O'Connor with Siemens Power Generation recommended that
OSHA require that live parts be deenergized ``unless the employer can
demonstrate that deenergizing introduces additional or increased
hazards or is infeasible due to equipment design or operational
limitations'' (Ex. 0163).
    It is true that other OSHA standards that protect employees from
hazardous energy (such as the general industry lockout-tagout standard
at Sec.  1910.147 and the electrical lockout and tagging requirements
at Sec.  1910.333(a)(1) and (b)(2)) generally require employers to
deenergize energy sources. OSHA nevertheless rejects Ms. O'Connor's
recommendation because there is insufficient information in the record
to determine whether the recommendation is economically or
technologically feasible. First, Ms. O'Conner did not include
information in her comment on whether deenergizing transmission and
distribution lines and equipment would be economically and
technologically feasible. Second, Federal and local government agencies
regulate the reliability of electric power systems, thereby limiting
electric utilities' ability to deenergize transmission and distribution
circuits.\390\ Finally, the record in this rulemaking demonstrates
that: (1) Electric utilities and their contractors routinely work on
energized lines and equipment and (2) deenergizing transmission and
distribution circuits can involve significant cost and practicability
issues. (See, for example, Exs. 0573.1, 0575.1.) For instance, EEI
stated that ``[p]lanning and scheduling for an outage [on a
transmission circuit] can require as little as 1 month and 3 day
notification to as long as 6 months and 3 days depending on the outage
length'' (Ex. 0575.1).
---------------------------------------------------------------------------

    \390\ For example, section 215 of the Federal Power Act, 16
U.S.C. 824o, requires a Federal Energy Regulatory Commission-
certified Electric Reliability Organization to develop mandatory and
enforceable reliability standards, which are subject to review and
approval by the Commission. Electric utilities ultimately must meet
those reliability standards. (See also 18 CFR Part 40; Ex. 0545.1.)
---------------------------------------------------------------------------

    Some systems are under the direction of a central system operator
who controls all switching operations. Other systems (mostly
distribution installations) are not under any centralized control.
Electric utilities energize and deenergize these systems in the field
without the direct intervention of a system operator. Paragraph (b)(1)
of the final rule states that employers must designate one employee in
the crew as being in charge of the clearance and must comply with all
of the requirements of paragraph (c) if a system operator is in charge
of the lines and equipment and of their means of disconnection.
(Paragraph (c), which OSHA discusses in detail later, sets procedures
that employers must follow when deenergizing lines and equipment.) OSHA
is adopting final paragraph (b)(1) as proposed with one clarification.
This provision in the final rule makes clear that the employer must
designate the employee in charge of the clearance. Final paragraph
(c)(1) requires the ``designated'' employee in charge to request the
clearance, and final paragraph (b)(2) (described in the next paragraph
in this preamble) requires the employer to designate the employee in
charge when there is no system operator. OSHA included an explicit
requirement in final paragraph (b)(1) that the employer designate the
employee in charge when there is a system operator to clarify that
designating the employee in charge is the employer's responsibility
whether or not there is a system operator.
    Final paragraph (b)(2), which is also being adopted without
substantive change from the proposal, sets requirements for crews
working on lines or equipment that are not under the control of a
system operator.\391\ When final paragraph (b)(2) applies, the employer
must designate one employee on the crew to be in charge of the
clearance. In this case, final paragraph (b)(2) provides that, except
as provided in final paragraph (b)(3), all of the requirements in final
paragraph (c) apply and provides that the employee in charge of the
clearance perform the functions that the system operator would
otherwise perform.
---------------------------------------------------------------------------

    \391\ If there are multiple circuits involved with some lines or
equipment under the control of a system operator and the others not
under system-operator control, the lines or equipment that are under
the control of a system operator fall under paragraph (b)(1), and
the ones that are not under such control fall under paragraph
(b)(2).
---------------------------------------------------------------------------

    Final paragraph (b)(3) exempts a portion of the requirements of
final paragraph (c) from applying to work performed by a single crew of
employees if the means of disconnection of the lines and equipment are
accessible and visible to, and under the sole control of, the employee
in charge of the clearance. The provisions of final paragraph (c) that
do not apply are those relating to: (1) Requesting the system operator
to deenergize the lines and equipment (final paragraph (c)(1)), (2)
automatic and remote control of the lines (final paragraph (c)(3)), and
(3) the wording on tags (final paragraph (c)(5)). Final paragraph
(b)(3) also provides that employers need not use the tags required by
the remaining provisions of final paragraph (c).\392\ It is not
necessary to request the system operator to deenergize the lines or
equipment because he or she would not be in control of the
disconnecting means for the lines or equipment. When paragraph (b)(3)
applies, employers do not need tags for the protection of the crew
because only one person would be in charge of the clearance for the
crew, and the means of disconnection for the lines or equipment would
be accessible and visible to, and under the control of, that person.
Finally, OSHA exempted the provision addressing remote and automatic
switching of lines and equipment because, again, the means of
disconnection must be accessible and visible to, and under the sole
control of, the employee in charge of the clearance.
---------------------------------------------------------------------------

    \392\ The proposed rule was similar, except that it exempted an
additional provision, proposed paragraph (c)(11), which addressed
the removal of tags. In the final rule, the corresponding provision,
in paragraph (c)(12), clarifies that ``[n]o one may remove tags
without the release of the associated clearance as specified under
paragraphs (c)(10) and (c)(11) of this section.'' Even though final
paragraph (b)(3) does not require tags, when that paragraph applies,
final paragraph (c)(12) should not be exempted. It is important that
members of a crew not remove tags that are placed for the protection
of other crews.
---------------------------------------------------------------------------

    Final paragraph (b)(4) addresses work situations in which a group
of employees consists of several ``crews'' of employees working on the
same lines or equipment. Final paragraph (b)(4)(i) provides that
employers may treat these crews as a single crew when they are under
the direction of a single employee in charge of the clearance for all
of the crews and they are working in a coordinated manner to accomplish
a task on the same lines or equipment. In such cases, the employer must
ensure

that employees coordinate all operations that could energize or
deenergize a circuit through a single employee in charge, as required
in final paragraphs (b) and (c). OSHA notes that, if paragraph
(b)(4)(i) does not apply, employers must treat the crews as independent
crews (see the discussion of final paragraph (b)(4)(ii) in the
following paragraph), and each independent crew must have an employee
in charge, as required by final paragraphs (b) and (c).\393\
---------------------------------------------------------------------------

    \393\ OSHA notes that this interpretation of the word ``crew''
applies only to Sec.  1926.961(b)(3). The interpretation does not
apply to other provisions in the final rule addressing the work of
two or more crews.
---------------------------------------------------------------------------

    Final paragraph (b)(4)(ii) provides for the situation in which more
than one independent crew is working on the same line or equipment.
Under the final rule, in such circumstances: (1) Each crew must follow
separately the steps outlined in final paragraph (c); and, (2) if there
is no system operator in charge of the lines or equipment, each crew
must have separate tags and coordinate deenergizing and reenergizing
the lines and equipment with the other crews. The purpose of the
provision is to ensure that a group of workers does not make faulty
assumptions about what steps another group took or will take to
deenergize and reenergize lines or equipment.
    OSHA adopted the provisions in final paragraph (b)(4)(ii), which
require each independent crew to comply independently with paragraph
(c) and each crew to coordinate deenergizing and reenergizing the lines
or equipment with the other crews if there is no system operator in
charge of the lines or equipment, from proposed paragraph (b)(3)(ii).
Final paragraph (b)(4)(i), and the provision in final paragraph
(b)(4)(ii) requiring a separate tag for each crew if there is no system
operator in charge of the lines or equipment, are new provisions that
were not in the proposal. OSHA is adopting the new provisions after
examining comments on whether the standard should require each crew to
have a separate tag.
    Several commenters argued that separate tags for each crew are
unnecessary (Exs. 0126, 0175, 0177, 0201, 0209, 0220, 0227). These
commenters maintained that crews working on the same circuits typically
coordinate their activities and work under a single person with
authority over the clearance. For example, Duke Energy stated:

    Multiple crew tagging could create confusion and will result in
insufficient coordination between the crews. If one person is in
charge of multiple crews in a work group, one tag is sufficient for
that group of crews. If each crew has a person placing tags, the
probability of error increases. If a single tag is applied, then the
employee in charge will be responsible to verify that it is placed
correctly. Considering multiple crews working in a coordinated
manner as one crew for the purpose of tagging ensures that the
employee in charge will maintain control over the entire situation.
Multiple tagging complicates coordination of the work effort. [Ex.
0201]

    Other commenters stated that when multiple crews work
independently, without a single employee responsible for the clearance,
they should use separate tags for each crew (Exs. 0186, 0210, 0212,
0219, 0225, 0230). For example, Mr. Anthony Ahern with the Ohio Rural
Electric Cooperatives commented:

    Every independent crew working on a line that is protected by
the same disconnect device should have their own tag in place. This
is particularly important in storm or emergency restoration work. It
is simply too easy to lose track of crews, even with a system
[operator]. If each crew tags the disconnect, then it simply is not
allowed to be operated until all crews remove their tags. This is
the only real way to ensure that everyone is accounted for and in
the clear. There could be a procedure where a crew could grant
someone else permission to remove their tag if they were a long
distance away and it would require an extended amount of time for
them to go back to the disconnect location. But because they did
have a tag at the disconnect they were still contacted and accounted
for. This should also be a requirement for line-clearance tree-
crews. Quite often they are working on clearing a section of line
and other line crews don't know they are there. [Ex. 0186]

Southern Company commented:

    We agree that when two independent crews are working under a
system operator that each crew should have their own clearance but a
single tag issued by the system operator is sufficient. . . . There
may be situations where the ``independent'' crews do not want to
coordinate their activities. The standard should require in those
situations that each independent crew have their own tag on the
lines or equipment. [Ex. 0212]

    After considering these comments, OSHA concludes that employers may
treat crews working in a coordinated manner under a single employee
holding the clearance as a single crew. Such crews act as a single
crew, and the Agency believes that requiring separate tags would not
increase worker safety. OSHA drafted final paragraph (b)(4)(i)
accordingly.
    In the 1994 Sec.  1910.269 rulemaking, the Agency explained its
decision regarding the issue of whether employers must use separate
tags for independent crews as follows:
    Three commenters stated that some utilities use one tag for all
crews involved, maintaining a log to identify each crew separately .
. . . They recommended that the standard allow this practice to
continue.
    Paragraph (m)(3) of final 1910.269 does not require a separate
tag for each crew (nor did paragraph (m)(3) in the proposal); it
does require, however, separate clearances for each crew. There must
be one employee in charge of the clearance for each crew, and the
clearance for a crew is held by this employee. In complying with
paragraph (m)(3)(viii), the employer must ensure that no tag is
removed unless its associated clearances are released (paragraph
(m)(3)(xii)) and that no action is taken at a given point of
disconnection until all protective grounds have been removed, until
all crews have released their clearances, until all employees are
clear of the lines or equipment, and until all tags have been
removed at that point of disconnection (paragraph (m)(3)(xiii)). [59
FR 4393]

    If a system operator controls clearances, employers may use a log
or other system to identify each crew working under a single tag (269-
Exs. 3-20, 3-27, 3-112). When each crew releases its clearance to the
system operator, that signals to the system operator that each employee
in the crew received notification that release of the clearance is
pending, that all employees in the crew are in the clear, and that all
protective grounds for the crew have been removed. (See final paragraph
(c)(10).) The system operator cannot take action to restore power
without the release of all clearances on a line or equipment. (See
final paragraphs (c)(12) and (c)(13).)
    However, without a system operator, each independent crew would
have no way of knowing the exposure status of other crews without
separate tags. When the crews are truly independent and there is no
system operator, there would be no way to determine that all crew
members are clear of energized parts or that all the crew's protective
grounds have been removed unless each crew uses a separate tag.
Consequently, OSHA decided to adopt a requirement in final paragraph
(b)(4)(ii) that, whenever there is no system operator, each crew must
(1) have separate tags (this is a new provision not in the proposal)
and (2) coordinate deenergizing and reenergizing the lines or equipment
with other crews (OSHA adopted this provision from proposed paragraph
(b)(3)(ii)). Final paragraph (b)(4)(ii) also carries forward the
requirement from proposed paragraph (b)(3)(ii) that independent crews
independently comply with Sec.  1926.961 whether or not there is a
system operator.
    It is apparent that commenters did not completely understand the
discussion of how the proposal treated separate

crews. Even though the preamble to the proposal indicated that OSHA
would treat separate crews coordinating their activities and operating
under a single employee in charge of the clearance as a single crew (70
FR 34871), several commenters appeared to believe that the Agency was
considering separate tags for each crew in such circumstances. (See,
for example, Exs. 0175, 0201.) Therefore, the final rule provides
separate requirements for (1) single crews working with the means of
disconnection under the sole control of the employee in charge of the
clearance (final paragraph (b)(3)), (2) multiple crews coordinating
their activities with a single employee in charge of the clearance for
all of the crews (final paragraph (b)(4)(i)), and (3) multiple crews
operating independently (final paragraph (b)(4)(ii)). This approach
should clarify the application of the final rule to multiple crews.
    OSHA is adding new titles to final paragraphs (b)(3) and (b)(4) to
clarify their content. The title of final paragraph (b)(3) is ``Single
crews working with the means of disconnection under the control of the
employee in charge of the clearance.'' Although this provision applies
to a single crew, OSHA limited its application to circumstances in
which the means of disconnection is accessible and visible to, and
under the sole control of, the employee in charge of the clearance. The
revised title makes this limitation clear. Thus, this paragraph applies
to a special subset of instances in which employees are working as a
single crew; it is not generally applicable.\394\
---------------------------------------------------------------------------

    \394\ Existing Sec.  1926.950(d) also recognizes deenergizing
procedures that are not generally applicable. These alternative
procedures, which apply when ``[w]hen a crew working on a line or
equipment can clearly see that the means of disconnecting from
electric energy are visibly open or visibly locked-out,'' require:
(1) Guards or barriers to be installed to protect against contact
with adjacent lines (existing paragraph (d)(2)(i)), and (2) the
designated employee in charge, upon completion of work, to determine
that all employees in the crew are clear and that protective grounds
installed by the crew have been removed, and to report to the
designated authority that all tags protecting the crew may be
removed (existing paragraph (d)(2)(ii)). Unlike final Sec.
1926.961, existing Sec.  1926.950(d)(2) specifies no procedures for
deenergizing, testing, or grounding lines and equipment. OSHA
concluded in the 1994 Sec.  1910.269 rulemaking that requirements
for deenergizing, testing, and grounding are necessary for employee
protection (59 FR 4390-4391). Therefore, OSHA concludes that the
existing alternative procedures are inadequate to ensure worker
safety.
---------------------------------------------------------------------------

    However, final paragraph (b)(4), pertaining to multiple crews,
applies unconditionally, whenever more than one crew is working on the
same lines or equipment. OSHA believes that the purpose of this
paragraph will be clearer under its own title, ``Multiple crews.'' With
these new titles, the final rule clearly states the purposes of the
paragraphs and closely follows the procedures described in the
rulemaking record.
    Paragraph (b)(5) of the final rule requires the employer to render
inoperable any disconnecting means that are accessible to individuals
not under the employer's control.\395\ For example, the employer must
render inoperable a switch handle mounted at the bottom of a utility
pole that is not on the employer's premises to ensure that the overhead
line remains deenergized. This requirement prevents a member of the
general public or an employee who is not under the employer's control
(such as an employee of a contractor) from closing the switch and
energizing the line. OSHA adopted this requirement, which has no
counterpart in existing Subpart V, from existing Sec.
1910.269(m)(2)(iv). OSHA received no comments on this provision, which
was proposed as paragraph (b)(4), and is adopting it substantially as
proposed.
---------------------------------------------------------------------------

    \395\ Note that this provision, unlike paragraph (c)(2),
requires employers to render disconnecting means inoperable
regardless of whether the design of the disconnecting means permits
this capability. When the design of the disconnecting means does not
permit this capability, employers then must install some additional
means, such as a lockable cover, to render the disconnecting means
inoperable when required under paragraph (b)(5).
---------------------------------------------------------------------------

    Paragraph (c) of the final rule sets forth the exact procedure for
deenergizing transmission and distribution lines and equipment.
Employers must follow the procedure in the order specified in paragraph
(c), as provided in paragraphs (b)(1) and (b)(2). Except as noted, the
rules are consistent with existing Sec.  1926.950(d)(1), although OSHA
took the language from existing Sec.  1910.269(m)(3).
    Paragraph (c)(1) of the final rule requires an employee to request
the system operator to deenergize a particular section of line or
equipment.\396\ So that control is vested in one authority, a single
designated employee is assigned this task. The employer must assign
this task to a single designated employee to ensure that only one
employee is in charge of, and responsible for, the clearance for work.
OSHA adopted this provision, which has no counterpart in existing
Subpart V, from existing Sec.  1910.269(m)(3)(i). The designated
employee who requests the clearance need not be in charge of other
parts of the work; in the final rule, this designated employee is in
charge of the clearance. He or she is responsible for requesting the
clearance, for informing the system operator of changes in the
clearance (such as transfer of responsibility), and for ensuring that,
before the clearance is released, it is safe to reenergize the circuit.
OSHA received no comments on this provision and is adopting it
substantially as proposed.
---------------------------------------------------------------------------

    \396\ If there is no system operator in charge of the lines or
equipment or their means of disconnection, the employer must ensure,
pursuant to final paragraph (b)(2), that the designated employee
performs the functions that the system operator would otherwise
perform. This means, with respect to final paragraph (c)(1), that
the employer must ensure that the designated employee takes
appropriate action to deenergize the particular section of line or
equipment.
---------------------------------------------------------------------------

    When an employee requests a clearance in advance, the employees who
will be performing the actual work would not necessarily have notice of
this request and would not be in position to answer questions about the
clearance. Therefore, if someone other than an employee at the worksite
requests a clearance and if that clearance is in place before the
employee arrives at the site, then that employee will need to transfer
the clearance, pursuant to final paragraph (c)(9), to an on-site
employee responsible for the work (such as an employee on the crew or a
supervisor for the crew).\397\ This transfer must occur before the work
begins so that the system operator can inform the on-site employees of
any alterations in the clearance. The Agency believes that the employee
holding the clearance must, after the system operator deenergizes the
lines and equipment, serve as the point of contact in case alterations
in the clearance, such as restrictions in the length or extent of the
outage, are necessary.
---------------------------------------------------------------------------

    \397\ Although the language in paragraph (c) does not state
explicitly that the employee in charge must be at the worksite, the
employee in charge is responsible, under paragraph (c)(10), for (1)
notifying each employee under his or her direction of the pending
release of the clearance, (2) ensuring that all employees on the
crew are clear of the lines and equipment, (3) ensuring the removal
of all protective grounds installed by the crew, (4) reporting this
information to the system operator, and (5) releasing the clearance.
Only an employee at the worksite can perform these functions.
---------------------------------------------------------------------------

    Paragraph (c)(2) of the final rule requires the employer to open
all disconnecting means, such as switches, disconnectors, jumpers, and
taps, through which electrical energy could flow to the section of line
or equipment. This provision also requires the employer to render the
disconnecting means inoperable if the design of the device permits. For
example, the employer could detach the removable handle of a switch.
The final rule also requires that the disconnecting means

be tagged to indicate that employees are at work.
    This paragraph ensures the disconnection of lines and equipment
from their sources of supply and protects employees against the
accidental reclosing of the switches. This rule requires the
disconnection of known sources of electric energy only. Employers
control hazards related to the presence of unexpected energy sources by
testing for voltage and grounding the circuit, as required by
paragraphs (c)(6) and (c)(7), respectively (see the discussion of these
provisions later in this section of the preamble).
    OSHA adopted paragraph (c)(2) of the final rule from existing Sec.
1910.269(m)(3)(ii). Existing Subpart V has comparable requirements in
Sec.  1926.950(d)(1)(i), (d)(1)(ii)(a), and (d)(1)(ii)(b). The existing
provisions require: (1) The employer to identify and isolate the line
or equipment from sources of energy (paragraph (d)(1)(i)), and (2) each
designated employee in charge to notify and assure the employees on the
crew that all disconnecting means have been opened and tagged
(paragraphs (d)(1)(ii)(a) and (d)(1)(ii)(b)). OSHA believes that the
language in the final rule accurately reflects the steps taken by
employers to deenergize lines and equipment. OSHA received no comments
on this provision and is adopting it substantially as proposed.
    Paragraph (c)(3) of the final rule requires the tagging of
automatically and remotely controlled switches. Employers also must
render inoperable an automatically or remotely controlled switch if the
design of the switch allows for it to be made inoperable. This
provision, which OSHA adopted from existing Sec.  1910.269(m)(3)(iii),
protects employees from injuries resulting from the automatic operation
of such switches. Existing Subpart V contains an equivalent requirement
in Sec. Sec.  1926.950(d)(1)(ii)(b) and (d)(1)(ii)(c). OSHA received no
comments on this provision and is adopting it substantially as
proposed.
    The final rule contains a new exemption from the tagging
requirements of final paragraphs (c)(2) and (c)(3) that was not in the
proposal. OSHA included this exemption in the final rule as paragraph
(c)(4).
    Consolidated Edison Company of New York and EEI noted that 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;
hereafter, ``CPL 02-01-038'') addressed specific conditions under which
OSHA considered it a de minimis condition to leave network protectors
used to isolate network distribution lines from voltage untagged (Exs.
0157, 0227; Tr. 1111-1118). The two organizations requested that the
Agency incorporate the directive's language on network protectors into
the final rule. Consolidated Edison expressed this view as follows:

    Under normal conditions, switches at the substation are used to
deenergize the primary conductors to the distribution transformers.
When the primary conductors become deenergized, . . . network
protectors operate to disconnect the secondary side of the
transformers and to prevent back feed from energizing the primary
conductors. The network protectors are automatic devices and are not
normally opened or closed manually.
    OSHA inserted language into the Compliance Directive and made
not tagging a network protector to its associated network
transformer for work on the primary feeder . . . a ``de minimis''
violation if certain conditions were met. . . We are requesting that
[an exception for network protectors be included in the standard]
and that the ``de minimis'' violation be eliminated. We recommend
the following language be included in the 269 standard:
    ``Network feeders utilizing low voltage network protectors, or
similarly designed devices, are considered isolated from all network
sources of supply when the associated feeder is removed from service
at the source station and verified as being de-energized, and
provided that the design of the protectors prevent operation of the
device when the supply feeder is de-energized.'' [Ex. 0157]

    OSHA did not incorporate the recommended exemption into the
proposal because the Agency believed that the conditions permitted by
the directive were applicable to a single company, Consolidated Edison.
OSHA continues to believe that the preferred approach to protect
employees is to tag network protectors. However, the Agency's rationale
for considering it a de minimis condition not to tag network protectors
in certain circumstances remains viable. The directive describes the
operation of network protectors, the circumstances necessary for a de
minimis condition, and the Agency's rationale as follows:

    Paragraph (m)(3)(ii) of [existing] Sec.  1910.269 requires all
switches, disconnectors, jumpers, taps, and other means through
which known sources of electric energy may be supplied to the
particular lines and equipment to be deenergized to be opened and
tagged. Paragraph (m)(3)(iii) requires automatically and remotely
controlled switches to be tagged at the point of control.
    An AC network system consists of feeders, step-down
transformers, automatic reverse-current trip breakers called network
protectors, and the network grid of street mains. The network grid
is made up of a number of single conductor cables tied together at
street intersections to form a solid grid over the area they serve.
This grid is typically energized at 120/208 volts from the secondary
windings of the distribution transformers serving a particular area.
    A network protector, placed between the secondary side of the
transformer and the secondary mains, is provided for each
transformer. The primary windings of the transformer are connected
to a feeder cable that is energized from a substation at voltages
ranging from 13 to 33 kilovolts. Each feeder cable is connected to
the substation through an automatic circuit breaker. . .
    Network protectors are placed between the network transformer
and the secondary network to protect against reverse power flow
through the network transformer into the supply feeders. Reverse
power protection is necessary because fault current would continue
to flow into a short circuit in a network transformer or primary
feeder. Backfeed from the network grid would continue to flow into
the fault even after the primary feeder circuit breaker trips. The
other primary feeders would continue to supply power to their
network transformers, which are interconnected with the faulted
circuit through the network grid.
    Under normal conditions, switches at the substation are used to
deenergize the primary conductors to the distribution transformers.
When the primary conductors become deenergized, the network
protectors operate to disconnect the secondary side of the
transformers and to prevent backfeed from energizing the primary
conductors. The network protectors are automatic devices and are not
normally opened or closed manually.
    Not tagging a network protector to its associated network
transformer for work on the primary feeder is considered a de
minimis violation of Sec.  1910.269(m)(3)(ii) under the following
conditions:
    a. The line is deenergized as otherwise required by paragraph
(m)(3)(ii);
    b. Any switches or disconnecting means (other than network
protectors) used to deenergize the line are tagged as required by
paragraph (m)(3)(ii);
    c. The line is tested to ensure that it is deenergized as
required by paragraph (m)(3)(v);
    d. Grounds are installed as required by paragraph (m)(3)(vi);
    e. The network protectors are maintained so that they will
immediately trip open if closed when a primary conductor is
deenergized;
    f. The network protector cannot be manually placed in a closed
position without the use of tools, and any manual override position
must be blocked, locked, or otherwise disabled; and
    g. The employer has procedures for manually overriding the
network protector that incorporates provisions for ensuring that the
primary conductors are energized before the protector is placed in a
closed position and for determining if the line is deenergized for
the protection of employees working on the line. [CPL 02-01-038;
emphasis included in original]

Figure 12 is a one-line diagram from the directive showing network
protectors, the primary conductors (primary voltage feeder), and the
extent of the deenergized area for lines connected to the network
protectors.
[GRAPHIC] [TIFF OMITTED] TR11AP14.016

    OSHA decided to include in the final rule a provision that
duplicates the exempted conditions specified in the directive. In
issuing the directive, OSHA determined that leaving network protectors
untagged under these conditions was a de minimis condition, or a
condition having ``no direct or immediate relationship to safety or
health'' (29 U.S.C. 658(a)). Moreover, even if Consolidated Edison is
the only affected company, it does have a considerable number of
circuits and network protectors covered by the conditions listed in the
directive: ``At Con Edison in any given one-year period over 5,000
feeders involving approximately 123,000 network protectors are worked
on using the procedures described [in the directive]'' (Ex. 0157).
Therefore, the Agency decided to exempt network protectors from the
requirements for tags in paragraphs (c)(2) and (c)(3) when the employer
can demonstrate that the following conditions are present:
    1. Every network protector is maintained so that it will
immediately trip open if closed when a primary conductor is
deenergized;
    2. Employees cannot manually place any network protector in a
closed position without the use of tools, and any manual override
position is blocked, locked, or otherwise disabled; and
    3. The employer has procedures for manually overriding any network
protector that incorporate provisions for determining, before anyone
places a network protector in a closed position, that: (a) The line
connected to the network protector is not deenergized for the
protection of any employee working on the line and (b) (if the line
connected to the network protector is not deenergized for the
protection of any employee working on the line) the primary conductors
for the network protector are energized. (See Figure 12 for a depiction
of network protectors, the primary conductors (primary voltage feeder),
and the extent of the deenergized area for lines connected to the
network protectors.)
    These three conditions are identical to the last three conditions
listed in the Sec.  1910.269 directive. OSHA is not including the first
four conditions listed in the directive as provisions in the exemption
because other provisions in the final rule already require these
conditions. Note that the exemption applies only to the network
protectors themselves. As required by paragraphs (c)(2) and (c)(3) in
the final rule, employers must still tag any switches or disconnecting
means, other than the network protectors, used to deenergize lines or
equipment and any other automatically and remotely controlled switches
that could cause the opened disconnecting means to close.
    OSHA stresses that it is including the network protector exemption
in the final rule only for the reasons stated here, that is, because
OSHA already concluded that leaving network protectors untagged under
the conditions now required by the

exemption is a de minimis condition. OSHA does not agree with the other
reasons provided by Consolidated Edison and EEI for incorporating the
exemption. For example, the Agency does not agree that tagging network
protectors would be extremely difficult or complex, as claimed by EEI
and Consolidated Edison (Exs. 0157, 0227). The Agency also does not
agree with EEI and Consolidated Edison that backfeed from the network
grid prevented by network protectors is an unexpected source of
electric energy. By design, such backfeed is an expected source of
electric energy. If such backfeed were not an expected source, the
network protector would not be necessary. Contrary to the claims made
by EEI and Consolidated Edison, OSHA made no contradictory statement in
the preamble to the 1994 rulemaking on existing Sec.  1910.269
regarding the disconnection of distribution transformers supplying
customer loads. In that preamble, OSHA stated only that employers did
not have to disconnect transformers if doing so would remove unknown
sources of electric energy only (59 FR 4392). OSHA expressly required
in the 1994 rulemaking (as in this rulemaking) that employers had to
disconnect expected sources of electric energy (id.).
    In addition, in adopting the network-protector exemption, OSHA
decided not to use the language recommended by Consolidated Edison and
EEI because their recommended language addresses only the design of
network protectors and not the additional procedures required to ensure
worker safety when employees perform work on network protectors. OSHA
previously concluded, in issuing the directive, that these additional
procedures were necessary steps in ensuring employee safety when
employers leave network protectors untagged; the Agency reaffirms that
conclusion here.
    In the notice extending the comment period on the proposal and
setting dates for a public hearing, OSHA requested comment on the issue
of whether the standard should include tagging requirements for systems
using supervisory control and data acquisition (SCADA) equipment (70 FR
59291).\398\
---------------------------------------------------------------------------

    \398\ SCADA is a computer system for monitoring and controlling
equipment (in this case, electric power transmission and
distribution lines and equipment).
---------------------------------------------------------------------------

    The Agency received only three comments on this issue. One
commenter stated, ``If OSHA adopts SCADA tagging requirements, it
should be as written in the . . . NESC'' (Ex. 0201). Two other
commenters recommended that OSHA adopt the SCADA requirements in the
NESC (Exs. 0212, 0230). One of the commenters, IBEW, voiced its support
as follows:

    [The NESC discusses] specific tagging activities utilizing
Supervisory Control and Data Acquisition (SCADA) equipment . . .
SCADA switching is common place in the electric utility industry for
both deenergizing circuits and defeating automatic recloser
operation. Both of these actions have a direct impact on employee
safety and OSHA should at a minimum reference this section of the
NESC [Ex. 0230]

    Rule 442E of the 2002 NESC includes the following provision: ``When
the automatic reclosing feature of a reclosing device is disabled
during the course of work on energized equipment or circuits, a tag
shall be placed at the reclosing device location'' (Ex. 0077; emphasis
added).\399\ The SCADA provisions in that consensus standard are in the
form of an exception to this tagging requirement (id.). Final Sec.
1926.961 does not contain a similar requirement for tagging reclosing
devices, as Sec.  1926.961 applies to deenergizing lines and equipment,
and not to work on energized lines and equipment. However, final
Subpart V provides requirements for disabling reclosing in paragraphs
(b)(3) and (c)(4) of Sec.  1926.964. In addition, employers may need to
disable automatic circuit reclosing as one measure in ensuring that the
maximum transient overvoltage does not exceed a specific value, as
required by the minimum approach-distance provisions of Sec.
1926.960(c)(1) and Table V-2. To disable automatic reclosing devices,
the employer will need to adopt measures that prevent reenabling the
automatic feature of these devices in addition to turning the feature
off. When the employer uses SCADA on a reclosing device, the employer
may follow the SCADA provisions in the NESC to ensure that the
reclosing feature remains disabled. However, the Agency believes that
there are other methods, such as tagging those controls, that employers
can use for the same purpose. Therefore, OSHA is not adopting the SCADA
rules from the 2002 NESC.
---------------------------------------------------------------------------

    \399\ The relevant provisions in the 2012 edition of the NESC
are identical.
---------------------------------------------------------------------------

    Paragraph (c)(5) of the final rule, which OSHA is adopting without
change from proposed paragraph (c)(4), requires that tags attached to
disconnecting means prohibit operation of the disconnecting means and
state that employees are at work. OSHA adopted this requirement from
existing Sec.  1910.269(m)(3)(iv). Existing Sec.  1926.950(d)(1)(ii)(b)
specifies that tags indicate that employees are working; however, it
does not require that the tags prohibit operation of the disconnecting
means. The Agency believes that it is essential for the tags to contain
this prohibition so that the meaning of the tag is clear.
    Proposed paragraph (c)(5) would have required employers to test the
lines or equipment. This test would ensure that the lines or equipment
are deenergized and prevent accidents resulting from someone's opening
the wrong disconnect. It also would protect employees from hazards
associated with unknown sources of electric energy.
    OSHA based proposed paragraph (c)(5) on existing Sec.
1910.269(m)(3)(v). Existing Sec.  1926.950(d)(1)(iii) requires the
employer to perform a test or a visual inspection to ensure that the
lines or equipment are deenergized. Employers cannot determine that a
line or equipment is deenergized by visual inspections alone because
voltage backfeed, induced current, and leakage current can energize
electric lines and equipment without the employee ``seeing'' it (Ex.
0041). Additionally, OSHA determined in the 1994 Sec.  1910.269
rulemaking that visual inspection instead of testing was not sufficient
for this purpose because of evidence about lack of testing causing
accidents (59 FR 4393; 269-Exs. 3-107, 9-2, 12-12). Therefore, OSHA
proposed to require a test, rather than a visual inspection, to
determine whether the lines or equipment are energized. OSHA adopts
that requirement in the final rule as final paragraph (c)(6).
    In the proposed rule, OSHA did not specify the type of test;
however, the preamble to the proposal stated that the Agency expects
employers to use testing procedures that will indicate reliably whether
the part in question is energized (70 FR 34872). OSHA stated in the
preamble to the proposal that using a voltage detector on the part
would be acceptable for this purpose (id.). OSHA requested comments on
when and if methods such as ``fuzzing'' a line are acceptable. The
preamble to the proposal explained that ``fuzzing,'' or ``buzzing,'' a
line involves using a live-line tool to hold a wrench or similar tool
near a line and listening for the buzzing sound emitted as the tool
approaches a circuit part energized at a high voltage (id.). OSHA
requested comments on this issue because two OSHA letters of
interpretation, which addressed a similar requirement in existing Sec.
1910.269(n)(5), recognized the fuzzing or buzzing method of checking
lines for voltage. (See the August 23, 1995, letter to Mr. Enoch F.
Nicewarner

and the October 18, 1995, letter to Mr. Lonnie Bell.\400\)
---------------------------------------------------------------------------

    \400\ The Nicewarner letter is available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21897. The Bell letter is available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21981.
(After the effective date of the final rule, the Nicewarner letter
will not be available on the Internet, and OSHA will edit the Bell
letter to remove the response to the question on fuzzing.)
---------------------------------------------------------------------------

    OSHA decided that fuzzing, or buzzing, will not be an acceptable
testing method under the final rule. The preamble to the proposal noted
that this method has obvious disadvantages when ambient noise levels
are excessive and is only reliable above certain voltage levels (70 FR
34872; see also 269-Ex. 8-5). Moreover, rulemaking participants
universally opposed recognizing the fuzzing method of checking lines
for voltage. (See, for example, Exs. 0155, 0162, 0175, 0213, 0220,
0227, 0230; Tr. 882-884, 1238.) Several rulemaking participants
reported incidents involving failure to detect voltage using this
method (Exs. 0213, 0220; Tr. 947-948). Some commenters recommended
requiring devices specifically designed as voltage detectors (Exs.
0186, 0213, 0230; Tr. 1238).
    To implement its decision, OSHA modified the language of the
requirement proposed in paragraph (c)(5) so that employers must perform
the test ``with a device designed to detect voltage.'' Such devices
include voltage detectors meeting ASTM F1796-09 Standard Specification
for High Voltage Detectors--Part 1 Capacitive Type to be Used for
Voltages Exceeding 600 Volts AC (Ex. 0480).\401\ OSHA is adopting this
requirement in paragraph (c)(6) in the final rule. The final rule also
replaces the proposed term ``employee in charge of the work'' with
``employee in charge'' for consistency with the rest of final paragraph
(c). The designated employee in charge of the clearance need not be a
supervisor or be responsible for the work. The employee in charge need
only be responsible for the clearance.
---------------------------------------------------------------------------

    \401\ ASTM F1796-09 is an updated version of ASTM F1796-97
(2002), which IBEW cited in Ex. 0480. OSHA reviewed both documents
and determined that devices meeting either ASTM standard are
acceptable for use in meeting paragraph (c)(6) of the final rule.
---------------------------------------------------------------------------

    Final paragraph (c)(7), which OSHA is adopting without substantive
change from proposed paragraph (c)(6), requires the installation of any
protective grounds required by Sec.  1926.962. Installation of
protective grounds must occur after employees deenergize and test the
lines or equipment in accordance with the previous provisions; at this
point, it is safe to install a protective ground. OSHA based this
requirement on existing Sec.  1910.269(m)(3)(vi). Paragraph (d)(1)(iv)
of existing Sec.  1926.950 contains an equivalent requirement.
    Mr. Brian Erga with ESCI recommended that OSHA reword this
provision to refer to ``temporary protective grounding equipment''
rather than ``protective grounds'' (Ex. 0155). He noted that his
recommendation is consistent with the terminology used in ASTM F855,
Standard Specifications for Temporary Protective Grounds to Be Used on
De-energized Electric Power Lines and Equipment. He made the same
recommendation with respect to other provisions of the proposal, such
as proposed Sec.  1926.962(c).
    OSHA decided not to use the term recommended by Mr. Erga. ASTM
F855-04 covers ``the equipment making up the temporary grounding system
used on de-energized electric power lines, electric supply stations,
and equipment'' (Ex. 0054).\402\ The term ``protective grounds,'' as
used in final Subpart V and Sec.  1910.269, encompasses more than just
the equipment covered by the ASTM standard. For instance, employers can
use permanent (that is, fixed) grounding equipment as part of a
protective grounding system. Moreover, the protective grounding system
also includes the ``ground'' itself, that is, the device to which
employees attach the grounding equipment to bring deenergized parts to
ground potential. Therefore, OSHA is adopting the language in the
proposal.
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    \402\ The most recent edition of that consensus standard, ASTM
F855-09, uses identical language to describe its scope.
---------------------------------------------------------------------------

    After an employer follows the seven previous provisions of final
paragraph (c), final paragraph (c)(8) permits the lines or equipment to
be treated as deenergized. OSHA based this provision, which OSHA is
adopting without substantive change from proposed paragraph (c)(7) and
which has no counterpart in existing Subpart V, on existing Sec.
1910.269(m)(3)(vii).\403\
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    \403\ As noted earlier in this preamble, under the summary and
explanation for final Sec.  1926.960(b)(2), existing Sec.
1926.950(b)(2) requires electric equipment and lines to be
considered as energized until determined to be deenergized by tests
or other appropriate means. The existing rule is insufficient to
protect employees because employers cannot rely on a simple test for
a deenergized condition to ensure that lines and equipment remain
deenergized. OSHA concludes that final Sec.  1926.961 contains the
appropriate procedures for treating lines and equipment as
deenergized.
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    Mr. Erga also commented on this provision in the proposed rule,
recommending that the standard use the term ``deenergized and
grounded'' rather than just ``deenergized'' (Ex. 0155). He maintained
that ``line[s] and equipment [are] not safe to work unless [they have]
been de-energized and grounded'' (id.).
    OSHA decided not to adopt Mr. Erga's recommendation. The final
rule, as with existing Sec.  1910.269, does not always require
grounding of deenergized equipment. Final paragraph (b) of Sec.
1926.962 permits deenergized lines and equipment to remain ungrounded
under limited circumstances. OSHA believes that it is safe to work on
deenergized lines and equipment under these limited circumstances, and
there is no evidence in this rulemaking record that indicates that it
would not be reasonably safe to do so. Therefore, OSHA is adopting the
language of this provision as proposed.
    In some cases, as when an employee in charge has to leave the job
because of illness, it may be necessary to transfer a clearance. Under
such conditions, final paragraph (c)(9), which OSHA is adopting from
proposed paragraph (c)(8), requires the employee in charge to inform
the system operator and the employees in the crew of the transfer. If
the employee holding the clearance must leave the worksite due to
illness or other emergency, the employee's supervisor could inform the
system operator and crew members of the transfer in clearance. This
requirement, which OSHA based on existing Sec.  1910.269(m)(3)(ix), has
no counterpart in existing Subpart V.
    The Agency received no comments on this provision in the proposal.
However, neither the existing standard at Sec.  1910.269(m)(3)(ix) nor
the proposal addresses who notifies crew members of the transfer in
clearance. Because the employee in charge of the clearance is
responsible for the clearance and communications regarding it, the
notification must come from that individual. Therefore, OSHA has
revised the language of paragraph (c)(9) in the final rule to clarify
that ``the employee in charge (or the employee's supervisor if the
employee in charge must leave the worksite due to illness or other
emergency) shall inform . . . employees in the crew '' of the transfer.
    After transfer of the clearance, the new employee in charge is
responsible for the clearance. To avoid confusion that could endanger
the entire crew, employers must ensure that only one employee at a time
be responsible for any clearance.
    Once the crew completes its work, the employee in charge must
release the clearance before the system operator can reenergize the
lines or equipment. Paragraph (c)(10) covers this procedure.

To ensure that it is safe to release the clearance, the employee in
charge must: (1) Notify workers in the crew \404\ of the release, (2)
ensure that they are clear of the lines and equipment, (3) ensure the
removal of all protective grounds, and (4) notify the system operator
of the release of the clearance. OSHA based this provision on existing
Sec.  1910.269(m)(3)(x). Paragraph (d)(1)(vii) of existing Sec.
1926.950 contains an equivalent requirement. OSHA received no comments
on this provision, proposed as paragraph (c)(9), and is adopting it
substantially as proposed. Paragraph (c)(7) requires the employer to
ensure the installation of protective grounds for the crew, but does
not require the crew to install them. To account for the possibility
that the crew does not install the grounds protecting them, paragraph
(c)(10)(iii) requires the employee in charge to ensure the removal of
``protective grounds protecting employees under [the] clearance''
rather than ``protective grounds installed by the crew.''
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    \404\ The employees in the crew are working under the clearance
assigned to the employee in charge of the clearance. The proposed
rule required notification of ``each employee under his or her
direction.'' The final rule, in paragraph (c)(10)(i), uses the
phrase ``under that clearance'' instead of ``under his or her
direction'' to make it clear that the employee in charge is
responsible for the clearance and, as noted earlier in this section
of the preamble, need not be a foreman or supervisor. In addition,
the final rule uses the term ``employees under that clearance'' in
place of the proposed terms ``employees in the crew'' and ``the
crew'' in paragraphs (c)(10)(ii) and (c)(10)(iii), respectively.
This revision makes it clear that, in cases in which a single
employee is in charge of the clearance for multiple crews under
paragraph (b)(4)(i), the employee in charge must ensure that
employees in all crews under his or her clearance are clear of lines
and equipment and that grounds protecting employees in all crews
under his or her clearance are removed.
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    Final paragraph (c)(11), which OSHA is adopting without substantive
change from proposed paragraph (c)(10), requires the individual who is
releasing the clearance to be the one who requested it, unless the
employer transfers responsibility under final paragraph (c)(9). Final
paragraph (c)(11) ensures that the employee in charge of the clearance
authorizes release of the clearance. OSHA based this paragraph, which
has no counterpart in existing Subpart V, on existing Sec.
1910.269(m)(3)(xi). The Agency received no comments on this provision.
    Paragraph (c)(12), proposed as paragraph (c)(11), prohibits the
removal of a tag without release of its associated clearance. Because
the persons who place and remove the tags may not be the same person,
the standard prohibits removing a tag unless the employee in charge of
the associated clearance first releases it. OSHA based this provision,
which has no counterpart in existing Subpart V, on existing Sec.
1910.269(m)(3)(xii). OSHA is adopting paragraph (c)(12) with one
clarification from proposed paragraph (c)(11). Final paragraph (c)(12)
clarifies that the release of the clearance must comply with final
paragraph (c)(11), in addition to final paragraph (c)(10) (which
corresponds to proposed paragraph (c)(9), the only provision referenced
in proposed paragraph (c)(11)). As noted in the preceding paragraph of
this preamble, paragraph (c)(11) of the final rule requires the
individual who is releasing the clearance to be the one who requested
it, unless the employer transfers responsibility. This provision
applies regardless of whether final paragraph (c)(12) references it,
and the final rule makes its application clear.
    NIOSH recommended that the person removing the tag ``be the person
who placed the tag on the line or the supervisor, unless they have been
replaced due to shift change'' (Ex. 0130). NIOSH recommended that, if a
shift change occurred, the employer brief the replacement workers on
their responsibilities (id.).
    OSHA agrees with NIOSH that employees placing and removing tags
need appropriate training. In this regard, Sec.  1926.950(b)(1)
requires that each employee receive training in, and be familiar with,
the safety-related work practices, safety procedures, and other safety
requirements in Subpart V that pertain to his or her job assignments.
However, OSHA does not believe that the employee who removes a tag
under paragraph (c)(12) needs to be the same one who placed it. Because
tags are often remote from the work location, the employee in charge of
the clearance does not typically place or remove them. The key to
employee safety in such cases is that no one may remove a tag until the
employee in charge of the associated clearance releases that clearance.
Accordingly, the key employee in this situation is the employee in
charge of the clearance (that is, the employee who requested the
clearance or the employee to whom the employer has transferred
responsibility under final paragraph (c)(9)). Therefore, OSHA is not
adopting NIOSH's recommendation.
    According to final paragraph (c)(13), the employer shall ensure
that no one initiates action to reenergize the lines or equipment at a
point of disconnection until all protective grounds have been removed,
all crews working on the lines or equipment release their clearances,
all employees are clear of the lines and equipment, and all protective
tags are removed from that point of disconnection. This provision
protects employees from possible reenergization of the line or
equipment while employees are still at work. This provision does not
require the removal of all tags from all disconnecting means before any
of them may be reclosed. Instead, it requires that all tags for any
particular switch be removed before that switch is closed. It is
important in a tagging system not to return any energy isolating device
to a position that could allow energy flow if there are any tags on the
energy isolating device that are protecting employees. For example,
after the employee in charge releases the clearance for a 5-mile
section of line that the employer deenergized by opening switches at
both ends of the line, the employer can close any one switch only after
all the tags are removed from that switch. OSHA received no comments on
this provision (proposed as paragraph (c)(12)) and is adopting it
substantially as proposed. Final paragraph (c)(13), which has no
counterpart in Subpart V, has been taken from existing Sec.
1910.269(m)(3)(xiii).
13. Section 1926.962, Grounding for the Protection of Employees
    Sometimes, deenergized lines and equipment become energized. Such
energization can happen in several ways, for example, by contact with
another energized circuit, voltage backfeed from a customer's
cogeneration installation, lightning contact, or failure of the
clearance system outlined in final Sec.  1926.961.
    Electric utilities normally install transmission and distribution
lines and equipment outdoors, where the weather and actions taken by
members of the general public can damage the lines and equipment.
Electric utilities install many utility poles alongside roadways where
motor vehicles can strike the poles. Falling trees damage distribution
lines, and the public may use transmission-line insulators for target
practice. Additionally, customers fed by a utility company's
distribution line may have cogeneration or backup generation
capability, sometimes without the utility company's knowledge. All of
these factors can reenergize a deenergized transmission or distribution
line or equipment. When energized lines are knocked down, they can fall
onto deenergized lines. A backup generator or a cogenerator can cause
voltage backfeed on a deenergized power line. Lastly, lightning, even
miles from the worksite, can reenergize a line. All of these situations
pose hazards to

employees working on deenergized transmission and distribution lines
and equipment. These circumstances factored into 14 of the accidents
described in 269-Exhibit 9-2, as noted in the preamble to the 1994
final rule adopting Sec.  1910.269 (59 FR 4394).
    Grounding the lines and equipment protects employees from injury
should such energizing occur. Grounding also protects against induced
current and static charges on a line.\405\ (These induced and static
voltages can be high enough to endanger employees, either directly from
electric shock or indirectly from involuntary reaction (Exs. 0041,
0046.)
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    \405\ Induced current can flow in a deenergized conductor when a
nearby conductor is carrying alternating current. The varying
electromagnetic field that surrounds the current-carrying conductor
causes electrons to flow in any nearby electrical path, or loop,
formed by a nearby deenergized conductor. The amount of current in
the loop increases with an increase in the length of the loop that
intersects the electromagnetic field; that is, the current increases
as the length of the deenergized conductor running in parallel with
a current-carrying conductor increases.
    Induced static electric charge can develop on a conductive
object in several ways. The capacitive coupling that occurs between
an energized conductor and a nearby deenergized conductive object
can induce a voltage on the conductive object. Similarly, the same
environmental conditions that can cause an electric charge to build
in clouds can cause a buildup of charge on a deenergized conductor.
A static discharge in the form of lightning can deposit an electric
charge directly on the conductive object.
---------------------------------------------------------------------------

    Grounding, as a temporary protective measure, involves connecting
the deenergized lines and equipment to earth through conductors. As
long as the conductors remain deenergized, this action maintains the
lines and equipment at the same potential as the earth. However, if a
source impresses voltage on a line, the voltage on the grounded line
rises to a value dependent upon the impressed voltage, the impedance
between its source and the grounding point, and the impedance of the
grounding conductor.
    Employers use various techniques to limit the voltage across an
employee working on a grounded line should the line become energized.
Bonding is one of these techniques; it involves bonding conductive
objects within the reach of the employee to establish an equipotential
work area for the employee. Bonding limits voltage differences within
this area of equal potential to a safe value.
    OSHA took the requirements proposed in Sec.  1926.962 from existing
Sec.  1910.269(n). Existing Sec.  1926.954 contains provisions related
to grounding for the protection of employees. In developing the
proposal for this rulemaking, OSHA reviewed existing Sec.  1926.954 and
found that it is not as protective as existing Sec.  1910.269(n) and
also contains redundant and unnecessary requirements. For example, as
noted under the summary and explanation of Sec.  1926.960(b)(2) of this
final rule, existing Sec.  1926.950(b)(2) requires ``[e]lectric
equipment and lines [to] be considered energized until determined to be
deenergized by tests or other appropriate methods or means.'' Existing
Sec.  1926.954(a) similarly requires ``[a]ll conductors and equipment
[to] be treated as energized until tested or otherwise determined to be
deenergized or until grounded.'' These provisions do not adequately
protect employees from inadvertently reenergized lines and equipment,
however. As noted in the earlier discussion, electric power
transmission and distribution lines and equipment can become
reenergized even after an employer deenergizes them. Therefore, OSHA
concluded in the Sec.  1910.269 rulemaking that grounding deenergized
lines and equipment is essential, except under limited circumstances
(59 FR 4394-4395). The Agency is adopting that approach here. In
developing Sec.  1926.962 of the final rule, OSHA eliminated redundant
requirements from existing Sec.  1926.954, consolidated related
requirements from that section, and strengthened the current Subpart V
requirements to protect employees better.
    Section 1926.962 of the final rule addresses protective grounding
and bonding.\406\ Paragraph (a) provides that all of Sec.  1926.962
applies to the grounding of transmission and distribution lines and
equipment for the purpose of protecting employees. Paragraph (a) also
provides that paragraph (d) in final Sec.  1926.962 additionally
applies to the protective grounding of other equipment, such as aerial
lift trucks, as required elsewhere in Subpart V. Under normal
conditions, such mechanical equipment would not be connected to a
source of electric energy. However, to protect employees in case of
accidental contact of the equipment with live parts, OSHA requires
protective grounding elsewhere in the standard (in Sec.
1926.964(c)(11), for example); to ensure the adequacy of this
grounding, paragraph (d) of final Sec.  1926.962 addresses the ampacity
and impedance of protective grounding equipment. A note following
paragraph (a) indicates that Sec.  1926.962 covers grounding of
transmission and distribution lines and equipment when this subpart
requires protective grounding and whenever the employer chooses to
ground such lines and equipment for the protection of employees.
Although the Agency did not propose the note, OSHA included the note in
the final rule to clarify that Sec.  1926.962 applies both when Subpart
V requires grounding of transmission and distribution lines and
equipment \407\ and when the employer grounds such lines and equipment
for the protection of employees even though not required to do so.
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    \406\ As used throughout the rest of this discussion and within
final Sec.  1926.962, the term ``grounding'' includes bonding.
Technically, grounding refers to the connection of a conductive part
to ground, whereas bonding refers to connecting conductive parts to
each other. However, for convenience, OSHA is using the term
``grounding'' to refer to both techniques of minimizing voltages to
which an employee will be exposed.
    \407\ For example, final Subpart V requires the employer to
ground transmission and distribution lines and equipment in
Sec. Sec.  1926.962(b) and 1926.964(b)(4).
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    Mr. James Junga with Local 223 of the Utility Workers Union of
America suggested that any requirement in the rule ``that an aerial
lift truck should be grounded should be worded exactly that way, not
implied'' (Ex. 0197). He stated that this language would eliminate any
confusion between a worker and his or her supervisor regarding this
issue (id.).
    The Agency notes that Sec.  1926.962 in the final rule does not
contain requirements for grounding aerial lifts or other types of
mechanical equipment. Final Sec. Sec.  1926.959(d)(3)(iii) and
1926.964(c)(11) contain requirements to ground this equipment. These
provisions, which do permit alternatives to grounding mechanical
equipment, specify precisely when employers must ensure proper
grounding of this equipment.
    TVA recommended that Sec.  1926.962 also apply to medium-voltage
installations in generating plants, explaining:

    The ``application'' sections of 1910.269(n) and 1926.961 are
limited to the grounding of transmission and distribution lines and
equipment for the purpose of protecting employees. Both 1910.269 and
Subpart V have no requirements on grounding of generating plant
conductors and equipment for the protection of employees. We believe
this exposes employees to shock and electrocution hazards in the
workplace. These conductors may become energized by dangerous
induced voltage and failure of the clearance system. For circuits
operating at 480 V and below, we recommend grounding for the
protection of employees from the hazard of induced voltage because
the ampacity of the grounding jumper necessary to conduct the
current for the time to clear the fault would make the jumper [too]
large to install in many cases. It is recommended that the final
rule incorporate requirements for grounding medium voltage (1 kV to
23 kV) conductors and equipment in generating plants. [Ex. 0213]

    Subpart V does not apply to work on generation installations.
Therefore, it would be inappropriate to include grounding requirements
for generating plants in Subpart V. Although final Sec.  1910.269
applies to work in generation plants, the grounding requirements in
Sec.  1910.269(n) do not apply to electric power generation circuits.
Existing Sec.  1910.269(n)(1) provides that Sec.  1910.269(n) applies
to ``the grounding of transmission and distribution lines and equipment
for the purpose of protecting employees.'' Existing Sec.
1910.269(n)(2) requires such lines and equipment to be grounded under
certain conditions. The remaining requirements in existing Sec.
1910.269(n) apply to grounding of transmission and distribution lines
and equipment without regard to whether Sec.  1910.269 requires them to
be grounded if the grounding is ``for the purpose of protecting
employees.''
    To respond to TVA's comment, OSHA examined two issues: (1) Whether
final Sec.  1910.269(n)(2) should require grounding of electric power
generation circuits, and (2) whether the other requirements in final
Sec.  1910.269(n) should apply to the grounding of generation circuits
whenever an employer grounds them to protect employees (that is, even
when the standard does not require such grounding). With respect to the
first issue, OSHA does not believe that it is always necessary to
ground electric power generation circuits. These circuits are similar
in most respects to electric utilization circuits (circuits used to
supply equipment that uses electric energy for lighting, heating, or
other purposes) covered by Subpart S; Subpart S, which generally
applies to utilization circuits in generation plants, does not require
grounding of deenergized circuits. Subpart S rather than Sec.  1910.269
covers many of the circuits in generation plants.\408\ The voltages on
generation circuits are typically lower than distribution and
transmission voltages. In addition, the hazards of induced voltage, and
voltages impressed on the circuits from lightning or contact with other
energized lines, noted earlier as being common to transmission and
distribution lines, are rarely, if ever, present on generation
circuits. Therefore, OSHA concludes that it is unnecessary to require
grounding of electric power generation lines and equipment in final
Sec.  1910.269(n)(2).
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    \408\ The safety-related work practices required by Sec. Sec.
1910.331 through 1910.335 in Subpart S apply to utilization circuits
in electric power generation plants that ``are not an integral part
of a generating installation.'' (See Note 1 to Sec.
1910.331(c)(1).)
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    Note, however, that electric power generation plants typically have
the electrical output of the generators feeding a substation. The
generating plant substation, in turn, steps up the voltage and supplies
a transmission line. Consequently, any lines and equipment in a
substation at a generation plant connected to a transmission line are
subject to the same induced and impressed voltage hazards as the
transmission line. OSHA expects employers to treat lines and equipment
connected to a transmission line as transmission lines and equipment
for purposes of final Sec. Sec.  1926.962 and 1910.269(n).\409\ This
requirement will protect employees from the hazards of induced and
impressed voltage that may be present at electric generation plants.
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    \409\ The existing directive for Sec.  1910.269, CPL 02-01-038,
generally permits employers to designate where in a generation plant
substation the generation installation ends and the transmission
installation begins for the purpose of choosing to follow Sec.
1910.269(d) or (m) in deenergizing that portion of the substation.