July 18, 1994

Mr. Steven R. Semler
Attorney for National Arborist Association (NAA)
Semler Pritzker & Silverman
1742 N Street, N.W.
Washington, D.C. 20036

Dear Mr. Semler:

This is in further response to your letter of March 28, requesting clarification of several provisions of the Electric Power Generation, Transmission, and Distribution standard, 29 CFR 1910.269.

Your stated concerns and our responses follow:

1. The note regarding documentation of training certification, which immediately follows 1910.269(a)(2)(vii) states, "Employment records that indicate that an employee has received the required training are an acceptable means of meeting this requirement." The NAA's suggested clarification language is, "For purposes of this `note', the employment record can be the personnel file, which need not be kept at the job site."

Response - We agree with the suggested language, with the following qualifications: The certification must be immediately available at a job site where an employee is hired or reports for work. This could include either a permanent establishment or a temporary job site.

2. Again in regard to 1910.269(a)(2)(vii), you are concerned about the point in the training process at which the certification of training is required. The NAA's suggested clarification language is, "Certification is not required until the employer is satisfied that proficiency in work practices and skills required by this section has been attained."

Response - In accordance with 1910.269(a)(2)(vi) it is the responsibility of the employer to design and provide training that establishes employee proficiency in the work practices required by 1910.269. It is also the employer's (and not the employee's) responsibility under 1910.269(a)(2)(vii) to afford the employee opportunity to display proficiency in the work practices by means of the training and/or by testing, observation or simulation, etc., within and/or shortly after the training period. Certification must be made immediately after the employee's successful completion of the proficiency display portion of the employer's training program. Intermediate certifications may be necessary if an employee is permitted to perform jobs that require training to be completed at an interim level. For example, an employee would have to complete his or her instruction and demonstrate proficiency in climbing techniques and fall protection before being permitted to climb and work in trees without direct supervision. The employer must certify this training before the employee climbs or works in trees without supervision.

3. With respect to the cardiopulmonary resuscitation (CPR) and first aid training requirements at 1910.269(b)(1), you pointed out that page 4347 or the preamble to the standard states: "Line-clearance tree trimmers that remain beyond 3 months are required to be trained; and, if they then quit and are hired by another firm after that, the training they have already received can be used by their new employer for compliance with paragraph (b)(1)." The NAA proposed the following language to supplement the preamble language: "In fulfilling this requirement, the employer can rely upon documented first aid and/or CPR training provided the employee by a prior employer or other source."

Response - We agree with the proposed supplemental language with the following addition: "... so long as the CPR and first aid training documents are current and valid."

4. You stated concern about the requirement at 1910.151(b), incorporated by 1910.269(b)(2), for the location of the consulting physician's written approval of first aid supplies.

Response - Neither standard requires written (emphasis added) approval of first aid supplies by the consulting physician, although we agree with the NAA that this is a good idea. The employer must obtain the approval of the consulting physician; however, the approval does not have to be in writing.

5. With respect to 1910.269(c) you expressed concern about the requirement to cover energy source controls during the job briefing. Your concern arises from the fact that the majority of employees performing tree-trimming work are not considered "qualified" as defined at 1910.269(x). The NAA proposed the following language to address this concern: "The requirement of instructing line clearance tree trimmers and trainees in `energy source controls' may be fulfilled by instructing such employees that all overhead electric wires are to be considered as energized unless deenergization is requested and the Utility separately confirms that deenergization has been effectuated."

Response - We agree with this clarification language.

6. You proposed the following language for clarification of fall-protection requirements for employees engaged in line-clearance tree trimming operations: "The 1910.269(g)(2)(ii) body belts and safety straps requirements do not apply to the `safety saddle' specifically required for line clearance tree trimmers in .269(r)(8) of this standard."

Response - We agree with this clarification language.

7. With respect to the requirement at 1910.269(r)(1)(iv) that branches contacting exposed energized conductors or equipment or that are within the distances specified in Table R-6, Table R-9, and Table R-10 may be removed only through the use of insulating equipment, you proposed the following clarification language: "This requirement does not prohibit the use of chain saws, hand saws, or similar uninsulated cutting equipment outside of the minimum approach distance required by this standard to remove branches within such distance provided adequate work practices are used to avoid contact between the branch and the wire."

Response - It is possible for electric current to arc through the air between the high voltage lines and the tree branches. The possibility of such arcing is one of the reasons for the distances in Tables R-6, R-9 and R-10. Because of this, we feel the portion of the NAA proposed language that refers to avoidance of contact between the branch and the wire is not sufficiently protective. Insulating equipment must be used to trim away all portions of branches from within the specified distances prior to the use of chain saws, hand saws, or similar uninsulated cutting equipment on any portions of the branches. An alternative is to pull the branch away from the power line by means of insulating equipment to a distance greater than that given in the table prior to the use of any uninsulated cutting equipment. If this approach is used, the employee and any uninsulated tool he or she is using cannot come within the specified minimum approach distance.

8. You expressed concern about the requirement at 1910.269(r)(8) for each employee to be tied in with a climbing rope and safety saddle when the employee is working above the ground in a tree, unless he or she is ascending into the tree. Your specific concern was that palm trees have no crotches over which the rope could be run for support. You suggested the following language by way of clarification: "In palm trees or trees with similar growth characteristics which prevent a climbing rope from freely moving within the tree, a lanyard attached to a safety saddle may be used in lieu of a climbing rope."

Response - We agree with most of this proposed language and will accept a slight modification to it, as follows: "In palms and other trees with similar growth characteristics that would bind a climbing rope and not provide an adequate support, a lanyard and safety saddle may be used in lieu of a climbing rope and safety saddle to meet the fall protection requirement at 1910.269(r)(8)."

Thank you for bringing these important issues to our attention. We hope the language offered above will help to satisfy the concerns of your clients. This language will be shared with our field staff in the near future. If we can be of additional assistance, please do not hesitate to contact us again.

Sincerely,



Rolland E. Stroup, Chief
Division of Safety Abatement Assistance