[Federal Register Volume 73, Number 210 (Wednesday, October 29, 2008)]
[Rules and Regulations]
[Pages 64202-64205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25789]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. S-108C]
RIN 1218-AB95


Electrical Standard; Clarifications; Corrections

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Final rule; clarifications; correcting amendments.

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SUMMARY: The Occupational Safety and Health Administration (OSHA)

[[Page 64203]]

published a final rule revising its electrical installation standard 
for general industry on February 14, 2007. This notice clarifies the 
scope of one provision in the final standard and addresses some 
questions raised by stakeholders on the application of the provision. 
This also corrects two typographical errors located elsewhere in the 
final rule.

DATES: The corrections become effective on October 29, 2008.

FOR FURTHER INFORMATION CONTACT: Mr. David Wallis, Directorate of 
Standards and Guidance, Room N-3609, OSHA, U.S. Department of Labor, 
200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 
693-2222.

SUPPLEMENTARY INFORMATION: On February 14, 2007, OSHA published a 
revision of its electrical installation standard for general industry 
found in 29 CFR part 1910, subpart S (72 FR 7136). This final rule went 
into effect on August 13, 2007. Since the final rule was promulgated, 
the Agency has received some questions from the public regarding one 
provision, 29 CFR 1910.304(b)(3)(ii). At its meeting on August 1, 2007, 
in Oakland, CA, the Maritime Advisory Committee on Occupational Safety 
and Health (MACOSH) discussed the provision and several MACOSH members 
were uncertain about the extent of the application of this provision to 
shipyard employment and had questions on how the Agency would interpret 
the rule. Consequently, MACOSH recommended that the Agency use the best 
available means to assist employers in complying with the requirements 
of the provision and that the Agency delay the effective date of Sec.  
1910.304(b)(3)(ii) for a period of 6 months or until the Agency can 
clarify the standard.
    In this notice, OSHA addresses these questions and makes one change 
to the regulatory text of the provision in order to clarify OSHA's 
intent regarding its scope. This change does not alter the substantive 
obligations of affected parties. Additionally, OSHA is correcting two 
typographical errors located in Table S-3 of the final rule.

Clarifications

1. What is the application of Sec.  1910.304(b)(3)(ii)?

    As originally published, the introductory text to Sec.  
1910.304(b)(3)(ii) read as follows:

    The following requirements apply to temporary wiring 
installations that are used during maintenance, remodeling, or 
repair of buildings, structures, or equipment or during similar 
construction-like activities.

A few members of MACOSH and two other individuals have raised questions 
regarding the meaning of this provision. Some of the questions stem 
from the structure of the text of the provision, which OSHA is changing 
in this notice to better match the Agency's intent. Other questions 
relate to the meaning of the terms ``construction-like'' activities and 
``temporary wiring installations.''
a. Structure of the Regulatory Text
    Paragraph (b)(3)(ii) was taken from Section 2-2.4.2 of the 2000 
edition of NFPA 70E, which reads, in relevant part, as follows:

    2-2.4.2 Ground-Fault Protection for Personnel. Ground-fault 
protection for personnel for all temporary wiring installations 
shall be provided to comply with 2-2.4.2.1 or 2-2.4.2.2 below. This 
section shall apply only to temporary wiring installations used to 
supply temporary power to equipment used by personnel during 
construction, remodeling, maintenance, repair, or demolition of 
buildings, structures, equipment or similar activities.

    Both OSHA's final rule and NFPA 70E are intended to apply to 
temporary wiring installations used during the performance of 
construction-like activities. From questions the Agency has received 
about this provision, the intent of the rule may not be readily 
apparent from the text. Because part 1910 does not apply to 
construction, the Agency removed ``construction'' from the list of 
activities specifically mentioned in NFPA 70E and changed ``similar 
activities'' to ``similar construction-like activities.'' OSHA did not, 
however, intend to deviate from the underlying intent of the NFPA 70E 
provision, which was to limit its application to activities that were 
construction-like in nature. The Agency is concerned that the 
regulatory text of Sec.  1910.304(b)(3)(ii) may be read to include 
activities that are not construction-like. To clarify the Agency's 
intent, OSHA is revising the introductory text to Sec.  
1910.304(b)(3)(ii) to read:

    The following requirements apply to temporary wiring 
installations that are used during construction-like activities, 
including certain maintenance, remodeling, or repair activities, 
involving buildings, structures or equipment. [Emphasis added.]

    This change makes it clear that Sec.  1910.304(b)(3)(ii) applies 
only to such activities.
b. Construction-Like Activities
    When determining whether the provisions of Sec.  1910.304(b)(3)(ii) 
apply, employers must determine whether a particular activity is 
``construction-like'' in nature. The preamble to the final rule 
provided examples of what OSHA considers ``construction-like 
activities'' in the discussion of Sec.  1910.305(a)(2)(iii) related to 
the use of temporary wiring over 600 volts (72 FR 7163).
    It should be noted that the discussion of the term ``construction-
like activities'' here and in the preamble to OSHA's final rule applies 
only to the use of this term in subpart S. It should also be noted that 
not all maintenance, remodeling, or repair work is construction-like.
    Construction-like activities fall into two general categories: 
Activities that would be covered under OSHA's construction standards 
but for the fact that they are specifically covered by other OSHA 
standards, and all other activities that do not qualify as construction 
but involve electrical hazards similar to those typically found in 
construction work.
    The vast majority of activities covered under subpart S are in the 
first category. For example, ship building and ship repair would be 
considered to meet the definition of ``construction'' because of their 
scale and complexity; nevertheless, the hazards associated with this 
work are specifically covered by OSHA's shipyard employment standards. 
However, the shipyard standards do not protect employees from all of 
the hazards addressed by paragraph (b)(3)(ii) of Sec.  1910.304; in 
such instances, this paragraph applies to hazards not covered by the 
shipyard standards, as outlined in Sec.  1910.5(c). (The application of 
subpart S to shipyard employment is discussed in more detail in the 
preamble to the final rule, 72 FR 7141.)
    The remaining activities intended to be covered under subpart S 
fall into the second category of construction-like activities. This 
category includes certain ``maintenance, remodeling, or repair 
activities involving buildings, structures, or equipment'' that pose 
electrical hazards similar to those typically found in construction 
work. In this respect, OSHA intends the term ``construction-like'' to 
apply to activities that, while not construction, involve some of the 
hazards that are typically found in construction work. In general, 
these are activities that pose hazards that are similar to those 
associated with the use of temporary receptacles on construction 
sites--that is, hazards resulting from more severe use or environmental 
conditions. Examples of such activities include: Damage to a cord set 
\1\ from rough use; exposure to

[[Page 64204]]

wet, damp, or conductive conditions, such as often encountered when 
working outside; and frequent reconfiguration and rearrangement of the 
electric equipment.
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    \1\ A cord set is commonly known as an extension cord.
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    Some examples of this type of construction-like activity were given 
in the preamble to the final rule, including clean up and disaster 
remediation. To illustrate, if a storm blew over a tree on a factory's 
premises and temporary wiring was employed to power a chainsaw and 
other clean-up equipment, such remediation activity would be 
construction-like.
    Other examples of construction-like activities follow.
    Example A: Employees are engaged in a minor building repair using 
temporary wiring. The conditions are damp or an electric cord set is 
being used and is subjected to rough use or abuse.
    Example B: Manufacturing prefabricated housing, in which houses or 
portions of houses are assembled in a manufacturing plant. This process 
poses some electrical hazards that are similar to those found during 
housing construction (for example, rough use of cord sets).
    Example C: Performing heat exchanger tubing water-blasting (hydro-
cleaning) using temporary wiring. This process is usually done outside 
in wet and conductive environmental conditions and may involve rough 
cord use.
    Maintenance activities that do not involve electrical hazards 
similar to those found in construction are not ``construction-like,'' 
and therefore are not subject to Sec.  1910.304(b)(3)(ii). Building 
maintenance activities such as floor polishing and vacuuming and 
drilling holes to hang pictures on walls, would be some common examples 
of such activities.
    Activities that are large in scale, complex, or require significant 
time, materials, and tools to complete typically would be considered 
actual construction work instead of construction-like.\2\ As such, 
these activities would be subject to the construction standards instead 
of subpart S. To illustrate, the stripping and repainting of a bridge 
would not be subject to subpart S, because it would be considered 
construction.
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    \2\ Note that confined space activities specified in OSHA 
Directive CPL 02-00-100, Application of the Permit-Required Confined 
Spaces (PRCS) Standard, 29 CFR 1910.146, are covered by the general 
industry confined space standard. Appendix E, Question 8, of that 
directive gives examples of activities covered by the general 
industry confined space standard that may be considered 
construction-like.
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c. Temporary Wiring
    In addition, paragraph (b)(3)(ii) applies only to temporary wiring 
installations. OSHA does not consider a single extension cord set 
connected to a permanent receptacle outlet to be a temporary wiring 
installation.\3\ In such situations, extension cords are typically used 
to extend the length of the power supply cord on a tool or appliance to 
reach a nearby receptacle outlet. In this application, OSHA considers 
the extension cord set to be part of the utilization equipment.
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    \3\ It should be noted that the language in the GFCI provision 
in the construction standards is not the same as the language in 
subpart S. The construction standard (Sec.  1926.404(b)(1)) applies 
its GFCI criteria to receptacle outlets that are not a part of the 
permanent wiring without regard to whether they are used with a 
temporary wiring installation. Thus, under the construction 
standard, a GFCI is required for an extension cord set plugged into 
a permanent 120-volt, 15- or 20-ampere receptacle outlet unless the 
employer is using an assured equipment grounding conductor program.
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    Paragraph (a)(2)(v)(A) of Sec.  1910.305 requires temporary wiring 
branch circuits to originate in an approved power outlet or panelboard. 
Normally, this is done through a portable distribution board, portable 
power outlet, or similar equipment. All the wiring extending from the 
portable power outlet or panelboard would be considered temporary 
wiring. However, in a permanent facility, it may be possible to run a 
series of cord sets from permanent outlets as a means of supplying 
power on a temporary basis. Although the NEC and NFPA make no clear 
distinction between temporary wiring and the use of extension cord 
sets, under certain conditions, the use of multiple cord sets would 
constitute a temporary wiring installation. A series of extension cord 
sets run from a single permanent outlet would constitute temporary 
wiring though such an installation would not strictly comply with the 
requirements relating to the origin of temporary branch circuits. 
Similarly, running a long extension cord set from a permanent outlet to 
power more than one piece of electric equipment would result in a 
temporary wiring installation.
    Thus, for the purposes of Sec.  1910.304(b)(3)(ii), OSHA will 
consider as ``temporary wiring'' the use of more than one extension 
cord (connected in series or otherwise) to a permanent outlet, or the 
temporary connection of more than one piece of utilization equipment to 
an extension cord set that is connected to a permanent receptacle 
outlet.\4\
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    \4\ This interpretation does not apply to the connection of 
multiple pieces of electric equipment to an approved relocatable 
power taps used in accordance with its listing or labeling.
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    OSHA notes, however, that this temporary wiring would only be 
covered by Sec.  1910.304(b)(3)(ii) if it is used during 
``construction-like activities.''

2. Does Sec.  1910.304(b)(3)(ii) apply to all receptacles or only those 
on branch circuits?

    Paragraph (b) of Sec.  1910.304 applies only to branch circuits. 
The definition of ``branch circuit'' is ``[t]he circuit conductors 
between the final overcurrent device protecting the circuit and the 
outlets.'' The definition of ``outlet'' is ``[a] point on the wiring 
system at which current is taken to supply utilization equipment.'' 
Thus, the branch circuit extends from the final overcurrent device to 
points on the circuit where power is taken to supply utilization 
equipment (for example, an electric tool). Receptacles that are used to 
power downstream cord-connected overcurrent devices for additional 
circuits are not covered because they are not part of the branch 
circuit. For example, receptacles on a spider box that supply 
downstream spider boxes with overcurrent-protected circuits would not 
be covered by Sec.  1910.304(b)(3)(ii). A spider box is a portable 
power outlet unit used with temporary wiring installations. The box, 
which is typically fed by a 125/250-volt, 50-ampere cord set, contains 
overcurrent protection for 125- or 250-volt, 15-, 20-, or 30-ampere 
receptacle outlets \5\ and frequently contains a pass-through 50-ampere 
outlet for downstream spider boxes. The 50-ampere receptacle outlets 
are not receptacle outlets when they supply downstream spider boxes. 
They are receptacle outlets when they supply 50-ampere electric 
utilization equipment directly.
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    \5\ Spider boxes are typically manufactured with built-in GFCI 
protection for these receptacles.
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3. Does the standard recognize all forms of ground-fault protection 
devices or only ground-fault circuit interrupters approved by 
nationally recognized testing laboratories (NRTL)?

    The standard requires ground-fault circuit interrupters for 
personnel protection in Sec.  1910.304(b)(3)(ii)(A). As electric 
equipment, these GFCIs must be NRTL approved.\6\ These devices have 
trip levels of approximately 5 milliamperes and trip in as little as 
0.025 seconds. Devices such as ground-

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fault protection for equipment, earth-leakage detectors, and similar 
equipment are not acceptable substitutes. These devices, which may also 
be NRTL approved, interrupt the circuit at higher trip levels and, in 
some cases, do not function to trip the circuit automatically at all.
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    \6\ Paragraph (a) of Sec.  1910.303 requires all electric 
equipment to be approved. Under the definitions of ``approved'' and 
``acceptable,'' this generally requires approval by an NRTL.
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4. Does the standard require GFCIs to be used with branch circuits 
supplying temporary lighting?

    The standard requires GFCI protection for temporary circuits 
supplying lighting only when those circuits also supply receptacles. 
Employers are not required by the standard to install GFCIs for 
lighting if the design of the temporary lighting is such that the 
circuits do not also supply receptacles.\7\
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    \7\ OSHA notes that Section 590.4(D) of the 2005 National 
Electrical Code (NEC) prohibits the installation of receptacles on 
branch circuits that supply temporary lighting for construction 
sites. This requirement is intended to ensure that temporary 
lighting is not subject to tripping by the GFCIs required on 
construction sites. Subpart S does not contain a similar 
prohibition.
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Exemptions From Notice and Comment and Delay in Effective Date

    Under the Administrative Procedure Act (APA), an agency may make a 
``good cause'' finding that notice and comment rulemaking procedures 
would be impracticable, unnecessary, or contrary to the public 
interest. 5 U.S.C. 553(b)(B); see also 26 CFR 1911.5 (permitting OSHA 
to promulgate minor changes or amendments to standards without notice 
and comment when the changes are accompanied by a statement of good 
cause for the absence of notice and comment). An agency may similarly 
make the rule effective upon publication when it determines that 
delaying the effective date of the rule, as normally required by 5 
U.S.C. 553, is unnecessary and good cause exists to make the rule 
effective immediately. 5 U.S.C. 553(d)(3).
    In this instance, OSHA finds that good cause exists under 5 U.S.C. 
553(b)(B) and (d)(3) to forego public notice and comment for these 
minor amendments and to make them effective immediately upon 
publication in the Federal Register. Notice and comment procedures for 
the amendments herein, as well as a delay in the effective date of the 
amendments, are unnecessary because the amendments are minor 
clarifications and typographical corrections that do not affect the 
substantive requirements or coverage of the standards involved, modify 
or revoke existing rights and obligations, or establish new rights and 
obligations. Moreover, the clarifications respond to requests for 
immediate formal guidance to assist employers in complying with the 
existing standards.

List of Subjects in 29 CFR Part 1910

    Electric power, Fire prevention, Hazardous substances, Occupational 
safety and health, Safety.

Authority

    This document was prepared under the direction of Edwin G. Foulke, 
Jr., Assistant Secretary of Labor for Occupational Safety and Health, 
200 Constitution Avenue, NW., Washington, DC 20210.
    This action is taken pursuant to sections 4, 6, and 8 of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), 
Secretary of Labor's Order No. 5-2007 (72 FR 31160), and 29 CFR Part 
1911.

    Signed at Washington, DC, this 24th day of October 2008.
Edwin G. Foulke, Jr.,
Assistant Secretary of Labor for Occupational Safety and Health.

    Part 1910 of Title 29 of the Code of Federal Regulations is amended 
as follows:

PART 1910--[AMENDED]

Subpart S--[Amended]

0
1. The authority citation for subpart S is revised to read as follows:

    Authority: Secs. 4, 6, 8, Occupational Safety and Health Act of 
1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 8-76 
(41 FR 25059), 1-90 (55 FR 9033), 5-2002 (67 FR 65008), 5-2007 (72 
FR 31160), as applicable; 29 CFR part 1911.


Sec.  1910.303  General.

0
2. Amend Table S-3 by correcting ``2.81'' and ``9.01,'' the first 
entries under the column heads ``m'' and ``ft,'' to read ``2.8'' and 
``9.0,'' respectively.

0
3. Revise the introductory text to Sec.  1910.304(b)(3)(ii) to read as 
follows:


Sec.  1910.304  Wiring design and protection.

* * * * *
    (b) * * *
    (3) * * *
    (ii) The following requirements apply to temporary wiring 
installations that are used during construction-like activities, 
including certain maintenance, remodeling, or repair activities, 
involving buildings, structures or equipment.
* * * * *

[FR Doc. E8-25789 Filed 10-28-08; 8:45 am]
BILLING CODE 4510-26-P