Two OSHA Standards Will Reach A Regulatory Milestone in 2021

The communication tower and tree care standards will both reach the “Proposed Rule” phase this year.

The Federal Register makes it official

The last regulatory agenda signed by Secretary of Labor Eugene Scalia in the fall of 2020 was recently re-signed by the Federal Register Liaison Officer — for administrative purposes — and published in the Federal Register on March 31, 2021. Publication of this agenda in the Federal Register is a clear sign that the rulemaking activity it summarizes is imminent and will impact employers and businesses throughout the United States.

Both the communication tower and tree care standards have reached the “proposed rule” stage of their development this year. This is the last stage before the final rule and includes a public comment period.

What will final rulemaking mean for employers in covered industries?

The ever-escalating demand for cell service

Over the past thirty years, as the Internet conquered the global communication landscape, the demand for cell tower construction and maintenance grew right alongside the exploding market for service. Rapid technology development and the federal Spectrum Auctions Program — a government system for selling the rights to transmit signals over specific electromagnetic bands— have been the key drivers of new tower construction since the mid-1990s. Before that time, the erection of communication towers was a small and highly specialized industry. Today it’s big business. The tower construction market in the US will top $10.4 (est.) billion in 2021.

The need for a standard

During construction and maintenance operations, workers in the communication tower industry regularly climb to heights up to 2,000 feet and face a range of hazards associated with electricity, inclement weather, and equipment. Falls represent the leading cause of fatalities and injuries, and according to OSHA, the current standards for fall protection fail to provide adequate coverage for communication tower workers.

OSHA took the first steps in developing a comprehensive communications tower safety rule in 2015. The agency requested information (RFI) from stakeholders — tower workers, wireless carriers, engineering and construction firms, tower owners, and tower construction and maintenance companies — about safety hazards and the possible regulatory approaches that would help prevent injuries and fatalities. OSHA received over 900 individual responses to the RFI and continued to engage industry stakeholders in related discussions about hazards and safety through site visits, meetings/conference calls, public workshops in collaboration with the Federal Communications Commission, and other outreach venues.

The agency’s Small Business Advocacy Review Panel (SBAR) completed its review and published the Initial Flexibility Analysis in August 2018. This report includes a description of the possible draft standard, with a detailed overview of the likely factors covered in the new rule. OSHA is considering a final rule that will include freestanding towers and any structures that have communication towers or equipment attached to them — like billboards, tall buildings, and water towers.

It is also anticipated that the new standard will apply to all work activities performed on telecommunications towers, and be similar in scope to related national consensus standards established in recent years:

  • American National Standards Institute (ANSI) consensus standard, “Criteria for Safety Practices with the Construction, Demolition, Modification, and Maintenance of Communication Towers,” (ANSI A 10.48)
  • Telecommunications Industry Association (TIA) consensus standards, TIA 222-G “Structural Standard for Antenna Supporting Structures and Antennas,” and TIA 322 “Loading Criteria, Analysis, and Design Related to the Installation, Alteration, and Maintenance of Communication Structures.”

 And finally, a comprehensive standard for tree care services

OSHA’s new tree care standard will cover workers who prune, repair, maintain, and remove trees — as well as workers who provide on-site support through the disposal of limbs and brush and use equipment like chainsaws and wood chippers. Tree care companies, landscapers, municipal parks/recreation departments, utility companies, property management companies, and any entity that maintains their facilities and grounds employ such workers.

High injury and fatality rates

The fatality and injury rates in the tree care industry are significantly higher than in most industries. Tree care workers can be injured or killed through falls — from trees, aerial lifts, boom trucks, and ladders. Workers can also be injured or killed by falling objects (tree branches or tools/equipment), exposure to electrical hazards, and contact with the equipment used on the job (chain saw, wood chipper, stump grinder, etc.).

Because of the consistently high number of incidents in tree care, several regional OSHA offices have implemented an emphasis program targeted at tree care and landscaping firms — and utilizing existing standards to evaluate safety and compliance issues.

What are the existing standards?

While there is no existing comprehensive OSHA standard covering this industry, tree care employers are still subject to existing federal standards that cover some of the hazards faced by tree care employees. OSHA’s standard for logging operations (29 CFR 1910.266), for example, covers some aspects of the tree removal process that apply to tree care service companies. Tree care employers are also subject to the multiple general industry standards applicable to tree care and landscaping operations. These include existing standards for ladders, portable power tools, machine guards, elevated work platforms, personal protective equipment (PPE), and electricity-related safe work procedures.

The rulemaking process initiated in 2006

The Tree Care Industry Association (TCIA) first petitioned OSHA to create a federal standard for the tree care industry in 2006. OSHA responded in 2008 by issuing an advanced notice of proposed rulemaking (ANPR). The ANPR got the rulemaking work underway and onto OSHA’s regulatory agenda — where it languished for a time due to lack of resources. Eventually, the tree care standard disappeared from the agenda entirely.

Tree care reappeared on the agenda in 2018, when OSHA announced the convening of a Small Business Advocacy Review Panel (SBAR) to study the industry, evaluate compliance costs, and suggest regulatory options and alternatives. The SBAR Panel published its findings and recommendations in March 2020.

What’s the timeline?

According to the Office of Information and Regulatory Affairs, we can expect publication of the proposed rule for communication towers sometime in July. The proposed rule for tree care should be ready for our scrutiny in October. The comment period can last up to 24 months but is usually 6-12 months.

If you would like to participate in the RFI process or otherwise have questions or concerns about any compliance or regulatory issue, or if you’ve received a citation, Orr & Reno is here to help. Please feel free to get in touch.

About the Author: James Laboe

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