On March 22, 2020, the Occupational Safety and Health Administration (OSHA) formally convened a Small Business Advocacy Review (SBAR) panel (commonly known as a SBREFA panel) on Tree Care Operations, and scheduled four teleconferences with potentially regulated small entity representatives (SERs) for the month of April to discuss creation of a tree care operations standard.
These calls gave small businesses, small not-for-profit organizations and small governmental jurisdictions an opportunity to provide comments to OSHA on provisions that may be included in a standard, to offer recommendations to OSHA on ways to tailor the rule to make it more cost-effective and less burdensome and to identify different regulatory alternatives the agency might consider.
While there was a wide and varied group of SERs on each call – homebuilders, fruit- and nut-tree farmers, municipal-golf-course managers, campground owners and landscapers. Not surprisingly, SERs from the commercial arboriculture industry were the largest industry group represented, and 12 TCIA members were chosen to participate.
Discussion of issues
Prior to the commencement of the calls, each stakeholder was provided with a tree care issues document (https://www.osha.gov/dsg/tcsbrefa/Tree_Care_Issues_Document.pdf) summarizing and explaining each topic OSHA is considering including in a proposed standard, as well as potential regulatory alternatives and questions for SERs. Topics in the document cover issues such as the scope and application of the standard, potential training requirements, equipment use and work procedures, among others. Despite the wide array of provisions OSHA believes would be appropriate to include in a tree care operations standard, the SERs discussion concentrated on three primary issues: the scope and application of the rule, interaction with existing rules for work around power lines and the use of cranes.
Scope and application
With respect to the scope and application of a potential standard, OSHA is considering defining tree care operations to include “the pruning, repairing, maintaining, or removing of trees (tree care); and any on-site activities done in support of tree care.” The definition of tree care operations would not include the “use of earth-moving equipment to mechanically remove trees” nor “the pruning, repairing, maintaining, or removing of shrubs, hedges, and similar bushes, or the mowing of lawns.” However the “potential standard would cover tree care operations even if such work is not a routine part of the worker’s job or the main activity performed by employers in a given industry.”
For many of the small entities on the call, OSHA’s decision not to define “tree” in their draft regulatory framework – in order to limit the scope to account for the size of the tree or where on the tree the work occurs – is problematic. Employers in industries such as landscaping and homebuilding, that may perform “limited” tree care work from the ground and to trees under a certain height and/or diameter, expressed opposition to that type of work being covered by a potential standard, as compliance costs would be unduly burdensome. OSHA has explored and could consider alternatives to reduce the scope of a standard by adding a definition of “tree” and excluding some work from the scope of the potential rule based on tree height and/or diameter. SERs offered several differing suggestions on height and diameter, many of which aligned with insurance coverage. While the SERs did not reach uniform consensus on a specific height and diameter, most on the teleconference, including many of TCIA’s members, embraced the concept of such a limitation.
Electric Power Generation, Transmission and Distribution Standard
Currently, certain operations that involve tree trimming, tree felling or tree removal are already regulated under the Electric Power Generation, Transmission and Distribution Standard (29 CFR §1910.269), which covers line-clearance tree-trimming operations as part of maintenance for electrical-power generation, transmission and distribution. That standard addresses comprehensively the risks associated with this type of tree work, and the utilities who contract this work typically impose additional safety rules and prerequisites for their contractors.
Despite the requirements mandated of the utility-line-clearance industry by 1910.269, OSHA’s current draft regulatory standard would require line-clearance tree-trimming operations to follow the non-electrical provisions of a potential tree care operations standard. For this reason, many of the SERs on the call whose companies engage in line-clearance tree trimming, and even certain commercial arborist operations that do not, would like OSHA to exclude work covered by 1910.269 from a potential tree care standard – a regulatory alternative the agency has proposed considering.
Cranes and Derricks in Construction Standard
With respect to crane use, OSHA’s draft tree care standard would require employers to comply with OSHA’s Cranes and Derricks in Construction Standard when using cranes and other equipment covered under that standard in tree care operations (regardless of whether the tree care operation in question is construction work). However, OSHA does note that existing crane standards do not permit the hoisting of personnel into position with a crane, even though OSHA’s existing policy on enforcing those standards provides a defense for an employer if they can demonstrate that requiring personnel to access a position in a tree by any other means is either impossible/infeasible or presents a greater hazard to the employee.
As such, OSHA is considering including a provision in a potential tree care operations standard that would create a limited tree care operations exception to the personnel-hoisting prohibition, and has asked stakeholders for information about the appropriate circumstances under which OSHA should permit employers to hoist personnel on a crane during tree care operations – a practice that is permitted under certain circumstances in the ANSI Z133 industry consensus standard. SERs who participated on the panel, whose companies use cranes to hoist climbers into trees, impressed upon OSHA that the use of cranes to hoist climbers into trees has remarkably increased the safety of tree care operations, and said they would like OSHA to change its position with respect to the use of this practice only as a last resort.
Now that the panel has concluded, OSHA will review the panel’s report and any specific recommendations from the panel, such as reporting requirements, timetables for compliance and whether some groups, including small entities, should be exempt from all or part of any proposed rule.