February 2, 2004

Mr. Michael P. Kurtgis, CEO
USA Airmobile, Inc.
4101 Southwest 47th Avenue, Suite 106
Fort Lauderdale, Florida 33314

Re: Whether a fall protection device for workers in an aerial lift that has a releasable tether and a non-releasable tether meets OSHA construction standards?

Dear Mr. Kurtgis:

This is in response to your letter dated May 13, 2003, to the Occupational Safety and Health Administration (OSHA). You asked OSHA to review the forwarded product information on the equipment called the "Wishbone" and assess its use in view of OSHA standards §1926.453(b)(2)(iii) and (v) of Subpart L (Scaffolds).

We have paraphrased your questions as follows:

Question (1): Our corporation has recently completed development of a new fall protection device called Wishbone ("device") that is designed to secure personnel working in aerial lifts. The device simultaneously connects personnel to a bucket by a releasable restraint connection, and to either the boom or an adjacent structure by a non-releasable personal fall arrest system. Both of these connections are capable of supporting at least 5,000 pounds between the anchor and the person. However, when there is a pulling force of 200 pounds between the releasable restraint end and the non-releasable end, the releasable restraint end will disconnect (see illustration below).

Scenario A: The releasable restraint is connected to the bucket. The non-releasable fall arrest connection is attached to an adjacent pole or structure. In the event of an aerial lift's failure, the releasable restraint end will disconnect, but the user will not fall because he/she will still be attached to the pole or structure by the non-releasable end.

Scenario B: (This scenario applies where the aerial lift can withstand a 5,000 pound fall arrest force.) The releasable restraint is connected to the bucket. The non-releasable end is attached to the aerial lift's boom. If the worker is ejected from the bucket, but the aerial lift remains upright, the fall will be arrested by the non-releasable connection to the boom. This prevents falls to the ground from "flip-outs" and "tip-outs."

Is the use of this device as described permissible under the OSHA construction standards when working in aerial lifts? Would its use comply with §1926.453(b)(2)(iii) and (v) of Subpart L?

Answer (1): OSHA is generally precluded from approving or endorsing specific products. The variable working conditions at job sites and possible alteration or misapplication of an otherwise safe piece of equipment could easily create a hazardous condition beyond the control of the equipment manufacturer. However, where appropriate, we try to give some guidance to help employers assess whether products are appropriate to use in light of OSHA requirements.

The Scaffolds standard, 29 CFR Part 1926 Subpart L, requires fall protection for employees in aerial lifts. Section 1926.453(b)(2)(v) states:

A body belt shall be worn and a lanyard attached to the boom or basket when working from an aerial lift.¹

In addition, §1926.453(b)(2)(iii) provides:

Belting off to an adjacent pole, structure, or equipment while working from an aerial lift shall not be permitted.

Section 1926.453(b)(2)(v) states that fall protection is required for persons working from an aerial lift, and that the fall protection system must be attached to the boom or basket of an aerial lift. The purpose of this requirement is to protect employees from being bounced out of the aerial lift or placing themselves in a position from which they could be exposed to a fall by leaning over the basket.

Further, §1926.453(b)(2)(iii) prohibits tying off fall protection to an adjacent pole, equipment or structure. This prohibition addresses, among others, the hazard of such an adjacent pole/structure failing and pulling the attached worker from a bucket. This may occur where, for example, a pole has rotted and fails while work is done to equipment attached to it, or where a traffic accident occurs in which a vehicle strikes the pole.

These provisions reflect a concern that the type of "adjacent" structures typically associated with work done from aerial lifts are unreliable with respect to their condition (and so their ability to withstand loads imposed on them while work is being done) and vulnerability to traffic accidents.

Based upon your Operating Instructions Manual, your device is designed to function in various situations. Your correspondence, however, focused upon two scenarios that are affected by the OSHA construction standards on aerial lifts. Each of these scenarios requires a separate evaluation.

Scenario A

In the first instance the releasable restraint is connected to the bucket. The non-releasable fall arrest connection is attached to an adjacent pole or structure. As you indicated in your Operating Instructions Manual, in this scenario a failure of the aerial lift would cause the worker to be ousted from the bucket, but a fall to the ground might be prevented since the worker would remain attached by a fall arrest system to the adjacent structure.

In the present case, the standard language is unambiguous. The standard, by its terms, prohibits attachment to an adjacent structure. Using your device as described would violate §1926.453(b)(2)(iii) because it attaches the worker to an adjacent structure or pole.

In fact, the use of the device in the manner described in Scenario A sets the stage for one of the hazards that §1926.453(b)(2)(iii) was designed to prevent – the risk of an worker being pulled from the bucket and falling to the ground if the adjacent pole/structure fails. The standard reflects a finding that the likelihood of the adjacent structure falling is greater than the likelihood of the bucket falling.

In sum, the characteristics of the device do not address the hazard §1926.453(b)(2)(iii) is designed to prevent. Thus, use of the device in such a scenario would be in violation of that provision.

However, limited situations may exist where an adjacent structure poses no reasonably foreseeable risk of failure. For example, such an instance might arise where the adjacent structure is a completed building or a completed (i.e., fully bolted-up) skeletal steel structure. In those instances, OSHA would consider the violation of §1926.453(b)(2)(iii) to be de minimis² and no citation would be issued.

Scenario B

(This scenario applies where the aerial lift can withstand a 5,000-pound fall arrest force). The releasable (200-pound) restraint is connected to the bucket. The non-releasable (5,000-pound) fall arrest connection is attached to the aerial lift's boom. In this scenario, any failure of the bucket or lift would "release the connection to the bucket or lift leaving the user secured to the boom attachment." The manual also notes that this configuration could prevent "flip-outs" or "tip-outs" when used in conjunction with a short lanyard.

Section 1926.453(b)(2)(v) states that when tying off on an aerial lift, the lanyard shall be tied off "to the boom or basket when working when working from an aerial lift."

While the standard allows a choice of tie-off points (boom or bucket), it does not specifically indicate whether tying off to both simultaneously is prohibited. Since the bucket and boom move together and likely share a similar risk of failure, the type of hazard presented by being tied-off to an adjacent structure is not present in this scenario. Therefore, the use of the device as described in this scenario is permitted by the standard.

Question (2): Could our corporation obtain a permanent variance from §1926.453(b)(2)(iii) so that the device could be used as described in Scenario A?

Answer (2): First, as a technical matter, variances are available only to employers. Section 6(d) of the OSHAct and 29 CFR 1905.11 govern the issuance of variances. Section 6(d) of the OSHAct provides in pertinent part:

Any affected employer may apply to the Secretary for a rule or order for a variance from a standard promulgated under this section. . . . .The Secretary shall issue such rule or order if he determines on the record, after opportunity for an inspection where appropriate and a hearing, that the proponent of the variance has demonstrated by a preponderance of the evidence that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment...which are as safe and healthful as those which would prevail if he complied with the standard. [Emphasis added.]

Similarly, Section 1905.11 states:

Variances and other relief under section 6(d).
(a) Application for variance. Any employer, or class of employers, desiring a variance authorized by section 6(d) of the Act may file a written application containing the information specified in paragraph (b) of this section, with the Assistance Secretary for Occupational Safety and Health...." [Emphasis added.]

Second, an employer (or class of employers) would not be able to qualify for a variance to use the device in Scenario A based on the information you submitted. Your submission does not present an alternate means of preventing a worker from being pulled from the bucket (or, by being attached to the bucket as well, being pulled down with the bucket) and falling to the ground if the adjacent pole/structure fails.

If you need any additional information, please contact us by fax at: U.S. Department of Labor, OSHA, Directorate of Construction, Office of Construction Standards and Guidance, fax # 202-693-1689. You can also contact us by mail at the above office, Room N3468, 200 Constitution Avenue, N.W., Washington, D.C. 20210, although there will be a delay in our receiving correspondence by mail.



Sincerely,


Russell B. Swanson, Director
Directorate of Construction
 

¹ Note that Subpart M, the Fall Protection standard, now prohibits the use of a body belt as part of a personal fall arrest system and instead requires the use of a body harness. Fall arrest systems used in construction must comply with §1926.502(d). A body belt may still be used as part of a restraint system. [back to text]

² Under OSHA's de minimis policy, de minimis violations are those which have no direct or immediate relationship to safety or health. [back to text]