June 28, 2004

Mr. Travis Morenz
PM- Inventory Control Supervisor
Horizon Hobby, Inc.
4105 Fieldstone road
Champaign, IL 61822

Dear Mr. Morenz:

Thank you for your April 13 letter to the Occupational Safety and Health Administration (OSHA) regarding the use of body belts and the harnesses on elevated platforms of powered industrial trucks. This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any questions not delineated within your original correspondence. Your paraphrased questions and our responses are provided below:

Question 1: In regards to the use of fall arrest equipment and the use of body belts, do OSHA regulations require that a body belt be attached to a lanyard and used to protect personnel against falls from elevated "operator-up" high lift truck platforms, or do the standards state that a 5-point harness must be worn as a part of a fall arrest device?

Response: OSHA's powered industrial trucks (PITs) standard, contained in 29 CFR 1910.178, does not have provisions that require either the use of a body harness or safety belt to protect personnel against falls from elevated platforms. However, in the absence of a specific standard, OSHA can enforce Section 5(a)(1) of the Occupational Safety and Health Act (OSH Act) -- which requires employers to protect employees from serious recognized hazards. Industry consensus standards, such as ASME B56.1-2000 Safety Standard for Low Lift and High Lift Trucks would be taken into consideration by OSHA when determining whether a hazard is "recognized" and that there is a feasible means of abating such a hazard. Section 4.17.2(c) of ASME 56.1-2000 requires that whenever an operator-up high lift truck is used to elevate personnel, restraining means such as railings, chains, cable, body belt(s) with lanyard(s), or deceleration devices, etc. are in place and properly used. Although the ASME standard calls for the use of body belts, OSHA strongly encourages employers to use body harnesses in place of body belts. You should also be aware that, as part of a rulemaking to revise Subpart D of 29 CFR 1910, OSHA has proposed the inclusion of a fall protection requirement that would apply to work platforms used in conjunction with powered industrial trucks. See the No. 68 Federal Register 23528 (May 2, 2003). A copy of the relevant portion this Federal Register is enclosed.

Question 2: Can OSHA give me information on fines and the circumstances surrounding the fines, if a plant is found to be violating the fall arrest guidelines set forth by OSHA?

Response: During the course of an inspection, if an employer is found to expose his or her employees to fall hazards which could result in serious injuries, citations would be issued along with proposed penalties. The amount of proposed penalties varies, depending on the type of violation: Willful, Serious, Other-Than-Serious, Failure-to-Abate, and Repeat; and on the employer's size, good faith, previous history of violations, and the gravity of the violation. For example, OSHA may propose a penalty of up to $7,000 for each serious violation, whereas penalties for each willful violation may range from $5,000 to $70,000. Our penalty calculation procedures also give consideration for any employer with 250 or fewer employees. Normally, a reduction of 60 percent may be applied to penalties if the employer has 25 employees or fewer; 40 percent if the employer has 26-100 employees; and 20 percent if the employer has 101-250 employees. Although no reduction for size is applied if an employer has more than 250 employees, the employer may still be accorded up to a 10 percent reduction for a lack of previous violations, and a 25 percent reduction for "good faith," which mainly depends upon the effectiveness of the employer's safety and health program. When these three factors are combined, it is possible for the smallest employers to receive up to a 95 percent reduction in the initial monetary penalty. The enclosed OSHA 3000 publication, entitled "Employer Rights and Responsibilities Following an OSHA Inspection," which has additional details on the types of violations and associated penalties, may assist you in understanding our penalty structure associated with different types of violations for which citations are issued.

Thank you for your interest in occupational safety and health. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov. If you have any further questions, please feel free to contact the Office of General Industry Enforcement at (202) 693-1850.

Sincerely,


Richard E. Fairfax, Director
Directorate of Enforcement Programs