February 15, 2005

Mr. J. Nigel Ellis, Ph.D., CSP, PE, CPE
CEO
Dynamic Scientific Controls
306 Country Club Drive
Wilmington, DE 19803-2920

Re: Request to expand the application of the "de minimis" policy regarding Section 1926.453(b)(2)(iii) and the use of the "Wishbone" fall protection device beyond the parameters described in OSHA's February 2, 2004, letter to Mr. Michael Kurtgis.

Dear Mr. Ellis:

This is in response to your letter dated December 13, 2004, to the Occupational Safety and Health Administration (OSHA). You ask that OSHA expand the application of the "de minimis" policy regarding Section 1926.453(b)(2)(iii) and the use of the "Wishbone" fall protection device beyond the parameters described in OSHA's February 2, 2004, letter to Mr. Michael Kurtgis.

We have paraphrased your question as follows:

Question: In a February 2, 2004 letter to Mr. Michael P. Kurtgis, OSHA provided guidance to employers relative to the use of the "Wishbone" fall protection device by employees in aerial lifts. Specifically, after noting the general prohibition against attaching to an adjacent pole or structure contained in Section 1926.453(b)(2)(iii), OSHA stated in paragraph 5 of Scenario A:

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 a 1926.453(b)(2)(iii) to be "de minimis" [footnote omitted] and no citation would be issued.

I believe that the above language is too limited for several reasons. In particular, the language does not reflect that aerial lift transfers/attachments to adjacent poles are becoming more common, that "completed" poles are not known to fail upon impact by vehicles, and that the device provides safer transfer/attachment to poles, lattice structures and platforms with limited or otherwise unavailable access. Thus, would OSHA expand the policy to allow tie-off with the device to adjacent structures including a platform, completed wood pole structure, and completed steel pole or lattice structure (using adequate anchorage)?

Answer: We have reviewed your comments regarding our response to the "Scenario A" portion of Mr. Kurtgis' letter. We believe that the "de minimis" policy articulated in our previous letter appropriately addresses the issue.

As you noted, "Scenario A" focused on an employee working in an aerial lift who, using the device, is connected to a bucket with a releasable restraint and to an adjacent pole or structure with a non-releasable fall arrest connection. In that discussion, we emphasized that Section 1926.453(b)(2)(iii) by its terms prohibits an employee's attachment to an adjacent structure while working from an aerial lift, and noted the industry rationale behind this prohibition. That rationale was linked to the hazard of an employee being pulled from a bucket if an adjacent pole or structure failed. We concluded that use of the Wishbone device would be a de minimis violation:

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 your letter, you focus on assertions that do not justify the extension of the "de minimis policy" we described in our previous letter. First, you assert that "aerial lift transfers/attachments to adjacent poles are becoming more common"; the de minimis policy is based on an absence of a direct or immediate relationship to safety and health, not the extent to which a practice may be common. Second, your statement that "'completed' poles are not known to fail upon impact by vehicles" is contrary to information that we have from experts in the utility and telecommunications industry.

Conversely, the examples we noted in our prior letter that would support a "de minimis" violation were specifically selected because they do focus upon and address the hazard addressed by the standard (e.g., the likelihood of an adjacent pole/structure to collapse due to its condition or vulnerability to traffic conditions). We stated that wooden utility poles are vulnerable to failure due to decay, and that wooden poles are also vulnerable due to vehicles striking them in accidents.

We also stated that structures such as a completed building or fully bolted-up skeletal steel structure would typically pose no reasonably foreseeable risk of failure. Other structures that are similarly unlikely to fail due to collapse or from vehicle impact would also fall within the policy. However, it is not possible for us to anticipate and individually address every type of structure that employers may encounter in this regard. We believe that the examples we have provided will enable employers to determine whether the structures they are dealing with fit within the parameters of this de minimis policy.

If you need 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