June14, 2002

Mr. Ron Pancari
Project Manager
Vogt-NEM, Inc.
4000 Dupont Circle, Suite 400
Louisville, KY 40207

Dear Mr. Pancari:

This is in response to your April 10, 2002 letter to the Occupational Safety and Health Administration (OSHA). In your letter and subsequent conversations with us, you have asked that we clarify how 29 CFR 1926.251(a)(4) applies to Vogt-NEM's spreader frame, strong back frame, shipping frame (ladder frame) and other lifting accessories depicted in the materials you submitted.

Since the sense we have of your inquiries is that they pertain to using these frames and other lifting accessories in the construction of power generation facilities, we have addressed your questions with respect to the obligations of an employer engaged in the construction of such power generation facilities with respect to 29 CFR 1926.251(a)(4). We are not addressing issues regarding contractual relationships with the owner, with the actual constructor or with the projects' various other contractors.

We have paraphrased your questions as follows:

Question (1): Must Vogt-NEM's frames and other lifting accessories depicted in the submitted materials be proof tested and marked prior to use according to 29 CFR 1926.251(a)(4)?

Answer: Yes, Vogt-NEM's lifting frames and other lifting accessories depicted in the submitted materials must be tested and marked according to §1926.251(a)(4) if they are used in a construction activity. This is the case irrespective of who supplies the devices to the construction employer (we have listed the affected pieces of lifting equipment below).

In your letter you describe the design and use of various Vogt-NEM, Inc. assemblies for the erection/installation of your steam generator tube bundles in power generation facility construction. You use this equipment first as part of the process for manufacturing the generator tube bundle. It is then used to ship, store, handle, move, and erect/install the bundle. All of the equipment that you have asked about function at some time as equipment designed to lift the bundle, and thus are lifting equipment/ lifting accessories (rigging equipment for material handling).

We have identified the equipment or assemblies used in your construction activities under discussion as including those listed below and any others used in those activities, which fall under the requirements of 29 CFR 1926.251(a)(4):

From your April 10, 2002, letter and your May 7, 2002, UPS next day air letter:

Spreader Frame Assembly (for H.R.S.G. Module Tube bundle)
Strong Back assembly (for Module Tube bundle)
Installation Trolley Beam (for HRSG Module), if used as custom lifting accessory
Additional Spreader Beam (for use with Strong Back atop Trolley Beam)
Spreader Beam #2 (for use at bottom end of Strong Back), if used with optional crane #2
12 Lifting Bracket Assemblies (for use with tube bundle module lower tube wrap around)

From Keith Kaufman's May 2 & 3, 2002, e-mails:

2 Steel Structure Spreader Beams
Hoisting Beam (for Shipping Frame)
Shipping Frame (for horizontal handling)
Steel Structure Strongback Frame
Steel Structure Top Hoisting Frame
Additional Spreader Beam (for use with Hoisting Beam and Shipping Frame when only one crane makes the lift.)

As you described these assemblies and their uses, all are custom designed. In addition your procedures include complete inspections, repairs or replacements.

29 CFR 1926.251(a)(4) states:

Special custom design grabs, hooks, clamps, or other lifting accessories, for such units as modular panels...and similar materials, shall be marked [emphasis added] to indicate safe working loads and shall be proof-tested [emphasis added] prior to use to 125 percent of their rated load.

This provision does not permit calculations to be used in place of proof testing. The language is unambiguous — "Special design...lifting accessories...shall be marked to indicate safe working loads and shall be proof-tested prior to use to 125 percent of their rated load." Since all the equipment listed above, including your frames and assemblies are custom designs and are used to lift units such as modules or prefabricated structures, they fall within the devices regulated by §1926.251(a)(4).

Although the shipping frame changes uses as it goes through its life cycle, it is used as a custom design lifting accessory at least twice in that cycle and, as discussed during the May 3^rd conference call, usually many more times. At the very least the shipping frame is used to lift and move its tube bundle in the bundle manufacturing process and during the installation process at the power generator. This accessory is used as a custom-design lifting accessory at several intermediary stages along the tube bundle's journey from creation to power generator construction activity and final installation.

Additionally, the shipping frame falls short of being an integral part of the product it surrounds. It has a short separate life both at its creation and after tube bundle installation. Your manufacturing process (as we understand it) creates part of the shipping frame separate from and before the bundle's manufacture. Then the remainder of the shipping frame is tailored around the tube bundle as it is built. At the end of the frame life cycle it has a life separate and apart from the bundle as well. They separate as the bundle is lifted to its final position for installation. The shipping frame's separate life may be short after final bundle installation, but it is a separate existence nonetheless.

We understand that the shipping frame is separated from its tube bundle at the installation phase of the bundle and then goes to scrap. However, the language of the standard does not differentiate among custom-design lifting accessories by length of life cycle or speed of demise.

In sum, because the devices and equipment discussed above are custom-designed lifting accessories, they fall under the requirements of 29 CFR 1926.251(a)(4) when they are used in construction and must be marked and proof-tested accordingly. The standard requires that each custom-designed lifting accessory be proof-tested and marked before being deployed for use.

Question (2): Must Vogt-NEM's frames and other lifting accessories depicted in the submitted materials be proof-tested and marked prior to use according to 29 CFR 1926.251(a)(4) after they have undergone repairs and replacements?

Answer: If a shipping frame or any other of the devices being discussed has been intentionally or inadvertently changed/modified, it essentially becomes a different custom-design lifting accessory. Therefore, after it has undergone changes that affect its safe working load, including changes during your repair and replacement procedures, Vogt-NEM's lifting frames and other lifting accessories depicted in the submitted materials must be tested and marked according to §1926.251(a)(4) when they are to be used in a construction activity.

Additional information

You indicated that the shipping frame/ladder assembly is constructed as the tube bundle is formed. Therefore, it is not fully assembled until the tubes are in it. This raises the possibility that it may be infeasible to proof-test the assembly, since it is not completed prior to the point at which it contains the tubes. If that is the case, the next most protective action must be taken. In the scenario you have described, this may consist of steps such as proof-testing a used shipping frame/ladder assembly and comparing the results of the proof-test to the calculated load capacity, use of safety factors in excess of what is required in the standard, appropriate manufacturing controls, and sampling methodologies.

If you require any further assistance, please contact [the Directorate of Construction].

Sincerely,



Russell B. Swanson, Director
Directorate of Construction