- Standard Number:
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.
MARCH 5, 1985
Honorable Gillespie V. Montgomery
Member, United States House of Representatives
P.O. Box 412
Laurel, Mississippi 39441
Dear Congressman Montgomery:
Thank you for your letter of February 5 on behalf of your constituent, Mr. J. T. Monk.
Mr. Monk's assertion regarding the danger of changing the lifting capacity of mechanical material handling equipment is correct for the reasons that he has indicated. The Occupational Safety and Health Administration (OSHA) has a standard on powered industrial trucks; 29 CFR 1910.178. Paragraph (a)(4) of this section states:
"(4) Modifications and additions which affect capacity and safe operation shall not be performed by the customer or user without manufacturers prior written approval. Capacity, operation and maintenance instruction plates, tags, or decals shall be changed accordingly."
Any employer who allows his employees to utilize any modified equipment which is not approved by the equipment manufacturer is subject to citation and, more importantly, abatement of the hazard. Since the manufacturer has not approved the modification of its vehicles, an unsuspecting employer could be required to remove all of the additional counterweights and other modifications to the truck to be able to comply with the OSHA standard and abate the violation.
Essentially the same requirement as the OSHA standard cited above is contained in the American National Standards Institute (ANSI) B36.1 - 1983, Safety Standard for Low Lift and High Lift Trucks. If a truck is modified without the prior consent of the manufacturer, and the labels, tags or decals are not changed or removed, the truck is not in conformance with the consensus standard. A new fork lift truck usually has a label which attests to the fact that the truck complies with the ANSI standard. Failure to remove this label may constitute false advertising, and your constituent may wish to report the matter to the Federal Trade Commission.
We are only able to address considerations relating to OSHA's jurisdiction. It may be appropriate for your constituent to seek legal advice on the matter.
Please let us know if we may be of any additional help to your constituent.
Barry J. White
Director, Directorate of Safety
FEBRUARY 5, 1985
Ms. Ruth Knight
Chief of Legislation
Occupational Safety and Health Administration
Department of Labor
200 Constitution Avenue, N.W.
Washington, D. C. 20210
Dear Ms. Knight:
As you will note from the enclosed correspondence, my first inquiry on this matter was inadvertently directed to the Occupational Safety and Health Review Commission.
I will appreciate it very much if you will look over Mr. Monk's letter and provide me any information that might be helpful in responding to him. Please address your response to me at my District Office, P. O. Box 412, Laurel, MS 39441. With regards,
GILLESPIE V. MONTGOMERY
Member of Congress
FEBRUARY 1, 1985
The Honorable Gillespie V. Montgomery
P.O. Box 412
Laurel, MS 39441
Dear Congressman Montgomery:
I am writing in response to a letter from you and your constituent, Mr. J.T. Monk. The Review Commission has no jurisdiction in the matter Mr. Monk discusses. Our sole mandate is to issue decisions in cases arising from contested inspections made by the Occupational Safety and Health Administration (OSHA), which is separate and distinct from the Review Commission.
Your constituent's correspondence gives no indication that a contested OSHA inspection has occurred, thus we could not be involved in the situation. Mr. Monk does mention OSHA, the U.S. Dept. of Labor agency that inspects work places and promulgates job safety and health regulations. That agency's address is:
U.S. Dept. of Labor/OSHA
200 Constitution Ave. NW
Washington, D.C. 20210
If I can be of further assistance, please contact me.
Linda A. Smith
Public Information Specialist
JANUARY 11, 1985
The Honorable G. V. Montgomery
House of Representatives
2367 Rayburn Building
Washington, DC 20515
Dear Congressman Montgomery:
Attached is an advertisement from Southeastern Machinery & Equipment Company (a company in Gadsden, AL owned by Mr. Frank Fontaine). Mr. Fontaine makes a continued practice of purchasing Taylor's and other manufacturers' equipment, such as Caterpillar, Clark and Hyster, bringing it into his place of business and increasing the rated capacities by simply adding additional counterweight to the steer axle end of the vehicle. This does allow the lift truck to lift more load before the steer axle becomes unstable from lack of weight. However, it loads other components beyond their safe limits. These limits have been established by the suppliers of components, such as tires, hydraulic cylinders, rims, axles, forks and hoist chains. This will also overload the frame, mast rails and rollers. He then rates the equipment over the capacity limits of the components, advertises, and sells it.
He does this still using the Taylor, Caterpillar, Clark, or Hyster name, as you can see in this advertisement. By so doing, he takes advantage of a consumer who thinks the rating that is on the machine is a Taylor rating and thus uses Taylor's reputation, reliability and service for selling this equipment.
To illustrate, where Southeastern advertised a log stacker to 158,000 pounds, although it is not said the ad indicates that the machine has a working capacity of 150,000 pounds. The capacity of this Model of Taylor log stacker is 70,000 pounds. The only thing about the lift truck which might closely correlate to the advertised 150,000 pounds is the vehicle empty weight from Taylor, which is approximately 124,000 pounds. It would certainly not surprise us at Taylor if Southeastern had added 26,000 pounds of counterweight and restamped the capacity plate to whatever he desired, yet leaving the Taylor name on the truck. In many cases, he is loading the components to the extent that it is dangerous to the people that operate this equipment.
Southeastern Machinery is out of the state of Mississippi, and Taylor actually has no direct contact with Mr. Fontaine. The Anti-Trust Act makes us sell him parts and this means he has access to any item that he needs from Taylor's Parts & Service Department.
It seems to me that the Department of Occupational Safety & Health Administration was established to protect people and consumers from characters such as this. If there is a department in the federal government that directs its attention to matters such as this, please advise whom I should contact.
Thank you very much.
Very truly yours,
J. T. Monk
Director of Engineering
Taylor Machine Works, Inc.
P.O. Box 150/Highway 15 North
Louisville, Mississippi 39339