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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.
July 7, 2003
Barry A. Cole
Executive Vice President
Miller Safety Consulting, Inc.
5750 Pecos Street, Suite #6
Denver, CO 80221
Re: §1926.251(a)(4) requirement for marking and proof-testing special custom-design or other lifting accessories
Dear Mr. Cole:
This is in response to your letter dated August 9, 2002, addressed to the Occupational Safety and Health Administration (OSHA) Office of Compliance Assistance in Denver, Colorado. Your inquiry was forwarded to the Directorate of Construction in the National Office. You ask about the Agency's policy concerning the use of engineering computations instead of proof-testingspecial custom-design lifting accessories. We apologize for the long delay in responding.
We have paraphrased your questions as follows:
Question 1: Does the §1926.251(a)(4) requirement that a "special, custom design lifting accessory" be marked and proof-tested apply to a custom-made lifting beam that has been designed by a registered professional engineer and made under quality controls?
Yes. 29 CFR 1926.251(a)(4) requires:
Special custom design grabs, hooks, clamps, or other lifting accessories, for such units as modular panels, prefabricated structures and similar materials, shall be marked to indicate the safe working loads and shall be proof-tested prior to use to 125 percent of their rated load.
If a grab, hook, clamp or other lifting accessory is not a regularly manufactured or produced item, the accessory is deemed a special custom design and must be "marked to indicate the safe working loads and proof-tested prior to use" in accordance with the §1926.251(a)(4) requirements.
We have included copies of letters to Mr. Pancari, dated June 14, 2002, and Mr. Wagester, dated August 15, 2002, that include extensive discussions of the issues you raise. In the Wagester letter the Agency concluded that:
The standard specifically requires that custom-design lifting accessories must be marked to indicate the safe working load and proof-tested to 125 percent of their rated load prior to use:
In the Pancari letter the Agency stated that:
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.
Question 2: Would the failure to do a proof-test be considered a De Minimis violation if the lifting accessory was made under quality controls and there is engineering computation documentation signed by a registered professional engineer?
No. Quality control and engineering computation documentation are not substitutes for assuring the performance of custom design lifting accessories through the required proof-test. As we stated in Pancari:
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).
Question 3: Apart from §1926.251(a)(4), are there other OSHA construction standards that would be violated by using a custom design lifting accessory in construction without proof testing?
We cannot answer this question without more details concerning the type of equipment used and circumstances of the lift.
If you need any further information, please contact us by fax at: U.S. Department of Labor - OSHA, Directorate of Construction, Office of Construction Standards and Guidance 202-693-1689. You can also contact us by mail at the above office, Room N3468, 200 Constitution Avenue, NW, Washington, DC 20210; although, there will be a delay in our receiving correspondence by mail.
Russell B. Swanson, Director
Directorate of Construction