- 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 7, 2011
Mr. Ron Cole
4501 Emanuel Cleaver II Blvd.
Kansas City, MO 64130-2371
Dear Mr. Cole:
Thank you for your letter to Charles Adkins, Regional Administrator for OSHA Region VII. The letter was transferred to OSHA's Directorate of Enforcement Programs for a response. We apologize for the delay in our response. This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any scenario or questions not delineated within your original correspondence. You had specific questions regarding the respective authorities of OSHA and the Federal Motor Carrier Safety Administration (FMCSA) of the U.S. Department of Transportation (DOT) over the wheel chocking of commercial motor vehicles (CMVs) (as defined by FMCSA) and related safety hazards at loading facilities. Our answers to your paraphrased questions are provided below.
Background: An OSHA compliance officer in the Kansas City, Missouri, Area Office provided you an OSHA memorandum dated April 1, 1991, dealing with Southwest Transportation. The memorandum states that OSHA has enforcement authority over all actions associated with the loading and unloading the vehicles at destination points. A DOT Field Office Division Administrator in Jefferson City, Missouri, provided you verbal feedback agreeing that FMCSA does not have such authority. You subsequently learned about a letter of interpretation (LOI) to Peter Blumenthal, dated March 4, 1998, which states that the trailers of CMVs must be properly chocked to prevent movement as required by the OSHA standards at 29 CFR 1910.178 (k)(l) and 29 CFR 1910.178(m)(7). You also learned of an LO1 to Robert M. Turner, dated November 8, 2005, which states that pursuant to section 4(b)(l) of the Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. 653(b)(1)1, FMCSA's braking regulations in 49 CFR Part 393 pre-empt OSHA from enforcing its chocking requirements with respect to CMVs. You request clarification on which agency has authority over this working condition.
Question 1: What government agency has enforcement authority in regards to the loading and unloading of trailers of CMVs backed to an employer's dock?
Response: In response to a decision of the Occupational Safety and Health Review Commission, the independent agency which decides contests to OSHA citations, OSHA issued a directive, STD 1-11.5, on October 30, 1978. That directive states that pursuant to section 4(b)(l), 49 CFR 392.20, the regulation of the Federal Highway Administration's Office of Motor Carrier Safety existing at that time, which required the setting of the parking brakes of CMVs and the taking of precautions to prevent movement, pre-empted OSHA chocking standards. In 1998, the Office of Motor Carrier Safety revoked that regulation. As a response to that revocation OSHA issued CPL 2-1.30 on October 1, 1999. That instructive rescinded STD 1-11.5, declaring that the OSHA chocking requirements were no longer pre-empted with respect to CMVs, except for specific types of vehicles with respect to which DOT chocking requirements continued to apply. In a March 30, 2001 letter, the FMCSA, the successor to the Office of Motor Carrier Safety, informed OSHA that its parking brake regulation at 49 CFR 393.41(a) requiring not only the availability, but also the use, of a parking brake system for CMVs, pre-empted OSHA's chocking requirements. Consequently, OSHA developed and posted a letter of interpretation dated November 8, 2005, to Robert M. Turner, stating that pursuant to section 4(b)(l) FMCSA regulations pre-empted OSHA chocking requirements with respect to CMVs.
Thus, it is OSHA's position that pursuant to section 4(b)(l), FMCSA regulations preempt OSHA chocking requirements with respect to CMVs. However, because the FMCSA parking brake regulations do not apply to vehicles which are not CMVs, OSHA is not pre-empted from enforcing its chocking requirements with respect to those vehicles. Furthermore, because the FMCSA parking brake regulations do not apply to companies which do not own, operate, or lease CMVs, OSHA is not pre-empted from enforcing standards requiring such companies to take precautions to protect their workers, such as forklift operators, from the movement of trailers.
Question 2: Whose responsibility is it to confirm that employees (forklift operators) are not in the trailer or in the process of loading or unloading a trailer or hostler when the driver attempts to remove the trailer from a loading dock?
Response: If the FMCSA's regulations do not cover a working condition, e.g., a manufacturing company that has employees exposed to this condition, then an employer must comply with OSHA's standards to ensure that forklift operators are not in the trailer or hostler when the driver attempts to remove the trailer from the loading dock. The powered industrial truck (PIT) standard at 29 CFR 1910.178(1)(3)(i)(A) requires PIT operators to be trained about "[o]perating instructions, warnings, and precautions for the types of truck the operator will be authorized to operate." Similarly, 29 CFR 1910.178(1)(3)(i)(M) requires PIT operators to be trained about "[a]ny other operating instructions, warnings, or precautions listed in the operator's manual for the types of vehicle that the employee is being trained to operate." In particular, 29 CFR 1910.178(1)(3)(ii)(A) requires training about "[s]urface conditions where the vehicle will be operated."2 Thus, a PIT operator must be trained that he or she is not to operate a PIT on a trailer that has been backed to a company's dock, unless the trailer is properly secured or restricted from movement prior to boarding.
Question 3: What OSHA interpretations or other guidance documents apply to chocking of CMVs that are loaded/unloaded by employees at dock facilities?
Response: This letter and the letter to Robert M. Turner, dated November 8, 2005, constitute current guidance on this subject. The letter to Peter Blumenthal, dated March 4, 1998; and the April 1, 1991 memorandum have been (withdrawn) because they do not reflect current interpretations.
Thank you for your interest in occupational safety and health. We hope you find this information helpful. Please be aware that OSHA's enforcement guidance is subject to periodic review and clarification, amplification, or correction. Such guidance could also be affected by subsequent rulemaking. In the future, should you wish to verify that the guidance provided herein remains current, you may consult OSHA's website at www.osha.gov. If you have any further questions, please feel free to contact the Office of General Industry Enforcement at (202) 693-1850.
Thomas Galassi, Director
Directorate of Enforcement Programs